HILL v THE QUEEN · Web view[2021] SASCA 83 The Court 44 [2021] SASCA 83 The Court 45 On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE MCINTYRE) DCCRM-18-1143 Appellant:

SUPREME COURT OF SOUTH AUSTRALIA(Court of Appeal: Criminal)

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HILL v THE QUEEN

[2021] SASCA 83

Judgment of the Court of Appeal (The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Blue)

26 August 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS

The appellant appeals against her conviction of five counts of dishonestly obtaining a financial advantage from a Commonwealth entity in contravention of sections 134.2(1) and 11.2A(1) of the Criminal Code (Cth).

The appellant and her co-accused, Todd Ryan, were charged with jointly committing the offences. The prosecution ran the case at trial on the basis that the appellant and Ryan entered into an agreement to commit the offences and committed the offences jointly. Ryan was also charged with an additional 10 counts of obtaining or attempting to obtain a financial advantage from a Commonwealth entity alleged to have been committed before or contemporaneously with the joint counts.

The appellant appeals against her convictions on essentially three grounds:

1 The trial Judge erred as a matter of law in failing to direct the jury to consider the case against her separately from that against Ryan, to identify that separate case and the evidence inadmissible against her and to give adequate directions as to the application of the law to that separate case.

2 The trial Judge erred as a matter of law in directing the jury that it was not open to return different verdicts in relation to the jointly charged accused.

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE MCINTYRE) DCCRM-18-1143Appellant: AMY CELIA HILL Counsel: MRS M SHAW QC WITH MR A FOWLER-WALKER - Solicitor: CALDICOTT LAWYERSRespondent: R Counsel: MR L CROWLEY QC WITH MS J ABBEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH)Hearing Date/s: 24/06/2021File No/s: SCCRM-20-422B

3 The trial Judge erred in failing to direct the jury as to the permissible and impermissible use it could make of the prosecution submission that the appellant’s account of failing to make expected enquiries of her partner Ryan after the police attendance was indicative of consciousness of guilt of the offending.

Held by the Court (allowing the appeal):

1 The jury was not adequately directed as to the evidence that was admissible against Ryan but not admissible against the appellant or as to differences between the circumstantial case against Ryan and the circumstantial case against the appellant (at [150], [169], [171] and [172]).

2 Observations concerning the trial Judge’s direction to the jury that it was not open to return different verdicts in relation to the jointly charged accused (at [184]-[187]).

3 Observations concerning the trial Judge’s direction to the jury as to the prosecution submission that the appellant’s account of failing to make expected enquiries of Ryan after the police attendance was indicative of consciousness of guilt of the offending (at [202]-[217]).

4 Appeal allowed. Appellant’s convictions set aside. Matter remitted for new trial (at [218]).

Criminal Code Act 1995 (Cth) 11.2A, 134.2, referred to.Edwards v R (1993) 178 CLR 193; Elomar v R (2014) 316 ALR 206; King v The Queen (1986) 161 CLR 423; Masri v The Queen [2015] NSWCCA 243; Namoa v The Queen [2021] HCA 13; R v Darby (1982) 148 CLR 668; R v Franze (Ruling No 2) (2013) 37 VR 101; R v Wildy (2011) 111 SASR 189; Tsang v R (2011) 35 VR 240; Zoneff v R (2000) 200 CLR 234, considered.

HILL v THE QUEEN[2021] SASCA 83

Court of Appeal – Criminal: Kelly P, Livesey JA and Blue AJA

THE COURT:

1 The appellant, Amy Hill, appeals against her conviction of five counts of dishonestly obtaining a financial advantage from a Commonwealth entity.1

2 The appellant and her co-accused, Todd Ryan, were charged with jointly committing the offences. The prosecution ran the case at trial on the basis that the appellant and Ryan entered into an agreement to commit the offences and committed the offences jointly. Ryan was also charged with an additional 10 counts of obtaining or attempting to obtain a financial advantage from a Commonwealth entity alleged to have been committed before or contemporaneously with the joint counts.

3 A jury in the District Court found Ryan guilty of counts 1 to 10 and both accused guilty of counts 11 to 15.

4 The appellant appeals against her convictions on essentially three grounds:

1. The trial Judge erred as a matter of law in failing to direct the jury to consider the case against her separately from that against Ryan, to identify that separate case and the evidence inadmissible against her and to give adequate directions as to the application of the law to that separate case.2

2. The trial Judge erred as a matter of law in directing the jury that it was not open to return different verdicts in relation to the jointly charged accused.3

3. The trial Judge erred in failing to direct the jury as to the permissible and impermissible use it could make of the prosecution submission that the appellant’s account of failing to make expected enquiries of her partner Ryan after the police attendance was indicative of consciousness of guilt of the offending.4

5 Ryan has appealed against his convictions on counts 1 to 15. His appeal is yet to be heard. These reasons address the matter only from the perspective of the appellant. The issues and relevant facts on Ryan’s appeal may differ from those set out in these reasons for judgment in respect of the appellant. For example, facts that are common ground or not disputed as between the appellant and the Director on this appeal may not be common ground as between Ryan and the Director on his appeal.

1 Criminal Code (enacted by the Criminal Code Act 1995 (Cth)) sections 134.2(1) and 11.2A(1). 2 Ground 1. Although the notice of appeal contains a separate ground 3, the appeal was argued on the

basis that the complaint articulated in ground 3 is a particular of ground 1. Permission to appeal on ground 1 granted by a single Judge.

3 Ground 2. Permission to appeal granted by a single Judge.4 Ground 4. Permission to appeal referred to the Court of Appeal by a single Judge.

Background6 In May 2005 the business name “Capitalisation” was registered on the

Business Name Register and an ABN was issued under Ryan’s name with a backdated April 2004 start date.

7 In July 2005 Ryan commenced employment with the Australian Taxation Office.

8 In June 2009 Ryan incorporated and became the sole director and shareholder of Platinum Hedge Holdings Pty Ltd (Platinum Hedge). Ryan held the only issued share. In June or July 2009 Platinum Hedge was registered on the Business Name Register, an ABN was issued to it and it was registered for GST.

9 In November 2009 Ryan incorporated and became the sole director and shareholder of four companies:

Australasian Media Holdings Pty Ltd (Australasian Media);

Burra Mining Company Pty Ltd (Burra Mining);

Financial Investment Fund Pty Ltd (Financial Investment Fund); and

White Bull Investments Pty Ltd (White Bull).

10 Five million shares were issued to Ryan in each company. All shares were fully unpaid. The registered office and principal place of business shown for each company was unit 1201, 576 St Kilda Road Melbourne.

11 On 20 April 2011 Ryan lodged with the Australian Taxation Office a Business Activity Statement by Capitalisation for the quarter ended 31 March 2011. It reported sales of $1,240 and purchases of $73,900 and claimed a net GST credit of $7,218 (being ten per cent of net purchases). In June 2011 the Australian Taxation Office paid $7,223 into Ryan’s personal bank account. The claim was the subject of count 1 against Ryan.

12 In June 2011 Ryan opened a bank account with Westpac in the name of Australasian Media and opened separate bank accounts with the Commonwealth Bank of Australia in the name of Burra Mining, Financial Investment Fund, Platinum Hedge and White Bull. Ryan was the sole signatory of these five bank accounts.

13 In August 2011 the appellant and Ryan met and began a relationship. The appellant was employed full-time as an executive assistant at Hewlett-Packard, having commenced that employment in May 2011. She had no prior business or financial experience. She was 27 years old. Ryan was 36 years old.

14 On 1 October 2011 Ryan registered the four companies referred to at [9] above for GST with the Australian Taxation Office.

[2021] SASCA 83 The Court

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15 On 6 October 2011 Ryan lodged with the Australian Taxation Office a signed hard copy Business Activity Statement by Capitalisation for the quarter ended 30 June 2011. It reported purchases of $82,756 and claimed a net GST credit of $7,523 (1/11th of purchases). In October 2011 the Australian Taxation Office paid that amount into Ryan’s personal bank account. The claim was the subject of count 2 against Ryan.

16 In October 2011 Ryan moved in to live with the appellant.

17 On 17 and 18 November 2011 three companies were incorporated:

Financial Group Pty Ltd (Financial Group);

Global Equity Fund Pty Ltd (Global Equity); and

Real Estate Development Company Pty Ltd (REDC).

18 The appellant was the sole director and shareholder of each company. Fifty million shares were issued to the appellant in each company. All shares were fully unpaid. Each company was registered for GST with the Australian Taxation Office on the same day as its incorporation.

19 The registered office and principal place of business of REDC was care of the appellant 50/120 Collins Street Melbourne and of each of Financial Group and Global Equity was care of the appellant 34/50 Bridge Street Sydney. These were addresses of Regus, a company providing virtual office facilities to clients.

20 On 28 November 2011 Ryan lodged with the Australian Taxation Office a signed hard copy Business Activity Statement by Capitalisation for the quarter ended 30 September 2011. It reported an excess of purchases over sales of $97,707 and claimed a net GST credit of $8,882 (1/11th of net purchases). In December 2011 the Australian Taxation Office paid that amount into Ryan’s personal bank account. The claim was the subject of count 3 against Ryan.

21 On 1 December 2011 Burra Mining and White Bull were registered, and on 8 December 2011 Financial Investment Fund was registered, on the Business Name Register and ABNs were issued to them.

22 On 7 and 9 December 2011 an AUSkey was registered with the Australian Government in the name of Ryan in respect of:

Burra Mining with the email address [email protected] and a mobile number ending in 435;

White Bull with the email address [email protected] and a mobile number ending in 191; and


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Financial Investment Fund with the email address [email protected] and a mobile number ending in 397.

Each mobile number was registered in the name of Ryan.

23 On 9 December 2011 ABNs were issued to Financial Group, Global Equity and REDC. On the same day, a separate bank account was opened with Westpac for each company, with the appellant as the sole signatory.

24 On 9 December 2011 Business Activity Statements were lodged electronically with the Australian Taxation Office for:

White Bull for October 2011 reporting purchases of $412 and claiming a GST credit of $45 (the subject of count 4);

White Bull for November 2011 reporting purchases of $352,550 and claiming a GST credit of $38,780 (the subject of count 5);

Burra Mining for November 2011 reporting purchases of $255,250 and claiming a GST credit of $28,077 (the subject of count 6); and

Financial Investment Fund for November 2011 reporting purchases of $335,500 and claiming a GST credit of $36,905 (subject of count 7).

25 In each case the GST claimed was 11 per cent of the purchases. Later in December the Australian Taxation Office paid the credits claimed by White Bull for October and by Burra Mining into their respective bank accounts but did not pay the credits claimed by White Bull for November or by Financial Investment Fund.

On 13 December 2011 an AUSkey was registered with the Australian Government:

in the name of Ryan in respect of Platinum Hedge with the email address [email protected] and a mobile number ending in 435;

in the name of the appellant in respect of Global Equity with the email address [email protected] and a mobile number ending in 942; and

in the name of the appellant in respect of REDC with the email address [email protected] (no phone number being provided but a mobile number ending in 863 was provided to the Australian Taxation Office as REDC’s telephone contact number).

Each mobile number was registered in the name of Ryan.


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26 On 14 December 2011 at about 1 pm the appellant telephoned the Australian Taxation Office call centre. The appellant said that she had tried to lodge a Business Activity Statement on the Tax Office portal for Global Equity but there were no Business Activity Statements displayed for her to complete. The call centre employee issued a paper activity statement and informed the appellant that she could now lodge it electronically on the portal.

27 On 14 December 2011 between 5.10 and 5.26 pm Business Activity Statements were lodged electronically with the Australian Taxation Office for:

Global Equity for November 2011 reporting purchases of $295,150 and claiming a GST credit of $32,466 (the subject of count 11);

Platinum Hedge for October 2011 reporting purchases of $196,500 and claiming a GST credit of $21,615 (the subject of count 8); and

Platinum Hedge for November 2011 reporting purchases of $205,150 and claiming a GST credit of $22,566 (the subject of count 9).

