Hill v R

1. [1]

   HOEBEN CJ at CJ: I agree with Bellew J.

2. [2]

   JOHNSON J: I agree with Bellew J.

3. [3]

   BELLEW J: On 17 February 2016 Steven William Hill (to whom I shall refer as the appellant) pleaded not guilty before Garling ADCJ in the District Court to an indictment dated 11 February 2016 (AB 3481-3483; AB 3496-3498) containing the following counts:

   1. (1)

      Between about 5 January 2006 and about 2 February 2006 at Bathurst, NSW, and elsewhere, having received valuable security into Westpac Account No. 144336 in the name of Hill Stephens and Associates Pty Ltd (HSA), being $28,000 from Asthore Pty Ltd as trustee for the Kruit Family Superannuation Fund, $6,000 from Henrick Kruit and Joanne Patricya Kruit, and $66.000 from Romasake Pty Limited as trustee for the Findlay Family Superannuation Fund, upon terms which required him to pay the whole of the valuable security, being $100,000, towards “seed capital” in house and land packages in Queensland, fraudulently misappropriated to his own use, or the use of any other person, $20,000 of the $100,000, in violation of the terms upon which he received the said valuable security.

   2. (2)

      Between about 5 June 2006 and about 3 July 2006 at Bathurst, NSW, and elsewhere, having received valuable security into Westpac Account No. 144336 in the name of Hill Stephens and Associates Pty Ltd (HSA), being $120,000 from Julie Anne Hollitt, upon terms which required him to pay the whole of the valuable security towards “seed capital” in house and land packages in Queensland, fraudulently misappropriated to his own use, or the use of any other person, $60,000 of the $120,000, in violation of the terms upon which he received the said valuable security.

   3. (3)

      Between about 23 August 2006 and about 27 September 2006 at Bathurst, NSW, and elsewhere, having received valuable security into Westpac Account No. 144336 in the name of Hill Stephens and Associates Pty Ltd (HSA), being $70,000 from HannanCowley Pty Ltd as trustee for the HannanCowley Super Fund, upon terms which required him to pay the whole of the valuable security towards house and land packages in Queensland, fraudulently misappropriated to his own use, or the use of any other person, $68,000 of the $70,000, in violation of the terms upon which he received the said valuable security.

   4. (4)

      Between about 17 October 2006 and about 23 October 2006 at Bathurst, NSW, and elsewhere, having received valuable security into Westpac Account No. 144336 in the name of Hill Stephens and Associates Pty Ltd (HSA), being $88,000 from Julie Anne Hollitt upon terms which required him to pay the whole of the valuable security towards “seed capital” in house and land packages in Queensland, fraudulently misappropriated to his own use, or the use of any other person, the $88,000, in violation of the terms upon which he received the said valuable security.

   5. (5)

      Between about 13 November 2006 and about 30 November 2006 at Bathurst, NSW, and elsewhere, having received valuable security into Westpac Account No. 144336 in the name of Hill Stephens and Associates Pty Ltd (HSA), being $10,000 from Julie Hollitt Psychologist and Associates Pty Limited, upon terms which required him to pay the whole of the valuable security towards “seed capital” in house and land packages in Queensland, fraudulently misappropriated to his own use, or the use of any other person, the $10,000, in violation of the terms upon which he received the said valuable security.

   6. (6)

      Between about 12 January and 24 January 2007 at Bathurst, NSW, and elsewhere having received valuable security into Westpac Account No. 185219 in the name of International Finance Consortium (Aust) Pty Ltd (IFC), being $150,000 from John Long & Denise McGuire as trustee for the Long McGuire Family Superannuation Fund, upon terms which required him to pay the whole of the valuable security towards house and land packages in Queensland, fraudulently misappropriated to his own use, or the use of any other person, the $150,000, in violation of the terms upon which he received the said valuable security.

   7. (7)

      Between about 19 February 2007 and about 6 March 2007 at Bathurst, NSW, having received valuable security into Westpac Account No. 185219 in the name of International Finance Consortium (Aust) Pty Lid (IFC), being $80.000 from Lynette Sloane Pty Limited as Trustee for the Sloane Family Superannuation Fund, upon terms which required him to pay the whole of the valuable security towards house and land packages in Queensland, fraudulently misappropriated to his own use or the use of any other person $35,000 of the $80,000, in violation of the terms upon which he received the said valuable security.

4. [4]

   Each of those counts alleged an offence contrary to s. 178A of the Crimes Act 1900 (NSW) (“the Act”) (which has now been repealed).

5. [5]

   During the course of the trial, the terms of count 4 as set out above were amended (over objection by counsel for the appellant) by omitting the words “Julie Anne Hollitt” and inserting, in lieu thereof, the words “J A Hollitt Pty Limited as trustee for the Julie Hollitt Superannuation Fund”. The decision of the trial judge to allow that amendment forms part of the basis of ground 1 of the appellant’s appeal against conviction.

6. [6]

   On 15 March 2016, the appellant was convicted of counts 1 to 5 inclusive, and count 7. A verdict of not guilty was returned in respect of count 6.

7. [7]

   On 18 April 2016 the appellant was sentenced to a total term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 6 months, both to date from 7 April 2016. The appellant is eligible for release on parole on 6 January 2018.

8. [8]

   By notice filed on 15 March 2017 the appellant appeals against his convictions on the grounds more fully considered below. He also seeks leave to appeal against the sentence imposed.

THE APPELLANT’S APPLICATION FOR RELEASE

1. [9]

   Also before the Court on the hearing of the appellant’s appeal was an application pursuant to the Bail Act 2013 (NSW) for his release, pending the outcome of his appeal. At the conclusion of the hearing on 31 May 2017, the Court ordered that the application for release be refused, and indicated that the reasons for reaching that conclusion would be incorporated into the Court’s judgment dealing with the appeal. Those reasons now follow.

2. [10]

   This Court’s function in determining the application for release involves a fresh consideration of the relevant issues, although the Court is not precluded from having regard to a judgment of Button J of 14 December 2016 in which his Honour refused a previous application brought by the appellant: Obeid v R [2016] NSWCCA 321 at [6]. Because the application for release has been made at a time when an appeal is pending in this Court, the appellant must, in light of s. 22(1)(a) of the Bail Act 2013 (NSW), establish the existence of special or exceptional circumstances which justify his release. In that regard, counsel for the appellant relied primarily (although not exclusively) upon the various grounds of appeal which, it was submitted, were “more than arguable” and “most likely to succeed”. Counsel also submitted that depending upon when judgment was delivered by this Court, a situation may well arise where, by that time, the appellant would have served the majority of his non-parole period. It was also submitted that the appellant had a need to be at liberty to avail himself of entry into a course of study at Charles Sturt University which had become available to him.

3. [11]

   This Court concluded that the application for release should be refused because the appellant failed to establish the requisite special or exceptional circumstances justifying his release. For the reasons that follow, none of the grounds relied upon by the appellant, as to conviction or sentence, have been made out. Indeed, far from being “more than arguable” or “likely to succeed”, I have concluded that leave to rely upon many of the grounds should be refused. In these circumstances, the other matters upon which the appellant relied in support of the application for release were not material.

THE APPLICATION OF RULE 4 OF THE CRIMINAL APPEAL RULES

1. [12]

   As set out below, the appellant relies upon a total of 16 separate grounds in support of his appeal against conviction. Many of those grounds seek to agitate issues which were not raised before the trial judge. In these circumstances, and in light of the explanation given by counsel for the appellant before this Court (who also appeared at trial) as to why such issues were not raised, it is necessary to say something at the outset about the operation of rule 4 of the Criminal Appeal Rules (NSW).

2. [13]

   Rule 4 is in the following terms:

3. [14]

   The rule reflects the positive obligation upon trial counsel to assist the Court in the conduct of a trial. There is a fundamental need for trial counsel to take objections (be they to the admissibility of evidence, the summing-up, the giving of appropriate warnings and directions to the jury, or otherwise) so that if such objections are of substance, the trial judge may correct them. This avoids appeals being brought in this Court, and the associated possibility of retrials being ordered if such appeals are successful: R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 per Carruthers J at [62]–[66] citing (inter alia) R v Abusafiah (1991) 24 NSWLR 531 at 536 per Hunt CJ at CL, and R v Sanderson [1994] NSWCCA 18 July 1994 (unreported) per Gleeson CJ. The fact that no objection is taken to a procedural step adopted by a trial judge, or to matters put (or omitted to be put) in the course of a summing-up, is cogent evidence that counsel, absorbed in the atmosphere of the trial, saw no injustice in what was done: Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121] per the Court (Beazley P, Hall and Wilson JJ) citing R v Tripodina (1988) 35 A Crim R 183 at 191 per Yeldham J (Carruthers and McInerney JJ agreeing).

4. [15]

   In Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37, McHugh J said the following in respect of rule 4 (at [72]):

5. [16]

   The importance of the operation of r. 4, and its requirements, were also emphasised by Bathurst CJ in ARS v R [2011] NSWCCA 266 at [148]:

6. [17]

   In the present case, a number of complaints are now sought to be made by the appellant in respect of the summing-up of the trial judge. As Bathurst CJ indicated in ARS, the absence of objection by trial counsel, particularly as to matters involving criticism of the form, content or balance of a summing-up, furnishes a basis for concluding that in the context of the atmosphere as it existed at the trial, and in the contemporary awareness of the manner in which the summing-up was spoken, no reasonable ground for concern regarding the adequacy and/or fairness of the summing-up was apparent: see also Saffron v R (1988) 17 NSWLR 395 per Hope JA at 434; and R v Aziz [1982] 2 NSWLR 322 per Nagle CJ at CL at 331. More recently, in Greenhalgh v R [2017] NSWCCA 94 Basten JA observed (at [14]):

7. [18]

   In the same case, N Adams J said (at [47]-[48]):

8. [19]

   In respect of those grounds to which r. 4 applies, I have applied the approach reflected by these authorities in determining whether leave should be granted. It is also relevant to note, to the extent that some of the grounds of appeal take issue with the summing-up of the trial judge, that immediately prior to the jury retiring to commencing deliberations in the appellant’s case the trial judge (at AB 637) specifically enquired of counsel as to whether any further directions were sought. In response, counsel for the appellant raised no issue whatsoever about any aspect of the summing-up.

AN OVERVIEW OF THE CASE

1. [20]

   In or about late 2004 the appellant met Daryl Ladd (“Ladd”) who at that time was engaged in promoting the construction and sale of homes in Queensland. During 2005, the appellant and Ladd discussed creating a business together which involved the construction and sale of new homes in south east Queensland, to be funded by a combination of funds from “low doc” construction loans obtained through a company called Diverse Financial Solutions Pty Limited, and funds provided by investors who were otherwise known to, or introduced by, the appellant. For these purposes, the appellant and Ladd registered a company in December 2005 named Lynlad-Hill and Associates Pty Limited (“LHA”).

2. [21]

   During the period of the offending, the appellant carried on the business of a financial adviser with Mr Aaron Stephens, through Hill Stephens and Associates Pty Limited (“HSA”), a company based in Bathurst. In the course of that business, the appellant provided financial advice concerning the financing of investment properties, and refinancing existing home loans. At some time in 2005, Mr Stephens became bankrupt and ceased his involvement in the conduct of the business of HSA. However, the appellant continued to provide advice. Some of the persons to whom he provided that advice were those who invested the money which was the subject of the various counts in the indictment.

3. [22]

   It was the Crown case that in furtherance of the business of LHA, the appellant encouraged and assisted some of his existing clients from HSA, as well as other persons, to establish self-managed superannuation funds, into which their existing superannuation entitlements could be transferred, following which that money could be used to invest in house and land projects being conducted by LHA in Queensland. Initially, the appellant instructed investors to deposit money into the account of HSA (counts 1 to 5). Later, he established a company called International Finance Consortium (Aust.) Pty Limited (“IFC”) which operated an account into which the appellant instructed investors to deposit money (counts 6 and 7).

4. [23]

   It was the Crown case that in each of the 7 counts, the appellant received the money on terms that it would be invested in house and land packages in Queensland. The Crown alleged that contrary to those terms, the appellant misappropriated part of the money he received by using it to meet personal expenses, including the repayment of credit card debt. On the Crown case, of the total amount of $468,000.00 which the appellant received from investors, a total of $281,000.00 was misappropriated.

5. [24]

   In order to prove the appellant’s receipt of the money in each case, and its misappropriation, the Crown relied upon various documents as well as the evidence of various investors. The Crown relied particularly on the investors to establish the terms to which the money was paid to the appellant.

6. [25]

   The appellant did not dispute the fact that he received the money in each case. The principal (and in reality, only) issue in the trial concerned the terms on which it was so received. The appellant rejected the Crown’s allegation that the money was paid for the specific purpose of being invested in house and land packages in Queensland. In summary, it was the appellant’s case that:

7. [26]

   It is evident from their verdicts that the jury overwhelmingly rejected the appellant’s case.

THE GROUNDS OF APPEAL

1. [27]

   I turn to address the individual grounds in the terms in which they appear in the notice of appeal.

The amendments to counts 3 and 5

1. [28]

   To the extent that this ground encompasses the decision of the trial judge to allow amendments to counts 3 and 5, it is necessary to set out some of the procedural history of the matter in the Court below.

2. [29]

   An indictment (at AB 3475-3478) dated 3 July 2015 was filed in the District Court on 10 July 2015 (“the first indictment”). In that indictment:

3. [30]

   In a letter to the appellant’s solicitor dated 11 February 2016 (AB3479-3480) the Crown advised that an application would be made to amend the first indictment:

4. [31]

   An indictment incorporating these amendments dated 11 February 2016 (at AB3481-3484) was filed in the District Court on 12 February 2016 (“the second indictment”).

5. [32]

   When the matter came before Acting Judge Garling on 17 February 2016, the Crown sought to arraign the appellant on the second indictment. Counsel for the appellant expressly stated (at AB3494 L6) that no issue was raised in respect of the proposed amendments of counts 1 and 5, but that there was an objection to the amendment of count 3.

6. [33]

   It was the Crown’s position (at AB 3495 L1 and following) that the amendment to count 3 caused no prejudice to the appellant, and simply "married up" the terms in which count 3 was pleaded with the documentary evidence upon which the Crown relied in support of it.

7. [34]

   His Honour accepted the Crown’s position and allowed the amendment (AB3496 L24-29), although he did not give formal reasons for his decision. The appellant was then arraigned on the second indictment, and entered pleas of not guilty to all counts. It was on the second indictment that the appellant went to trial.

The amendment to count 4

1. [35]

   Count 4 in the second indictment pleaded that the money was received from “Julie Anne Hollitt”. Ms Hollitt was one of the investors called in the Crown case. She gave evidence (commencing at AB327 L43) that she was provided with a receipt from HSA on 16 October 2006 in a sum of $88,000.00. However the receipt was not issued in her name, but in the name of “J A Hollitt Pty Limited trustee for Julie Hollitt Superannuation Fund” (at AB921).

2. [36]

   In light of this evidence, an issue was raised (commencing at AB339) regarding the terms of count 4. The Crown explained to the trial judge that the assertion in count 4 that money was received from “Julie Anne Hollitt” was not correct in light of the evidence of Ms Hollitt and the terms of the receipt. In these circumstances, the Crown applied to amend count 4 by substituting, for the words “Julie Anne Hollitt”, the words “J A Hollitt Pty Ltd as trustee for the Julie Hollitt Superannuation Fund”. That application was opposed by counsel for the appellant. In responding to that objection, the Crown (at AB339 L40-47) rejected the proposition that the substituted party was a “new identity”, and pointed out that the fundamental factual basis of the Crown case on count 4 would remain the same even if the amendment were permitted. At that point, counsel for the appellant indicated to his Honour (at AB340 L17) that he was content to continue with Ms Hollitt’s evidence with a view to resolving the matter at some later stage. In doing so, counsel asserted that there were “real disclosure issues” as a consequence of the amendment sought by the Crown.

3. [37]

   When Ms Hollitt’s evidence was completed, the Crown again raised (at AB418 L5) the proposed amendment of count 4. The following exchange then took place between counsel for the appellant and the trial judge (commencing at AB418 L29):

4. [38]

   In response, the Crown drew his Honour’s attention (commencing at AB419 L39) to the relevant provisions of the Criminal Procedure Act 1986 (NSW) (“the CPA”) and submitted that the only circumstance in which an amendment of the kind which was sought would not be allowed would be where there was some prejudice to the accused. In submitting that no such prejudice had arisen, the Crown categorised the amendment as “simply the change of a name”. The Crown pointed out that there was no additional evidence which would be called in support of count 4, and that the amendment sought did not, in any way, alter the substance of the Crown case. In response to the submissions of counsel for the appellant regarding disclosure, the Crown submitted that documents relating to the superannuation funds themselves were immaterial because on the Crown case, the significant facts were that money was received by the appellant, and was then misappropriated in contravention of the terms on which it was received. It was submitted by the Crown that in those circumstances, whether the money had been paid by a corporate entity or an individual was of no consequence.

5. [39]

   In reply, counsel for the appellant submitted that it had always been apparent that the money the subject of count 4 had been received from a corporate entity and not an individual. Counsel then said (commencing at AB420 L24):

6. [40]

   That submission appeared to be tantamount to the proposition that the appellant was prejudiced by the amendment because it would, if allowed, deprive him of the opportunity of having count 4 withdrawn from the jury’s consideration.

His Honour’s judgment in respect of the amendment to count 4

1. [41]

   On 1 March 2016 his Honour delivered the following judgment allowing the amendment to count 4 (AB 768):

Submissions of the appellant

1. [42]

   The written submissions originally filed on behalf of the appellant did not precisely articulate the basis of this ground. In particular, it was not clear whether counsel for the appellant asserted that the trial judge had erred in the exercise of his discretion, or whether it was said that his decision to allow the amendments gave rise to a miscarriage of justice. In oral argument, counsel for the appellant appeared to put his case on the first of those propositions, arguing that his Honour had erred in a House v The King- type sense.

2. [43]

   The essence of what was put by counsel in oral submissions to this Court was that (at least in respect of the amendment to count 4) there were records pertaining to the J A Hollitt Superannuation Fund Pty Ltd (which, by virtue of the amendment, was particularised as the entity from which the appellant received the money) which had not been disclosed by the Crown and that as a consequence, the appellant was prejudiced. The oral submissions also advanced the same proposition advanced at trial (and set out at [40] above), namely that the amendment was prejudicial because it deprived the appellant of the opportunity to have count 4 withdrawn from the jury’s consideration.

Submissions of the Crown

1. [44]

   The Crown submitted that to the extent that this ground took issue with the decision of the trial judge to allow an amendment to count 5, counsel for the appellant had (as set out at [32] above) expressly consented to that amendment before the trial had commenced.

2. [45]

   As to the amendments to counts 3 and 4, the Crown submitted that the offences alleged against the appellant were not concerned with the identity of the person from whom, or the entity from which, the money was received. Rather, the focus was upon the terms on which the money was received, and whether the appellant had breached those terms by using the money as he had done. In these circumstances, the Crown submitted that the amendments allowed to counts 3 and 4 did not alter:

3. [46]

   It was submitted that in these circumstances it had been plainly open to the trial judge to conclude that each amendment was a matter of form rather than substance, and that the merits of the case warranted a grant of leave to allow them.

4. [47]

   It was further submitted by the Crown that it was open to the trial judge to find that there was no prejudice to the appellant as a consequence of the amendments. To the extent that counsel for the appellant asserted that prejudice arose from the fact that the Crown did not disclose relevant documentation, the Crown submitted that in light of the fact that the appellant did not dispute the receipt of the money, and given that the contents of any documentation were unknown, any asserted prejudice arising from the absence of documentation was necessarily speculative.

Consideration

1. [48]

   Section 20 of the CPA is in the following terms:

2. [49]

   Section 21(1) of the CPA is in the following terms:

3. [50]

   The exercise of the power to grant leave to amend an indictment requires a trial judge to be satisfied that the proposed amendment(s) can be made without injustice or prejudice to the accused. As I have noted, counsel for the appellant in oral argument before this Court put his case in respect of this ground on the basis of a House v The King- type error. However doubts have been expressed as to whether, in a case such as this, any appeal lies on that basis. The fundamental question is whether there was a miscarriage of justice as a consequence of the amendments which were permitted. Such a miscarriage will be demonstrated if it is established that the amendments resulted in an unfair trial, bearing in mind that it is only in cases where the accused would be irreparably prejudiced in meeting the charge that leave to amend should be refused: Borodin v R [2006] NSWCCA 83 at [23]-[25] per Howie J (Sully J and Simpson J (as her Honour then was) agreeing).

4. [51]

   In my view, having regard to these principles, this ground fails for a number of reasons.

5. [52]

   Firstly, to the extent that this ground extends to the amendment to count 5, counsel for the appellant expressly told the trial judge (as set out at [32] above) that there was no issue as to that amendment. Having taken that position at trial, it is not open to the appellant to come to this Court and take a diametrically opposed position.

6. [53]

   Secondly, the amendments to counts 3 and 4 did not alter the nature of the alleged offending, the manner in which it was said to have taken place, the evidence relied upon by the Crown in support of it, or the basis upon which the Crown put its case. Properly viewed, the amendments to counts 3 and 4 did nothing more than amend the name of the person or entity from which the appellant received the money. It is impossible to determine how, in these circumstances, the appellant could possibly have suffered prejudice amounting to a miscarriage of justice.

7. [54]

   Thirdly, the submission that the amendments were prejudicial because of the absence of documentation invites impermissible speculation as to what any such documentation may have contained. The submission completely overlooks the fact that there was no issue as to the fact of receipt of the money by the appellant in each case.

8. [55]

   Fourthly, to the extent that counsel submitted that the amendments deprived the appellant of the opportunity of having any count(s) withdrawn from the jury, the loss of such a tactical advantage is not prejudice of a kind which establishes a miscarriage of justice: Borodin at [25] per Howie J.

9. [56]

   For all of these reasons, ground 1 is not made out.

GROUND 7 – Failing to give a direction to the jury as to the element of the offences charged under s. 178A of the Crimes Act 1900 as to all counts, so as to enable it to understand each element and what was required to prove it.

1. [57]

   Each of these grounds relies upon the fundamental proposition that an offence contrary to s. 178A of the Act required the Crown, in the circumstances of the present case, to prove that the terms on which the money was received required the appellant to pay the money to a specifically identified person. In these circumstances, it is convenient to deal with these grounds together.

The application for a verdict by direction

1. [58]

   At the close of the Crown case counsel for the appellant submitted (commencing at AB440 L9) that the terms in which the indictment was pleaded did not disclose any offence known to the law. Counsel said (commencing at AB440 L39):

2. [59]

   At AB447 L41 and following, counsel for the appellant made an application to the trial judge for a verdict by direction. Consistent with what he had previously put to his Honour, counsel submitted that it was alleged in each case that the appellant had received valuable security “upon terms which required him to pay the whole of the valuable security…towards ‘seed capital’ in house and land packages in Queensland”, in circumstances where s. 178A required the Crown to specify a person to whom the valuable security was to be paid. Counsel submitted that such construction was directly supported by the decision in Andrews v R (1968) 126 CLR 198; [1968] HCA 84.

3. [60]

   The application was opposed by the Crown. The Crown submitted that the construction of s. 178A which had been advanced by counsel for the appellant was contrary to the decision of this Court in Sinanovic v R [2002] NSWCCA 292.

His Honour’s judgment on the application

1. [61]

   His Honour rejected the application and delivered an ex-tempore judgment immediately after following submissions. Having set out various aspects of the Crown case, as well as the terms of s. 178A of the Act, his Honour said (commencing at AB770):

2. [62]

   Commencing at AB771, his Honour cited various passages from the judgment of this Court in Sinanovic, as well from the judgment in Andrews. Having done so his Honour said:

Submissions of the appellant

1. [63]

   Counsel for the appellant submitted that the words “pay to any person” as they appeared in the opening paragraph of s. 178A expressly supported a conclusion that it was necessary for the Crown to establish that the terms on which the money was paid in each case required the appellant to pay it to a specified person. It was submitted that in rejecting the application for a verdict by direction, there had been a failure on the part of the trial judge to have regard to the decision in Andrews, and that such failure was reflected in the fact that his Honour had permitted the Crown to proceed upon an indictment which omitted to specify an essential element of the offence.

2. [64]

   Counsel further argued that his Honour’s reliance on the decision of this Court in Sinanovic reflected further error because:

3. [65]

   In oral submissions, counsel for the appellant squarely put that the decision of this Court in Sinanovic was plainly wrong, and should not be followed.

