JUDGMENT No. ....JO4) 7 94 + asevncesenscenacs, CATCHWORDS ' Criminal Law - Particular offences - Defraud the Commonwealth - To amperil the economic interest of the Commonwealth a defrauding. Crimina] Law - Particular offences - Organised fraud - Identification of constituent elements of the offence - Joinder of counts of "public fraud offences" satisfying s.83 (2)(a) of Proceeds of Crime Act 1987 (Cth) with count of organised fraud permissible. Criminal Law - Appeal and new trial - Particular grounds - Irregularities in relation to jury - Prejudicial material not an evidence entering jury room - Miscarriage of justice. Evidence - Admissibility - Evidence unlawfully or irregularly obtained - Telephonic interception outside Australia - Admissibility in Australian court considered. Evidence - Mechanical records - Listening device - Proper construction of Australian Federal Police Act 1979, s.12F considered. Trespass - Trespass to land - Justification - Leave and licence - Limited permission to enter - Entry and conduct on land ostensibly within permission - Covert recording by person entering of conversation with licensor - Held no trespass. The Australian Federal Police Act 1979 - s 12F The Crimes Act 1913 - s 29D The Proceeds of Crime Act 1987 - s 83 T. C. Domican (No. 3) (1990) 46 A.Cr.R. 428 R. v. Rinaldi (1993) 30 N.S.W.L.R. 605 Reg. v. Marsland (unreported; Supreme Court of New South Wales; judgment 17 July 1991) R. v. Emett (1988) 14 N.S.W.L.R. 327 Byrne v. Kinematrograph Renters Society Ltd. [1958] 1 W.L.R. Barker v. The Queen (1983) 153 C.L.R. 338 R. v. Pfennig (No. 1) (1992) 57 S.A.S.R. 507 Bunning v. Cross (1978) 141 C.L.R. 54 Wal Y-tsang v. The Queen [1992] 1 A.C. 269 R. v. Allsop (1976) 64 CR.A.R. 29 TERENCE FRANCIS BARKER v. THE QUEEN ACT G43 of 1994 RECEIVED JANICE DOREEN JUNE HARPER v. THE QUEEN 29 DEC 1994 FEDERAL COURT OF ACT G44 of 1994 AUSTRALIA PRINCIPAL AEGISTAY . . 2 ' ROBERT GEORGE CAMPBELL v. 'TeE QUEEN ACT G45 of 1994 Jenkinson, Miles and O'Loughlin JJ. Canberra 21 December 1994 if fi WW Tre FED RL Cee \ - LUSTRALIZ CAPITAL ) he RCP G13 cf 1904 DISTRICT FEGISTA } GENERAL DIVISiICN ) ERTUEEN: TERENCE FRANCIS EARFER >cpellant ° BRE: Trs SUEEN Tesporcent cereitecn, "tales 47-3 O'Leugtlin og DATE OF ORDER: REASONS PUBLISHED <2 November 19¢4 <1 December 19¢4 MINLTE (a) i ay ia) n ry a3] AD to ts (Ncete: on each cf tte e1ghtn ceunts in tre conviction ci Counts re Guasreg 4. ne Tere ce @ ~@y tr.8. sf tre éerpellert en each of tne Sari ccusts Ssttlevenit en an Gxcer 15 cit f IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G44 of 1994 we ew BETWEEN: JANICE DOREEN JUNE HARPER Appellant AND: THE QUEEN Respondent CORAM: Jenkinson, Miles and O'Loughlin JJ. PLACE: Canberra DATE: 21 December 1994 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules) IN THE FEDERAL COURT OF AUSTRALTA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G45 of 1994 ee BETWEEN: ROBERT GEORGE CAMPBELL Appellant E THE QUEEN Respondent CORAM: Jenkinson, Miles and O'Loughlin JJ. PLACE: Canberra DATE: 21 December 1994 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. (Note: Settlement and entry of orders is dealt within Order 36 of the Federal Court Rules) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION On Appeal from the Supreme Court of the Australian Capital Territory No. ACT G43 of 1994 BETWEEN: TERENCE FRANCIS BARKER Appellant AND: THE QUEEN Respondent No. ACT G 44 of 1994 BETWEEN: JANICE DOREEN JUNE HARPER Appellant AND: THE QUEEN Respondent No. ACT G 45 of 1994 BETWEEN: ROBERT GEORGE CAMPBELL Appellant AND: THE QUEEN Respondent CORAM: Jenkinson, Miles and O'Loughlin JJ. PLACE: Canberra DATE: 21 December 1994 REASONS FOR JUDGMENT JENKINSON and O'LOUGHLIN JJ. - 2 - Appeals against convictions. The appellants Janice Doreen June Harper and Robert George Campbell were convicted of a count of defrauding the Commonwealth. On five other counts in the same indictment, three of defrauding the Commonwealth and one of engaging in organised fraud and one count of perverting the course of public justice, the jury were unable to agree on a verdict concerning Mr. Campbell. The appellant Terence Francis Barker was charged with Mr. Campbell in two of the three counts of defrauding the Commonwealth and also an the count of perverting the course of public justice. Mr. Barker was convicted on those counts and on a further count of defrauding the Commonwealth and on a count of engaging in organised fraud. Concerning a further count against Mr. Barker of defrauding the Commonwealth the jury were unable to agree on a verdict. Each appellant appealed against his or her conviction on each count on which a verdict of guilty was given against him or her. The appeals were heard successively by a court constituted by the same members. The counts arose out of the affairs of Ellen Elazabeth Chaplin and her husband Christopher John Chaplin who had conducted a jewelry business in the Australian Capital Territory. For several years before 1989 they had lodged false aiuncome tax returns. When they learned of the investigation of their affairs by officers of the Australian Taxation Office they consulted Mr. Barker, an accountant =— 3 _ employed in Canberra by Touche Ross who had rendered them accountancy services in the course of his employment and with whom they were on friendly terms. According to the Crown case at trial, Mr. Barker advised them of means to transfer money and other property of theirs to persons in England under an arrangement that later, when they went to England, the money and property, less a fee for those persons' services, would be returned to them. Mr. Barker further advised them, as the Crown alleged, that those transfers be represented to the Australian Taxation Office as having been made in performance of commercial transactions quite different from the arrangements they would in fact make in accordance with Mr. Barker's advice. The purpose, according to the Crown case, was not merely to get the money and property to England, but to induce officers of the Australian Taxation office ("the A.T.O.") to believe that the assets of Mr. and Mrs. Chaplin available to satisfy their ampending taxation liabilities were of much less value than they were in fact. To that end, the Crown alleged, Mr. Barker advised Mr. and Mrs. Chaplin to pretend to make with Teckvest Pty. Ltd., a foreign company said to be controlled by a resident of Great Britain, Vincent Anthony Hillsdon, a written contract for the sale by Teckvest Pty. Ltd. (""Teckvest") to Mr. and Mrs. Chaplin of a computer program for use in currency trading for a pretended price of more than $3,000,000. When the computer program proved to be worth on the market much less than the price pretended to be paid for it, the A.T.O. would believe that Mr. and Mrs. Chaplin's assets (as earlier known to them) had lost in value -4- the amount by which the market value of the computer program fell short of the price they had, as the A.T.O. would believe, paid for it. According to the Crown case, Mr. Barker assisted Mr. and Mrs. Chaplin to implement that scheme by helping to create documents by which the pretended transaction with Teckvest appeared to have been effected, and by arranging that Mr. Halisdon and Teckvest should play their pretended as well as their real parts in the scheme. Mr. Campbell was a solicitor who, according to the Crown case, was made privy to the scheme and helped both to prepare the pretended contract for sale of the computer program and to represent the contract to the A.T.O. as what it pretended to be : a bone fide commercial transaction. In respect of those allegations the farst count of the indictment was laid, alleging that Mr. Campbell and Mr. Barker, together with Mr. and Mrs. Chaplin (who were not the subject of this indictment) "between 1 February 1989 and 31 October 1989 defrauded the Commonwealth by deceiving the Australian Taxation Office as to the financial circumstances of Ellen Elizabeth Chaplin and Christopher John Chaplin and in particular as to the true circumstances of the agreement entered into between the said Ellen Elizabeth Chaplin, Christopher John Chaplin, Teckvest Pty. Ltd. and Style Investments Pty. Ltd. on or about 5 May 1989 and the payment of a total sum of $A3,358,737.00 to Vincent Anthony Hillisdon between 1 April 1989 and 30 June 1989". Mr. Barker was convicted on that count. The jury failed to agree on a verdict in respect of Mr. Campbell. -5- Mr. and Mrs. Chaplin bought some pink Argyle diamonds and, as the Crown contended, caused them to be delivered to Mr. Hillsdon under an arrangement between them and him that he would later return the diamonds to the Chaplins in England, whence they planned to go. The second count of the indictment alleges that Messieurs Campbell and Barker were parties, together with Mr. and Mrs. Chaplin, to the defrauding of the Commonwealth by deceiving the A.T.0O. "as to the true circumstances of the arrangements between Ellen Elizabeth Chaplin, Christopher John Chaplin and Vincent Anthony Hilisdon as to the transfer to Vincent Anthony Hillsdon of a quantity of pink Argyle diamonds and their return to the said Ellen Elizabeth Chaplin and Christopher John Chaplin". The Crown case was that the A.T.O. was told that the diamonds had been sold to Teckvest at a loss. On this count Mr. Barker was convicted, but the jury failed to agree on a verdict in respect of Mr. Campbell, as they did also with respect to the third count. In that count he was charged alone with defrauding the Commonwealth on or about 4 September 1989, being an occasion other than those referred to in counts 1 and 2, by deceiving the A.T.O. as to the financial circumstances of Mr. and Mrs. Chaplin and the ability of each of them to pay the required taxation and penalties due under an assessment issued on or about 16 May 1989. The fourth count charged Mr. Barker and Mr. Campbell with perverting the course of public justice. Having served on Mr. and Mrs. Chaplin notices of amended assessments to - 6 - income tax in amounts aggregating more than $3,000,000, the A.T.O. sought and was granted by the Supreme Court of the Australian Capital Territory an injunction restraining removal by the Chaplins of assets out of the jurisdiction. In support of applications by the Chaplins for discharge or variation of the injunction an affidavit by Mrs. Chaplin was filed in that "proceeding. The Crown case was that some of the content of the affidavit was, to the knowledge of Mr. Barker and of Mr. Campbell, false and that each had assisted Mrs. Chaplin to draw the affidavit, knowing that it would be sworn and filed in the proceeding and with intent to pervert the course of justice in the proceeding. Mr. Barker was convicted. The jury failed to agree on a verdict concerning Mr. Campbell. The fifth count charged Mrs. Harper and Mr. Campbell, who was her husband, with defrauding the Commonwealth by deceiving the A.T.O. concerning an agreement for the sale to a company owned by them of a jewelry business the Chaplins had carried on at Manuka in the Australian Capital Territory. Each was convicted on that count. Each of the sixth and seventh counts charged Mr. Barker with defrauding the Commonwealth by furnishing an income tax return in which he omitted to include his total income, in the sixth count in respect of the year ended 30 June 1990 and in the seventh count in respect of the year ended 30 June 1989. He was convicted on the seventh count. The jury failed to agree on a verdict in respect of the sixth - 7J- count. The omission alleged in respect of the seventh count was of a payment to Mr. Barker of $45,000 by the Chaplins. The Crown case was that the money was a reward for services rendered to the Chaplins by Mr. Barker. He contended that it was a gift, unrelated to any service he had rendered, and therefore not assessable income for the purposes of the income tax law. The e2zghth count charged Mr. Barker with having engaged in organised fraud, an offence created by s.83 of the Proceeds of Crime Act 1987. That section reads: "(1) A person who engages in organised fraud is guilty of an offence against this section punishable, upon conviction, by: (a) aif the offender is a natural person - a fine not exceeding $250,000 or umprisonment for a period not exceeding 25 years, or both; or (b) if the offender 1s a body corporate - a fine not exceeding $750,000. (2) A person shall be taken to engage in organised fraud if, and only if, he or she engages, after the commencement of this Act, in acts or omissions: (a) that constitute 3 or more public fraud offences; and (b) from which the person derives substantial benefit. (3) Where a person 1S charged with an offence against subsection (1) in relation to a number of public fraud offences and the jury is not satisfied that the person is guilty of the offence against subsection (1) but is satisfied that the person 1s guiity of one or more of the public fraud offences, the jury shall acquit the person of the offence against subsection (1) and may find the person guilty of that -~ 8 - public fraud offence or those public fraud offences and the person 1s punishable accordingly. (4) In this section: 'public fraud offence' means an offence under any of the following provisions: (a) sections 29D and 86A of the Crimes Act; (b) sections 5, 6, 7 and 8 of the Crimes (Taxation Offences) Act 1980." Counts 1, 2 and 7 charged each an offence by Mr. Barker under s.29D of the Crimes Act and convictions resulted. He was convicted on the eighth count. The inclusion in the indictment of both the count of organised fraud by Mr. Barker and the public fraud offences charged against him in counts 1, 2, 6 and 7 was said to be impermissible. Sub-section 83(3) aundicates a legislative intention, it was submitted, that the public fraud offences proposed to be proved in support of a charge of organised fraud, as satisfying the requirement of paragraph 83(2)(a), be not made the subjects of separate charges, but be the subjects of conviction under the authority conferred by sub-section 83(3) in the event that the jury is not satisfied of the guilt of the accused on the organised fraud charge but 1s satisfied of the accused's guilt of one or more of the public fraud offences. The legislature appears to have made provision in sub-section 83(3) for conviction of the public fraud offences -9- notwithstanding that those offences are not the subjects of separate counts in the indictment. If the public fraud offences are the subjects of separate counts, the provision made by sub-section 83(3) seems to be otiose. Joinder in the one indictment against a person of several charges of public fraud offences might attract the exercise of the power conferred by State and Territory statutes to order separate trial of one or more of those charges. The legislature may have considered that provision ought to be made to deny practical effect to such an order for separate trials in a case where there 1s also charged in the indictment against that person an offence against s.83(1) and where any of the charges ordered to be separately tried is of a public fraud offence to be ~ and which is in fact - proved as an element of the charge under sub-section 83(1) and where the person ais acquitted of that latter charge. Whatever was the legislative concern which led to the enactment of sub-section 83(3), we do not find expressed or implied a legislative intention that joinder of counts in the one indictment, which sub-section 365(2) of the Crimes Act 1900 (A.C.T.) contemplates, be precluded in respect of counts charging public fraud offences and a count of an offence against sub-section 83(1) in relation to which the public fraud offences are offences proposed to be proved in satisfaction of the requirement stated in paragraph 83(2) (a). It was submitted that the trial of the charges of public fraud offences with the charge of organised fraud - 10 - deprived, or might have deprived, Mr. Barker of that separate consideration of each charge by the jury which the law requires. It is difficult to conceive that the required separate consideration of each charge in those circumstances was any less likely than that separate consideration would have been accorded each constituent element of the charge of organised fraud, including the constituent elements which paragraph 83(2)(a)° creates, if none of the public fraud offences had been included in the indictment. In either case