HIGH COURT OF AUSTRALIA
BRENNAN CJ, DAWSON, TOOHEY, McHUGH AND KIRBY JJ
DAVID CHARLES PARKER v. THE QUEEN; F.C. No. 97/013
Criminal law - Stealing
(1997) 186 CLR 494
11 April 1997
Criminal law - Stealing
Criminal law—Stealing—Receipt of funds some of which expressly intended for election campaign purposes—Mixing of funds in common bank account—Money withdrawn for personal purposes—Correctness of conclusion of Court of Criminal Appeal (WA) that moneys held on trust for each donor—Conviction for stealing quashed on basis of misdirection at trial—Whether new trial should have been ordered—Crown proposing significant amendments to indictment at new trial. The Criminal Code (WA), ss 371, 373, 378, 584.
Orders
G R James QC with M J Watson for the appellant (instructed by Dwyer Durack)
J R McKechnie QC with A R Beech for the respondent (instructed by Director of Public Prosecutions, Western Australia)
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal directing that there be a new trial.
3. Enter verdicts of acquittal on counts 1, 3, 4, 5, 6, 7 and 11.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Decision
BRENNAN CJ.
1. The facts giving rise to this appeal are stated by Dawson, Toohey and McHugh JJ. The question for determination is whether, having regard to the terms in which the indictment was framed, the evidence was sufficient to support the conviction of the appellant on those counts on which the jury found him guilty. The answer to that question depends on the sufficiency of the evidence to establish that money withdrawn by the appellant from the "ALP David Parker for Fremantle Campaign" bank account[1] ("the account") on the occasions specified in the respective counts was the property of the persons referred to in those counts. In each count, the property in the money withdrawn was laid in a named donor of money "and others".
2. By virtue of s 373 of The Criminal Code (WA) ("the Code"), money given to a recipient with a direction that it be applied for a given purpose is deemed to be the property of the person giving it ("the donor") until the direction has been complied with. It follows that each contribution that was received by or on behalf of the appellant accompanied by a direction to apply it for a purpose (such as defraying the election expenses of the appellant) is deemed to have been the property of the donor, at least until it was paid into the account. On payment into the account, the actual notes and coins and the proceeds of cheques contributed by donors were converted into credits in that account. When each contribution was paid into the account, it was mixed with other moneys, some of which had been contributed with a direction as to their application and some of which were free funds which the appellant was entitled to apply to his own private use. The credits arising from the several contributions were commingled with one another and with the free funds in the account.
3. Section 371(7) includes in the definition of "property" money, debts and bank credits and "any property in which or for which [property] has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise". The bank credits into which contributions were converted thus became property for the purposes of s 371(2) which reads:
" A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say:-4. Although specific notes, coins, or cheques contributed by a donor would be capable of being stolen or converted[2], a bank credit arising from the paying in of a contribution to an account would not be capable at common law of being stolen or of being converted[3]. But, as s 371(7) brings a bank credit within the definition of "property" for the purposes of s 371, a bank credit must be taken to be capable of fraudulent conversion as money in the form of particular coins, notes or bills of exchange. The drafting of the Code, which was the work of Sir Samuel Griffith, was explained by Wickham J in Orsi v Legal Contribution Trust[4]:
a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
b) An intent to permanently deprive any person who has any special property in the thing or property of such special property;
...
c) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
The term 'special property' includes any charge or lien upon the thing or property in question, and any right arising from or dependent upon holding possession of the thing or property in question, whether by the person entitled to such right or by some other person for his benefit."
" Sir Samuel Griffith, however, in drafting the Code adopted a different approach and in doing so anticipated the ideas now revealed in the English Theft Act 1968. Instead of adapting the older devices ... which provided that dishonest dealing with funds held under direction or received by agents should be deemed to be theft, he preferred the course of declaring that property held under such circumstances should be deemed to be the property of the person beneficially entitled to it, and thus by statute creating a situation where an act of fraudulent conversion would fall within the general statutory definition of stealing: see xiii of Sir Samuel's explanatory letter to the Attorney-General of 29 October 1897. This was achieved by sections of which the equivalent in the Western Australian Code are ss 373, 374 and 375. In the equivalent of s 373 the Royal Commission slightly amended Sir Samuel's draft by inserting the words 'or any other money received in exchange for it or any part thereof'. That Sir Samuel's objective had been achieved received judicial recognition by the Full Court of Queensland in the case of Re a Solicitor[5]."5. In Re a Solicitor, a solicitor to whom money had been given for a specific purpose failed either to apply it to that purpose or, on demand, to return it. The Full Court of the Supreme Court concluded that he had stolen the money. Without reference to the form in which the money had been given or into which it had been changed, Griffith CJ speaking for the Court in reference to the Code then lately enacted said[6]:
"Last year it was not technically stealing, though morally just as bad: now, under the Code it is stealing, and the man who does it, solicitor or not, is liable to be dealt with criminally."6. Similarly, a bank credit (which is a chose in action) can be "converted" if it is dealt with inconsistently with the rights of the owner of the bank credit and, if it be converted with fraudulent intent, the conversion is stealing. The same result was achieved in England by the provisions of the Theft Act 1968 (UK)[7]. A reflection of some of the provisions of that Act can now be seen in s 408C of the Queensland Criminal Code and the concept of converting a bank credit has been judicially recognised[8].
7. Although a bank credit for which other property is exchanged is "property" for the purposes of s 371 and is deemed by s 373 to be owned by the owner of the original property, can ownership of a bank credit survive when it is commingled in an account containing other credits? If the bank credits of several donors are mixed with other credits in a bank account, do the donors' bank credits lose their separate identity in the mass of credits commingled in the account? It would subvert the obvious purpose of ss 371 and 373 and be inconsistent with Re a Solicitor[9] to hold that, by payment of money given subject to a direction into an account in which the recipient kept his own funds, the recipient could escape liability for stealing when he misappropriated the money subject to the direction. But it cannot be stealing for a recipient to withdraw money from his bank account for his own purposes when, although his account contains a bank credit deemed to be owned by another, it continues to contain enough free funds to cover the withdrawal. The "conversion" of which s 371 speaks is conversion of property owned by another or in which another has a "special property" - for example, a charge or lien over the property.
8. In such a situation, the determination of the ownership of the money in the account and the character of the money withdrawn raises a question of mixed fact and law, sometimes technical law. The practice under the Theft Act is for the trial judge to direct the jury as to the facts of which they must be satisfied in order to be satisfied as to the ownership of what has been appropriated in the light of the judge's own determination of the applicable law[10]. That is a practice which ought to be followed in this country. It is the applicable law that has to be determined on this appeal.
9. When a number of contributions by donors are banked to the credit of a bank account which also contains moneys which the holder of the account may use at will, is it possible to attribute a withdrawal effected with the intent to use the money withdrawn at will to any one or more of the donors' contributions? In principle, an affirmative answer must be given. If the bank credits representing the donors' contributions are to be treated as the property of the donors, a withdrawal that diminishes the sum of those bank credits is a conversion of the amount by which they are diminished[11]. The identification of the owner or owners of the amount converted must depend either on the rules of common law or the rules of equity.
