New South Wales Supreme Court CITATION : David John Muir v Commonwealth Director of Public Prosecutions [2004] NSWSC 983 HEARING DATE(S) : 19 October 2004 JUDGMENT DATE : 19 October 2004 JUDGMENT OF : Dunford J DECISION : Order of Local Court affirmed - summons dismissed CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Commonwealth prisoner - trial transfer order - autrefois convict - double jeopardy - abuse of process - WORDS AND PHRASES - to stand trial Corporations Act 2001 (Cth) Crimes Act 1914 (Cth) LEGISLATION CITED : Justices Act 1902 (WA) Proceeds of Crime Act 1987 Transfer of Prisoners Act 1983 (Cth) Connolly v The Director of Public Prosecutions [1964] AC 1254 CASES CITED : Pearce v the Queen [1998] HCA 57, 194 CLR 610 R v De Simoni (1981) 147 CLR 383 PARTIES : David John Muir v Commonwealth Director of Public Prosecutions FILE NUMBER(S) : SC 11882/04 COUNSEL : P Collaery - Plaintiff M G Allnutt - Defendant SOLICITORS : CC Law - Plaintiff Commonwealth Director of Public Prosecutions - Defendant LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT P Russell LCM JUDICIAL OFFICER : - 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J TUESDAY, 19 OCTOBER 2004 11882/04 DAVID JOHN MUIR v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS JUDGMENT 1 HIS HONOUR: This is an application for review of a trial transfer order pursuant to s 10 of the Transfer of Prisoners Act 1983 (Cth) made in the Queanbeyan Local Court (Ms P Russell LCM) on 10 June 2004 for the transfer of the plaintiff, a Commonwealth prisoner presently held at Goulburn Correctional Centre in New South Wales, to Western Australia to stand trial on a number of charges laid under the Corporations Act 2001 (Cth). The review is by way of rehearing: s 11(5). 2 The plaintiff stood trial in the Supreme Court of the Australian Capital Territory and was convicted on four counts, namely: 1. Between 1 January 1998 and 10 January 1998 at Canberra he defrauded the Commonwealth in that he caused the sum of $1,850 to be transferred from the Commonwealth to Intersat Australia Pty Ltd. 2. Between 1 January 1998 and 27 January 1998 at Canberra he defrauded the Commonwealth in that he caused the sum of $8,842.15 to be transferred from the Commonwealth to Intersat Australia Pty Ltd. 3. On or about 17 April 1998 at Canberra he defrauded the Commonwealth in that he caused the sum of $6 million to be transferred from the Commonwealth to CTC Resources NL 4. On or about 23 September 1998 at Canberra he defrauded the Commonwealth in that he caused the sum of $2,725,000 to be transferred from the Commonwealth to Davis Samuel Pty Ltd. 5. Between 1 January 1998 and 25 September 1998 at Canberra he engaged in organised fraud. 3 The first four counts were laid under s 29D of the Crimes Act 1914 (Cth), since repealed, and the fourth count under s 83 of the Proceeds of Crime Act 1987, also since repealed. The fifth count was based on his conviction on not less than 3 of the other counts. The amount involved in the charges was in excess of $8.73 million. 4 On 25 September 2001 he was sentenced to imprisonment for seven and a half years to date from 5 June 2001 and a non-parole period of three and a half years was fixed. He is eligible, therefore, for release on parole on 4 December 2004. 5 Meanwhile, on 21 June 2001 a number of charges were laid against the plaintiff and others alleging breaches of s 232(6) and other provisions of the Corporations Law of Western Australia which now constitute offences against the Corporations Act 2001 (Cth) by reason of s 1401 of the latter act. Those charges may be summarised as follows: a) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Davis Samuel Pty Ltd in that he improperly resolved that Hallmark old NL execute a Corporate Advisory Services Retainer Agreement whereby Davis Samuel Pty Ltd was retained as consultant to Hallmark Gold NL. b) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly resolved that Hallmark Gold NL execute transfer forms for the purchase by Hallmark Gold NL of 8,200,000 options in Kanowna Lights NL for a total consideration of $656,000. c) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly resolved that Hallmark Gold NL execute transfer forms for the purchase by Hallmark Gold NL of 3,6500,000 options in Kanowna Lights NL for a total consideration of $720,000. d) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly resolved that Hallmark Gold NL execute an agreement with Kanowna Lights NL for the exercise by Hallmark Gold NL of 8,200,000 options in Kanowna Lights NL for a total exercise price of $1,640,000. e) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly resolved that Hallmark Gold NL execute a transfer form for the purchase by Hallmark Gold NL of 4,200,000 options in Kanowna Lights NL for a total consideration of $336,000. f) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly resolved that Hallmark Gold NL execute a transfer form for the purchase by Hallmark Gold NL of 4,000,000 options in Kanowna Lights NL for a total consideration of $320,000. g) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly resolved that Hallmark Gold NL execute a transfer form for the purchase by Hallmark Gold NL of 3,600,000 options in Kanowna Lights NL for a total consideration of $720,000. h) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly caused the payment by or on behalf of Hallmark Gold NL of $336,000 to Kamanga Holdings Pty Ltd and Quancorp Pty Ltd. i) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly caused the payment by or on behalf of Hallmark