Citation: Issakidis v R [2019] NSWCCA 302
Court: Court of Criminal Appeal, NSW
Date: 20 December 2019
Judge(s): Bathurst CJ; Hoeben CJ at CL; Gleeson JA
Background
The appellant was a company director who, together with a co-conspirator, stood accused of orchestrating a scheme to lodge false depreciation claims in corporate tax returns over a four-year period, causing a loss to the Commonwealth in excess of $100 million. The claims were purportedly referable to the costs of acquiring three medical technologies, but no such acquisition costs were ever incurred. A second charge alleged that the pair had dealt with the resulting cash distributions from associated trusts, knowing those funds to be proceeds of crime.
The case had an unusually protracted procedural history. Before the trial that ultimately produced convictions, the appellant had faced three earlier trials: the first was aborted due to late Crown disclosure, the second because of juror research misconduct, and the third because the jury could not reach a verdict. The fourth trial commenced in April 2017 and concluded with guilty verdicts on both counts in June 2017.
The appellant was sentenced to a total effective term with a non-parole period of seven years and six months. He appealed his convictions on two grounds: alleged improper pressure applied to the jury during deliberations, and the wrongful admission of amended tax assessment documents as evidence.
Legal Issues
- Whether the trial judge improperly applied pressure to the jury, interfering with free deliberation, in breach of the appellant's rights and potentially of section 80 of the Commonwealth Constitution (which guarantees trial by jury for federal indictable offences)
- Whether the admission of the Australian Taxation Office's amended assessments of the company for the relevant years (Exhibit M) was an error, on the basis that the documents reflected the Commissioner of Taxation's opinion on a matter that was itself a question for the jury
Decision
Ground 1: Jury pressure
During deliberations, which ran across fourteen days, the trial judge received jury notes requesting both an adjournment so that a juror could attend a job interview, and a second letter to a juror's employer explaining the extended duration of the trial. The trial judge refused both requests, with the agreement of counsel on both sides, telling the jury that the case had to take precedence. The jury reached its verdict that same afternoon.
The Court held that neither refusal constituted improper pressure on the jury. The trial judge's conduct did not constrain the jury's deliberations or compel a hasty verdict. The Court emphasised that the jury had been told at the outset that there was no time pressure to reach any verdict by a particular date. The constitutional ground, framed as a breach of section 80 of the Commonwealth Constitution, added nothing to the common law ground and was similarly rejected. Leave to appeal on this ground was granted, but the appeal on the ground was dismissed.
Ground 2: Admissibility of amended tax assessments
The appellant did not object to the admission of Exhibit M at trial. Under rule 4 of the Criminal Appeal Rules (NSW), leave is required to raise a ground not raised at trial, and the Court noted that satisfying that requirement is extremely difficult where no objection was made and no ruling was therefore sought from the trial judge. The Court found that the appellant had not demonstrated any injustice from the admission of the documents, let alone a genuine chance of acquittal that was lost as a result. The central factual question at trial was whether the depreciation expenses were fraudulent, and the jury did not need to engage in any detailed analysis of the returns or assessments to resolve that question. Leave to appeal on this ground was refused.
Orders Made
- Leave to appeal granted on Ground 1
- Leave to appeal refused on Ground 2
- Appeal dismissed
Key Takeaways
- Refusing a juror's request to adjourn deliberations for a job interview, and declining to provide a second employer letter explaining the trial's length, did not constitute improper pressure on the jury where the refusals were made with the agreement of both parties and the jury had been told from the outset that no time pressure existed.
- A constitutional challenge under section 80 of the Commonwealth Constitution (trial by jury) will not succeed merely by reframing a common law ground about jury pressure without independent constitutional content.
- Under rule 4 of the Criminal Appeal Rules, an appellant seeking leave to raise an evidentiary objection not taken at trial must demonstrate a real chance of acquittal was lost. The Court of Criminal Appeal confirmed that this is a high threshold, particularly where the trial judge was never asked to rule on admissibility.
- Where evidence is admitted without objection and the central factual issues at trial did not turn on that evidence in any detailed way, demonstrating the requisite injustice to obtain leave under rule 4 will be very difficult.
- A lengthy and complex procedurally disrupted case does not, without more, generate appellate grounds: each of the grounds here turned on specific conduct during the fourth trial and was assessed on its own merits.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 135.4(5), 11.5(1), 400.3(1)
- Commonwealth Constitution, s 80
- Criminal Appeal Rules (NSW), r 4
- Crimes Act 1914 (Cth), s 19AB(1)
Cases
- Black v R (1993) 179 CLR 44; [1993] HCA 71
- Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9; (2019) 93 ALJR 424
- R v Tangye (1997) 92 A Crim R 545
- R v Prasad (1979) 23 SASR 161
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- ARS v R [2011] NSWCCA 266
- Roach v R [2019] NSWCCA 160
- Dickson v R [2016] NSWCCA 105
- Pratten v R [2014] NSWCCA 117
- Phan v R [2018] NSWCCA 225
- R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595
- R v Anthony James Dickson (No 18) [2015] NSWSC 268
- R v Issakidis [2016] NSWSC 1102; [2018] NSWSC 378