The common law rule
10. If the bank credits which are commingled in the account with other bank credits are treated by the Code as property capable of conversion and are deemed to be the property of the donors, the donors' bank credits in the account become simply part of an undifferentiated mass. Then the basic rule is that stated by the Privy Council in The South Australian Insurance Co v Randell[12]:
"In the case of mixture by consent, the identity of the specific property of each who consents is no longer ascertainable, and the mixed property belongs to all in common."11. In the present case, the donors must have been taken to consent to the banking of their contributions. A stricter rule is applied if the person having control of the mass of property wrongfully mixes his property with the property of another. Staughton J, after reviewing the authorities in Indian Oil Corp v Greenstone Shipping SA[13], stated the rule thus:
"where B wrongfully mixes the goods of A with goods of his own, which are substantially of the same nature and quality, and they cannot in practice be separated, the mixture is held in common and A is entitled to receive out of it a quantity equal to that of his goods which went into the mixture, any doubt as to that quantity being resolved in favour of A."12. The same rule is applied if the person controlling the account pays money belonging to others into a bank account which contains free funds - albeit with their consent - and then withdraws money from that account to use at will. The rule was stated by Page Wood V-C in Frith v Cartland[14]:
"If a man has [sterling]1000 of his own in a box on one side, and [sterling]1000 of trust property in the same box on the other side, and then takes out [sterling]500 and applies it for his own purposes, the Court will not allow him to say that that money was taken from the trust fund. The trust must have its [sterling]1000 so long as a sufficient sum remains in the box."
13. This rule does not depend on the man in charge of the box being a trustee. It is a common law - and, one may add, a common sense - rule by which the law gives effect to the common morality of the community.
The equitable rule
14. The equitable rule is to the same effect but it allows the tracing of money into identifiable forms into which it is changed. In Brady v Stapleton[15] Dixon CJ and Fullagar J said that:
" Cases in which one who has in his hands the property of another converts that property into some other form or mixes property of another with his own have been familiar both to courts of law and to courts of equity. Courts of law were concerned with legal ownership, and courts of equity with equitable ownership, but, up to a point, as is well known, the doctrines of the two systems were identical."15. The passage I have cited from Frith v Cartland was cited with approval by Jessel MR in In re Hallett's Estate; Knatchbull v Hallett[16]. In that case[17] Jessel MR, citing earlier authority[18], pointed out that the changing of property belonging to a person from one form into another makes no difference to the right of that person " 'as long as it can be ascertained to be [the product of that person's property], and the right only ceases when the means of ascertainment fail' ". In that event, he said, the rule of Equity "gave you a charge - that if you lent [sterling]1000 of your own and [sterling]1000 trust money on a bond for [sterling]2000, or on a mortgage for [sterling]2000, or on a promissory note for [sterling]2000, Equity could follow it, and create a charge". Dixon CJ and Fullagar J in Brady v Stapleton[19] said that:
"it would be a great mistake to suppose that the great case of Re Hallett's Estate lays down a doctrine peculiar to money. On the contrary, it extends to money paid into a bank account, and so losing its identity as money, a doctrine which equity would never have had the slightest hesitation in applying to money physically existing or to any other kind of personal property to which it could, as a matter of practical possibility, be applied. ... In Re Hallett's Estate[20], the Master of the Rolls says: 'Supposing the trust money was 1000 sovereigns, and the trustee put them into a bag, and by mistake, or accident, or otherwise, dropped a sovereign of his own into the bag. Could anybody suppose that a Judge in Equity would find any difficulty in saying that the cestui que trust has a right to take 1000 sovereigns out of that bag?' " (Emphasis added.)16. It follows that when an account holder makes a withdrawal for his own private purposes from an account containing a mixed fund, the rules of equity and the common law run parallel in attributing the withdrawal to the moneys that can lawfully be so used so far as those moneys extend.
17. In the present case, if the common law rule is applied, the amounts which were credited to the account by the payment in of donors' contributions are untouched by withdrawals by the appellant for his own private purposes (or for any other purpose authorised by a donor) until the funds which the appellant was entitled to use for those purposes were exhausted. At that point, the money remaining to the credit of the account is the property in common of the donors. In terms of s 371 of the Code, the property in the balance of the account was vested in the donors once the appellant had exhausted by withdrawals the amounts which he was lawfully entitled to withdraw.
18. If the equitable rule is applied, a similar result is achieved. The appellant did not receive the donors' contributions by way of gift, in discharge of an obligation or as an amount to be treated as an item in a debtor and creditor account. He banked the contributions as a fiduciary. Therefore the donors, whose money it was deemed to be, had a charge over the account. Once the appellant had withdrawn the amounts he was entitled to withdraw, any further unauthorised withdrawal depleted the donors' charge over - their "special property" in - the account. In accordance with the maxim that equity is equality, the donors would have been entitled to the benefit of the charge in proportion to the amounts of their contributions remaining in the account at the time of an unauthorised withdrawal.
19. Whether the common law or the equitable principle be applied in the present case, the issues of fact are the same. However, although the Code does not exclude the operation of equitable rules in determining whether a person has a special property in a thing or chose in action, it is the common law rule that should be applied in determining whether property in any of the forms mentioned in s 371(7) is the property of a particular person.
20. In the present case, the prosecution contended in the Court of Criminal Appeal that, at the time of the withdrawals specified in the counts on which the appellant was convicted, the donors were co-owners of the money withdrawn. In my opinion, that contention was correct. Their co-ownership was not a consequence of the intentions of the several co-owners that they should acquire property in common in the bank account. It is the legal consequence of the payment into the account of moneys which, by force of s 373, were deemed to be the moneys of the respective donors and which were mixed indistinguishably with other moneys in the account. This analysis was rejected by the Court of Criminal Appeal, apparently on the ground that co-ownership could arise only if each of the respective donors so intended. That was a proposition for which Bacon v Pianta[21] was cited as authority. Bacon v Pianta turned on the construction of a will containing a gift to "The Communist Party of Australia", a voluntary association. The Court held that, as there was no testamentary intention to benefit the members of the Communist Party, they did not take the gift beneficially and the gift failed. In my respectful opinion, that case is irrelevant to the present case.
21. Rejecting the prosecution's submission as to property in the moneys withdrawn without authority, the Court of Criminal Appeal sought to invoke equitable rules as to the tracing of property to identify the owners of the moneys withdrawn without authority. In my respectful opinion, that was an approach that could have identified the donors' special property in the moneys withdrawn, but the Court's conclusion seems to depend on the assumption that each donor's contribution "would be withdrawn rateably in proportion to the amount thereof" irrespective of the purpose for which the withdrawal was made. In my respectful opinion, a withdrawal for a purpose authorised by one donor but not authorised by another should be attributed to the money available for withdrawal for that purpose. A fortiori, a withdrawal for the appellant's private use should be attributed to whatever free funds were available. There was no evidence of the intention of the donors to the contrary. Their Honours were of the opinion that it was an error for the trial judge not to explain "the relevant principles". But, if the English practice be right, it is unnecessary for a trial judge to explain the principles so long as he identifies to the jury the relevant facts on which the issue of a person's property or special property depends.
22. In this case, it is common ground between the parties that, in the case of each of the counts on which the appellant was convicted, there were insufficient free funds available to cover the amount withdrawn by the appellant for his private use. Hence, on each occasion, the withdrawals converted the property of the donors. There was ample evidence on which the jury could find such a conversion with a fraudulent intent. The appellant's submission that the Crown could not prove the fraudulent conversion of funds belonging to any particular donor named in the several counts on which the appellant was convicted misconceives the nature of the property or special property of the donors[22]. There is no common law or equitable rule which would debit a withdrawal against the money contributed by a named donor only if it could not be debited against the moneys contributed by anybody else.
23. The next question is whether the appellant was liable to conviction on counts in the indictment in which property in the money withdrawn was laid in a named donor "and others". A withdrawal that depleted the account balance that was the property of the donors was a withdrawal of money that was the property of all of them. The respective amounts to which the respective donors were severally entitled out of the balance in the account at the time of the withdrawal were irrelevant. There was no occasion to consider questions of distribution, priority or tracing. A balance contributed by particular donors might have been exhausted by a withdrawal at some stage in the account's history so that a balance built up by later contributions was not the property of the earlier donors. However, that possibility can be discarded in relation to each of the counts on which the appellant was convicted. The money contributed by the named donor mentioned in each of those counts had then lately been deposited to the credit of the account and was part of the account balance of non-free funds which were depleted by the particular withdrawal.
24. The indictment was appropriately drawn to reflect that situation. Section 584(6) of the Code reads:
" In an indictment in which it is necessary to mention any co-owners of property it is sufficient to name one of such persons, adding the words 'and another' or 'and others', as the case may be, and to state that the property belonged to the person so named and another or others, as the case may be."25. In each count, the money that was the property of "the person so named" was part of the non-free funds against which the impugned withdrawal was made.
26. At the trial, the issue of the persons whose property was converted did not loom large. Little attention was given to it by the parties. The trial judge gave the jury these directions:
" So the law is that if you take 'save the whales' collection money from the tin when obliged to take it to the 'save the whales' office, you steal it from the providers of the money. That's all those people who have made donations by putting their money in the tin. The first question you must decide is whether the amounts making up the donations total - that's the items 1 to 64, the $123,000, admittedly paid by donors - whether that money in each case was given with a direction."27. Later, his Honour said:
" If the collector takes the money from the tin for himself or herself, there is a stealing, and that stealing is from you and all the others who gave. That is why the indictment is set out in the way that it is. It mentions one of the donors 'and others'."28. As earlier noted, the Court of Criminal Appeal, believing it necessary that more detailed directions be given, found fault with this aspect of the summing up. For that and other reasons, the convictions were set aside and a new trial ordered. In my opinion, the summing up by the trial judge with reference to ownership of the money withdrawn was, in the circumstances of the case, sufficient to bring home to the jury that, if the donations which aggregated $123,000 were subject to directions, they would be the property of the persons referred to in the several counts in the indictment. It may have been desirable - much would depend on an analysis of the balances in the account - to add a direction as to ownership in the event that any of the donors were found not to have given a direction. However that may be, a retrial would not result in the prosecution of a case on retrial different from that which the appellant had to meet at his trial. I would therefore dismiss the appeal. Whether the appellant, who has already served the sentence imposed, should be retried is a question for consideration by the Director of Public Prosecutions.
DAWSON, TOOHEY AND McHUGH JJ.
29. The appellant was indicted under The Criminal Code (WA) ("the Code") on 11 counts of stealing various sums of money. He was convicted on seven counts. His appeal against conviction was allowed by the Court of Criminal Appeal of Western Australia (Malcolm CJ, Ipp and Steytler JJ) which directed a new trial on the seven charges. This appeal is brought against the order for a new trial.
30. By his notice of appeal the appellant seeks to have the order for a new trial quashed and verdicts of acquittal entered. He had, at the time of the appeal to the Court of Criminal Appeal, served the custodial portion of the sentences of imprisonment imposed upon him. While the appellant does raise matters bearing upon the exercise of the discretion involved in determining whether or not to order a new trial, the principal aim of the appeal is to show that, on the evidence, it was not open to the jury or to the Court of Criminal Appeal to find that any offence had been committed in respect of any of the moneys concerned. It is principally on that basis that, it is urged, verdicts of acquittal should be entered.
The indictment
31. The indictment against the appellant was in the following terms:
"Code Sec a)(b) (1) On or about 15 January 1986 at Perth, DAVID CHARLES PARKER stole $9,000 the property of AERODATA HOLDINGS PTY LTD AND OTHERS.
Code Sec b)(b) (2) AND FURTHER that on or about 3 February 1986 at Perth, DAVID CHARLES PARKER stole $600 the property of SABEMO (WA) PTY LTD AND OTHERS.
Code Sec c)(b) (3) AND FURTHER that on or about 7 February 1986 at Perth, DAVID CHARLES PARKER stole $3,941.21 the property of CARR BOYD MINERALS LTD AND OTHERS.
Code Sec d)(b) (4) AND FURTHER that on or about 12 February 1986 at Perth, DAVID CHARLES PARKER stole $4,000 the property of INTERSTRUCT PTY LTD AND OTHERS.
Code Sec e)(b) (5) AND FURTHER that on or about 19 February 1986 at Perth, DAVID CHARLES PARKER stole $13,539.46 the property of SIR LAWRENCE CHARLES BRODIE-HALL AND OTHERS.
Code Sec f)(b) (6) AND FURTHER that on or about 12 May 1986 at Perth, DAVID CHARLES PARKER stole $1,040 the property of AUSEAN INTERNATIONAL PTY LTD AND OTHERS.
Code Sec g)(b) (7) AND FURTHER that on or about 25 June 1986 at Perth, DAVID CHARLES PARKER stole $560 the property of DEREK WILLIAM BIBBY AND OTHERS.
Code Sec h)(b) (8) AND FURTHER that on or about 4 March 1988 at Perth, DAVID CHARLES PARKER stole $8,509.42 the property of HANCOCK FAMILY MEMORIAL FOUNDATION LIMITED, AND OTHERS.
Code Sec i)(b) (9) AND FURTHER that on or about 23 February 1989 at Perth, DAVID CHARLES PARKER stole $670 the property of BUNNINGS LTD AND OTHERS.
Code Sec j)(b) (10) AND FURTHER that on or about 31 March 1989 at Perth, DAVID CHARLES PARKER stole $2,781.20 the property of PMR QUARRIES PTY LTD trading as WA LIMESTONE AND OTHERS.
Code Sec k)(b) (11) AND FURTHER that on or about 14 April 1989 at Perth, DAVID CHARLES PARKER stole $13,337 the property of CLOUGH LTD AND OTHERS."
32. The counts on which the appellant was convicted were counts 1, 3, 4, 5, 6, 7 and 11. He was acquitted on counts 2, 8, 9 and 10.
The Code
33. To appreciate the appellant's case, some examination of the facts is unavoidable. But first it is, we think, helpful to identify the relevant provisions of the Code. The operation of those provisions is critical to the outcome of the appeal.
34. "Stealing" is defined in s 371 of the Code which reads:
"(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say:-
a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
...
f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
...
(7) In this section, "property" includes any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise."
35. Because there was an issue as to the identity of the owner of the money said to have been stolen in each case, the Crown relied on s 373 which provides:
" When a person receives, either alone or jointly with another person, any money ... with a direction ... that such money or any part thereof, or any other money received in exchange for it, or any part thereof, ... shall be applied to any purpose or paid to any person specified in the direction, such money ... [is] deemed to be the property of the person from whom the money ... was received, until the direction has been complied with:
Provided that if the person receiving the money ... and the person from whom he receives it ordinarily deal with each other on such terms that in the absence of any special direction all money paid to the former on account of the latter would be properly treated as an item in a debtor and creditor account between them, the former cannot be charged with stealing the money ... unless the direction is in writing."
36. Section 378(9)(b), the provision identified against each charge in the indictment, specifies a liability to imprisonment for 10 years if the thing stolen is money received with a direction.
The circumstances giving rise to the charges
37. With those provisions in mind we turn to the circumstances giving rise to the charges against the appellant. In what follows we have drawn heavily on the judgment of Malcolm CJ in an earlier appeal from committal proceedings against the appellant[23].
38. In 1985 the appellant was the sitting member of the Legislative Assembly for the seat of Fremantle. He was a successful candidate for that seat at the State elections in 1986 and 1989 and was also at all relevant times a Minister of the Crown. Some years earlier, he had opened an account with the Commonwealth Bank styled the "ALP David Parker for Fremantle Campaign" account. For the purposes of the two elections, donations were sought by him and on his behalf and donations were volunteered to him. These donations were paid into the campaign account and, at the outset, it was the Crown case that all of the moneys paid into the account were received by the appellant with a direction that they be applied for election campaign purposes. The 11 charges concerned payments out of the account which were alleged to have been stolen because they were not made in accordance with that direction.
