Citation: R v Agius; R v Castagna (No 10) [2018] NSWSC 2042
Court: Supreme Court of New South Wales
Date: 15 March 2018
Judge(s): Adamson J
Background
Two accused, referred to here as the first accused and the second accused, stood charged with multiple counts including conspiracy to commit tax fraud, conspiracy relating to proceeds of crime, and (for the second accused) alternative counts of dishonest under-declaration of income across ten consecutive tax years from 1999 to 2008. A central plank of the second accused's defence was that he had relied on advice from senior counsel concerning the tax treatment of companies limited by guarantee incorporated in Vanuatu.
During the trial, the prosecution called a witness who had, in the early 1990s, independently received oral advice from the same senior counsel on a related topic, on behalf of a different client. That witness had confirmed in earlier evidence, without objection, that a written advice in evidence was consistent with the oral advice he had previously received.
Counsel for the second accused then sought to question the witness about his personal understanding of a particular paragraph of that written advice. The Crown objected on relevance grounds, and Adamson J rejected the question, delivering short reasons for the ruling.
Legal Issues
- Whether one witness's understanding of a paragraph of legal advice is relevant to establishing what a different person (the accused) understood from that advice.
- Whether a "common understanding" among recipients of advice from the same barrister is a concept capable of supporting the admission of the question.
- Whether the witness's understanding was relevant to the reasonableness of the accused's understanding of the advice.
- Whether the witness's purported specialist expertise made his interpretation of the advice admissible to assist the jury.
Decision
Issue 1: "Common understanding" of advice recipients
The court rejected the proposition that a "common understanding" among persons who received advice from the same barrister was a legally meaningful or relevant concept in these circumstances. There was no suggestion that the witness had obtained the advice on behalf of the second accused, nor that the second accused had ever discussed the advice's meaning with the witness (at [6]). The witness's personal understanding accordingly had no bearing on the state of mind of the second accused, which was the matter actually in issue.
Issue 2: Relevance to reasonableness of the accused's understanding
Adamson J also rejected the alternative submission that the witness's understanding bore on the reasonableness of the second accused's own understanding. The written advice had already been confirmed to be consistent with the oral advice the witness received, and there was no suggestion that the relevant words carried any arcane or non-obvious meaning (at [7]). Asking the witness to construe a document he did not author, for the purpose of illuminating what was in the second accused's mind, was not permissible. The answer would have been irrelevant and risked misleading the jury (at [7]).
Issue 3: Witness as expert interpreter
The court also dismissed the argument that the witness possessed specialist expertise that made his interpretation of the advice valuable to the jury. Even accepting that the witness had some relevant knowledge, his interpretation of the advice could not assist the jury with the question that actually mattered: the state of mind of the second accused when he received the advice and the effect, if any, it had on how he answered questions in his tax returns (at [8]).
Orders Made
- Questions relating to the witness's understanding of the written advice (Exhibit 2D32) were rejected.
Key Takeaways
- A witness's personal understanding of a piece of legal advice does not become relevant merely because the accused received advice from the same source, where there was no connection between the witness's receipt of that advice and the accused's own understanding of it (at [6]).
- There is no general legal principle recognising a "common understanding" among different recipients of advice from the same adviser as a category of admissible evidence going to an accused's state of mind (at [6]).
- Asking a witness to construe a document they did not author, for the purpose of establishing what was in an accused's mind, is impermissible where the witness had no relevant connection to the accused's thought process (at [7]).
- Even where a witness has specialist knowledge, that knowledge does not render the witness's interpretation of legal advice admissible if it cannot assist the jury in resolving the actual fact in issue, here the accused's state of mind (at [8]).
- Evidence that is irrelevant and that might mislead the jury is appropriately rejected, regardless of how the relevance argument is framed, whether as "common understanding," reasonableness, or expert interpretation (at [6]-[8]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated