R v Waldron (No.1) [2024] NSWDC 157

District Court New South Wales

Medium Neutral Citation: R v Waldron (No.1) [2024] NSWDC 157 Hearing dates: 4 March 2024 Date of orders: 4 March 2024 Decision date: 08 March 2024 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application refused Catchwords: Accused's application to exclude evidence; Leave given to witness to refresh memory pursuant to s32 of the Evidence Act (1995); Whether evidence given was hearsay and should be excluded Legislation Cited: Crimes Act 1900 (Cth) Evidence Act 1995 (NSW) Evidence Act 2008 (VIC) Fair Work Act 2019 (Cth) Cases Cited: Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43 CSR Ltd & Anor v Amaca Pty Ltd (2016) 62 VR 359; [2016] VSCA 320 R v Woods [2023] NSWSC 1163 Category: Procedural rulings Parties: Jon Gordon Waldron (Accused) Director of Public Prosecutions (the Crown) Representation: Counsel: Mr P Lange (Accused) Mr D Morters SC (the Crown)

Solicitors: P Gibson (Accused) H Pais (the Crown) File Number(s): 2015/90725

JUDGMENT on APPLICATION BY THE ACCUSED TO EXCLUDE EVIDENCE of A witness

Introduction 1. The accused was arraigned on 5 February 2024 on an Indictment containing 10 Counts. Counts 1 to 7 concern allegations that the accused received payments alleged to be made corruptly pursuant to s249B (1) of the Crimes Act 1900 (NSW). Counts 8 to 10 concern allegations that the accused aided and abetted Keith Hunter to corruptly receive payments pursuant to s249B(1) and s249F(1) of the Crimes Act 1900 (NSW). Both the accused and Mr Hunter were at all material times employed by CBA in senior positions in technology and operations and IT engineering. The payments are said to arise as a reward to them for facilitating a third-party supplier of software, Service Mesh Inc. ("SMI"), to enter into supply contracts with CBA. 2. SMI was based in the USA. It started supplying software services to CBA in 2009 and in 2011 it signed a Master Service Agreement with CBA. The principal shareholder was Mr Pulier who it is alleged developed a close working relationship with the accused. 3. In October 2013, SMI entered into an equity purchase agreement ("EPA") with Computer Sciences Corporation ("CSC"), with a first payment of US $93m. The EPA provided that, during an earnout period between 1 January 2013 and 31 January 2014, if SMI achieved revenue exceeding US$20mil CSC would pay SMI's shareholders an additional "earnout payment" equal to approximately ten times that additional revenue. 4. The Crown alleges that contracts entered into between CBA and SMI in December 2013 (TDs 19-21) and January 2014 (TDs 17, 22-29) were facilitated by the accused and Mr Hunter to enable SMI to increase its revenue during the earnout period above US$20 million dollars, to the benefit of SMI shareholders who received an earnout payment of over US$98 million, the largest payment going to Mr Pulier. The Crown case is that Pulier made payments in 2014 via a Mr Goldstein, or a corporation registered by him (ACE Inc.), to both the accused and Mr Hunter as a reward for their ensuring the contracts with CBA were made within the earnout period; that the 10 payments subject of the Counts on the Indictment were received without the knowledge of CBA and were received corruptly by the accused (in respect of Counts 1 to 7); and that the accused aided and abetted Hunter to receive the payments corruptly (Counts 8 to 10). 5. On 17 December 2014 the accused was interviewed by investigators employed by the CBA, Messrs Keaney and Murphy. Ms Kate Brown was at the time employed by CBA within Group Services Legal and she attended the meeting and took contemporaneous notes of what was said during the meeting. Ms Brown was called as a witness in the Crown case on 1 March 2024. She gave evidence that she had a recollection that the meeting took place but did not have a specific recollection of what was said. After the meeting she had arranged for her contemporaneous notes to be typed up and she had checked them word for word to ensure the typed document was an accurate reflection of her handwritten notes. 6. The Crown made an application pursuant to s32 of the Evidence Act 1995 (NSW) ("the EA") that Ms Brown be given leave to refer to her handwritten notes. Leave was granted on the basis that her evidence in chief would be taken on the voir dire. The handwritten notes were marked as Exhibit A1 on the voir dire and the typed transcript thereof were marked as Exhibit A2 on the voir dire. A transcript of the notes taken by the investigator Mr Murphy during the interview later became Exhibit B on the voir dire.