In each case the GST claimed was 11 per cent of the purchases. Later in December the Australian Taxation Office paid the credits claimed into the respective bank accounts of these companies (except that the payment to Platinum Hedge for October 2011 was for some reason $20,515).

28 On 15 December 2011 an AUSkey was registered with the Australian Government in the name of the appellant in respect of Financial Group with the email address [email protected] and a mobile number ending in 183 (which was registered to Ryan).

29 On 16 December 2011 between 2.10 and 2.41 am Business Activity Statements were lodged electronically with the Australian Taxation Office for:

Financial Group for November 2011 reporting purchases of $185,500 and claiming a GST credit of $20,405 (the subject of count 12);

Financial Group for December 2011 reporting purchases of $225,500 and claiming a GST credit of $24,805 (the subject of count 13);

REDC for December 2011 reporting purchases of $213,500 and claiming a GST credit of $23,485 (the subject of count 15); and

REDC for November 2011 reporting purchases of $324,550 and claiming a GST credit of $35,700 (the subject of count 14).

In each case the GST claimed was 11 per cent of the purchases. Later in December the Australian Taxation Office paid the credits claimed into the respective bank accounts of these companies.


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30 On 16 December 2011 at 2.55 am Ryan lodged electronically with the Australian Taxation Office a Business Activity Statement for Platinum Hedge for December 2011 reporting purchases of $896,500 and sales of $100 and claiming a GST credit of $98,604 (the subject of count 10). The GST claimed was 11 per cent of net purchases. Later in December the Australian Taxation Office paid the credit claimed into the bank account of Platinum Hedge. The claim was the subject of count 10 against Ryan.

31 On 19 December 2011 Ryan telephoned the Australian Taxation Office call centre and spoke to Jessica and then Mechelle. He said that he had made a mistake in a Business Activity Statement lodged on the portal and requested a revised activity statement to be issued for Platinum Hedge.

32 On 20 December 2011 a Tax Office auditor, Mr Titterton, telephoned Ryan as a result of the Taxation Office computer triggering the Business Activity Statement for Platinum Hedge lodged on 16 December for manual review. Mr Titterton gave evidence that Ryan told him that he had requested a revised activity statement two weeks previously but Ryan was unable to answer any of Mr Titterton’s questions about the purchases the subject of the activity statement lodged or why he had requested a revised activity statement.

33 On 29 December 2011 sums of $8,000 and $50,010 (sourced from GST refunds) were withdrawn from REDC’s bank account at Westpac’s Pirie Street branch by “staff assisted” withdrawals. The appellant gave evidence at the first trial that she did not recall these transactions.

34 On 29 December 2011 $35,000 (sourced from GST refunds) was withdrawn from Financial Group’s bank account at Westpac’s Pirie Street branch by a “staff assisted” withdrawal and deposited into the appellant’s personal Westpac account. On 18 January 2012 $35,000 was transferred electronically from the appellant’s personal Westpac account to Global Equity’s Westpac account. The appellant gave evidence at the first trial that she did not recall these transactions.

35 On 19 January 2012 an Australian Taxation Office auditor, Mr Rebellato, telephoned Ryan as a result of the Tax Office having commenced an audit of Capitalisation, Burra Mining, Financial Investment Fund, Platinum Hedge and White Bull to ascertain whether the purchases shown on their Business Activity Statements could be verified.

36 Mr Rebellato gave evidence that he asked Ryan where he kept his records because he wanted to conduct interviews where the records were present, so that he could examine the records and ask any questions if needed. Ryan said initially that his records were at Burra but later accepted that he had sold the Burra property in mid-2011 and did not have access to it. He then said that he had records “here” but declined to give his address. He then said that the records could be in a box at a friend's place at Glenelg or in the city or in the boot of his


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car in a folder or in his bag or with his bookkeeper in Burra or with his bookkeeper at Glenelg. He declined to provide the names of his bookkeepers.

37 On 19 January 2012 there was an electronic transfer of $40,000 out of the Global Equity bank account to CMA Share Trading and electronic transfers of $25,000, $10,000 and $1,000 out of the Global Equity, Financial Group and REDC bank accounts respectively to Leveraged Equities Share Trading. The appellant gave evidence at the first trial that she did not recall these transactions and that Ryan had electronic access and passwords to these bank accounts.

38 On 19 and 20 January 2012 respectively the Australian Taxation Office internally lodged revised Business Activity Statements for:

Global Equity for November 2011 showing zero purchases and zero GST credits; and

REDC for November and December 2011 showing zero purchases and zero GST credits.

39 On 24 February 2012 Mr Rebellato met with Ryan. Mr Rebellato gave evidence that the meeting addressed Ryan’s income tax returns but did not address Business Activity Statements or GST.

40 On 2 March 2012 Mr Rebellato met with Ryan. Mr Rebellato gave evidence of the meeting including the following.

41 In relation to the three Capitalisation Business Activity Statements, Ryan initially said that he only recalled lodging one Business Activity Statement; he had lost the key to his post office box and perhaps someone had accessed his mail and lodged the activity statements; or perhaps someone had accessed his computer and lodged the activity statements electronically. When shown the Business Activity Statements for the quarters ended June and September 2011 with his signature, he admitted that he lodged them. He said that the purchase shown in the March quarter Statement was an option to purchase fee but he had never paid that fee. He said that he could not recall what were the purchases the subject of the June quarter Business Activity Statement. He never produced any tax invoices or other documentation relating to the purchases shown in the three Capitalisation Business Activity Statements.

42 In relation to Burra Mining, Financial Investment Fund, Platinum Hedge and White Bull, Ryan said that each of them was an investment fund manager. He said that some of them incurred Stock Exchange fees and all of the operational expenses related to services provided by Australasian Media. He said that he calculated GST at 11 per cent of the sales or purchases amount.

43 Ryan said that Financial Investment Fund was involved in the running of managed super funds. He said that the managed funds would be involved in real


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estate, mining, shares and commodities; there would be 250 to 500 different funds on offer; and it was this large number of funds that would be the point of difference for his enterprise compared to the rest of the market. He could not obtain a financial services licence due to a lack of history, and he needed one but his plan was to buy a company listed on the Australian Stock Exchange with a capitalisation value of between $3 and $5 million and use their licence to market his products.

44 When asked the nature of the $355,500 purchases recorded in the Financial Investment Fund November 2011 Business Activity Statement, Ryan said that this amount was for marketing expenses plus listing costs for the National Stock Exchange. He said that Financial Investment Fund had not listed yet and he had not yet paid any listing fees. He said that the cost of $355,000 was paid for in shares owned by Financial Investment Fund to Australasian Media. He said that Australasian Media provided services to Financial Investment Fund which included taking out advertisements in the Australian Financial Review.

45 When asked about White Bull, Ryan said that the difference between White Bull and Financial Investment Fund was that White Bull would offer normal managed funds as distinct from super funds.

46 When asked about Burra Mining, Ryan said that it would be involved in offering managed funds in investments associated with the resources sector, acquiring mining rights adjacent to existing mining company tenements and selling these rights to the adjacent mining company if the mining company made a successful discovery or wished to increase its exploratory holdings. He said that Burra Mining funds would be used to buy shares in existing mining companies and have mining rights as part of the investment mix, the mining rights would be sourced from the respective State government authority, and they would target silver, uranium, gold, copper, iron ore, bauxite and coal. He said he that did not have any exploration experience or knowledge.

47 When asked about Platinum Hedge, Ryan said that this entity was a vehicle through which he could raise loans or finance to invest in medium to high risk shares and property. He said that the purchases reported in the October and November 2011 Business Activity Statements related to NSX listing fees and costs. However, the figure of $896,500 in expenses for December 2011 was “a total error” and he had called the Taxation Office on 14 December 2011 to report the error. He said that the entity, being the trustee for the Platinum Hedge Super Fund, did not have any income and did not have any deductible expenses. He said that the Platinum Hedge Super Fund did not hold any trustee meetings and the accounts were not independently audited.

48 Various documents produced by Ryan to Mr Rebellato on 2 March 2012 were tendered.


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49 On 7 March 2012 Australian Taxation Office investigators and Australian Federal Police officers attended at the appellant’s house and conducted a search under a search warrant. They located and seized various records, some of which were tendered.

50 On 19 March 2012 Platinum Hedge issued 4,441,601 unpaid shares to Ryan and 558,398 unpaid shares to Australasian Media.

51 On 20 March 2012 Ryan asked an accountant, Mr Perry, to prepare monthly Business Activity Statements for Australasian Media, Financial Group and REDC.

52 On 21 March 2012 Business Activity Statements were lodged electronically with the Australian Taxation Office by Mr Perry for Australasian Media for:

October 2011 reporting sales of $462,220 and GST payable of $42,020; and

November 2011 reporting sales of $2,412,509 and GST payable of $219,319.

53 Mr Perry gave evidence that the amounts shown in the Business Activity Statements were based on invoices provided by Ryan to Mr Perry.

54 On 4 April 2012 Ryan transferred 281,341 unpaid shares in Financial Investment Fund to Australasian Media.

55 On 11 April 2012 Mr Rebellato telephoned the appellant. Mr Rebellato gave evidence of the phone call refreshing his memory from his notes.

56 On 17 April 2012 Ryan asked an accountant, Ms Lundberg, to act for him and his companies and subsequently asked her to act for the appellant’s companies. Ms Lundberg gave evidence that Ryan provided to her various documents.

57 On 19 April 2012 Business Activity Statements were lodged electronically with the Australian Taxation Office by Mr Perry:

for Australasian Media for December 2011 showing no sales and no purchases;

for Financial Group for January and February 2012 showing no sales and no purchases (the appellant having signed the Business Activity Statements); and

for REDC for January 2012 showing no sales and no purchases.


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58 On 2 May 2012 Mr Rebellato collected various documents from Ms Lundberg’s office relevant to the audit. The documents in relation to Financial Group included:

an Australasian Media tax invoice dated 30 October 2011 addressed to Financial Group for $10,725 plus GST for “Brokerage for unit transactions 3.25% – @ $10725 plus GST”;

an Australasian Media Tax Invoice – Contract Note addressed to Financial Group referring to a sale of 330,000 units for $330,000 with a settlement date of 30 November 2011 and brokerage of $10,725;

an Australasian Media tax invoice dated 30 November 2011 addressed to Financial Group for $30,000 plus GST for “Marketing & Arrangement – @ 1% $30000 plus GST”;

an Australasian Media Tax Invoice – Contract Note addressed to Financial Group referring to a sale of 341,797 units for $341,797 with a settlement date of 30 November 2011 and brokerage of $12,218;

an unsigned Transfer Form for Non-Market Transactions dated 1 December 2011 for transfer of 341,797 shares of Financial Group for $341,797 from the appellant to Ryan on 30 November 2011;

an undated document entitled “Regarding Amy Hill” stating that “it is preferred that Ms Hill not attend the audit meeting [on 4 May] as it can be discussed by your office prior”, providing certain information concerning Financial Group; and

a spreadsheet entitled “BAS Summary for Todd Ryan Group & Amy Hill Group of Companies” showing amounts for each month from October 2011 to February 2012, the amounts for Australasian Media being positive and the amounts for White Bull, Burra Mining, Financial Investment, Financial Group and REDC being negative.

59 On 3 May 2012 the appellant and Ryan met with Ms Lundberg. Ms Lundberg gave evidence that Ryan asked her to prepare to meet with Mr Rebellato on the following day and to answer as many questions as she could at the meeting.

60 On 4 May 2012 Mr Rebellato met with the appellant and Ms Lundberg in relation to the audit of Financial Group. Mr Rebellato gave evidence of the meeting including the following.

61 The appellant told Mr Rebellato that she had registered Financial Group for GST on 9 December 2011. She said that its business address was the Bridge Street Sydney address, which was a virtual office operated by Regus which redirected mail, telephone calls and deliveries to her in Adelaide. She said that


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she had prepared, checked and lodged the Business Activity Statements for Financial Group. She was asked a series of questions about the business of Financial Group and provided various explanations which lacked depth or persuasiveness. She said that she had not had any previous business or financial experience.

62 The appellant was unable to explain:

how the purchases and GST credit figures shown in the Business Activity Statements were calculated;

why a tax invoice from Australasian Media to Financial Group dated 30 October 2011 was produced before Financial Group was incorporated (17 November 2011);

the nature of the capital purchases of $185,500 shown in the November 2011 Business Activity Statement;

why the tax invoices produced bearing November 2011 dates did not match the amount of $185,500 shown in the November 2011 Business Activity Statement (although she said that she had those invoices to hand when she prepared the Business Activity Statement); or

why she was charged brokerage or why she agreed to pay brokerage expense.

63 On 27 June 2012 Ryan transferred:

33,480 unpaid shares in Burra Mining to Australasian Media; and

57,120 unpaid shares in White Bull to Australasian Media.

64 On 28 June 2012 the appellant telephoned the Australian Taxation Office call centre and spoke to Jessica. The appellant said that the Taxation Office had revised Activity Statements for REDC to zero and she wished to lodge an objection.

65 On 28 June 2012 a form was lodged with the Australian Securities and Investment Commission (ASIC) showing the transfer of 42,432 shares in Financial Group from the appellant to Australasian Media.

66 On 29 June 2012 an objection was lodged on the Australian Taxation Office portal by REDC to the November and December 2011 Business Activity Statement revisions reducing purchases and GST credit to zero. Various documents were attached including:

a tax invoice by Australasian Media to REDC dated 30 November 2011 charging $435,200 comprising $400,000 including GST for “Maximum


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Marketing and Advertising Services rendered @ 1% of $40M end value” plus $16,000 plus GST for “Brokerage Buy @4% of Marketing Services rendered” plus $16,000 plus GST for “Brokerage Sell @4% of Marketing Services rendered”;

a transfer form dated 1 December 2011 for transfer of 383,517 shares in REDC for $383,517 from the appellant to Ryan;

a tax invoice dated 31 December 2011 charging brokerage of $11,618 plus GST for “unit transactions @ 3.25%”;

a tax invoice dated 31 December 2011 charging brokerage of $12,034 plus GST for “unit transactions@ 3.25%”; and

a tax invoice dated 31 December 2011 charging $325,000 plus GST for “marketing/arrangement @ 1%”.

67 On 20 August 2012 Ms Li Donni of the Australian Taxation Office spoke by telephone to the appellant about the REDC objection. She told the appellant that there was insufficient information in the objection to make it valid. The appellant said that she would provide information.

68 On 4 September 2012 Ms Li Donni received an email from [email protected] showing the author as the appellant. It attached various documents, including an REDC Business Plan, Prospectus and Offer Document and a letter from Australasian Media signed by Ryan dated 30 November 2011 offering to provide listing services to REDC.

69 On 14 September 2012 hard copy revised Business Activity Statements dated 1 August 2012 were received by the Australian Taxation Office for Australasian Media apparently bearing Ryan’s signature for:

October 2011 reporting sales of nil and GST payable of nil; and

November 2011 reporting sales of $272,496 and GST payable of $24,771.

70 On 16 September 2012 a further objection was lodged on the Australian Taxation Office portal by REDC. It included a statement that the reason for the amendment in the amount was because the original invoice had to change due to the economic conditions, the original expected fund raising being $35 million and the revised fund raising being $2.7 million. It said that the current and correct invoice for November 2011 was attached. The attached documents included:

a tax invoice by Australasian Media to REDC dated 30 May 2012 charging $29,376 comprising $27,000 including GST for “Marketing and Advertising Services rendered @ 1% of $2.7M end value” plus $1,080 plus GST for “Brokerage Buy @4% of Marketing Services rendered” plus


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$1,080 plus GST for “Brokerage Sell @4% of Marketing Services rendered”; and

a transfer form dated 30 November 2011 for transfer of 29,376 shares in REDC for $29,376 with transferor and transferee blank.

71 On 15 October 2012 an objection was received by the Australian Taxation Office from Financial Group apparently lodged by the appellant and dated 1 September 2012. It objected to revisions by the Taxation Office to the October and November 2011 Business Activity Statements and attached “the revised, current & correct invoice which covers both months in one” together with other documents. The attached documents included:

a tax invoice by Australasian Media to Financial Group dated 30 May 2012 charging $42,432 comprising $39,000 including GST for “Marketing and Advertising Services rendered @ 1% of $3.9M end value” plus $1,560 plus GST for “Brokerage Buy @ 4% of Marketing Services rendered” plus $1,560 plus GST for “Brokerage Sell @ 4% of Marketing Services rendered”; and

a transfer form dated 1 December 2011 for transfer of 42,432 shares in REDC for $42,432 with transferor and transferee blank.

72 On 17 October 2012 Ms Li Donni sent a letter to REDC seeking further information, including clarification of the purposes for which the services the subject of Australasian Media invoices were provided.

73 On 7 December 2012 Ms Li Donni received an email from [email protected] showing the author as the appellant. The email contained a series of general statements that made little sense and did not provide the information requested.

74 On 19 December 2012 Ms Li Donni sent a letter to REDC saying that the objection was disallowed because REDC had not provided the requested information and the information that had been provided was not consistent with the GST credits claimed.

75 In July 2017 an Australian Taxation Office officer laid an information in the Magistrates Court alleging against Ryan nine counts of dishonestly obtaining a financial advantage from a Commonwealth entity and alleging against the appellant five counts of dishonestly obtaining a financial advantage from a Commonwealth entity. In July 2018 Ryan and the appellant were committed for trial in the District Court on the separate counts.

76 In August 2018 an ex officio information was filed in the District Court by the Commonwealth Director of Public Prosecutions alleging against Ryan 10 counts of dishonestly obtaining a financial advantage from a Commonwealth


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entity and alleging against Ryan and the appellant jointly five counts of dishonestly obtaining a financial advantage from a Commonwealth entity.

77 In November 2019 a trial in the District Court before a jury proceeded up to completion of the prosecution closing address when a mistrial was declared. The appellant had given evidence at that trial. The transcript of that evidence was tendered by the prosecution, by being read to the jury, at the second trial.

78 In October–November 2020 the second trial proceeded in the District Court before a jury.

The charged offences79 Counts 1 to 10 charged Ryan with dishonestly obtaining or attempting to

obtain a financial advantage (in the amount of the GST refund claimed) from the Commonwealth by deception, namely that the entity in question was entitled to the GST refund shown in the relevant Business Activity Statement, in contravention of section 134.2(1) of the Criminal Code enacted by the Criminal Code Act 1995 (Cth) (the Criminal Code).

80 Section 134.2 of the Criminal Code provides:

134.2 Obtaining a financial advantage by deception

(1) A person commits an offence if:

(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.

81 Division 5 addresses fault elements of Code offences. Sections 5.1 and 5.6 provide:

5.1 Fault elements

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.6 Offences that do not specify fault elements

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.


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(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.

82 Sections 5.2 to 5.4 define intention, knowledge and recklessness as follows:

5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3 Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

83 Counts 11 to 15 charged Ryan and the appellant jointly with dishonestly obtaining a financial advantage (in the amount of the GST refund claimed) from the Commonwealth by deception, namely that the entity in question was entitled to the GST refund shown in the relevant Business Activity Statement, in contravention of sections 134.2(1) and 11.2A(1) of the Criminal Code.

84 Section 11.2A of the Criminal Code provides:


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11.2A Joint commission

Joint commission

(1) If:

(a) a person and at least one other party enter into an agreement to commit an offence; and

(b) either:

(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or

(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.

Offence committed in accordance with the agreement

(2) An offence is committed in accordance with the agreement if:

(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and

(b) to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and

(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

Offence committed in the course of carrying out the agreement

(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.

Intention to commit an offence

(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.

Agreement may be non-verbal etc.

(5) The agreement:

(a) may consist of a non-verbal understanding; and

(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.


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Termination of involvement etc.

(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent that conduct from being engaged in.

Person may be found guilty even if another party not prosecuted etc.

(7) A person may be found guilty of an offence because of the operation of this section even if:

(a) another party to the agreement has not been prosecuted or has not been found guilty; or

(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.

Special liability provisions apply

(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.

85 Subsections 11.2A(1)(a) and (b)(i) and (2) of the Criminal Code provide an analogue under the Code of joint enterprise at common law (although the elements of joint enterprise at common law and joint commission under the Code are not necessarily the same).

86 Subsections 11.2A(1)(a) and (b)(ii) and (3) of the Criminal Code provide an analogue under the Code of extended joint enterprise at common law (although the elements of extended joint enterprise at common law and extended joint commission under the Code are not necessarily the same). The prosecution did not rely on extended joint commission at trial and it can be ignored for the purpose of this appeal.

87 The prosecution conducted the trial on the basis that it relied exclusively on joint commission against Ryan and the appellant for each of counts 11 to 15. On appeal, the Director accepts that the information might have been drawn and the trial might have been conducted as against Ryan on the basis that he committed each offence in contravention of section 134.2 of the Code and, in the alternative, he committed each offence jointly with the appellant. Likewise, the information might have been drawn and the trial might have been conducted against the appellant on the basis that she committed each offence in contravention of section 134.2 of the Code and, in the alternative, that she committed each offence


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jointly with the appellant.5 However, the prosecution was not conducted at trial on these bases.

88 The trial was conducted, and the appeal was conducted, by all parties on the basis that the physical elements of an offence in contravention of section 134.2 of the Code comprised:

inducing the Australian Taxation Office by lodging the relevant Business Activity Statement to believe that the entity in question had made purchases in the amount shown in the activity statement;

the entity had not in fact made purchases in the amount shown in the activity statement (or at all);

as a result, the defendant obtained a financial advantage from the Australian Taxation Office;

the Australian Taxation Office was a Commonwealth entity.

89 The trial was conducted, and the appeal was conducted, by all parties on the basis that the fault elements of an offence in contravention of section 134.2 of the Code comprised:

the defendant intended to induce the Australian Taxation Office by lodging the relevant Business Activity Statement to believe that the entity had made purchases in the amount shown in the activity statement;

the defendant knew or believed that the entity had not in fact made purchases in the amount shown in the activity statement (or at all); and

the obtaining of the financial advantage was dishonest according to the standards of ordinary people and the defendant knew this.

90 The trial was conducted, and the appeal was conducted, by all parties on the basis that the appellant would only be guilty of each of the joint counts if the prosecution proved beyond reasonable doubt that:

the accused agreed with each other that one or both would lodge with the Australian Taxation Office a Business Activity Statement falsely stating that the entity in question had made purchases in the amount shown in the activity statement to induce the Australian Taxation Office to pay a GST refund to one or both of them and thereby gain a financial advantage;

one or both accused induced the Australian Taxation Office by the lodging of the relevant Business Activity Statement to believe that the entity in question had made purchases in the amount shown in the activity statement;

5 See the position at common law as described by the High Court in King v The Queen (1986) 161 CLR 423 extracted at [182] below.


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the entity had not in fact made purchases in the amount shown in the activity statement (or at all);

as result, one or both accused obtained a financial advantage from the Australian Taxation Office;

the Australian Taxation Office was a Commonwealth entity;

both accused intended to induce the Australian Taxation Office by lodgement of the relevant Business Activity Statement to believe that the entity had made purchases in the amount shown in the activity statement;

both accused knew or believed that the entity had not in fact made purchases in the amount shown in the activity statement (or at all); and

the obtaining of the financial advantage was dishonest according to the standards of ordinary people and both accused knew this.

