Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mehajer v R [2014] NSWCCA 167 Hearing dates: 7 May 2014 Decision date: 22 August 2014 Before: Bathurst CJ at [1]; Johnson J at [197]; R A Hulme J at [198] Decision: (1)Leave to appeal against conviction on Count 1 refused. (2)Appeal against conviction on Count 2 allowed. (3)Order that the conviction on Count 2 be quashed. (4)Order there be a new trial in respect of Count 2. (5)Grant leave to appeal against sentence. (6)Order that the sentence imposed on Count 1 be set aside and in lieu thereof the following sentence be imposed: The appellant be sentenced on Count 1 to a sentence of imprisonment consisting of a non-parole period of 18 months with a balance of term of 18 months, the sentence to date from 18 December 2013. The appellant is to be released to parole upon the expiration of the non-parole period on 17 June 2015. Catchwords: CRIMINAL - appeal - conviction - misdirection in presentation of crown case to jury - whether miscarriage of justice CRIMINAL - appeal - conviction - misdirection of elements of offence on subsection of s 249B not charged - whether miscarriage of justice - whether proviso in s 6(1) Criminal Appeal Act 1912 (NSW) should apply - whether leave should be granted despite issue not raised at trial - whether new trial or acquittal would remedy miscarriage of justice CRIMINAL - appeal - conviction - whether verdict for offence charged should be substituted with verdict for offence not charged but which the jury were directed on - different elements of offences - no alternate charge on indictment - s 7(2) Criminal Appeal Act 1912 (NSW) CRIMINAL - appeal - conviction - whether misdirection by judge in stating it was immaterial that the appellant might have had no intent to deprive corruptly the National Australia Bank of property - not raised at trial - no miscarriage of justice - leave refused CRIMINAL - appeal - conviction - whether misdirection by judge in failure to direct jury to continue to strive for a unanimous verdict - whether pressure to reach verdict placed on jury - requirements of a Black direction - no miscarriage of justice - no danger of a hasty or unjust verdict CRIMINAL - appeal - sentence - whether manifestly excessive - sentence not unreasonable or plainly unjust WORDS AND PHRASES -"corruptly" - "would in any way tend to influence the agent" - s 249B Crimes Act 1900 (NSW) Legislation Cited: Corrupt Practices Prevention Act 1854 (UK) Crimes Act 1900 (NSW), s 249B Crimes (Secret Commissions) Amendment Bill 1987 (NSW) Criminal Appeal Act 1912 (NSW), ss 6 and 7 Criminal Appeal Rules (NSW), r 4 Criminal Code (R.S.C., 1985, c. C-46) Jury Act 1977 (NSW), s 55F Secret Commissions Prohibition Act 1919 (NSW), Pt 4A, s 3 Secret Commissions Prohibition Act 1920 (SA), s 5 Public Bodies Corrupt Practices Act 1889 (UK), s 1 Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 C v Johnson [1967] SASR 279 Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Cooper v Slade (1858) 6 H L Cas 746; (1858) 10 ER 1488 Gallagher v R [1987] VicSC 352; (1987) 29 A Crim R 33 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 Ingham v R [2011] NSWCCA 88 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Dillon and Riach [1982] VR 434 R v Gallagher [1986] VR 219 R v Hanna [2008] NSWCCA 173; (2008) 73 NSWLR 390 R v Jamieson [1988] VR 879 R v Kelly (1992) 92 DLR (4th) 643 R v Lykouras [2005] NSWCCA 8 R v Muto and Eastey [1996] 1 VR 336 R v Turner [2001] WASCA 344; (2001) 25 WAR 258 R v Wellburn (1979) 69 Cr App R 254 Regina v Smith [1960] 2 QB 423 Regina v Robert Harrington (Unreported, 28 September 2000, English Court of Appeal Criminal Division) RJS v The Queen [2007] NSWCCA 241; (2007) 173 A Crim R 100 Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 Jagdeo Singh v State of Trinidad and Tobago [2006] 1 WLR 146 Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Category: Principal judgment Parties: Mohammed Mehajer (Appellant) Crown (Respondent) Representation: Counsel: M Thangaraj SC / I S McLachlan (Appellant) N Noman SC (Crown) Solicitors: KM Legal (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2010/364191 Decision under appeal Before: Berman DCJ File Number(s): 2010/364191 Judgment 1BATHURST CJ: On 11 June 2013 Mohammed Mehajer (the appellant), was arraigned on two charges, the first with a co-accused, Hiba Cornell. The charges were in the following terms: "HIBA CORNELLMOHAMED MEHAJER 1. Between 1 July 2008 and 22 December 2008 at Yagoona and elsewhere in the State of New South Wales did conspire with each other and with Mohamed Diab to cheat and defraud the National Australia Bank Ltd of a large sum of money. Common LawLaw Part Code: 40439 AND the Director of Public Prosecutions FURTHER CHARGES that MOHAMED MEHAJER 2. On 3 December 2008 at Sydney in the State of New South Wales did corruptly give Mohamad Sowaid, an agent of the National Australia Bank Ltd, a benefit, namely $2,000, as an inducement for Mohamad Sowaid to do something in relation to the business of the principal of Mohamad Sowaid, namely process a loan application through the National Australia Bank Ltd. Section 249B(2) Crimes Act 1900Law Pard Code: 16709." 2Section 249B of the Crimes Act 1900 (NSW) (the Act) provides as follows: "249B(1) If any agent corruptly receives or solicits (or corruptly agrees to receive or solicit) from another person for the agent or for anyone else any benefit: (a) as an inducement or reward for or otherwise on account of: (i) doing or not doing something, or having done or not having done something, or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent's principal, or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent's principal, the agent is liable to imprisonment for 7 years. (2) If any person corruptly gives or offers to give to an agent, or to any other person with the consent or at the request of any agent, any benefit: (a) as an inducement or reward for or otherwise on account of the agent's: (i) doing or not doing something, or having done or not having done something, or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent's principal, or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent's principal, the firstmentioned person is liable to imprisonment for 7 years." 3Although the indictment did not refer to the particular paragraph of s 249B(2) of the Act relied upon in respect of Count 2, it is evident from the terms of the charge that it alleged a contravention of s 249B(2)(a)(i). 4Following a trial before Berman DCJ (the trial judge) and a jury, the appellant was convicted on both counts. 5On Count 2 he was sentenced to imprisonment for a fixed term of 18 months to date from 18 December 2013. On Count 1 he was sentenced to imprisonment consisting of a non-parole period of 18 months with a head sentence of 3 years to date from 18 June 2014. The result was that he is to be released to parole on 17 December 2015. 6The appellant has appealed against his conviction and sought leave to appeal against his sentence. Factual background 7The appellant was a property developer who had financed a development proposal at Lidcombe by way of a loan with Westpac Banking Corporation. In 2004 the loan with Westpac Banking Corporation was refinanced with a loan of $18,239,000.00 from Suncorp-Metway Ltd, taken out in his name and that of his wife (the Suncorp loan). 8By the end of February 2008 the Suncorp loan had not been repaid, was in arrears and interest was accruing. The outstanding balance at that time was $4,514,087.98. 9In July 2008 the appellant was introduced to Hiba Cornell (Ms Cornell) by Mr Mohamed Diab (Mr Diab). Each of Ms Cornell and Mr Diab worked at the Bank of Queensland and assisted the appellant to make a refinance application through that bank. The loan application was rejected for several reasons, including doubts concerning the appellant's ability to service the loan. 10Following that rejection Ms Cornell and Mr Diab met a mortgage broker, Mr Khoury and discussed a proposal for them to assist the appellant to apply for finance through Westpac Banking Corporation. The proposal ended up going to the National Australian Bank (NAB), not Westpac Banking Corporation. Mr Khoury introduced Ms Cornell and Mr Diab to Mr Sowaid, an employee of NAB. 11An application for finance was made to NAB. For the purpose of the application Ms Cornell and Mr Diab obtained bank statements and other financial documents from the appellant and sent them either to Mr Khoury, who forwarded them to Mr Sowaid, or sent them to Mr Sowaid directly. 12The Crown's case was that the documentation given to NAB was different to that supplied to the Bank of Queensland and falsely inflated the appellant's financial position. Mr Diab gave evidence that he observed that the financial records were very different to those given to the Bank of Queensland, describing them as substantially higher. He said he asked the appellant the reason for the difference and he was told the ones to be supplied to NAB were interim financial statements. 13The financial statements were significantly different. The first set for the year ended 30 June 1998 showed a gross profit from trading of $112,408.00, profit before tax of $23,161.14 and shareholder's equity of $1,092,348.32. By contrast the other set showed gross profit on trading of $1,352,502.55, profit before tax of $752,331.56 and shareholder's equity of $2,494,701.34. 14It should be noted that Mr Diab pleaded guilty to being a co-conspirator with the appellant and Ms Cornell. He received a reduction in penalty for giving evidence. Mr Sowaid had also pleaded guilty to an offence and had received a reduction in penalty for giving evidence. 15A number of telephone calls were intercepted in which Ms Cornell, Mr Diab and the appellant discussed the NAB loan application. In one call made on 20 October 2008 there was a discussion between Ms Cornell and the appellant in which the appellant is recorded as saying that Mr Sowaid is scared he will not receive his bonus. In another conversation between the same parties on 4 November 2008 Ms Cornell is recorded as saying in Arabic, "Sowaid; Sowaid is on the side; we give him the money on the side". The appellant replied in a mixture of Arabic and English ,"I understand, but is he convinced and will he continue on the same road with us and not play games". 16The critical events concerning Count 2 took place in early December 2008. Mr Diab gave evidence that he and the appellant met with Mr Sowaid and that the appellant expressed his frustration that the loan had not been approved. Mr Diab then said that the appellant asked to speak to Mr Sowaid alone and they went to another room. 17Mr Sowaid acknowledged he went to the meeting and went to another room with the appellant separately. He gave the following evidence: "Q. Sorry I interrupted you, what happened when this is yourself and the accused Mehajer in this room?A. Correct. Q. What happened please?A. Mohamad Mehajer started telling me that he knows my father, that they used to work together in Arnotts and that you know there's a close you know like they knew each other. He then took out an envelope and advised me that it was -- Q. As best you can remember what he said?A. The best I can remember this is a gift of $2,000 for you yeah. Q. And did you say anything?A. I said look I don't want any money. He said you have to take it it's a gift. I said I don't want any money, I don't want any money. He kept ranting and raving about I had to take the money and then shoved it in my pants pocket. Q. How did he do that?A. He just leaned over and put it in my pants pocket yeah. Q. Can you describe this envelope at that point?A. It was just a normal white mail envelope. Q. Could you see into the envelope?A. I didn't see into the envelope until later on. Q. And what happened after that please?A. After that we walked back out of the office." 18In cross-examination on this issue the following interchange took place: "Q. You've given an account of what was said in that room, I'm going to put to you that a slightly different conversation occurred. Mr Mehajer said that he wanted to know if you could - would approve - would hurry up the process of approving the loan. You said you'd do what you can, 'I have too much work to do, I'll try to do it as soon as I can. But it will come at a price as the bank doesn't pay me for my overtime work', is that what you said?A. I was on a lot more than $2,000 a week, I can tell you that. Q. It wasn't the question. HIS HONOUR Q. Hold on. Forget about how much you get paid and maybe there'll be questions about that later, all Mr McKeand wants to know is was there any conversation along those lines. A. No, there was no conversation along those lines. MCKEAND Q. All right, well, I'm putting it to you that it was. That Mr Mehajer went on to say 'Here's a present for you to work overtime in processing my application. Please process my application as soon as possible and just let me yes or no, if my application is approved'. Do you agree with that?A. No." 19The appellant's version of the conversation was somewhat different to that of Mr Sowaid. He was asked these questions and gave the following answers: "Q. What happened there?A. INTERPRETER: So that was the first time I met him, and Mohamed Diab said he's going to get the loan through him. What I've asked him then, 'Why haven't you processed the application, my application? Q. Who was it you asked that question of?A. INTERPRETER: Mr Sowaid, the bank manager. Q. And was Mr Diab present in this conversation?A. INTERPRETER: Yes, he was. Q. And what was the answer to the question?A. INTERPRETER: So Mohamad Sowaid he said, 'Have you paid for the valuation?' I responded by saying, 'Yes'. And I said, 'Why haven't you more or less finalised the application because I want to go to Lebanon?' Q. What was next?A. INTERPRETER: I said, 'I'm too busy, I've got a lot of work'. I told him, 'I'm going to Lebanon. I've got some properties, I'm going to sell them. And all the loan I've requested for is for one year'. Q. What happened then? HIS HONOUR Q. Sorry, who said they were too busy?A. INTERPRETER: Mohamad Sowaid. MCKEAND Q. Were you alone with him at this stage, or was Mr Diab there?A. INTERPRETER: So Mohamed Diab was more or less in the waiting room, and I got inside and I showed him the project. Q. You showed Mr Sowaid the project?A. INTERPRETER: Yeah, telling him that project I want to sell it, and I want to go to Lebanon to say that I'm bona fide in what I'm saying. Q. What happened then?A. INTERPRETER: He said, 'I'm too