Citation: R v David Michael Wills, Caroll Anne Henderson, Peter James Henderson [2012] NSWDC 250
Court: District Court of New South Wales
Date: 8 August 2012
Judge(s): Judge Haesler SC
Background
The three accused faced a lengthy indictment arising from an alleged corruption scheme involving Woolworths and a software supplier, Az-Ben Electronics. The principal accused, a senior Woolworths executive, was charged across 21 counts including multiple charges of corruptly receiving benefits as an agent under s 249B(1) of the Crimes Act 1900, conspiracy, money laundering, and fraud. The case alleged that the executive received substantial sums in a British Virgin Islands company account in exchange for showing favour to Az-Ben in its dealings with Woolworths.
By Day 59 of the trial, the executive was under cross-examination. When the Crown put questions suggesting the relevant "favours" extended across the entire course of Az-Ben's business dealings with Woolworths, defence counsel objected. That objection triggered a substantive dispute about whether the Crown was entitled to run a case materially broader than the particulars it had supplied to the defence in September 2011.
Judge Haesler SC heard argument over two days and reserved detailed reasons until 8 August 2012 to avoid delaying the jury further.
Legal Issues
- Whether the Crown should be directed to restrict its case on the s 249B(1) counts to the specific favour described in the defence particulars letter, namely the award of a contract resulting in payments of approximately $9.6 million to Az-Ben and related companies.
- Whether the Crown's broader framing of the "favour" element constituted an allegation of a different offence than the one pleaded in the indictment.
- Whether, as a matter of fairness, the Crown was required to put specific acts of favour to the accused in cross-examination before relying on them with the jury.
Decision
Judge Haesler SC upheld the defence objection to the form of the specific cross-examination question, finding it too "general and amorphous." For each s 249B(1) count, if the Crown intended to assert that the accused performed a particular act showing favour to Az-Ben, it was required to put that specific act to the accused in cross-examination.
However, his Honour rejected the broader submission that the Crown should be confined entirely to the narrow language of the particulars letter. The court drew a clear distinction between the obligation to particularise an offence sufficiently and a prohibition on the Crown relying on all admissible evidence that goes to proving the elements of that offence. What defines each s 249B(1) count, his Honour found, is the benefit received, not the specific favour alleged. The relevant favours may have continued across a period leading up to each payment without thereby transforming each charge into a different crime.
His Honour noted the limits of judicial power in this context. A judge may order better particulars, discharge a jury for irreparable prejudice, restrict the Crown to the offence actually charged, and require the Crown to elect where evidence discloses multiple offences fitting one count. A judge may not, however, direct the jury on how to approach relevant and admissible evidence that was properly before it, particularly where no substantive prejudice had been identified.
In a postscript, his Honour observed that following the ruling, the Crown completed its cross-examination more narrowly than anticipated, largely confining the alleged favour to the selection and award of the APOS 2000 point-of-sale software contract.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court confirmed that a valid indictment must identify the essential factual ingredients of the offence and supply the accused with fair and reasonably precise particulars, consistent with established principles in R v Saffron, Johnson v Miller, and R v Mok.
- Under s 249B(1) of the Crimes Act 1900, what defines each corrupt commission count is the benefit received rather than the particular favour alleged, meaning that favours occurring across a broader period do not necessarily constitute a different or additional offence.
- A trial judge's power to intervene in the conduct of a Crown case extends to ordering better particulars, restricting the Crown to the offence charged, and requiring election where multiple offences emerge from one count, but does not extend to directing the jury on how to treat relevant and properly admitted evidence where no substantive prejudice is shown.
- Where the Crown intends to rely on a specific act of favour as part of a circumstantial case on a corruption count, fairness requires that the act be identified and put to the accused in cross-examination before it is taken to the jury.
- An accused is not automatically entitled to hold the Crown to only a narrow fragment of its particulars letter; the question is whether the case as run gives rise to a genuinely different charge or causes real prejudice, not merely whether the Crown's framing is broader than one passage in a particulars document.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 249B(1) (corrupt commissions and rewards)
- Criminal Procedure Act 1986 (NSW), Sch 3, cl 21
Cases
- Gerakiteys v The Queen (1984) 153 CLR 317
- Johnson v Miller (1937) 59 CLR 467
- R v Mok (1987) 27 A Crim R 437
- Qualtieri v R [2006] NSWCCA 95
- R v Saffron (1988) 17 NSWLR 395
- Standen v R [2011] NSWSC 1038