4. [66]

   When asked in oral submissions to nominate those passages in Andrews which were relied upon in support of this ground, counsel turned firstly to the following passage at p. 205 of the judgment of the Court (Barwick CJ, McTiernan, Taylor, Windeyer and Owen JJ):

5. [67]

   Counsel then took the Court to the following passage (at p. 207):

6. [68]

   Counsel then took the Court to the following passage (at p. 209):

7. [69]

   Finally, counsel drew attention to the following (at p. 211):

Submissions of the Crown

1. [70]

   The Crown submitted that on a proper construction of s. 178A, and upon a consideration of the relevant authorities, the fundamental basis of grounds 2 to 7 was untenable. It was submitted that s. 178A contemplated two broad categories of terms upon which money or valuable security might be collected or received by an accused, namely:

2. [71]

   It was submitted that nothing in the wording of s. 178A required that the terms upon which the money was collected or received be written or expressed, as opposed to implied. It was further submitted that in the circumstances of the present case, it was neither necessary nor appropriate for the Crown to specify the identity of any person(s) to whom the money was required to be paid. This, it was submitted, was because many of the investors had never even heard of LHA, but had paid the money on the understanding that it would be invested in house and land packages in Queensland from which they would ultimately derive a profit. It was submitted that in the context of the present case, it was sufficient for the Crown to prove that the terms upon which the money was received by the appellant required him to pay that money to some other person engaged in the house and land packages project, regardless of whether the identity of that other person could be established, and/or was known either to the appellant or the relevant investor.

Consideration

1. [72]

   Prior to its repeal in 2010, s.178A of the Act was is in the following terms:

2. [73]

   The position advanced by counsel for the appellant as to the proper construction of s. 178A was based upon three fundamental propositions, namely that:

3. [74]

   As to the first proposition, the width of the phrase “to any person” as it is used in this section tends completely against the construction advanced by counsel for the appellant. Moreover, it has the capacity to bring about a result which, in my view, could not possibly have been intended by the Parliament. In the present case, the Crown alleged that in light of the discussions which had taken place between the appellant and each of the individual investors, the relevant terms required the appellant to pay the money towards a particular venture, namely house and land packages in Queensland. The pursuit and completion of such a venture would necessarily require the involvement of many persons, not just one. The adoption of the construction advanced on behalf of the appellant would mean that in such a case, no offence could ever be committed against s. 178A absent the Crown somehow being able to prove who of those many persons was to receive the money.

4. [75]

   As to the second proposition, the section was intended to encompass conduct in which valuable security was received on terms which required the recipient to pay it to someone else, rather than keep it himself. The section does not have, as its focus, the identity of the person to whom the money is to be paid. As this case demonstrates, the identities of the various persons engaged in the project in Queensland are likely to have been completely unknown to the investors.

5. [76]

   As to the third proposition, and leaving aside the fact that Andrews was a case in which the Crown alleged that the accused had failed to account according to the terms on which money was paid, the passages of that decision to which this Court was taken in oral argument speak of (inter alia) the need to take care to ensure that the ingredients of an offence are properly explained to the jury, the need to ensure that an accused be tried for the crime with which he or she is charged, and the fact that s. 178A does not allow for alternative verdicts. None of those passages provide direct (or for that matter, any) support for the construction of s. 178A advanced on behalf of the appellant. In my view, the decision in Andrews has little bearing upon the present case at all.

6. [77]

   As to the fourth proposition, this Court in Sinanovic expressly rejected a submission to the same effect of that advanced on behalf of the appellant, in circumstances where the material facts closely resembled those of the present case. In Sinanovic, the indictment brought against the accused alleged that he received a sum of $27,800.00 upon terms which required him to “pay the same by investing in the acquisition … of an interest in a restaurant”. On the same basis as that adopted by counsel for the appellant in the present case, the appellant in that case asserted that pleaded in those terms, the indictment did not disclose the commission of any offence under s. 178A and accordingly was bad.

7. [78]

   In rejecting that proposition, O’Keefe J (with whom Stein JA and Buddin J agreed) said (at [27]):

8. [79]

   Importantly, as to the effect of the decision in Andrews, his Honour said (at [30]):

9. [80]

   His Honour concluded by reiterating the following (at [33]):

10. [81]

    For the reasons set out by O’Keefe J in Sinanovic, the appellant’s reliance upon the decision in Andrews in the circumstances of the present case is misconceived. There is no basis upon which to conclude that the decision in Sinanovic is plainly wrong and should not be followed. None of the matters relied upon by the appellant at [64] above regarding the decision of this Court in Sinanovic are of any substance.

11. [82]

    It follows that none of these grounds are made out.

Submissions of the appellant

1. [83]

   The written submissions filed in support of this ground were essentially limited to the assertion (at para. 15) that “just as the all (sic) elements were not put to the Jury, neither were the missing elements or indeed any other element explained to the Jury so as to relate it to the factual issues in the trial”. The first part of that submission appeared to be predicated on the proposition that grounds 2-7 succeeded. For the reasons set out, they do not.

2. [84]

   Beyond that, the written submissions (and for that matter, the oral submissions made by counsel for the appellant before this Court) did not explain, with any real specificity, how it was said that the trial judge had failed to “relate the evidence …. in a way which explained its potential significance to the jury”. Importantly, and as previously noted, counsel for the appellant accepted that at the conclusion of the summing-up to the jury, the trial judge (at AB 763) specifically gave him the opportunity to raise any further matters before asking the jury to commence their deliberations. Counsel accepted that when given that opportunity, he raised no issue and that as a consequence, rule 4 applied to this ground.

3. [85]

   When asked in the course of oral submissions before this Court why the matters which are the subject of this ground were not raised before the trial judge, counsel responded:

4. [86]

   However, counsel then conceded that having apparently formed a view that the position was incurable, he did not in fact make an application that the jury be discharged.

5. [87]

   In support of the proposition that leave should nevertheless be granted in respect of this ground, counsel for the appellant submitted that the fundamental deficiencies in the summing-up amounted to a deficiency which went to the root of the proceedings: Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]-[13] per Giles JA; Wong v R [2009] NSWCCA 101 at [143].

Submissions of the Crown

1. [88]

   Noting the absence of any particularity in the submissions of counsel for the appellant, and having regard to the application of rule 4, the Crown submitted that this ground should be rejected and that leave to rely upon it should be refused.

Consideration

1. [89]

   Accepting what counsel told this Court, it is apparent that he had formed a view at the time of the trial that the summing-up was deficient. In those circumstances, consistent with the authorities discussed at [14]-[18] above, counsel had an obligation to raise the matter at the time. As Bathurst CJ pointed out in ARS (at [148]), the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could, or should, have been raised at the first trial. If, as this Court was informed, counsel had determined by the conclusion of the summing-up that its deficiencies were such as could not be overcome by further directions, he could (and should) have made an application that the jury be discharged. The failure to make that application was not explained.

2. [90]

   In terms of the issue raised by the ground itself, a trial judge is obliged to explain the issues to the jury in a way which clearly states the legal principles against which factual questions are to be considered: R v Williams (1990) 50 A Crim R 203 at 214. Moreover, there is a positive obligation on a trial judge to put the defence case accurately and fairly to the jury, and in a way which makes it clear that the onus of proof remains on the Crown: Wong at [141].

3. [91]

   However, those obligations do not mean that the trial judge must put to the jury every argument advanced on behalf of the accused. Whether a trial judge is bound to refer to a particular evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the members of the jury have sufficient knowledge and understanding of the evidence to be able to discharge their duty to determine the facts. Accordingly, the way in which the case is conducted by the parties will necessarily bear upon the extent to which a trial judge is bound to comment upon, or discuss, the evidence. Discussion or comment which is justified or required in one case, may not be required in a similar case which is conducted in a different way: Domican v R (1992) 173 CLR 555; [1992] HCA 13 at 561. The manner and detail of the summing-up will depend upon the circumstances of the case: Aravena at [109] citing R v Malone [1994] NSWCCA 28 April 1994 (unreported); Cleland v R (1982) 151 CLR 1; [1982] HCA 67 at 10.

4. [92]

   Ultimately, the question is whether the trial judge has put an accused’s case in such a way as to allow a jury to properly consider the issues raised on his behalf. There is no standard formula against which the summing-up of a trial judge in a particular case may be measured.

5. [93]

   An examination of the summing-up in the present case demonstrates that whilst it was brief, the trial judge discharged his obligations. Bearing in mind that there was really only one issue for the jury’s determination, his Honour (commencing at AB 761) fairly summarised the defence case having earlier summarised the salient parts of the evidence. This is not a case in which the summing-up was deficient in the manner suggested on behalf of the appellant.

6. [94]

   For all of these reasons, leave to rely upon this ground should be refused.

The proceedings before the trial judge

1. [95]

   In the present case, the Crown did not seek to rely upon tendency evidence and did not serve a tendency notice. Notwithstanding that, counsel for the appellant raised with the trial judge the issue of a direction being given to the jury as to the use of tendency evidence (at AB617 L1-19):

2. [96]

   Counsel’s suggestion that a direction as to tendency evidence was warranted because no tendency notice had been served was something of a non-sequitur but in any event, the issue was not revisited. No further application for a direction as to tendency evidence was made. No complaint was made by counsel for the appellant regarding anything said by the Crown in his closing address to the jury.

3. [97]

   In his directions to the jury, the trial judge said the following (at AB703):

4. [98]

   Further, after summarising the defence case, the trial judge said (at AB 762):

Submissions of the appellant

1. [99]

   Counsel for the appellant submitted that in circumstances where the Crown alleged that the appellant committed the offences in similar circumstances “there was necessarily great pressure on the jury…to rely on tendency”. It was submitted that such pressure was “exacerbated by the failure of the trial judge” to correct what was said to have been an “offending submission” made by the Crown which appears in the bolded part of the following passage (at AB638 L40-43) :

2. [100]

   Counsel for the appellant took no issue with that submission at the time that it was made.

Submissions of the Crown

1. [101]

   The Crown accepted that the various counts in the indictment had similar features. The Crown also accepted that there were similarities between the evidence given by the investors, including the fact that the appellant:

2. [102]

   However, the Crown submitted that such similarities did not lead to a conclusion that the Crown relied on tendency evidence. The Crown emphasised that no tendency notice had been served because the Crown did not adduce evidence from the investors for the purpose of proving that the appellant had a tendency to act in a particular way. The Crown further submitted that the evidence of each of the investors did not become relevant because of a reliance upon tendency reasoning, but became relevant because it was direct evidence of the facts surrounding the commission of the offences.

3. [103]

   Finally, the Crown submitted that the directions given to the jury by his Honour set out at [97]-[98] above were entirely appropriate in the circumstances.

Consideration

1. [104]

   This ground, to which rule 4 applies, proceeds on two fundamental misconceptions. The first is that the Crown relied upon tendency evidence. That was not so. The second is that the evidence of the investors was tendency evidence. It was not. The evidence given by the investors was evidence of the fact of the appellant’s conduct in each case. Consistent with that position, the Crown’s address did not invite the jury to engage in any process of tendency reasoning. In all of these circumstances, a direction as to tendency evidence would have been entirely inappropriate.

2. [105]

   Moreover, when asked by the trial judge to outline the terms of the direction sought, counsel for the appellant responded to the effect that he sought a direction that the jury could not rely upon “conclusions in relation to one count in order to decide whether the elements are met in another”. Directions to that very effect (set out at [97] and [98] above) were given by the trial judge. No doubt assisted by that direction, the jury found the appellant not guilty in respect of count 6. The overwhelming inference in those circumstances is that the jury understood, and applied, the directions they were given which, as I have noted, were essentially in the very terms sought by counsel for the appellant.

3. [106]

   Leave to rely upon this ground should be refused.

The proceedings before the trial judge

1. [107]

   Towards the end of his final address to the jury, counsel for the appellant (at AB670 L26-35) sought what he referred to as “the Murray direction where the Crown relies on one witness”. When the trial judge pointed out that the Crown relied on a number of witnesses in order to prove its case, counsel responded (at AB670 L35):

2. [108]

   At that point, the trial judge expressed a number of misgivings about directing the jury in the terms which were sought. He repeated those misgivings immediately before the commencement of the summing-up (at AB700 L21).

3. [109]

   Counsel for the appellant returned to the issue in the course of his Honour’s summing-up (at AB724) when the following exchange took place:

Submissions of the appellant

1. [110]

   The effect of the submission of counsel for the appellant was that a Murray direction was required because the Crown relied on the evidence of a single investor in respect of each count.

Submissions of the Crown

1. [111]

   The Crown submitted that the primary reason why a Murray direction was not appropriate was because the evidence of the investors was not the only evidence upon which the Crown relied to establish the commission of each offence. For example, the Crown pointed out that none of the investors were in a position to give evidence as to how the money was misappropriated by the appellant in each case, and that this key element of the Crown case was established by relying upon independent banking records.

2. [112]

   In the course of oral submissions to this Court the Crown sought to support that position by taking the Court to some of the documentary evidence upon which it relied to prove its case at trial. That evidence went to (inter alia) establishing that the appellant had applied part of the money he received to the payment of personal expenses.

3. [113]

   It was submitted in all of these circumstances that the trial judge did not fall into error in refusing to give the direction sought.

Consideration

1. [114]

   In R v Murray (1987) 11 NSWLR 12, Lee J said the following (at 19):

2. [115]

   A Murray direction is not uncommon in cases of sexual offending. Although the giving of such a direction is not restricted to such cases, it would have been completely unwarranted in the appellant’s trial. Properly understood, the Crown did not rely upon the evidence of a single witness to support its case against the appellant in respect of any count. There were a large number of documents relied upon, not only to support the specific transactions, but also to support other evidence given by some investors as to representations made to them by the appellant, including (inter alia) representations that they would receive a 30% return on their investment.

3. [116]

   For these reasons this ground is not made out.

The proceedings before the trial judge

1. [117]

   Towards the close of the Crown case (commencing at AB444 L4) counsel for the appellant said to his Honour:

2. [118]

   In the exchange that followed, the trial judge indicated to counsel that there was a “standard direction to the jury for failure to call” which counsel said he would “look up”. The matter was not raised any further. At no time did counsel identify, with any particularity, the direction which was sought and the issue was not revisited.

3. [119]

   In the course of his summing-up, the trial judge said the following (commencing at AB 713):

4. [120]

   The references by the trial judge to “630” and “631” were references to what was said by counsel for the appellant in his final address (a transcript of which was with the jury). Counsel’s address included the following (commencing at AB653 L49):

5. [121]

   No direction over and above that which was given (set out at [119] above) was sought. Accordingly, rule 4 applies to this ground.

Submissions of the appellant

1. [122]

   The written submissions of the appellant did not address this ground at all. However, the ground appeared to encompass a complaint that the direction given was insufficient, and that the Crown had breached its duty in failing to disclose relevant documents.

Submissions of the Crown

1. [123]

   The Crown submitted that the appellant had not identified what direction it was said that the trial judge ought to have given to the jury, over and above that which was given. The Crown further submitted that what had been said by the trial judge was consistent with the direction generally given in respect of such an issue and that in addition, the trial judge had taken the step of specifically reminding the jury (by reference to the transcript) of the submissions which had been made on behalf of the appellant in this respect.

Consideration

1. [124]

   The trial judge directed the jury, in the terms set out at [119] above, that they were entitled to take into account the fact that witnesses were not called in determining whether they were satisfied, beyond reasonable doubt, of the counts in the indictment. That direction was given with specific reference to the submissions which had been made by counsel for the appellant. No further direction was sought.

2. [125]

   Further, and as noted when considering ground 1, the appellant’s repeated complaint concerning the failure on the part of the Crown to provide relevant documentation involves impermissible speculation about the contents of any such documentation. Given the issue in the case, it is impossible to see how the documents to which counsel for the appellant referred in his final address could ever have been material. In any event, counsel was given the opportunity to put the submission to the jury, and did so. Clearly, the jury rejected it, as was open to them to do.

3. [126]

   In circumstances where the trial judge gave the direction set out, and where no further direction was sought, rule 4 applies. In the circumstances, leave to rely upon this ground should be refused.