busy now, and this work needs working over the weekend, and the bank does not pay me for working on the weekend'. So 'If the bank doesn't pay you on the weekend', I responded by saying, 'Here's $2,000, and this is $2,000, it's not a bribe, it is just to work on it and tell me if there was a deal or there's no deal'. And I was very precise - sorry. HIS HONOUR Q. Did you say the words, 'It's not a bribe' to Mr Sowaid?A. INTERPRETER: Yes, I swear by God. I said, 'Regard it as a present from me because I'm wanted to go to Lebanon and I'm not getting clear information from you'. MCKEAND Q. Just tell me what else was said?A. INTERPRETER: And I showed him the project that I've got, and I'm going to bring some money in January, and that's what has happened, I brought some money from Lebanon. Q. What did he do with the $2,000?A. INTERPRETER: So he took the $2,000, and the meeting lasted for about 10 to 15 minutes, and then he went to his work. HIS HONOUR Q. Where did he put the $2,000 - I missed that?A. INTERPRETER: In his pocket. Q. Was the $2,000 in an envelope when you gave it to him?A. INTERPRETER: So I had my wallet, I took the $2,000, I put it in an envelope and gave it to him, and the room was not closed, Mohamed Diab could see actually what's going on." 20He adhered to this version in cross-examination: "Q. Sir, on 3 December you wanted an answer from Sowaid about how long it was going to take to get an approval, didn't you?A. INTERPRETER: You can put the tape and listen to it. All I said to him, I want to deal with him without the broker. Directly. Q. That was on 17 December you said to him sir?A. INTERPRETER: Yes. Q. You said that to him on 3 December?A. INTERPRETER: On the third of the 12th, what I said to him, I told him why you haven't working on the process, or why aren't you finishing the processing of mine. He said that he's got too much work and if he wants to work on it he will work on it on the weekend?A. WITNESS: I continue? Q. Sure.A. INTERPRETER: And he said the bank does not pay him for the weekend. I said 'okay'. When he came to the office there was an office in another room with the door open, not as describing the handles. I told him I'm going to Lebanon. And I told him I've got project in there, let me show you it, and I want to bring money in January. So I showed him the plans for Lebanon. And this is $2,000 I told him, and this $2,000 is not a bribe, and I know that you can't get approval yourself, it has to go through the credit people. And I insisted this is not a bribe, this is a present for you. And I hope that you give me an answer, yes or no, by next week. ... Q. Because your version about him doing overtime is complete rubbish, that's why sir.A. INTERPRETER: Thank you. Q. Once you knew that he had accepted the bribe, you were then in a more certain position about the submission of the dodgy financials.A. INTERPRETER: That's not correct." 21The Crown case was that subsequently Mr Diab falsified lists of properties to be developed by the appellant in the appellant's resume to give the impression that the appellant was developing a property at Hurstville worth millions of dollars. Mr Diab gave evidence he prepared the list in question, knowing it to be incorrect and told the appellant he had done so. He said in cross-examination that the falsified version of the appellant's resume was sent to Mr Sowaid. 22Ultimately Mr Sowaid declined to process the application and told Ms Cornell and Mr Diab that he was concerned primarily with the appellant's ability to meet his repayments. An intercepted telephone conversation of 18 December 2008 records Mr Sowaid telling Mr Diab the appellant could have his money back and that he did not want to go on with the application. 23NAB made no advance to the appellant. The appellant refinanced the Suncorp loan from offshore funds. The directions of the trial judge 24As will be seen subsequently a number of the grounds of appeal relate to the directions given in respect of Count 2 in the context of the way in which the parties put their respective cases. In these circumstances it is necessary to have regard to the manner in which the parties opened their respective cases on that count. 25In opening address the Crown stated that its case on Count 2 was that at the meeting of 3 December between the appellant and Mr Sowaid $2,000.00 was handed over as an inducement to Mr Sowaid to process the loan. Subsequently in opening, the Crown described what it had to prove to establish the offences in the following terms: "In relation to conspiracy, that is, we have to prove that two or more persons - and we say that this conspiracy involved three persons, that is, these two accused and a third person Mohamad Diab who by his own evidence will say I am the person that made up the resume. I am not the person who made up the financials. We have to prove two or more persons. If you were satisfied that, for example, beyond reasonable doubt you would have to be so satisfied that there were only two persons involved but they were different persons. So for example if you said you found beyond reasonable doubt Diab and Cornell so conspired, but Mehajer wasn't part of that conspiracy, then you would be able to deliver a verdict in relation to Cornell; or if you were satisfied that it was only Cornell and Mehajer that were involved in the conspiracy, then you would be able to deliver a verdict. But I will just make you aware of that, but we say it's a three person - as long as you were satisfied in relation to each of these accused, and you are satisfied beyond reasonable doubt that they were involved in a conspiracy, that is, two person, then you can so deliver a verdict. So essentially we have to prove that they agreed to use dishonest means, in this case the documents with the falsities, to prejudice another person's economic right or interest in this case; that is, to make the NAB hand over money which they wouldn't have handed over if they knew of the falsities. In relation to the corrupt commission offences, we have to prove that the accused Mehajer corruptly - that is, with the relevant intention of influencing Mr Sowaid in the performance of his duties, gave to Sowaid who we have to prove technically is an agent of the National Australia Bank - agent includes employee - that he gave him a benefit, in this case the $2,000 as an inducement, it's another element; and that the inducement was to do something in relation to his principal's business, namely, process the loan." 26The appellant's case was opened briefly. Senior counsel for the appellant put his client's case as follows: "The two major issues that you will hear ventilated at least for my client relate, firstly, to the false documents that were alleged to be part of the conspiracy. What is in dispute with the Crown case, the way it was put to you in opening, is the authorship and participation of Mr Mehajer in those documents. It was put to you that Mehajer had given Diab false documents and they were passed on to the National Bank. That is in dispute. The fact that the documents were passed on to the National Bank by Diab is not in dispute. The fact that they were false when they were given to him is in dispute. The second point is the payment of the corrupt commission that is alleged. Mr Mehajer does not dispute that he made the payment of $2,000. What is in dispute is the purpose of it. What I would hope that you would do is keep those two areas of dispute in your mind because it will, apart from anything else, explain to you why I'm asking some of the questions of witnesses that I do ask and know the reason for it. That's all I have to say for you at this stage." 27In his closing address the prosecutor put the case against the appellant in the following terms: "So ladies and gentlemen we have the meeting on 3 December 2008 and this goes to both the second count in relation to Mr. Mehajer and the conspiracy count in relation to each of the accused. We know from Mr. Sowaid and Mr. Diab that Mr. Sowaid and Mr. Mehajer go into another office and Mr. Mehajer closes the door. He thrusts a white envelope into Sowaid's pocket. It was put to Mr Sowaid that it was an overtime payment yet in no call is such a topic mentioned. Mr Sowaid denies it. He's pleaded guilty to it on the basis that he received it in those circumstances and Ms. Cornell says there was a commitment fee yet she does not use that word to describe the payment in the calls to Mr. Diab on the 8th or Mr. Mehajer on 7 December." 28Thereafter the following interchange took place in the absence of the jury: "HIS HONOUR: Mr Crown, do I understand you to be saying that if the jury thinks it's reasonably possible that Mr Mehajer intended the money to be as an overtime payment, that the jury would find Mr Mehajer not guilty on count 2?CROWN PROSECUTOR: No. HIS HONOUR: I must have misunderstood then.CROWN PROSECUTOR: Sorry, no all I'd say is on the evidence that - HIS HONOUR: Okay. Do you push for the possibility being, for a possibility being that the jury might find beyond reasonable doubt that the payment was described as for overtime but nevertheless Mr Mehajer could be found guilty?CROWN PROSECUTOR: Yes, yes. HIS HONOUR: Right, okay." 29Following that interchange the Crown addressed the jury in the following fashion: "I will just summarise the Crown's position about the events of 3 December. To determine whether you can infer that there was a corrupt intent, look at all the circumstances of what happened in the lead up to and on 3 December. But I want to make the Crown's position quite clear, ladies and gentlemen. It's the intent that's important in the tendency as outlined; that is, that the receipt of the money would in any way tend to influence Mr. Sowaid and in that sense it doesn't matter what the money handed over may or may not have been called. That is, even if you were satisfied that Mr. Mehajer did call it overtime, you can still be satisfied beyond reasonable doubt that it was a - that the offence is proven, because of the elements. So I'll want to make that quite clear to you, ladies and gentlemen, but we rely on inference. Mr. Mehajer says he had no such corrupt intent. We would ask you to reject his evidence about this, except the evidence about Mr. Sowaid and the telephone intercept material on the 8th in particular, and to infer that he had the relevant corrupt intent." 30The trial judge supplied the jury with written directions. As they are relatively brief it is convenient to set them out in full: "Count 1 Before you can convict Mohamad Mehajer you must be satisfied beyond reasonable doubt that: 1. Mr Mehajer entered into an agreement with at least one other person (either Mr Diab, or Ms Cornell, or both), to cheat and defraud the National Australia Bank Ltd of a sum of money and 2. At the time he entered into the agreement he intended that the National Australia Bank Limited would be cheated and defrauded. Notes: To cheat and defraud someone is to intentionally use dishonest methods to deprive another person of their property, In deciding whether something is dishonest you should apply the current standards of ordinary decent people. The offence can still be committed even if those involved in it intended that the National Australia Bank Limited would get the loan repaid. Count 2 Before you can convict Mr Mehajer you must be satisfied beyond reasonable doubt that: 1. Mr Mehajer gave Mohamad Sowaid $2,000, and 2. at the time, Mr Sowaid was an employee of the National Australia Bank Limited, and 3. the receipt of the money would in any way tend to influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited, and 4. the payment was made corruptly which means that Mr Mehajer intended that it would influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited. Notes The Crown does not need to prove that the receipt of the money actually influenced Mr Sowaid to show favour to Mr Mehajer, only that receipt of the money would tend to influence him to show favour." 31Early in his summing-up the trial judge gave the following directions concerning Count 2: "One of the very big areas of dispute is the purpose of the payment to Mr Sowaid. The reason that Mr Mehajer gave that money to Mr Sowaid is disputed. The Crown says that Mr Mehajer did that because he wanted Mr Sowaid to show favour to him in considering what to do with his loan. Mr Mehajer said it is just a gift, because Mr Mehajer would have to work overtime, over the weekend, that was the reason he gave him that gift, and he said that as he handed it over he said, 'This is not a bribe', so there is that dispute. What was the purpose of that $2,000 payment? When you look at the elements that go to make up count 2 on the indictment you might say to yourself, it does not matter. You do not need to look at it now, members of the jury, but you might say to yourself it does not matter whose version is correct. You might decide that even on Mr Mehajer's version the Crown has proved that he is guilty on count 2; or, you might decide that even on the Crown version, he is not guilty. So you might say, I do not need to resolve that dispute, because whichever side I accept the verdict is either guilty or not guilty. Do you understand that? Even though it is a very big area of dispute as to what the purpose of that payment was when you look at the elements it might be that you say to yourselves, I do not need to decide that, I do not need to resolve that dispute because even if I accept the Crown's version he is not guilty or, even if I accept Mr Mehajer's version he is guilty." 