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Supreme Court 16 May 2016

R v Issakidis

[2016] NSWSC 747

Fraud & dishonesty
EVIDENCE CONSPIRACY WHETHER HANDWRITTEN NOTE OF ALLEGED CO AHERN V R USE OF EVIDENCE RESTRICTED DISCRETION TO EXCLUDE

Citation: R v Issakidis [2016] NSWSC 747
Court: Supreme Court of New South Wales
Date: 16 May 2016
Judge(s): Beech-Jones J

Background

The accused faced conspiracy charges arising from a complex financing arrangement involving the ANZ Bank, a company called NeuMedix Health Australia Pty Limited, and accounts in the Cayman Islands. An alleged co-conspirator, referred to here as Mr Dickson, had been tried alongside the accused in earlier proceedings.

At the close of evidence, shortly before closing addresses, a question arose about a handwritten file note written by Mr Dickson and bearing the date Friday, 1 September 2006. The note appeared to contain references to a meeting with the accused the following day and diagrams suggesting a flow of funds that would ultimately reach the accused.

The Crown sought to use the note in two distinct ways in its closing address, and the defence challenged both uses. The court was required to rule on the permissible scope of the note's use before addresses commenced.

Legal Issues

  • Whether the note was admissible, under the principle in Ahern v R (1988) 165 CLR 87, as an implied representation by Mr Dickson that the accused was already a participant in the alleged conspiracy
  • Whether the note could be used as evidence of what Mr Dickson intended to discuss with the accused at their meeting on 2 September 2006, and therefore what was likely discussed at that meeting
  • Whether the court's discretion to restrict the use of the evidence should be exercised, and on what basis

Decision

Issue 1: Use of the note under the Ahern principle

The Ahern principle permits acts or words of an alleged co-conspirator, made outside the accused's presence, to be used to prove the accused's participation in a conspiracy, provided three conditions are met: there was a combination of the type alleged, the acts or words were in furtherance of a common purpose, and reasonable evidence apart from those words establishes the accused's participation (at [6]). The court accepted that all three conditions were at least arguably satisfied in respect of the note (at [7]-[8]).

However, the court found the note to be wholly equivocal on the question of whether Mr Dickson was asserting that the accused already knew about the intended cash flows at the time the note was written (at [12]). The note's contents were equally consistent with Mr Dickson intending to inform the accused of those matters for the first time the following day. Allowing the Crown to address the jury on the Ahern basis, and directing the jury accordingly, would in those circumstances be unfair and unwarranted (at [13]).

Issue 2: Use of the note as evidence of what was discussed at the meeting

The court accepted that the juxtaposition of the phrase "Discussion Zac Saturday" with a diagram depicting a flow of funds to the accused made it fairly open to infer that Mr Dickson intended to raise that topic with the accused at the Saturday meeting, and did so (at [17]). The accused had been cross-examined about the note and had been given a clear opportunity to deny that the cash distribution was discussed (at [18]). No unfair prejudice arose from permitting this more limited use of the note.

Issue 3: Restriction under s 136 of the Evidence Act

Exercising the power under s 136 of the Evidence Act 2005 (NSW) to limit the use of admitted evidence, the court restricted the note to use as evidence of Mr Dickson's state of mind and of what he proposed to discuss with the accused. It could not be used as evidence of an implied representation that the accused was already a participant in the conspiracy (at [13], [19]).

Orders Made

  • Pursuant to s 136 of the Evidence Act 2005 (NSW), the use of the document at page 513A of Exhibit A is restricted to evidence of Mr Dickson's state of mind and what he proposed to discuss with the accused.

Key Takeaways

  • Even where the preconditions for the Ahern principle are technically satisfied, a trial judge retains a discretion to restrict the use of a co-conspirator's statement where its contents are equivocal and its admission on that basis would be unfair to the accused (at [9]-[13]).

  • A document that is ambiguous as to whether a co-conspirator regarded the accused as already involved in a conspiracy cannot be used, under Ahern, as an implied assertion of that prior involvement (at [11]-[12]).

  • Under s 136 of the Evidence Act 2005 (NSW), a court may restrict an already-admitted document to a narrower use than the party tendering it seeks, including after the close of evidence and immediately before closing addresses.

  • The equivocal nature of a document's contents is a significant factor in the exercise of the exclusionary discretion, even where the formal conditions for admissibility under established common law principles are met (at [11]-[13]).

  • A note recording what a co-conspirator proposed to raise in a forthcoming meeting may support an inference that those matters were in fact discussed, and may be used for that limited purpose where the opposing party had an opportunity to respond in cross-examination (at [17]-[18]).

Legislation and Cases Referenced

Legislation
- Evidence Act 2005 (NSW) – s 136

Cases
- - Ahern v R [1988] HCA 39, 165 CLR 87
- - R v Dickson, R v Issakidis (Number 9) [2014] NSWSC 1460
- - R v Masters, R v Richards, R v Wunderlich (1992) 26 NSWLR 450