The evidence of Prudence Hannan in respect of count 3

1. [127]

   The terms of count 3 in the indictment are set out at [3] above. In respect of that count, the Crown alleged that the appellant received a sum of $70,000.00 from HannanCowley Pty Ltd as trustee for the HannanCowley Super Fund, upon terms which required him to pay the whole of it towards house and land packages in Queensland. The Crown alleged that in breach of those terms, the appellant had misappropriated a total of $68,000.00 of the $70,000.00 received.

2. [128]

   In support of count 3, the Crown called evidence from Prudence Hannan who told the jury (commencing at AB298 L1) that the appellant was recommended to her by a work colleague as someone who could assist her in establishing a self-managed superannuation fund. She said that having contacted the appellant, she met with him and discussed establishing such a fund, with a view to investing in house and land packages (at AB298 L35-36). She said that the appellant had told her that she could expect a better return by setting up her own fund, and that she would be able to avail herself of more taxation benefits. Mrs Hannan said that the only investment about which the appellant spoke was that of property development (at AB298 L38-47).

3. [129]

   Mrs Hannan gave evidence (at AB299 L2-15) that she and her husband made a decision to establish a self-managed fund and that for that purpose, she met with a solicitor, Mr Herat, in the presence of the appellant and Ladd. Following this meeting, the HannanCowley Superannuation Fund Pty Limited was incorporated (AB299 L12-15). Mrs Hannan said that in the course of that meeting an entity referred to as “Safe House 1” was discussed. She explained (commencing at AB299 L41) that she understood that Safe House 1 was the name of a company being managed by Ladd, through which land in Queensland was being purchased upon which houses were to be built and then sold after a period of time, generating an expected return to those who had invested. Following the meeting $70,000.00 was transferred from amounts in the existing superannuation funds held by her and her husband into the HannanCowley superannuation fund, and then transferred to the account of HSA which was operated by the appellant (at AB300 L1-23).

4. [130]

   Mrs Hannan described (commencing at AB301 L33) her contact with the appellant after the transfer of the monies as “on and off”. She said that the appellant gave her advice about investment properties as a consequence of which she and her husband purchased an investment property in Browns Plains, Queensland, for which the appellant had arranged the finance for a fee of $5000.00 (AB301 L37-49). She also said (commencing at AB302 L10) that the appellant talked about other investments, including a market garden in Victoria in which an amount of $5,000.00 was invested from the HannanCowley superannuation fund.

5. [131]

   Mrs Hannan also told the Court (at AB302 L25-29) that she and her husband “kept asking” about the earlier investment of $70,000.00 but that the appellant “sort of put (her) off and would say that he’d been really busy and that he was catching up on administrative – the administrative side, that we would get our paperwork shortly”. Mrs Hannan confirmed that she received no document from either the appellant or Ladd (at AB302 L31-35). She also said (at AB302 L37-41) that she did not sign any documents in respect of the $70,000.00 provided to the appellant and that when such documents were sought the appellant responded that he would “get back to (her) with them”. She also said (AB302 L43-44) that she was never given a receipt for that investment.

6. [132]

   In addition to the investment in the market garden, Mrs Hannan discussed “the Powerhouse development in Melbourne” with the appellant who had told her that investing in that development would generate a better return (at AB303 L3-11). She explained (commencing at AB303 L13) that she and her husband were nevertheless under the impression that the money was being invested in house and land packages. She expressed that this was what they had wanted, and that they had not wanted any money to be invested in the Powerhouse development. She said that she told the appellant this but could not recall his response. She confirmed (commencing at AB303 L34) that she did not receive a return on any part of the $70,000.00 paid to the appellant, nor any return of the capital investment in the market garden.

7. [133]

   In cross-examination, Mrs Hannan agreed (at AB307 L8-17) that Mr Herat had explained to her some aspects of the conduct of a self-managed superannuation fund. It was put to her (at AB307 L30-34) that she had not had a meeting in the presence of Herat and Ladd and that she was confusing it with another meeting, which she denied. She said (at AB307 L49-50) that Ladd had used a whiteboard in the meeting at which investment in Safe House 1 was discussed.

8. [134]

   Mrs Hannan agreed (commencing at AB308 L17) that in the course of making a statement to investigators, she had made reference to a conversation with the appellant in which she had inquired as to the progress of the investment in the house and land packages, and in which the appellant had informed her that he had invested some of her money into the Powerhouse development because it was a good opportunity to do so. In that same statement, Mrs Hannan said that upon being so informed she had asked the appellant what had become of the investment in house and land packages in Queensland, to which the appellant responded that the Powerhouse was a better investment. She agreed (at AB308 L42 to AB309 L1) that to the best of her knowledge, she did not, upon being so informed, raise any issue about the change of investment and that this was the end of the conversation.

9. [135]

   In his closing address to the jury counsel for the appellant said the following (at AB 677 L41):

The summing-up of the trial judge

1. [136]

   Commencing at AB735, the trial judge summarised the evidence of Mrs Hannan, including aspects of her cross-examination by counsel for the appellant. When given the opportunity to do so at the conclusion of the summing-up, counsel for the appellant did not seek the direction upon which this ground is based. Accordingly, rule 4 again applies.

Submissions of the appellant

1. [137]

   This ground of appeal was not squarely addressed in the appellant’s written submissions. In oral submissions, counsel emphasised that it was the appellant’s case that the monies received by him were able to be invested at his discretion, and that it had been put to Mrs Hannan (inter alia) that her evidence in relation to the meeting was mistaken. The essence of the submission put on behalf of the appellant was that in those circumstances, the direction ought to have been given.

Submissions of the Crown

1. [138]

   It was submitted on behalf of the Crown that contrary to what had been put to the jury in counsel’s final address, it had never been suggested to Mrs Hannan that the meeting at Mr Herat’s office did not take place, that she was confused about it, or that Ladd had been in attendance. It was submitted that in these circumstances, and leaving aside the fact that no direction had been sought at the time, the purported inconsistency was not such as to warrant a specific direction by the trial judge.

Consideration

1. [139]

   At no stage of Mrs Hannan’s cross-examination was it ever directly put to her that Ladd was not at the meeting, nor was it ever directly put to her that the terms upon which the money was paid allowed the appellant to invest it at his discretion. The omission, by Ladd, of any reference to the meeting when he gave evidence was drawn to the jury’s attention. A submission was made in relation to it. It was a matter for the jury what they made of that evidence. The issue did not warrant any specific direction from the trial judge and in any event, no direction was sought.

2. [140]

   In those circumstances, leave to rely upon this ground should be refused.

The proceedings before the trial judge

1. [141]

   Joanne Kruit was one of the investors called by the Crown to give evidence. Her evidence was relevant to (inter alia) count 1. In the course of cross-examination, Ms Kruit was asked questions about three documents which subsequently became Exhs. 7, 10 and 11. Exh. 7 comprised a bundle of documents relating to Mrs Hannan. Ms Kruit gave evidence (AB271 L21-37) that she had sent the documents to Mrs Hannan in a draft form and they had been returned to her having been completed by Mrs Hannan and her husband.

2. [142]

   Exh. 10 (AB3165 and following) comprised similar documents issued by IFC to Mr Long and Ms McGuire (whose evidence went to count 6 in respect of which the appellant was acquitted). Ms Kruit identified these documents as those which she had sent for completion and which has been returned to her (at AB270 L48 – AB271 L17).

3. [143]

   Exh. 11 (at AB3181 and following) comprised similar documents relevant to count 7. Again, Ms Kruit identified these documents as those sent to Ms Sloane and which were returned to her having been executed (at AB270 L12-44).

4. [144]

   In the course of re-examination by the Crown (commencing at AB274 L17) Ms Kruit confirmed that documents within Exhs. 7, 10 and 11 had been back dated and that she had been instructed to prepare those documents by the appellant. In particular Ms Kruit said (at AB276 L11-13):

5. [145]

   It was specifically put to the appellant in cross-examination (at AB568 L41) that the documents were deliberately backdated to mislead investors, a proposition which the appellant denied. It was then put to the appellant (at AB568 L44) that they were backdated with the intention of misleading the Australian Securities and Investments Commission in the event that it ever investigated the matter. The appellant “totally disagreed” with that proposition. However he did agree (at AB568 L47) that the documents in question were not generated on the dates they bore.