the law requires that the jury be persuaded beyond reasonable doubt of each of those constituent elements. Literally understood, the words in sub-section 83(2), "1f ... he or she engages ... in actsS or omissions ... that constitute 3 or more public fraud offences", convey no sensible meaning. The constituent elements of the public fraud offences specified in sub-section 83(4) can be constituted only by one or more voluntary acts or omissions and one or more further specified states of mind. Each of the offences specified in the definition of "public fraud offence" in s.83(4) are of that character. In order to give meaning to the sub-section it is necessary to construe it as if there were inserted after the words "acts or omissions" the words "having the intentions knowledge and beliefs". It is also necessary to understand that sub-section as requiring, not that each act or omission be a constituent element of all three or more offences, but that each be a constituent element of one of the three or more public fraud offences. The jury must be satisfied beyond reasonable doubt of the occurrence of all the acts or -11- omissions and of the existence of all the mental states "that constitute" each of the "3 or more public fraud offences" contemplated by any charge of an offence against sub-section 83(1). This will be so whether or not the trial of that charge 1s the contemporaneous trial also of charges of those public fraud offences. It was submitted by counsel for Mr. Barker that "a properly instructed jury could arrive at the absurd result where they found the appellant not guilty of counts 1, 2, 6 and 7, not guilty of count 8, but, by virtue of the statutory alternative, guilty of all or any of counts 1, 2, 6 and 7". This submission seems to rest on an assumption that a properly anstructed jury might fail of satisfaction beyond reasonable doubt when considering each of counts 1, 2, 6 and 7, but would thereafter embark on a further consideration of the charges in those counts in order to determine whether or not to convict the accused of the charge in count 8. It also assumes that upon that further consideration the jury might reach satisfaction beyond reasonable doubt of his guilt of one or more of those charges of which they had previously resolved to acquit him. Why that should occur we do not understand. The assumptions attribute irrational conduct to the jury. The learned trial judge's charge to the jury naturally indicated that they would not need, when considering count 8, to give further consideration to the requirements of paragraph 83(2)(a) 1£ they had previously reached a conclusion as to the verdict on each of counts 1, 2, 6 and 7. - 12 - It was a ground of Mr. Barker's appeal that there had been misdirection by the learned trial judge as to one of the elements of the offence charged 1n count 8. Counsel for Mr. Barker contended that what 1S required by paragraph 83(2)(b) 1s a derivation of a substantial benefit from each of the three or more public fraud offences commission of which had satisfied the requirement expressed in paragraph 83(2)(a). A substantial benefit which derived from fewer than three of the offences did not, ain his submission, satisfy the requirement expressed by paragraph 83(2)(b). The "substantial benefit" to which paragraph 83(2)(b) refers was said by the Crown to be the receipt by Mr. Barker of $45,000 from Mr. and Mrs. Chaplin. A letter concerning that sum signed by Mr. and Mrs. Chaplin and sent to Mr. Barker, was in these terms: "Terry Barker Touche Ross 80 Northbourne Avenue CANBERRA ACT 2600 25th April 1989 Dear Terry, As you know our present difficulties with the Taxation office are causing us, particularly Chris, a great deal of anguish. You advised that our tax commitment would be a large one and we decided to progressively sell most of our assets to meet the bill rather than wait to the last minute and be forced to sell, probably for lower prices. When this is over and we have met our tax obligations Chris and I will take a long holiday probably back to England. We are anticipating that the currency dealing will be successful and that this will give us a comfortable income to live on. Will thas be subject to tax in Australia? JI suppose it will if we still reside here. Anyway the main point of this letter is - 13 - that Chris and I have been thinking about your family's situation and the huge loss of about $245,000.00 that you lost in that hotel business through your family trust company, Firmat Holdings Pty Ltd. We know that you cannot accept professional fees for these would have to go to Touche Ross and we wouldn't want to cause you any embarrassment by offering fees to you. Touche Ross will get all of their fees paid in full, in advance if they like. So Chris and I would like to help your family by making a contribution of $45,000.00 to Firmat Holdings to help ease the financial strain imposed upon you and your family. This 1s a gift pure and simple. It is a 'thank you' for all your help and pleasant company, both business and personal in the past. We can afford it for even after paying the Taxation Office its money and buying the currency trading programmes we will still be moderately comfortable. We shall send Robert Campbell a copy of this letter with instructions to pay your company the sum shortly. God bless you and your family. Kind regards, Ellen & Chris." The evidence of Mrs. Chaplin was that the $45,000 was paid to Mr. Barker as a fee for his services in devising and implementing what according to her evidence was the fraudulent scheme, and that the letter was a copy of a draft given to her by Mr. Barker with a request that she and her husband have it typed on their business stationery because, as she swore Mr. Barker said, it was necessary that he "somehow account for this $45,000". In his unsworn statement to the jury Mr. Barker denied that he prepared a draft : he said he suggested some amendment of her draft of the letter. He said that the $45,000 was a gift and that he was pleased to have a letter by - 14 - means of which he could demonstrate to his employer that the money was his, and not earnings of his employer. The learned trial judge did not direct the jury that the offence charged in count 8 was constituted only by the derivation of a substantial benefit from each of the three public fraud offences. He stated the requirement as derivation of "substantial benefit from those three or more public fraud offences". An alternative submission was advanced by counsel for Mr. Barker that a single "substantial benefit" derived from only one of the three offences would Satisfy the requirement of paragraph 83(2)(b), but only if that benefit be "linked with a pattern of conduct common to all three ox more offences". The learned trial judge's charge did not include any direction propounding that alternative requirement. Counsel for the Crown, as well as counsel for Mr. Barker, suggested that s.83 contemplated some nexus, additional to that which sub-section 83(4) effects, between the three or more instances of criminal activity which paragraph 83(2)(b) requires. So much 1s perhaps suggested by the name which the legislature chose for the offence created by the section. That suggestion is, perhaps, confirmed by some of the observations by the Attorney-General when he moved the second reading of the Bill for what was enacted as the Proceeds of Crime Act 1987. The Attorney-General said (Hansard 30 April 1987 pp 2314, 2316-7): - 15 - "Its purpose 1s to strike at the heart of major organised crime by depriving persons involved of the profits and instruments of their crimes. By so doing, it will suppress criminal activity by attacking the primary motive - profit - and prevent the re-investment of that profit in further criminal activity." "The legislation also creates a new offence of organised fraud which 1s constituted by acts and omissions which constitute three or more public fraud offences from which the person has derived substantial benefit. Public fraud offences are breaches of sections 29D and 86A of the Crimes Act 1914 and sections 5, 6, 7 and 8 of the Crimes (Taxation Offences) Act 1980. This offence is specifically designed for persons who have been engaged in a pattern of conduct, over a period of time, from which they have benefited to the detriment of society. The Government has not followed the American precedents which centre around concepts of sophisticated methods, organisation or planning and specific monetary limits. Some of the most effective fraudulent activity has resulted from schemes of utmost simplicity." The Explanatory Memorandum circulated with the Bill included the following passage: "The organised fraud offence is not directed at persons who commit a number of social securaty frauds from which they gain a relatively small monetary benefit. Rather, it is directed at persons who organise their affairs in such a way as to significantly defraud the revenue through unlawful activity amounting to fraud. The expression substantial benefit has been left undefined as the monetary amount involved in the fraud should not be taken as the determinant of guilt but should be considered together with the degree of planning, organisation, and persistent unlawful conduct in assessing culpability." Sections 29D and 86A create indictable offences of, - 16 - respectively, defrauding and conspiring to defraud the Commonwealth or a public authority under the Commonweaith. An extraordinary diversity of circumstances are comprehended by each of those offences. Sections 5, 6, 7 and 8 of the Crimes (Taxation Offences) Act 1980 on the other hand create a number of indictable offences relating solely to sales tax. In striking contract with ss. 29D and 86A, these sections define the offences they create in long sentences of complex structure, but they are all concerned with conduct and purpose directed to bring about the result that a person liable to pay sales tax is unable to pay that tax, "having regard to other debts" of that person. The conflation of the six sections specified in sub-section 83(4) does not seem to provide an idea of the required nexus or pattern. However suggestive the name of the offence may be, there 1s nothing in the statement of its constituent elements to suggest that the offence has been specifically designed for persons who have been engaged in a pattern of conduct, over a period of time, from which they have benefited to the detriment of society, except the pattern which may be discerned in a series of offences all of which involve an attempt to defraud the Commonwealth or "a body or authority constituted by or under a law of the Commonwealth or of a Territory" and from one or more of which the offender derives substantial benefit. The Commonwealth may be defrauded in ways that involve no economic prejudice, nor any intention to cause economic prejudice to the Commonwealth : see Welham v. -17- D.P.P. [£1961] A.C. 103 and Reg. v. Scott [1975] A.C. 819 at 839, 841. A literal construction of sub-section 83(2) does not in our opinion disclose a legislative intention that the three or more public fraud offences must manifest a pattern in the conduct comprehended by those offences. When regard is had to the context which the Proceeds of Crime Act 1987 as a whole supplies it may be permissible to construe' the references to offences specified in paragraph 83(4)(a) as limited to those offences under ss. 29D and 86A of the Crimes Act in which there is sought either economic detriment to the Commonwealth or the public authority or economic advantage to those in whose interest the offence is committed. But we are unable to discern a legislative intention that there be any other connection between the offences which satisfy the requirement expressed in paragraph 83(2)(a). The requirement of any pattern or nexus beyond the common characteristic of an attempt to defraud involving economic advantage to the offender or to another whom he seeks to benefit or economic detriment to the entity defrauded would inhibit achievement of that which the terms of s.83 suggest to us is the legislative intention in enacting it : to render liable to condign punishment those who repeatedly seek to gain economic advantage by public fraud offences and who in fact succeed in deriving substantial benefit therefrom. The supposed case was put by counsel for Mr. Barker of a doctor, charged with defrauding the Commonwealth by concealing the greater part of his very large income from the Australian Taxation Office, who 1s found during the investigation of that offence to have also - 18 - defrauded the Commonwealth years before by obtaining on several occasions a small sum of money from the Health Insurance Commission in respect of false Medicare claims. It was submitted that the substantial benefit derived from the income tax offence was obtained by conduct totally unrelated to the conduct constituting the earlier offences. But in our opinion the repetition of conduct designed to gain economic advantage by fraud is what s.83 can be seen as directed to make a distinct offence if out of those repeated attempts a substantial benefit has been derived. We do not think ourselves justified in limiting the application of the section by reason of the use of the label "organised". Undefined concepts of "pattern" and "nexus " are in our opinion unsuitable constituent elements of a criminal offence. While it 1S sometimes found necessary to commit a normative judgment to the tribunal of fact, as for example in negligent manslaughter, the criminal law is in our opinion best served by excluding, so far as possible, from the definition of a criminal offence circumstances incapable of precise description. The vague connotations with which vernacular usage has invested expressions such as "organised crime" and "organised fraud" ought not to anfluence the construction of paragraph 83(2) to the extent suggested by counsel, in our opinion. The use of the word "organised" 1s in our opinion justified, as a label, by the requirements of repetition and success, to the extent of "Substantial benefit". No more is required, as we think. Nor do we consider that it is a requirement of paragraph 83(2)(b) that success, to the extent - 19 - of "substantial benefit", attend the commission of each set of "acts or omissions" that constitute one of the required public fraud offences. We are, as we think, compelled to understand paragraph 83(2)(a) as if it had read : "he or she engages ... un acts or omissions that in the aggregate constitute 3 or more public fraud offences", in order to avoid an absurd conclusion. But we find no such a compulsion to understand paragraph 83(2)(b) as if it had read : "he or she engages ... in acts or omissions that constitute three or more public {fraud offences from the commission of each of which offences the person derives substantial benefit". It was a ground of Mr. Barker's appeal that the evidence could not sustain a verdict of guilty on count 1. it was submitted that, because the acts alleged to have constituted the offence charged had all been committed before amended income tax assessments had brought into existence debts due by Mr. and Mrs. Chaplin and companies owned by them, no detriment had been caused to the Commonwealth. The Commonwealth was said to have had no "interest capable of being asserted" in the assets of Mr. and Mrs. Chaplin until 18 June 1989. The debts came into existence on 18 June 1989. If 1t be assumed - without expressing an opinion - that, as counsel for Mr. Barker submitted, the evidence did not disclose any act by Mr. Barker committed on or after that day and having a tendency to deceive the Commonwealth into misapprehending "the true circumstances" of the agreement and of the payment specified in count 1 and by reason of that - 20 - misapprehension to act or omit to act to ats detriment, yet there was evidence that after that date others specified in count 1 as parties to the offence charged did so act. And there was evidence to support an inferred finding that what Mr. Barker did in advising and implementing the scheme before 18 June 1989 he did in the expectation that the debts would soon become due and that acts of the kind in fact done by those others would be done after the debts had become due. Upon those findings a verdict of guilty on count 1 against Mr. Barker was not precluded by his inaction on and after 18 June 1989 : see fripodi_v. The Queen (1961) 104 C.L.R. 1. In those circumstances it 1s unnecessary to examine the validity of the submission that the offence would not have been committed 1f no constituent element of the offence charged had occurred on or after 18 June 1989 except the Commonwealth's action, or omission to act, to its detriment. (Cf. Vereker v. Rodda (1987) 72 A.L.R. 49.) It was submitted on behalf of Mr. Barker that, because the money paid purportedly in performance of the agreement specified in count 1 had been lent to Mr. and Mrs. Chaplin by Style Investments Pty. Ltd., an amount recovered by the Chaplins from Mr. Hillsdon in respect of that payment would not be available in their hands to satisfy their income tax liabilities because any such an amount would be repayable by them to Style Investments Pty. Ltd. These submissions were said to support the conclusion that no defrauding of the Commonwealth within the ambit of count 1 had, or could have, ? occurred. It was common ground that Mr. and Mrs. Chaplin were the only shareholders of Style Investments Pty. Ltd. and that Style Investments Pty. Ltd. had at material times no significant liabilities, except perhaps income tax liabilities. In those circumstances the assets of Style Investments Pty. Ltd., including the money and later the indebtedness of the Chaplins in an equivalent amount, were available to satisfy the income tax liabilities of Mr. and Mrs. Chaplin. In developing the argument with which we have just dealt counsel for Mr. Barker directed the court's attention to evidence, given under cross-examination, by officers of the Australian Taxation office which was said to support the submission. Some of this evidence included the opinions of the witness on matters of Australian municipal law relevant to the issues being tried. It may sometimes be convenient to permit a jury or other tribunal of fact to be informed about a relevant matter of law through the mouth of a witness. But that 1s permissible only 1f it is obvious beyond all doubt to the judge and to the legal representatives of all parties that the law is as the witness states it. Here witnesses were led into making statements, the correctness of which depended on the correctness of the witness's understanding of the law, which were incorrect and misleading. That should not have been permitted, in our opinion. - 22 - While these appeals were be1ng heard it was realised that, when the jury was considering their verdicts, transcript of parts of recorded conversations which had not been admitted into evidence was probably in the jury room. One of the recorded conversations was between an investigating police officer, Sergeant Pattenden, and Mr. Barker (exhibit BQ) and the others were between Mrs. Chaplin and Mr. Barker (exhibit KK), and Mrs. Chaplin and Mrs. Harper (exhibit LL). In each instance parts of the recorded conversation were ruled inadmissible by the learned trial judge. When the recording of the conversation was played to the jury the operator of the equipment ensured that the excluded parts were not heard by the jury. The transcript of the conversation which had been prepared was in each instance tendered in evidence and copies of the transcript were made avazrlable to the jurors : one copy for a pair of jurors. The six copies made available to the jury contained none of the excluded parts of the conversation each copy had been edited. MThese edited copies the jurors retained in their custody until the jury was finally discharged. Thereafter those edited copies were destroyed, in accordance with normal practice. When the jury retired to consider their verdicts all the actual or, as they are often called, original exhibits were taken into the jury room so that they would be available for inspection by the jury. No means was available to the jury of playing the recordings of conversations, although they had in the jury room as actual exhibits the audio tapes on which the conversations were recorded. The learned trial judge had informed the jury that - 23 - any recording they washed to hear during their deliberations would be played for them on request. The trial had concluded on 16 April 1994 and none of those concerned in the handling of the actual exhibits during the trial and their delivery to the jury when the jury retired to consider their verdicts had any occasion to recall to mind his performance of those functions until late October 1994. Questioning then of all of those persons provided no basis for supposing that any of the Original exhibits BQ, KK and LL had not been delivered to the jurors with the other original exhibits when the jury retired to consider their verdicts. Exhibits BQ, KK and LL are now all intact, unedited, and they were found to be with the other Original exhibits when those exhibits were examined during the hearing of the appeals. The evidence before this court leads us to find that exhibits BQ, KK and LL were in the jury room during the jury's deliberations on their verdicts and that each of them included the parts which had been ruled inadmissible. The presence in the jury room of material relating to a subject of the jury's deliberations and not in evidence constitutes an irregularity : 2. C. Domican (No. 3) (1990) 46 A.Cr.R. 428 at 447-448; R. v. Rinaldi (1993) 30 N.S.W.L.R. 605. Each verdict of that jury must be set aside unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred : Reg. v. Marsland (unreported; Supreme Court of New South Wales; judgment 17 July 1991); R. v. Rinaldi, supra. And "(ijt is _ 24 = for the Crown to make it clear that there is no real possibility that justice has miscarried" : Mraz v. The Queen (1955) 83 C.L.R. 493 at 514 (per Fullagar J.). The farst question which the facts found raise is whether any member of the jury examined any one or more of the three original exhibits to which we have referred. If that question be answered in the affirmative, the question arises as to whether any of the jurors read any of the excluded parts. It may perhaps be thought that enquiry now of the jurors to obtain answers to those questions would not violate the principle that enquiry be not made after verdict into the deliberations which resulted in that verdict. But if an affirmative answer to both questions were obtained from one or more of the jurors, any further enquiry as to what the juror thought, or as to what he did, in relation to what he read would be likely to result in contravention of that principle. Counsel for the Crown informed the court that they had given earnest consideration to the question whether enquiry should be made of the jurors, having regard to the reasoning of the New South Wales Court of Criminal Appeal in R. v. Emett (1988) 14° N.S.W.L.R. 327 and to the authorities cited in that case, but that they had decided not to submit that such an enquiry should be undertaken. No submission was made on behalf of any of the appellants that such an enquiry should be made. We consider that in those circumstances the court should not request or require questioning of the jurors. (Cf. R. v. Rinaldi, supra.) - 25 - The jury deliberated throughout Friday 15 April 1994. After they had been deliberating for six hours they were brought into court. The transcript records the following: "HIS HONOUR: Mr Foreman, ladies and gentlemen, you retired to consider your verdicts in this matter, according to our records, at 11.35 am. That means that six hours have elapsed since you retired. It is appropriate, therefore, to inquire and I inquire from you, Mr Foreman, for a start, as to whether you are likely to reach agreement about the various counts. THE FOREMAN: We have only done one count so far. HIS HONOUR: Yes. THE FOREMAN: I think that the answer to your question is, yes, your Honour. It will take some time. HIS HONOUR: Well, that puts us into the area of, first of all, a meal break. Obviously, you have to have a meal break. You cannot, sort of, deliberate without any break for refreshment. You probably need some sort of a break. So what I normally do is I indicate and I should have said, of course, counsel and those involved in the case, the accused and those supporting them need some respite as well. So what I normally do is indicate that I will not take a verdict before a certain hour and my usual practice is to say 7.30. So unless you have any view to the contrary, we will send you away for a meal or whatever, I am nor sure how it is done, and I will say that I will not take any verdicts before 7.30. Now, as to the rest of your deliberations, this has been such a long trial and you have so much to consider and three accused that I think it is appropriate for your deliberations in the absence of reaching verdicts to continue until a reasonable hour this evening say, 10 o'clock and then continue tomorrow which means that accommodation has got to be provided for you overnight. That is what I propose to do. I would not think it appropriate to, especially in view of what you have just told me, to - 26 - discharge you as a jury that cannot reach agreement until you have had a decent go at it tomorrow as well. THE FOREMAN: I think the main delay 1s going through a vast amount of documents - - - HIS HONOUR: It 1s a big case, Mr Foreman. It 1s a big case. THE FOREMAN: - - - which takes a long time and some of us just want to do just that. HIS HONOUR: Certainly. Well, all right, I will say I will not take a verdict before 7.30. You depart, Mr Foreman, ladies and gentlemen, and of course, I will not bring you into court at 7.30. You will just come back and continue your deliberations and we will be available if you happen to reach a verdict before 10 o'clock but if you do not before 10 o'clock, I will bring you back in then and say, well, I might make the same inquiry of you to decide whether we send you to a motel or not. Thank you." Shortly before the court adjourned at about 10 p.m. the following dialogue between the foreman and the learned trial judge occurred in court: "HIS HONOUR: Well, Mr Foreman, you obviously have not reached verdicts in all these matters. THE FOREMAN: Quite right. HIS HONOUR: Do you think you are likely to THE FOREMAN: We have made progress. It has been quite slow and tiring, and I think we should probably get nothing tonight and we will have to go through the remaining areas that we are looking at tomorrow. HIS HONOUR: Yes, all raight. Well, in that case, we will retire for the evening and I suggest we all come back at 9.30 in the morning." The deliberations of the jury continued throughout Saturday 16 - 27 - April until verdicts were returned after 5.30 p.m. that day. The foreman's reference to "a vast amount of documents" was not hyperbole. In all the circumstances we cannot be satisfied that use was not made by one or more jurors of the original exhibits during their deliberations. The copy exhibits BQ, KK and LL each had to be shared between two jurors. Use of an original exhibit, if only for ease of reference, would be natural. Tf a discrepancy between the content of an original and a copy exhibit had been noticed by a juror, one would have expected that to have been reported by the foreman to the trial judge, or a request to have been made that the recording be played to the jury. It 1s possible that a juror read aloud an inadmissible part of an original exhibit to the other jurors, who did not seek to read that part themselves on the copies as he spoke. In those circumstances the discrepancy may not have been noticed. Or a juror may have been anfluenced by his reading of an inadmissible part of an original exhibit, but not have said to another juror anything which led to discovery of a discrepancy, nor recognised a discrepancy himself. Exhibit LL is a transcript of a recording made of a conversation between Mrs. Chaplin and Mrs. Harper in Canberra on 8 April 1991. Mrs. Chaplin wore a device, supplied by the Australian Federal Police, by which the conversation was - 28 - transmitted to recording equipment operated by members of the Australian Federal Police. Mrs. Harper was unaware that the conversation was being recorded. In that part of the conversation which was ruled inadmissible Mrs. Chaplin, after discussing the failure of Mr. Hillsdon to acknowledge and perform what Mrs. Chaplin called "our actual agreement", as distinct from what she called "this Teckvest agreement", replied to Mrs. Harper's observation that "it just seems like a real con" with the words : "Yeah, don't you think that Terry knew about it in the very beginning?" Mrs. Harper replied :; "I wouldn't have a clue". A little later the following was said: "CHAPLIN Yeah you see I trusted, I trusted Terry. HARPER And he could do no more, he can only advise he can't demand you to do something a certain way and but I think I don't know what I can gather and what I believe since Terry does have problems and always has had. CHAPLIN What do you mean. HARPER I think he gambles or something doesn't he. CHAPLIN Oh yeah. HARPER He's a terrible gambler. CHAPLIN Yeah well that's what Jan said that he gamble, I mean you see [I didn't know that then. HARPER Oh right. All I got told was I happened to mention accountants Terry BARKER once with some people and they went oh bad news and I said shit oh dear, and this is when you faxing me telling me that things weren't working out, oh gosh and I said what CHAPLIN HARPER CHAPLIN HARPER CHAPLIN HARPER CHAPLIN HARPER CHAPLIN HARPER; CHAPLIN - 29 - do you mean and they said oh he's just bad news and that was it and that's all I heard so, I don't know perhaps he did, perhaps he did know, a friend of, as I said to you and I faxed you a friend of mine from the Tax office just going through writing off losses and she was saying that there's a couple that she, two cases where she knew the people had invested in a computer company. Like us the same kind of thing. Same kind of thing and they'd lost of their money because what they do is they apply for a, what did they apply for it, 1t's got a name for it, when you, when you've lost all your money and you know you've lost all your money, right you apply for some kind of a tax relief or something. Or something like that yeah. Something like that and she said look two people in different States. This 1s just not even in the ACT. No this was in England, no, no not in the ACT they had anvested in a computer company in England. Oh right no but the people aren't Canberra people. No, no, no. Because you see that's what I would like I'd like to if there are other people who have had dealings with Terry you know I'd be very interested in knowing. Yeah, well this it, I mean to say You know, because I mean if they've had the same experience that we've had, you know, I mean maybe together we can just put a bit more pressure on Terry, you know because I mean Terry is the person who's got that contact, you know, with Vin, you know unless he's in cahoots with Vin, you see, now you see and that's what I, HARPER CHAPLIN HARPER CHAPLIN HARPER CHAPLIN HARPER CHAPLIN HARPER CHAPLIN HARPER CHAPLIN - 30 - that's why I've got a big well I mean it's a lot of money isn't it. Well it 1s yes, but people can gamble that sort of money away and then where do they get it from. Yeah, you remember that Terry went across to England Yes. when that money was transferred he went across to England Oh did he. to make sure that the money was there and then he, and then Chris went afterwards, Chris went at the end of the June, the money went at the beginning of June I think, and he went across there and Oh yeah I didn't know he went across then I remember you saying he'd come across to sort things out, and he'd met .. Oh that was in, that was later, that was in December when yeah, and he was flying, yeah, no but, when the whole transaction went, Oh yeah. went through right he went, he went over and his excuse was I'll go and check and make sure the monies arrived, a large sum of money and you wanta be sure that it's there and it arrived okay and then when Chris actually got there, you know, he was rushing off to go to Hong Kong or somewhere. That's right, that's right, yes that's right, that's right, because He was rushing off to go to Hong Kong and, and, and so what I think, I mean 1f he was part of this, this con then he was arranging with Vin at that time what to do with those funds, right and maybe set up his own bank - 31 - account or whatever or he already had his own bank, because I, I don't believe we're the