32Shortly thereafter he dealt with the character evidence called by the accused: "But let's get back to Mr Mehajer. His character is a matter which you should take into account in determining your verdict. How? How do you take it into account? Well you are entitled to take it into account in a couple of ways. The first way is this. You might think that a person who has not done this sort of thing in the past, and is described as honest by those who know him, is less likely to have committed this offence or either of these offences than a person who has a history of such conduct. That is a matter of common sense really. The fact that Mr Mehajer who is a person who has no history of offending of this kind, or of any kind for that matter, that entitled you to consider the improbability of him having committed those offences the Crown alleges against him. So you are entitled to take the character of Mr Mehajer into account in deciding whether he is guilty or not of the offences he is charged with. Now the second way you can take Mr Mehajer's character into account is this. Mr Mehajer has given evidence in this trial, and the fact that he has not been convicted of any criminal offence and the fact that people are prepared to come along to court and say that they regard him as honest, and he has a reputation for honesty, well that evidence supports his credibility. In other words, people of good character that have never been convicted of a criminal offence, there are people that describe them as honest, are generally less likely to lie in court than people of bad character who do have criminal convictions. So Mr Mehajer's character should be taken into account by you in deciding whether or not you accept the evidence he gave in court. Of course he denied committing the offences and so when you say to yourselves do I accept what he said, you take into account that he is a man with no previous convictions who is described as honest by those people who know him. Now, or [sic] course, the character of Mr Mehajer is just one of the many matters you take into account in deciding your verdict. People without criminal convictions are not incapable of committing offences. After all everyone that has ever been convicted of a criminal offence has at some stage been able to say I have no previous convictions. Nor are people with no convictions, nor are people who are described as honest incapable of lying. And I have just suggested to you - the Crown says that even on Mr Mehajer's version when he handed over that $2,000 he was doing it dishonestly. But, of course, I do not want to undermine in any way the direction I have given you." 33On the second day of the summing-up the following direction was given in respect of Count 1: "So there is that first element, Mr Mehajer entered into an agreement with at least one other person, either Mr Diab, Ms Cornell or both to cheat and defraud the National Australia Bank of a sum of money. And under the notes there I have got to cheat and defraud someone is to intentionally use dishonest means to deprive another person of their property. And of course in this case the Crown says that the dishonest means that the people had agreed to use was that NAB was to be deceived into thinking that Mr Mehajer was a better loan risk than he really was by the use of those two false documents, false financials or the false resume or both of those." 34His Honour then directed the jury that in considering Count 1 it was not necessary to find that the appellant did not intend to repay NAB: "And of course the Crown does not suggest that Mr Mehajer was going to take the $3 million and never pay it back but I remind you it does not matter. Everyone seems to have had the view that Mr Mehajer was going to be able to service the loan and ultimately of course no money was lent. So ultimately the NAB did not suffer any loss. And if the loan had been granted and Mr Mehajer had paid the interest and paid the principal back at the end, it would not have suffered any loss either. But the offence can still be committed even if those involved in it intended that the National Australia Bank would get the loan repaid." 35The trial judge then proceeded to give detailed directions on Count 2: "Well once again there are elements that have to be proved in count 2 before the Crown can prove Mr Mehajer's guilt to your satisfaction and I have written them down for you there. The first is that Mr Mehajer gave Mohamad Sowaid $2,000. The second is that at the time Mr Sowaid was an employee of the National Australia Bank Limited. Now I do not think you will have much trouble with those. Both Mr Mehajer and Mr Sowaid say that Mr Mehajer gave Mr Sowaid $2,000. So I think you will find that proved beyond reasonable doubt fairly quickly. Mr Sowaid told you he was employed by the National Australia Bank and it was never suggested to him that he was not and so I think you would tick that one off as well. And move onto the third one. The third thing the Crown has got to prove is that the receipt of the money would in any way tend to influence Mr Sowaid to show favour in relation to the affairs or business of the National Australia Bank Limited. Well once again members of the jury, I do not think it was suggested by Mr McKeand that you would not find that proved. It appears that Mr McKeand accepts on behalf of his client the receipt and [sic] the money would tend in some way to influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank. And as I have made clear in that note underneath the elements members of the jury, the Crown does not have to prove that the receipt of the money would actually influence Mr Sowaid, that the receipt of the money actually influenced him to show favour to Mr Mehajer. Only that the receipt of the money would tend to influence him to show favour. And I say I might be wrong but I did not get the impression that Mr McKeand was asking you to find in favour of his client as regards that element. The focus of his submissions on this count was the fourth element and that is what I will look at now. The fourth element requires that the Crown prove beyond reasonable doubt that the payment was made corruptly. And what that means is that Mr Mehajer intended that it would influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited. So the real issue as far as count 2 is concerned requires you to look at what Mr Mehajer intended at the time he handed over that $2,000. What did he intend? What did Mr Mehajer intend? Not what would someone else intend who had done that. Not what a reasonable person would intend who did that. The question is what did Mr Mehajer intend when he handed over the $2,000? Did he intend to influence Mr Sowaid to show favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank? Now I want you to understand that the idea of showing favour does not only mean approve the loan or process the loan application. Look it can mean that but it can mean other things too. It may be and this is for you to decide and not me. It may be that by getting Mr Sowaid to do his work on the loan application faster than he would otherwise, Mr Sowaid would be showing favour to Mr Mehajer in relation to the affairs or business of the National Australia Bank Limited. Remember yesterday I said that it may be that even on Mr Mehajer's version you could find him guilty of this charge, well that is because the idea of showing favour does not only mean show favour in processing the loan application, show favour in getting me the loan. It can also mean perhaps, this is for you to decide, working on the loan application faster than you would otherwise have done." 36His Honour then gave the example of paying a motor registry employee a fee to jump a queue. He said in these circumstances it would be up to the jury to determine whether this was done to show a favour to the person in relation to the business of the Roads and Maritime Services. He then proceeded as follows: "You are deciding whether Mr Mehajer committed an offence. And I am not telling you that you would find Mr Mehajer guilty even on his version of events. I am not telling you that at all. All I am telling you is what the elements of the offence are and that one argument of the Crown that you may need to evaluate is that Mr Mehajer is guilty if you accept the version of events that he put forward in his evidence to you. And that is because showing favour, a thing referred to in element 4 there, showing favour does not only mean processing a loan application or having the loan granted. It might, subject to what you decide, it might mean other things as well." 37The trial judge emphasised that the payment of $2,000.00 was relevant to both charges: "The Crown said that that meeting where the money is handed over of course is directly relevant to the charge that Mr Mehajer faces alone, the second count on the indictment, but the Crown says it is also relevant to the conspiracy charges that each face. So you do not just - because it is relevant particularly to one particular charge, you do not ignore it when you look at the other charge. The Crown then said, well this was not an overtime payment - it was suggested it was a payment for overtime, but it was not said the Crown in his submission and he had a number of reasons for that. It was not discussed like that on the phone. There was no suggestion that it was a payment for overtime on any telephone intercept. It was not described as a consultant fee on any calls despite that being what Ms Cornell thought the payment was all about. And of course you have got to remember Mr Sowaid's evidence. He has denied that it had been referred to as an overtime payment when he gave evidence and later calls between Mr Diab and Ms Cornell show that they both knew about this $2,000 payment and they both knew that more money was to be paid to Mr Sowaid. The Crown said that in a call on 8 December that payment is not described as a consultant's fee, it is described as a present and that, says the Crown, is very significant. If it was a consultant fee he would have been described as a consultant. Then the Crown said it does not matter really what the money was called, even if it was called overtime then you could still be satisfied beyond reasonable doubt that the charge that Mr Mehajer faces alone is proved beyond reasonable doubt." 38Subsequently an objection was taken to part of the directions on Count 2: "MCKEAND: And the second point relating to the same charge is a technical one really. The particulars that the Crown has got in terms of the inducement in relation to the business of the principal are namely process a loan application through the National Australia Bank and your Honour focused on the fact that, even if the payment was to work overtime it would still come within - in relation to the business of the principal of Mohamad Sowaid. HIS HONOUR: I didn't say it would, I said they'd have to decide. I didn't say it would. MCKEAND: No, no, all right, well sorry I didn't mean to misquote you. ... MCKEAND: But nevertheless that is not within the particulars which was the processing of the loan application and the way I put it to the jury was processing a loan application means to complete that task. HIS HONOUR: Well as you point out they're mere particulars, so particulars in a charge are not elements of the offence. Mr Crown - I mean sometimes Mr Crown might agree with you, I'll just check. CROWN PROSECUTOR: No, no this is a classic case of the Crown, as a matter of fairness, has to provide particulars it has. If the defence provides a different set of particulars in their own case which results in a conviction, then so be it. HIS HONOUR: Okay, Mr McKeand do you want to say anything else? MCKEAND: Nothing further your Honour. HIS HONOUR: I don't propose to amend what I said in this regard." The grounds of appeal against conviction 39The appellant relies on the following grounds of appeal: "1. His Honour erred in directing the jury, impermissibly, that it could convict the appellant of count 2 on a basis, other than that contended for by the Crown; 2. His Honour erred in directing the jury that the appellant would be guilty of count 2, without proof that the receipt of the money would actually influence Mr. Sowaid to show favour to the appellant in relation to the affairs or business of the National Australia Bank; 3. His Honour erred in directing the jury that it would be open to the jury to be satisfied that the appellant had acted corruptly, even if, as he stated in his evidence, his intent was only to compensate Mr. Sowaid for working overtime on the loan application, and thereby impermissibly discounting the possibility that it would be open to the jury to find that Mr. Sowaid's role in so doing was not something done in relation to the affairs or business of the National Australia Bank; 4. His Honour erred in directing the jury in relation to both counts 1 and 2 that it was immaterial that the appellant might have had no intent to deprive corruptly the National Australia Bank of property or place the bank's economic interests in jeopardy, thereby on count 1 equating the Crown case to one of making false and misleading statements with the intent to obtain a financial advantage and on count 2 impermissibly widening the effect of his Honour's directions on the meaning of the expression 'in relation to the affairs or business of the agent's principal'; 5. In erroneously directing the jury that it could convict the appellant on count 2 even on his own 'version', his Honour further erred in undermining the character direction otherwise given in relation to the appellant; and 6. When directing the jury that it could return a majority verdict, his Honour erred: (a) in failing to direct the jury that it should continue to strive for a unanimous verdict; and (b) by telling the jury that the Court would be surprised, if the jury would not indicate well before 4 o'clock, that is to say, in well under 30 minutes, that it could not reach a majority verdict. 7. His Honour erred in directing the jury as to the elements of count 2 in that such elements related to a different offence to the actual offence charged as count 2 on the indictment." The construction of s 249B of the Act 40Because a number of the grounds of appeal depend on the construction of s 249B of the Act it is convenient to deal with that question at the outset. 41As is apparent from the submissions in the present case s 249B of the Act gives rise to a number of difficulties of construction. It is important to bear in mind in those circumstances the approach which should be adopted in construing the legislation. 42The task of construing the section must begin with a consideration of the text itself, taking into account the context including the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]. Context is important as statutory construction requires deciding what is the legal meaning of a provision by reference to the language of the instrument viewed as a whole: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23], [24], [68] and [88] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. 