Citation: [1999] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 8 March 1999
Judge(s): Spigelman CJ, Abadee J, Adams J
Background
The appellant was a corporate adviser convicted in the District Court of obtaining a financial advantage by deception under s 178BA of the Crimes Act 1900. The Crown case alleged he was involved in a scheme to conceal the tax avoidance of a property owner by transferring real estate to discharge outstanding mortgages. The central allegation was that the appellant had either forged, or knowingly participated in presenting as genuine, the property owner's signature on a contract for sale and transfer documents, while purporting to have witnessed that signature.
The prosecution relied heavily on statements made by the appellant's alleged co-offender, a solicitor named Beaufils, at two separate meetings. At one meeting, Beaufils told the property owner that "Brownlee slipped up." At a later meeting, Beaufils made representations suggesting that both he and the appellant had adjusted the scheme without the property owner's knowledge. The appellant was present at the second meeting but said nothing.
The appellant denied the Crown's account. In his dock statement, he maintained he had genuinely witnessed the property owner sign the documents, and that the use of the property to repay the mortgages was consistent with the overall scheme as he understood it.
Legal Issues
- Whether the statements made by Beaufils (the alleged co-offender) were admissible against the appellant as admissions under s 87 of the Evidence Act 1995, on the basis that they were made in furtherance of a common purpose.
- Whether those statements were alternatively admissible under ss 65 or 66 of the Evidence Act 1995 as exceptions to the hearsay rule.
- Whether any of the statements could be treated as prior consistent statements and admitted on a non-hearsay basis under the credibility provisions of the Act.
- Whether, if the conviction was set aside on evidentiary grounds, a new trial should be ordered or a verdict of acquittal entered.
Decision
The Court of Criminal Appeal allowed the appeal, finding that the co-offender's statements had been wrongly admitted as evidence against the appellant. The critical question under s 87 was whether Beaufils' statements were made in furtherance of the common purpose that the Crown alleged existed between him and the appellant. The court found the evidence did not establish this threshold requirement. In particular, by the time the relevant statements were made, the scheme had already been executed and the property transferred, so the statements could not be characterised as having been made in pursuit of an ongoing common criminal enterprise.
The court also considered whether the statements could be admitted under ss 65 or 66 as hearsay exceptions, and whether the prior consistent statement provisions provided an alternative pathway. These alternative bases for admission were similarly rejected. The statements represented out-of-court representations by a third party and did not meet the applicable statutory requirements for admission against the appellant.
On the question of whether a new trial should follow, Adams J (with whom the other judges agreed) exercised the court's discretion under s 8 of the Criminal Appeal Act to decline to order a retrial. The Crown case, stripped of the improperly admitted evidence, was not sufficiently cogent to justify putting the appellant through a further trial. The Crown prosecutor also candidly acknowledged in the Court of Criminal Appeal that a retrial would have to be conducted on a materially different basis to the original trial.
Spigelman CJ added observations about the proper approach to the "unsafe and unsatisfactory" ground of appeal, emphasising that close attention must be paid to the precise language of s 6(1) of the Criminal Appeal Act, rather than relying on potentially misleading shorthand formulations.
Orders Made
- The appeal was allowed.
- A verdict of acquittal was entered.
Key Takeaways
- Under s 87 of the Evidence Act 1995, a co-offender's out-of-court statement is only admissible against a defendant as an admission where the statement was made in furtherance of an established common purpose. Statements made after the relevant criminal activity has concluded will not satisfy this requirement.
- The Court of Criminal Appeal confirmed that admissibility of co-offender statements must be assessed by reference to the specific statutory framework in the Evidence Act 1995, including ss 65, 66, and 87, rather than by resort to general common law principles derived from cases such as Tripodi v The Queen and Ahern v The Queen.
- A verdict of acquittal, rather than a new trial, is appropriate where the admissible evidence remaining after wrongly admitted material is excluded is insufficient to sustain a conviction and a retrial would require the prosecution to substantially rebuild its case.
- Spigelman CJ reaffirmed the principle from Director of Public Prosecutions (Nauru) v Fowler that a court should not order a retrial simply to give the prosecution an opportunity to supplement a case that was defective at first instance.
- Presence and silence at a meeting where a co-offender makes incriminating statements does not, without more, provide a sufficient independent evidentiary basis to implicate a defendant.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 65, 66, 87
- Crimes Act 1900 (NSW), s 178BA
- Criminal Appeal Act (NSW), ss 6(1), 8
Cases:
- Tripodi v The Queen (1961) 104 CLR 1
- Ahern v The Queen (1988) 165 CLR 87
- R v Ousley (unreported, Victorian Court of Appeal, 31 May 1996)
- R v Chai 27 NSWLR 153
- Fleming v The Queen (1998) 158 ALR 379
- Gipp v The Queen (1998) 155 ALR 15
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
- King v The Queen 161 CLR 423
- Johnson (NSWCCA, 31 July 1998)