91 As a result of the manner in which the Director prosecuted the case, the jury could only convict Ryan of each of counts 11 to 15 if satisfied, on the evidence admissible against Ryan, that both he and the appellant committed the offence. Likewise, the jury could only convict the appellant of each of counts 11 to 15 if satisfied, on the evidence admissible against her, that both she and Ryan committed the offence. The joint commission case the prosecution chose to advance created complexities for the jury that required the prosecutor and the Judge to take steps to ensure that there was no conflation of what might otherwise have been separate cases against each of Ryan and the appellant.

The trial92 After the opening address by the prosecutor, counsel for Ryan identified to

the jury the issues in dispute. In relation to each of counts 1 to 10, he said in effect that the issues would be whether the prosecution proved beyond reasonable doubt that the statements in the Business Activity Statements about purchases were false and the necessary intention by Ryan. In relation to each of counts 11 to 15, he said that the issues would be whether the prosecution proved beyond reasonable doubt that Ryan and the appellant entered into an agreement with each other to commit the offence of obtaining a financial advantage by deception; that they each intended that the offence be committed under the agreement; and that an offence was committed in accordance with that agreement.

93 Counsel for the appellant identified to the jury the issues in dispute in relation to counts 11 to 15. He adopted what was said by counsel for Ryan and said that the prosecution needed to prove beyond reasonable doubt that the appellant agreed, either by herself or jointly with Ryan, to make a representation to the Australian Taxation Office knowing that it was false.


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94 The principal witnesses called by the prosecution were Mr Gomsi, an Australian Taxation Office internal investigator primarily responsible for the investigation of the GST refund claims, and Mr Rebellato, who was primarily responsible for the audit of the GST refund claims. Mr Gomsi’s evidence was supplemented by other Tax Office employees involved in the execution of the search warrant or who explained the general nature of Tax Office interactions with taxpayers. One of the employees was Ryan’s supervisor when he worked for the Taxation Office.

95 The prosecution called the following witnesses who had communications or dealings with Ryan after the offences were allegedly committed:

Mr Gomsi, who produced the recording of Ryan’s telephone call with Jessica and Mechelle at the call centre on 19 December 2011;

Mr Titterton, who gave give evidence of his telephone conversation with Ryan on 20 December 2011;

Mr Rebellato, who gave evidence of his telephone conversation with Ryan on 19 January 2012, his conversations with Ryan at the interviews on 24 February on 2 March 2012, documents given to him by Ryan and other dealings with Ryan;

Mr Perry, who gave evidence of his conversations and other dealings with Ryan (saying that he never met or had any direct dealings with the appellant); and

Ms Lundberg, who gave evidence of her communications with Ryan and documents given to her by Ryan.

96 There was no suggestion by the prosecutor that this evidence was tendered as against the appellant and, in the absence of such a suggestion, the appellant’s counsel would naturally have assumed that it was tendered only against Ryan.

97 The prosecution called the following witnesses who had communications or dealings with the appellant after the offences were allegedly committed:

Mr Rebellato and Ms Lundberg, who gave evidence of the meeting with the appellant on 4 May 2012;

Mr Gomsi, who produced the recording of the appellant’s telephone call with Jessica at the call centre on 28 June 2012; and

Ms Li Donni, who gave evidence about her dealings with the appellant, including their discussion on 20 August 2012.

98 Although these reasons only address an appeal by the appellant, it is contextually relevant that there was no suggestion by the prosecutor that this


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evidence was tendered as against Ryan and, in the absence of such a suggestion, Ryan’s counsel would naturally have assumed that it was tendered only against the appellant. This is not to say that the evidence might not have been admissible against Ryan under the “co-conspirators’ rule” on the basis that Ryan was the puppet master in respect of what the appellant said and, on the prosecution case, that this was a continuation of the defrauding of the Taxation Office. However this way of putting the case was not suggested by the prosecution.

99 When the jury heard the evidence of post-offence discussions between prosecution witnesses on the one hand, and Ryan or the appellant on the other hand, they were not told that the evidence was only tendered against the accused who was the party to the conversation in question. In the absence of being so informed, contrary to the natural understanding of counsel, the natural understanding of the jury would have been that this evidence could be used against both Ryan and the appellant. This was especially the case where the evidence led from prosecution witnesses who had separate dealings with both Ryan and the appellant (Mr Rebellato and Ms Lundberg) moved seamlessly from a dealing with Ryan to a dealing with the appellant, and back again. Given the natural understanding that the jury was likely to form, it was incumbent on the prosecutor to raise the necessity for a direction about the limited use of this evidence. Likewise, it was incumbent on each defence counsel to raise this. Unfortunately, this did not occur.

100 Near the end of the prosecution case, the prosecutor indicated to the Court and defence counsel that she proposed to tender the transcript of the appellant’s evidence given at the first trial. It was determined by the trial Judge that the appropriate course was for that evidence to be read to the jury, for the jury members to have the transcript in front of them as it was read, and for them to return the transcript to the Court on completion of the reading.

101 In evidence in chief, the appellant had given evidence at the first trial that she met Ryan in August 2011 and he moved in to live with her in October 2011. In November 2011 he told her that he had five companies in his name and, as he was working at the Australian Taxation Office, he was not able to have any more in his name. He asked her if she could put some in her name for a few months. He said that he expected to be earning enough money from these companies to be able to leave his employment to work on the companies full-time and then these companies would be transferred into his name. He said that these companies would undertake share trading. She recalled that Ryan had share trading accounts with Leveraged Equities, Capital Markets and E-trade.

102 The appellant said that she signed the registration papers to incorporate the companies. Ryan submitted the forms to ASIC. Ryan registered the companies with the Australian Taxation Office. She did not recall applying for an AUSkey, nor registering the companies for GST. Ryan established email addresses for the companies and he had the passwords for them.


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103 The appellant said that Ryan told her that, as part of setting up the companies, they would need to have bank accounts. They went together to Westpac and opened an account for each company. Ryan had the passwords for electronic access to the bank accounts of the companies and also Hill’s personal bank account. She regarded the bank accounts of the companies as for Ryan because they were the businesses' bank accounts and he was operating them.

104 The appellant said that Ryan lodged the Business Activity Statements for the companies. She did not calculate the amounts contained in the Business Activity Statements and did not know how to do it. She had watched a video shown earlier during the trial about how to make an electronic lodgement of a Business Activity Statement and had never done that.

105 The appellant said that Ryan made the electronic transfers out of the bank accounts of the companies. She believed that the companies were conducting share trading undertaken by Ryan.

106 The appellant said that she made the telephone call to the Australian Taxation Office in December 2011 of which the recording was tendered. Ryan wrote out a script for her to follow during the telephone call and for all phone calls with the Tax Office.

107 The appellant said that she saw Ryan working on the businesses most nights and during the day when he was not working at the Tax Office. She believed that what he was doing was legitimate.

108 The appellant said that at the end of February 2012 Ryan told her that his employment at the Tax Office had been terminated because of the companies that he was running. She said to him that, as he was not working at the Taxation Office any more, the companies could go into his name. Ryan did not however transfer them into his name.

109 The appellant said that she was present when the search warrant was executed in March 2012. She was allowed to go to work and Ryan remained at home. When she arrived home, she asked him what happened and how long the officers were there for. Ryan seemed agitated, did not really want to talk about it and said that he would deal with it. Up to that point, she had no concerns about Ryan or the companies. The search was the first sign that there was “something not right”.

110 The appellant said that she and Ryan met with Ms Lundberg before the meeting with Mr Rebellato. Ryan said that Ms Lundberg should answer as many questions as possible rather than the appellant. He gave to the appellant two or three pages of handwritten notes on what to say.


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111 The appellant said that at the meeting with Mr Rebellato, Ms Lundberg answered most of the questions. The appellant did not have much idea what the companies were doing.

112 The appellant said that later in May 2012 she and Ryan relocated to Queensland for 12 months.

113 The appellant identified the handwriting on the Financial Group 15 October 2012 objection as being her own. Ryan showed her what to write. She said that her dealings with the Tax Office in 2012 relating to objections were all at the direction of Ryan. She ensured that Ryan was present during telephone conversations with the Tax Office so that he could coach her on what to say.

114 In cross-examination by Ryan’s counsel, it was put to the appellant that, although Ryan might have been sitting next to her, she lodged the Business Activity Statement for Global Equity on 14 December 2011 and she said “No, not that I recall”. It was put to her that similarly she was the one who lodged the Business Activity Statements for Financial Group and REDC on 16 December 2011 and she said no, and that the screen that she saw in the video played during the trial was not familiar to her. It was put to her that Ryan helped her with the objection documents and she agreed.

115 In cross-examination by the prosecutor, the appellant said that the companies were set up in her name but really they were for Ryan and she agreed to help him get around the rule at work.

116 It was put to the appellant that she agreed to be part of Ryan’s plan to get money from the ATO and agreed to tell lies to the ATO in order to get paid money, which she denied.

117 The appellant said that she believed that the GST refunds into the bank accounts of the companies were associated with share trading by the companies.

118 It was put to the appellant that she said during the telephone call on 14 December 2011 that she had applied for an AUSkey and she said that that may have been correct. She said that Ryan was present during that telephone call.

119 It was put to the appellant that she lied to Ms Li Donni by saying that she did not know of a connection between Financial Group and Australasian Media and she denied this, saying that she understood the question to be about a connection between herself and Australasian Media.

120 The appellant said that she did not recall making the large cash withdrawals from the bank accounts of the companies, she did not recall going to the Westpac Pirie Street branch and she thought that she would have recalled such large amounts being withdrawn.


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121 In relation to the meeting with Mr Rebellato on 4 May 2012, it was put to the appellant that she said that she had registered Financial Group on 9 December 2011 and that was true. She accepted that. It was put that she checked and lodged the Business Activity Statements for Financial Group and she said that she did not believe that she had checked or lodged them. It was put to her that she was lying at the interview and she said that she could not recall. It was put to her that she knew that the amounts claimed on the Business Activity Statements did not match the Australasian Media invoices and she accepted that. She accepted that she knew that there was a problem but she said that she spoke to Ryan and he was confident that everything was all right.

122 It was put to the appellant that she knew that Ryan was getting money paid to him by the ATO; she decided that she would help Ryan to get more companies and get more money from the ATO; she knew that there were figures being reported to the ATO which were not true; and she knew more about these companies than what she had said in court. She denied each of these propositions.

123 It was put to the appellant that she played her part by setting up the companies and the bank accounts and speaking with and communicating with the ATO when Ryan asked her to do so. She admitted doing those things.

124 After the reading of the appellant’s evidence, the prosecutor tendered a set of agreed facts admitted by the appellant (exhibit P53) and a set of agreed facts admitted by Ryan (exhibit P54). The jury was not informed that exhibit P53 was tendered only against the appellant and exhibit P54 was tendered only against Ryan, although the jury may have inferred this from the wording of the documents as being facts admitted by Ryan and the appellant, respectively. At the outset of the case, the prosecutor had tendered, as exhibit P1, a table setting out details of the Business Activity Statements the subject of the 15 counts plus those lodged by Australasian Media and, as exhibit P2, a table setting out various details of Ryan’s and the appellant’s companies. Both Ryan and the appellant agreed that the tables were accurate.

125 Finally, Ms Grigoriou gave evidence of Ms Hill’s good character.

Separate cases126 Ground of appeal 1 is that the trial Judge erred as a matter of law in failing

to direct the jury to consider the case against the appellant separately from that against Ryan, to identify that separate case and the evidence inadmissible against her and to give adequate directions as to the application of the law to that separate case.

127 Ground of appeal 3 is that the trial Judge erred as a matter of law in directing the jury that evidence in relation to counts 1 to 10, and in particular the finding of a pattern in relation to counts 1 to 10, was admissible against the


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appellant to prove that she was a party to the agreement to commit counts 11 to 15. At the hearing of the appeal, ground 3 was argued as a particular of ground 1.

