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Supreme Court 22 March 2022

R v Dougas; R v Read; R v Linke (No 10)

[2022] NSWSC 306

Fraud & dishonesty
CRIME PRE REQUISITES NOT MET APPLICATIONS REFUSED

Citation: R v Dougas; R v Read; R v Linke (No 10) [2022] NSWSC 306
Court: Supreme Court of NSW
Date: 22 March 2022
Judge(s): Adamson J

Background

Three accused stood trial on charges arising from an alleged conspiracy to pay bribes to Filipino public officials in connection with contracts awarded to an engineering firm. The Crown case rested substantially on the evidence of a witness, Mr Chapple, who had been criminally involved in the events and gave direct evidence of conversations in 2000 in which the conspiracy was allegedly formed. Because of his criminal involvement, the trial judge directed the jury pursuant to section 165 of the Evidence Act 1995 (NSW) to treat his evidence with caution.

Before the Crown's closing address, counsel for each of the three accused applied for special jury directions arising from the nature and centrality of Mr Chapple's evidence. The accused argued that particular pieces of evidence, including the 2000 conversations and an alleged antecedent conversation involving one accused, were so foundational to the Crown case that the jury had to be satisfied of them beyond reasonable doubt before any conviction could follow.

Two categories of direction were sought: a Murray direction (requiring the jury to accept a specific piece of evidence beyond reasonable doubt before convicting) and, alternatively, a Shepherd direction (requiring the jury to be satisfied of an intermediate fact beyond reasonable doubt before using it as a step toward guilt). Adamson J refused all applications and provided written reasons.

Legal Issues

  • Whether a Murray direction was required in respect of Mr Chapple's evidence of the 2000 conversations forming the genesis of the alleged conspiracy
  • Whether a Shepherd direction was required because those 2000 conversations constituted an indispensable "link in the chain" rather than a "strand in the cable"
  • Whether a Shepherd direction was required in respect of the alleged direction from one accused to Mr Chapple to seek approval from another accused
  • Whether proof of an alleged antecedent conversation between Mr Chapple and the accused Mr Linke was foundational, and therefore required to be proved beyond reasonable doubt, before the jury could use a subsequent email as evidence against Mr Linke

Decision

Issue 1: Murray Direction

A Murray direction is only warranted where the evidence in question is the sole evidence of an essential ingredient of the offence. The court found that while Mr Chapple's evidence of the 2000 conversations was the only direct evidence of the conspiracy's genesis, it was not the only evidence of the essential ingredients of the offence (at [18]-[19]). There existed circumstantial evidence of a conspiracy having been on foot by about 2001 and continuing until approximately 2004, including communications between alleged co-conspirators and overt acts (at [18]). Because the preconditions for a Murray direction were not met, the application was refused (at [19]).

Issue 2: Shepherd Direction Regarding the 2000 Conversations

The court held that Mr Chapple's evidence of the 2000 conversations constituted direct evidence of an agreement to commit a crime, but characterised that evidence as a strand in the cable rather than a link in the chain (at [25]). The present case was found to be relevantly indistinguishable from the facts in Shepherd itself, which the High Court had not regarded as warranting a Shepherd direction (at [27]). The court also rejected the submission that the Crown's emphasis on Mr Chapple's evidence in the Court of Criminal Appeal appeal and in its opening committed the Crown to treating those conversations as an indispensable intermediate fact. Describing evidence as important or significant does not amount to a concession that it is a link in the chain (at [29]).

Issue 3: Shepherd Direction Regarding the Direction to Seek Approval from Mr Read

The court rejected the application brought by counsel for Mr Read in relation to the conversation where Mr Dougas allegedly directed Mr Chapple to seek approval from Mr Read for bribe payments. The jury could infer Mr Read's guilt from Mr Chapple's subsequent conduct in seeking approval from Mr Read, even if not satisfied beyond reasonable doubt that Mr Dougas had given that specific direction (at [31]).

Issue 4: Antecedent Conversation Regarding Mr Linke

Mr Chapple did not ultimately give evidence of a conversation with Mr Linke that the Crown had foreshadowed in its opening. The court rejected the submission that proof of that antecedent conversation was foundational to the jury's interpretation of a subsequent email from Mr Chapple to Mr Linke dated 6 August 2004. The jury could infer from the terms of the email itself that such a conversation had occurred and construe the email accordingly. The antecedent conversation was a strand in the cable, not a link in the chain (at [33]).

Orders Made

  • Applications for directions in accordance with R v Murray (1987) 11 NSWLR 12 and Shepherd v The Queen (1990) 170 CLR 573 refused.

Key Takeaways

  • A Murray direction is only available where the piece of evidence in question constitutes the sole evidence of an essential ingredient of the offence. Where other evidence, including circumstantial evidence, bears on the same essential ingredient, the preconditions for the direction are not met (at [18]-[19]).

  • The distinction between a "link in the chain" (requiring proof beyond reasonable doubt as an intermediate fact) and a "strand in the cable" (evidence that may be weighed cumulatively with other evidence) is central to determining whether a Shepherd direction is required. The Supreme Court confirmed that direct evidence of a conspiracy's genesis may constitute a strand in the cable rather than a link in the chain (at [25], [27]).

  • Prosecutorial emphasis on particular evidence, whether in an interlocutory appeal or in an opening address, does not itself convert that evidence into an indispensable intermediate fact or constrain the Crown to presenting its closing case on that basis alone (at [28]-[29]).

  • Where evidence of a specific direction or conversation is not accepted beyond reasonable doubt, the jury may still draw inferences of guilt from subsequent conduct consistent with that direction having been given, provided that conduct is itself in evidence (at [31]).

  • A jury may infer the existence of an antecedent conversation, and use that inference to construe a subsequent communication, without the antecedent conversation first being established as an intermediate fact proved beyond reasonable doubt (at [33]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) , s 5F(3A)

Cases
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Director of Public Prosecutions (Cth) v Dougas; Director of Public Prosecutions (Cth) v Read; Director of Public Prosecutions (Cth) v Linke [2022] NSWCCA 19
- Gould v R; R v Gould [2021] NSWCCA 92
- R v Dougas; R v Read; R v Linke (No 9) [2022] NSWSC 299
- R v Murray (1987) 11 NSWLR 12
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56