Citation: [2026] NSWDC 148
Court: District Court of New South Wales
Date: 15 May 2026
Judge(s): Abadee DCJ
Background
Three co-accused, a former solicitor (PC) and two family members (MC and AC), face a joint charge of dishonestly obtaining real property by deception contrary to s 192E(1)(a) of the Crimes Act 1900 (NSW). The property, located in Glebe, had belonged to a deceased person whose estate PC's law firm was originally retained to administer in 1996. No next of kin were ever located.
The Crown alleges that from around mid-2003, PC and MC entered a joint criminal enterprise to obtain the property for MC and AC. AC is alleged to have joined the enterprise in November 2013. The Crown's case centres on allegedly false statements made in a possessory application lodged with the Land Titles Office, which ultimately resulted in MC and AC being registered as proprietors of the property despite never having paid to acquire it.
Before the trial (scheduled to commence on 18 May 2026), the accused brought several joint applications: to exclude evidence relating to PC's alleged professional misconduct, to exclude two expert reports (one by an investigator appointed by the Law Society, the other by a solicitor), and for a trial by judge alone. The judgment addressed the interrelationship between these applications, noting that prejudice arguments concerning expert evidence might lose force if the trial proceeded without a jury.
Legal Issues
- Whether evidence relating to PC's alleged professional misconduct should be excluded on grounds that its probative value was outweighed by the danger of unfair prejudice (s 137, Evidence Act 1995 (NSW))
- Whether the expert report of Mr Courtenay (the Law Society investigator) and the report of Mr Neal (a solicitor) should be excluded
- Whether it was in the "interests of justice" to order a trial by judge alone under ss 131 and 132 of the Criminal Procedure Act 1986 (NSW), having regard to the risk of jury prejudice and the legal and factual complexity of the case
- How the Crown's joint enterprise case operated, including whether the Crown needed to prove a specific agreement to commit all elements of the offence at the time the enterprise was allegedly formed
- The relevance of PC's conduct as a solicitor before the alleged "agreement" was entered into, and whether expert evidence about solicitors' professional obligations was admissible in the context of the fraud charge
Decision
The court recognised a significant overlap between the evidentiary exclusion applications and the judge-alone application. It determined to hear the evidentiary arguments first, reasoning that understanding the nature of the potentially prejudicial material would better inform the judge-alone determination.
On the Crown's joint enterprise case, the court noted the Crown's reliance on the High Court's recent decision in Obeid v The King [2026] HCA 1, which held that in conspiracy cases the Crown need not allege and prove specified acts at the point of the agreement. The Crown argued this principle applied analogously to joint enterprise liability. The accused contended Obeid was distinguishable because conspiracy and joint enterprise liability are doctrinally different. The court expressly declined to resolve whether the Crown's formulation of joint enterprise liability was capable of proving guilt, instead proceeding on the assumed basis that it was.
Regarding the professional misconduct evidence, the court noted that PC had been the subject of a complaint referred to the Law Society from around February 2015, with Mr Courtenay appointed as investigator in 2018. The accused argued that his expert report and police statement largely reproduced opinions about professional misconduct that were irrelevant to the fraud charge and carried a high risk of unfair prejudice, particularly before a jury.
The court also acknowledged the procedural agreement that it would not need to assess the s 137 exclusion question differentially for each accused at this stage. Individual accused could seek limitations under s 136 at trial regarding which evidence was admissible against whom. (The judgment text as provided is truncated and does not disclose the final rulings on each application.)
Orders Made
- The full text of the judgment was truncated, so the precise orders made on each application cannot be confirmed from the available material.
- The court heard and considered the four interrelated applications (exclusion of professional misconduct evidence, exclusion of the Courtenay report, exclusion of the Neal report, and the judge-alone application) in advance of the trial listed for 18 May 2026.
Key Takeaways
- In cases involving multiple pre-trial applications concerning prejudice and trial mode, the District Court adopted the approach of resolving evidentiary exclusion arguments first, so that the scope of potentially prejudicial material could properly inform the judge-alone application.
- The Crown's reliance on Obeid v The King [2026] HCA 1 to support a "rolling" or evolving joint enterprise (where the specific dishonest acts were not yet determined at the time of the initial agreement) was contested by the defence, who argued that joint enterprise liability is doctrinally distinct from conspiracy.
- Where one co-accused is a former solicitor subject to a disciplinary investigation, the admissibility of evidence about professional misconduct raises significant questions about probative value versus unfair prejudice under s 137 of the Evidence Act 1995 (NSW), particularly in a jury trial.
- Under ss 131 and 132 of the Criminal Procedure Act 1986 (NSW), the apprehension of prejudice from complex or profession-specific evidence and the legal complexity of joint enterprise principles were both raised as relevant factors in determining whether the "interests of justice" favoured a judge-alone trial.
- A procedural agreement allowed the court to assess s 137 objections collectively for all co-accused at the pre-trial stage, reserving the right of individual accused to seek s 136 use limitations at trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(a), 4B
- Criminal Procedure Act 1986 (NSW), ss 131, 132
- Evidence Act 1995 (NSW), ss 55, 79, 80, 136, 137, 177
- Corporations Act 2001 (Cth), s 9
Cases:
- Obeid v The King [2026] HCA 1; (2026) 426 ALR 708
- Osland v The Queen (1998) 197 CLR 316
- Peters v The Queen (1998) 192 CLR 493
- Patel v The Queen (2012) 247 CLR 531
- Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 624
- R v Petroulias (2005) 62 NSWLR 663
- R v Simmons; R v Moore [2015] NSWSC 259
- Bazouni v R [2021] NSWCCA 256
- Day v R (No 2) [2023] NSWCCA 312
- R v Dawson [2022] NSWSC 552
- R v Batak (No 6) [2025] NSWSC 658
- R v Saliba (No 2) [2025] NSWSC 155
- Evans v Smith [2025] NSWCA 102
- Allianz Australia Ltd v Sim [2012] NSWCA 68
- R v Monteleone [2026] NSWDC 83