R v David Michael WILLS, Caroll Anne HENDERSON, Peter James HENDERSON [2012] NSWDC 250

District Court New South Wales

Medium Neutral Citation: R v David Michael WILLS, Caroll Anne HENDERSON, Peter James HENDERSON [2012] NSWDC 250 Hearing dates: 15 May 2012 to 7 September 2012 Decision date: 08 August 2012 Before: Judge Haesler SC Decision: Defence application Crown case be restricted. Refused. Catchwords: Variation of particulars, corrupt benefits, corrupt commissions, money laundering, fraud, senior executive breach of trust Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: Gerakiteys v The Queen (1984) 153 CLR 317 Johnson v Miller (1937) 59 CLR 467 R v Mok (1987) 27 A Crim R 437 Qualtieri v R [2006] NSW CCA 95 R v Saffron (1988) 17 NSWLR 395 Standen v R [2011] NSWSC 1038 Category: Procedural and other rulings Parties: Regina (Crown) David Michael WILLS (Accused) Caroll Anne HENDERSON (Accused) Peter James HENDERSON (Accused) Representation: Mr S de Silva (Crown) Mr G Brady (for David Wills) Mr A Conwell (for Caroll Henderson) Mr F Coyne (for Peter Henderson) Mr D Robinson (DPP) Mr R Hudson (for David Wills) Ms K Anderson (for Caroll Henderson) Mr D Humphries (for Peter Henderson) File Number(s): 2009/80902; 2008/77194; 2008/177894

Judgment

Introduction: 1On Day 56 of the trial of David Wills, Peter Henderson and Caroll Henderson, Mr Wills gave evidence in his defence. On Day 59 of the trial, during his cross examination of the accused, the Crown put a copy of the Indictment (MFI 13) in his hands and started to put to him the Crown case in relation to each element of the 21 counts preferred against him. 2When it came to Count 7, a charge pursuant to s 249 B (1) Crimes Act 1900, that on 4 June 1997 Mr Wills, being an agent of Woolworths, did corruptly receive from International Retail Systems a benefit of $133,160.00 for having shown favour to Az-Ben Limited in relation to the business of Woolworths, Mr Crown said: "I suggest to you that the favours consisted of assistance on an ongoing basis in the implementation and the favourable assistance - favourable assessment of the performance of APOS?" 3Mr Brady, for the accused Wills, objected. 4I interrupted and, not understanding the full import of the objection, asked the question be put more precisely. Mr Crown asked a few more questions. Then at TT3537 the following appears: Q. That it was from a company under the control of Mr Weissman, for Retail Technology and that you received that payment on account of assistance - favours that you had shown Az-Ben Electronics in connection with the business at Woolworths? A. No. Q. I suggest to you that the favours consisted of assistance on an ongoing basis in the implementation and the favourable assistance - favourable assessment of the performance of APOS? 5Mr Brady objected again. As it was close to 4pm the jury were sent home. Argument in relation to the objection was put off until the following day. During that argument it soon became clear that Mr Brady was objecting not just to the tone or form of the question but to the premise underpinning it: - that is, that the Crown case in this and the other s 249B (1) counts related to favours or partiality shown by Wills over the entire course of Az-Ben's business dealings with Woolworths. This, it was submitted, was so at variance with the Crown's opening, and, critically the particulars supplied to the defence in September 2012 (VD Exhibit 21), that I should as a matter of both law and fairness restrict the way the Crown was to put its case to the jury in each s 249B (1) count; being counts 6, 7, 8, 9, 10, 11, 13, 14, 17, 19, 22, 24, 27, 30, 33 and 36. After lengthy argument and discussion I made two rulings: (1)That the formal objection to the question was upheld as the Crown question was too general and amorphous: for Count 7 and each s 249 B (1) count, if the Crown was going to say to the jury that Mr Wills did a certain act which showed favour to Woolworths in order to further either the conspiracy or to justify a payment which is particularised as a count in the indictment, then the Crown had to put that specific act showing favour to him (TT 3568). (2)That I was against Mr Brady on his substantive submission: I would not direct the Crown to restrict its case to an alleged favour shown by Wills to Az-Ben to the terms set out in only part of the particulars letter; being "the award of a contract which ultimately resulted in WW's making payments totalling $9,6068,514.39 to Az-Ben and related companies". 6I reserved giving these detailed reasons until 8 August 2012, so as not to further delay the jury.