Gold NL of $320,000 to Kamanga Holdings Pty Ltd. j) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for CTC Resources NL in that he improperly caused the payment by or on behalf of Hallmark Gold NL of $720,000 to CTC Resources NL. k) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Davis Samuel Pty Ltd in that he improperly caused the execution by or on behalf of Hallmark Gold NL of a Corporate Advisory Services Retainer Agreement whereby Davis Samuel Pty Ltd was retained as consultant to Hallmark Gold NL. l) On or about 23 October 1998 at Perth committing an offence against s 1401 of the Corporations Act 2001 (Commonwealth) in that, being an officer of Hallmark Gold NL, by knowingly making improper use of his position as officer, dishonestly and intending to gain, directly or indirectly, an advantage for Kamanga Holdings Pty Ltd and Quancorp Pty Ltd in that he improperly caused the payment by or on behalf of Hallmark Gold NL of an agreement with Kanowna Lights NL for the exercise by Hallmark Gold NL of 8,200,000 options in Kanowna Lights NL for a total exercise price of $1,640,000." 6 The plaintiff has not yet been committed for trial on these charges in Western Australia partly because, due to his incarceration in New South Wales, he has not yet appeared to answer the charges in Western Australia and committal proceedings in respect of those charges cannot proceed until he personally appears: Justices Act 1902 (WA) Pt 5. 7 It appears from the material tendered before the Queanbeyan Local Court, particularly the statement under s 100 of the Justices Act (WA) that by using at least part of the proceeds of the offences against the Commonwealth (the subject of the ACT proceedings) monies were diverted to CTC Resources NL and Davis Samuel Pty Ltd. The plaintiff had a comparatively small shareholding in the former company, and Davis Samuel Pty Ltd was controlled by business associates of the plaintiff. 8 The funds defrauded from the Commonwealth were used by Davis Samuel Pty Ltd to purchase shares in Hallmark Gold NL (Hallmark) and by a series of complex intercompany transactions the plaintiff became the Chairman of Directors of Hallmark Gold NL and Davis Samuel became a significant shareholder with effective control of Hallmark which, at that time, had cash reserves of $7 million. 9 It is further alleged in the Western Australian charges, as I understand the position, that on 23 October 1998 the plaintiff and other directors of Hallmark, including his business associates, Messrs Endresz and Cain, passed a series of resolutions and executed a number of documents which involved Hallmark entering into a management services agreement for seven years with Davis Samuel and Callform Pty Ltd (a company owned at least as to 50 per cent by the plaintiff), that Hallmark provided a cash security of $2.6 million to ensure payment to Davis Samuel and Callform of the amounts to become due to them under the management agreement, and also to purchase approximately 30 per cent of the issued share capital of Kanowna Lights NL, part of whose capital was owned by Callform and other companies, particularly including CTC Resources NL belonging to Messrs Endresz and Cain, the associates of the plaintiff, at a price significantly in excess of the price at which its shares were then trading on the Stock Exchange. There were also a number of other transactions which it is not necessary to set out in detail at this stage. 10 It is alleged that these transactions were not in the interests of Hallmark and that as a result of the transactions to which I have referred and/or a number of similar transactions, a large amount of Hallmark's unaudited consolidated shareholders' equity and its cash on hand was committed or expended to the detriment of the shareholders of Hallmark. 11 The trial transfer order is opposed on two grounds. Firstly, that the order is not sought for the plaintiff to stand trial but to subject him to a committal hearing, and secondly, that it would be unjust and oppressive to grant the application having regard to the principles of autrefois convict, double jeopardy and abuse of process: see s 10(4)(d) of the Transfer of Prisoners Act. 12 Section 8 provides that where a warrant for the apprehension of a Commonwealth prisoner has been issued and the Attorney-General certifies that it is desirable in the interests of the administration of justice that the prisoner be transferred to another state or territory to stand trial for the charge to which the warrant relates, the Attorney-General may apply to a court for an order for the transfer of the prisoner to that other state or territory (a trial transfer order.) 13 On behalf of the plaintiff it has been submitted that as the prisoner has neither been indicted, nor committed for trial in relation to the present charges, the section has no application because the section only authorises an application for transfer for him "to stand trial." 14 In my view the words "to stand trial" are not limited to the next step after the transfer. What the Act requires as a condition precedent to an application for a trial transfer order is the certification from the Attorney-General that it is desirable that the prisoner be transferred "to stand trial". I am satisfied that in this context the words "to stand trial" is a generic term and includes all necessary preliminary steps to the prisoner standing trial, including, as necessary, charging, service of the Crown witness statements, committal and arraignment. 15 It is submitted on behalf of the plaintiff that having regard to the principles of autrefois acquit, double jeopardy and abuse of process it would be unjust or oppressive to make a trial transfer order. 16 The circumstances in which a plea of autrefois convict can be sustained are conveniently set out in the judgment of Lord Morris in Connolly v The Director of Public Prosecutions [1964] AC 1254 at 1305 to 6, and include: "(2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted;…(4) that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment, either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty; (5) that this test must be subject to the proviso that the offence charged in the second indictment had in fact been committed at the time of the first charge;…(7) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings ." (my underlining). 17 The matter has recently been considered by the High Court of Australia in Pearce v The Queen [1998] HCA 57, 194 CLR 610. As the majority pointed out in that case at para [20] the test is an enquiry not about what evidence was called or could have been called, but about what evidence would be sufficient to secure a legal conviction, which invites attention to what must be proved to establish commission of each of the offences. 18 It is now conceded, as I understand it, that pleas of autrefois convict would not be available to the plaintiff on the WA charges as a result of his conviction on the ACT charges. 19 However, the cases recognise that where, although pleas of autrefois convict may not be available, there may still be an abuse of process based on principles of double jeopardy if the offences charged are substantially similar or relate to substantially the same criminal conduct as was the subject of the earlier charges and this fact was recognised by the majority in Pearce at paras [29], [30], by Gummow J at para [67] and by Kirby J at para [92], but that there is no abuse if additional and different facts are involved in the different charges. Otherwise, because of the principles of R v De Simoni (1981) 147 CLR 383, it would not be possible to punish an offender so as to cover all the elements of his or her criminality. 20 In Pearce itself the accused had been charged with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, and with breaking and entering a dwelling house and whilst therein inflicting grievous bodily harm. The issue of double jeopardy was raised but it was held that there was no abuse of process because the offences were different, and different in important respects. The first charge involved not only the infliction of grievous bodily harm, but an intention to inflict grievous bodily harm which was no part of the second charge; which in turn involved a breaking and entering of a dwelling house which was no part of the first charge. 21 Here it appears that at the plaintiff's trial in the Australian Capital Territory, the Crown Prosecutor referred to in his opening address and led evidence of where the monies lost to the Commonwealth by the plaintiff's alleged fraudulent conduct went, and how the plaintiff obtained a benefit or advantage therefrom. This was apparently done to establish a motive for the plaintiff to commit the alleged offences, and by showing that he had a motive and directly or indirectly received the benefit of the defalcations, to make it more likely that he was the person who committed the offences. 22 The proof of these matters in this context did not relate to the Corporations Act charges in WA. Those offences now charged relate to different conduct and in a different capacity. The ACT charges did not in any way relate to the plaintiff's participation in the resolutions of the Hallmark board on 23 October 1998 or the documents, including cheques, executed pursuant to those resolutions. The ACT charges related to conduct of the plaintiff between 1 January 1998 and 25 September 1998. The Western Australian charges relate to what he did or is alleged to have done on 23 October 1998. It is alleged that his criminal activity did not cease on 25 September but was the subject of a separate episode of criminal conduct on 23 October. 23 Up to 25 September he was not a director of Hallmark, he did not attend any board meeting, join in any resolution or execute any company documents. As pointed out in Pearce, having regard to De Simoni, he has not, and could not, be punished for this alleged latter conduct unless convicted of these Western Australian charges. Not only are the dates different, but the nature of the criminal activity is different. The ACT charges involved the misappropriation of Commonwealth funds, the Western Australian charges relate to his activities as a director of Hallmark and other companies. 24 The victim in the ACT charges was the Commonwealth, in Western Australia the victim is alleged to have been Hallmark. 25 The ACT offences relate to obtaining the money dishonestly, the Western Australian offences relate to acting contrary to his duties as a director after the funds had been applied and Hallmark taken over. 26 For those reasons I can see no element of double jeopardy in the Director of Public Prosecutions proceeding with the Western Australian charges and there is accordingly no abuse of process. In those circumstances I am not satisfied that it would be unjust or oppressive to grant the application. 27 I therefore affirm the trial transfer order of the Queanbeyan Local Court, and dismiss the summons. 28 I make no order as to costs. ********** Last Modified: 10/22/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.