Citation: [2017] NSWSC 1864
Court: Supreme Court of New South Wales
Date: 27 November 2017
Judge(s): Adamson J
Background
Two accused, referred to by their roles as the first accused and the second accused, faced proceedings in which the Crown alleged that payments made by a major bank to a UK-registered company were used to disguise the true nature of remuneration paid to the second accused. The Crown's case was that the UK company was a vehicle to avoid income tax liability rather than a genuine business earning the payments as income.
The Crown sought to tender annual reports and financial accounts of the UK company, covering years from 1997 to 2007, to demonstrate that the company's recorded financial activity was minimal and did not include the bank payments. These documents were sourced from the website of Companies House in the United Kingdom.
Counsel for the first accused objected to the admission of those documents, prompting a voir dire (a preliminary hearing held to determine the admissibility of evidence before it goes before the jury).
Legal Issues
- Whether the annual reports and accounts qualified as business records within the meaning of s 69 of the Evidence Act 1995 (NSW)
- Whether, even if admissible, the court should limit the use of the documents under s 136 of the Evidence Act on the basis of unfair prejudice or the risk of misleading or confusing the jury
Decision
Issue 1: Business records under s 69
The first accused's counsel argued that provenance had not been adequately established because the documents were downloaded from a website. The court rejected that argument. A witness statement from an investigator described how she obtained the financial accounts and annual returns from the Companies House website for certain years, and how the Australian Taxation Office obtained the remaining years' accounts. Adamson J found that evidence sufficient to establish the documents' provenance (at [4]-[5]).
The court also noted that the Dictionary to the Evidence Act expressly defines "business" to include a business conducted in another country, which brought the UK company's records within the scope of s 69 (at [5]). The annual reports and accounts were therefore admissible as business records.
Issue 2: Limiting use under s 136
The first accused's counsel submitted that the documents should not be used against his client because they did not show that the first accused had any involvement with the UK company or in preparing its accounts. Adamson J accepted that the documents did not establish such involvement on their face (at [6]).
However, the court was not persuaded that any use to which the documents might be put would be unfairly prejudicial to the first accused, or that the documents would mislead or confuse the jury within the meaning of s 136. Accordingly, no limitation on use was imposed (at [6]).
Orders Made
- Documents admitted into evidence under s 69 of the Evidence Act 1995 (NSW) in the Crown case
Key Takeaways
- Under s 69 of the Evidence Act 1995 (NSW), annual reports and accounts of a foreign-registered company can qualify as business records, because the Act's Dictionary defines "business" to include a business conducted in another country (at [5]).
- A witness statement describing how documents were downloaded from an official government registry website (Companies House UK) was sufficient to establish provenance for the purposes of s 69 admissibility (at [4]-[5]).
- The fact that an accused is not shown on the face of tendered business records to have been involved in their preparation does not, of itself, warrant a limitation on their use under s 136 (at [6]).
- A s 136 limitation requires the court to be satisfied that the proposed use of the documents would be unfairly prejudicial to a party, or would mislead or confuse the jury. The mere absence of a direct connection between an accused and the documents did not meet that threshold here (at [6]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 69, 136, Dictionary
Cases
- Not stated