Citation: R v Walters [2002] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 25 July 2002
Judges: Hodgson JA, Studdert J, Dowd J
Background
The appellant was convicted on ten counts of being knowingly concerned in defrauding the Commonwealth in respect of group tax obligations. The Crown alleged he operated a large bricklaying business, contracting principally with Meriton Apartments, through ten successive companies over the period January 1989 to May 1998. Each company employed between approximately 60 and 250 workers, regularly deducted group tax from their wages, but failed to remit those deductions to the Australian Taxation Office.
The Crown's case was that the appellant held sole effective control of each company's finances and deliberately stripped available funds through extravagant personal expenditure. When a company accumulated arrears it could not repay, it was wound down and its employees and work were transferred to a new company, leaving the Commissioner of Taxation without recourse to company assets. The total amount of unremitted group tax across the ten companies was approximately $7.3 million.
The appellant pleaded not guilty to all counts and was tried before Sully J and a jury over fourteen days. The jury returned guilty verdicts on all ten counts. He was sentenced to a total effective sentence with a non-parole period of six years, and he appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge erred in permitting facts established in relation to earlier counts to be used as evidence of knowledge and intention in relation to later counts.
- Whether such use of evidence constituted inadmissible tendency or coincidence evidence under the Evidence Act 1995 and, if so, whether a specific limiting direction to the jury was required.
- Whether the probative value of the cross-count evidence was outweighed by its prejudicial effect.
- Whether the trial judge erred in the sentencing process, including by cumulating sentences, failing to give appropriate weight to the appellant's good character, drawing adverse inferences from the appellant's silence, and failing to obtain a pre-sentence report.
Decision
The Court of Criminal Appeal dismissed the appeal against conviction on all grounds. The central evidentiary issue concerned whether facts established in connection with the earlier counts could legitimately inform the jury's assessment of the appellant's knowledge and intention on the later counts. The Court found that such use was not properly characterised as tendency or coincidence evidence within the meaning of sections 97 and 98 of the Evidence Act 1995. Rather, the facts relating to earlier companies were directly probative of whether the appellant possessed the requisite knowledge and intention when operating the later companies, because they demonstrated a pattern of conduct that was directly relevant to his state of mind in each successive venture.
On the question of jury directions, the Court found no error in the trial judge's directions. Given the nature of the evidence and how it was used, no specific limiting direction was required to prevent the jury from misusing cross-count material. The Court was also satisfied that the probative value of the evidence was not outweighed by its prejudicial effect, noting the high degree of relevance the earlier conduct held to the knowledge and intention elements of the later charges.
On sentence, the Court rejected each ground raised. The trial judge's decision to cumulate sentences was found to be a proper exercise of discretion that did not produce an excessive overall result. The appellant's good character had been explicitly taken into account. No adverse inference from the appellant's silence at trial or sentencing had in fact been drawn; the trial judge had simply noted that no evidence of contrition had been placed before him. The absence of a pre-sentence report was found to have caused no procedural unfairness, as a full-time custodial sentence was never in doubt and no real question of alternatives arose.
Orders Made
- Appeal against convictions dismissed.
- Leave to appeal against sentences refused.
Key Takeaways
- Evidence of conduct relating to earlier charges in a multi-count indictment may be admissible to prove knowledge and intention on later charges without necessarily constituting tendency or coincidence evidence under sections 97 and 98 of the Evidence Act 1995, where the earlier facts are directly probative of the accused's state of mind in the later conduct.
- Where cross-count evidence is used to prove knowledge and intention rather than propensity, a specific limiting direction may not be required, provided the jury is properly directed on the elements of each charge.
- Probative value versus prejudicial effect remains a live consideration when earlier-count facts are used across counts, but where the relevance to knowledge and intention is high, probative value may readily outweigh any potential prejudice.
- Cumulation of sentences across a prolonged course of offending involving multiple separate entities is capable of resulting in a lawful and appropriate overall sentence, provided the total is not disproportionate.
- A trial judge's inability to take contrition into account at sentencing does not constitute the drawing of an adverse inference from an accused's silence; it reflects only the absence of evidence on which leniency could be founded.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 95, 97, 98, 101
- Crimes Act 1914 (Cth), ss 16A(2)(p), 16BA
Cases:
- Cleland v The Queen (1982) 151 CLR 1
- Green v The Queen (1971) 126 CLR 28
- R v Birks (1990) 19 NSWLR 677
- R v Buckett (1995) 79 ACrimR 302
- R v Tannous (1987) 10 NSWLR 303
- R v The Queen (1992) 175 CLR 599
- Spies v The Queen (2000) 201 CLR 603