39. Counts 1 to 7 related to the use of funds received in the period covered by the 1986 election. Counts 8 to 11 related to the period covered by the 1989 election. It was originally the Crown case that in respect of each charge the money was not given to the appellant for his own use but with a direction that the money be used for election campaign purposes. Hence the relevance of s 373. Each direction was said to have been given either in express terms or with a tacit direction to be inferred from all the circumstances. It is not in dispute that the appellant withdrew some money from the account for his own purposes but he challenged that any of that money was received with a relevant direction. It was also part of the defence case that the directions upon which the Crown relied extended to "general political purposes" and that, in any event, "election campaign purposes" had a wide meaning which embraced general political purposes, and further that it was difficult to draw the line between political and private purposes.
The Crown case as it reached the jury
40. When, at the end of the appellant's trial, the Crown addressed the jury, counsel used language which, in the words of Ipp J, "to a degree, represented an alteration of course". Counsel said:
"In this case, with over 60 donations, the evidence in respect of the direction in every case is not identical. We say that the proven direction in almost every single case would certainly not encompass the uses to which the accused put the money. In respect of most donations the direction on the evidence clearly was that the funds were to go to meet the campaign election costs for the coming election or re-election of David Parker and in some cases where the cheques were made out to the ALP, the direction may have encompassed campaign costs of the ALP in the coming election. They certainly didn't encompass him using the money to invest in options or anything like that." 41. Ipp J pointed out that counsel "was placing emphasis on the directionsnot encompassing 'the uses to which the [appellant] put the money' ". As his Honour observed, that was all very well so long as the jury understood that it was essential for the Crown to prove that the direction in question unambiguously identified the purpose to which the money was to be applied. In Ipp J's words: "The offence would not be proved if the accused put the money to uses not encompassed by an ambiguous or vague direction." Furthermore, the statement that the "proven direction in almost every single case would certainly not encompass the uses to which the accused put the money" carried a concession that the evidence did not support the Crown case on every direction. The concession was emphasised by the statement that in some cases the direction may have "encompassed" campaign costs of the ALP.
42. In the light of what Ipp J described as "the somewhat shifting and confusing position of the Crown", a clear instruction to the jury was needed as to what was required to establish a direction in terms of s 373. The Court of Criminal Appeal held that the trial judge had not adequately instructed the jury in this regard and, accordingly, the convictions must be quashed. However, for reasons which lie at the heart of this appeal, the Court held that on the evidence it was open for the appellant to have been convicted of the offences charged. In all the circumstances, a new trial was held to be appropriate.
43. To understand why the Court of Criminal Appeal took the view it did, it is necessary to look more closely at the facts. The campaign account was opened in November 1979 and was operated until 1990. As from 26 November 1985 the signatories to the account were the appellant, Lucinda Allen and John Row. The account was classified by the bank as a "society" account, that is, one which was operated for non-profit organisations.
44. In late 1985 the appellant enlisted the support of Mr Row, who was a superannuation fund manager, in raising funds for the forthcoming election. Mr Row agreed to write or sign what became known as "begging letters", that is, letters seeking donations. Effectively, Mr Row was the appellant's finance manager for the 1986 campaign. Ms Allen was a ministerial officer who worked in the appellant's Fremantle office. She prepared a list of potential donors which she thought the appellant added names to or deleted names from. The appellant was involved in drafting "begging letters". The text was sent to Mr Row, along with a list of addressees. Mr Row then produced letters, signed them and had them sent out. This procedure was followed twice in regard to the 1986 election and once after the election. Between 100 and 150 letters were sent in November 1985 and something less than that number in January 1986. The letters were on a letterhead styled "Campaign to Re-elect David Parker MLA" and were signed by Mr Row as Finance Committee Director. A post-box was rented for the purpose of each campaign. The same procedure was followed in regard to the 1989 election, though only one standard form of letter was sent out on that occasion.
45. The standard form of receipt used by the appellant for money received in response to the letters was endorsed "Campaign to Re-elect David Parker". Thank you letters or letters of acknowledgment were sent out, sometimes signed by the appellant personally. Records were kept of all letters sent out. Receipt books were kept and given to the appellant at the end of the campaign. From time to time Ms Allen gave the appellant a list of donors. There was evidence from the appellant's staff that no funds belonging to the appellant were credited to the account and that the account was only used to receive moneys raised as donations to campaign funds. There was evidence from Ms Allen that some cheques, which were made out to the Australian Labor Party and did not specifically refer to the campaign, were sent to the Party "unless there was a clear intent that they were meant for" the campaign account. All bank statements relating to the campaign account were posted to the appellant; the staff did not open them. The cheques drawn on the campaign account were signed either by the appellant or Ms Allen.
46. The case against the appellant was that the moneys he withdrew from the account for his own purposes were withdrawn with the intent to permanently deprive the donors of their property or part of it[24] or that the withdrawals constituted a taking or conversion of the money of the donors with the intent to use that money at his will[25].
The order for a new trial
47. As mentioned earlier, the Court of Criminal Appeal concluded that there had been a serious misdirection on the part of the trial judge. Nevertheless the Court ordered a new trial. Malcolm CJ did so on the footing that "the admissible evidence given at the original trial was sufficiently cogent to justify a conviction had the jury been adequately directed". The Chief Justice was in general agreement with Ipp J's assessment of the evidence. But it must also be noted, because this is the gravamen of the appeal, that in the Chief Justice's opinion:
"the principles applicable to the appropriation of deposits and withdrawals on trust moneys were applicable in the manner described by Ipp J in his reasons and, in particular, the principles stated in Re Hallett's Estate (1880) 13 Ch D 696 at 727 per Jessel MR and on a similar basis to that applied in Re British Red Cross Balkan Fund [1914] 2 Ch 419." 48. Steytler J agreed generally with the reasons of Malcolm CJ and Ipp J.
49. Ipp J examined in detail the 64 payments made into the account. Although the indictment alleged 11 counts of stealing, his Honour considered it necessary to analyse the 64 payments because the circumstances surrounding each payment threw light on the money in the campaign account. And the dates on which money was paid into the fund and the dates on which payments were made out of the fund were relevant to whether the Crown had made good its case with respect to each count.
50. It is unnecessary, for the purposes of determining this appeal, to follow his Honour's analysis of the various transactions involving the campaign account. The analysis reveals the difficulties confronting the jury and the need for a very clear direction from the trial judge as to how they were to approach their task.
51. In each count in the indictment the money was said to be the property of an identified donor "and others". As Ipp J rightly pointed out:
"Accordingly, for Parker to be found guilty of any particular count, the prosecution had to establish that at least part of the moneys, the subject of the count in question, was the property of the nominated donor. In other words, it was essential for the Crown to establish its case in accordance with the particulars contained within the indictment".
52. Section 584(15) of the Code permits an indictment to describe property as belonging to one or other of named persons, without specifying which, if it is uncertain to which of two or more persons the property belonged. But the Crown did not rely upon this provision at trial.
53. While the Crown contended that each cheque from a donor was paid subject to a direction within s 373, the circumstances under which the payments were made were not uniform. Some cheques were accompanied by letters showing clearly that they were for the appellant's re-election campaign. Some cheques were drawn in favour of the campaign. From the appellant's records it could be concluded that, in some cases, the person paying the cheque had received a "begging letter". In a few cases the payment was not clearly linked to such a letter. This had particular significance in the case of two donations of $20,000 and $30,000, made by Hancock Family Memorial Foundation Limited and Hancock Prospecting Pty Ltd respectively. It was therefore possible that the jury could find that some payments were made with the direction alleged but be not so satisfied in other cases. Ipp J described the evidence relating to the system employed by the appellant as "not given in coherent form and ... confusing". The appellant was acquitted on four of the counts and, in respect of counts 8, 9 and 10, the jury seem not to have been satisfied that the donation of $20,000, just mentioned, was made with the relevant direction.
54. The charges against the appellant were brought when it was discovered that he had drawn cheques against the campaign account for personal and family purposes, having nothing to do with his re-election campaign. It is unnecessary to detail those purposes; they are not in issue. But the matter is further complicated because it was common ground that some withdrawals were made from the campaign account in accordance with the directions under which they were paid. It followed that account had to be taken of the withdrawals accepted as legitimate in deciding whether, in regard to each count, the nominated donor was the owner of the money alleged to have been stolen, or at any rate the owner of part of the money.
Co-ownership
55. Before the Court of Criminal Appeal the Crown argued that the donors were joint owners of the funds in the campaign account. Reliance was placed on s 584(6) of the Code which reads:
"In an indictment in which it is necessary to mention any co-owners of property it is sufficient to name one of such persons, adding the words 'and another' or 'and others', as the case may be, and to state that the property belonged to the person so named and another or others, as the case may be."
56. The argument of the Crown was that the donors were co-owners of the pool constituted by the funds in the campaign account and that each donor had an interest in each sum of money withdrawn in accordance with his or her proportionate share. Proceeding along these lines, it was contended that each donor nominated in the 11 counts was a co-owner of the pool and that therefore each withdrawal was a withdrawal of some money that belonged to the nominated donor.
57. The Court of Criminal Appeal rejected this argument, and rightly so. It was not relied upon at the trial of the appellant. In any event co-ownership of the sort argued on appeal would require evidence of the intention of the donors to this effect and this was not forthcoming[26]. Nothing in s 373 or in any other section of the Code would advance the Crown's case in this regard.
Equitable principles
58. However, Ipp J did find in s 373 "the key to the ... ownership of the funds withdrawn from the campaign account." His Honour proceeded to elaborate the point, by reference to principles which had not been canvassed before the Court of Criminal Appeal and which, in our view, were inapplicable to the charges against the appellant. Because it is this approach which loomed large in the decision of the Court of Criminal Appeal not to direct an acquittal on the charges, it is as well to set out at some length this part of the judgment of Ipp J. Referring to s 373, his Honour said:
"If, by that section, moneys deposited in the campaign account are to be deemed the property of the donors thereof, the consequential effect, in my view, is that the moneys are to be regarded as trust moneys in the hands of the recipient. The section, by deeming the moneys to be the property of 'the person' who receives the moneys under the circumstances defined, in effect imposes a statutory trust on those moneys in the hands of the recipient, and those moneys remain impressed with the trust until the direction, subject to which they were received, has been complied with. In particular, the moneys remain trust moneys even though they have been deposited in a bank account: cf Black v S Freedman & Co (1910) 12 CLR 105 at 110.
In the premises, in my view, as moneys received by a person subject to a direction within the meaning of s 373 are, in effect, deemed to be trust moneys, the rules governing the appropriation of deposits and withdrawals of such moneys are to be ascertained by the general principles applicable according to the general law relating to trusts. Two main questions arise concerning appropriation of moneys in the campaign account. Firstly, how were moneys not subject to s 373 directions (ie moneys owned by Parker) to be treated when withdrawals from the campaign account were made? Secondly, how were moneys subject to s 373 directions, to be treated as between the donors themselves, when withdrawals were made?
As regards the first question, the rule is that wherever an act 'can be done rightfully, (a fiduciary) is not allowed to say, against the person entitled to the property or the right, that he has done it wrongfully': Re Hallett's Estate (1880) 13 Ch D 696 per Jessel MR (at 727). ...
Jessel MR [also] turned to the mingling of trust moneys with money of the trustee's own and said:
'Suppose he has a hundred sovereigns in a bag, and he adds to them another hundred sovereigns of his own, so that they are commingled in such a way that they cannot be distinguished, and the next day he draws out for his own purposes one hundred pounds, is it tolerable for anybody to allege that what he drew out was the first one hundred pounds, the trust money, and that he misappropriated it, and left his own one hundred pounds in the bag? It is obvious he must have taken away that which he had a right to take away, his own one hundred pounds.'
Accordingly, in my view, where a fund contains deposits of the recipient's own moneys, as well as the moneys of persons paying under a direction within the meaning of s 373, withdrawals are to be treated as representing, firstly, the moneys of the recipient and the moneys of the donors are to be treated as withdrawn only after the exhaustion of the recipient's own money.
I turn now to the question as to how moneys subject to s 373 directions were to be treated as between the donors themselves, when withdrawals were made.
Under the rule in Clayton's Case [1816] 1 Mer 572, as between beneficiaries whose money the fiduciary has paid into his own account at the bank, the first sum paid in will be held to have been first drawn out: Hodges v Kovacs Estate Agency Pty Ltd [1961] WAR 19 at 22; The Mecca [1897] AC 286 at 290. ... In the present case it was ... common cause that the rule in Clayton's Case had no application.
The donors to the campaign fund were intending to be contributors to a global mixed fund for political purposes. It was obvious that there would be a large number of contributors at varying times in varying amounts; it would not be unusual for different persons to receive donations on the basis that they would transmit the moneys to the persons administering the fund. In my view the only reasonably just and practicable way of treating directed donations is to regard each as being made on the basis that it would be withdrawn rateably in proportion to the amount thereof, and the balance of the directed funds retained in the campaign account would be held rateably in proportion to each donation made. In my view it was implicit in each such donation that it was made on such a basis. A similar conclusion was arrived at in Re British Red Cross Balkan Fund [[1914] 2 Ch 419] where it was held that donors to a special global fund for charitable purposes were, upon cessation of the purpose for which the fund was created, entitled to a rateable proportion of their subscriptions. See also Sinclair v Brougham [1914] AC 398."
59. It must be said immediately that the Court of Criminal Appeal erred in treating s 373 as deeming money to which it applies to be trust money. There is nothing in the section or elsewhere in the Code to support that conclusion. The deeming language of the section is at odds with the idea of a trust. This was not the Crown case at trial or on appeal to the Court of Criminal Appeal and the Director of Public Prosecutions did not seek to support the concept before this Court. It must also be said that the Court of Criminal Appeal erred in its consequent introduction of equitable principles to resolve questions which turned on the operation of the Code. That is not to say that guidance as to the meaning of particular words and phrases in the Code may not be gained by reference to the common law (which, in this context, would include equity) if the importation of those meanings is not excluded by the Code[27]. But that is done in order to throw light on the meaning of a particular word or phrase; it does not involve the introduction of some principle of the common law or equity in order to determine the operation of the Code.
60. In Stephens v The Queen[28] the applicant had been convicted under s 1(1)(a) of the Criminal Law Amendment Act 1902 (SA) which made it an offence for a person, entrusted with property, to fraudulently convert the property to his own use or that of any other person. Gibbs J, with whom Jacobs and Murphy JJ agreed, said that while there could only be an offence under the provision if there was a fiduciary element in the relationship of the accused to the property in question, "it does not seem to me necessary that either the jury or the Court of Criminal Appeal should inquire whether the accused received the property in circumstances giving rise to a trust."[29] Gibbs J added[30]:
"Such a construction would lead to undesirable complexity in the administration of the criminal law and is not made necessary by the words of the section."
61. Stephens was referred to by the Court of Appeal in England in R v Clowes (No 2)31. In delivering the judgment of the Court, Watkins LJ referred to a passage in the judgment of Jacobs J in Stephens in which he said that once it was established that the moneys the subject of the charge were paid pursuant to a written contract, the question of whether there was an "entrusting" was a question of law for the judge. Jacobs J added[32]:
"However, this does not mean that guilt or innocence turned substantially upon the construction of an obscurely worded instrument. The real question for the jury was whether the applicant had fraudulently converted the money."62. Towards the end of his judgment[33], Watkins LJ referred to "an interesting argument based on the decision in Re Hallett's Estate" advanced on behalf of one of the appellants. His Lordship said that such cases "are concerned with tracing assets and the enforcement of beneficiaries and interests", adding that "[i]n the present case the court is concerned not with tracing assets and the enforcement of beneficial interests but with the meaning of s 5(1)" of the Theft Act 1968 (UK).
63. The Criminal Code Act 1913 (WA), which establishes the Code as a schedule thereto, provides in s 4:
"No person shall be liable to be tried or punished in Western Australia as for an indictable offence, except under the express provisions of the Code, or some other statute law of Western Australia".
64. It is thus to the Code we must look to determine whether, on the evidence adduced at trial, the appellant could have been convicted on counts 1, 3, 4, 5, 6, 7 or 11. This involves particular consideration of s 373 because of the change of character once a cheque was paid into the campaign account.
Section 373
65. To commit the offence of stealing, a person must fraudulently take something or fraudulently convert it to his or her own use. There was no asportation in the present case; it was a charge of fraudulent conversion that the appellant had to meet. And on each count he was charged with stealing a specific sum, being a sum withdrawn by cheque on the campaign account.
66. Applying s 373 to the present case, the section provides that if the appellant received "money", with a direction that the money be applied to a particular purpose, the money is "deemed" to be the property of the person from whom it was received until the direction has been complied with[34]. In the course of argument a question arose as to whether the words "such money" towards the end of the first paragraph of s 373 extend not only to the cheque received with a direction, but also to the credit in the account consequent upon deposit of the cheque. It is true that, once deposited, the "money" represented by the cheque becomes a chose in action against the bank in which it is deposited. But Ch XXXVI - Stealing, in which these sections lie, is not confined to situations of asportation; it is very much concerned with fraudulent conversion. The observations of Wickham J in Orsi v Legal Contribution Trust[35] are particularly apposite at this point. Contrasting the position at common law, his Honour said:
" Sir Samuel Griffith, however, in drafting the Code adopted a different approach and in doing so anticipated the ideas now revealed in the English Theft Act 1968. Instead of adapting the older devices or following the English Draft Code of 1879 (which never became law), and which provided that dishonest dealing with funds held under direction or received by agents should be deemed to be theft, he preferred the course of declaring that property held under such circumstances should be deemed to be the property of the person beneficially entitled to it, and thus by statute creating a situation where an act of fraudulent conversion would fall within the general statutory definition of stealing: see xiii of Sir Samuel's explanatory letter to the Attorney-General of 29 October 1897. This was achieved by sections of which the equivalent in the Western Australian Code are ss 373, 374 and 375. In the equivalent of s 373 the Royal Commission slightly amended Sir Samuel's draft by inserting the words 'or any other money received in exchange for it or any part thereof'."
67. The deeming aspect of s 373 is clearly intended to ensure that, for the offence of stealing, where a person receives money in the circumstances to which the section refers, the money notionally remains the property of the person from whom it was received until the direction has been complied with. The result is that a person who fraudulently converts the money to his own use commits the offence of stealing[36]. In that regard the definition of money in s 1 is inclusive and extends to the form the money received takes when deposited in an account. The money received does not cease to be "such money" in the terms of s 373 simply because it has undergone a conversion. The adjective "such" identifies the money to which the opening words of the section refer but it is not confined to the money in the form in which it is received. To give the word or the provision in general such a restricted meaning would have odd results. It would mean that if a person received only one cheque, though subject to a direction, and paid that cheque into an account, the withdrawal of the money which the cheque represented and its misappropriation would not constitute the offence of stealing. That is a conclusion which, in the language of the Code, is unacceptable.
68. To say that, however, is to say no more than that each donation, subject to a direction, remained the property of the donor until the direction was complied with. The problem for the Crown remains, that is, of showing that each withdrawal the subject of a charge was a withdrawal of money deposited with a direction. This cannot be done by the application of equitable doctrines for which no basis can be found in the Code. The Court of Criminal Appeal erred in its conclusion that principles of tracing were available to determine whether money paid out of the account was the money of a particular donor.
69. Nevertheless, if it appeared that, on the application of the relevant provisions of the Code, in each case the withdrawal was of money that belonged to the nominated donor, or the nominated donor and others, and was received with a direction that it be used for campaign purposes and that the withdrawal was not in accordance with the direction, there would be no justification for directing an acquittal except by reference to discretionary considerations. Unless those considerations were compelling, the order for a new trial would not be inappropriate.
70. Counsel for the appellant prepared a schedule with a view to showing that, in respect of each count on which the appellant was convicted, it was not possible to show that the money paid out belonged to a particular donor or donors. In that event, it was said, there was no evidence on which the appellant could be convicted. The schedule also aimed to show that at the time of each withdrawal there was money in the account from sources additional to the particular donor so that it was not possible to say of any withdrawal that it was the money or even part of the money of the named donor "and others". The Crown did not accept the schedule but did not take its stand on that aspect. Rather, the Crown's position was that, while accepting that the Court of Criminal Appeal erred in treating s 373 as creating a trust, the application of equitable principles "is not necessarily wrong and has much to commend it". On a retrial, the Crown would contend that the campaign account represented a common fund but that donors were owners of different parts of the fund according to the directions that were given. Against that background the Crown would rely upon principles of tracing so as to identify a relationship between money paid into the account and money paid out.
71. The reasons why we find it unnecessary to go to the particular examples in the schedule prepared on behalf of the appellant are twofold. The first is that it is apparent that on a retrial the appellant would be called upon to meet a quite different case to that presented against him at trial. That would be unfair, particularly having regard to the sentence already served. In our view these circumstances justify this Court entering verdicts of acquittal, not by reference to what might be called discretionary considerations but by reason of the unfairness of the criminal process that would otherwise follow. An attempt might be made to strengthen the Crown's position by relying upon s 584(15) of the Code which reads:
"In an indictment for an offence respecting any property, if it is uncertain to which of 2 or more persons the property belonged at the time when the offence was committed, the property may be described as being the property of one or other of such persons, naming each of them, but without specifying which of them; and the indictment will be sustained, so far as regards the allegation of ownership, upon proof that at the time when the offence was committed the property belonged to one or other of such persons without ascertaining which of them."
72. But that would require a substantial amendment to the indictment. In all the circumstances, particularly since the term of the sentence has now expired, the Crown accepted that an order for a new trial could not be justified for that purpose. The second reason is that the application of tracing principles in this context finds no support in the Code so that the proposed exercise is unjustified in any event.
73. There are other considerations that militate against a new trial[37]. They were considered by the Court of Criminal Appeal though not thought sufficient to preclude a new trial. In light of the reasons in this judgment, we need place no reliance on those considerations, though the length of time that has elapsed since the events giving rise to the charges and the fact that the appellant has served the custodial part of his sentence tell against a new trial.
74. The appellant could have been charged with stealing the property of one or other of named persons, without specifying which[38]. That was not done. He could perhaps (though not realistically) have been charged with stealing the property of persons unknown[39]. However, that was not the Crown case. The Crown should not be permitted to present a quite different case through a new trial. We should make it clear that, in allowing the appeal, we are not to be taken as saying that the Crown could not, on any view of the matter, make out a case of stealing in respect of any of the seven counts. Whether that could be done by carrying out the sort of exercise represented by the appellant's schedule or by some other analysis of the account is something which it is unnecessary to consider. The trial miscarried, the Court of Criminal Appeal erred in its use of equitable principles and it would be unfair to the appellant to order a new trial in which he would have to meet a significantly different case to that the jury were asked to consider.
(1) The failure to include a provision to make it completely clear that the "money" remains "such money" after it is converted from a donor's cheque to a depositor's chose in action against a bank; and
(2) The failure to enact a provision covering the mingling of directed money with money which is subject to different directions, to no direction or which belongs to other persons or to the bank account owner. Upon one view, s 373, in its terms, was not intended to cover such a case of pooling, in which it is impossible to identify separately the "property of the person from whom the money ... was received". It is possible that pooling is covered by s 373 but only so long as the money is clearly identifiable, held in joint ownership and all subject to the same direction(s). But this possibility is inapplicable to the present facts. Plainly, the ambiguity and uncertainty inherent in the Code's provisions should be removed.
127. An allegation of co-ownership might have been the simple and sensible way to approach this matter. But in this case, it runs into two difficulties. The first is that it was not the way the Crown's case was presented at trial. It is not competent, retrospectively, to endeavour to impose such a re-interpretation upon the facts. Proof of co-ownership, if disputed, would have required proof of the intention of the alleged co-owners[78]. This was not alleged, still less proved, in the trial. Secondly, and in any case, such evidence as was proved suggested that there might have been difficulties in the way of establishing co-ownership in the facts of this case. Such difficulties would have arisen from the different "directions" that existed with some payments and the lack of "directions" with others.
128. These basic problems eventually led the Crown in this Court, while rejecting the trust which Ipp J had postulated in the Court of Criminal Appeal, to attempt to support the invocation of the equitable doctrines which his Honour applied, by analogy, to the moneys when deposited and mingled in the bank account. With all respect, that solution must also be rejected:
a) It was never advanced by the Crown at the trial or in the Court of Criminal Appeal. The most that the Crown had argued, to resolve the way in which the sections of the Code should be interpreted to accommodate expenditure from a mixed fund which included both directed and undirected moneys, was that the general presumption of innocence would support the inference that a person, accused of expending moneys contrary to a direction, would be taken, to the full extent available, to be expending undirected moneys out of the mixed fund before expending the moneys subject to direction. This Court was informed that no argument was advanced before the Court of Criminal Appeal that the equitable doctrine developed in civil litigation by such decisions as Re Hallett's Estate[79] applied, by analogy, to the Code. To introduce such notions for the first time in the opinions of that Court, without affording an opportunity to the parties, including the accused, to explore them at trial and in appellate argument constituted, arguably, a procedural unfairness to the appellant which this Court could not condone.
b) In any case, the duty of the Court of Criminal Appeal was to construe the Code. The Code makes no mention, directly or indirectly, of the incorporation of the equitable doctrine relied upon. The notion could not therefore be introduced to give meaning to the language of the Code. On the contrary, the principles governing the construction of the Code, by reference to its own terms and to the exclusion of other and earlier legal rules, would prima facie require that such analogies from equitable principle should have no operation without express foundation in the language of the Code. The reconciliation of principles of statute law and general law is a large topic[80]. But it is, on the face of things, unpersuasive to suggest that a Code, which makes no mention of the equitable principles invoked, should be read as subject to equitable doctrines developed for quite different, non-criminal, purposes.
c) The introduction of those doctrines to this case rested upon the further hypothesis, expressed by Ipp J, that the Code postulated the creation of a statutory trust for the moneys received. There is no mention in the Code of such a trust. Indeed, the provisions of the Code are quite inconsistent with such a trust[81]. The foundation for the application of the equitable presumption to the operation of s 373 of the Code is therefore knocked away.
129. Because this was no minor matter for the decision of the Court of Criminal Appeal, a question is thus presented as to whether its rejection (as I would favour) destroys the basis upon which that Court ultimately concluded that the remaining counts of the indictment could be made good at a second trial because of an implied statutory trust over the entirety of the moneys deposited in the special bank account and the presumption that such moneys would be received and then expended in accordance with the rules developed by equity. Once this foundation for the suggested viability of the counts of the indictment is rejected, and the alternative possibility of co-ownership at common law is abandoned because of the way the Crown presented its case at the first trial, the conclusion of the Court of Criminal Appeal that the Crown could make out the remaining counts at a second trial becomes unsustainable. The exercise of discretion in ordering a second trial is undermined, at least upon the grounds which the Court of Criminal Appeal adopted.
Conclusion: enter verdicts of acquittal
130. The foregoing flaws in the principles which affected the exercise by the Court of Criminal Appeal of its discretion to order a retrial require that that Court's orders be set aside. This Court must then either return the matter to the Court of Criminal Appeal for it to exercise the discretion anew, freed from the erroneous consideration that a statutory trust was created and that equitable principles were incorporated into the Code. Alternatively, this Court must proceed to exercise its own discretion, excising these incorrect and irrelevant considerations.
131. Having regard to the lengthy saga of these proceedings; the significant lapse of time since the events, the subject of the remaining charges, occurred; the completion by the appellant of the custodial part of his sentence; and the unchallenged rejection of the Crown's appeal against sentence, I have no doubt that the proper course is for this Court to exercise the discretion which miscarried in the Court of Criminal Appeal[82].
132. When I turn to reconsider the discretionary matters by reference to the applicable principles, the proper order for this Court to make is that verdicts of acquittal be entered.
133. The first trial went seriously wrong in the several respects correctly identified by the Court of Criminal Appeal. It could not be expected that a second trial would take place, probably until 1998, a decade after most of the offences charged were alleged to have occurred. I take into account the considerations which weighed with the Judges of the Court of Criminal Appeal. Dishonesty on the part of holders of public office has a tendency to corrode the community's confidence in its institutions. Furthermore, the funds diverted to private use are expressed in 1986 and 1989 money terms and would be greater if stated in today's terms. But there is little point in requiring a retrial where there is virtually no possibility of returning the appellant to prison. Such a trial would be had simply to vindicate the Crown's charges. This would not be the correct course where, if the Crown were to succeed, it would, on its own case, need significantly to change the way in which it presented the matter at the first trial. It is an established appellate principle that a second trial should be refused where the first trial miscarried by reason of the conduct of the Crown or where a second trial is needed to allow the Crown a further chance to present a different case[83].
134. Given the general objectives of ss 373 and 378 of the Code, it is clear enough that conduct such as was alleged against the appellant should fall within the Code. Defences relying on the identification of particular money and the framing of the indictment do not affect the merits of the defences upon which the appellant relied at his trial. These were that he had not received the funds with any relevant directions or that the directions were vague and had given him discretion or that the payments of an apparently private character were made within that discretion. By inference, these defences were rejected by the jury in relation to most of the charges of the indictment. Section 373 of the Code is silent as to how directed funds from several sources (subject possibly to differing and even inconsistent directions) are to be treated once mixed by the recipient with funds from other sources, directed, undirected and private. It would, in my view, be desirable that the Code be amended to cover, in clear terms, the problem now drawn to notice. If commercial crime is increasing, it is undesirable that the Code should be unclear in this matter for it is inevitable that cases presenting the same problems will recur. It is also undesirable that technical legal issues (particularly outside the Code) should predominate: effectively shifting the determination of the accused's guilt from a jury to the judge[84].
135. A criminal trial is not a contest between the Crown's assertions and the accused's defences. From first to last, it is a proceeding whereby the Crown, on behalf of the community, assumes the obligation of establishing the charges laid. This obliges it, relevantly, to prove beyond reasonable doubt facts which constitute a precise offence known to law, being the exact offence alleged in the indictment. In my opinion, the Crown failed to do this at the first trial of the appellant. It should not have a second chance.
Orders
136. I agree in the orders proposed by Dawson, Toohey and McHugh JJ.
Footnotes
[1] An account kept by the appellant at the Fremantle branch of the Commonwealth Bank.
[2] Orton v Butler (1822) 5 B & Ald 652 [106 ER 1329].
[3] Palmer v Jarmain (1837) 2 M & W 282 [150 ER 762].
[4] [1976] WAR 74 at 78-79.
[5] [1902] St R Qd 9.
[6] [1902] St R Qd 9 at 10.