first. I think there are other people that have been involved before right and I think he's already had. HARPER The comment that I've got about Terry BARKER when I mentioned his name ina group of people I get the feeling that he's lost people money before. CHAPLIN Yeah, yeah, I think so. HARPER People have lost money with Terry, he's a bad name as far as accounting goes and be crooked investments or something. Surely I mean to say it seems incredible that all the money, you know does it really even if they say look we'll give you half now we sort of fob you off with the rest but CHAPLIN Yeah, yeah HARPER Its odd isn't it. CHAPLIN Well I think, I think also that Terry would've said something like you know, oh well you know you play with Ellen because she's a bit of a softee or you know, and you talk with Ellen because I remember that meeting that I had with Vin he insisted that Chris not go to it." "Vin" is Mr. Hillsdon, "Terry" 1s Mr. Barker, "Robert" is Mr. Campbell, "Ellen" is Mrs. Chaplin and "Chris" is Mr. Chaplin. Uncontradicted evidence had been adduced of Mr. Barker's good character. The suggestions in the conversation I have quoted that he had been "a terrible gambler" and that he had been connected with other instances of dealings with "a computer company" in England which resulted in heavy financial loss by Australian taxpayers and that "he's a bad name as far - 32 - as accounting goes and be crooked investments or something" and that he might himself have retained some of the money sent to Hillsdon, in collusion with Hillsdon, are highly prejudicial. Counsel for the Crown relied on an observation by Kirby A.C.J., in which Campbell and Studdert JJ. agreed, that "the extracurial information must be on a 'vital' or at least important issue before discharge is required" (f.C. Domican (No. 3) 46 A.Cr.R. 428 at 448). It was submitted that, because the Crown case was that Mr. Hillisdon had retained the money which the Chaplins had put under his control and that Mr. Barker had not expected or desired that outcome, there was no 21ssue concerning Mr. Barker's involvement in the failure of the Chaplins to recover their money. It was further submitted that, because in documents which were in evidence Mrs. Chaplin had suggested that Mr. Barker was co-operating with Mr. Hilisdon to prevent the return of the money to the Chaplins, the suggestions to that effect in exhibit LL would not have significantly influenced the jury. In the same way it was said that Mr. Barker's gambling proclivities and his involvement in other transactions in which losses had been sustained did not bear Significantly on the jury's resolution of the issues joined between Mr. Barker and the Crown. , These submissions cannot be accepted. Mr. Barker's good character, particularly in relation to his professional activities, was likely to be of substantial weight in the jury's deliberations. To have that character impugned, in - 33 - relation only to the transactions the subjects of the charges he faced, by Mrs. Chaplin, a confessed criminal with an obvious motive to impugn his character, was a relatively minor disadvantage. To have his character impugned by apparently disinterested strangers, according to the statements made by another accused to Mrs. Chaplin, was a very grave disadvantage, and one likely to have an influence on the jury's resolution of each issue joined between him and the Crown. In respect of each verdict of guilty against Mr. Barker we cannot be satisfied that the jury would have returned the same verdict if the conversation we have quoted had not been brought to the jury's attention. And we cannot be satisfied that the conversation was not brought to their attention. Accordingly we are of the opinion that those verdicts should be set aside. Exhibit BQ is a transcript of a recording of questioning of Mr. Barker by an investigating police officer. The parts ruled inadmissible - and therefore edited out of the jurors' copies of the transcript - contain questions which might be thought tendentious and connotative of the questioner's disbelief of some of Mr. Barker's answers. But an the context of the whole of the evidence those excluded parts could not, we are satisfied, have affected a juror's verdict. No party suggested, nor could it be thought, that a juror's verdict might have been affected by his reading the excluded part of exhibit KK. In the case of Mr. Campbell and Mrs. Harper we are Satisfied that the same verdict against each of them would have been returned if the jurors had seen none of the excluded Material. Accordingly there was in our opinion no miscarriage of justice in relation to either verdict by reason of the presence of the excluded material in the jury room. It was submitted that, Mrs. Harper and Mr. Campbell being man and wife, the excluded part of exhibit LL suggested that they both knew that Mr. Barker's reputation was flawed when Mr. Campbell was co-operating with Mr. Barker in the preparation of the agreement with Teckvest. But the statements of Mrs. Harper in the excluded part of the exhibit indicate that she first heard remarks denigratory of Mr. Barker's reputation after the agreement had been prepared. With each of the appellants separately Mrs. Chaplin had a conversation which was recorded without the knowledge or consent of the appellant. At the time of each conversation the appellant had not been charged with any offence and had not been warned that he or she was under no oblagation to answer questions relating to any of the transactions concerning which the counts in the indictment were subsequently laid. During each conversation Mrs. Chaplin sought to elicit from the appellant statements tending to show that appellant's complicity in one or more of the offences subsequently charged against that appellant. On each occasion - 35 - Mrs. Chaplin had concealed in her clothing a device, supplied by members of the Australian Federal Police, which transmitted signals to nearby equipment by which the conversation was recorded. The equipment was operated by members of the Australian Federal Police. The recording of each conversation was admitted into evidence and was played to the jury. A transcript of each recording was admitted into evidence. At the time of each recording the following provisions of the Australian Federal Police Act 1979 were in force: "12F. (1) It is unlawful for an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless: (a) the official is the speaker of the words or 1S a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or (b) the official listens to or records the words with the consent, express or implied, of a person who is permitted by paragraph (a) to listen to or record the words; or (c) 1f the general offence concerned is a class 1 general offence or a class 2 general offence - the official does so in accordance with a warrant under section 12G and the provisions of this Division. (2) It is unlawful for a person acting by arrangement with an official to use, for the purposes of general offence inquiries that are being made by members, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless the first-mentioned person is the speaker of the words or 1s a person, or is included in a class or group of persons, by whom the speaker - 36 - of the words intends, or should reasonably expect, the words to be heard. (3) It 1s the duty of the Commissioner to take reasonable steps to ensure' that subsections (1) and (2) are not contravened by officials. (4) Despite any law of a State or Territory: (a) an official does not act unlawfully merely because the official uses a listening device as mentioned in subsection (1) un circumstances to which paragraph (1) (a), (b) or (c) as applicable; and (b) a person acting by arrangement with an official does not act unlawfully merely because the person uses a _ listening device as mentioned in subsection (2) in circumstances in which the use of the device is not declared to be unlawful by that subsection." Section 12F was in Division 2 of Part II of the Act. The word "official" was defined in s.12B to comprehend, an that Division, a member of the Australian Federal Police. The expression "general offence" was defined in s.12B to mean, in that Division: "(a) an offence against a law of the Commonwealth that is not a customs narcotics offence; or (b) an offence against a law of the Australian Capital Territory." The expression "general offence enquiries" was defined in s.12B to mean, in that Division - "(a) anquiries in relation to a general offence - 37 - that has been committed or 1S reasonably suspected of having been committed; or (b) if there are circumstances reasonably giving rise to the suspicion that a general offence is likely to be committed - aunquiries in relation to the likely commission of the offence." The expression "listening device" was defined in s.12B to mean, in that Division: "any instrument, device or equipment capable of being used, whether alone or in conjunction with any other instrument, device or equipment, to record or listen to spoken words." The expression "class 1 general offence" and the expression "class 2 general offence" were given by s.12B meanings, in the Division, within which none of the offences charged in the andictment fell. Section 12G empowered certain judges to authorise by warrant members of the Australian Federal Police and certain staff members of the Australian Federal Police to use a listening device in relation to a particular person or particular premises if satisfied of specified circumstances relating to a class 1 general offence or to a class 2 general offence suspected of having been committed, or of being likely to be committed. The use by members of the Australian Federal Police of the equipment which recorded the words spoken by each appellant was in our opinion unlawful, by reason of the operation of sub-section 12F(1). The official using the - 38 - recording equipment to which the device used by Mrs. Chaplin was transmitting was using, for the purposes of general offence inquiries that were then being made by members of the Australian Federal Police, equipment capable of being used, in conjunction with another device, to record spoken words for the purpose of recording words while they were being spoken by the appellant. The official was neither the speaker of the words nor a person by whom the appellant intended, or should reasonably have expected, the words to be heard, nor was the official included in a class or group of persons the subject of any such an intention or expectation. And the official did not record the words with the consent of a person who was permitted by paragraph 12F(1)(a) to listen to or record the words. The official had Mrs. Chaplin's consent. But she was not an official. Paragraph 12F(1)(a) operates only to permit an official to listen to or record words. Paragraph 12F(1)(c) did not apply : none of the general offences the subject of inquiry was a class 1 general offence or a class 2 general offence. Sub-section 12F(2) did not in our opinion make unlawful Mrs. Chaplin's use of the device she concealed about her on each occasion. On each occasion she was acting by arrangement with an official to use, for the purpose of general offence inquiries that were being made by members of the Australian Federal Police, a device capable of being used, an conjunction with other equipment, to record spoken words, for the purpose of recording words while they were being - 39 - spoken by an appellant, but she was a person by whom that appellant intended those words to be heard, by direct aural reception face to face. It was a ground of the appeal by each appellant that evidence of the recording of each conversation should have been excluded, by exercise of the learned trial judge's discretionary power to exclude relevant evidence. Not only had the recording contravened s.12F(1), but also other improprieties had attended the recording of the conversations, 1t was submitted by counsel for each appellant. In each case Mrs. Chaplin had entered the premises on which the recording was made as a trespasser, it was submitted. In the case of Mr. Barker and in the case of Mr. Campbell the premises entered by Mrs. Chaplin were those in which each appellant respectively carried on his professional work. As a client of each man she had implied permission to enter the premises for the purpose of carrying on that relationship. But it was submitted that because she entered for a purpose wholly alien to the limited permission which had been given her, she stood in no better position than a person who entered with no authority at all. We do not accept the submission. The authority Mrs. Chaplin had to enter was limited to entry for the purpose of Carrying on the professional relationship between herself and her adviser. And that 1s in our opinion what she did while she was on the premises. She discussed with each adviser - 40 - aspects of transactions in relation to which advice and information by the adviser had previously been sought, and was sought again during the conversation which she was causing to be recorded. With Mr. Campbell she discussed also the commercial transaction which is the subject of the fifth count and to which Mr. Campbell was a party. Her permission to enter the premises where he worked no doubt extended to entry for the purpose of dascussing the performance of that transaction. The circumstances that she was merely pretending an interest in the adviser's advice and that she had the untention when she entered of recording a conversation which she would so guide that her interlocutor would, as she hoped, make admissions of his criminal conduct, do not in our opinion make her entry trespassory. "An entry by a person which is within the scope of a permission given by the person in lawful possession iS not a trespass. If a particular entry by a person who has a valid permission to enter is not covered by the permission, 1t must be that the permission is relevantly lamited at least to the extent necessary to exclude that entry +++. Strang v. Russel (1905) 25 N.Z.L.R. 916 was an action for trespass to land. The defendant claimed that he had a legal right to enter upon the plaintiff's lagoon and that he had entered upon it in pursuance of that right. He also claimed that he had the plaintiff's implied permission to enter upon the lagoon. It was held that his entry, not in pursuance of any such implied permission but in pursuance of his own asserted legal right and with the intention of contesting the plaintiff's title, was trespassory. The case would appear to - 41 - support the general proposition that, notwithstanding that a person has the general permission of the occupier to enter premises, he will enter as a trespasser if he intends to enter not 2n pursuance of that permission but in pursuance of some unfounded claim of andependent right. In our view, that general proposition is not supported by authority or principle and is not good law. We agree with Professor Street (Law of Torts, 6th ed. (1976) p. 75) that Strang is inconsistent with the decision in Byrne v. Kinematrograph Renters Society Ltd. [1958] 1 W.L.R. 762 - where it was held that entry by a licensee for a purpose alien to the purpose contemplated by the licensor did not render the entry trespassory - and was wrongly decided. Unless the consent to enter is limited by reference to purpose, an entry which is otherwise lawful does not become trespassory because it is effected for a purpose of which the person giving the consent is ignorant and of which he would not have approved" : Barker _v. The Queen (1983) 153 C.L.R. 338 at 360, 358-359 (per Brennan and Deane JJ.) In that case the High Court was concerned to interpret a criminal statute which interdicted entering a building "as a trespasser". Consideration was given to the common law concept of trespass in elucidation of the phrase "as a trespasser". Mason J. observed (153 C.L.R. at 347) : "Another possible area of operation of [that phrase] is to exclude those who enter premises with intent to steal but also with another intention within the scope of their licénce to enter. A person cannot be at the same time a trespasser and a non- trespasser in respect of the same land (Healing (Sales) Pty. - 42 - Ltd. v. Inglis Elextrix Pty. Ltd. (1968) 121 C.L.R., at p. 606, per Kitto J.: see also, per Barwick C.J. and Menzies J. (1968) 121 C.L.R., at pp. 598-599). If a person enters premises for a purpose which 1s within the scope of his authority his entry is authorized; it is not made unlawful because he enters with another and alien purpose in mind. The performance of acts with a view to the attainment of that alien purpose does not relate back to his entry so as to endow 1t with a trespassory character. It is hardly to the point to say that the licensor would not have given that licence, had he known the alien intention of the licensee. It is the effect of the licence actually given that is decisive". In Byrne v. Kinematograph Renters Society Ltd., supra investigators entered a cinema theatre as persons paying for the right to view a film, but their real purpose was to count the number of patrons present in the theatre, with a view to discovering understatement of that number by the exhibitor of the film, whose obligation of payment to the distributor of the film was proportioned to the number of persons who viewed the film. Harman J. observed ([1958] 1 W.L.R. at 776): "It was argued that the twenty-three visits of Pinder or Lewis and their assistants to the County Cinema which I have described were all acts of trespass because they went into the cinema not for the purpose for which alone the public was invited to enter but for a different purpose, namely, to obtain evidence against the plaintiff. I cannot think there is anything in this point. The cinema was open to the public who were invited to go in and take tickets, and this 1s what Pinder and Lewis and their assistants did. Their motives in taking the tickets are, I think, immaterial from this point of view. They did nothing they were not - 43 - invited to do, and in my judgment it cannot be said that because they may not have wished to see the performance but were merely interested aun the numbers on the tackets or in counting the number of patrons they committed acts of trespass". Like the investigators sitting in the theatre pretending to be patrons watching, or waiting to watch, the film, Mrs. Chaplin was playing a role while she conversed with each of Mr. Barker and Mr. Campbell. And she entered the premises, like the anvestigators, with the intention of playing that role, but for another purpose. Her licence was limited, as theirs was, to entry for the purpose which she pretended to carry out. What she said and what she heard said during the conversation were within the scope of the licence she had to enter. That she carried on the conversation for a purpose other than that which the licensor believed that she had does not in our opinion make her entry a trespass. The conversation between Mrs. Chaplin and Mrs. Harper which was recorded took place in a public restaurant, which they were then patronising as customers. In our opinion Mrs. Chaplin's entry on those premises pursuant to. the proprietor's licence to enter for the purpose of there consuming food and drink supplied by the licensor was not rendered trespassory by reason of her intention to use the device she carried to record her conversation with another customer, Mrs. Harper. Reliance was placed by counsel for the appellants on - 44 - the decision of the High Court in Coco v. R. (1994) 120 A.L.R. 415. In that case police who entered factory premises in order to install therein listening devices relied on the authority conferred on them to do so by a warrant to enter for that purpose, purportedly granted under a Queensland statute. The High Court held that the statute conferred no power to grant such a warrant. Those who entered did not disclose to anybody connected with the factory premises that they had the warrant. They impersonated Telecom employees in order to gain the licence of the person in possession to enter, and then falsely claimed to that person's employees that they had come to investigate a fault in telephone lines. Such an entry is plainly trespassory and the case does not assist the appellants' submissions. On the voir dire to determine the admissibility of the recordings the member of the Australian Federal Police who was investigating the transactions which later became the subjects of the indictment, Detective Sergeant Pattenden, gave evidence that if he had, on the day when the recordings were made, questioned either Mr. Campbell or Mrs. Harper, he would have been obliged first to caution that person. He was not asked whether that would have been his belief concerning questioning by him of Mr. Barker on that day, but it is apparent from other evidence that Sergeant Pattenden had on that day material justifying a suspicion, as to Mr. Barker's complicity in the commission of the offences Mrs. Chaplin had admitted, just as strong as his suspicion of the complicity of - 45 - Mr. Campbell and Mrs. Harper. By anciting Mrs. Chaplin to speak to each appellant in the hope that, if that appellant were party to the commission of such an offence, his or her responses would inculpate him or her, Sergeant Pattenden had evaded the requirement of a caution and effected an entrapment of the appellant into giving up his right to silence by persuading Mrs. Chaplin to act as an agent of the Australian Federal Police, it was submitted. Those circumstances should have attracted the exercise by the learned trial judge of his discretionary power to exclude evidence of the recordings, counsel for the appellants submitted. Neither the learned trial judge nor this court was referred by counsel to the judgment of Cox J. in R. v. Pfennig No. 1) (1992) 57 S.A.S.R. 507. In that case Mr. Pfennig had been charged with the murder of a child after he had on two occasions declined to answer questions the police wished to ask him while he was in prison awaiting trial of another charge. On each occasion Mr. Pfennig's solicitor was present and the solicitor subsequently sent the police a letter confirming his client's decision not to answer questions. Thereafter police procured another man awaiting trial in the prison to befriend Mr. Pfennig and to seek to learn from Mr. Pfennig whether he had killed the chald. The other man, Mr. Rose-Royal, succeeded in eliciting inculpatory admissions by Mr. Pfennig, "in response", Cox J. observed, "to Rose-Royal's questions and tendentious observations and expressions of solicitude". Evidence of those admissions was excluded. Cox - 46 - J. observed (57 S.A.S.R. at 514-515): "So this was a clear and familiar case of a man being charged with a serious crime and making 1t very plain to the police that he was refusing to answer any questions about the Matter. No doubt the police could always have asked the accused to reconsider his refusal, notifying his solicitor beforehand so that he could be present, but short of that they were obliged to respect his wishes' scrupulously. Detective Howells, fully aware of this, sought to circumvent the clearly understood legal position by insinuating Rose-Royal into the accused's confidence at the Remand Centre so that Rose-Royal could ask the questions that the police themselves were not allowed to ask. The police really made Rose-Royal their agent and his informal interrogation of the accused on behalf of the police comes under the same condemnation as a formal interrogation by the police themselves would have attracted. In my Opinion it must suffer the same fate and be excluded as evidence unfairly obtained. Ms Vanstone argued that Rose-Royal's overtures unvolved no inducement or threat or illegality; nor 1s there anything improper about one prisoner giving evidence of a conversation he had with another. Furthermore, some of the accused's alleged statements were volunteered. I do not think these considerations do anything to save the evidence. The police set a trap for the accused of an impermissible kind. Any volunteered statements were interspersed with Rose-Royal's questions and suggestions = and deceptions. It is as though the police, faced with a plain refusal to answer, sent in an undercover police officer in disguise to interrogate the accused or otherwise inveigle him into making admissions. Anything said in response to such a stratagem in the circumstances described would have to be ruled inadmissible, and the result here must be the same. The eavesdropping cases, such as R v Mills {1962} 1 WLR 1152 and R v Keeton (1970) 54 Cr App R 267, are distinguishable. There the police were simply putting themselves in a position to overhear the unguarded statements made by a suspect or defendant to someone else. There was no interrogation. The role of the police was quite passive." - 47 - The appellants had not been approached by the police on ox before 8 April 1991. If by arrangement with Mrs. Chaplin police had concealed themselves in her home or in some other place and had listened to such a conversation as she had on 8 April 1991 with each appellant, but carried on in her home or 1n that other place, evidence of what they heard would not in our opinion have been excluded on the ground that its reception would be unfair to the appellants by reason of that arrangement. She, having confessed her participation in crimes to which she alleged the appellants were also parties, permits the police to hear in concealment a conversation between herself and one of those she accuses of participation in the offences to which she has confessed. To take advantage of that permission does not in our opinion of itself produce the result that reception of evidence by the police of what they hear is unfair to that appellant. Nor, if the use of the listening devices in fact used had not been unlawful, would reception of evidence of the recording of what they heard have been unfair to an appellant, in our opinion. (Cf R. v. Stewart [1970] 1 W.L.R. 907; R. ve. Magsud Ali [1966] 1 Q.B. 688; R. v. Keeton (1970) 54 C.A.R. 267.) Mrs. Chaplin was, on her own admission to the police, guilty of serious crimes, and an accomplice of those she accused. The appellants were apparently respectable and intelligent persons unlikely to be overborne by Mrs. Chaplin in conversation. There were strong reasons in favour of the investigative steps which the police proposed to her and which she co-operated in carrying out on 8 -~ 4g - April 1981. If she treated any of the appellants unfairly in conversation, what she said would be recorded, the police knew. Our conclusion is that reception of the recordings into evidence worked no unfairness to the appellants. It was a separate ground of objection to the reception of the recordings that they record much tendentious assertion by Mrs. Chaplin of what the transactions were in which the appellants were involved and that they record also much that as of doubtful significance in the appellants' responses and comments. It was submitted that the prejudicial tendency of the recordings outweighed their probative value. The jury were to hear Mrs. Chaplin give evidence of the transactions discussed in the recordings, and to hear her sustained cross-examination. In those circumstances it 1s in our opinion unlikely that her recorded assertions would be allowed by the jury a weight they did not have. The jury were warned that only the responses of the appellants had evidentiary value, not the assertions of Mrs. Chaplin. In our opinion the objection on that ground could not be sustained. There remains the circumstance that the recording of the conversations was unlawful. The evidence was very strong indeed that Sergeant Pattenden and his superiors believed that what was done was not unlawful. They can hardly be criticised for forming such a belief : 1t was shared by the learned trial judge who carefully considered the proper construction of -~ 49 - s.12F, and on his construction the recording of the conversations was lawful. Mr. Pattenden had followed the administrative procedures observed by the Australian Federal Police in using listening devices at that time and he had the permission of his superiors to do what he did. In Bunning v. Cross (1978) 141 C.L.R. 54 at 77-78 Stephen and Aickin JJ. observed: "The liberty of the subject 18 in increasing need of protections as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts could result in the effective abrogation of the legislature's safeguards of andividual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be 'a less evil that some criminals should escape than that the Government should play an ignoble part' - per Holmes J. in Olmstead v. United States (1927) 277 U.S. 438, at p.470 [72 Law.Ed. 944 at p.953]. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it 1s to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is ain upholding the law." It cannot be said that this "non-compliance with statutory - 50 - safeguards" was "isolated" +: 1t appears that the construction of s.12F which the Australian Federal Police adopted, and which the learned trial judge endorsed, was not first worked out in connection with this case, but was in April 1991 settled doctrine. It was, however, a doctrine bona fide formulated. The circumstances were not in our opinion such as to call for exclusion of the evidence because of the unlawfulness of the conduct by means of which it was obtained. Before she had had any communication with the police about any of the transactions to which the indictment relates Mrs. Chaplin recorded in England a telephone conversation between herself and Mr. Barker without his knowledge or consent. Later she delivered to the Australian Federal Police the audio tape by which the conversation was recorded and the tape was received in evidence, as was a transcript of the recording. In support of his objection to their reception - and on appeal ~- counsel for Mr. Barker submitted that the making of the recording contravened s.1 of the English Interception of Communications Act 1985, which relevantly provided: ",.. a person who intentionally intercepts a communication in the course of its transmission --» by means of a public telecommunication system shall be guilty of an offence ..." The word "intercepts" was not at the material time defined in the English Act. The evidence showed no more than that a recording device was attached to the telephone into which Mrs. - 51 ~ Chaplin was speaking and the device 'in turn was attached to a tape recorder. It did not appear whether the device received electromagnetic pulses from the telephone system or the sound waves emitted from the earpiece and from Mrs. Chaplin's mouth. If the device received sound waves there was yet interception, at was submitted by counsel for Mr. Barker, within the ordinary meaning of that word and also within the meaning of that word in s.6 of the felecommunications (Interception) Act 1979 (Cth). In this country there are conflicting judicial opinions as to whether the recording of sound waves emitted from the earpiece of a telephone constitutes the recording of a communication "in its passage over" a telecommunications system, within the meaning of that phrase in that section : see 7. v. The Medical Board of South Australia (1992) 58 S.A.S.R. 382; R. v. Edelsten (1990) 21 N.S.W.L.R. 542; Edelsten vy. Investigating Committee (N.S.W.) (1986) 7 N.S.W.L.R. 222; Re. v. Oliver (1984) 57 A.L.R. 543; R. Vv. Curran and Torney (1983] 2 V.R. 133; R. v. Miglorini (1982) 38 A.L.R. 356; Miller v. Miller (1978) 141 C.L.R. 269. The learned trial judge favoured those opinions which excluded sounds recorded after emission from the earpiece from the application of s.6 and gave to the word "intercepts" in the English Act a construction which also excluded such sounds. His conclusion was that it had not been shown that Mrs. Chaplin's recording of the telephone conversation had contravened English law. The light which a construction of s.6 of the Telecommunications (Interception) Act 1979 (Cth) would throw on the meaning of the word "intercepts" in the English Act might prove to be quite oblique : s.6 expounds, if it does not in terms define, the meaning of the word by reference to phrases with which the word 1s in collocation in that section, but those phrases are not found in the English section. We prefer to assume, without expressing any opinion, that Mrs. Chaplin contravened s.1l of the Interception of Communications Act 1985 and to consider whether reception of the evidence which the recording affords should be denied because the evidence was unlawfully obtained. The passage already quoted from Bunning Vv. Cross, supra indicates the major considerations influencing the exercise of the power to