(2001) 39 ACSR 189 Reported Decision : 52 NSWLR 389 125 A Crim R 60 New South Wales Court of Criminal Appeal CITATION : R v Macleod [2001] NSWCCA 357 FILE NUMBER(S) : CCA 60131/99 HEARING DATE(S) : 6/6/01, 7/6/01, 8/06/01 JUDGMENT DATE : 14 September 2001 PARTIES : Robert James MACLEOD - Appellant REGINA - Respondent JUDGMENT OF : Mason P at 1; Simpson J at 54; Newman AJ at 159 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/63 LOWER COURT JUDICIAL Rummery DCJ OFFICER : COUNSEL : Mr C Papayanni - Appellant Mr T Game SC with Mr D Jordan - Crown SOLICITORS : Ms Anita Betts - Appellant Commonwealth Director of Public Prosecutions - Respondent CATCHWORDS : Criminal law - Companies (NSW) Code ss 169, 570(1) - Corporations Law, ss 780, 232(6), - 101A(1) - 1064(1), 1311(1) - Securities Industry (NSW) Code, s 43 - Crimes Act 1901 (NSW), s 173 - Crimes Act 1914 (Cth), s 5 - Corporations (NSW) Act 1990, s 8, s 13(2), Pt 8, s 55 - Corporations Act (Cth) 1989 s 82 - fraudulent intent - dishonesty - sufficiency of directions - claim of right - "prescribed interest" and "participation interest" pursuant to Companies (NSW) Code and Corporations Law - adequacy of directions as to relevant facts - what facts necessary to be averred in indictment - consciousness of guilt - directions as to - onus of proof - "directing mind of a company" - identity between directing mind of company - whether consensual transaction in transferring company's property - whether fraudulent - authority of Director of Public Prosecutions (Cth) to prosecute charges laid under state legislation - jurisdiction of District Court of NSW to hear charges - knowingly concerned in offence (Crimes Act 1914 (Cth) (s5) - offences against the law of the Commonwealth - application for leave to appeal against sentence. Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Securities Industry (NSW) Code Corporations Law Companies and Securities (Interpretation and Miscellaneous Provisions) (NSW) Code Corporations (New South Wales) Act 1990 LEGISLATION CITED : Corporations Act 1989 (Cth) Corporations (Western Australia) Act 1990 (WA) Corporations (Commonwealth Authorities and Officers) Regulations Director of Public Prosecutions Act 1983 (Cth) Crimes Act 1914 (Cth) Criminal Procedure Act 1986 (NSW) Corporations Law (SA) Corporations (SA) Act 1990 Tesco Ltd v Nattrass [1972] AC 153 R v Roffel [1985] VR 511 R v Morris [1984] AC 320 R v Gomez [1993] AC 442 R v McHugh (1988) 88 Cr App R 385 Attorney-General's Reference (No.2 of 1982) [1984] QB 624 Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 R v Lawrence [1972] AC 626 Maher (1986) 21 A Crim R 316 Durovic (1994) 71 A Crim R 33 Duke Group Ltd v Pilmer (1998) 144 FLR 1 R v Glenister [1980] 2 NSWLR 597 Attorney-General's Reference No.1 of 1985 (1985) 19 A Crim R 436 Hamilton v Whitehead (1988) 166 CLR 121 CASES CITED: Australian Securities and Investment Commission v Vis (2000) 77 SASR 490 R v Hughes (2000) 171 ALR 155 R v O'Halloran [2000] NSWCA 528 Brown v Green (1951 84 CLR 285 Western Australia v The Commonwealth (1995) 813 CLR 373 The King v Adams (1935) 53 CLR 563 Mallan v Lee (1949) 80 CLR 198 Byrnes v The Queen (1999) 199 CLR 1 Australian Securities Commission v McLeod (2000) 22 WAR 255 Cassell v The Queen (2000) 201 CLR 189 The Commonwealth v Tasmania (1983) 158 CLR 1 Re Turner (1996) 136 ALR 229 Peters v R (1998) 192 CLR 493 R v Lawson (1996) 86 A Crim R 111 R v Piazza (1997) 94 A Crim R 459 R v Zorad (1990) 19 NSWLR 91 DECISION : (i) On counts 12 and 13 appeal against conviction allowed, convictions quashed; (ii) on all other counts: appeal against conviction dismissed; (iii) the appellant be granted leave to appeal against sentence; (iv) the appeal against the sentences imposed in relation to counts 12 and 13 be allowed, and the sentences imposed be quashed; (v) in relation to all other counts, the appeal against sentence be dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60131/99 MASON P SIMPSON J NEWMAN AJ 14 September 2001 REGINA v MACLEOD HEADNOTE The appellant was charged with and tried on twenty-five charges, of which six were alternatives to six primary charges. He was convicted of nineteen counts. The charges were brought under various State and Commonwealth statutory provisions. The appellant was a director of three companies - Trainex Pty Limited ("Trainex"), Starlight Film Studios Limited ("Starlight") and Communications Entertainment Network Limited. Through these companies he conducted an enterprise, purportedly making films and videos, in which he invited others to invest, with a view to obtaining taxation advantages offered by Part 111, Division 10 B of the Income Assessment Act 1936. Several thousand investors accepted the invitation, contributing, in total, more than $6,000,000. Of this, only $718,000 was used to make films. More than $2,000,000 was applied to the appellant's own benefit, including purchasing a Queensland home unit in his name. Investors were furnished with "income statements" creating the illusion that films were being made and were returning profits. This was untrue. In late 1991 or early 1992 the Australian Securities Commission ("ASC") was investigating the enterprise. The appellant gave instructions to his office manager to remove company records to a storage centre, in order to ensure that they would not be found by the ASC investigators. 1 With respect to charges brought under s 173 of the Crimes Act 1900 (NSW), that as director of officer of a company, he fraudulently applied property to his own use, or for a purpose other than that of the body corporate, the appellant, relying on R v Roffell [1985] VR 511, argued that, as the relevant company was entirely under his control, any application of funds, no matter how unlawful or dishonest, represented a consensual transaction and could not found a conviction under the section. HELD : (per Mason P, Simpson J and Newman AJ concurring), disapproving Roffell : (i) If Roffell is to continue to be followed, it should be confined strictly to its particular statutory context, ie involving the interpretation of the word "appropriation" in a statutory definition of theft; (ii) being in dominant control of a company provides no defence to a director proven to have fraudulently "applied" company cheques for his or her own purposes: R v Glenister [1980] 2 NSWLR 597; Attorney-General's Reference No.1 of 1985 (1985) 19 A Crim R 436. 2 All charges were prosecuted by the Director of Public Prosecutions (Cth) ("CDPP"). By counts 5-13 it was alleged that the appellant was knowingly concerned in various offences by Trainex or Starlight. Each of these counts (except count 11) depended upon s 5 of the Crimes Act 1914 (Cth). The appellant argued that the counts did not disclose any offence known to law, that the CDPP lacked authority to prosecute the charges, and the District Court of NSW lacked jurisdiction to try them. HELD : (per Mason P, Simpson J and Newman AJ concurring): (i) The relevant legislation of NSW, by reference, incorporates s 5 of the Crimes Act 1914 (Cth): Corporations (NSW) Act 1990, s 3, Pt 8; Australian Securities and Investments Commission v Vis [2000] SASC 258; 77 SASR 490; (ii) The District Court of NSW had jurisdiction to try the charges: Corporations (NSW) Act 1990, s 55; (iii) The CDPP had the necessary authority to prosecute all charges ( R v Hughes [2000] HCA; 171 ALR 155 . 4 Counts 12 and 13 were charges of offences against s 780 of the Corporations Law, which prescribes a maximum penalty of fifty penalty units and/or imprisonment for one year. HELD : (per Mason P, Simpson J and Newman AJ concurring): These were summary offences. The District Court lacked jurisdiction to try these charges. The convictions must be quashed. 3. Further HELD : (per Simpson J (Mason P and Newman AJ concurring): (i) In the circumstances of the case, and in the context of charges incorporating a specific element of dishonesty, the directions given on the appellant's asserted "claim of right" were adequate; (ii) directions given by the trial judge in relation to the meaning of "dishonesty", "fraudulent", and "consciousness of guilt" were adequate. IN THE COURT OF CRIMINAL APPEAL 60131/99 MASON P SIMPSON J NEWMAN AJ 14 September 2001 REGINA v Robert James MACLEOD Judgment 1 MASON P: I have had the benefit of reading the judgment of Simpson J which sets out the facts. I agree with her Honour's reasons in rejecting the grounds of appeal which she addresses. Ground 2 (no evidence of offences charged in counts 14, 16, 18, 20 and 22) 2 Counts 14, 16 and 18 of the indictment charged the appellant with breaches of s173 of the Crimes Act 1900 (NSW). That section provides: Whosoever, being a director, officer, or member, of any body corporate, or public company, fraudulently takes, or applies, for his or her own use or benefit, or any use of purpose other than the use or purpose of such body corporate, or company or fraudulently destroys any of the property of such body corporate, or company shall be liable to imprisonment for 10 years. 3 Each count charged that between various dates in 1991 at Sydney, being a director of Trainex, the appellant: fraudulently applied for his own use property owned by Trainex , being three substantial sums of money owed to Trainex by Chase AMP Bank. 4 The Crown case was that the appellant effectively misappropriated the proceeds of three cheques drawn upon the bank account of Trainex at the bank when he used moneys totalling $954,872.05 as payment for a Gold Coast property which he was purchasing. The property of Trainex thus misappropriated was the money standing to its credit at the bank. 5 Counts 20 and 22 also alleged contravention of s173. They differed from the earlier counts in that they charged that the appellant: fraudulently applied for a purpose other than for the purposes of Trainex property owned by Trainex. 6 The property in question were the proceeds of two further cheques drawn on the Trainex account at the bank. These were applied at the appellant's direction in payment of his loan account with Starlight Film Studios Limited, another company controlled by him. 7 The appellant was convicted on each of the five counts. Ground 2 contends that there was no evidence of the five offences charged. 8 The submission is based upon the appellant embracing as common ground the proposition advanced at trial by the Crown that Trainex was a company entirely under his control. The other directors (if there were any) played no part in its affairs, leaving it to the appellant to run it as if it was his own. The appellant says that he was the directing mind of the company in the sense discussed in Tesco Ltd v Nattrass [1972] AC 153 esp at 170. 9 Invoking R v Roffel [1985] VR 511, the appellant submits that, no matter how dishonestly or unlawfully he acted in causing company property to be transferred to himself, there was nevertheless a consensual transaction which precludes conviction under s173. The appellant says that he was the de facto controller of Trainex and that there was, accordingly, no evidence to suggest that the company (through him) did not intend him to have the moneys which he applied for his personal use. The fact that the payment may have been ultra vires or in breach of fiduciary duty is said to be irrelevant to the present issue. 10 Roffel involved a charge of theft under s72 of the Crimes Act 1958 (Vic). That section provides: Basic definition of theft 1. A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. 