Citation: [2024] NSWDC 158
Court: District Court of New South Wales
Date: 28 March 2024
Judge: Mahony SC DCJ
Background
The accused stood trial on charges relating to the corrupt receipt of money (Counts 1 to 7) and aiding and abetting another person to corruptly receive money (Counts 8 to 10). The accused maintained a positive case that payments he and another person received were made for work done, or work to be done, rather than as bribes.
At the close of the defence case, the accused applied to adduce evidence from a deposition given by an American accountant, Shannon Sugar, who had provided accounting services to a key figure in the proceedings and his related companies. Ms Sugar had given sworn testimony in separate US Securities and Exchange Commission proceedings in June 2020. She was unwilling to cooperate with the defence, and the Crown did not dispute that she was unavailable to give evidence in the trial.
The application sought to place before the court extracts of Ms Sugar's deposition bearing on tax minimisation activities, expressed intentions to establish a not-for-profit corporation, and intentions to make payments to certain persons within particular timeframes. The accused argued this evidence supported the legitimacy of the payments he received.
Legal Issues
- Whether Ms Sugar's deposition extracts were admissible as previous representations of an unavailable person under section 65(2) and section 65(8)(b) of the Evidence Act 1995 (NSW).
- Whether emails from two other individuals, referred to in the deposition, constituted first-hand hearsay admissible under section 66A of the Evidence Act, consistently with the first-hand hearsay restriction in section 62.
- Whether the evidence was relevant to a fact in issue under section 55 of the Evidence Act.
- Whether the court should exercise its discretion to exclude the evidence under section 135 of the Evidence Act on grounds of unfair prejudice, confusion, or misleading nature.
Decision
Issue 1: Admissibility of Ms Sugar's own representations under section 65
The court was satisfied that Ms Sugar's representations in her deposition were made under oath and in circumstances making it highly probable they were reliable, satisfying section 65(2)(a) and (c) (at [46]). The representations were also contained in a document, satisfying section 65(8)(b) (at [47]). The Crown had conceded these preconditions were met. The court granted the application in respect of this first category of evidence.
Issue 2: Admissibility of the emails under section 66A
The court found that the emails from the two individuals concerning future intentions, namely to establish a not-for-profit corporation and to make payments within a particular timeframe to minimise tax liabilities, constituted first-hand hearsay within section 62(3) of the Evidence Act (at [48]). The representations were made contemporaneously about the authors' intentions or state of mind, and the court held they were admissible as an exception to the hearsay rule in section 59, pursuant to section 66A (at [49]). The court distinguished the Court of Criminal Appeal's decision in Vickers v R on the basis that, in that case, the representations in question were not relevant to a fact in issue, whereas here they were (at [49]).
Issue 3: Relevance
The court rejected the Crown's submission that the evidence was irrelevant. The ultimate facts in issue were whether payments were made corruptly or for work done. Evidence bearing on the payer's intentions and the tax-driven reasons for the timing and structure of payments was capable of rationally affecting the assessment of those facts (at [45]). The Crown's characterisation that the payments "could equally be bribes or legitimate payments" regardless of the evidence was described as misconceived (at [45]).
Issue 4: Exclusion under section 135
The court rejected the Crown's submission that the probative value was zero and refused to exercise its discretion to exclude the evidence under section 135 (at [53]). The court noted that the Crown had never intended to call the relevant individuals as witnesses, and that the untested nature of the evidence could go to weight rather than admissibility. Adopting the reasoning of Heydon JA in R v Clark, the court observed that excluding hearsay evidence solely because it cannot be cross-examined would undermine the legislative intention behind the hearsay exceptions (at [53]). The court also noted that, as a judge-alone trial, there was no risk of misuse of the evidence by a jury (at [53]).
Orders Made
- The accused's application to adduce the highlighted portions of Ms Sugar's deposition was granted.
- The highlighted portions of the deposition (Exhibit 2 on the voir dire) were directed to be extracted into a separate document to become Exhibit 119 in the trial, to be filed on or before 5 April 2024.
Key Takeaways
- A sworn deposition given by an unavailable witness in foreign proceedings can satisfy the reliability preconditions in section 65(2)(a) and (c) of the Evidence Act where the testimony was given under oath and in circumstances making fabrication unlikely (at [46]).
- Under section 66A of the Evidence Act, expressions of future intention or state of mind recorded in emails are admissible as an exception to the hearsay rule in section 59, provided the person with direct knowledge of those representations gives evidence of them, satisfying the first-hand hearsay requirement in section 62(3) (at [48]-[49]).
- Relevance under section 55 is assessed by asking whether the evidence, if accepted, could rationally affect the probability of a fact in issue. Where the central question is whether payments were corrupt or for legitimate purposes, evidence of the payer's stated intentions and tax-driven motivations can meet that threshold (at [45]).
- Refusing to exercise the section 135 discretion to exclude evidence on the ground that the opposing party cannot cross-examine the maker of a hearsay representation does not, without more, constitute unfair prejudice. To exclude evidence on that basis alone would effectively write the hearsay exceptions out of the Evidence Act, contrary to legislative intention (at [53]).
- In a judge-alone trial, the absence of a jury reduces the risk of misuse of untested hearsay evidence, a factor the District Court treated as relevant to the section 135 analysis (at [53]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Boral Resources Ltd (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling No. 2) [2015] VSC 459
- Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Kuzmanovic [2005] NSWSC 771
- Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9