43The first issue is what is meant by the expressions "corruptly receives or solicits" and "corruptly gives or offers" in the chapeaus of each of s 249B(1) and (2) of the Act. 44Section 249B of the Act substantially re-enacted s 3 of the Secret Commissions Prohibition Act 1919 (NSW), adding s 249B(1)(a)(ii) and s 249B(2)(a)(ii). Section 249B was introduced by the Crimes (Secret Commissions) Amendment Bill 1987 (NSW) (the Bill). The Explanatory Note stated that the object of the Bill was to re-enact, with modifications, the provisions of the Secret Commissions Prohibition Act (NSW). The Second Reading Speech of the Bill added the following remarks: "The target of the bill ... is the corrupt activities of those agents who either accept bribes in relation to their principals' affairs, or who do not make full disclosure to their principals of matters which may affect the carrying out of the agents' duties ... Because these offences are very broad in their scope, and could cover activity which it is not intended to cover, and which few people would consider criminal, the present provision, which allows a court to dismiss a charge which is trivial or purely technical, has been retained ... This bill brings the offences covered by this legislation into line with other comparable offences of dishonesty ... The aim...is to ensure that corrupt practices by agents, such as the receiving or the soliciting of bribes, are dealt with..." 45In Cooper v Slade (1858) 6 H L Cas 746; (1858) 10 ER 1488 the House of Lords considered the provisions of the Corrupt Practices Prevention Act 1854 (UK), which made it an offence to corruptly do any act of a certain class on account of any voter having voted or refrained from voting. Willes J who delivered the opinion of the majority of their Lordships stated that "corruptly" in that statute "means not 'dishonestly', but in purposely doing an act which the law forbids as tending to corrupt voters whether it be to give a pecuniary inducement to vote, or a reward for having voted in any particular manner ... The word 'corruptly' seems to be used as a designation of the act of rewarding a man for having voted in a particular way as being corrupt, rather than as part of the definition of the offence". 46The adoption of this approach to offences equivalent to s 249B of the Act has been the subject of some controversy. In C v Johnson [1967] SASR 279 an issue arose as to whether a land agent was disqualified from acting as such by virtue of a conviction for an offence under s 5(a) of the Secret Commissions Prohibition Act 1920 (SA), the equivalent to s 249B(1) of the Act. The question was whether an offence under that section was an offence involving dishonesty. 47Bray CJ (at 289) pointed to the fact that in Cooper v Slade supra the word "corruptly" was construed as not necessarily importing the notion of dishonesty and that the decision had been followed in later cases dealing with elections. His Honour however concluded that a narrower view of s 5(a) of the Secret Commissions Prohibition Act (SA) was appropriate. He made the following comments: "On the whole, however, I think that in relation to the Secret Commissions Prohibition Act 1920, the narrower meaning of the word 'corruptly' is to be preferred. On normal legal principles one would expect that word to add something to the meaning of the section. If it were not there, for example, it might be an offence for an agent to solicit a commission from a party with whom the principal was dealing or expected to deal, even with the consent and approval of the principal. I think in this statute it does import that the defendant was acting mala fide, to use the words of the Court of Appeal of Ontario in Gross's case, and with wrongful intention, to use the words of Hood J. in Stevenson's case. If so, I fail to see how that bad faith or wrongful intention could be honest. One of the meanings of dishonest given in Murray's New English Dictionary is 'discreditable, as being at variance with straightforward or honourable dealing, underhand'. My view is that the commission of an offence against s. 5(a) of the Secret Commissions Prohibition Act 1920 necessarily involves dishonesty, and that a man who acts corruptly within the meaning of that section necessarily acts dishonestly. Of course, I use the word 'dishonesty' to mean dishonesty according to normally received standards of honest conduct. If a defendant charged with an offence against this section believed that to be honest which, according to standards of conduct generally held, was dishonest, that fact would not, in my view, prevent him from acting corruptly, or prevent his offence being described as one involving dishonesty." (Citations omitted). 48Chamberlain J (at 301) reached a somewhat similar conclusion. He stated that "[t]he corrupt or wrongful intention contemplated by the provision is to my mind the intention of an agent to take advantage of his relationship with his principal to secure some benefit to himself or some other person, without the knowledge of his principal. This as I think, and as I believe most people would think, involves dishonesty". 49Both Bray CJ and Chamberlain J thus found the giving of a secret commission contains within it the necessary element of dishonesty to make the payment (and its receipt) corrupt. 50R v Dillon and Riach [1982] VR 434 was a case involving an offence under the then Victorian equivalent of s 249B of the Act. Brooking J, in giving his reasons for the directions he proposed to make to the jury, made the following comments (at 436): "In my view, an agent does act corruptly if he receives a benefit in the belief that the giver intends that it shall influence him to show favour in relation to the principal's affairs. If he accepts a benefit which he believes is being given to him because the donor hopes for an act of favouritism in return, even though he does not intend to perform that act, he is, by the mere act of receiving the benefit with his belief as to the intention with which it is given, knowingly encouraging the donor in an act of bribery or attempted bribery, knowingly profiting from his position of agent by reason of his supposed ability and willingness, in return for some reward, to show favouritism in his principal's affairs and knowingly putting himself in a position of temptation as regards the impartial discharge of his duties in consequence of the acceptance of a benefit." 51That direction was approved by the Full Court of the Supreme Court of Victoria in R v Gallagher [1986] VR 219 at 231. The Court stated (at 230) that the direction was consistent with the weight of authority founded upon Cooper v Slade supra. Although the Full Court stated that the conclusion of Bray CJ in C v Johnson supra was not inconsistent with that line of authority, it suggested (at 231) that dishonesty was not a necessary ingredient of the offence but the necessary mental element was to give or receive a gift or consideration to show favour or refrain from showing favour. 52In R v Jamieson [1988] VR 879 the majority of the Full Court of Victoria followed R v Gallagher supra. Young CJ, with whom Fullagar J agreed, stated (at 883-884) that the trial judge was correct in telling the jury that a person acted corruptly if he made a payment intending the payment should influence the agent to show favour in relation to the affairs of his principal. He stated it was not possible to import a requirement that it be established that it was intended to conceal the true nature of the payment from the agent's principal. Although he stated it would be difficult to imagine a case where an agent could be found to have acted corruptly when he had informed his or her principal of the payment. 53Both the Court of Appeal in England and the Privy Council have applied the dictum in Cooper v Slade supra in dealing with equivalent legislation to s 249B of the Act: R v Wellburn (1979) 69 Cr App R 254, Regina v Smith [1960] 2 QB 423, Regina v Robert Harrington (Unreported, 28 September 2000, English Court of Appeal Criminal Division) and Jagdeo Singh v State of Trinidad and Tobago [2006] 1 WLR 146. 54If this line of authority is correct it follows that all that is needed to establish the payment was corrupt is that the person who made the payment did so deliberately with the intention that the person to whom it was addressed should enter into a corrupt bargain: Regina v Smith supra at 428 and Jagdeo Singh v State of Trinidad and Tobago supra at [15] and [16]. In Regina v Smith it was accepted by Lord Parker CJ (at 428) that this interpretation to a large extent means that the inclusion of the word corruption added nothing to the meaning of the section. To that it might be added that the reference to an intention to enter into a corrupt bargain is not reflected in the language of s 249B of the Act or for that matter in the language of the section under consideration in Regina v Smith (s 1(2) of the Public Bodies Corrupt Practices Act 1889 (UK)). 55By contrast in R v Turner [2001] WASCA 344; (2001) 25 WAR 258, the Full Court of the Supreme Court of Western Australia, in considering the Western Australian equivalent of s 249B of the Act, emphasised (Burchett AUJ at [10], Malcolm CJ and Wheeler J agreeing) that the section was not concerned with the whole universe of corruption as distinct from that which is related to the performance of the duties of an agent. Burchett AUJ considered the corruption in that sense involved the betrayal of trust or at least a debasement of the disinterestedness a principal is entitled to expect of an agent. He said that corruption so understood did not sit with openness or true assent by the principal. In the result he reached the following conclusion: "[13] In my opinion, these authorities confirm that the sections are directed at the specified conduct done with the intention (properly described as corrupt) of seducing an agent from the duty owed to their principal or of rewarding the forsaking of that duty in favour of another. Consistently with this view of the sections, they will not apply where the principal is known or believed to have assented." 56In R v Kelly (1992) 92 DLR (4th) 643 the Supreme Court of Canada considered the equivalent section of the Canadian Criminal Code (R.S.C., 1985, c. C-46) to s 249B of the Act. The majority, Cory J, L'Heureux-Dubé, Gonthier and Iacobucci JJ agreeing, rejected the approach in Cooper v Slade supra to the particular section in question. Cory J stated the purpose of the section in the following terms (at 658): "There can be no doubt that s. 426 acknowledges both the importance of the agency relationship and the necessity of preserving the integrity of that relationship. It confirms that an agent should not be placed in a position which is in conflict with that of the principal. It recognizes that a benefit taken by an agent from a third party will place that agent in a conflict of interest position with the principal unless the benefit is promptly and adequately disclosed. No one should provide an agent with a benefit, knowing the benefit to be secret, in order to influence the agent with regard to the affairs of the principal. To do so corrupts and destroys the agency relationship. The secret benefit renders the advice and services of an agent so suspect that they cannot be accepted." In relation to the meaning of corruption he made the following remarks (at 660): "What meaning should be given to the word 'corruptly' in the context of this section? It is argued that the offence is complete as soon as the agent takes the benefit as consideration for influencing the affairs of the principal. This is based upon decisions such as Cooper v. Slade (1858), 6 H.L.C. 746, 10 E.R. 1488, and R. v. Gallagher (1985), 16 Aust. Crim. R. 215 (Vict. C.C.A.). I cannot accept this position. It stems from the old jurisprudence on the corruption of voters. It is true these cases together with those which deal with the bribery of officials are concerned with the interpretation of 'corruption'. However, they are readily distinguishable from the secret commissions cases. In bribery cases there is no prerequisite that an agency relationship exists. Yet the whole aim and object of s. 426 is the protection of the vulnerable principal and the preservation of the integrity of the agent-principal relationship. Furthermore, the nature of a commission is very different from that of a bribe. The interpretation of the word corruptly must take place within the context of s. 426 itself. It is a trite rule of statutory interpretation that every word in the statute must be given a meaning. It would be superfluous to include 'corruptly' in the section if the offence were complete upon the taking of the benefit in the circumstances described by the section. The word must add something to the offence. In my view, 'corruptly', as used in the section, designates secrecy as the corrupting element of the offence. It is the failure to disclose that makes it impossible for the principal to determine whether to act upon the advice of the agent or accept the actions of the agent. It is the non-disclosure which makes the receipt of the commission or reward corrupt. The word 'corruptly', in this context, adds the element of non-disclosure to the actus reus of the offence." 57McLachlin J (as her Ladyship then was) stated (at 665) that the aspect of mens rea of the offence of taking a secret commission, which is imported by the adverb "corruptly", may lie in the awareness of the fact of non-disclosure. She stated (at 668) that if an agent accepts a commission without beforehand or simultaneously advising the principal of the fact, the offence is established. Sopinka J dissented. 58The approach of the Supreme Court of Canada is consistent, in my opinion, with that of the Full Court of South Australia and the Full Court of Western Australia. By contrast the approach of the English and Victorian authorities to which I have referred gives a somewhat wider ambit to the section. Namely, that the requisite mental element is made out if the payment is intentionally given, offered and received for one of the requisite purposes referred to in the subsection. 59Although generally speaking it may make little difference to the result, in my opinion it is an element of the offence that the payment is corrupt. This is so for a number of reasons. First, it can be presumed that the word "corruptly" was intended to have some meaning and effect: see for example, Project Blue Sky Inc v Australian Broadcasting Authority supra at 382. 60Second, the mischief to which the section is directed, as was pointed out in R v Turner supra and R v Kelly supra, is to prevent agents from being encouraged to act to the detriment or against the interests of their principals. A construction which gives no meaning to the word "corruptly" could in theory catch a payment which was made by a person to another's agent with the consent of the principal. For example where it was agreed between the third party and the principal that the third party would pay the principal's agent for carrying out certain work which would be to the benefit of both the principal and third party. 