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Court of Criminal Appeal 3 March 2005

Regina (Cth) v Macarthur

[2005] NSWCCA 65

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE KNOWINGLY CONCERNED IN NON SPECULATIVE OPINION RULING TO REJECT NOT ERRONEOUS CHALLENGES TO SUMMING UP NOT MADE OUT

Citation: Regina (Cth) v Macarthur [2005] NSWCCA 65
Court: Court of Criminal Appeal, New South Wales
Date: 3 March 2005
Judge(s): Grove J, James J, Barr J

Background

The appellant was the sole director, secretary, and shareholder of a fuel distribution company. The company operated a single tanker and acquired "marked fuel" from two suppliers. Marked fuel was petroleum product to which a chemical tracer had been added, indicating it was destined for non-road purposes such as use as a solvent or heating oil, and therefore attracted little or no excise duty. The company repeatedly loaded this marked fuel and delivered it to transport companies for use in on-road diesel vehicles, a purpose that attracted a significantly higher rate of excise.

Commonwealth legislation required that a penalty surcharge be paid before marked fuel was sold or used for on-road purposes. The surcharge was set at double the applicable excise rate. The company paid no such surcharge, thereby defrauding the Commonwealth of excise revenue.

The appellant was charged in the Sydney District Court with being knowingly concerned in his company's fraud on the Commonwealth. A jury convicted him in August 2002. He was sentenced to two years imprisonment but released immediately on a recognizance, which had expired by the time of the appeal. The appellant challenged the conviction on multiple grounds before the Court of Criminal Appeal.

  • Whether the trial judge erred in rejecting expert evidence tendered by the defence
  • Whether the trial judge should have directed the jury that Crown witnesses who received certificates under section 128 of the Evidence Act 1995 were thereby "protected" from prosecution, or that their testimony was "tainted"
  • Whether various aspects of the trial judge's summing-up were adequate or erroneous
  • Whether there was sufficient evidence to support the jury's finding that the appellant had the requisite knowledge of the fraud

Decision

Expert evidence: The Court of Criminal Appeal held that the trial judge did not err in rejecting the defence expert evidence. The proposed evidence was irrelevant to the issues at trial and was directed at commenting on the credibility of another witness, which is not a permissible function for expert evidence. The Court also noted the opinion was speculative. The ruling to exclude it was correct.

Section 128 certificates and jury directions: Several Crown witnesses were cautioned and issued certificates under section 128 of the Evidence Act 1995 before giving testimony that might have incriminated them. The appellant argued the jury should have been directed either that these witnesses were "protected" from prosecution or, conversely, that their evidence was "tainted." The Court rejected both propositions. A section 128 certificate does not indemnify a witness against future prosecution; it only protects them from having that particular testimony used against them. A direction that the witnesses were "protected" would therefore have been incorrect. Equally, the Court found no basis for characterising the evidence as "tainted," so a direction to that effect was also properly refused.

Summing-up challenges: The Court found none of the challenges to the trial judge's summing-up were made out. The appellant did not testify, and the Court noted, consistent with Azzopardi v The Queen and Dyers v The Queen, that the absence of evidence from the appellant on the question of his knowledge was not an impediment to his appeal, but equally did not assist it.

Sufficiency of evidence: The Court found there was ample evidence from multiple sources to support the jury's conclusion that the appellant had knowledge of the marked fuel regime and of his company's failure to pay the applicable surcharge. Evidence included a conversation between the appellant and a fuel supplier about the introduction of the marked fuel scheme, the appellant's instruction to a driver not to write "unmarked fuel" on an invoice, and his reassurances to a transport company customer that a delivery of marked fuel was "okay."

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A section 128 Evidence Act 1995 certificate protects a witness only from having their compelled testimony used against them in subsequent proceedings; it does not amount to an indemnity or grant immunity from prosecution, and it would be wrong to direct a jury otherwise.
  • No error arises in excluding defence expert evidence where that evidence is directed at attacking the credibility of another witness rather than addressing a matter properly within the province of expert opinion.
  • Speculative expert opinion that does not go to any live issue in the trial is properly excluded.
  • Sufficient evidence existed, from multiple independent sources, to support a jury finding that the appellant had actual knowledge of the marked fuel penalty surcharge regime and of his company's non-payment, satisfying the knowledge element of the offence.
  • In dismissing the appeal, the Court confirmed that the three uncontested elements of the Crown case (acquisition of marked fuel, sale for on-road use, and non-payment of the surcharge) left knowledge as the sole live issue, which the jury was entitled to resolve adversely to the appellant on the evidence available.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 128
- Fuel Prices (Penalties Surcharges) Administration Act 1997 (Cth)
- Fuel Misuse (Penalty Surcharge) Act (Cth)
- Fuel Sale (Penalty Surcharge) Act 1999 (Cth)
- Fuel Blending (Penalty Surcharge) Act (Cth)

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- Dyers v The Queen (2002) 210 CLR 285
- Killick v The Queen (1981) 147 CLR 565
- The Queen v Chin (1985) 157 CLR 671