SUPREME COURT OF SOUTH AUSTRALIA - courts.sa.gov.au

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.


3

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;


4

• 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.


5

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


• 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


• Financial Group for December 2011 reporting purchases of $225,500 and


• 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.


6

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


7

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


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


9

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”;


10

• 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;


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


12

• 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


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


14

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.


15

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.


16

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


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.


18

• as a result, the defendant obtained a financial advantage from the Australian

Taxation Office;

• the Australian Taxation Office was a Commonwealth entity.


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.


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


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;


20

• 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


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.


22

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


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.


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.


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.


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.


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.


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


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.


30

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.


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.


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):


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.


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.


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


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.


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.


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)


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.


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.


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].


42

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


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


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.


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.

Documents

SUPREME COURT OF SOUTH AUSTRALIA - courts.sa.gov.au