exclude such evidence. In another passage (141 C.L.R. at 74) Stephen and Aickin JJ. summarised those considerations thus : "the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law". Mrs. Chaplin had in England no role in enforcing the law. She was on her own admission a criminal seeking to protect her own interests by obtaining recorded statements by one she claims to have been her accomplice, for use in such circumstances as later events might suggest. The recording was not made with a view to its use in criminal proceedings. - 53 - She no doubt hoped it would never come to that. Later events persuaded her to make the recording available to the Australian Federal Police. Neither the Australian Federal Police nor the Director of Public Prosecutions had had any hand in the making of the recording. No occasion in our opinion arose for the exercise of the discretionary power to exclude the recording from evidence because it had been illegally made. Mrs. Chaplin had in England recorded another conversation to which she and Mr. Barker were parties, held in the lobby of a hotel. It was submitted that reception into evidence of that recording resulted in unfairness to Mr. Barker because Mrs. Chaplin and her English solicitor suggested during that conversation that Mr. Barker might be co-operating with Mr. Hillsdon to deny Mr. and Mrs. Chaplin payment of the money Hilisdon had been holding for them. A reading of the transcript of the recording does not in our opinion support the submission. We found no such a suggestion. It was a ground of appeal by Mr. Barker that the learned trial judge had erred in failing to discharge the jury without verdict on the counts laid against him in the indictment when certain unresponsive answers to questions were given by Sergeant Pattenden, which it was said included an anadmissible and prejudicial statement that Mr. Barker had engaged in transactions with Mr. Hillsdon, unconnected with - 54 - the charges in the indictment, which were dishonest or dishonourable. Since the verdicts against Mr. Barker are to be set aside on another ground it is unnecessary to consider this ground. The evidence of certain witnesses -~ Burgess and Curtis - was the subject of a ground of appeal : the learned trial judge was said to have erred in admitting the evidence because the prejudicial effect of the evidence was great and uts probative significance slight. We are not persuaded that the learned judge erred. But we express no concluded view. A judge called upon to preside at any new trial should in our opinion be left free to consider any application in respect of the evidence of those witnesses in the context of the case then being advanced by the Crown, unembarrassed by observations by this court made in the context of the case for the Crown in the first trial. There were grounds of Mr. Barker's appeal which challenged the correctness and adequacy of the learned trial judge's charge to the jury. It is unnecessary to express any conclusion about those grounds. There were grounds of Mr. Barker's appeal which suggested in respect of each count of which he was convicted that the verdict was unsafe and unsatisfactory or that it was against the weight of evidence. There was in our opinion no substance in any of those grounds, or in a ground of appeal against Mr. Barker's conviction on the second count "that there was no evidence upon which the jury might conclude that - 55 - the accused Barker between the dates specified in the indictment was part of a common purpose to defraud the Australian Tax Office by deceiving it as to the true nature of the transaction involving the sale of pink Argyle diamonds to Vincent Anthony Hillsdon". The fifth count of the andictment, upon which alone the appellants Mr. Campbell and Mrs. Harper were convicted, was in these terms: "And further that Janice Doreen June Harper and Robert George Campbell, together with Ellen Elizabeth Chaplin and Christopher John Chaplin, in the Australian Capital Territory and elsewhere between 1 July 1989 and 18 February 1991 defrauded the Commonwealth by deceiving the Australian Taxation Office as to the true total price payable by Dyskrip Pty Ltd to Precious Jewellers (Canberra) Pty Ltd under a contract for the purchase of the goodwill, furnishings and chattels and business name of the business known as Precious Jewellers, wherein Janice Doreen June Harper and Robert George Campbell were the guarantors of Dyskrip Pty Ltd." Immediately before the Crown case closed the Crown was allowed to amend that count so that it read: "And Further that Janice Doreen June Harper and Robert George Campbell, together with Ellen Elizabeth Chaplin and Christopher John Chaplin, in the Australian Capital Territory and elsewhere between 1 July 1989 and 18 February 1991 defrauded the Commonwealth by concealing the true total price payable for the purchase of the stock of the business known as Precious Jewellers in Manuka in the said Territory as at 1 July 1989 pursuant to an arrangement between Ellen Elizabeth Chaplin and Janice Doreen June Harper with the intentaon of deceiving the - 56 - Australian Taxation Office." It was a ground of the appeal of each of those appellants that the learned trial judge had erred in allowing the amendment. It was a further ground of both appeals that the learned trial judge failed to direct the jury correctly as to the constituent elements of the offence charged in the fifth count. There waS in evidence an agreement under seal to which Precious Jewelers (Canberra) Pty. Ltd. ("Precious"), Dyskrip Pty. Ltd. ("Dyskrip") and Mr. Campbell and Mrs. Harper were parties. Precious was owned by Mr. and Mrs. Chaplin. Dyskrip was owned by Mr. Campbell and Mrs. Harper. The agreement provided for sale by Precious to Dyskrip of the goodwill and business name of the jewelry business carried on by Precious in style Arcade at Manuka, and specified plant, equipment, fixtures and chattels used in the business, for $100,000. The agreement provided also for sale of all stock in trade in the shop. The price of what is called "the floor stock and loose gems" is agreed to be "one half the ticketed retail price" of those chattels and the price of what is called "the findings and precious metals" is agreed to be the invoice cost of those chattels. The trading stock of the business as at the date the agreement bore, 1 July 1989, and as at the date on which the agreement provided that completion of the sale should be effected, 30 June 1989 (sic), stood in the books of account which were used for the purpose of income - 57 - tax returns at $139,000. But the "ticketed retail price" of the trading stock in the shop at that time in fact aggregated much more than a million dollars, according to the Crown case. The Crown case was that an oral agreement between Mrs. Chaplin and Mrs. Harper had been made that about $800,000 would be paid to Mr. and Mrs. Chaplin by instalments over several years for the stock, and that those payments would be falsely represented to the A.T.O. as made in consideration of consultancy services to be provided by the Chaplins in relation to the conduct of the jewelry business after its sale to Dyskrip. Evidence was adduced which was calculated to lead to the conclusion that Mr. Campbell had represented the agreement of 1 July 1989 to the A.T.O. as comprehending stock for which $139,000 and no more was paid, and to the conclusion that both he and Mrs. Harper well knew that they were in fact to pay - and did in fact pay over a period - about $800,000 for that stock, and not as a reward for any advice or consultancy services provided to them by the Chaplins. The amendment of the fifth count was explained by counsel for the Crown at trial as designed to brang that count unto conformity with evidence suggestive of the conclusion that when the written agreement dated 1 July 1989, for the sale of the Manuka jewelry business to Dyskrip, was made the property in the stock of the business had already passed from Precious to Mr. and Mrs. Chaplin. Counsel for the Crown applied in the alternative for leave to amend the fifth count by anserting into the description of what was contracted to be - 58 - sold a reference to the stock. The omission of reference to stock in the original fifth count was an obvious slip, on which counsel for the appellants did not place any reliance. Counsel for Mrs. Harper and Mr. Campbell submitted that to substitute a count intended to comprehend a sale of stock by the Chaplins would be to face their clients with a quite different charge. Counsel for the appellants had proposed, they said, to seek a directed verdict of acquittal on the fifth count if it had not been amended. It was impossible, they said, for Precious to sell stock if it had none. Therefore, it was said, there could be no conviction on the original fifth count. This conception of the case comprehended by the original fifth count is in our opinion erroneous. Each company named in the original fifth count was wholly owned by two natural persons, the Chaplins in the one case and the two appellants in the other. Each pair of natural persons had the Capacity to cause the written agreement to be performed and, on any view of the evidence, that is what each pair did. The amendment of the fifth count changed the case facing the appellants not one whit. The question remained, as it had always been, what was the total price payable under the written agreement; and, since only the stock lacked a specified money price in that agreement, the question was what was payable in respect of the stock. It was said that counsel had framed their cross- - 59 - examination of Crown witnesses, and had been influenced in taking, or abstaining from, objection to the reception of documents into evidence, by their perception of the constituent elements of the offence charged in the original fafth count. But we were not able to perceive that either appellant had been thereby deprived of any forensic opportunity to advance his or her case. In our opinion the learned trial judge did not err in granting the amendment. The learned trial judge included in his charge to the jury the following directions: "To defraud ordinarily means to deprive a person dashonestly of something which is his, or of something to which he is, or would, or might, but for the perpetration of the fraud, be entitled. The means of defrauding may be by deceit, or as is charged in the amended 5th count, by concealing. To deceive is to induce a man to believe that a thing is true when it 1s false and which the person practising the deceit knows, or believes to be false. The means of defrauding does not always involve deceit but we are not here concerned with other sorts of circumstances of defrauding otherwise than by deceit or concealment." ey eT | "{I]n the fifth count the means of defrauding the Commonwealth, as I say, 18 not by deceiving but by a different means, namely, concealing the true total price for the - payable for the purchase of the stock of the business known as Precious Jewellers. For the purposes of those counts the Crown does not, in order to establish, in relation to any count that the Commonwealth was defrauded, does not have to demonstrate that actual loss was suffered. If the deceit which the particular accused employed imperilled the economic interest of the Commonwealth, that 1s sufficient to constitute fraud. Put another - 60 - way, where a person intends by deceit or concealment to induce a course of conduct in another which puts that other's economic unterest in jeopardy he 1s guilty of fraud even though he does not intend or desire the actual loss should ultimately be suffered. We do not have complicated issues of fact in that respect and it is not suggested that if the Crown case, the version of the facts relied upon by the Crown 1s established in relation to those counts that it does not amount to defraud by deceit or by concealment, nor is it seriously put, as I understand it, that the economic interests of the Commonwealth, namely, to ensure that the Chaplins paid the correct amount of tax, whether by income tax in penalties or sales tax, it is not contended that the economic interest was not at least imperilled and as the Crown put to you I think this morning in fact the proper tax totalling 3.8 million but reduced to 2 million by negotiation has still not been paid, the full amount has still not been paid and indeed that 1s the evidence of Mrs Chaplin." se ee wees Come ee rere ener ere rere eeere rere nernone "The means by which the defrauding was carried out 1s an allegation of concealing the true total price payable for the purchase of the stock with the aintention of deceiving the Australian Taxation Office. There again the defrauding is the affecting, or imperilling the Commonwealth's interest in the correct amount of tax being paid and in ensuring that the Chaplin's pool of assets was fully revealed, because that is the pool to which the Taxation Department was seeking to have access for the purpose of considering the settlement of the objections i1n respect of the notices of assessment for 3.8 million." The last sentence has reference to an agreement made in September 1989 between the A.T.O. and the Chaplins. The amended assessments made by the A.T.O. of income tax payable by the Chaplins had brought into existence debts due to the Commonwealth which aggregated about $3,800,000. At a meeting on 4 September 1989 between representatives of the A.T.O. and - 61 - of the Chaplins, including Mr. Campbell, representations were made as to what the assets of the Chaplins were and as to how much they could afford to pay in respect of their income tax liabilities. The A.T.O. agreed to accept $2,000,000 in satisfaction of the debts aggregating $3,800,000, subject to the condition that no misrepresentation of the Chaplin's financial position should thereafter be discovered to have been made. At that meeting the Chaplins' representatives said that negotiations for the sale of the jewelry business were in train. Subsequently the A.T.O. was informed by Mr. Campbell that a sale had been effected, and that the price for the stock had been $139,000. Payments were made to the A.T.O. in reduction of the Chaplins' debt on the basis that instalments of that price for stock had been progressively received. The criticism of the judge's statement of the constituent elements of the fifth count rested originally on the contention that his Honour had failed to state that to show defrauding there must be proved an action or course of action by a person acting for the Commonwealth which the accused's deceit or concealment has induced that person to take and by which the Commonwealth has been injured. That contention was based upon the exposition in paragraph 2186 of Archbold (39th ed.) of the expression "antent to defraud" in the English Forgery Act 1913. In Wai Yu-tsang v. The Queen [1992] 1 A.C. 269 it was held sufficient to constitute a defrauding that a deceit, - 62 - and the same may be said of concealment, has caused the imperilment of the economic interest of the person deceived or, 1n the case of bodies corporate and polities, the economic interest of the body on behalf of which that person is acting. The Judicial Committee approved reasoning of the English Court of Appeal in R. v. Allsop (1976) 64 CR.A.R. 29 which included the following observations (64 CR.A.R. at 31, 32): "Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims 1s secondary to that purpose and incidental. It is 'intended' only in the sense that it 1s a contemplated outcome of the fraud that is perpetrated. If the deceit which is employed imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss. We see nothing in Lord Diplock's speech to suggest a different view. 