61Third, care needs to be taken in relying on cases which deal with corrupt or improper payments in different circumstances: see R v Kelly supra at 660. Whilst any payment to influence a voter to vote or to vote in a particular way could be seen to be corrupt, the position may be different in respect of payments made by a third party to another's agent. 62Fourth, the conclusion I have reached is consistent with what was said in the Second Reading Speech to which I have referred in par [44] above. 63In these circumstances it is necessary to demonstrate that the impugned payment was made in circumstances which would be regarded as being corrupt according to standards of conduct generally held. However, as was pointed out in C v Johnson supra, R v Turner supra and R v Kelly supra, a payment to or receipt by an agent without the knowledge or consent of the principal for one or other of the purposes described in s 249B(1)(a) or (2)(a) of the Act or having the tendency to have the effect referred to in s 249B(1)(b) or (2)(b), would generally be regarded as corrupt according to such standards. However, that is a matter for the jury to determine in any particular case. 64Therefore, the requisite mental element for an offence under s 249B(1)(a) or (2)(a) of the Act in my opinion, is that the corrupt benefit is received, in the case of s 249B(1)(a), or given, in the case of (2)(a), as intending it as an inducement or reward on account of one of the purposes referred to in subs (i) and (ii) of s 249B(1)(a) or s 249B(2)(a). Relevantly, in the present case for the charged offence the subject of Count 2 to be established the Crown would have to prove beyond reasonable doubt: (i)That Mr Sowaid was an agent of NAB. (ii)That the appellant gave Mr Sowaid a benefit, namely $2,000.00. (iii)That the appellant gave the benefit intending it as an inducement for Mr Sowaid processing a loan application through NAB. (iv)That the payment was corrupt according to normally received standards of conduct. The fact of non-disclosure to the principal generally will be sufficient to satisfy this element. 65Although the charge against the appellant was not laid under s 249B(2)(a)(ii) of the Act nor notwithstanding the jury direction under s 249B(2)(b), it is necessary having regard to the grounds of appeal and the submissions to identify the difference in the elements of these offences to the offence under s 249B(2)(a)(i) with which the appellant was charged. 66For the transaction in question to constitute an offence by the appellant under s 249B(2)(a)(ii) of the Act it would have been necessary for the Crown to prove: (i) That Mr Sowaid was an agent of NAB. (ii) That the appellant gave Mr Sowaid a benefit, namely $2,000.00. (iii) That the payment was made by the appellant as an inducement to show favour to the appellant in relation to the processing of the loan application through NAB. (iv) That the payment was corrupt according to normally received standards of conduct. 67For the transaction to constitute an offence by the appellant under s 249B(2)(b) of the Act it would be necessary for the Crown to prove: (i) That Mr Sowaid was an agent of NAB. (ii) That the appellant gave Mr Sowaid a benefit, namely, $2,000.00. (iii) That the payment was one which objectively speaking would tend to influence the agent, Mr Sowaid, to show favour in relation to the processing of the loan application through NAB. (iv) That the payment was made by the appellant intending, knowing or believing that it would tend to influence Mr Sowaid to show the appellant favour in relation to the processing of the loan application. (v) That the payment was corrupt according to normally received standards of conduct. I have elaborated on the reasons the matter in subpars (iii) and (iv) above are elements of the offence in dealing with Ground 2 below. 68The differences in the elements of each offence can be summarised as follows. For a benefit or offer of a benefit to constitute an offence under s 249B(2)(a)(i) of the Act, it is necessary to establish that the donor of the benefit intended the benefit or offer as an inducement to the agent to do or refrain from doing a particular act in relation to the principal's affairs (or as a reward for doing or refraining from doing such an act). 69By contrast, s 249B(2)(a)(ii) of the Act does not require the payment to be an inducement or reward for doing or not doing a particular act. Rather it requires that the payment was intended by the donor as an inducement or reward for showing or not showing favour to a particular person in relation to the affairs of the principal. 70The difference between the elements of s 249B(2)(a)(i) and (ii) of the Act with s 249B(2)(b) is that, for the purposes of the latter section, the donor, whilst not offering the payment or benefit as an inducement or reward, must make the payment or offer to make the payment knowing, believing or intending that the payment was one which would tend to influence the agent to show favour or disfavour in relation to the affairs or business of the principal of the agent. 71With that background it is convenient to deal with the grounds of appeal. The parties' submissions and consideration of the grounds of appeal Ground 1 "His Honour erred in directing the jury, impermissibly, that it could convict the appellant of Count 2 on a basis, other than that contended for by the Crown" (a) The appellant's submissions 72The appellant referred to the manner the Crown opened its case to which I have referred in par [25] above and to the conflicting evidence of Mr Sowaid and the appellant as to what was said when the money was handed over (see pars [17]-[20]). He submitted that having regard to the manner in which the Crown had addressed prior to the exchange with the trial judge to which I have referred in par [28] above, the Crown accepted that if the jury found the appellant's account might have been true the appellant was entitled to an acquittal. He submitted it was not the Crown case that if the payment was in fact for overtime, the appellant was still liable to be convicted. 73In that regard the appellant pointed to the fact that subsequently in his address to the jury the Crown suggested that the purpose of the money being handed over was so Mr Sowaid would turn a blind eye to the financials. 74In that context the appellant submitted that those portions of the summing-up to which I have referred to in pars [31], [32] and [35] above, in which the trial judge directed the jury in terms that the appellant might be convicted on his own account, was not contended for by the Crown. The appellant also contended that the trial judge incorrectly told the jury that this basis was in fact relied upon by the Crown. 75The appellant submitted that what occurred constituted a miscarriage of justice, pointing to the fact that at a minimum, injustice occurred by reason of the inability of counsel for the appellant to address the issue. He pointed to the fact that objection was taken but the judge refused to say anything more to the jury. 76The appellant also referred to what the judge said was meant by "showing favour" in the direction to which I have referred to in par [36] above. He submitted the statement, "[s]howing favour does not only mean processing a loan application or having the loan granted. It might, subject to what you decide, it might mean other things as well", allowed the jury to find that payment was corrupt without any reference to the purpose for which it was made and received. 77The appellant also submitted that because what was alleged on Count 2 was relied upon as an overt act in respect to the conspiracy count (Count 1), the misdirection had the potential also to affect that count. 78At the hearing senior counsel for the appellant submitted that the direction had added force as it came directly from the judge rather than through the Crown. He emphasised the procedural unfairness flowing from the fact that there was no opportunity to address on the issue. He submitted that this was the case even if as a matter of law the appellant could be convicted on the basis that his intention was that the payment be a payment for overtime. 79Senior counsel for the appellant accepted that although there was a discussion about particulars, there was no application to have the direction withdrawn, to address the jury on the issue, or to have the jury discharged. (b) The Crown's submissions 80The Crown submitted that the question of whether the payment was an overtime payment was not opened by the Crown. It was submitted that once it arose in the appellant's case it was permissible for the Crown to rely on it. 81The Crown submitted, relying on R v Lykouras [2005] NSWCCA 8, that the question was whether the trial was rendered unfair. The Crown submitted that this result did not follow. 82The Crown submitted that any error would not affect Count 1. 83At the hearing senior counsel for the Crown submitted that the statement by the prosecutor referred to in par [29] also raised the issue the subject of the complaint in this ground of appeal. She accepted, however, that the primary case at the hearing was that Mr Sowaid's evidence should be accepted. Senior counsel for the Crown submitted that the direction did not have greater force coming from the judge rather than from the Crown. 84Senior counsel for the Crown submitted that if the appellant could be convicted on the basis that what he said about the purpose of the payment was true, then the direction given was appropriate. If he could not be so convicted on that basis, she accepted that the direction would have been erroneous but the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (the proviso) would apply. (c) Consideration 85I have set out particulars of the opening and closing remarks of the Crown and the evidence of Mr Sowaid and the appellant as to the circumstances the money came to be handed over in pars [17]-[20], [25], [27] and [29] above. It seems to me that the case put by the Crown at trial was that even if the payment was described as a payment for overtime, the jury should not accept that that was its purpose and it was made with a corrupt intent. The Crown did not seek to mount a case that if the payment was only to encourage Mr Sowaid to process the loan application on the weekend, he could still be convicted of the offence the subject of Count 2. 86The summing-up by the trial judge put the case more widely. In that portion of his direction to the jury to which I have referred in pars [31], [32] and [35] he stated that even if the purpose of the payment was as alleged by the appellant he could be found guilty of the offence. 87For the reasons I have given in dealing with Grounds 2 and 3, it would be open to the jury to conclude that even if the payment was intended to compensate Mr Sowaid for working on the appellant's loan application on the weekend, there was a contravention of at least s 249B(2)(a)(i) of the Act. Such a payment could be found to be a reward for doing something in relation to the affairs of the principal and it would be open to the jury to find that a non-disclosed payment made in the particular circumstances in which it was made was corrupt. As I indicated in dealing with Grounds 2 and 3 below, it is not necessary for there to be an actual showing of favour or that the assets of the principal were in peril. 88The critical concern is whether the raising of the issue by the trial judge resulted in a miscarriage of justice. As was pointed out in R v Lykouras supra (at [22]-[24]), this depends on whether the trial was unfair as a result of the trial judge raising the issue. 89In Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 Johnson J (at [137]-[149]), with whom Spigelman CJ and Simpson J relevantly agreed, set out in detail the relevant legal principles arising from a trial judge leaving to a jury a possible basis of conviction not relied on by the Crown. I would respectfully adopt what his Honour said in those paragraphs. His Honour explained (at [146]) that even if the prejudice was confined to the inability to address the jury upon that question, that itself is capable of being a most significant area of prejudice. 90Having regard to the manner in which the trial developed it may well be that the evidence led and the approach taken by the defence counsel would not have been different. However, counsel for the appellant was deprived of the opportunity to address on whether the offence was made out if the jury accepted the $2,000.00 was in fact paid by the appellant with the intention that it compensate Mr Sowaid for overtime, and in particular, whether such a payment in the circumstances in which it was made was corrupt according to normally received standards of conduct. 91Whether or not the proviso could apply if this was the only ground of appeal need not be considered. As I have indicated subsequently, Ground 7 is also made out and it is not appropriate to apply the proviso in relation to that ground. The fact that this additional error was made reinforces that conclusion. 92It was submitted that this error also infected the jury's decision on Count 1. I do not agree. I have set out the trial judge's direction on this count in pars [33], [34] and [37] above. The jury was directed that the $2,000.00 payment was relevant to the conspiracy charge. However, it was emphasised by the trial judge that the Crown said it was not an overtime payment. In the concluding part of the direction which I have set out in par [37], the trial judge stated that if the payment was described as overtime, the appellant could be convicted on the charge brought against him alone, namely, Count 2. However, the trial judge did not direct that a payment in fact for overtime could support the conspiracy charge (Count 1). Grounds 2, 3 and 7 93The submissions on these grounds focus on s 249B(2)(b) of the Act notwithstanding the fact that Count 2 of the indictment alleged a contravention of s 249B(2)(a)(i). As it emerged on appeal it was common ground that the trial judge erroneously directed the jury on the wrong subsection. This is the subject of Ground 7. 