Citation: R v Seller; R v McCarthy [2015] NSWSC 1299
Court: Supreme Court of New South Wales
Date: 7 September 2015
Judge(s): Harrison J
Background
The two accused were charged on indictment with conspiracy to dishonestly influence the Commissioner of Taxation. The Crown alleged that between May 2001 and December 2002 they conspired to make false representations to Australian Taxation Office auditors in connection with an audit of tax minimisation schemes involving investments in a Scottish whisky distillery. The schemes, promoted for the 1999, 2000, and 2001 tax years, offered participants a $500,000 tax deduction for an initial cash outlay of only $125,000, with the balance financed by promissory notes drawn on an entity called Chambers Finance Limited.
The Crown's case had been extensively particularised over several years before trial. A Crown Case Statement filed in April 2011 identified up to 48 alleged misrepresentations, and a detailed outline provided in March 2012 particularised 26 overt acts constituting the alleged conspiracy, each cross-referenced to the Crown Case Statement. The Crown also provided separate particulars of falsity in relation to the key entities involved.
At trial, both accused applied to restrict the Crown's case to only those misrepresentations specifically mentioned in the Crown's opening address to the jury. They argued that the opening had led them to believe the Crown had abandoned any allegations not expressly referred to there, and that they had conducted their defence on that basis.
Legal Issues
- Whether a Crown opening address to the jury limits or restricts the Crown's case to the matters specifically mentioned in that opening
- Whether the accused had been misled into believing the Crown had abandoned parts of its case that were not referenced in the opening
- Whether the accused had been provided with adequate particulars in the circumstances
Decision
Harrison J rejected the application and upheld the Crown's position. The Crown argued, and the court accepted, that an opening address is necessarily an economical summary of the case for the jury's benefit. It is not required to refer in detail to each and every allegation, and its silence on a particular point does not amount to an abandonment of that point.
The court noted that the Crown case had been particularised in extensive detail over a long period before trial. Successive documentary refinements of the allegations had served only to define and confine them with greater clarity. Given that history, the accused and their legal advisers had long known the full scope of the case they were required to meet.
Harrison J also observed that if the Crown opening had genuinely surprised the accused, that surprise was slow to emerge. Cross-examination of key Crown witnesses had in fact engaged with the very representations now said to be outside the particularised case, suggesting the accused were well aware of their significance. The court found no basis for the claim that the accused had been misled by the scope of the opening.
The application was a reversal of the more common complaint, where a defence argues that the Crown has opened too broadly and then failed to match its opening with evidence. Here, the accused argued the Crown had silently narrowed its case by opening selectively. The court declined to accept that proposition, finding no departure from acceptable practice.
Orders Made
- The application by the accused to restrict or confine the Crown case to representations mentioned in the Crown opening was refused.
Key Takeaways
- A Crown opening address to the jury is a summary of the case, not a binding statement of its full scope. Omitting a particular allegation from the opening does not constitute abandonment of that allegation.
- Where detailed particulars of the Crown case have been provided to the accused over an extended period before trial, those particulars define the case the accused must meet, not the terms of the Crown's opening.
- No breach of the principles in Mok (1987) 27 A Crim R 438 was established where the accused had received extensive written particulars over several years and where their own cross-examination of Crown witnesses engaged directly with the contested representations.
- The conduct of the defence at trial is a relevant consideration. Raising a complaint that the Crown has narrowed its case only after trial is underway, without objecting to the relevant evidence when it was led, may undermine the credibility of that complaint.
- Sufficient notice of the Crown case is assessed by reference to the totality of particularisation provided to the accused, not solely by what an opening address to the jury expressly covers.
Legislation and Cases Referenced
Cases:
- Danny Mok (1987) 27 A Crim R 438
Legislation:
- Income Tax Assessment Act 1936 (Cth), including Part IVA
- Income Tax Assessment Act 1987 (Cth) (as referenced in the particulars)