Evidence inadmissible against the appellant

128 The first complaint advanced on appeal is that the jury was not directed that certain evidence admissible against Ryan was inadmissible against the appellant. The appellant identifies three categories of such evidence (in chronological order):

1. Evidence of conduct by Ryan comprising or relating to counts 1 to 10, being the counts separately charged against Ryan only.

2. Evidence of a “hallmark” present in respect of counts 4 to 15 that the GST credit in respect of purchases was incorrectly calculated as 11 per cent of the value of purchases.

3. Evidence of “post-offence conduct” by Ryan, in the absence of the appellant, being statements made, and documents provided, by Ryan to the Australian Taxation Office, Mr Perry and Ms Lundberg.

129 The appellant addressed these three categories in reverse chronological order, and it is convenient to follow the same order.

Post-offence conduct

130 Substantial evidence was led at trial by the prosecution in relation to statements made by Ryan after the offences were allegedly committed to the Tax Office call centre, Mr Titterton, Mr Rebellato, Mr Perry and Ms Lundberg and documents provided by Ryan to them. That evidence is summarised at [95] above and in the Background section above.

131 This evidence related to various admissions by Ryan (albeit it also included self-serving statements admissible under the principle that an entire conversation containing an admission must be tendered by the prosecution, rather than cherry-picking only those parts that comprise admissions). The prosecutor did not suggest that the evidence was tendered on any other basis, nor that the evidence was admissible against the appellant.

Admissibility against the appellant

132 On appeal, the Director contends that the evidence of post-offence statements made by Ryan to Mr Rebellato and the other prosecution witnesses was in fact admissible against the applicant as circumstantial evidence. The Director cites in support of that contention decisions of the Victorian and New South Wales Courts of Appeal in Tsang v R6 and Elomar v R.7

6 [2011] VSCA 336, (2011) 35 VR 240 at [35]-[38] per Nettle and Neave JJA and Sifris AJA.7 [2014] NSWCCA 303, (2014) 316 ALR 206 at [263]-[284] per Bathurst CJ, Hoeben CJ at CL and

Simpson J.


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133 The short answer to the Director’s contention is that the prosecution at trial did not tender the evidence in question against the appellant (as circumstantial evidence or otherwise). If the prosecution wished to adduce and rely on the evidence against the appellant, it was incumbent on her to announce that so that the appellant had the opportunity to object and the Judge had the opportunity to consider the objection and rule on the admissibility of the evidence against the appellant.

134 The long answer is that the evidence in question was not admissible against the applicant under the principles discussed in Tsang and Elomar.

135 In Tsang v R,8 the prosecution case was that Tsang, Chan and Ho conspired to import MDMA into Australia. Evidence of portions of telephone intercepts between Chan and Ho was admitted against Tsang as original evidence. Other portions were admitted against Tsang under the co-conspirators’ principle. The Victorian Court of Appeal said:

There are three bases under which evidence of statements made by a third person co-accused in the absence of the accused may be admissible. First, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case.

The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person’s guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred…

Secondly, such statements may be admitted as original evidence to support a Crown case that the accused entered into an agreement with others to do the unlawful act with which he or she is charged. Again such evidence is not admissible as an exception to the hearsay rule, but as original evidence. As is the case where no agreement to do an unlawful act is alleged, it is unnecessary to prove that the statements were made in furtherance of the conspiracy.

Thirdly, such statements may be admitted under the co-conspirators’ principle, which permits their admission as evidence of truth of the statements made in the absence of the accused, that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person’s participation in conspiracy to do an unlawful act…9

136 The Director in the present case eschews any reliance on the co-conspirators’ principle but contends that the evidence in question was admissible under the first basis as “circumstantial evidence in relation to a fact in issue”.

8 (2011) 35 VR 240.9 At [35]-[38] per Nettle and Neave JJA and Sifris AJA. (Footnotes omitted)


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137 In Tsang, the Court drew a distinction between evidence of a conversation admitted under the co-conspirators’ principle as evidence of the truth of the content of the conversation (the third basis) and evidence of a conversation admitted as original evidence (that is, evidence of the content of the conversation as opposed to evidence of the truth of the content) (the first and second bases).

138 In Elomar v R10 the five appellants were found guilty of conspiracy to do acts in preparation for terrorist acts. Elomar appealed against his conviction on the ground that the trial Judge wrongly admitted against him evidence of conversations between his alleged co-conspirators to which he was not a party. It was argued on appeal that evidence of acts or declarations by alleged co-conspirators to which a defendant was not a party are admissible only pursuant to the co-conspirator rule. This argument was rejected by the New South Wales Court of Criminal Appeal. The Court said:

It is … correct to assert that, where evidence of a statement or conversation attributed to one accused is tendered against another accused pursuant to the co-conspirators’ rule, it is admissible against that other accused only where (inter alia) it was said “in furtherance of its common purpose”.

The flaw in the argument is to regard admissibility under the co-conspirators’ rule as the only basis of admissibility recognised in Ahern. The argument also overlooks the important circumstance that the evidence was not, and never was, tendered under the co-conspirators’ rule.

It is not correct to regard Ahern as authority for the proposition that acts, statements, declarations or conversations of one or more alleged conspirators are admissible against other alleged conspirators only if made in furtherance of the common purpose. Ahern expressly holds otherwise. The court said (at [5]):

[5] In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.”

…

Essential for the Crown to prove in a conspiracy trial (inter alia) are:

(i) the existence of the conspiracy alleged; and

(ii) the participation in that conspiracy of the various accused.

10 (2014) 316 ALR 206.


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While recognising that certain items of evidence might be relevant to each of these, it is necessary to carefully delineate which evidence goes to prove the existence of the conspiracy, and which goes to prove the participation of any of the individual accused. But it is wrong to say, as was contended on behalf of Elomar, that, unless conversations or statements or acts are had or made or done in furtherance of the conspiracy, or of the common purpose, that evidence is not admissible against any accused other than the accused to whom it is attributed.11

139 The Court drew the same distinction that had been drawn by the Victorian Court of Appeal between evidence of a conversation admitted under the co-conspirator rule as evidence of the truth of the content of the conversation and evidence of a conversation admitted as original evidence.

140 In relation to the first or second basis of admissibility articulated in Tsang, and unlike the situation in Tsang and in Elomar, the statements by Ryan were made long after the alleged agreement was made with the appellant to defraud the Tax Office and long after the monies in question had been paid. The Director does not identify the fact in issue to which the content of what Ryan said to Mr Rebellato and others was circumstantial evidence (as opposed to the truth of the content). It is difficult to conceive what relevance it would have in this respect. In any event, if the evidence had been admitted against the appellant on this basis, it would have required careful directions to the jury as to the use to which it could and could not be put, and no such directions were sought by the prosecutor or given because it was not explicitly tendered as against the appellant.

Potential use by jury against the appellant

141 When the evidence in question was adduced, the jury was not informed that it was not admissible against the appellant and, as explained above, would naturally have assumed that it could be used against both accused.

142 In the summing up, the Judge gave a general “separate consideration” direction in the following terms:

Each count charges a separate and distinct offence and each must be treated separately and distinctly upon its merits.

Each of the five joint counts is a separate and distinct offence against each accused and must be treated separately and distinctly on its merits and you must also consider the evidence against each accused separately. You cannot use evidence solely relating to one accused against the other.

When ultimately it comes to returning your verdicts, you are going to be asked in relation to each accused and each of the charges separately, whether you find that accused guilty or not guilty of the charge in question, and it does not follow that because you might find an accused guilty of one charge, that you must necessarily find that accused guilty of the others, the counts do not necessarily stand or fall together.

11 At [275]-[277], [279]-[280] per Bathurst CJ, Heoben CJ at CL and Simpson J.


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143 Although the Judge referred to “evidence solely relating to one accused” not being used against the other, the Judge did not (subject to two exceptions) identify what evidence related solely to one accused. The identification was limited to the tender by the prosecutor of the evidence given by the appellant at the first trial and evidence of alleged lies told by one accused. In this respect, the Judge had earlier in the summing up said:

You did, however, hear Ms Hill’s evidence from a previous trial read as part of the prosecution case. Ms Hill’s evidence is relevant to her case, but it cannot be used against Mr Ryan…

On a related topic, Ms Abbey, counsel for the prosecution, has submitted that Mr Ryan and Ms Hill each told lies to Mr Rebellato during the course of the audit…

… you cannot use lies that you find Mr Ryan told Mr Rebellato in the audit against Ms Hill, or vice versa. Ms Hill was not present at the time of Mr Ryan’s interview and nor was he present for hers and so to do so would be unfair.

144 Immediately after the passage of the summing up extracted at [142] above, the Judge said:

Whilst the evidence in relation to each count is separate and distinct and largely only relevant to proof of that particular count, the prosecution has put to you that there is a pattern to the various counts on the information. The prosecution says that there is an overall similarity of conduct which makes it improbable that the two accused thought that the purchases reported in the various BAS statements submitted to the ATO were legitimate. It says that when you consider the evidence as a whole, it is possible to infer that Mr Ryan intended to submit the various business activity statements, with false information as to purchases, in counts 1 to 10, as part of a scheme to claim GST credit to which he was not entitled, or what Ms Abbey described in her closing address as a concerted campaign on his part to raise money. The prosecution also says that it is possible to infer that Mr Ryan and Ms Hill entered into an agreement to submit business activity statements with false information as to purchases as part of a continuation of that same scheme.

145 The prosecutor in her opening address grouped together the evidence of post-offence conduct by Ryan and the appellant when she said:

The reason you're hearing about the audit is because you will hear evidence of things that were said, both by Mr Ryan and Ms Hill, of documents that they produced in that process and you will, on the basis of that evidence, make your own minds up, so that's why you're hearing about this audit process.

146 In her opening address, the prosecutor summarised the evidence that would be led (including the post-offence conduct) without indicating that the conduct of Ryan was admissible only against Ryan (or that the conduct of the appellant was admissible only against the appellant).

147 In her closing address, the prosecutor addressed the post-offence conduct extensively, again without indicating any limitation on admissibility against both accused.


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148 In these circumstances, there was a real risk that the jury would consider that evidence of Ryan’s post-offence conduct was admissible against the appellant except insofar as it involved his telling lies (if the jury was so satisfied). In order to avoid this risk it was necessary to give the jury a clear direction, identifying what evidence was inadmissible against the appellant and what evidence was inadmissible against Ryan. It is true that such a direction was not sought by either defence counsel, nor was it suggested by the prosecutor. However, unless it was given there remained the risk that evidence which was inadmissible against the appellant would be used against her when determining her guilt.

149 The prosecutor also referred to the agreed facts contained in exhibits P53 and P54 without making it clear to the jury that they were admissible, respectively, only against the particular accused who made the admission contained in the agreed facts. The jury may have inferred this from the content of the documents, but the jury should have been told expressly that the agreed facts contained in exhibit P54 were inadmissible against the appellant, and vice versa in respect of exhibit P53.

150 This complaint is established.

The one eleventh hallmark

151 Mr Rebellato gave evidence that goods and services tax (GST) is imposed at the rate of 10 per cent of the price of goods and services. The GST credit for purchases is equal to 10 per cent of the GST exclusive purchase price or 1/11 th of the GST inclusive purchase price. He gave an example of a purchase for $100 plus GST being a total of $110; where the GST credit is $10 being 1/11th of the GST inclusive price of $110, or 10 per cent of the GST exclusive price of $100.

152 Mr Rebellato gave evidence that the GST credit the subject of counts 4 to 15 was calculated as 11 per cent of the purchase amount recorded, which Mr Rebellato described as a “systemic” error. The prosecutor described it in opening and closing address as a “hallmark”.