94Grounds 2 and 7 overlap to the extent that the outcome of Ground 7 will be affected by the conclusion reached on Ground 2. In these circumstances, it is convenient to deal with these grounds together. Further, Ground 3 raises somewhat similar issues of construction and can be dealt with conveniently in conjunction with Grounds 2 and 7. (i) Ground 2 "His Honour erred in directing the jury that the appellant would be guilty of Count 2, without proof that the receipt of the money would actually influence Mr Sowaid to show favour to the appellant in relation to the affairs or business of the National Australia Bank" (a) The appellant's submissions 95The appellant submitted that the words "would in any way tend" in s 249B(2)(b) of the Act can only be satisfied if the benefit has the capacity to influence the recipient. That is, he submitted the benefit must have the effect of predisposing the recipient to show favour. He emphasised the use of the word "would" in the subsection rather than the word "could". The appellant, however, submitted that it was not necessary to demonstrate that favour or disfavour in fact was shown but rather that it influenced the recipient to do so. 96The appellant submitted that in these circumstances the note to the written directions would confuse the jury because it contrasted actual or real influence with tendency to influence. He submitted that the jury should have been directed that it was required to find that the benefit actually influenced the recipient to show favour. He further submitted that the statement in the summing-up, to the effect that the Crown did not have to prove the receipt of money would actually influence Mr Sowaid, was incorrect. (b) The Crown's submissions 97The Crown submitted that as the point was not taken in the Court below leave was required by virtue of the provisions of r 4 of the Criminal Appeal Rules (NSW) (the Rules). 98The Crown submitted that the construction of s 249B(2) of the Act contended for by the appellant was inconsistent with the words of the subsection. The Crown submitted that if the legislative intention was to require that the recipient actually be influenced, this would have been made clear in the language of the subsection. The Crown also submitted that this construction was inconsistent with what was said by the Full Court of the Supreme Court of Victoria in R v Gallagher supra concerning the construction of a similar section. (c) Consideration 99The appellant's contention that it is necessary for the Crown to prove that the recipient was actually influenced to show favour or disfavour, whilst not being required to prove that favour or disfavour was in fact shown, is a fine distinction for which no authority was cited and which, in my opinion, is not justified by the words of the section. 100The words in s 249B(2)(b) of the Act, "would in any way tend to influence the agent", invite attention to the question of whether the payment would have that tendency, not that in fact it operated on the agent either pre-disposing him to show favour or in fact causing him to show favour. Rather, the payment has to be one which objectively speaking would have that tendency whether it influenced the agent or not. 101The construction proposed by the appellant would mean that the commission of an offence under s 249B(2)(b) of the Act would depend on the state of mind of the recipient of the payment and not that of the person charged with the offence. It would also mean that in respect of an offence charged under s 249B(1)(a)(ii) an agent would not be liable if he accepted the corrupt payment without having any intention to be influenced by it. Such a construction is unlikely to have been intended by the legislature. 102In R v Gallagher supra the Court emphasised (at 226) that it is the intention of the person charged, whether giving or receiving the payment as the case may be, which is relevant in deciding whether the behaviour charged is corrupt: see also R v Jamieson supra at 883-884. These authorities are inconsistent with the contention relied upon by the appellant. In the latter case, Young CJ stated the mental element of the offence in terms consistent with the manner I have explained it in par [67] above. 103To establish the offence (in the way the trial judge directed the jury) it was necessary for the Crown to prove that objectively speaking the payment would be one which would tend to influence the recipient to show favour. In my opinion this is consistent with the words of the section. A contrary construction involves reading the words "would in any way tend to influence the agent" as "influence the agent". Neither the language of the section nor its context requires such an interpretation. 104It follows that this ground of appeal is not made out. (ii) Ground 3 "His Honour erred in directing the jury that it would be open to the jury to be satisfied that the appellant had acted corruptly, even if, as he stated in his evidence, his intent was only to compensate Mr Sowaid for working overtime on the loan application, and thereby impermissibly discounting the possibility that it would be open to the jury to find that Mr Sowaid's role in so doing was not something done in relation to the affairs or business of the National Australia Bank" (a) The appellant's submissions 105The appellant submitted that the charge the subject of Count 2 could not be made out simply if the appellant paid Mr Sowaid to work overtime. Rather he submitted the prosecution was required to prove that the person giving him the benefit intended that the recipient show favour by doing an act detrimental to the affairs or business of the principal. 106The appellant submitted that in the present case there was no evidence that NAB would have been harmed in any way had Mr Sowaid worked overtime to complete the processing of the loan application. He submitted the problem was compounded by the analogy with a motor registry queue used by the trial judge to explain this element of the offence. 107Senior counsel for the appellant emphasised the offence was a corruption offence. In answer to a question as to what was the mental element, he submitted the intention "has got to be that there's something wrong that's to the detriment of the principal". He submitted that if all that was being asked was that someone work on a weekend when "you're not bumping someone out of a queue" (referring to the motor registry example), where favourable treatment by working on a lower loan to equity ratio was not given, then there was no corruption even if there was a side payment. He said there had to be an intention to corrupt the agent and some detriment had to be shown. He accepted there was no requirement to prove actual detriment but said that an intention to cause detriment was necessary. (b) The Crown's submissions 108The Crown submitted that as no objection was taken to the direction at the trial leave to raise this ground was required by virtue of r 4 of the Rules. It was submitted that there was no requirement in the subsection that there be a detriment to the principal and that the jury were directed correctly in relation to showing favour. (c) Consideration 109The language of the section does not require that what is done by the agent as a result of the inducement or that any favour or disfavour shown by the agent needs to be to the detriment of the principal. 110As was stated by Burchett AUJ in R v Turner supra (at [10] and [13]) and by Cory J in R v Kelly supra (at 658) the purpose of the section is to avoid an agent being placed in a position of conflict or being induced to breach the trust shown in him or her by the principal. The position was succinctly stated by the Court of Appeal of England and Wales in R v Wellburn supra (at 265): "The mischief aimed at by the modern statutes dealing with corruption is to prevent agents and public servants being put in positions of temptation." 111A construction which required proof beyond reasonable doubt that the principal was in fact imperilled would significantly undermine this objective. 112Further, the proposition the subject of this ground was expressly rejected by the Full Court of the Supreme Court of Victoria in Gallagher v R [1987] VicSC 352; (1987) 29 A Crim R 33. In dealing with a submission similar to that made in the present case the Full Court made the following remarks (at 35-36): "Grounds 3 and 3A assert misdirection as to the meaning of the words 'would in any way tend to influence him to show or to forbear to show favour or disfavour' in s176(1)(b). It was argued that nothing could be regarded as favour or disfavour for the purposes of the sub-section unless it was something that was at least capable of causing detriment to the principal. It might be said that, where the question is whether the receipt of something by an agent would in any way tend to influence him to show or to forbear to show favour or disfavour in relation to his principal's affairs or business, the very notion that the receipt of the benefit would tend to influence the agent to show or to forbear to show favour or disfavour carries with it a detriment to the principal, in that his agent is being exposed to temptation. There is a danger of the agent's being influenced by an improper motive: this is in a sense detrimental to the principal whether or not the agent yields to the temptation to act or not to act in a certain way and whether or not any resulting act or omission of his causes detriment in a more narrow sense to his principal. It is bad for a principal to have his agents exposed to corrupting influences, whether or not they are corruptible and whether or not any actual damage is occasioned to the principal by acts or omissions resulting from the corrupting influence. One reason for this is that it is difficult to think of any act of favouritism, however small, that could not conceivably do some actual damage, again however small, to the interests of the principal." 113I respectfully agree. 114It follows that this ground of appeal is not made out. (iii) Ground 7 "His Honour erred in directing the jury as to the elements of Count 2 in that such elements related to a different offence to the actual offence charged as Count 2 on the indictment" (a) The appellant's submissions 115The appellant submitted that the trial judge erred in directing the jury on the elements of Count 2, directing them to the elements of an offence under s 249B(2)(b) of the Act rather than s 249B(2)(a)(i), the subject of the charge preferred in the indictment. 116The appellant contended if this was correct it was not appropriate for the Court to exercise its powers under s 7(2) of the Criminal Appeal Act to substitute for the verdict found by the jury a verdict of guilty for an offence under s 249B(2)(a)(i) of the Act. There is a difficulty with this submission as the appellant was in fact convicted of an offence charged under the latter section. That was why the Crown, in contrast to the appellant, sought by way of substitution a conviction for an offence under s 249B(2)(b) rather than a conviction of an offence under s 249B(2)(a)(i) for which the appellant was convicted. 117Consistently with the submission to which I have just referred, the appellant submitted that if the Crown was correct (and it was not necessary to prove actual influence to establish the offence under s 249B(2)(b) of the Act), it could not be said that the jury were satisfied of all the elements required to establish a charge under s 249B(2)(a)(i). The appellant submitted this was because that subsection required proof of actual inducement. 118In further supplementary submissions filed on 21 May 2014 the appellant pointed out that s 249B formed part of Pt 4A of the Act and replaced the Secret Commissions Prohibition Act (NSW). He pointed to the fact that the equivalent provisions in Victoria have been construed as importing a "mala fide or wrongful intention" involving dishonesty and that a benefit had been corruptly given if offered with the intent of influencing an agent in relation to the affairs of the principal. 119The appellant submitted that it was therefore necessary for the Crown to prove beyond reasonable doubt that the offender must have provided a benefit with the intention that its receipt would influence an agent in relation to the affairs of that agent's principal. He submitted that as the offence was one of corruption there was an aspect of dishonesty. He submitted that the accused must intend corruptly to seduce the agent to forsake his or her duty. He submitted a payment with a request to work harder would never suffice. 120The appellant again submitted that s 249B(2)(a)(i) of the Act required the benefit to have an actual effect, something not required by s 249B(2)(b). He referred to the fact that s 249B(2)(a) referred to an inducement as distinct from s 249B(2)(b) which referred to a tendency to induce. 121The appellant accepted that most corruptly given benefits which are acted upon and constitute an offence under s 249B(2)(a) of the Act will constitute an offence under s 249B(2)(b). He submitted the converse was not always the case by reason of the fact that on his submission s 249B(2)(b) could apply in circumstances where the benefit may tend to influence the agent to show favour but where no actual steps to show favour or disfavour took place. 122The appellant submitted that the irregularity in the summing-up was so fundamental that a proper trial did not take place with respect to Count 2. He submitted that in these circumstances neither r 4 of the Rules or the proviso had any application. 123In relation to s 7(2) of the Criminal Appeal Act, the appellant in his further supplementary submissions proceeded on the assumption that what was sought by the Crown was that the power in that subsection be exercised to substitute a conviction under s 249B(2)(a)(i) of the Act for a conviction under s 249B(2)(b). However this ignores the fact that the accused was convicted of a charge alleging a contravention of the former section albeit the jury was directed to the elements of the latter. 124The appellant submitted that as there was insufficient evidence to establish Count 2 and where the Crown might put a fresh case which necessitates a substantial amendment to the indictment it would not be appropriate to order a new trial. Counsel for the appellant pointed out, referring to Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 at [43], that for the power under s 7(2) of the Criminal Appeal Act to be exercised it was necessary for the Court to be satisfied to the point of certitude that the jury found certain acts and omissions that as a matter of law made the accused guilty of the other offence. 