6. [146]

   In the course of his final address to the jury, the Crown said (at AB627 L16-24):

7. [147]

   In respect of Exh. 7, the Crown addressed the jury in the following terms (commencing at AB634 L48):

8. [148]

   As to exhibit 10, the Crown addressed the jury in the following terms (commencing at AB636 L10):

9. [149]

   As to Exh. 11, the Crown put to the jury (commencing at AB637 L9):

10. [150]

    No objection was taken by counsel for the appellant to the Crown’s cross-examination of the appellant. Moreover, at least at the time of the Crown’s address to the jury, no issue was taken with what the Crown had put.

11. [151]

    Counsel for the appellant addressed the jury on this same issue at some length (commencing AB643 L11). The essence of counsel’s submissions is encapsulated in the following passage (at AB643 L11-17):

12. [152]

    During the summing-up, counsel for the appellant took issue (commencing at AB725 L1) with what the Crown had said in his final address about Exhs. 7, 10 and 11 and sought that the jury be directed to disregard the submissions which had been made. Counsel argued (inter alia) that the Crown’s submission conveyed the suggestion that Ms Kruit was involved in a serious impropriety, in circumstances where that proposition had not been put to her. Counsel further submitted (at AB726) that the Crown’s address was tantamount to putting to the jury that the backdating of documents was evidence of the dishonesty of the accused.

13. [153]

    At the conclusion of these submissions the trial judge said (at AB729):

14. [154]

    In the course of his summing-up (at AB758) the trial judge reminded the jury of the Crown’s cross-examination. There was no further reference to the issue and counsel for the appellant did not seek any further direction at the conclusion of the summing-up.

Submissions of the appellant

1. [155]

   Counsel for the appellant submitted that the Crown had cross-examined the appellant in a way which suggested that he had caused documents to be backdated in order to mislead investors and ASIC, and had made it plain that such an accusation was made against Ms Kruit as well. It was submitted that the cross-examination of the appellant, and the Crown’s reliance on this evidence generally, served to mount a prejudicial attack on the appellant’s credit.

Submissions of the Crown

1. [156]

   The Crown submitted that no impropriety had been suggested to Ms Kruit and that in those circumstances, this ground effectively fell away. It was further submitted that what was put to the jury by the Crown was entirely proper, and based on inferences which were open to be drawn.

Consideration

1. [157]

   This ground is based upon a false premise, namely that the Crown had put to the jury that the appellant and Ms Kruit had backdated documents in order to mislead investors and potentially ASIC. No such proposition formed part of the Crown case. No such proposition was ever put to Ms Kruit.

2. [158]

   Moreover, there was no dispute that the documents were backdated. In light of the Crown case, it was entirely proper for the Crown to put to the appellant that he had deliberately engaged in backdating the documents for the purposes of misleading both investors and ASIC. The acceptance or rejection of that denial was a matter for the jury. There was nothing whatsoever improper in what the Crown put to the jury in his closing address. Moreover, the Crown’s address was squarely the subject of a response by counsel for the appellant, all of which simply highlighted the fact that the issue was one for the jury’s determination.

3. [159]

   For those reasons, this ground is not made out.

GROUND 14 – Giving a summing up which while addressing evidence supporting the Crown case against the appellant, failed to adequately address the evidence in support of the defence case.

1. [160]

   This ground particularises that the trial judged failed to:

2. [161]

   Not one of these matters was the subject of any application by counsel for the appellant at the conclusion of the summing-up of the trial judge. Accordingly, rule 4 again applies.

Submissions of the appellant

1. [162]

   Counsel for the appellant submitted that the summing-up of the trial judge represented little more than a summary of the Crown case. It was submitted that the summing-up “didn’t explore the defence case at all in any meaningful way” and that the appellant was “entitled to have the trial judge give his judicial imprimatur to the existence and substance of the defence case”.

Submissions of the Crown

1. [163]

   The Crown submitted that the summing-up was neither unbalanced nor unfair, pointing out that no complaint had been made to the trial judge at the time. It was submitted that the appellant had failed to identify how it was that the asserted failures on the part of the trial judge rendered the summing-up unbalanced. The Crown also drew attention to the fact that the jury had been provided with a copy of the transcript of the evidence of all witnesses, along with the closing addresses of the Crown and counsel for the appellant.

Consideration

1. [164]

   I have already made reference in considering ground 8 (at [90]-[92] above) to the fundamental obligations of a trial judge when summing-up to a jury. In one sense, the matters raised by this ground are little more than an expansion of those relied upon by the appellant in support of ground 8. However, because the gravamen of the complaint is that the summing-up of the trial judge amounted to little more than a summary of the Crown case, one additional observation should be made. The fact that a summing-up deals principally with evidence led in the Crown case, does not, of itself, bespeak error. Whether or not a party’s case has been adequately put to the jury is not to be measured in minutes spent, or the number of words spoken, nor can it be assessed, by direct comparison, with the attention given by the trial judge in his or her summing-up of the case brought by the opposing party. Fairness and balance are not achieved, and cannot be gauged, by such means. This is particularly the case where the opposing party is the Crown. It is almost axiomatic that in a criminal trial, the Crown case will constitute the vast majority, if not the whole, of the evidence placed before the jury. Necessarily in such a case, the trial judge, in giving the jury directions as to how to approach the evidence, will devote greater time and attention to the Crown case than to any case called for the accused: Aravena at [104]-[106].

2. [165]

   For the reasons expressed in relation to ground 8, the trial judge complied with his various obligations. Significantly, not one of the litany of complaints now made was raised at the trial, in circumstances where counsel for the appellant informed this Court that he formed a view as to the purported shortcomings of the summing-up at the time that it was given. If the view were taken at the time of the that the summing-up was as unbalanced as is now suggested, it is frankly inexplicable that the matter was not raised at the time. Moreover, it is no answer to say that the shortcomings were so great that they were incapable of being remedied. As I have already pointed out in considering ground 8, if that were the case a discharge of the jury should have been sought.

3. [166]

   Leave to rely on this ground should be refused.

GROUND 15 – Having regard to the evidence referred to in particulars (ii) to (ix) of paragraph 13 (sic) above, the verdict of the jury as to counts 1, 2 (sic) and 7 was unsafe and unsatisfactory as the evidence in each case must have raised a reasonable doubt as to the guilt of the appellant of each of those charges.

1. [167]

   Before dealing with the evidence relevant to this ground, two matters should be noted. Firstly, the reference to “paragraph 13” in this ground should be a reference to ground 14. Secondly, given that none of the particulars in paragraphs (ii) to (vix) in ground 14 relate in any way to count 2, I have proceeded on the assumption that the reference to count 2 should in fact be a reference to count 3.

The evidence before the trial judge

1. [168]

   In respect of count 1, Ms Kruit and Mr Findlay gave evidence as to the circumstances of their investment of the money. That evidence, which included evidence that they arranged for money to be paid into the HSA account on the instruction of the appellant, on the understanding that the money would be applied towards seed capital in house and land packages in Queensland, was not the subject of any direct challenge by counsel for the appellant.

2. [169]

   In her evidence, Ms Kruit told the Court (commencing at AB237) that the appellant had spoken to her in 2004 or 2005 about investing in house and land packages in Queensland. She also gave evidence (commencing at AB238 L18) that she had loaned the appellant a total of $169,000.00 for personal expenses. Such expenses included costs of completing renovations to the appellant’s home, and the payment of legal fees for “different matters concerned in Melbourne”. Ms Kruit told the Court that none of that money was repaid.

3. [170]

   Commencing at AB239 L10, Ms Kruit gave evidence that the appellant had suggested to her that she should incorporate a self-managed superannuation fund. She said (at AB240 L46-49) that it was about this time that the appellant had approached her about investing in land and property developments in Queensland. She said (at AB242 L28 and following) that she had attended a meeting at which Ladd was present, and at which she was informed that investments were available in house and land packages which would generate a return of 10 percent over each 3 month period. Ms Kruit gave evidence (commencing at AB244 L3) that ultimately she and her husband invested an amount of $100,000.00 in what she understood to be the “Seed Program”, that being a term which the appellant had always used when requesting the money. According to Ms Kruit (at AB247 L46-49) the appellant had informed her that such money, once received, would be transferred for investment in house and land packages in Queensland.

4. [171]

   Mr Findlay said (commencing at AB285 L41) that he understood that the money was to be invested in house and land packages. In particular, Mr Findlay was asked the following:

5. [172]

   In the course of the appellant’s cross-examination, he was taken to aspects of Ms Kruit’s evidence (commencing at AB529 L27). He maintained that such evidence was “not right” and that witnesses had been “well coached”.