153 The appellant contends that the prosecutor sought to use this “hallmark” evidence as proof that she had formed an agreement with Ryan to defraud the Australian Taxation Office. The appellant refers to the following passage from the prosecutor’s opening address:

You'll also [hear] that there's a wrong method of calculating the GST component. It should be one-eleventh of the amount ultimately paid and what you will see some evidence of is that through counts 1 through to 15 is in fact 11%. … the Crown says there is sort of a hallmark that starts with count 1 and goes right through these counts, including the counts where they're charged jointly. So they may be her entities, you will hear evidence that she was dealing with the ATO at times about them. They also have this hallmark wrong method calculation.

and the following passage from the prosecutor’s closing address:


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That was the calculation done by Mr Rebellato, which indicates that for all of the entities other than Capitalisation I suggest there's been an 11% figure, rather than one-eleventh. So in terms of seeing a hallmark of Mr Ryan through Ms Hill's entities, you might think that's what you see in P45.

154 When understood in context, the prosecutor was relying on the “hallmark” evidence in the Business Activity Statements lodged by Ryan’s companies the subject of counts 4 to 10 to show Ryan’s involvement in the Business Activity Statements the subject of counts 11 to 15. The prosecutor was not relying on it in respect of Hill’s side of the alleged conspiracy.

Ryan’s conduct subject of counts 1 to 10

155 The appellant refers to evidence adduced by the prosecution in relation to Ryan’s conduct the subject of counts 1 to 10. The evidence identified includes evidence that Ryan was experiencing financial hardship in early 2011, that Ryan had the knowledge and expertise to carry out the alleged fraud and the circumstances and timing of the registration for GST and lodgement of Business Activity Statements for Ryan’s companies.

156 The appellant makes the bare assertion, without elaboration, that this evidence was inadmissible against her. However, because of the manner in which the prosecution ran its case, the prosecution had to prove as against the appellant in respect of counts 11 to 15 not only that she engaged in the requisite conduct with the requisite mental element but also that Ryan engaged in the requisite conduct with the requisite mental element. Evidence of Ryan’s conduct in respect of counts 1 to 10 was admissible as against the appellant to prove the requisite conduct and mental element of Ryan in respect of counts 11 to 15 even though it could not be used to prove her own conduct and mental element.

Conclusion

157 The appellant has established that the jury should have been directed that Ryan’s post-offence conduct was inadmissible against the appellant. We defer consideration whether this amounts to a miscarriage of justice until considering the balance of her complaints under ground 1.

Case against appellant conflated with case against Ryan

158 The second complaint advanced on appeal is that the prosecutor in closing address conflated the case against Ryan that he had engaged in the requisite conduct with the requisite mental element the subject of counts 11 to 15 with the case against the appellant that she had done so and this conflation was not rectified, but reinforced, by the Judge’s summing up in relation to the prosecution’s circumstantial case against Ryan and the appellant.

159 In relation to the prosecutor’s closing address, the appellant refers to the items of circumstantial evidence relied on by the prosecutor jointly against Ryan and the appellant, and she contends that many items were only relevant to the


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case against Ryan. These items are addressed below in the context of the Judge’s summing up. The appellant also identifies the following passages (amongst others) from the prosecutor’s closing address as illustrating the asserted conflation of the cases against Ryan and the appellant:

Ladies and gentlemen, you have seen a very large volume of paperwork from this trial, including some business activity statements. I suggest that that paperwork and those business activity statements are not honest, they're not clever and they're not a mistake; not clever, not honest, not a mistake. I suggest that actually what you've seen evidence of is a concerted campaign to raise money. Raising capital by lying to the ATO and getting paid money that these people were not owed as a result of those lies.

…

It was only once Mr Perry became involved and the audit was well underway that these BASs for Australasian Media Holdings were lodged. Not clever, [not] honest, not a mistake. And when you look at P1 you might find other things that are significant to you between P1 and P2, but I suggest when you look at P1 and P2, you might think 'Well, what are the chances, what are the chances, given the dates that these things happened, the claims that were made, the amounts that were made, what are the chances that there was some misunderstanding or naivety here'. This was a campaign to raise money for whatever purpose, and that's my suggestion to you.

…

And a final question, the fourth question was, was the recording of figures dishonest deception, or some great misunderstanding? I've been over that, I've talked about the reverse engineering. I say you can see there are the calls to the ATO. No-one said, Mr Ryan didn't say 'I've made a big error, don't pay me. I submitted a BAS a couple of days ago, don't pay it'. … witnesses have used descriptions like 'a large volume of material. It was confusing, it was contradictory, it was not well-drafted'. I don't have to prove that these people were dishonest in a clever way. They don't have to be clever to be dishonest, you don't have to behave in a clever way to behave in a dishonest way. So that's important. I suggest there were requests time and time again, I've covered that, produced invoices, produced bank statements. You've seen what was produced, in my suggestion they demonstrate dishonesty.

…

Another factor of course I've covered about, was there a misunderstanding? This point that [Australasian Media] Holdings didn't report. That's where cash and accrual comes in, isn't it, because when Australasian Media Holdings issued the invoices they are reporting on the same basis as the entities, it's all accruals. So when the invoice is issued by [Australasian] Medial Holdings that's when their tax liability is created. They issue that, they owe the ATO the GST portion, and low and behold the only reporting that happened was the other side of the equation, the side of the equation that brought a refund. It's not a mistake.

We have the objection and I said something about that already. Why are they continuing to try and justify or talk to the ATO about these things? You might think one reason is because otherwise they've got a lot of money to pay back. Is it just that they're still mistaken that long after and the objections are evidence that they are continuing to not understand but truly believe what they are entitled to? Or is it that they have to, you might


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think, maintain that they don't owe this money. They would have to pay it back, wouldn't they, they'd owe it?

160 In relation to the Judge’s summing up, the appellant relies principally on a summary given by the Judge of the items of circumstantial evidence relied on by the prosecution in proof of counts 11 to 15. This summary was preceded by a direction on the elements of each of those joint counts in the following terms:

… the prosecution must prove beyond reasonable doubt that there was an agreement between Mr Ryan and Ms Hill to submit false Business Activity Statements in order to claim GST refunds to which they were not entitled.

Such an agreement may be explicit, tacit or implied; it can be written down, it can be verbal; it can be a non-verbal understanding. But there must be a meeting of minds. The intention to commit an offence under the agreement must be jointly held, that is by both Mr Ryan and Ms Hill. They must both hold that intention before or at the time of the conduct constituting the physical elements of the offence. In this case, before or at the time of the first Business Activity Statement in the joint charges, that is the Business Activity Statement for Global Equity lodged on 14 December 2011.

161 The Judge then turned to identify the circumstantial evidence relied on by the prosecution in the following terms (the item numbering has been inserted for ease of identification):

Now, the prosecution case is that you can infer there was such an agreement from a number of pieces of circumstantial evidence. Again, I remind you of my direction about how you assess such evidence. In summary, those pieces of evidence included:

1 the fact that Mr Ryan and Ms Hill were living together at the time the relevant Business Activity Statements were submitted;

2 the circumstances of the search of their home in March 2012;

3 the incorporation of four companies in Ms Hill’s name on 17 and 18 November 2011;

4 the variety of addresses – email, postal, business – and other phone numbers for these entities;

5 the similarity of the documentation for the companies registered in Mr Ryan’s name and those in Ms Hill’s name;

6 Ms Hill’s ongoing connection and involvement with the companies in her name, including her contact with the ATO;

7 the fact that Ms Hill was the sole signatory on the bank accounts for her companies;

8 the incorrect method of calculation of GST in respect of all of the entities;

9 the timing of the submission of the Business Activity Statements, particularly in the context of calls that Ms Hill made to the ATO in December 2011;


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10 the things that Ms Hill said in the audit interviews about filing and calculating the Business Activity Statements;

11 the signatures by Ms Hill on various documents; and

12 the contents of the bank statements.

162 In relation to the second item, the appellant contends that, assuming that the Judge was referring to the documents found at the house on execution of the search warrant, the documents were not linked to the appellant. The general effect of the evidence given by Mr Gomsi, and of the whole of the evidence adduced by the prosecution at trial, was that it was Ryan (rather than the appellant) who was the author of the documents found during the execution of the search warrant. There was a difference in this respect between the circumstantial case against Ryan and the circumstantial case against the appellant.

163 In relation to the fourth item, the appellant contends that the jury would have understood the reference to “these entities” as being to Ryan’s and the appellant’s entities the subject of counts 4 to 15. There was not a variety of business or postal addresses for the appellant’s entities; they only had two addresses in total being the Sydney and Melbourne addresses. There was however a variety of addresses for all of the entities combined. The jury may therefore have understood the reference as being to all of the entities, including Ryan’s entities, with which the appellant had no connection.

164 In relation to the fifth item, the appellant contends that the similarity of the documentation between Ryan’s entities and the appellant’s entities was relevant only to the circumstantial case against Ryan. This similarity was strong circumstantial evidence against Ryan to show a close involvement in and control over documentation produced by the appellant’s entities. There was a marked similarity between the documentation and it had, in common, the general feature that technical words were used without any discernible meaning and of conveying no useful information. By contrast, this similarity in the documentation had no probative value in the circumstantial case against the appellant.

165 In relation to the eighth item, the appellant contends that the “hallmark evidence” was relevant only to the circumstantial case against Ryan. Again, this hallmark was strong circumstantial evidence against Ryan to show that he calculated the amounts shown in the Business Activity Statements lodged by the appellant’s entities. By contrast, it had no probative value in the circumstantial case against the appellant.

166 Although the appellant makes various submissions about the other items, they do not involve a conflation of the circumstantial case against Ryan with the circumstantial case against the appellant. However, when determining holistically whether there was a conflation of the cases against the two accused, it is relevant


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to take into account that some of the items were not probative, or not significantly probative, of a nefarious agreement with Ryan or with wrongdoing by the appellant. For example, the first item that they were living together has very little probative weight in relation to these issues. The third and seventh items, being the incorporation of the companies and the signatories to their bank accounts, have little probative weight because they are consistent with the appellant’s case that, if there was any wrongdoing, Ryan was the mastermind and she was the innocent “puppet”.

167 Considered objectively, the case against Ryan was much stronger than the case against the appellant. A conflation of the circumstantial cases against them was inherently likely to work to the disadvantage of the appellant. The joint listing of the 12 circumstances relied on by the prosecution against both accused, of which four were exclusively referable to the case against Ryan and several others had very little probative weight against the appellant, was liable to lead the jury to fail to consider the circumstantial case against the appellant separately and independently from the circumstantial case against Ryan. This risk was compounded by the problem that the jury was not directed that the evidence of Ryan’s post-offence conduct was not admissible against the appellant.

168 The Director points to the general “separate consideration” direction given by the Judge extracted at [142] above and contends that this was sufficient in the circumstances. That general separate consideration direction was not apt to ensure that the jury did not conflate the circumstantial cases against the two accused given the manner in which the prosecutor made her closing address and the summary given by the Judge of the prosecution’s circumstantial case against both accused.

169 This complaint is established.

Miscarriage of justice

170 The Director contends that no miscarriage of justice was occasioned by the matters about which the appellant complains.

171 In our opinion, the appellant has demonstrated a miscarriage of justice. This was not a strong prosecution case against the appellant. The prosecution case against Ryan was stronger than the prosecution case against the appellant. Any conflation by the jury of the cases against Ryan and the appellant was likely to work to her disadvantage. If the jury had been clearly directed concerning the evidence that was inadmissible against the appellant, and concerning the separate circumstantial case against her, she would have had a real chance of acquittal. The appellant has been deprived of a real chance of acquittal. She has established a miscarriage of justice.

172 The Director contends that this Court should apply the proviso. We have considered the evidence adduced at trial. It is impossible to conclude that a


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conviction was inevitable regardless of the matters of which the appellant complains. The proviso cannot be applied. The appellant’s convictions must be set aside and the matter remitted to the District Court for a new trial.