[7] Kohn (1979) 69 Cr App R 395 at 407; R v Doole [1985] Crim LR 450; Attorney-General'sReference (No 1 of 1983) [1985] QB 182 at 187, 188; R v Dubar [1995] 1 All ER 781.
[8] R v Capewell [1995] 2 Qd R 64 at 67-68, 70-71, 75.
[9] [1902] St R Qd 9; and see R v Hallam and Blackburn [1995] Crim LR 323.
[10] Mainwaring (1981) 74 Cr App R 99 at 107; note to R v Hallam and Blackburn [1995] Crim LR 323 at 325.
[11] Orsi v Legal Contribution Trust [1976] WAR 74; Kohn (1979) 69 Cr App R 395; R v Doole [1985] Crim LR 450; Attorney-General'sReference (No 1 of 1983) [1985] QB 182; R v Dubar [1995] 1 All ER 781.
[12] (1869) LR 3 PC 101 at 113. See also Spence v Union Marine Insurance Co (1868) LR 3 CP 427 at 438.
[13] [1987] 3 All ER 893 at 907-908.
[14] (1865) 2 H & M 417 at 421 [71 ER 525 at 527].
[15] (1952) 88 CLR 322 at 336-337.
[16] (1880) 13 Ch D 696 at 719-720. See also Dixon CJ and Fullagar J in Brady v Stapleton (1952) 88 CLR 322 at 337.
[17] (1880) 13 Ch D 696 at 717.
[18] Taylor v Plumer (1815) 3 M & S 562 at 575 [105 ER 721 at 726].
[19] (1952) 88 CLR 322 at 337-338.
[20] (1880) 13 Ch D 696 at 711.
[21] (1966) 114 CLR 634.
[22] It wasimmaterial that there may have been some, but not sufficient, free fundsavailable to cover a particular withdrawal: see s376.
[23] Parker v Taylor unreported, Supreme Court of Western Australia, 29 October 1993.
[24] s371(2)(a).
[25] s371(2)(f).
[26] See Bacon v Pianta (1966) 114 CLR 634.
[27] Boughey v The Queen (1986) 161 CLR 10 at 30-31 per Brennan J.
[28] (1978) 139 CLR 315.
[29] (1978) 139 CLR 315 at 333.
[30] (1978) 139 CLR 315 at 333.
31 [1994] 2 All ER 316 at 331.
[32] (1978) 139 CLR 315 at 336-337.
[33] [1994] 2 All ER 316 at 336.
[34] "Money" isdefined by s1 to include "bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requestsfor the payment of money".
[35] [1976] WAR 74 at 78-79.
[36] Asto the relationship between stealing at common law and under the Code, see Ilich v The Queen (1987) 162 CLR 110.
[37] The relevant authoritiesare noted by Dawson J in King v The Queen (1986) 60 ALJR 685 at 689.
[38] s584(15).
[39] See Trainer v The King (1906) 4 CLR 126 at 135.
[40] Parker v Taylor unreported, Supreme Court of Western Australia, 29 October 1993 at 46 per Malcolm CJ.
[41] s373.
[42] The Code, s371(2)(a) and (f).
[43] Parker v The Queen unreported, Court of Criminal Appeal of Western Australia, 26 May 1995 at 15 per Ipp J.
[44] Parker v The Queen unreported at 23 per Ipp J.
[45] Parker v The Queen unreported at 15 per Ipp J.
[46] Parker v The Queen unreported at 27 per Malcolm CJ.
[47] See Parker v The Queen unreported at 28 per Malcolm CJ.
[48] Parker v The Queen unreported at 84 per Ipp J.
[49] Parker v The Queen unreported at 32 per Malcolm CJ, 75 per Ipp J.
[50] Thomasv The Queen (1960) 102 CLR 584 at 595, 604-605; Green v The Queen (1971) 126 CLR 28 at 31-32.
[51] Parker v The Queen unreported at 78-82 per Ipp J.
[52] Parker v The Queen unreported at 35-42 per Malcolm CJ, 82-89 per Ipp J.
[53] Wilde v The Queen (1988) 164 CLR 365 at 371-372, citing Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514.
[54] Parker v The Queen unreported at 31 per Malcolm CJ.
[55] See for example Clayton'sCase (1816) 1 Mer 572 [35 ER 781]; Re Hallet'sEstate (1880) 13 Ch D 696 at 727.
[56] Parker v The Queen unreported at 68-69 per Ipp J.
[57] (1880) 13 Ch D 696.
[58] (1880) 13 Ch D 696 at 727.
[59] Parker v The Queen unreported at 70-71 per Ipp J, citing Re British Red CrossBalkan Fund [1914] 2 Ch 419 at 421; Sinclair v Brougham [1914] AC 398; Hodgesv KovacsEstate Agency Pty Ltd etc [1961] WAR 19 at 22.
[60] Parker v The Queen unreported at 85-86 per Ipp J.
[61] Peacock v The King (1911) 13 CLR 619; Andrewsv The Queen (1968) 126 CLR 198 at 211; Gerakiteysv The Queen (1984) 153 CLR 317 at 321; Director of Public Prosecutions(Nauru) v Fowler (1984)154 CLR 627 at 630-631; King v The Queen (1986) 161 CLR 423 at 433; Reid v The Queen [1980] AC 343 at 348; R v Wilson and Grimwade [1995] 1 VR 163 at 181-184.
[62] Parker v The Queen unreported at 41 per Malcolm CJ.
[63] The Code, s 689(2).
[64] Cf Gilmore (1979) 1 A Crim R 416 at 420-421.
[65] Parker v The Queen unreported at 7-8 per Ipp J.
[66] (1987) 162 CLR 110.
[67] (1987) 162 CLR 110 at 115.
[68] (1987) 162 CLR 110 at 123.
[69] (1987) 162 CLR 110 at 137-138.
[70] s4.
[71] (1986) 161 CLR 10.
[72] (1986) 161 CLR 10 at 30-31. See also Stuart v The Queen (1974) 134 CLR 426 at 437.
[73] [1892] AC 481 at 487.
[74] (1936) 55 CLR 253 at 263.
[75] (1964) 111 CLR 62 at 76.
[76] [1962] TasSR 170 at 172-173, 192.
[77] [1972] TasSR 59 at 71-72.
[78] Bacon v Pianta (1966) 114 CLR 634.
[79] (1880) 13 Ch D 696.
[80] Cf Lamb v Cotogno (1987) 164 CLR 1 at 11 citing Pound, "Common Law and Legislation" (1908) 21 Harvard Law Review 383; Warnink v Townend and Sons(Hull) [1979] AC 731 at 743. See also Kelly, "The Osmond Case: Common Law and Statute Law" (1986) 60 Australian Law Journal 513; Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 570-572 citing Traynor, "StatutesRevolving in Common Law Orbits" (1968) 17 Catholic University of America Law Review 401; Burrows, "The Interrelation Between Common Law and Statute" (1976) 3 Otago Law Review 583 at 599; Atiyah, "Common Law and Statute Law" (1985) 48 Modern Law Review 1.
[81] See Stephensv The Queen (1978) 139 CLR 315 at 336-337; R v Clowes(No 2) [1994] 2 All ER 316 at 336.
[82] House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513 at 519-520; Norbisv Norbis(1986) 161 CLR 513 at 535; Minister for Aboriginal Affairsv Peko-Wallsend Ltd (1986) 162 CLR 24 at 47-48.
[83] R v Wilkes(1948) 77 CLR 511 at 518. See generally King v The Queen (1986) 161 CLR 423 at 426-427, 429, 433; Tsang Ping-nam v The Queen [1981] 1 WLR 1462 at 1467.
[84] Cf Davies, "After R v Clowes(No 2): An Act of Theft Empowered - A Jury Impoverished?" (1997) 61 Journal of Criminal Law 99 at 101.