On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE MCINTYRE)
DCCRM-18-1143
Appellant: AMY CELIA HILL Counsel: MRS M SHAW QC WITH MR A FOWLER-WALKER -
Solicitor: CALDICOTT LAWYERS
Respondent: R Counsel: MR L CROWLEY QC WITH MS J ABBEY - Solicitor: DIRECTOR OF
PUBLIC PROSECUTIONS (CTH)
Hearing Date/s: 24/06/2021
File No/s: SCCRM-20-422
B
SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply
to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach
any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
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.
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
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.
[2021] SASCA 83 The Court
2
on this appeal may not be common ground as between Ryan and the Director on
his appeal.
Background
6 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.
[2021] SASCA 83 The Court
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14 On 1 October 2011 Ryan registered the four companies referred to at [9]
above for GST with the Australian Taxation Office.
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;
[2021] SASCA 83 The Court
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• White Bull with the email address [email protected] and a
mobile number ending in 191; and
• 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.
[2021] SASCA 83 The Court
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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.
[2021] SASCA 83 The Court
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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 car in a folder or in
[2021] SASCA 83 The Court
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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
estate, mining, shares and commodities; there would be 250 to 500 different funds
[2021] SASCA 83 The Court
8
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.
49 On 7 March 2012 Australian Taxation Office investigators and Australian
Federal Police officers attended at the appellant’s house and conducted a search
[2021] SASCA 83 The Court
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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.
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”;
[2021] SASCA 83 The Court
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• 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 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;
[2021] SASCA 83 The Court
11
• 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
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
[2021] SASCA 83 The Court
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• 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 $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
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13
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 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 offences
79 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
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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.
(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.
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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:
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.
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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.
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
[2021] SASCA 83 The Court
17
(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 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);
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.
[2021] SASCA 83 The Court
18
• 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;
• 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
[2021] SASCA 83 The Court
19
• 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 trial
92 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.
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;
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• 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
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
[2021] SASCA 83 The Court
21
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.
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.
[2021] SASCA 83 The Court
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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.
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
[2021] SASCA 83 The Court
23
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.
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.
[2021] SASCA 83 The Court
24
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 cases
126 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 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.
[2021] SASCA 83 The Court
25
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
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
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. 8 (2011) 35 VR 240.
[2021] SASCA 83 The Court
26
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”.
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”.
9 At [35]-[38] per Nettle and Neave JJA and Sifris AJA. (Footnotes omitted) 10 (2014) 316 ALR 206.
[2021] SASCA 83 The Court
27
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.
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
11 At [275]-[277], [279]-[280] per Bathurst CJ, Heoben CJ at CL and Simpson J.
[2021] SASCA 83 The Court
28
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.
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
[2021] SASCA 83 The Court
29
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.
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.
[2021] SASCA 83 The Court
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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 1/11th 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:
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.
[2021] SASCA 83 The Court
31
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 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.
[2021] SASCA 83 The Court
32
…
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 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):
[2021] SASCA 83 The Court
33
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;
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.
[2021] SASCA 83 The Court
34
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
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.
[2021] SASCA 83 The Court
35
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
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 verdicts
173 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
[2021] SASCA 83 The Court
36
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.
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.
12 (1982) 148 CLR 668. 13 At 677-678. 14 (1986) 161 CLR 423.
[2021] SASCA 83 The Court
37
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.
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
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). 17 (2013) 37 VR 101. 18 [2015] NSWCCA 243. 19 [2021] HCA 13.
[2021] SASCA 83 The Court
38
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.
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.
20 At [11]. (Footnotes omitted)
[2021] SASCA 83 The Court
39
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 direction
188 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:
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
21 Edwards v R (1993) 178 CLR 193. 22 Zoneff v R [2000] HCA 28, (2000) 200 CLR 234.
[2021] SASCA 83 The Court
40
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.
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.
23 [2011] SASCFC 131, (2011) 111 SASR 189 addressed below.
[2021] SASCA 83 The Court
41
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:
…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.
24 (2011) 111 SASR 189. 25 At [28]-[30]. (Citations omitted) 26 At [36].
[2021] SASCA 83 The Court
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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 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
[2021] SASCA 83 The Court
43
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:
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
[2021] SASCA 83 The Court
44
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.
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.
[2021] SASCA 83 The Court
45
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
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.
Conclusion
218 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.
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