125Counsel for the appellant referred to his submissions on Ground 2. He stated that if his submission that the words "tend to influence" in s 249B(2)(b) of the Act required the recipient actually be influenced was incorrect, then s 249B(2)(b) had a much lower factual threshold than s 249B(2)(a)(i). Counsel for the appellant further submitted that the offence under s 249B(2)(b) was not a lesser offence. (b) The Crown's submissions 126The Crown submitted that the evidence at the trial was equally relevant to both subsections and there was no apparent disadvantage or prejudice. It was submitted that the jury was satisfied that in addition to the appellant acting corruptly the payment would tend to influence the agent to show favour. The Crown submitted that this satisfaction extended to an acceptance that the payment was an inducement for the agent to do something, namely process a loan application. 127The Crown submitted that in these circumstances there was no miscarriage of justice. 128In the alternative the Crown sought a substituted verdict under s 7(2) of the Criminal Appeal Act, submitting that the jury were satisfied of the elements of the offence under s 249B(2)(b) of the Act. It submitted that the verdict for that offence, being no more serious, could be substituted. 129The Crown submitted that if these submissions were not accepted there should not be a verdict of acquittal but rather the Court should order a new trial. (c) Consideration 130There was no issue between the parties that the trial judge mistakenly directed the jury as to the elements of Count 2 by giving a direction consistent with an offence involving a contravention of s 249B(2)(b) of the Act rather than an offence under s 249B(2)(a)(i) with which the appellant was charged. 131No objection was taken to the direction by counsel appearing for the appellant at the trial. In these circumstances r 4 of the Rules applies. 132The ground of appeal raises three issues. First, did the misdirection give rise to a miscarriage of justice such that leave should be given to appeal? Second and related to the first issue, was the error of such a fundamental nature to preclude the operation of the proviso? Third, is the case one where it is appropriate for the Court to exercise its power under s 7(2) of the Criminal Appeal Act and substitute a verdict for a contravention of s 249B(2)(b) of the Act in lieu of the verdict entered on Count 2? 133It is convenient to deal with the second issue first. 134It is clear that irrespective of the strength of the Crown case there are circumstances where the miscarriage of justice which has occurred means that it is inappropriate to apply the proviso. In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 it was pointed out (at 373) that the proviso has no application where there has been such a departure from the essential requirements of the law that the irregularity goes to the root of the proceedings. However, as has been pointed out subsequently, there is no rigid formula for determining the circumstances in which the particular error or misdirection caused such a miscarriage of justice to render the proviso inapplicable: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [54], Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 at [17] and [33]-[34], Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at [21]-[24] and Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 at [127]. 135In the present case the jury was directed as to the wrong offence. The effect was that they were not instructed on the elements they were required to consider before entering a verdict. It is an essential feature of a jury trial that a jury is directed as to the relevant law to the extent necessary, the direction as to the law being given in the context of the facts of the case: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466 and Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 at [31]. A direction as to the wrong charge means essentially that the jury did not consider the guilt or innocence of the accused on the charge for which he was indicted: c/f Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198 at 207. The miscarriage of justice in these circumstances was substantial and it is inappropriate to apply the proviso. 136For the same reasons leave should be granted to raise the ground of appeal notwithstanding the failure to take issue with the directions at the trial. 137That leaves the question of whether it is appropriate to exercise the power under s 7(2) of the Criminal Appeal Act and substitute for the conviction a conviction under s 249B(2)(b) of the Act. 138Section 7(2) of the Criminal Appeal Act was considered by the High Court in Spies v The Queen supra. The plurality judgment set out the following principles relating to the operation of the section (at [23], [25]-[26], [27] and [43] and [47] respectively): (a) The power conferred by s 7(2) of the Criminal Appeal Act is most likely to be exercised where the offence is wholly within the ultimate facts on which the accused has been convicted and which the Court has set aside on appeal. The plurality gave the example of the offence of common assault being wholly encompassed with the offence of assault causing grievous bodily harm. (b) The offence must be one which was open on the indictment. The Court pointed out that in cases where the other offence was not one which was wholly within the ultimate facts of the first offence, the other offence was included on the indictment as an alternate count. (c) It must appear to the Court that, having regard to the evidence, the conviction on the charge which is quashed necessarily meant that the accused was guilty of acts or omissions which, as a matter of law, constitute the other offence. Where the ground for setting aside a conviction is a misdirection the section can only apply where the Court holds that the jury must have been satisfied as to facts underlying the conviction which are unaffected by the misdirection and which constitute the other offence. (d) The power is one which must be exercised with great caution. 139The present case is an unusual one. The jury were directed in a manner generally appropriate to an offence under s 249B(2)(b) of the Act (see the written directions in par [30] above). It will be apparent from what I have said above that the direction should have added that the payment was one which would have been objectively seen as corrupt. However, having regard to the secretive nature and the manner in which it occurred I do not believe there was any miscarriage of justice arising from the absence of that direction. 140Assuming the jury followed the judge's directions (see Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] and HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [52] and [353]) it must follow that they were satisfied beyond reasonable doubt of the elements of the offence set out in the written direction. I am also satisfied that having regard to the circumstance in which the payment was made the jury were satisfied that the payment was corrupt irrespective of whether the version of events given by Mr Sowaid or by the appellant was correct. 141However notwithstanding these factors I would not apply s 7(2) of the Criminal Appeal Act for two reasons. First, having regard to the different elements of the s 249B(2)(b) offence it could not be said the offence was wholly within the ultimate facts needed to prove a charge under s 249B(2)(a)(i) of the Act. Second, unlike the position in Spies v The Queen supra there was no alternative charge on the indictment. For these reasons the second condition on the exercise of the power referred to in Spies v The Queen is not made out. 142In addition as was said in Spies v The Queen supra the section needs to be applied with great caution. I have concluded that the matter arising from this direction, particularly in conjunction with the complaint the subject of Ground 1, meant that this was not a case where it is appropriate to apply the proviso. In particular, where counsel for the appellant did not have an opportunity to either address on the different elements of the alternate verdict or on the question of whether there was corrupt conduct if the payment was for the purpose identified by the appellant, it does not seem to me to be just to exercise the power to amend the offence for which the appellant has been convicted and thereby avoid the consequences which would otherwise arise from the miscarriage of justice which occurred. 143It follows that this ground of appeal has been made out. Ground 4 "His Honour erred in directing the jury in relation to both Counts 1 and 2 that it was immaterial that the appellant might have had no intent to deprive corruptly the National Australia Bank of property or place the bank's economic interests in jeopardy, thereby on Count 1 equating the Crown case to one of making false and misleading statements with the intent to obtain a financial advantage and on Count 2 impermissibly widening the effect of his Honour's directions on the meaning of the expression 'in relation to the affairs or business of the agent's principal'" (a) The appellant's submissions 144The appellant submitted the direction given by the trial judge to the jury on Count 1 was deficient in that he failed to direct the jury to consider whether the appellant intended to imperil the assets of NAB. He submitted that absent such an explanation and in light of the statement by the trial judge that the offence can be committed even if no loss is intended, the jury may have considered that the use of dishonest means and an intention to obtain property was sufficient to make out the offence. 145The appellant submitted, referring to Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, that the mental element of the count of conspiracy to defraud (Count 1) is the intention to prejudice the interest of third parties by the use of means that are dishonest. He submitted that the trial judge failed to explain how a person could use dishonest methods to deprive another person of his property yet at the same time intend to return that property. 146The appellant submitted it was not sufficient to establish a conspiracy to defraud to show the appellant was party to an agreement to provide false information. He submitted that the direction left it open to the jury to find the appellant guilty without being satisfied that the appellant had an intention to prejudice NAB. 147Senior counsel for the appellant accepted that it would be sufficient to make out the offence that the appellant and his co-conspirators intended to imperil the rights and interests of NAB but submitted that the way the case was put was that the requisite intent was to deprive the bank of its property. (b) The Crown's submissions 148The Crown submitted that the element of intention to imperil the rights and interests of NAB was contained within the jury being satisfied the loan was sought to be obtained through dishonesty. The Crown submitted that the economic interest of NAB would be imperilled if the appellant's financial position had been misrepresented to reflect greater assets. 149The Crown submitted that even if there was a misdirection the appellant did not lose a realistic chance of an acquittal. It was also submitted that as no complaint about the direction was raised at the trial, r 4 of the Rules applied and in effect the appellant did not demonstrate a miscarriage of justice. (c) Consideration 150This ground, which relates to Count 1, can be dealt with shortly. The trial judge described the expression to "cheat and defraud" as intentionally using "dishonest methods to deprive another person of his or her property" (par [30] above). The portion of the directions to the jury complained of is the direction referred to in par [34] above where the trial judge said the offence can still be committed even if those involved intended for NAB to be repaid. 151In Peters v The Queen supra Toohey and Gaudron JJ pointed out (at [33]) that a corresponding Commonwealth offence involved an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. McHugh J summarised the position as follows (at [73]): "Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk or depriving another person of a lawful opportunity to obtain or protect property. It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty." (Citations omitted). 152The case against the appellant was that he conspired to defraud NAB by obtaining a loan relying on inflated financial statements and other information which were known by him to be false. The result of this would be to put the funds of NAB at risk and deprive it of a lawful opportunity to protect its property. The fact that there may have been an intention to repay does not affect the position. 153In these circumstances the direction was correct. No complaint was made about it at the trial and r 4 of the Rules applies. The appellant has not demonstrated any miscarriage of justice. In those circumstances leave to raise this ground should be refused. Ground 5 "In erroneously directing the jury that it could convict the appellant on Count 2 even on his own "version", his Honour further erred in undermining the character direction otherwise given in relation to the appellant" (a) The appellant's submissions 154The appellant submitted that the concluding statement in the passage of the summing-up to which I have referred in par [32] above, "...the Crown says that even on [the appellant's] version when he handed over the $2,000.00 he was doing it dishonestly", completely undermined the good character direction. 155Senior counsel for the appellant submitted the direction was undermined by effectively linking the question of good character to the offence charged which was not at that stage proved. (b) The Crown's submissions 156The Crown submitted that all the trial judge had done was to remind the jury that in the Crown case the appellant had acted dishonestly even if his own evidence was accepted. It was submitted that the jury was well instructed on the question of good character and the remarks now complained of did not undermine the direction. 157The appellant submitted that as no complaint was made at the trial r 4 of the Rules applied and the appellant had not demonstrated that there was a miscarriage of justice. (c) Consideration 158This ground of appeal does not relate to the character direction itself but rather to the remarks which were made immediately after the direction was given. 159It must be remembered that after the remarks complained of were made the trial judge expressly stated he did not seek to undermine the good character direction he had given. 