'Economic loss' may be ephemeral and not lasting, or potential and not actual; but even a threat of financial prejudice while it exists it (sic) may be measured in terms of money." "Interests which are aimperilled are less valuable in terms of money than those same interests when they are secure and protected. Where a person intends by deceit to induce a course of conduct in another which puts that other's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should ultimately be suffered by that other in this context." The Supreme Court of Canada has also approved that reasoning : Reg. v. Olan (1978) 41 C.C.C. (2d) 145 at 150; Vezina v. The Queen (1986) 25 D.L.R. (4th) 82 at 96. Nor is it in our - 63 - opinion inconsistent with any authority binding on this court. In our opinion the learned trial judge's directions an xrelation to the required detriment were both legally correct and apt in reference to the circumstances which the evidence disclosed. At the time of the trial it was not possible to say with certainty that the Commonwealth would suffer economic loss in consequence of the concealment alleged an that count. It was possible that thereafter the Chaplins would be compelled to pay the whole of the aggregate debt of $3,800,000 together with interest thereon. But there could be no room for doubt that the concealment - if it had occurred as the Crown contended - had imperilled the economic interest of the Commonwealth. The thirty-ninth edition of Archbold, published in 1976, does not - as later editions do - cite R. v. Allsop Submissions founded on it faal to recognise the more recent expositions of the law relating to the concept of defrauding in statutory criminal law. It was a ground of the appeals of Mrs. Harper and Mr. Campbell that the learned trial judge had erred in refusing to admit into evidence a document stating the decisions of the Commissioner of Taxation on objections by Dyskrip and by Mrs. Harper and by Wylkone Pty. Ltd. against amended income tax assessments in respect of those three tax payers for each of the years ended 30 June 1990 and 30 June - 64 - 1991. The amended assessments had been made, according to oral evidence by an officer of the A.T.O. to which objection had not been taken, after the A.T.O. had formed the belief that payments made by Dyskrip to the Chaplins were not, as claimed by Dyskrip or Wylkone Pty. Ltd. in income tax returns, deductible consultancy fees, but instalments of the price of stock, and those amended assessments had not allowed the claimed deductions, according to that oral evidence. (Wylkone Pty. Ltd. was said to have been the person which had acquired from the Chaplins the property in the stock contracted to be sold to Dyskrip, which was said to have taken possession of the stock as bailee for sale on consignment. Wylkone Pty. Ltd. was wholly owned by Mrs. Harper and Mr. Campbell.) The decision of the Commissioner on the objections was to allow them. It was said that the document confirmed the conclusion, to which oral evidence by the officer of the A.T.O. had led, that the Commonwealth had not been defrauded because the Commissioner had in allowing the objections accepted the contention by Mrs. Harper and Mr. Campbell that consultancy services were the consideration for all the payments to the Chaplins in excess of the sums of $100,000 and $139,000, and had accepted that contention after hearing what Mrs. Harper, Mrs. Chaplin and Mr. Campbell had had to say to his officers on that question. No reference was made at trial or on the hearing of the appeal to s.177 of the Income Tax Assessment Act 1936 and no discussion took place concerning tender of the notices of - 65 - amended assessments which may be supposed to have been made to give effect to the Commissioner's decisions on the objections. That section may be left out of consideration. The question as to what the price was which the appellants and the Chaplins had agreed to pay for the stock was not one concerning which the belief or opinion of any other person was admissible. Whether proof of such a belief or opinion was offered from a document such as was tendered or by oral evidence, the belief was inadmissible. (CE. Hollington v. Hewthorn [1943] K.B. 587.) For reasons already given, the defrauding of the Commonwealth 1s effected by the imperi1lment of the Commonwealth's economic interest to secure payment of the correct amount of tax. Concealment, from the knowledge of the A.T.O., Of the fact that the Chaplins had among their assets in 1989 and 1990 the promise of Dyskrip to pay them more than $600.000, in addition to the $100,000 and the $139,000, plainly aimperilled the Commonwealth's interest to secure payment by the Chaplins of the $3,800,000 assessed, and later, after the meeting on 4 September 1989, payment by the Chaplins of $2,000,000. The rejection of the document by the learned trial judge was in our opinion correct. During the course of his submissions in reply Mr. - 66 - Crispin Q.C. who appeared with Mr. Donald for Mrs. Harper, raised a further deficiency he said the charge to the jury exhibited. There was no evidence that during the period within which count 5 alleged the commission of the offence - between 1 July 1989 and 18 February 1991 - Mrs. Harper had herself done anything to deceive the A.T.O. as to the price payable for the stock. There was evidence, Mr. Crispin submitted, to support a conclusion that, although when she bought the Manuka jewelry business Mrs. Harper thought that the price of $139,000 for stock was less than its value and that the price for the consultancy services was greater than those services would be worth, she did not believe that the aggregate of those two prices was greater than the value of what she would get, and that she was not told, nor was she aware, that another or others intended to defraud the A.T.O. by concealing from the A.T.O. the fact that more than $139,000 was being paid for the stock. In those circumstances, it was submitted, 1t was essential that the jury be given clearly to understand that they must be satisfied beyond reasonable doubt that Mrs. Harper had known, at the time she agreed to those two prices, that they were agreed in those amounts in order to facilitate concealment from the A.T.0. This the learned trial judge had failed to do, it was submitted. There was, in our opinion, very persuasive evidence that Mrs. Harper did know, when the sale was arranged, that the two prices had been set in order to facilitate deception of the A.T.O. In a letter to Mrs. Chaplin from Mrs. Harper - 67 - dated 9 January 1990 there 1s the following passage: "Robert has not settled with the ATO about the $14,000 yet. They know this is only until the $139,000 for stock is paid out, then there is the $100,000 due and as far as they know that 1s it - they do not know about the consultancy arrangement for the full amount." There was much other evidence tending to the same conclusion concerning Mrs. Harper's knowledge. In those circumstances we do not think the charge was inadequate. The directions given by the learned trial judge of course included a direction concerning the standard of proof. And his Honour did advert to the question as to whether Mrs. Harper knew that what were to be called payments for consultancy services were in fact payments for the stock. It was a ground of appeal raised by each of Mr. Campbell and Mrs. Harper that "the Trial Judge erred in not undicating to the Crown Prosecutor that Mr. Vanzwan should be called in the trial by the Crown". That statement of the ground was treated as raising the contention that the Crown's failure to call Mr. Vanzwan as a witness gave rise to a miscarriage of justice. Mr. Vanzwan was said to have been an employee of Touche Ross who prepared income tax returns of Precious Jewellers (Canberra) Pty. Ltd. and who was said to have been consulted by Mrs. Chaplin in relation to the sale of the jewelry business conducted by that company at Manuka which was - 68 - the subject of the fifth count. Evidence was elicited in cross-examination of Mrs. Chaplin to the effect that before the agreement for that sale was made Mr. Vanzwan had advised her to cause the company to sell the stock of that business to herself and her husband, and that she had accepted that advice, and that she believed that that sale had been effected. Counsel for Mrs. Harper supported his application for an intimation by the learned trial judge that Mr. Vanzwan should be called by the Crown by reference to that evidence. The contract in writing provided for sale of the stock for half the ticketed price. If, said counsel, the company owned no stock, because that stock had been sold by the company to the Chaplins, "half of nothing is nothing", and the charge of concealing the price of the stock would fail. For that reason, counsel submitted to the trial judge, Mr. Vanzwan's evidence that the sale by the company to the Chaplins had been effected was crucially important. The argument, which was not pressed before this court by counsel for Mrs. Harper, overlooks the circumstances that the Chaplins controlled the company and were in a position to enable the company to perform the written contract by making the stock available to the company so that the company could deliver it to the purchasers. There was no suggestion that the stock ever left the premises where the business was carried on, or that possession was not given to the purchasers. If it had appeared that the stock was sold and delivered, not pursuant to the written contract, but by -~ 69 - the Chaplins to Mr. Campbell and Mrs. Harper, an amendment of the fifth count to comprehend those circumstances could without injustice to those appellants have been made. It was apparently to comprehend that perception of the consequences of a sale of the stock by the company to the Chaplins that the fafth count was in fact amended. The other basis of the application to the trial judge for his indication that Mr. Vanzwan should be called by the Crown was put by counsel for Mr. Campbell. It was said it would be contended on Mr. Campbell's behalf that $139.000 was the true value of the stock and that, as counsel said, Mr. Vanzwan "as an accountant, as I understand it, can give some evidence in that regard". Mr. Vanzwan had been before trial interviewed by members of the Australian Federal Police over 13 hours, it was said, and a statement by him of evidence proposed to be adduced from him by the Crown had been supplied by the Crown to counsel for the accused and his name had been included in the list of witnesses to be called by the Crown. The decision of Mr. Lasry Q.C., who appeared at trial with Mr. Champion for the Crown, not to call Mr. Vanzwan was not announced until the trial had been proceeding for a month. Mr. Vanzwan had not given evidence in the committal proceedings. Mr. Lasry informed the learned trial judge that "the view we have is that, apart from anything else, he is, 1f you like, in the defence camp and, on one view of the evidence, if there was a - 70 - fraud, arguably he was involved in it .... the fact is that given my view of his involvement and given my view about where, in effect, he stands in this, I certainly cannot have a conference with him in my estimation. It would not be proper for me to have a conference with him and in effect cross- examine him about his' statement. His statement ius his statement and the material that appears in his files appears to be different". Mr. Lasry had informed the trial judge that he had compared what appeared in Mr. Vanzwan's statement with some documents for which Mr. Vanzwan was responsible, receiving for that purpose the assistance of accountants. It was not suggested to the learned trial judge or to this court that Mr. Vanzwan was himself qualified to value jewelry by inspection of it, nor was it suggested that he would have examined the stock purchase invoices of the company and have been able by that means to give evidence relevant to the value of the stock on hand on i July 1989. In our opinion no case has been made for concluding that a miscarriage of justice resulted from the Crown's failure to call Mr. Vanzwan as a witness. It was a ground of Mrs. Harper's appeal that her counsel was refused leave further to cross-examine Mrs. Chaplin after certain documents had been received in evidence during re-examination of Mrs. Chaplin by counsel for the Crown. They were described as stock cards and Mrs. Chaplin - 71 - gave evidence that the entries on the cards were made for the most part by Mr. Chaplin. The cards constituted, according to her evidence, a system for recording the date when each item of stock came into the Manuka shop, the cost of the several components of the item and the retail price to be charged for the item. Mrs. Chaplin further swore that, if the retail price were changed, the altered price and the date of alteration would be recorded. Also recorded on the back of the card was each date on which the item had been examined at a stock-taking. The cards (in three boxes) and Mrs. Chaplin's evidence as to the system in accordance with which entries were made on them was received, despite objection by counsel for Mrs. Harper and Mr. Campbell, because of two answers made by Mrs. Chaplin under cross-examination by counsel for Mrs. Harper, as follows: "The situation is, 1s it not, that when you were attempting to sell the business in the first part of 1989 your husband doubled the ticketed price of the stock to make it look more attractive?---No. He doubled the prices?---We wouldn't be viable if he'd doubled the prices." This came as an interpolation during cross-examination about another document, containing figures in Mrs. Harper's handwriting, tendered by the Crown as showing that Mrs. Harper believed the "ticketed price" of the stock to be more than $1,500,000. ~72- The cards having been received in evidence, counsel for Mrs. Harper applied for leave further to cross-examine Mrs. Chaplin about them. Counsel having failed to explain what questions he desired to ask, the learned trial judge said: "There are three boxes of .cards in evidence and they are available for you to look at. If you want to look at them, you can take the three boxes away. I will give you permission to do that overnight if you wish if you want to get some material together, but I just do not see that you have made a case for leave to further cross-examine at the moment." His Honour made it clear that, if some relevant topic of cross-examination were indicated to him, he would further consider the application. The cards had been used by Mrs. Harper from the time when she took over the business and cards in the boxes bore her handwriting. The cards had been seized by the Australian Federal Police in execution of a search warrant at the shop in Manuka. It was not suggested that they had been tendered at the committal hearing, or that they had not been available for inspection by the appellants' legal representatives while they were in the custody of the police. A few minutes after the learned trial judge had indicated his wallangness to further consider the application after counsel for Mrs. Harper had examined the cards, that counsel disclosed that he had instructions that during a visit by Mrs. Harper to the Chaplins' house Mr. Chaplin had in his wife's presence said - 73- that he had doubled the retail prices and that he had ""re- written the cards". Counsel for the Crown pointed out that that conversation could have been put to Mrs. Chaplin during her cross-examination. Counsel for Mr. Campbell, who had been heard in support of the application by counsel for Mrs. Harper, explained that he had learnt about the conversation after the cross-examination had concluded. Counsel for the Crown responded that he was referring to cross~examination by counsel for Mrs. Harper. Counsel for Mr. Campbell referred to the omission to put the conversation to Mrs. Chaplin as "a mistake". His Honour replied: "Nobody has called it a mistake. No one has said to me, 'Your Honour, I've been guilty of an oversight. I forgot to do something.' No one has put that to me. There 1S no case of oversight been put; no case of mistake been put." Neither then nor later did counsel for Mrs. Harper make any further submission in support of his application for leave further to cross-examine Mrs. Chaplin. No submission was made to this court which identified any particular topic of cross- examination or which identified any particular entry**orclass of entry on the cards, by reference to which it was said that the case for an appellant might have been advanced. This court was not invited to look at the cards. It was submitted rather that, counsel not having expected the cards to be tendered in evidence, fairness to Mrs. Harper and Mr. Campbell required that their counsel be allowed to test Mrs. Chaplin's understanding of what was written by her husband on the cards - 74 - and the reliability of the information the cards appeared to afford about the stock. Mr. Chaplin being outside Australia at the time of the trial, it would seem that the cards may have been