6. [173]

   In terms of count 3, I have already made reference (at [128] and following above) to the evidence of Mrs Hannan. Her husband was not called to give evidence. The trial judge gave the jury a direction in relation to the issue of witnesses who were not called (set out at [119] above).

7. [174]

   In terms of count 7, Lynette Sloane gave evidence (commencing at AB388 L8) that she had had discussions with the appellant regarding the incorporation of a self-managed superannuation fund through which monies could be invested. Her evidence included the following (commencing at AB389 L1):

Submissions of the appellant

1. [175]

   Counsel for the appellant submitted that it was not open to the jury to be satisfied beyond reasonable doubt of any of these three counts. In advancing that submission, counsel took the Court to a schedule of evidence given by the relevant witnesses which, it was said, demonstrated various inconsistencies.

Submissions of the Crown

1. [176]

   The Crown submitted that in each case, it was open to the jury to be satisfied beyond reasonable doubt that the appellant had committed the offence. The essence of the Crown’s submission was that to the extent that there were inconsistencies between the evidence of each of the investors on the one hand and the appellant on the other, those inconsistencies were matters which were the province of the jury to assess.

Consideration

1. [177]

   In R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 the test to be applied by an appellate Court when it is asserted that a verdict was unsafe and unsatisfactory was put in this way (at [65]-[66], citations omitted):

2. [178]

   I have observed on a number of occasions that the issue in the present trial revolved around the terms upon which the appellant had received the valuable security in each case. In respect of each of these three counts, the respective investors gave evidence of those terms. The appellant’s case was that that evidence should not be accepted. The responsibility for determining that fundamental factual issue was that of the jury. The jury evidently accepted the evidence of the investors, and rejected that of the appellant. The fact that there may have been inconsistencies in aspects of the evidence does not lead to a conclusion that it was not open to the jury to convict the appellant in respect of any of counts 1, 3 and 7.

3. [179]

   It follows that this ground is not made out.

Submissions of the appellant

1. [180]

   To some extent, the submissions advanced by counsel for the appellant in support of this ground were the same as those relied upon in respect of grounds 1 and 11, at least in so far as this ground relied upon a failure by the Crown to call certain witnesses, or a failure by the Crown to comply with its disclosure obligations. These matters have already been canvassed when dealing with those other grounds in which they arise.

Submissions of the Crown

1. [181]

   The Crown submitted that no miscarriage of justice had arisen in respect of any of the matters raised on behalf of the appellant. It was submitted, in particular, that none of the witnesses whom the Crown was said to have been obliged to call had provided any statement or proof of evidence, such that it was entirely speculative to conclude that their evidence would have been unfavourable to the Crown and favourable to the appellant, to the extent giving rise to a miscarriage of justice.

2. [182]

   The Crown further submitted that rather than voice any substantive objection at the trial, or make any application(s) to the trial judge, counsel for the appellant had made a tactical decision to pursue the matter by cross-examining the principal investigator regarding (inter alia) an asserted failure to obtain statements from relevant witnesses.

Consideration

1. [183]

   The Crown has a responsibility for deciding what witnesses are to be called in a criminal trial, bearing in mind its obligation to properly present the Crown case conformably with the dictates of fairness to the accused: R v Soma (2003) 212 CLR 299; [2003] HCA 13 at [29]; Richardson v R (1974) 131 CLR 116; [1974] HCA 19 at 119.

2. [184]

   What any of the witnesses named in this ground would have said had they been called to give evidence is a matter of pure speculation. It could not be said in those circumstances that the evidence of any one of them was essential to the unfolding of the case for the Crown: R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 at 577-578.

3. [185]

   Moreover, other than to the extent already canvassed, the matter was not raised by counsel for the appellant at the trial. In particular, no application was made for a stay of proceedings on the basis that the Crown had breached its disclosure obligations. The appellant received the benefit of the direction set out at [119] above regarding witnesses who were not called.

4. [186]

   It follows that this ground is not made out.

The evidence on sentence

1. [187]

   Before the Court on sentence was a report of Dr Glen Smith, Psychiatrist, (commencing at AB 3584) who had examined the appellant on 1 April 2016 following the verdicts of the jury. Dr Smith expressed the view that the appellant was suffering from symptoms consistent with a major depressive order, and a panic disorder of moderate severity (at AB 3594). The general tenor of his opinion was that those conditions pre-dated the commission of the offences. The report did not address, directly or otherwise, the delay which had occurred in bringing the appellant to trial. However, there was no dispute that the offending took place in 2006, and that it was not until 2016 that the appellant came to trial.

2. [188]

   In the course of the latter part of his evidence in chief before the jury, the appellant was asked (AB 511 L16-18):

3. [189]

   Counsel for the appellant submitted to the sentencing judge (at AB 3545 L15-22) that delay was a strong factor in mitigation “particularly where there’s evidence of the offender rehabilitating himself or herself in the meanwhile.” Counsel submitted that the delay in the present case was “very, very long” and that “in those very unusual cases the Court of Appeal says the Court is entitled to be extremely flexible”. Although not specifically put, the effect of counsel’s submission was that the personal and financial losses that the appellant had sustained and about which he had given evidence had been brought about as a consequence of the delay in bringing the proceedings.

The findings of the sentencing judge

1. [190]

   At AB 778, the sentencing judge said the following in relation to the issue of delay:

Submissions of the appellant

1. [191]

   Counsel pointed to the fact that the appellant had not been charged for some years after the offences had been committed (in circumstances where it had been made plain to him that he was being investigated) and that he had not been brought to trial for many years after that. It was submitted that in these circumstances the sentencing judge had failed to give adequate consideration to the fact of delay in determining sentence. It was submitted that the threat of incarceration had hung over the head of the appellant for many years, and that the sentencing judge should have concluded that the consequences of the delay to which the appellant had been subject included the loss of personal assets to which he referred at the conclusion of his evidence in chief.

Submissions of the Crown

1. [192]

   The Crown submitted that there was no doubt that the sentencing judge had given consideration to the question of delay. The Crown also pointed to the fact that the appellant had not given evidence on sentence, as a consequence of which there was no evidence before the sentencing judge as to any particular effect(s) of the delay. It was submitted that in all of the circumstances, there was nothing which warranted any significant reduction in sentence on the grounds of delay and that in any event, his Honour had taken it into account.

Consideration

1. [193]

   Delay will ordinarily be a mitigating factor on sentence where (inter alia) it has resulted in significant stress for an offender, or left him or her, to a significant degree, in uncertain suspense: Scook v R [2008] WASCA 114 at [57] and following per Buss JA, cited by Bathurst CJ in Giourtalias v R [2013] NSWCCA 216 at [1787]-[1788]. Because delay is a mitigating factor, there is an onus upon an offender to establish that the consequences of such delay are as he or she asserts: Sabra v R [2015] NSWCCA 38 at [47] per Bellew J (Meagher JA and Schmidt J agreeing).

2. [194]

   In the present case, the appellant gave no evidence on sentence. There was, as a consequence, no evidence to support the proposition that the losses he had suffered, and to which he referred at the conclusion of his evidence in chief before the jury, were brought about by the delay in coming to trial.

3. [195]

   At the same time, the length of the delay in the present case was such that his Honour was entitled to find (as he did) that the appellant had been left in a state of uncertain suspense for a period of time. Clearly, his Honour took that into account. Contrary to the submission advanced on behalf of the appellant before this Court, the sentence itself does not indicate a failure on the part of the sentencing judge to give the issue of delay appropriate weight. It is also noted that the appellant has made no complaint of manifest excess.

4. [196]

   Finally, it should be noted that the oral submissions of counsel for the appellant before this Court suggested that the sentencing judge should have applied a specific and discrete discount to reflect delay. Such an approach, had it been adopted, would have been erroneous: Chung v R [2017] NSWCCA 48 at [63]-[65] per the Court (Beazley P, RA Hulme and Bellew JJ).

5. [197]

   In these circumstances, leave to appeal against sentence should be refused.

Conclusion

1. [198]

   For the foregoing reasons, I proposed the following orders:

   1. (1)

      The appeal against conviction is dismissed.

   2. (2)

      Leave to appeal against sentence is refused.