160It does not seem to me that in those circumstances the direction was undermined. No complaint was made at the trial and the appellant has not demonstrated any miscarriage of justice. Rule 4 of the Rules applies and leave to raise this ground should be refused. Ground 6 "When directing the jury that it could return a majority verdict, his Honour erred: (a) In failing to direct the jury that it should continue to strive for a unanimous verdict; and (b) In telling the jury that the Court would be surprised, if the jury would not indicate well before 4 o'clock, that is to say, in well under 30 minutes, that it could not reach a majority verdict" (a) The appellant's submissions 161The appellant referred to the fact that the jury retired on 19 July 2013 and informed the trial judge on Friday 26 July 2013 that they were unable to reach a verdict on the conspiracy count (Count 1). Accordingly the trial judge gave a Black direction (Black v The Queen [1993] HCA 71; (1993) 179 CLR 44). 162Later in the day the jury sent a note saying they could not come to an unanimous verdict. The trial judge then questioned the foreman in accordance with s 55F of the Jury Act 1977 (NSW) and determined that it was very unlikely the jury would reach a unanimous decision. The trial judge then gave the following direction to the jury: "So what I am going to ask you to do is to go back to the jury room and see if you can reach a verdict on which ten of you agree. Now I am sure over the last 34 hours and 12 minutes you have discussed arguments over and over again, and there is probably not much more that you can discuss. So even after a relatively short period of time it becomes clear to you that you will not be able to reach a majority verdict, that is, one which ten of you agree on, then let me know. Given the length of time you have been deliberating, I would not be surprised if by well before four o'clock you are able to tell me whether there is or is not a possibility of reaching a majority verdict. So would you go and continue your deliberations to see if you can reach a verdict on which ten of you agree. As I say, given the length of time you have already been deliberating, I expect that you will soon be able to decide whether it is likely you will be able to reach a verdict where ten of you agree or whether it is not. So just see how you get on and let me know." 163The direction was given at around 3.30pm. A majority verdict was returned at 4.02 pm. 164It should be noted that the jury at that stage only had 11 members, the 12th having been discharged on 14 July 2013 due to illness. 165The appellant submitted that the trial judge erred in failing to direct the jury that they should continue to strive to reach a unanimous verdict. He also submitted that the comments of the trial judge, "...I would not be surprised if by well before four o'clock you are able to tell me whether there is or is not a possibility of reaching a majority verdict", placed additional pressure on the jury substantially increasing the chance of an ill considered or unwanted verdict. 166The appellant submitted that having regard to the time, late on a Friday afternoon, the trial judge ought to have been scrupulous that no pressure was brought to bear on the jury. He submitted that the majority verdict direction was "very much productive of a miscarriage of justice". (b) The Crown's submissions 167The Crown pointed to the fact that notwithstanding what appears in the Criminal Trial Courts Bench Book there was no requirement in the Jury Act that a majority verdict direction should encourage the jury to continue to strive for a unanimous verdict. 168The Crown submitted that having regard to the length of time the jury had deliberated it would have been pointless to give such a direction. 169The Crown pointed out that the judge did not indicate that there was any time constraint and merely invited the jury to indicate if a majority verdict was possible or whether continued deliberations were futile. 170The Crown submitted that there was no suggestion that there was a danger of a hasty or unjust verdict and in these circumstances there was no substantial miscarriage of justice. (c) Consideration 171The appellant in support of this ground placed considerable reliance on the decision of the Court of Appeal in Victoria in R v Muto and Eastey [1996] 1 VR 336, in which the Court of Appeal in Victoria set out certain guidelines to be followed by Courts in that State when giving directions in relation to majority verdicts. The Court suggested (at 342) that the direction to the jury should include the fact that Parliament had given the judge a discretion to take a majority verdict but circumstances in which that discretion could be exercised had not arisen and that until they do the jury should consider that the verdict of guilty or not guilty must be unanimous. 172The Court of Appeal then said that if a perseverance direction (a Black direction) was required before the time for a majority verdict had arrived, the judge should add to the model direction in Black (Black v The Queen supra at 51-52) a statement that "the circumstances in which I may take a majority verdict have not yet arisen and you should still consider that your verdict of guilty or not guilty must be unanimous". 173The Court of Appeal also said (at 343) that when the time for a majority verdict had arisen the judge should tell the jury it was preferable to strive to reach a unanimous verdict. 174The trial judge did not mention the possibility of a majority verdict in his initial direction to the jury. In his Black direction he referred to the fact that the time he could take a majority verdict had not arisen. This was consistent with the approach suggested in R v Muto and Eastey supra: c/f RJS v The Queen [2007] NSWCCA 241; (2007) 173 A Crim R 100 and R v Hanna [2008] NSWCCA 173; (2008) 73 NSWLR 390, but see Ingham v R [2011] NSWCCA 88. Because no complaint was made concerning the Black direction it is unnecessary to consider the conflicting authorities as to the desirability of including in a Black direction a reference to a possibility of a majority verdict. 175The appellant's complaint is that the concluding direction given by the trial judge did not urge the jury to strive for a unanimous verdict. 176In my opinion in the circumstances of the present case, whilst it would have been desirable to include a direction to that effect, a failure to do so did not give rise to a miscarriage of justice. There is no issue that at the time the majority verdict was given it was appropriate to give a majority verdict direction. Further, the jury both before and after the Black direction indicated that they could not come to a unanimous verdict. By the time they had indicated this for the second time, they had been deliberating for 34 hours and 12 minutes. In these circumstances a further direction to strive for a unanimous verdict, although desirable, would in all probability have been futile and the failure to give such a direction did not amount to a miscarriage of justice. 177No objection was taken to the direction at the time it was given. 178The second complaint about the final direction was that it put improper pressure on the jury to reach a verdict. However, that complaint must be considered in the context that not only was a direction of the nature of that given not objected to, it was raised with counsel prior to it being made and agreed to. This appears from the following interchange: "HIS HONOUR: This note says simply 'We cannot come to a unanimous decision'. What I propose to do is tell the jury I will now accept a majority verdict from them. But given the length of time that they have been deliberating I propose to say to them that unless they can come to a majority verdict fairly quickly, perhaps by four o'clock today, that that would tend to suggest they are not going to reach a majority verdict and I would discharge them. Mr Crown do you want to say anything about that? CROWN PROSECUTOR: No your Honour. HIS HONOUR: Mr McKeand. MCKEAND: No, your Honour." 179In these circumstances r 4 of the Rules applies to this ground and the onus lies on the appellant to show that the direction gave rise to a miscarriage of justice. I do not believe this onus has been discharged. The direction was given after many hours of jury deliberations. It did not pressure the jury to reach a verdict by 4.00pm but rather indicated the belief that they should be shortly able to indicate if a majority verdict was possible. The direction, given with the consent of counsel, did not in my opinion give rise to the danger of a hasty or unjust verdict. 180As I indicated above, the first part of the complaint under this ground also did not give rise to a miscarriage of justice. In the circumstances, leave to appeal on this ground should be refused. Conclusion on conviction appeal 181In the result leave to appeal against the conviction on Count 1 should be refused. 182Grounds 1 and 7 of the appeal against the conviction on Count 2 have been made out. There remains the question of whether there should be a verdict of acquittal on this count, as contended by the appellant, or a new trial. 183In my opinion the miscarriage of justice which has occurred can be more adequately remedied by a new trial than a verdict of acquittal. Even if the Crown did amend the indictment to include as an alternate a count under s 249B(2)(b) of the Act, there is no reason to suggest that the evidence led would be significantly different to that in the present case. Further, having regard to the evidence to which I have referred above, in my opinion it would be open to the jury on that evidence to convict the appellant of an offence either under s 249B(2)(a)(i) or s 249B(2)(b). It is not necessary to go further than to say that the evidence in my opinion establishes a strong case on either offence. 184It follows that the conviction on Count 2 should be quashed and a new trial ordered. Sentence appeal 185The sentence appeal raised three grounds. "1. With respect to the sentence imposed for count 2, his Honour erred in finding to the requisite degree that the payment of $2,000 was made by the applicant in an 'attempt to bribe Mr Sowaid to overlook any problems in his loan application"; 2. His Honour erred in not imposing wholly concurrent sentences; and 3. His Honour erred in imposing sentences that were manifestly excessive." 186As I indicated, the appellant was subjected to a sentence of 3 years on Count 1 with a non-parole period of 18 months, the sentence to date from 18 June 2014. That sentence was partially accumulated on the sentence for a fixed term of imprisonment of 18 months commencing on 18 December 2013 imposed in respect of Count 2. 187Ground 1 of the sentence appeal relates to Count 2 whilst Ground 2 is dependent on the appellant having been convicted for both offences. In those circumstances they are no longer relevant. 188Having regard to the success of the appeal on Count 2 the sentence on Count 1 need at least be varied to commence on 18 December 2013. It remains to be considered whether the sentence imposed in respect of Count 1 was manifestly excessive. Submissions 189The appellant referred to the following findings made by the trial judge: "a. with respect to count 1, his Honour found that the false resume was prepared by Mohamed Dib [sic] and that the false document setting out the applicant's financial position, was likewise not prepared by the applicant; b. it was the applicant's intention to repay the money to be borrowed from the bank - it was not the intention to 'take the money and run'; c. no loan was ever granted and so the bank never suffered any loss nor, had the loan been granted, was it likely to have suffered any loss; d. the fact that the money was to be repaid meant that the conspiracy charge was less culpable than most offences of that type; and e. until these offences had been committed, the applicant was a man of good character." (References omitted). 190The appellant submitted without elaboration that as a consequence of those findings the sentence was manifestly excessive. Consideration 191It is of course necessary to consider the matter on the basis that it was not proven that the $2,000.00 paid to Mr Sowaid constituted an offence under s 249B(2) of the Act. However, the fact remains that the appellant conspired with at least Mr Diab to cheat and defraud NAB by obtaining a loan in a large sum of money, namely, $3 million. Although in his remarks on sentence the trial judge noted that the appellant did not suggest the manufacture of the false documents, he also found that he warmly embraced the proposal and he stood to benefit from it. 192His Honour took into account the matters referred to in the appellant's submissions and the fact that the appellant was a leader in his community and had done much good work. He referred to the fact the appellant had no previous convictions. 193His Honour also took into account the age of the appellant and the significant delay between the time the offences were committed and the date of sentence. 194Notwithstanding the subjective circumstances referred to by the trial judge, having regard to the amount of money sought to be obtained from NAB and the significant falsification of the financial records (see par [13] above) it does not seem to me that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 and Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]. 195It follows that leave to appeal against sentence should be allowed but apart from varying the sentence to commence on 18 December 2013 no other orders should be made. Conclusion 196In the result I would make the following orders: (1)Leave to appeal against conviction on Count 1 refused. (2)Appeal against conviction on Count 2 allowed. (3)Order that the conviction on Count 2 be quashed. (4)Order there be a new trial in respect of Count 2. (5)Grant leave to appeal against sentence. (6)Order that the sentence imposed on Count 1 be set aside and in lieu thereof the following sentence be imposed: The appellant be sentenced on Count 1 to a sentence of imprisonment consisting of a non-parole period of 18 months with a balance of term of 18 months, the sentence to date from 18 December 2013. The appellant is to be released to parole upon the expiration of the non-parole period on 17 June 2015. 197JOHNSON J: I agree with Bathurst CJ. 198R A HULME J: I agree with Bathurst CJ. 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. Decision last updated: 22 August 2014