admissible under Part IIIA of the Evidence Act 1905 (Cth), to which no counsel referred at trial or on appeal. It did not certainly appear whether Mrs. Chaplin was a person "concerned an the making of a statement" on a card, within the meaning of those words in Part IIIA, although it seems very likely that she was. Sergeant Pattenden was the first witness to give evidence for the Crown at the trial. He was also the last. On the second occasion he gave evidence of arithmetical calculations he had made to ascertain, from entries on the cards, what he called the "retail value", as at 1 July 1989, of so much of the stock in the Manuka shop as was of a retail value of more than $400 per unit and as was still in the shop on 2 September 1992 when the cards were seized. He was cross- examined to establish - as was plainly the case - that he had no means of determining whether the information he had taken from the cards was correct. No application was made at that time, when Mr. Pattenden was giving the evidence, for re-call of Mrs. Chaplin for further cross-examination about the cards. In the carcumstances we have set out we find no error in the course which the learned trial judge took in o - 75 - response to the application for leave further to cross-examine Mrs. Chaplin after she had been re-examined. Each of Mrs. Harper and Mr. Campbell raised a ground of appeal that the verdict was against the weight of the evidence and a ground that the verdict was unsafe and unsatisfactory. There is in our opinion no substance in any of those four grounds. The evidence that each appellant believed that the stock being purchased was assigned by the parties to the sale a retazl value much greater than $139,000, and that a price much greater than that sum was to be - and thereafter was being - paid by the purchaser, was very strong. The evidence that $139,000 was represented by Mr. Campbell to the A.T.O. as that price was overwhelming. And there was persuasive evidence that Mrs. Harper was party to that representation. It was also submitted that the appellants Mrs. Harper and Mr. Campbell should have been granted separate trials. There 1s no substance in thas submission. The various counts against each accused were related both as to time and subject matter. It was not only appropriate but essential that they be tried together so that the full picture could be put to the jury. The learned trial judge gave the necessary warnings to the jury that not all evidence would be admissible against all three accused. During the course of his summing up he was careful to draw to the attention of the juxy discrete passages of the evidence and the need to give - 76 - separate and independent consideration to the cases against each of the accused. Thus, it was made clear to the jury, for example, that the evidence of the witnesses Burgess and Curtis was evidence against the accused Barker only. Likewise, his Honour warned the jury that a document that was a communication between Mrs. Chaplin and one only of the accused would be evidence against that accused only. The ground of appeal that 1s sourced in an omission to apply this general direction to two specific documents has no foundation. There was no justification for separate trials and no accused suffered any prejudice as a result of the joint trial. Contrary to the submissions of counsel for the appellants, his Honour's directions to the jury on the subject of accomplice evidence and Mrs. Chaplin's identity as an accomplice were sufficient. His Honour directed the jury that she was an accomplice, that there was a need for corroboration of her evidence and what could amount to corroboration. He sufficiently emphasised the caution with which evidence of accomplices ought to be assessed and he reminded the jury of the need to give separate consideration to this subject when considering the case against each accused. There were other grounds of appeal by each of Mrs. Harper and Mr. Campbell which were not abandoned. But none of those other grounds was in our opinion of any substance. Each of the convictions of Mr. Barker was said to be against the weight of the evidence, unsatisfactory and unsafe. In our ry Py we - 77 - opinion there was no substance in any of those grounds. Other grounds of appeal impugned the learned trial judge's charge to the jury. We found no substance in those grounds, or in the ground that his Honour had erred in failing to discharge the jury without verdict in respect of Mr. Barker when Sergeant Pattenden gave in evidence what was said to be an unresponsive answer which was inadmissible and prejudicial to Mr. Barker. We would dismiss the appeais of Mrs. Harper and Mr. Campbell. We would allow the appeal of Mr. Barker, order that each verdict upon which a conviction of him was based be set aside and the conviction be quashed, and order that a new trial be had of the first, second, fourth, seventh and eighth counts as they concern him. I certify that this and the 76 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson and the Honourable Justice O'Loughlin. Slo en J" Associate Dated: 2] December 1994 - 78 - Barker v. Dates of Hearing: Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: Harper and Campbell v. of 1994 The Queen Dates of Hearing: Counsel for The Appellant Harper: Counsel for the Appellant Campbell: Solicitors for the Appellants: Counsel for the Respondent: Solicitors for the Respondent: The Queen - ACT G43 of 1994 24, 25, 26 and 27 October and 4 November 1994 Mr. N. Adams J. Pappas Mr. P.S. Hastings Q.C. and Mr. G.J. Bellew Director of Public Prosecutions (Commonwealth) ACT G44 of 1994 and ACT G45 31 October, 1, 2 and 3 November, 1994 Mr. K.J. Crispin Q.C. and Mr. W.L. Donald Mr. F.J. Purnell McPhillamy Donald Mr. P.S. Hastings Q.C. and Mr. G.J. Bellew Director of Public Prosecutions (Commonwealth) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY No ACT G43 of 1994 BETWEEN TERENCE FRANCIS BARKER Appellant AND THE QUEEN Respondent No ACT G44 of 1994 BETWEEN JANICE DOREEN JUNE HARPER Appellant AND THE QUEEN Respondent No ACT G45 of 1994 BETWEEN ROBERT GEORGE CAMPBELL Appellant AND THE QUEEN Respondent CORAM Jenkinson, Miles and O'Loughlin JJ PLACE Canberra DATE 21 December 1994 REASONS FOR JUDGMENT MILES J | have read a draft of the Judgment of Jenkinson J. and O'LoughlinJ Subject to one matter, | agree with their Honours' proposed orders and reasons However, | should first say that, with regard to the alleged unlawfulness of the sound taping of the conversation between Mrs Chaplin and Mr Barker in England, | agree that, whether or not the taping was unlawful, there was no reason to exercise any discretion to exclude the contents of the tape from the consideration of the jury either for unfairness or on the ground of public policy Normally the content and effect of foreign law is a matter for evidence by way of expert opinion and, whilst Australian courts have for generations been accustomed to taking judicial notice of the common law of England, it Is not immediately apparent to me that an Australian court is equipped to pass judgment on the lawfulness or otherwise of conduct according to the meaning of an English statute enacted in 1985. Furthermore, there is a real question whether the discretion to exciude illegally obtained evidence, expounded in Bunning v. Cross (1978) 141 CLR 54, Is directed to unlawfulness according to the jurisdiction in which the proceedings have been brought or in the place where the conduct in question has taken place These are significant questions, but do not require answering in the present case in relation to the offence of organized fraud created by s 83 of the Proceeds of Cnmes Act 1987, it is my view that a prosecution for this offence requires proof that the substantial benefit in question derives from acts or omissions which, besides constituting three or more public fraud offences, have some relevant connection or nexus with each other The nature of the connection must be such that the acts or omissions, when viewed as a whole or in relation some to the other, have a common feature pertaining to their fraudulent nature It is true, as indicated tn the joint judgment, that a literal reading of sub-s 83(2) does not make sense Acts or omissions of themselves are not regarded as constituting criminal offences unless accompanied by a relevant mental state, or what was conventionally called mens rea and what the Review of Commonwealth Criminal Law tn its Report of July 41990 calls a "fault element" However, it is common to talk of or refer to "criminal conduct" in a way generally understood to encompass not only the overt behaviour but also the mental element in question | think that \t Is in this sense that the term "acts or omissions" should be understood In Sub-s 83(2) Section 83 creates a new and hitherto unknown offence It does not simply provide for a heavier sentence for an offender who has been convicted of a series of offences of the same kind (cf para 193(4)(a) Motor Traffic Act 1936 (ACT)). It makes punishable conduct which If prosecuted separately and charged as several offences would result in several convictions Although the implications of s 83 in the area of autrefois acquit and autrefois convict do not need to be addressed in the present case, | agree that there 1s no barrier to counts for separate offences (which s 83 happens to call public fraud offences) being included in the same indictment as a count for the offence of organized fraud created by s 83 The "acts and omissions" to which sub-s 83(2) is directed must bear the characteristics which are required and defined by both paras (a) and (b) of the sub-section On the face of it the acts and omissions which bear the characteristics required by para (a) are identical with those bearing the characteristics required by para (b), but in practical terms It seems impossible to apply the section in this way | agree that the only way in which para (a) may be read so as to give it some sensible meaning Is to understand it as requiring that each act or omission be a constituent element of one at least of three public fraud offences Yet it does not make sense to read para (b) in the same way, so that each act or omission Is required to yield a substantia) benefit This dilemma appears to arise because the subject matter of acts and omissions conferring "substantial benefit", to which para (b) Is directed, Is not in the same frame of logical reference as the acts and omissions constituting elements of public fraud offences as envisaged by para (a) Section 15AA of the Acts Interpretation Act 1907 provides that, in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlining the Act (whether that purpose or object 1s expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object By s.15AB, the use of extrinsic material is permitted to enable the courts to determine the meaning of a provision in an Act which 1s ambiguous or obscure, or where the ordinary meaning leads to a manifestly absurd or unreasonable result The material that may be considered for this purpose Includes matters not forming part of the Act that are set out ina government printer's copy of the text of the Act, any speech made to the Parliament by a Minister moving that the Bill be read a second time and any explanatory memorandum relating to the Bill Jaid before the Partiament before the time when the provision was enacted. Under sub-s 13(1) of the Acts Interpretation Act, the headings of the Parts, Divisions and Sub-Divisions into which any Act is divided shall be deemed to be part of the Act, but under sub-s 13(3) no marginal note, footnote or end note to an Act, and no heading to a section of an Act, shall be taken to be part of the Act 4" In the Proceeds of Cnmes Act 1987, s 83 occurs in Division 2 of Part V The heading of Division 2 Is "organized fraud" and is deemed to be part of the Act ) The heading to s 83 itself is also "organized fraud" Whilst it is not deemed to be part of the Act, the heading to the section may be regarded as extrinsic material to assist in the interpretation of the provision in question The interpretation of s 83, In my view, cannot be complete without giving due regard to the term "organized fraud" In his Second Reading Speech, the Attorney-General referred to the purpose of the Bill being to "strike at the heart of major organized crime by depriving persons involved of the profits and instruments of their crimes". The Attorney-General spoke of the "new offence of organized fraud which Is constituted by acts and omissions which constitute three or more public fraud offences from which the person has derived substantial benefit" (suggesting that the substantial benefit 1s derived from the offences rather than the acts or omissions) He said that the offence was designed for "persons who have been engaged In a pattern _of conduct, over a period of time, from which they have benefited to the detriment of society" (Emphasis added in both instances) The explanatory memorandum accompanying the Bill in this case refers to persons who organized their affairs in such a way as to "significantly defraud the revenue" and to consideration of "planning, organization, and persistent uniawful conduct", along with the monetary value of benefit derived, being the determinants of guilt. The statement in the explanatory memorandum that the offence is "not directed at the persons who commit a number of social security frauds from which they gain a relatively small monetary benefit" 1s consistent with the categorization of the offence as "organized fraud" from which substantial benefit is derived | do not think that it ts consistent with the purpose of the legislation that s 83 be read to apply to a person who commits a single public fraud offence which yields a substantial benefit but who happens to have committed two other but entirely unconnected minor public fraud offences at some time in the past, perhaps long tn the past It may be observed that there is no requirement in s 83 that any of the three public fraud offences be committed (or that the acts and omissions take place) within a particular period of time relative to each other | agree that undefined concepts of "pattern" and "nexus" are unsuitable elements to import into the definition of a criminal offence However, in my view, even less suitable Is an interpretation of s 83 which brings within its operation a single public fraud offence from which substantial benefit is derived but which has no connection with the other public fraud offences which go to make up the "organized fraud" alleged The interpretation that there is a requirement of some relevant connection between the acts and omissions which goes to constitute each of the three public fraud offences ts an interpretation which favours the accused, and, despite the difficulty caused by the language used in the section, it 1s consistent both with that language and with the intention of the legislature as it may be gleaned from elsewhere In my view the jury should have been instructed that in relation to the erghth count the prosecution had to prove that the acts or omissions constituting each one of the three or more public fraud offences had a relevant connection with the acts and omissions constituting at least one of the other three or more fraud offences, and that a relevant connection in this Sense meant some common feature relating to the fraudulent nature of such acts or omissions [ would allow Mr Barker's appeal for this additional reason Otherwise | agree with the orders proposed by the other members of the Court | certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of his Honour Justice Miles t Fi a : Associate } Ps ( 21 December 1994 - 78 - Barker v. The Queen ~ ACT G43 of 1994 Dates of Hearing: Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: Harper and Campbell v. The Queen - of 1994 Dates of Hearing: Counsel for The Appellant Harper: Counsel for the Appellant Campbell: Solicitors for the Appellants: Counsel for the Respondent: Solicitors for the Respondent: 24, 25, 26 and 27 October and 4 November 1994 Mr. N. Adams J. Pappas Mr. P.S. Hastings Q.C. and Mr. G.J. Bellen Director of Public Prosecutions (Commonwealth) ACT G44 of 1994 and ACT G45 31 October, 1, 2 and 3 November, 1994 Mr. K.J. Crispin Q.C. and Mr. W.L. Donald Mr. F.J. Purnell McPhillawey Donald Mr. P.S. Hastings Q.C. and Mr. G.J. Bellen Director of Public Prosecutions (Commonwealth)