Citation: R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 1388
Court: Supreme Court of New South Wales
Date: 21 November 2011
Judge(s): Simpson J
Background
Four accused faced two counts of conspiracy: first, conspiracy to defraud the Commonwealth; and second, conspiracy to dishonestly cause a loss to the Commonwealth. The two counts covered the same alleged conduct but arose because the governing legislation changed on 24 May 2001, with the earlier period covered by the Crimes Act 1914 (Cth) and the later period by the Criminal Code Act 1995 (Cth). The alleged conspiracy ran from approximately 1 January 1997 to 24 October 2006.
The Crown case centred on an alleged tax evasion scheme involving one accused who was resident in Vanuatu and three accountants employed by or partners in a Sydney accounting firm. The scheme allegedly involved client companies of the firm paying false invoices for non-existent consultancy services, claiming those payments as tax deductions, and then receiving the funds back as purported loans that were never intended to be repaid.
With a trial listed to commence on 5 March 2012 and an estimated duration exceeding three months, the parties sought pre-trial rulings under section 192A of the Evidence Act 1995 (Cth) on the admissibility of several items of contested evidence. Simpson J noted throughout that the rulings were made without the full evidentiary picture and remained open to reconsideration as the evidence emerged at trial.
Legal Issues
- Whether a chain of internal emails referencing a list of client names, some connected to the alleged scheme and others not, was relevant and admissible against one of the accused.
- Whether two newspaper articles about Vanuatu tax schemes were admissible, including whether they were relevant and whether their probative value outweighed any prejudicial effect.
- Whether evidence going to one count of conspiracy was admissible in relation to the other count, given the two charges arose from the same alleged single conspiracy under successive statutes.
- Whether evidence of conduct occurring after 2001 could be used against one accused who had been relatively young (22 years old) at the commencement of the alleged conspiracy, on the basis that such use would be unfair.
Decision
On the internal email chain relating to one client company, Simpson J was satisfied that the document was relevant and carried probative value. The reference to individuals connected to the alleged scheme was of significance. The presence of other names not expected to feature in evidence was unlikely to cause prejudice, though her Honour noted that excision of those names could be considered if prejudice became apparent at trial. The document was admitted.
On the newspaper articles, her Honour's reasoning addressed whether the articles were relevant to the accused's knowledge of the scheme and the authorities' interest in it, applying the principles about probative value against prejudicial effect. The specific terms of those rulings are contained in the portions of the judgment not reproduced in the available text.
On the question of cross-use of evidence between the two counts, Simpson J held that because the Crown alleged a single continuous conspiracy, there was no basis to delineate evidence strictly by reference to the date of the conduct. The change in governing legislation did not fragment the underlying conspiracy into two separate factual inquiries. It followed as a necessary consequence of earlier proceedings in this matter that evidence relevant to one count would be admissible on the other.
On the argument that post-2001 evidence could not fairly be used against the youngest accused due to his age at the commencement of the conspiracy, Simpson J declined to rule on the point at the pre-trial stage. No specific piece of evidence was identified as operating unfairly. Her Honour expressed grave reservations about the argument's merit but concluded the question was premature. The appropriate course was to wait until the evidence was complete and, if necessary, give jury directions at that point.
Orders Made
No orders were made in this decision.
Key Takeaways
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Where the Crown alleges a single continuing conspiracy that spans two successive statutory regimes, a court may treat the evidence as an undivided whole: delineating admissibility by reference to the legislative changeover date is not required simply because two counts appear on the indictment.
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Pre-trial rulings under section 192A of the Evidence Act 1995 (Cth) are provisional. Simpson J made clear that rulings given without the full evidentiary picture remain open to reconsideration as additional evidence emerges or witnesses depart from their statements.
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A relevance objection to a document containing some names connected to the alleged scheme and others not connected will not automatically succeed. The presence of unrelated names does not defeat admissibility, though excision may be considered if actual prejudice can be demonstrated.
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Arguments about the unfairness of using later evidence against an accused because of that person's age at the commencement of the alleged conspiracy were treated as premature at the pre-trial stage. The Supreme Court held that such a question is better resolved once the entire evidentiary mosaic is visible, with jury directions available as the appropriate remedy if unfairness materialises.
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Under the approach applied here, the absence of any identified specific piece of prejudicial evidence was fatal to a pre-trial application to restrict use of evidence across the two conspiracy counts.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (Cth), s 192A
- Crimes Act 1914 (Cth), ss 29D, 86(1)
- Criminal Code Act 1995 (Cth), s 135.4(5)
Cases
- Agius v R, Abibadra v R, Jandagi v R, Zerafa v R [2011] NSWSC 367
- Agius v R, Abibadra v R, Jandagi v R, Zerafa v R [2011] NSWCCA 119
- Agius & Ors v R [2011] HCA Trans 171
- Ahern v The Queen [1988] HCA 39; 165 CLR 87
- R v Chai (1992) 27 NSWLR 153
- R v Masters (1992) 26 NSWLR 465
- Regina (C'weath) v Baladjam [No 19] [2008] NSWSC 1441