2. A person who steals is guilty of theft; and 'thief' shall be construed accordingly . 11 Roffel and his wife were the sole shareholders and directors of a small company, Roffel being managing director and secretary. He drew cheques on the company's account and used the proceeds for his own purposes. Notwithstanding evidence of intent to defraud creditors, his conviction for theft was set aside by the majority of the Full Court of the Supreme Court of Victoria (Young CJ and Crockett J, Brooking J dissenting). The majority held that the element of appropriation required proof that there had been an adverse interference with or usurpation of some right or rights of the owner. As the company was a separate legal entity, and in the particular circumstances (through its directing mind and will) had consented to Roffel drawing cheques on its account, it could not be said that Roffel had interfered with or usurped any of its rights of ownership. 12 The reasoning of the majority turns upon the meaning of "appropriation" in the Victorian statute and the application of the obiter reasoning of Lord Roskill in R v Morris [1984] AC 320 esp at 332. Young CJ said (at 513) that it was difficult to imagine that parliament intended to treat as an appropriation the taking of property from a person if the taking was done with the full concurrence of the original owner. Crockett J's reasoning was to similar effect. He held that the transaction in question remained consensual and that it was irrelevant that it may have been void or voidable according to the precepts of company law. 13 There is a powerful dissent by Brooking J which I, like many others, find compelling. Professor Baxt has written that the decision created a good deal of concern and "disbelief" by lawyers and commentators ((1993) 67 ALJ 696).) In Fisse, Howard's Criminal Law 5th ed p289-90 it is pointed out that a controller who milks company funds entirely for personal consumption does not represent the directing mind and will of the company but acts in his own capacity. The House of Lords has formally disapproved of the decision in Roffel and persuasively criticised the reasoning in the English decisions upon which the Supreme Court of Victoria relied, including Morris (see R v Gomez [1993] AC 442). 14 In Gomez Lord Keith of Kinkel said (at 464) that the actual decision in Morris (a case involving label switching in a supermarket) was correct, but: … it was erroneous, in addition to being unnecessary for the decision, to indicate that an act, expressly or impliedly authorised by the owner could never amount to an appropriation. 15 Specifically addressing the company fraud cases, Lord Browne-Wilkinson said (at 496-7): Turning to the company cases, the dictum in Reg v Morris [1984] AC 320 has led to much confusion and complication where those in de facto control of the company have been charged with theft from it. The argument which has found favour in certain of the authorities runs as follows. There can be no theft within section 1 if the owner consents to what is done: Reg v Morris . If the accused, by reason of being the controlling shareholder or otherwise, is "the directing mind and will of the company" he is to be treated as having validly consented on behalf of the company to his own appropriation of the company's property. This is apparently so whether or not there has been compliance with the formal requirements of company law applicable to dealings with the property of a company and even to cases where the consent relied on is ultra vires: see Reg v Roffel [1985] VR 511 and Reg v McHugh (1988) 88 Cr App R 385. In my judgment this approach was wrong in law even if the dictum in Morris had been correct. Where a company is accused of a crime the acts and intentions of those who are the directing minds and will of the company are to be attributed to the company. That is not the law where the charge is that those who are the directing minds and will have themselves committed a crime against the company: see Attorney-General's Reference (No 2 of 1982) [1984] QB 624 applying Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250. In any event, your Lordships' decision in this case, re-establishing as it does the decision in Reg v Lawrence [1972] AC 626, renders the whole question of consent by the company irrelevant. Whether or not those controlling the company consented or purported to consent to the abstraction of the company's property by the accused, he will have appropriated the property of the company. The question will be whether the other necessary elements are present, viz was such appropriation dishonest and was it done with the intention of permanently depriving the company of such property? In my judgment the decision in Reg v Roffel [1985] VR 511 and the statements of principle in Reg v McHugh 88 Cr App R 385, 393, are not correct in law and should not be followed. 16 The other Law Lords agreed with this analysis (see per Lord Keith at 464-5, Lord Jauncey at 465, Lord Lowry at 491-2, Lord Slynn at 497). With respect, so do I. 17 See also Maher (1986) 21 A Crim R 316 at 337, Durovic (1994) 71 A Crim R 33 at 154-56, Duke Group Ltd v Pilmer (1998) 144 FLR 1 at 87-88. 18 If, which I doubt, Roffel should continue to be followed, it should be confined strictly to its particular statutory context, ie involving the interpretation of the word "appropriation" in a statutory definition of theft. 19 Section 173 of the Crimes Act 1900 (NSW) does not, in its operative terms, use the word "misappropriate", upon which the now discredited obiter reasoning in Morris and the majority reasoning in Roffel turns. In the context of provisions like s173 there is clear authority that being in dominant control of a company provides no defence to a director proven to have fraudulently "applied" company cheques for his or her own purposes (R v Glenister [1980] 2 NSWLR 597, Attorney-General's Reference No 1 of 1985 (1985) 19 A Crim R 436). Glenister also demonstrates that common law principles concerning larceny have no application to the concept of fraudulently taking or applying company property in s173 of the Crimes Act (see esp at 603, 605, 607). 20 Ground 2 should be rejected. There was evidence to support the charges. Grounds 17-18 (counts 5-13 unknown to law; commonwealth DPP lacked authority to prosecute; district court lacked jurisdiction) 21 Counts 5 to 13 were charges by the Commonwealth Director of Public Prosecutions (CDPP) alleging that the appellant was knowingly concerned in various offences by Trainex (counts 3-8, 11-12) and Starlight Film Studios (counts 9-10, 13). With the exception of count 11 which relates to contravention of the Securities Industry (NSW) Code, each of the charges asserts contravention of the Corporations Law. 22 The appellant submits that these counts did not disclose an offence known to law and that the CDPP did not have authority to prosecute them. 23 It is further submitted that the District Court of New South Wales lacked jurisdiction to try the charges. (It would appear that this challenge to count 11 is misconceived because the appellant accepts that there was a State offence of being knowingly concerned in contravention of the Code during the Code era (Companies and Securities (Interpretation and Miscellaneous Provisions) (NSW) Code, s38) and because the offence is indictable (ibid, s35(2)). 24 Although we have heard no submissions on the matter, consideration of the issues raised in these grounds does not appear to be affected by the recently commenced Corporations Act 2001 (Cth) (see s1383(1)(c) thereof). 25 Counts 5 to 8 alleged contravention of s1064(1) of the Corporations Law, read with s1311 thereof. Counts 9 and 10 alleged contravention of s1018(1), read with s1311. Counts 12 and 13 alleged contravention of s780, without express reference to s1311 (apparently an omission, but not the subject of any complaint at trial or on appeal). 26 Section 1311 renders contravention of a provision of the Corporations Law an offence punishable on conviction by penalty. Relevant to the appeal, the other provisions state: 780. A person must not: (a) carry on a securities business; or (b) hold out that the person carries on a securities business; unless the person holds a dealers licence or is an exempt dealer. 1018 (1) a person shall not offer for subscription or purchase, or issue invitations to subscribe for or buy, securities of a Corporation unless: (a) a prospectus in relation to the securities has been lodged; (b) the prospectus complies with the requirements of this Division; and (c) if the prospectus is a registrable prospectus - the prospectus has been registered by the Commission under section 1020A. 1064 (1) A person, other than a public corporation, must not make available, offer for subscription or purchase, or issue an invitation to subscribe for or buy, any prescribed interest. 27 As indicated, the appellant was charged with having been knowingly concerned in the commission of the identified offences by the corporations named. Hamilton v Whitehead (1988) 166 CLR 121 explains why the appellant could be knowingly concerned in offences of this nature even though he was the managing director of the corporations and his mind was the mind of the corporations. 28 The common law of criminal complicity does not have a category of being knowingly concerned in the commission of an offence. Nor is any such offence created in terms by the Corporations Law. It was common ground in the appeal that counts 5-10 and 12-13 depended upon s5(1) of the Crimes Act 1914 (Cth) which provides: Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law or the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly. 29 This was the springboard for the appellant's submission that these counts were not known to law because contraventions of the Corporations Law are not offences "against any law of the Commonwealth" as that expression is understood in s5 of the Crimes Act 1914 (Cth) itself. 30 The indictment identifies the offences as offences against the Corporations Law. Section 13(2) of the Corporations (New South Wales) Act 1990 (the CNSW Act) provides that for the purposes of the laws of New South Wales a reference in an instrument to the Corporations Law is to be taken to be a reference to the Corporations Law of New South Wales. The text of that law is set out in s 82 of the Corporations Act 1989 (Cth). As Doyle CJ pointed out in Australian Securities and Investments Commission v Vis (Vis) (2000) 77 SASR 490 at 492 in relation to the South Australian counterpart of the CNSW Act: The enactment by the South Australian Parliament of provisions found in a section in Commonwealth legislation is the central element in a cooperative legislative scheme intended to create 'a single national Corporations Law applying of its own force throughout Australia' :CSA Act, s 13 (1) . 31 Part 8 of the CNSW Act (ss 26-39) deals with the national administration and enforcement of the Corporations Law. Part 9 (ss 40-56) deals with the jurisdiction and procedure of courts. 32 Section 26 states that the object of Part 8 is to help ensure that: (a) the Corporations Law of New South Wales, and the Corporations Law of each jurisdiction other than New South Wales, are administered and enforced on a national basis, in the same way as if those Laws constituted a single law of the Commonwealth …. 