Possibility of differential verdicts173 Ground of appeal 2 is that the trial Judge erred as a matter of law in

directing the jury that it was not open to return different verdicts in relation to the jointly charged accused.

174 Soon after the jury retired to consider its verdict, it sent a question to the Judge, asking whether its assumption was correct that, on counts 11 to 15, it was not possible to find that one accused met all ingredients and was guilty and the other did not meet all ingredients and was not guilty. The Judge discussed the question with counsel, who unanimously agreed that the answer to the question should be that the jury’s assumption was correct. The Judge directed the jury that it was not possible to find that one accused was guilty and the other was not guilty of the charged offence in respect of the joint counts (counts 11 to 15) because a finding of not guilty would necessarily mean that the prosecution had not proved the first element of the joint offence. That is, the prosecution would have failed to prove that both accused entered into an agreement with each other to commit the offences of obtaining a financial advantage by deception.

175 The appellant contends that this direction was erroneous. The contention is put both generally as a matter of principle and specifically by reference to a differential between the evidence admissible against the appellant and the evidence admissible against Ryan.

176 Insofar as the contention is put generally as a matter of principle, the appellant advances the following propositions. First, the appellant refers to the position at common law in Australia since 1982 that, where two persons are jointly charged as conspiring with each other, different verdicts are not necessarily inconsistent. Thus, in R v Darby12 Gibbs CJ, Aickin, Wilson and Brennan JJ said:

It is true that greater conceptual difficulties attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no one else) than in the case of separate trials. A can only be convicted if the jury is satisfied beyond reasonable doubt on evidence admissible against him, inter alia, that A and B conspired together. In essaying their duty in the case of B, the same jury which was satisfied of A's guilt in conspiring with B may on evidence admissible against B fail to be satisfied beyond reasonable doubt that B did conspire with A. The result is then that in the one trial the jury is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A. In reality, of course, the apparent phenomenon is readily explained in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.

12 (1982) 148 CLR 668.


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Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.

… we have no doubt that this Court should now redirect the common law of Australia on to its true course. It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person.13

177 In King v The Queen14 the High Court addressed persons jointly charged as principals. Dawson J (with whom Gibbs CJ, Wilson and Brennan JJ agreed) said:

Although the Crown, in reliance upon s.346 of the Crimes Act 1914 1900 (NSW), charged both King and Matthews jointly as principals in the commission of the crime of murder, it in fact proceeded against Matthews as the principal and King as an accessory before the fact. Even where two persons are tried jointly upon the one charge as participants in the same degree, it does not inevitably follow that both must be convicted or both must be acquitted. An indictment charging two persons on the one count is both joint and several. The evidence may be sufficient to prove the case against one accused beyond reasonable doubt, but be insufficient to prove the case against the other. In that event, the conviction of the one and the acquittal of the other involves no inconsistency. Of course, where there is no material distinction in the evidence admissible against each accused to establish an element to be proved against both, different verdicts may be inconsistent. Inconsistency appears only if the acquittal of one and the conviction of the other is to be accounted for by the making of different findings as to the common element.

In the present case, there would be inconsistency if the conviction of King and the acquittal of Matthews was to be accounted for by inconsistency in the findings as to whether Mrs. King had been murdered. That was a common element which the prosecution sought to prove against both accused by the same evidence. But there is no reason to think that there was any inconsistency between the verdicts in the present case.15

178 Secondly, the appellant contends that section 11.2A of the Criminal Code codifies the law on joint criminal enterprise.16

179 Thirdly, the appellant refers to subsection (7)(a) of section 11.2A of the Criminal Code (see [84] above), which provides that a person may be found guilty of an offence because of the operation of the section even if another party to the agreement has not been found guilty.

13 At 677-678.14 (1986) 161 CLR 423.15 At 433-434. (Citations omitted)16 Citing R v Franze (Ruling No 2) [2013] VSC 230, (2013) 37 VR 101 at [20] per Kaye J and Masri v

The Queen [2015] NSWCCA 243 at [1] per Simpson J (with whom R A Hulme and Bellew JJ agreed).


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180 Fourthly, the appellant contends that it follows that the Judge’s direction was erroneous. For example, the appellant contends that, even if an agreement of some kind was proved, the jury may have had a reasonable doubt as to whether the prosecution had proved that she (as opposed to Ryan) had a dishonest intention.

181 The appellant’s contention at this level of generality must be rejected. First, to the extent that there is an analogy between joint commission under section 11.2A of the Criminal Code and common law concepts, the closest analogy is conspiracy. As the High Court said in King, if the prosecution case is that there was a conspiracy between two accused and only them, different verdicts will be inconsistent if there is no “material distinction” in the evidence led against each of them. In the present case, as explained above, the prosecution chose to run its case exclusively on the basis of joint commission. The position is therefore different to that described by the High Court in Darby where an indictment charging two persons on the one count is both joint and several: in the present case the prosecution eschewed any several charge.

182 Secondly, in the authorities cited by the appellant in support of the proposition that section 11.2A of the Criminal Code codifies the law on joint criminal enterprise, it was not suggested that the statutory provision is identical to the common law. Kaye J in R v Franze (Ruling No 2)17 said that there were “some differences” and Simpson J in Masri v The Queen18 described section 11.2A as “essentially” the Commonwealth statutory adoption of the common law doctrine of joint criminal enterprise. In Namoa v The Queen19 Gleeson J (with whom Kiefel CJ, Gageler, Keane, Gordon, Edelman and Steward JJ agreed) said:

The principles for interpreting a statutory code are well established. A code is to be construed according to its natural meaning and without any presumption that its language was intended to do no more than restate the common law. The common law cannot be used to supply the meaning of a word used in a code except where the word has a well-established technical meaning under the pre-existing law and the code uses that word without definition, or it appears that the relevant provision in a code is ambiguous. The common law cannot be invoked in the interpretation of a code for the purpose of creating an ambiguity.20

183 The text, context and evident purpose of subsection (7)(a) indicate that its effect is that, where two parties are jointly charged with agreeing, within the meaning of the section, to commit an offence, there is no automatic rule (such as existed at common law before 1982) that both must be acquitted or convicted. Its effect is not that, if two parties are jointly charged in reliance exclusively on the section and the evidence against each is identical, one may be found guilty and the other may be found not guilty on the evidence.

17 (2013) 37 VR 101.18 [2015] NSWCCA 243.19 [2021] HCA 13.20 At [11]. (Footnotes omitted)


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184 However, leaving to one side the appellant’s general submission, the evidence admissible against the appellant was not identical to the evidence admissible against Ryan. There were material differences between the evidence admissible against each accused. Although the jury was not given directions about those differences, it was explicitly directed that it could not have regard to the appellant’s sworn evidence given at the first trial when considering the case against Ryan. It follows that it would have been at least theoretically possible for the jury to have convicted Ryan on the evidence admissible in the case against him but acquitted the appellant on the evidence admissible for and against her (including her sworn evidence given at the first trial).

185 In order to convict Ryan and acquit the appellant, it was necessary for the jury to be satisfied beyond reasonable doubt, on the evidence admissible in the case against Ryan, that both Ryan and the appellant were guilty of the relevant count (for example count 11) and not be satisfied beyond reasonable doubt, on the evidence admissible in the case against the appellant, that both Ryan and the appellant were guilty. For example, the sworn evidence given by the appellant might have caused the jury to entertain a reasonable doubt about the guilt of the appellant but, as that evidence was not admitted in the case against Ryan, the jury might have been satisfied on the other evidence adduced by the prosecution of the guilt of the appellant and of the guilt of Ryan.

186 It is not necessary to reach a conclusion whether the Judge’s direction in and of itself involved a miscarriage of justice because the appeal must be allowed on ground 1. When considered in conjunction with ground 1, the effect of this direction was logically inconsistent with the Judge’s general “separate consideration” direction that the jury had to consider the case separately against each accused by reference to the evidence admissible in the case against each accused. It was also logically inconsistent with the Judge’s specific direction that the sworn evidence given by the appellant at the first trial was not admissible in the case against Ryan. This direction therefore tended to exacerbate the problem the subject of appeal ground 1 that the jury was not adequately directed on the differential evidence admissible against each accused.

187 If this ground were the only ground of appeal, it may be doubted whether the Judge’s direction involved a miscarriage of justice.

Consciousness of guilt direction188 Ground of appeal 4 is that the trial Judge erred in failing to direct the jury as

to the permissible and impermissible uses it could make of the prosecution submission that the appellant’s account of failing to make what the prosecutor called “the expected enquiries” of her partner Ryan after the police attendance was indicative of consciousness of guilt of the offending.

189 The appellant refers to the following passage from the prosecutor’s closing address:


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What about the search of the house, where she lives with her son and Mr Ryan? Seven people turn up unannounced. Two of them AFP police officers and they start searching the house and they are, on her evidence, watching Mr Ryan's movements very carefully. Do you think that you would, or that it's a reasonable possibility that a person in Ms Hill's situation would just allow a response from their partner, 'It's okay, I'll fix it' and shrug it off. Which is what she says he did and said and it's what she said she accepted. She's never been in trouble with the police before, she said. Several people come and search the house and her evidence was, in effect, she didn't really have a probing conversation about 'What is the real problem here, why are the police searching the house?'. One reason why you might not have that conversation is because you know well why they're there because you know that the two of you have agreed that you will tell the ATO lies and get some money that you're not due, you've agreed it.

190 The appellant contends that prosecutor’s submission to the jury involved consciousness of guilt reasoning and the Judge should have given an Edwards21 direction or a Zoneff22 direction to the jury in relation to that submission.

191 An Edwards direction is a direction that may be given or be required to be given to a jury when the prosecution relies on evidence of asserted lies told, or other post-offence conduct, by a defendant as circumstantial evidence by way of consciousness of guilt. The purpose of the direction is to identify the matters about which the jury would need to be satisfied before adopting consciousness of guilt reasoning and to avoid the risks of the jury adopting erroneous reasoning. Whether such a direction is required and its content will be determined by the particular circumstances of the case.

192 A Zoneff direction is a direction that may be given or be required to be given to a jury when the prosecution does not rely on consciousness of guilt reasoning but there is a risk that the jury may nevertheless engage in consciousness of guilt reasoning. The purpose of the direction is to avoid the jury engaging in that reasoning. Whether such a direction is required and its content will be determined by the particular circumstances of the case. If such a direction is given, in some cases it may sufficient to direct the jury against using consciousness of guilt reasoning. In other cases, it may be necessary to identify for the jury the permissible (non-consciousness of guilt) use of the evidence of asserted lies told, or other post-offence conduct, by the defendant.

193 The Director contends that the prosecution submission did not suggest that the omission by the appellant to inquire demonstrated a consciousness of guilt and could not sensibly have been understood by the jury in that way. The Director submits that this evidence was merely an item of circumstantial evidence consistent with the appellant’s guilt and it therefore required no specific direction. The Director points to the fact that a Zoneff direction was given and it was not restricted to the audit interview with Mr Rebellato.

21 Edwards v R (1993) 178 CLR 193.22 Zoneff v R [2000] HCA 28, (2000) 200 CLR 234.


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194 The appellant contends in reply that the Zoneff direction that was given was confined to lies and did not apply to the asserted omission by the appellant to make inquiries of Ryan.

195 As the appeal must be allowed on ground 1, it is not necessary to decide this ground of appeal and we do not do so. However, we make some observations concerning it as, depending on the manner in which the prosecution conducts the retrial on remission to the District Court, the issue may arise during that trial.

