Citation: R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2012] NSWSC 639
Court: Supreme Court of New South Wales
Date: 12 June 2012
Judge(s): Simpson J
Background
Four accused faced two counts each of conspiracy to defraud the Commonwealth, arising from an alleged fraudulent tax minimisation scheme involving more than eight Australian companies. The Crown alleged that one accused was a promoter of the scheme, while the three others were accountants who facilitated company participation in it. The central issue for the jury was whether those three accountants had acted dishonestly, making their knowledge of the scheme's operation critical.
On the sixtieth day of evidence, the defence cases having closed, the Crown applied for leave to adduce evidence in reply. One aspect of that application was uncontested and resolved quickly. The remaining and contested aspect concerned evidence given by one of the accused, Ms Jandagi, about the circumstances surrounding her hospital visit to a client, Mrs Southcombe, who had suffered a severe psychiatric breakdown that she attributed to her involvement in the scheme.
Mrs Southcombe had given Crown evidence that Ms Jandagi visited her in hospital and promised to remove her company from the scheme. Mr Southcombe gave evidence that he had telephoned Ms Jandagi directly to arrange the visit. Ms Jandagi gave a starkly different account in her defence, saying the visit was prompted by a phone call from a bookkeeper named Ms Franco, and that no business was discussed during the hospital visit at all.
Legal Issues
- Whether the Crown should be granted leave to call a witness, Ms Franco, in reply to rebut Ms Jandagi's account of how the hospital visit came about.
- Whether that evidence satisfied the test for Crown evidence in reply, particularly whether it was evidence not reasonably anticipated by the Crown from the defence case.
- Whether leave, if granted, should be made conditional on the Crown recalling Mr and Mrs Southcombe for further cross-examination.
Decision
Simpson J confirmed the applicable principles, drawn from Shaw v The Queen (1952) and R v Frank Christopher Lawrence (1980): the discretion to permit the Crown to call evidence in reply exists but is to be exercised only in rare and unusual circumstances. One recognised circumstance is where the defence produces evidence the Crown could not reasonably have anticipated.
The court found that Ms Jandagi's evidence about Ms Franco met that threshold. Although Ms Franco's name had been mentioned in passing during the Crown case, there was nothing in the cross-examination of Mr Southcombe to alert the Crown that Ms Jandagi would claim the hospital visit was initiated through a conversation with Ms Franco, rather than through a call from Mr Southcombe himself. Counsel for Ms Jandagi ultimately accepted this concession.
The court also considered the potential for the evidence to have an undue impact on the jury, given that it would be the last evidence heard before closing addresses. Simpson J found that two factors significantly reduced that risk: the witness was unavailable to give evidence immediately, meaning a four-day break would intervene, and the jury was to be stood down after the evidence to allow finalisation of legal directions and preparation of addresses. Those circumstances, her Honour concluded, would sufficiently dissipate any undue prominence the evidence might otherwise have assumed.
The court declined to impose the condition sought by counsel for another accused that Mr and Mrs Southcombe be recalled for further cross-examination. Ms Franco's evidence was admitted for the narrow purpose of rebutting one specific assertion by Ms Jandagi. Both Southcombes had already been cross-examined on the relevant matters, and recalling them would risk impermissibly reopening closed areas of evidence, with potential unfairness to the other accused.
Orders Made
- The Crown was permitted to call Ms Franco in reply to give evidence in accordance with her statement dated 6 June 2012 (Voir dire exhibit 3).
Key Takeaways
- The discretion to allow the Crown to call evidence in reply in a criminal trial is exercised only in rare and unusual circumstances, consistent with the principles in Shaw v The Queen and R v Frank Christopher Lawrence.
- Evidence that the Crown could not reasonably have anticipated from the defence case is a recognised basis for exercising that discretion in the Crown's favour.
- Where the potential for undue jury impact from late-adduced Crown evidence is substantially reduced by intervening breaks and procedural arrangements, that consideration weighs in favour of admission.
- A condition requiring the Crown to recall its own witnesses as the price of admitting reply evidence will not be imposed where those witnesses have already been cross-examined on the relevant matters and no new lines of questioning have been identified.
- Under the Evidence Act 1995, credibility evidence is not admissible solely to challenge a witness's credibility (s 102); here, the reply evidence was admitted not to impugn Ms Jandagi's credibility as such, but to establish her state of mind and awareness of the alleged fraud.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 102
Cases:
- Shaw v The Queen [1952] HCA 18; 84 CLR 265
- R v Frank Christopher Lawrence, unreported, NSWCCA, 12 October 1980