33 Section 29 provides: (1) The Commonwealth laws apply as laws of New South Wales in relation to an offence against the applicable provisions of New South Wales as if those provisions were laws of the Commonwealth and were not laws of New South Wales. (2) For the purposes of a law of New South Wales, an offence against the applicable provisions of New South Wales; (a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth; and (b) is taken not to be an offence against the laws of New South Wales. (3) Subsection (2) has effect for the purposes of a law of New South Wales except as prescribed by regulations under section 80. 34 The definition of "Commonwealth law" in s3 of the CNSW Act includes the written laws of Commonwealth and is thus apt to pick up s5 of the Crimes Act 1914 (Cth). 35 Section 31 of the CNSW Act confers various functions and powers on Commonwealth authorities and it is the source of the power to prosecute invoked in the present case by the CDPP. So far as relevant it provides: 31(1) A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of New South Wales. 36 Section 55 of the CNSW Act confers jurisdiction on the several courts of each State with respect to the trial and conviction on indictment of offenders charged with "offences against the Corporations Law of New South Wales". There is no reason why this provision should be read down to exclude the courts of New South Wales. In any event, jurisdiction in respect of all State indictable offences, with presently irrelevant exceptions, is conferred on the District Court by s11 of the Criminal Procedure Act 1986 (NSW). 37 The appellant submits that s5 of the Crimes Act 1914 (Cth) cannot be applied to an offence against the Corporations Law since the Corporations Law is in truth and constitutional derivation a State Act. It is not a law of the Commonwealth and no State enactment (such as s 29 of the CNSW Act) can deem it to be what it is not. Citing some of the reasoning in R v Hughes (2000) 171 ALR 155, the appellant further submits that s31 of the CNSW Act cannot be invoked by the CDPP in aid of offences that are (a) unknown to the law, alternatively (b) State offences. The Crown's reliance on s55 of the CNSW Act is also said to be misplaced in the particular circumstances. 38 Each of these submissions proceeds on the basis that the necessary invocation of s5 of the Crimes Act 1914 (Cth) involves the assertion that the offences charged in the counts were in truth and constitutional derivation offences against the law of Commonwealth. 39 The decision and reasoning of the Full Court of the Supreme Court of South Australia in Vis shows why this submission must be rejected. Mr Vis was charged in the Magistrates Court of South Australia with being concerned in the management of a corporation without leave of the Court, contrary to s 229 of the Corporations Law (SA). Other defendants were charged with aiding, abetting, counselling and procuring the offence, contrary to s5 of the Crimes Act 1914 (Cth). The charges against the other defendants were dismissed by the magistrate on the basis that s5 could not be used where the commission of the offence was against the law of a State. (This, in essence, is the point now taken by the appellant.) 40 The magistrate's decision was overturned in the Full Court. That Court held that the effect of s29(2) of the Corporations (SA) Act 1990 was that the reference in s5 to procuring an offence against a law of the Commonwealth is to be read as procuring an offence against the Corporations Law. In other words, State law incorporated the federal enactment by reference, thereby treating the incorporated provision (s5) as part of the enacted State law. Doyle CJ said (at 508-9): Section 29(1) of the CSA Act applies s5 of the Crimes Act as a law of South Australia. It applies that provision in relation to an offence against the Corporations Law. Turning to s5, one finds that it refers to persons who aid, abet, counsel or procure the commission of an offence against any law of the Commonwealth. It is one thing to apply s5 as a law of South Australia. But how is it to be so applied, bearing in mind that it refers to procuring (I use that term alone for convenience) an offence against a law of the Commonwealth, and Mr Vis was charged with an offence against the law of South Australia? The first answer may lie in s29(1) itself. Section 5 of the Crimes Act is applied in relation to the offence against the Corporations Law "as if" the offence provision were a law of the Commonwealth and not a law of South Australia. That is a basis for reading the reference in s5 to procuring an offence against a law of the Commonwealth, to procuring an offence against a law of the State which is to be treated "as if" it were a law of the Commonwealth. A second answer, and one about which I am more confident, is found in s29(2) of the CSA Act. The effect of that provision is that for the purposes of South Australian law, the offence charged against Mr Vis "is taken to be an offence against the laws of the Commonwealth" and not to be "an offence against the laws of South Australia". As applied, s5 is a law of South Australia. Accordingly, for its purposes, the offence charged is taken to be an offence against the laws of the Commonwealth. Thus, the reference in s5 to procuring an offence against a law of the Commonwealth is to be read as procuring an offence against the Corporations Law. …what [s29(1)] does is, in a sense, change the language of applied provisions, so that when they are applied as laws of the State, they will operate on laws of the State. Section 29(2) does this by, in effect, directing the reader to treat offences against the laws of South Australia as if they were offences against the laws of the Commonwealth, when one is applying Commonwealth law as the law of South Australia. As I understand it, this is what the High Court was saying in Hughes (at 807-808 [22]-[25]). 41 I respectfully agree. There is no reason why the legislation of one polity may not incorporate by reference the enacted law of another polity (Brown v Green (1951) 84 CLR 285, Western Australia v The Commonwealth (1995) 813 CLR 373 at 484-5). 42 A related submission contended that the language of s5 effectively precluded such incorporation by reference, because of the concluding words "shall be deemed to have committed that offence and shall be punishable accordingly". The principles of restrictive interpretation of penal provisions stated in The King v Adams (1935) 53 CLR 563 at 566-8 were invoked. Once again, this submission misunderstands the impact of s29 of the CNSW Act. And once again the submission runs into the authority of Vis. There is nothing in the nature of the substantive offences under ss780, 1018 and 1064 of the Corporations Law that make them incapable of being made the subject of an accessorial offence based on an allegation of being knowingly concerned in the offence (see Hamilton v Whitehead. Contrast the offences discussed in Mallan v Lee (1949) 80 CLR 198 at 210, 216). 43 Once it is seen that the offences charged are and remain State offences then any issue about the jurisdiction of the District Court also falls away. 44 But this opens up a different problem, so the appellant contends. He asks: Where is the authority of the Commonwealth Director of Prosecutions to prosecute such offences? In Byrnes v The Queen (1999) 199 CLR 1 the High Court held that s91(5) of the Corporations (South Australia) Act 1990, which (during the Code era) conferred the "enforcement power" of prosecuting at trial level upon the CDPP was not expressed broadly enough to permit the CDPP to institute an appeal in relation to what remained State offences. This involved a question of interpreting the lastmentioned State enactment. Later cases have emphasised that the task is one of statutory construction (Australian Securities Commission v McLeod (2000) 22 WAR 255, Vis). 45 In the present case authority to prosecute is clearly conferred on the CDPP by s31 of the CNSW Act set out above (see Hughes at [28]). 46 The appellant then takes a constitutional point that embraces the matters found against him in the foregoing analysis. He submits that s31 of the CNSW Act did not validly empower the CDPP to prosecute the instant offences. This submission involved consideration of Hughes. There the High Court held that the CDPP had received a valid conferral of power to prosecute, stemming from ss28-29, 31-33 of the Corporations (Western Australia) Act 1990 (WA), which is the counterpart of the CNSW Act. Section 47 of the Corporations Act 1989 (Cth), read together with reg 3(1) of the Corporations (Commonwealth Authorities and Officers) Regulations purported to confer authority on the CDPP to prosecute offences under the Corporations Law. 47 In Hughes the High Court considered a challenge to the authority of the CDPP to prosecute State offences arising under the Corporations Law. The general issue is discussed in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at [37]-[46] and in the judgment of Kirby J at [110]-[120]. The ultimate decision in favour of validity turned upon the conclusion that the subject matter of the particular offences engaged s51(i) and s51(xxix) of the Constitution. The charges in Hughes had been laid under s1064(1) of the Corporations Law, read with s1311(1)(a) of the Law. Since, however, the particular offences related to the making of investments in the United States the federal legislative powers in relation to trade and commerce with other countries and matters territorially outside Australia were engaged (see Hughes at [42], [115]. See also R v O'Halloran [2000] NSWCA 528). 48 No constitutional point was raised in the present trial. Had it been, then it is possible that greater attention would have been taken to lay the factual groundwork for resisting the present challenge. Evidence tendered in the appeal by the Crown (the affidavit of Mr Scadden) showed that the impugned dealings with potential investors clearly involved communications across state borders, thus engaging the trade and commerce power. The appellant objected to this tender on the basis that it was not open to the prosecution to repair an evidentiary deficit by tendering fresh evidence on appeal. 49 The jurisprudential nature of the evidentiary problem is not without its difficulties. The Director of Public Prosecutions Act 1983 (Cth) (the CDPP Act) "in a sense is supported by as many heads of power as from time to time have been exercised by the parliament to create offences against Commonwealth laws" (Hughes at 40 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). Constitutional principles are therefore involved and it is not unknown for facts referable to constitutional issues to be tendered on appeal. But those issues impact upon an ostensibly general power to prosecute conferred by federal law. If no federal constitutional power is actually engaged in a particular prosecution the consequence is that the CDPP lacked federal authority to engage in the activity of prosecuting the appellant. But is proof of such authority a requirement of the State law engaged when the CDPP presented the indictment? Does some presumption of validity or regularity apply for the purpose of the prosecution (cf Cassell v The Queen (2000) 201 CLR 189, Hughes at [110]) or is proof of an unchallenged authority an aspect of proof of an essential element of the offences charged which were committed to the jury (cf Cassell at 209 per Kirby J)? Is there an ultimate presumption in favour of constitutional validity (cf The Commonwealth v Tasmania (1983) 158 CLR 1 at 161-8 (Murphy J), Re Turner (1996) 136 ALR 229 at 231 (Kirby J)? 50 At the end of the day I see no need to pursue these interesting questions. Among the evidence tendered in the prosecution was ample material adventitiously available to rebuff this belated point. The prominently advertised subject matter of the interests offered to potential investors was "sale of copyright" (AB 1822ff). Investor enquiries were handled by telephone and brochures and correspondence were "sent out" (by post, I would infer) to investors and investor advisers. These considerations are sufficient to engage s51(xviii) and (v) respectively of the Constitution in the particular case. 51 In all probability they also engage s51(xx) because the charged activities of the appellant related to primary activities of the companies which he controlled (Trainex and Starlight Film Studios) and those activities branded them with the badges of trading or financial corporations (cf Hughes at [41], O'Halloran). 52 These matters expose a different jurisdictional problem that touches counts 12 and 13, and it is one which the CDPP concedes. It is a problem that no one considered at trial. The offences charged in counts 12 and 13 were offences against s780 of the Corporations Law. The maximum penalty on each counts was 50 penalty units or imprisonment for 1 year, or both (s1311(3) and Schedule 3). This rendered the offences summary offences (Crimes Act 1914 (Cth), s4H as picked up by s29(1) of the CNSW Act: see Vis at 508-9). 53 It follows that the District Court lacked jurisdiction to try the charges in counts 12 and 13, since they involved summary offences. The convictions on those charges must be quashed. This quashing should not and does not affect the sentences imposed severally in relation to the remaining counts on which the appellant was convicted, those sentences being appropriate in their own right. 54 SIMPSON J: On 15 February 1999 the appellant was charged on an indictment containing twenty-five counts, six of which were charged as alternatives to six primary charges. He entered pleas of not guilty to each charge. A jury was empanelled and a trial proceeded. On 10 March 1999 the jury returned verdicts of not guilty on two charges and guilty on nineteen charges. Having found the appellant guilty on five of the six primary charges to which an alternative was laid, it was unnecessary for the jury to determine the alternative counts to those charges. 55 The appellant was sentenced on 4 February 2000 to terms of imprisonment which will be detailed below. He now appeals against each conviction and seeks leave to appeal against the severity of the sentences. 56 The charges arose out of an enterprise conducted by the appellant over a period which began in 1989 and ended in about 1994. By reason of limitation provisions in the relevant legislation the charges themselves are limited to events that occurred on or after 5 May 1990. The appellant's activities in the earlier period, however, are relevant to establish the nature of the enterprise and the appellant's state of mind in the later period. 57 The enterprise in which the appellant was engaged was designed to take advantage of taxation concessions offered by Division 10B of Part III of the Income Tax Assessment Act 1936. The appellant was a director of three companies - Trainex Pty Limited ("Trainex"), Starlight Film Studios Limited ("Starlight") and Communications Entertainment Network Limited ("CEN"). Through these companies, on the Crown case, the appellant offered investment opportunities on the basis that copyright in certain primary material would be acquired and films made. Investors would, in effect, have an entitlement to participate in any profits made by the films. It will be necessary to elaborate upon some aspects of the arrangements when the specific charges and individual grounds of appeal are considered. For present purposes the foregoing is a sufficient account. 58 More than $6,000,000 was invested in various amounts, by several thousand investors. Of this sum, approximately $718,000 was used to make films. More than $2,000,000 was applied, in a variety of ways, to the appellant's own benefit. The largest of these amounts was $955,000 which he used to purchase a home unit in Queensland in his own name. Other amounts were paid to the credit of a loan account in Starlight in the appellant's name on which he subsequently drew. Relevant legislation 59 It is convenient here to set out the legislation relevant to the charges on the indictment. N.S.W. LEGISLATION Companies (NSW) Code s.164 "Company" means (a) a public company; (b) a corporation that is a public company under the corresponding law in force in a participating State or in a participating Territory; (c) a corporation that is a public company under the law of a declared State or declared Territory and is registered as a foreign company in [name of State]' (d) in relation to a prescribed interest that relates to an undertaking, scheme, enterprise, contract or arrangement (in this paragraph referred to as the "relevant undertaking") - a body corporate (other than a body corporate of a kind referred to in paragraph (a), (b), or (c)) - (i) formed or incorporated in [name of State] or in a participating State or participating Territory; or (ii) formed or incorporated in a declared State or declared Territory and registered as a foreign company in [name of State], being a body corporate that is declared by the Commission, by instrument in writing, to be a company for the purposes of this Division in relation to the relevant undertaking or in relation to class of undertakings, schemes, enterprises, contracts or arrangements that includes the relevant undertaking; or (e) in relation to a prescribed interest that relates to an undertaking, scheme, enterprise, contract or arrangement (in this paragraph referred to as the "relevant undertaking") - a body corporate (other than a body corporate of a kind referred to in paragraph (a), (b) or (c) formed or incorporated in a participating State or participating Territory, being a body corporate that is, pursuant to a provision of a law in force in that State or Territory that corresponds with paragraph (d), declared by the Commission, by instrument in writing, to be a company for the purposes of the provisions of the law in force in that State or Territory that correspond with this Division in relation to the relevant undertaking or in relation to a class of undertakings, schemes, enterprises, contracts or arrangements that includes the relevant undertaking; " declared State " means a State that is declared by the Commission, by order in writing published in the Gazette , to be a declared State for the purposes of this Division; " declared Territory " means a Territory that is declared by the Commission, by order in writing published in the Gazette , to be a declared Territory for the purposes of this Division; " financial year ", in relation to a deed, means the period of 12 months ending on 30 June or on such other date as is specified in the deed in lieu of 30 June; " management company ", in relation to any prescribed interests issued or proposed to be issued or any deed that relates to any prescribed interests issued or proposed to be issued, means a company by or on behalf of which the prescribed interests have been or are proposed to be issued, and includes any person for the time being exercising the functions of the management company. " Investment contract" means any contract, scheme or arrangement that, in substance and irrespective of the form of the contract, scheme or arrangement, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in or right in respect of property, whether in the State or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in or right in respect of property, whether in the State or elsewhere, acquired in or under like circumstances … s 169 A person, other than a company or an agent of a company authorised for that purpose under the common or official seal of the company, shall not issue to the public, offer to the public for subscription or purchase, or invite the public to subscribe for or purchase, any prescribed interest. A "prescribed interest" is defined in s 5 to include a "participation interest" which is, in turn, defined as: "… any right to participate, or any interest - (a) in any profits, assets or realisation of any financial or business undertaking or scheme whether in the State [NSW] or elsewhere; (b) in any common enterprise, whether in the State or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or (c) in any investment contract, whether or not the right or interest is enforceable, whether the right or interest is actual, prospective or contingent, whether or not the right or interest is evidenced by a formal document and whether or not the right or interest relates to a physical asset, but does not include - (d) such a right that is a right to participate in a time-sharing scheme; (e) any share in, or debenture of, a corporation; (f) any interest in, or arising out of, a policy of life insurance; or (g) an interest in a partnership agreement, unless the agreement or proposed agreement - (i) relates to an undertaking, scheme, enterprise or investment contract promoted by or on behalf of a person whose ordinary business is or includes the promotion of similar undertakings, schemes, enterprises, or investment contracts, whether or not that person is, or is to become, a party to the agreement or proposed agreement; or (ii) is or would be an agreement, or is or would be within a class of agreements, prescribed by the regulations for the purposes of this paragraph;" s 570(1) [Contravention of or non-compliance with Code an offence] A person who - (a) does an act or thing that he is forbidden to do by or under a provision of this Code; (b) does not do an act or thing that he is required or directed to do by or under a provision of this Code; or (c) otherwise contravenes or fails to comply with a provision of this Code, is, unless that provision or another provision of this Code provides that he is guilty of an offence, guilty of an offence by virtue of this sub-section. Securities Industry Code s 43(1) [Licence essential] A person shall not carry on a business of dealing in securities (whether or not that business is part of, or is carried on in conjunction with, any other business) or hold himself out as carrying on such a business unless he is the holder of a dealers licence or is a recognised dealer. Penalty: $5,000 or imprisonment for 1 year, or both. S 43(2) [Exempt dealer] Sub-section (1) does not apply to or in relation to an exempt dealer. Crimes Act 1900 (NSW) s 173 Whosoever, being a director, officer, or member, of any body corporate, or public company, fraudulently takes, or applies, for his own use or benefit, or any use or purpose other than the use or purpose of such body corporate, or company, or fraudulently destroys any of the property of such body corporate, or company, shall be liable to penal servitude for 10 years. s 176A Whosoever, being a director, officer, or member, of any body corporate or public company, cheats or defrauds, or does or omits to do any act with intent to cheat or defraud, the body corporate or company or any person in his dealings with the body corporate or company shall be liable to imprisonment for 10 years. COMMONWEALTH LEGISLATION Corporations Law s 232 (6) [ No gain by improper use of position ] An officer or employee of a corporation must not, in relevant circumstances, make improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the corporation. [By sub s (6A), where the corporation is "a local corporation" the reference to doing an act in relevant circumstances is a reference to doing the act in Australia.] s 780 A person must not: (a) carry on a securities business; or (b) hold out that the person carries on a securities business; unless the person holds a dealers licence or is an exempt dealer. [By s 92, "securities" includes "prescribed interests". A "prescribed interest" is defined in this legislation to include a "participation interest", the definition of which is in relevantly identical terms to that under the State legislation.] s 1018(1) [No offer or invitation without prospectus] A person shall not offer for subscription or purchase, or issue invitations to subscribe for or buy, securities of a corporation unless: (a) a prospectus in relation to the securities has been lodged; (b) the prospectus complies with the requirements of this Division; and (c) if the prospectus is a registrable prospectus - the prospectus has been registered by the Commission under section 1020A. s 1064(1) (By public corporation only] A person, other than a public corporation, must not make available, offer for subscription or purchase, or issue an invitation to subscribe for or buy, any prescribed interest. s 1311(1) [Offence where not provided elsewhere] A person who: (a) does an act or thing that the person is forbidden to do by or under a provision of this Law; (b) does not do an act or thing that the person is required or directed to do by or under a provision of this Law; or (c) otherwise contravenes a provision of this Law; is guilty of an offence by virtue of this subsection, unless that or another provision of this Law provides that the person: (d) is guilty of an offence; or (d) is not guilty of an offence. Crimes Act 1914 5.(1) Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly. The charges Counts 1 - 4: 60 The counts numbered 1 - 4 on the indictment were expressed to be laid under ss 169 and 570(1) of the Companies (NSW) Code. Each alleged that, between 5 May 1990 and 31 December 1990, the appellant was knowingly concerned in the commission of an offence against those sections by Trainex. The offence said to have been committed by Trainex was, in each case, offering a prescribed interest to the public for subscription or purchase, in contravention of the two sections. Each charge concerned an alleged offer in relation to a different film. Counts 5 - 8: 61 The counts numbered 5 - 8 were expressed to be laid under ss 1064(1) and 1311(1)(a) of the Corporations Law. Each alleged that, between 1 January 1991 and 30 June 1991, the appellant was knowingly concerned in the commission by Trainex of an offence against those sections. The offence said to have been committed by Trainex was, while not a public corporation, offering a prescribed right for subscription or purchase. Each of these charges also concerned an alleged offer in relation to a different film. Counts 9 - 10: 62 By counts 9 and 10 it was alleged that the appellant was, between 1 July 1991 and 30 June 1992, knowingly concerned in the commission of offences by Starlight against ss1018(1) and 1311(1) of the Corporations Law. The offences it was alleged Starlight had committed were offering prescribed interests for subscription or purchase, no prospectus having been registered with the Australian Securities Commission. Count 11: 63 Count 11 was a charge brought under s 43 of the Securities Industry (NSW) Code. It alleged that, between 5 May 1990 and 31 December 1990, the appellant was knowingly concerned in the commission of an offence by Trainex against that section. It alleged that, between those dates, Trainex carried on a business of dealing with securities while not the holder of a dealer's licence, and not being a recognised dealer or an exempt dealer. Counts 12 - 13: 64 In counts 12 and 13 it was alleged that the appellant, between 1 January 1991 and 30 June 1991 (count 12) and between 1 July 1991 and 30 June 1992 (Count 13) the appellant was knowingly concerned in the commission of offences by Trainex and Starlight respectively against s 780 of the Corporations Law. The offence it was alleged each company had committed was carrying on a securities business without holding a dealer's licence or being an exempt dealer. Counts 14, 16, 18, 20, 22, 24: 65 These counts were laid under s 173 of the Crimes Act 1900. Each alleged that, between different specified dates in 1991, the appellant as a director (counts 14, 16, 18 and 24) or officer (counts 20, 22) of a body corporate, fraudulently applied for his own use (counts 14,16 and 18), or for purposes other than those of Trainex (counts 20 and 22), property owned by Trainex or (in the case of count 24) CEN. Counts 15, 17, 19, 21, 23, 25: 66 These counts were charged respectively as alternatives to counts 14, 16, 18, 20, 22 and 24. In each case it was alleged that, between the stated dates, the appellant as an officer of a corporation made improper use of his position to gain advantage for himself by causing the payment of money to himself or on his behalf. These counts relied upon s 232(6) of the Corporations Law. 67 It will be observed that proof of counts 1 - 13 depended upon proof, inter alia, of an essential element: that the appellant was knowingly concerned in the offences it was alleged that the relevant company had committed; and that proof of counts 1 - 10 depended also upon proof, inter alia, that the conduct alleged involved "a prescribed interest" as defined in the relevant legislation. 68 The trial commenced on 15 February 1999. The appellant was then represented by counsel. He continued to be so represented throughout the entirety of the Crown case, and, initially, during the defence case, in which he gave sworn evidence. On 2 March, while under cross-examination, he terminated his instructions to his legal representatives, and for the remainder of the trial appeared unrepresented. In these circumstances, in my view, Rule 4 of the Criminal Appeal Rules should not preclude consideration of any grounds of appeal raised. 69 The jury convicted on counts 1 - 14, 16, 18, 20 and 22. Having convicted on counts 14, 16, 18, 20 and 22, it returned no verdict on the alternatives to those counts (15, 17, 19, 21 and 23). The jury acquitted on both count 24 and its alternative, count 25. Sentences 70 On 4 February 2000 Judge Rummery sentenced the appellant. The sentences were as follows: (i) Counts 1 - 4: penal servitude for a fixed term of three years and one month commencing 30 January 1997 (ii) Counts 14 and 16: penal servitude for five years and three months, made up of a minimum term of three years and three months and an additional term of two years, commencing 30 January 1997; (iii) Count 20: penal servitude for six years, made up of a minimum term of four years and an additional term of two years, commencing 30 January 1997; (iv) Count 18: penal servitude for seven years, made up of a minimum term of five years and an additional term of two years, commencing 30 January 1997; (v) Counts 5 - 10: imprisonment for a fixed term of three years and one month commencing 30 January 1997; (vi) Counts 11 and 22: imprisonment for a fixed term of six months commencing 30 January 2002 (the date of the expiration of the minimum term imposed in respect of count 18); (vii) Counts 12 and 13: imprisonment for a fixed term of six months commencing 29 January 2002. Counts 1 - 4, 11 and 14 - 22 were charges laid under NSW legislation. Counts 5 - 10, 12 and 13 were charges laid under federal legislation. The Crown case 71 Put shortly, the Crown case was that the entire enterprise was a sham. The nature of the enterprise, as the Crown presented it, may be illustrated by reference to one project. This concerns a proposed film series called Toddler Taming, which was to be based upon a book of the same name by Dr Christopher Green. In March 1988, after some months of negotiations, Dr Green and his wife assigned all film, television and video rights in Toddler Taming to Trainex. The agreement was contained in a document entitled Film Rights Agreement which was executed on 21 March 1998. The agreement named Dr Green and his wife as "the authors", and Trainex, trading as Trainex Film Productions, as the purchaser. It was signed by the appellant on behalf of Trainex. The agreement became Ex 7. As the title of the agreement suggests, it gave Trainex the right to do what was necessary for, or associated with, the making of a film based upon Dr Green's book. Dr and Mrs Green were to receive a sum of $5,000 and, thereafter, 5 percent of the wholesale selling price received by Trainex for the sale of the film when made. 72 Subsequently the appellant gave Dr Green documentation relating to investment in the proposed film, with the suggestion that he might consider investing in the project. This same documentation was sent to others targeted as potential investors in that film. 73 The documentation included a one page document giving some information about "Trainex Film Productions", and an invitation for applications for investment in a series of films to be made of Toddler Taming. Included in this, under the heading "Investment Interest" was the following: " HOW TO INVEST Persons seeking to invest in the film should contact either their accountant who supplied this offer document, or Mr Robert McLeod on 922 2888 or write to P.O. Box 1633, North Sydney, 2060." (AB 1337) 74 An "Investor's Deed" was executed by Trainex and each person who invested in the film Toddler Taming. Some provisions of the Deed may here be noted. The essential provision was that each investor agreed to invest a specified amount in the film to be called Toddler Taming, which was to be completed by no later than 30 December 1990. Copyright in the film was to be owned as to 50 percent by Trainex and as to the remaining 50 percent by investors in proportion to their investments. By clause 2.2 Trainex was to deposit the invested funds into a Trust Account; by clause 2.3 Trainex was permitted to invest the funds in any interest bearing or discounted securities authorised by the Trustee Act 1925. On satisfaction of defined subscription conditions (essentially the raising of sufficient funds to meet the budgeted cost of making the film) Trainex was obliged, by clause 5, to proceed with the production of the film. A number of additional conditions, unnecessary here to detail, were specified in a series of subclauses to clause 5. 75 By clause 6.1 (a) each investor was to be one of the first owners of the copyright in the film. (This was essential if the projected taxation benefits of Part 111, Division 10 BA of the Income Tax Assessment Act 1936 were to be achieved.) The Deed contained a further acknowledgment (clause 8.1) that from the completion date (as defined) the copyright in the film would be owned by investors and Trainex in the proportions already mentioned. 76 The parties to the Deed agreed that, subject to presently irrelevant exceptions, Trainex or its agent would hold on behalf of the investors all rights necessary to make and market the film (clause 6.1 (b)). Clause 10 provided for the disbursement of the net proceeds of the film. Investors were entitled to a return of the amount invested, and, after repayment of any funds advanced for the completion of the film by non-investors, a proportionate share in any additional proceeds. 77 Various investment options were offered. By far the most popular among these was that identified as "Option C" which allowed the investor to elect to contribute, in actual funds, only 30 percent of the nominal investment amount. The remaining 70 percent was, according to the documentation, to be "subsidised" by Trainex. The investor, having contributed only 30 percent, would, however, (again according to the documentation) be entitled to an income tax concession in relation to 100 percent of the nominal investment. In reality, the 70 percent "subsidy" was never paid, and appeared only as an entry in the books of account. 78 From time to time after entering the agreement investors were sent letters containing "investment details", also referred to as "income statements". One such statement, again taken by way of illustration, was sent in 1989 to a person who had invested in Toddler Taming. The letter contained the assertion: "There is a requirement that a concession claimed in relation to a film under 10B of Tax Act should be income producing in the year in which the concession (or deduction) is claimed. The above film has met that requirement." (AB 1804) 79 The investor was advised to declare, for taxation purposes: "The film has become income producing and the amount credited to my account is $195.65." (AB 1804) The investor was told that further statements would be sent quarterly. 80 Subsequent income statements, in a slightly different form, attributed income to "video sales - initial order", or "video sales - second order" and later orders. Investors were able to elect whether to receive the relatively small amounts of income or to have them reinvested. 81 These statements created the illusion that a film had been made, that marketing had begun, and that income was being generated. The truth was that ten videos constituting the Toddler Taming series were taped between August and December 1990, after considerable agitation by Dr Green. There was, in fact, no income from film production. The appearance of such income was created by allocating fresh investment funds to that purpose. 82 In November 1989 a cheque in the amount of $300,000 was drawn on Trainex's business account. It was paid into the trust account of a firm of solicitors representing the vendor of a property purchased in the appellant's name. 83 Over a period substantial sums were paid from Trainex's accounts and credited to the appellant's loan accounts, from which the appellant drew from time to time. In 1991, cheques totalling $955,000 were drawn on Trainex's accounts and applied to the purchase of a home unit on the Gold Coast in the appellant's name. 84 In late 1991 or early 1992 the Australian Securities Commission ("the ASC" was investigating the enterprise. The appellant directed David Staume, Trainex's account manager and office manager, to remove company records to a storage centre in Ultimo. His stated purpose was to ensure that they would not be found by the ASC. The defence case 85 The appellant gave evidence. In short, the position he maintained was that the transaction between Trainex (later Starlight) and the investors was not a transaction conferring upon investors rights to participate, or any interest, in the profits of the films, but was a sale to the investors of the copyright, not in the films when made, but in the screenplays upon which the films were to be based, or in the scripts for the films. If that were so, the investors would not have a "prescribed interest", a necessary element in counts 1 - 10. 86 The appellant claimed that the 70 percent subsidy was a gift to the investors, and that an equivalent interest of the same value on the film project was also a gift by him to the investors. (AB526) 87 He explained the payments of sums of money to himself or on his behalf as being either loans or by way of payment for his services to the company. He asserted that Trainex owed him more money than he owed it. He claimed to have directed David Staume, the company's account and office manager, to record all such payments as loans. The Appeal against Conviction 88 In all, 18 grounds of appeal were pleaded. Some overlap, and may be disposed of jointly. No submissions were addressed to the ground numbered 1, and it is not necessary to record it. In relation to the grounds numbered 2, 17 and 18, I have read in draft, and agree with, the judgment of Mason P. Grounds 3, 4, 8 and 10 89 These grounds were pleaded as follows: 3. The evidence in respect of counts 14, 16, 18, 20 and 22 did not constitute the offences charged. 4. (a) His Honour erred in law in not directing a verdict of acquittal in respect of all the above counts; (b) alternatively there was a miscarriage of justice in that the verdicts were unsafe and unsatisfactory and/or against the evidence and the weight of the evidence. 8. His Honour erred in law in misdirecting and/or not directing as to 'fraudulently' in counts 14, 16, 18, 20, 22. 10. His Honour misdirected and/or failed to direct the jury as to the elements of the offences of fraud in counts 14, 16, 18, 20 and 22. 90 I take Ground 3 to be a challenge to the sufficiency of the evidence to establish proof of the criminal conduct alleged. 91 As I perceive it, Ground 4 raises essentially the same matters as Ground 3. All these grounds can conveniently be dealt with together. 92 The counts to which these grounds are directed, brought under s 173 of the Crimes Act 1900, are charges that the appellant as a director (counts 14, 16 and 18) or officer (counts 20 and 22) fraudulently applied property of the body corporate to his own use (counts 14, 16 and 18) or for a purpose other than that of the body corporate (counts 20 and 22). Fraudulent intent is an ingredient in each offence. It was in relation to this ingredient that the appellant contended the evidence was deficient. 93 In his written submissions counsel for the appellant focused not only upon the asserted insufficiency of evidence to prove fraudulence, but also criticised the directions given by the trial judge. 94 In R v Glenister [1980] 2 NSWLR 597 this court equated the fraudulent intent element of a charge under s 173 with dishonesty (p 607). It is necessary for the Crown to establish that the dishonesty existed at the time of the relevant transaction: Peters v R (1998) 192 CLR 493; R v Lawson (1996) 86 A Crim R 111. 95 There was in this case ample evidence on which the jury could conclude that the appellant, at the relevant times, acted dishonestly. This evidence included evidence of the disposal of the investors' funds: of more than $6 million invested, approximately $2.2 million was used for the appellant's own purposes. He in fact made formal admissions, pursuant to s 184 of the Evidence Act 1995, to that effect. A very small proportion of the funds ($718,000) was used in producing films. The income statement sent to investors falsely represented that income had been derived. The "income" they showed was in fact funds derived from subsequent investors, and not from the marketing of completed film. The so-called subsidy of 70 percent offered to investors was similarly a misrepresentation of the true position. The instruction given by the appellant to David Staume to conceal records from the ASC was evidence the jury were entitled to use as evidence of dishonesty. 96 There is no substance in the submission that the prosecution evidence was insufficient to support a finding of dishonesty. 97 The criticism of the directions given to the jury was two-fold. First, it was submitted that the directions failed to bring home to the jury the need for the Crown to show that a dishonest intent existed at the time of the acts (or omissions) constituting the actus reus of the crime; Second, that the trial judge failed to alert the jury to a possible "claim of right" on the part of the appellant. 98 On the first day of the summing-up the judge directed the jury in the following terms: "In paragraph 30 [referring to written directions given to the jury] you are told that the fraudulent means dishonest (sic). To act fraudulently is to act dishonestly. In deciding whether the acts of the accused, such acts as you find he did on the evidence that you have, in applying the property of Trainex in the manner you find he did, and there does not seem to be any dispute about where the money went to and for what purpose it went in relation to this unit in the Gold Coast, but in deciding whether such acts of the accused as you find he did in applying the property of Trainex in the manner you find he did was or was not dishonest you as the jury apply the current standards of ordinary decent people." 99 The following day the judge returned to this topic. He said: "I should have said this to you yesterday that the accused's state of mind may also be relevant to the question of whether or not he acted improperly. For example if he reasonably believed that what he did was genuinely for the benefit of the company that belief may be relevant in determining whether he can be held to be criminally responsible for using his position in the way that he did. I might not have made clear to you yesterday that in the accused's case after counts 1 - 13 is that he was legally entitled to use the company funds in the way that did. Specifically he said that one, he is owed money for his services such as script writing, acting as a producer and an executive producer. Acting as the director of a company and generally managing the company and acquiring copyright. Two, that he directed Mr Storm (sic) to record all money advanced to him as loans and three, that Trainex owed him more money than he owed Trainex. Of course you also recall the Crown address to you and his submissions as to why you should find the accused acted dishonestly. I remind you of my directions to you especially in relation to the meaning of fraudulently which is in paragraph 30 of my aide memoir that you have that and in assessing the accused's case that he was entitled to use the company money as he did you should apply the same principles, that is whether by ordinary notions the accused was acting honestly by the standards of ordinary decent people. Finally I remind you that again the onus remains on the Crown to establish the elements of the charges beyond reasonable doubt." 100 The judge gave written directions which contained the following paragraph: "(30) Fraudulent means dishonest. To act fraudulently is to act dishonestly. In deciding whether the acts of the accused in applying the property of Trainex in the manner you find he did was or was not dishonest, you should apply the current standards of ordinary decent people." 101 I am satisfied that these directions were not inadequate in the circumstances. One specific complaint that was made was that the oral direction concerning the appellant's state of mind used the word "reasonably" where it should have used the word "honestly", and that, as framed, the direction had the tendency to reverse the onus of proof in such a way as to suggest that it was for the appellant to establish an honest belief rather than for the Crown to negative such a belief. 102 Given that the judge had given the usual directions as to the onus of proof, I see no merit in the argument that the direction reversed the onus of proof. 103 The use of the word "reasonably" could, potentially, be of more significance. However, it was, to my mind, inconsequential in the overall summing-up. The last words spoken to the jury by the judge were the reminder that the onus of proof lay upon the Crown. 104 A further matter raised by the appellant in relation to each of these charges concerned the nature of the "property" the subject of the charge. In each case, the substance of the charge is the fraudulent application of "property", being the property of the corporation. In each count, the "property" is identified as a sum of money said to have been owed by the Chase AMP Bank to the corporation. 105 In my opinion the submissions made on behalf of the appellant are based upon a misconception both of the indictment and the written directions. In the written submissions it was said that: "The property referred to in counts 14, 16, 18, 20, 22 was said to be a cheque in each case (see pp 6 and 8 of Written Directions) …" 106 I have already observed that each count in the indictment identified the relevant "property" as a sum of money. No count identified a cheque as the relevant property. Further, in the written directions, under the sub heading "Applied", the following appears: "The Crown case is that the application of property of Trainex was in each case by a cheque drawn upon the bank account of Trainex at the Chase AMP Bank which cheque was presented for payment and paid, the moneys so paid being utilised as payment for the Gold Coast property which the accused purchased. The property of Trainex is the money standing to the credit of Trainex at the bank." (italics and underlining in original) 107 It is quite clear from this direction that the "property" in question was, in each case, a sum of money. This was reinforced by the directions given orally, when his Honour said: "Now the property on the Crown case which was applied was the money standing to the credit of Trainex at the Chase AMP Bank. For his own use, paragraph 29 the Crown case is that such use of Trainex funds was for the accused's own use which was contrary to a use or purpose of Trainex." 108 A specific aspect of the argument in relation to these grounds concerned what was said to have been "a claim of right". 109 In his evidence in chief the appellant said that he regarded the funds as being funds belonging to Trainex, and himself as being the owner of Trainex, and therefore the owner of the money. He said that he had not, in the early years, drawn a salary but, that, when the company's financial position was more secure, he was entitled to do so. He said that he believed that the company owed him more than the amount that he borrowed from it. 110 Counsel for the appellant relied upon a passage in the decision of the High Court in Peters, in which Toohey and Gaudron JJ said: "There may be cases where the evidence is such that, even though the issue is not specifically raised, it is necessary to instruct the jury that they must be satisfied that the accused neither had nor believed that he had a legal right to prejudice or imperil the rights or interests of the victim of the intended fraud. But that is not the case where, as here, the appellant asserted no such right or belief and the assertion of a right or belief that he had a right to prejudice the Commissioner in relation to tax payable by Spong would have been patently absurd." 111 Their Honours held that in the circumstances of that case an instruction that the jury had to be satisfied that the appellant's conduct was dishonest according to the standards of ordinary, honest people and that he knew it was dishonest by those standards was a direction more favourable than that to which he was entitled. 112 The judge expressly referred to this evidence in the summing-up. Having referred specifically to the evidence given by the appellant, he reminded the jury of the directions in relation to the meaning of "fraudulently" and directed the jury that they should apply the same principles "in assessing the accused(sic) case that he was entitled to use the company money as he did". 113 In the circumstances, in my view, this was an entirely adequate direction. It is difficult to see how, if the jury found that the appellant had acted dishonestly, they could then find that he acted under a bona fide belief that he was entitled to do as he did. Where dishonesty is a specific element of an offence charged, it is difficult to see that a bona fide claim of right adds anything, or requires anything additional by way of directions. Here, in fact, the jury was specifically reminded of the factual matters the appellant relied on to support the assertion of a claim of right. 114 In my opinion there is no substance to the criticism of the directions given in relation to these counts. I would reject Grounds 3, 4, 8 and 10. Grounds 5 and 9 115 Each of these Grounds is concerned with counts 1 - 13 inclusive, and particularly the concepts of "prescribed interests" and "participation interests" pursuant to the Companies (NSW) Code and the Corporations Law. By Ground 5 the appellant complains that the case put to the jury by the Crown in its final submissions, and by the trial judge in his summing-up, was at variance from the Crown case in relation to "prescribed interests" as opened to the jury, and that a miscarriage of justice was thereby occasioned. By Ground 9 the appellant complains of the directions of law given in relation to "prescribed interest" and "participation interest". 116 The salient legislative provisions are the definitions of "prescribed interest" which relevantly includes a participation interest, and of "participation interest", which, in short, means any right to participate, or any interest in any profits, assets or realisation of any financial or business undertaking or scheme, in any common enterprise, in relation to which the holder of the right or interest is led to expect profits or interest from the efforts of the promoter of the enterprise or a third party, or in any investment contract, whether or not the right or interest is enforceable, whether the right or interest is actual, prospective or contingent, and whether or not the right or interest is evidenced by a formal document, and whether or not the right or interest relates to a physical asset. Certain rights or interests, presently immaterial, are excluded from the definition. 117 The Crown opened its case in this respect by saying: "For present purposes a prescribed interest in investment is one in which investors participate in a common enterprise for profit. … In this case the investments the Crown says were prescribed interests because investors paid money for a proportionate share in the copyright of particular films. The ownership of the film copyright gave investors part of an asset of the undertaking of the film, and the ownership of the film copyright also gave investors a right to participate in the income generated by sale or distribution of the film. … The Crown says these are prescribed interests because they involve the banding together of numerous investors in a common enterprise from which they are led to expect that they will obtain profits, and that they were made in similar circumstances." 118 It is apparent from this that the Crown did not confine itself to any one of the three sub groups of "participation interest" into which the definition is divided. The opening is broad enough to incorporate any or all of the descriptions there contained. 119 In his closing address the Crown Prosecutor referred to the three aspects of the definition of "prescribed interest", and put to the jury that the scheme it alleged had been promoted by the appellant comfortably fell within any of the three parts of the definition. In the written directions each of the three parts of the definition was set out. 120 In the oral directions the trial judge referred to the written directions and, in effect, repeated what was there set out. He then told the jury that it was a matter for them to determine as a matter of fact whether the rights given to investors under the contract came within any of the three parts of the definition. 121 I perceive no variation from the Crown opening in what was said in final address by the Crown, or in summing-up or written directions by the judge. Ground 5 should, in my opinion, fail. 122 No separate argument was directed to the complaint about the adequacy of the directions given. In my opinion, they were, as can be seen from the extract set out above, clear and concise and provided the relevant assistance to the jury. 123 I would reject this ground of appeal. Ground 6 124 By Ground 6 the appellant complains that the trial judge failed adequately to put the defence case to the jury and misdirected or failed to direct the jury as to the relevant facts asserted by the Crown and those asserted by the defence in respect of the elements of each offence. 125 In written submissions reference was made to R v Piazza (1997) 94 A Crim R 459 and R v Zorad (1990) 19 NSWLR 91. These cases reinforce the principle that a summing-up should contain directions as to the relevant law, its application to the facts of a particular case, the ingredients of the offence charged, and "a collected resume" of the evidence relevant to each of the ingredients, and a brief outline of the argument put by or on behalf of the parties. 126 The precise criticism that was made was that, in relation, for example, to the directions relating to "prescribed interest", no reference was made to the relevant parts of the evidence and the jury was left to "forage" through the exhibits and evidence to find the facts supporting the competing positions. 127 Counsel contrasted these directions with those given in relation to fraud, which were more detailed. In respect of the fraud counts the appellant was acquitted. 128 In the summing-up the trial judge referred to evidence given by the appellant and encapsulated the case that he sought to make. He, in effect, summarised this position by saying: "Mr McLeod in his evidence made it clear and supported it by what he said in his address was that his motivation was to use a scheme called 10(B) and not 10(B)(A) (sic). He said what these investors so called acquired was a copyright interest, an interest in the copyright, and such an interest is property, that is what they got, that the funds that they contributed were company funds and he controlled the company. The company used its own money, consistent with the policy he had given it. He said that he was owed a deal of money by Trainex. He said that he gave instructions to Mr Storm(sic) to deal with moneys by way of loan. He said Trainex owed him far more than he owed it. Specifically in relation to the CEN matters he says of course, … what they were getting there was a copyright in the US company, CEN Inc. He said that he had a copyright in a new 'Compulsory Heroes' script, it belonged to him and that he was going to, I think he said license it to CEN Incorporated and the money was not an investment in CEN Limited, that is the Australian company which had only an administrative function." 129 There were more references to the case the appellant sought to make. I do not think the jury could have been in any doubt as to the appellant's position. On a fair reading of the summing-up there was no failure properly to direct the jury in relation to the relevant factual matters. I would reject Ground 6. 130 A ground numbered 7 was pleaded but, at the hearing of the appeal, was not pressed. Ground 11 131 Ground 11 in the Notice of Grounds of Appeal is expressed as follows: "His Honour erred in law in misdirecting and/or failing to direct the jury as to the elements of counts 1 - 4." 132 However, in written submissions the complaint that was made concerned what was said to be a defect in the indictment in relation to each of these charges. It is necessary only to set out the terms of the indictment in respect of count 1. It is framed as follows: "Between 5 May 1990 and 31 December 1990, at Sydney in the State of New South Wales, [the appellant] was knowingly concerned in the commission of an offence against sections 169 and 570(1) of the Companies (NSW) Code by Trainex Pty Limited ("Trainex"), namely an offence that between 5 May 1990 and 31 December 1990 at Sydney in the State of New South Wales, Trainex offered to the public for subscription or purchase a prescribed interest, namely rights in respect of copyright in the cinematographic film 'Toddler Taming'." Counts 2 to 4 were similarly framed. 133 The commission of an offence against sections 169 and 170(1) by Trainex was a necessary pre-requisite to each charge that the appellant was knowingly concerned in such an offence. 134 Recourse to those sections discloses that proof that Trainex committed the offence required, in turn, proof that Trainex was not a company within the meaning of s 169 of the Companies Code. That required proof that Trainex did not fall within any of the descriptions or definitions of "company" contained in s 164 (1) of the Companies Code. 135 The defect that the appellant asserts can be identified in the indictment is the absence of any averment that Trainex was not a company within the meaning of that section. 136 The averment in the indictment that Trainex had committed an offence against s 169 necessarily implied that Trainex was not a company within the s 164(1) definition. It was not necessary, in my opinion, for that fact to be separately averred. The appellant, who, at the time he was arraigned, was legally represented, could have been in no doubt that that was an element of the charge alleged to have been committed by the company. Proof of that circumstance was given by an investigator of the Australian Securities and Investment Commission, ("ASIC") and was not disputed. If there were a defect in the indictment, and I do not think there was, it was of such a technical nature as to be of no consequence. The fact alleged to have been omitted from the count as framed was, in the trial, proved, and was plainly not an issue. 137 A similar argument was raised in relation to counts 9 and 10, which alleged the appellant was knowingly concerned in the commission of offences by Starlight against ss 1018(1) and 1311(1) of the Corporations Law. In these counts, the Crown alleged that the offence by Starlight was offering "for subscription or purchase securities, namely prescribed interests …" The omission, which the appellant urges is fundamental, is an allegation that the securities were securities of a corporation. 138 For the reasons given in relation to the same argument concerning counts 1 - 4 I am satisfied that there is no substance in this argument. I would reject Ground 11. Ground 12 139 By Ground 12 the appellant complains of directions given as to "consciousness of guilt". 140 The particular evidence on which the Crown relied as evidence of consciousness of guilt was the evidence that the appellant had instructed Mr Staume to remove and conceal files in order to avoid their discovery by the ASC. The trial judge reminded the jury of this evidence, and the submission that had been put on behalf of the Crown. He then added: "You have to remember that people do not always act rationally and conduct of that kind, perhaps can be explained in other ways. It may be a result of panic to hide some other misconduct, which has got nothing to do with the matter before you and you will remember that the accused gave an explanation and I'm looking at the transcript at page 634, this is during cross-examination." 141 His Honour then read out a number of questions and answers. Included was an answer given by the appellant, explaining his action as being: "… I believe to preserve what is my property and the property of my company and preserve the records." 142 He then said: "… if you accept that as a possible explanation, then you are not able to draw the inference that the Crown asks you to draw in relation to his actions being done because of a consciousness of guilt on his part." 143 In my opinion this was, in the circumstances, an adequate direction. It drew to the jury's attention the evidence relied on both by the Crown and by the appellant, and properly put in context the approach to be taken in consideration of the evidence. 144 A specific criticism was that the words "If you accept that as a possible explanation" amounted to a reversal of the onus of proof, but I would also reject this criticism. The word "possible" is of considerable importance. The direction was classically correct. 145 Finally, it was argued that the direction failed to specify the charges to which it related, or to state that the jury had to be satisfied beyond reasonable doubt. The first of these arguments must be rejected. The evidence upon which the Crown relied as consciousness of guilt related to the appellant's conduct generally and was concerned with all of the charges. Nor is there any substance in the second matter raised. The jury were told a number of times about the onus and standard of proof. 146 Finally, it was said that the direction was misconceived because, at the time the documents were removed, no charges had been laid and there was no evidence that the concealment was deliberate, with the charges in mind. This argument misapprehends the nature of "consciousness of guilt" evidence. An offender may well act in such a way as to evidence consciousness of guilt before charges are laid. In this case there was evidence that ASIC had begun its investigations and it was with this in mind that the appellant took the course he did. 147 I would reject Ground 12. Ground 13 148 Ground 13 is framed as follows: "His Honour erred in law in misdirecting as to: (a) choosing between different versions … (b) who is to be believed? …" 149 Once again, the specific complaint made in the written submission is that the directions reversed the onus of proof. 150 The passages in the summing-up of which complaint is made are the following: "You can that is to say arrive at a conclusion that any witness or for that matter the accused is accurate on some matters but inaccurate or mistaken in respect of others. … We are I suggest to you in our ordinary lives commonly at times confronted with situations where different people give us different versions of something that has happened and sometimes the situation is where, for one reason or other, we have to choose between those different versions. It is easy to perhaps think of examples of things like that when one is dealing with children … we probably make up our decisions as to what we accept and what we do not accept without exactly spelling out in our minds just how we are doing it or possibly even the fact that we are doing it." (S/U 13 - 14) It may be said and indeed you may well be saying it to yourselves that this case turns upon a conflict between the evidence of the prosecution witnesses and the evidence of the accused. You may ask yourselves who is to be believed, but even if you think the prosecution witnesses are probably telling the truth, that does not conclude the issue whether the prosecution has proved the case against the accused. Even if you prefer the evidence for the prosecution you should not convict the accused unless you are satisfied beyond reasonable doubt of the truth of the evidence, the evidence which you accept is going to establish the elements or ingredients in each of these counts which you have to consider." (S/U 53) 151 There is no merit in the criticism made of these directions. They were properly balanced directions, reminding the jury of the onus and standard of proof. I would reject Ground 13. 152 Grounds numbered 14 and 15 were pleaded but not pressed. I have already recorded my agreement with the conclusions of Mason P in relation to Grounds 17 and 18. Application for leave to appeal against sentence 153 The appellant was sentenced on 4 February 2000. The sentences have been set out above. In total, he was sentenced to a minimum term of five and a half years' imprisonment, commencing 30 January 1997, with an additional term of eighteen months. Count 18 was made the vehicle for the bulk of the term. On that count the appellant was sentenced to penal servitude for seven years with a minimum term of five years. The remainder of the effective term was brought about by the imposition of two cumulative fixed terms of six months, imposed in relation to counts 11 and 22. All other sentences were subsumed within that overall term. 154 The appellant was born on 22 November 1954. The offences were committed over a period beginning in May 1990 and ending in June 1992, when the appellant was aged between thirty-seven and thirty-nine. He had a previous criminal history, which included a number of convictions for false pretences, obtaining financial advantage by deception, and forging and uttering. He had served previous terms of imprisonment. There was evidence before the court of his personal history, which included some disruptive events in childhood. There were psychiatric reports which fell short of diagnosing a specific psychiatric illness, but suggested personality disorder. 155 Two complaints were made in relation to sentence. The first is that the accumulation of the two fixed terms in relation to counts 11 and 22 was not warranted. The second is that, having regard to the whole of the circumstances, the overall term is manifestly excessive. Reliance was placed upon the appellant's evidence that he had obtained legal advice, and that investors were fully appraised of the speculative nature of the venture in which they invested. 156 I see no error in the accumulation of the sentences. In any event, if the accumulation had not been made, it would have been appropriate to extend the sentence in relation to count 18 to accommodate that six month period. Nor do I consider that the claim that the overall term was excessive has been substantiated. These were very serious offences, they were committed over an extend period of time, and they involved large sums of money. In this respect the sentencing judge said: "His criminal behaviour was deliberate, persistent, serious and wilful. His scheme to raise large sums of money from the public and its implementation were in some respects sophisticated, and involved practised deceit." 157 I see no error in this assessment and it amply justifies the overall term imposed. I would grant leave to appeal against the severity of the sentences, but would dismiss the appeal. 158 The orders I propose are: (i) on counts 12 and 13: appeal against conviction allowed, convictions quashed; (ii) on all other counts: appeal against conviction dismissed; (iii) the appellant be granted leave to appeal against sentence; (iv) the appeal against the sentences imposed in relation to counts 12 and 13 be allowed, and the sentences imposed be quashed; (v) in relation to all other counts, the appeal against sentence be dismissed. 159 NEWMAN AJ: I have had the advantage of reading the judgments of Mason P and Simpson J in this matter. I agree with both the reasons given by their Honours and the orders proposed. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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