196 The Zoneff direction given by the Judge was related to the prosecution submission that Ryan and the appellant had told lies. It was in the following terms:

…Ms Abbey, counsel for the prosecution, has submitted that Mr Ryan and Ms Hill each told lies to Mr Rebellato during the course of the audit …

Ladies and gentlemen, you will make up your own mind about whether either accused lied and if so, whether it was deliberate. It is for you to decide what significance any suggested lie has in relation to this matter, but I must give you a warning; that you should not follow the process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. Further, you cannot use lies that you find Mr Ryan told Mr Rebellato in the audit against Ms Hill, or vice versa. Ms Hill was not present at the time of Mr Ryan’s interview and nor was he present for hers and so to do so would be unfair.

197 On one hand, the Director’s submission that this evidence was merely an item of “circumstantial evidence consistent with the appellant’s guilt” and therefore required no specific direction must be rejected. All post-offence lies or other conduct relied on by the prosecution as suggestive of the appellant’s guilt can be characterised as circumstantial evidence but that characterisation does not in itself entail that an Edwards direction or a Zoneff direction is not required. As this Court said in R v Wildy,23 the question whether a specific direction is required in relation to post-offence conduct relied on by the prosecution, and if so its content, will depend on the particular circumstances of the case.

198 To the extent that the Director submits that the Zoneff direction given by the Judge was apposite to the prosecutor’s submission about the omission by the appellant to inquire, that submission must be rejected. The direction given related only to the use of lies and would not have been understood by the jury as relating to an omission to inquire, which had nothing to do with lies.

199 On the other hand, a specific warning to the jury is not necessarily required in respect of post-offence conduct relied on by the prosecution. In R v Wildy24 Vanstone J (with whom Sulan J agreed) identified the underlying rationale for warnings to juries generally in the following terms:

23 [2011] SASCFC 131, (2011) 111 SASR 189 addressed below.24 (2011) 111 SASR 189.


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…I start with the observation that the rationale underlying the requirement that trial judges give juries warnings in specific terms about the evaluation of certain witnesses or evidence of a particular type is generally that the law regards the experience of judges as apprising them of particular dangers inherent in evidence of certain witnesses, or evidence of a particular type; dangers of which jurors are, or may be, ignorant. For example, experience has shown that disputed identification evidence, where the witness is not familiar with the appearance of the person being identified, is liable to be attended by honest mistake…

Similarly, the common law has it that there is a danger in juries relying too heavily upon, or reading too much into, the lies of an accused person...

Where evidence does not fall within one of the established categories calling for a full warning, the question of whether any danger of relying on the evidence is apparent to the jury informs both the decision as to whether a warning need be given and the content of the warning.25

200 In that case, the complainant had written a letter to the defendant alleging that he had been abused when younger. In cross-examination the defendant said that he did not recall asking the complainant what he meant by abuse. It was put to the defendant in cross-examination and submitted to the jury that he did not ask because he already knew about the abuse that had occurred. It was contended on appeal that an Edwards direction should have been given to the jury in relation, amongst others, to this evidence. Vanstone J said in relation to that contention:

I consider that the argument regarding the failure to inquire about the meaning of J’s claim of abuse similarly fails. There was nothing unusual or inherently dangerous in the cross-examination or in the submissions put to the jury. The appellant’s failure to inquire was explained by him; this was just another strand of evidence about which arguments went both ways.26

201 Of course, the mere fact that a specific warning was not required in that case does not entail that a specific warning will not be required in other cases in which the prosecution relies on an absence of inquiry. Every case must be considered on its own facts.

202 In the present case, a difficulty with the prosecutor’s submission to the jury is that it did not relate to the credibility of the appellant as a witness; it related solely to her guilt of the charged offences. Accordingly, if the Judge gave a direction about the submission, it was not possible to give a Zoneff-type direction that the evidence was relevant only to the appellant’s credit. This can be contrasted with a direction where a defendant gives evidence (or tells a story), which is said to involve a lie and it is possible to direct the jury that the evidence is relevant only to the credit and not to the guilt of the defendant.

203 The risk of a miscarriage of justice in the absence of a specific direction was less than it otherwise might have been because it is inherently unlikely that

25 At [28]-[30]. (Citations omitted)26 At [36].


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the jury adopted consciousness of guilt reasoning. First, the appellant’s evidence both in chief and in cross-examination at the first trial was that she did inquire of Ryan why the police searched the house and she did receive a response that he would sort it out, not to worry about it and he did not want to discuss it further. It is not clear what more the appellant could have done. Secondly, the appellant gave evidence, not challenged in cross-examination, that the police were interested in Ryan and not her and they allowed her to leave for work and Ryan stayed. Thirdly, the subject matter of the inquiry involved complex business and financial dealings when the appellant’s unchallenged evidence was that, in contrast to Ryan, she had no familiarity with such matters. The appellant could hardly be expected to interrogate Ryan about them. Fourthly, although the prosecutor suggested to the appellant that she knew that the search was about Business Activity Statements that had been submitted, she did not suggest that the appellant did not make further enquiries of Ryan because she knew that she and Ryan had defrauded the Tax Office by submitting false Business Activity Statements in the name of her entities.

204 Counsel for the appellant at trial did not seek any specific direction relating to this evidence or this submission by the prosecutor.

205 It would have been desirable for the trial Judge to have raised with counsel the question whether a specific direction should be given and if so its terms. If the prosecutor had indicated that she persisted with the submission she had made to the jury in closing address, it might have been appropriate to give an Edwards direction. Otherwise, it might have been appropriate to give a direction to the jury to ignore the submission (although there is always a danger of giving a matter greater emphasis by directing a jury to ignore it). It is hypothetical to conjecture what submissions might have been made by counsel if the Judge had raised the matter with them. It is even more hypothetical to conjecture what the position might be at a retrial. Careful consideration would need to be given by the prosecutor whether to make such a submission to the jury at a retrial and, if it is made, by counsel and the trial Judge as to any specific direction that might need to be given to the jury.

206 Ground 4 is confined to the submission by the prosecutor addressed above. In her written submissions (but not in her oral submissions), the appellant made two additional complaints outside the scope of her grounds of appeal. Because the appeal is to be allowed in any event, it is not necessary to determine those complaints. We make some observations about them only because the issues might arise at a retrial. However, if the appellant wished to advance the submissions on appeal, she ought to have applied for permission to amend her grounds of appeal.

207 The first additional submission relates to the following passage from the prosecutor’s closing address:


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And what we know is on 17 November Ms Hill signed the paperwork to incorporate those entities of hers. Now, on her evidence that you heard read she said, yes, she did know that there was a problem and that's why she needed to incorporate these companies in her name. And you heard that she was asked some questions about that. Why so many, why not just one. Why if he already had five entities or however many, why the need for multiple more. Isn't that a conversation that you might have had unless, of course, there was an agreement, there was an understanding between these two people that this is how to get money from the ATO. This is how to lie to the ATO and get money. You have multiple entities that report monthly and you maximise the amount of refunds you can get.

208 This submission related to the appellant’s state of mind in mid-November 2011 before the alleged offences were committed in mid-December 2011. It did not relate to any post-offence conduct. It was in any event unlikely that the jury would adopt consciousness of guilt reasoning in respect of this evidence of the appellant for reasons similar to those in respect of the submission addressed above. The appellant gave evidence that Ryan gave her explanations why he needed as many entities as he did, she tried to follow his explanations as best she could, but she was hampered by her limited understanding of commercial matters. Again, it was not put to her in cross-examination at the first trial that she did not ask further questions because she knew the true purpose, nor indeed that she ought to have asked further questions. The prosecutor’s submission to the jury was brief. In the circumstances, no specific warning was required to be given to the jury in relation to this submission.

209 The second additional submission relates to the prosecutor’s submission to the jury that the appellant told lies to taxation officers.

210 In cross-examination at the first trial, the prosecutor had put to the appellant that she told Ms Li Donni in August 2012 that she did not know of any connection between Australasian Media and her entities and this was a lie; the appellant said that she understood the question to be whether she had a connection with Australasian Media and she did not. The prosecutor also put to the appellant that she failed to tell Ms Li Donni that REDC was not really her company. The prosecutor put to the appellant that she told Mr Rebellato on 4 May 2012 that she planned to leave her job at Hewlett-Packard, work for her entities and use her personal money to fund the activities of the business and that these were also lies.

211 Before closing addresses, the prosecutor told the Judge that all of the lies in respect of each accused that she would be alleging went to credibility; she would be submitting that the appellant lied to Ms Li Donni about the lack of any knowledge of a connection to Australasian Media; and either the appellant lied in her evidence or in the audit interview (by Mr Rebellato). She invited the Judge to give a Zoneff direction and submitted that an Edwards direction would be inappropriate.


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212 As it transpired, in closing address the prosecutor did not submit to the jury that the appellant told a lie to Ms Li Donni or Mr Rebellato. However, the jury may have recalled the suggestions of lying which were put to the appellant in cross-examination.

213 The Zoneff direction given by the Judge is extracted at [196] above. Although the Judge referred at the outset of the direction to a submission by the prosecutor that the appellant (and Ryan) told lies to Mr Rebellato, contrary to the appellant’s submission, the jury could not reasonably have understood that they were to treat the various alleged lies told to Ms Li Donni differently. In the latter part of the direction, the Judge referred to lies generally.

214 However, the Judge did not identify to the jury any legitimate use of a finding that the appellant lied to taxation officers. As in the case of discreditable conduct evidence, if the legitimate use is not identified, it makes it more difficult for the jury to exclude an illegitimate use. The legitimate use was in fact to assess the credit of the appellant when she had given evidence. When a defendant gives evidence before the jury, it may be that the legitimate use of a finding of post-offence lies is evident to the jury as being to assess the credit of the witness. However, when evidence given by a defendant at a previous trial is read to the jury, this may not be so evident. It is desirable that the jury be directed explicitly that the legitimate use is in assessing the credit of the defendant in giving that prior evidence. It is unnecessary to consider whether the absence of identification of the legitimate use gave rise to a miscarriage of justice.

215 Although the prosecutor did not submit to the jury that the appellant told specific lies, she referred more generally to “reverse engineering” being undertaken after the offences were committed. This referred primarily to the steps taken by Ryan to raise invoices by Australasian Media to the other entities, Business Activity Statements lodged by Australasian Media reporting sales (implicitly to the other entities) and prospectuses, websites and other documents produced by Ryan in what, on the prosecution case, was a belated attempt retrospectively to support the legitimacy of the purchases shown in the Business Activity Statements. It also referred to the objections lodged by the appellant and statements made by her in connection with the audit and objections.

216 Although not explicitly suggested to the jury by any counsel, there was a very real prospect that the jury may have formed the view that the appellant pretended, after the event, to have had a greater knowledge of and involvement in the activities of her entities and lodgement of the Business Activity Statements than was the case. This might well have been part of an attempt to protect Ryan or to ensure a favourable conclusion to the audit and objections. If so, that reasoning would have entailed that the appellant lied to Mr Rebellato and Ms Li Donni.

217 On a retrial, careful consideration should be given to a direction to the jury in light of the potential for this kind of reasoning. For example, a direction might


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be given emphasising the need for the prosecution to prove the requisite mental state of the appellant at the time that the Business Activity Statements were lodged rather than at a later stage, during the audit or objection process. As observed above, it will always be a matter of judgment whether or not to make explicit a particular reasoning process in order to direct the jury against its dangers. In addition, a more explicit Zoneff direction might be given to avoid the jury reasoning from any later attempted cover up, or protection of Ryan, by the appellant to a conclusion that she must have been involved in the original fraud (assuming the jury finds that there was an original fraud). Whether and to what extent these matters should be addressed will of course depend on the way in which the case is put and argued on any retrial.

Conclusion218 We allow the appeal on ground 1. We set aside the appellant’s convictions

and remit the matter to the District Court for a new trial.

Documents

HILL v THE QUEEN · Web view[2021] SASCA 83 The Court 44 [2021] SASCA 83 The Court 45 On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE MCINTYRE) DCCRM-18-1143 Appellant: