Citation: R v Alex & Ors (Trial Ruling No 7) [2024] NSWSC 1137
Court: Supreme Court of New South Wales
Date: 24 October 2024
Judge(s): Fagan J
Background
This ruling arises from a criminal trial in which multiple accused faced charges connected to two Payroll Services Agreements. The Crown contended those agreements were shams, meaning they were not intended to be performed according to their terms and were not in fact observed or implemented. The agreements had been made between related companies (GHRC and CPC) and a company called Prime, with the accused relying on the agreements as part of their defence.
During closing addresses, counsel for one accused (Mr McAndrew) made two factual assertions to the jury: first, that Prime had rendered invoices in accordance with the rates set out in the agreements, and second, that GHRC had paid those invoices. Both assertions were contradicted by unchallenged evidence before the court. The trial judge corrected these misstatements during the summing up by directing the jury to the actual evidence.
At the conclusion of the summing up, counsel for two other accused (Mr Kirschberg and Mr George Alex) applied for a re-direction, arguing that the trial judge's references to the invoice evidence went beyond arguments the Crown itself had advanced and amounted to procedural unfairness.
Legal Issues
- Whether the trial judge's references to invoice evidence in summing up constituted argument in support of the Crown's case rather than a legitimate correction of factual misstatements made in closing address
- Whether the accused were denied procedural fairness by the trial judge identifying, in summing up, evidence tending against the sham argument that the Crown had not itself relied upon in its closing
- Whether a re-direction to the jury was warranted in the circumstances
Decision
Issue 1: Whether the summing up improperly advanced a Crown argument
Fagan J rejected the characterisation that the passages in question constituted argument in support of the Crown's sham contention. The references were to evidence, not argument, and they were necessary to correct two distinct factual misrepresentations made by counsel for Mr McAndrew in closing address (at [3]). Those misrepresentations concerned whether invoices had been rendered according to the agreement rates and whether payments had been made in accordance with those invoices, both of which were contradicted by unchallenged evidence (at [5]-[7]).
The trial judge had warned counsel for Mr McAndrew before he concluded his address that his submissions misrepresented unchallenged evidence, but counsel did not withdraw the misstatements (at [8]-[9]). That made explicit correction in summing up, with reference to the contradicting evidence, necessary (at [9]).
Issue 2: Whether procedural fairness required a re-direction
Fagan J noted that counsel for Mr Kirschberg had been on notice, before delivering his own closing address, that the misstatements would be corrected in summing up. Counsel was therefore aware the jury would be reminded of the actual invoice evidence (at [10]). Despite being invited on two separate occasions to identify what arguments he would have made in address but for the sequence of events, counsel provided no substantive response and ultimately acknowledged a factual error in the only explanation he proposed (at [20]-[22]).
The court found no unfairness in the jury being reminded of unchallenged evidence that directly contradicted an affirmative argument run without foundation (at [15]). The fact that the Crown had not itself relied on this body of evidence in support of its sham argument did not make the correction unfair; it was a consequence of counsel for Mr McAndrew having advanced a baseless affirmative submission (at [15]).
Issue 3: Application by counsel for Mr George Alex
Fagan J rejected the re-direction application made on behalf of Mr George Alex for the same reasons given in dismissing Mr Kirschberg's application (at [25]). The submission that the summing up had offered a conclusion that the agreements were shams, without the Crown having relied on the relevant evidence, was not accepted.
Orders Made
- Application for redirection refused.
Key Takeaways
- A trial judge's correction in summing up of factual misstatements made by counsel in closing address constitutes a reference to evidence, not the advancement of argument, and does not give rise to a ground for re-direction merely because the correcting evidence was not relied upon by the opposing party in its own address (at [3], [15]).
- Where counsel makes affirmative submissions to a jury that are contradicted by unchallenged evidence, and the trial judge has warned counsel of that deficiency before the address concludes, the jury is entitled to be directed to the actual evidence regardless of whether the correcting party raised it in its own submissions (at [8]-[9], [15]).
- An accused cannot successfully claim procedural unfairness from the correction of a co-accused's counsel's misstatement where the accused's own counsel was on notice that the correction would occur in summing up and elected not to address the jury on any explanations for the relevant evidence (at [10], [18]).
- Sufficient reason for a re-direction exists only where counsel can identify an arguable explanation for the evidence in question that was not anticipated or addressed. Where counsel provides no substantive response when invited to do so on two occasions, no basis for re-direction is established (at [19]-[23]).
- The circumstance that evidence tending to prove a particular proposition emerges in summing up by way of correction, rather than in the Crown's own closing submissions, does not of itself constitute procedural unfairness to the accused (at [15]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated