New South Wales District Court CITATION: R v Neil Gordon CAMM; R v Harold Charles CARY; R v Elizabeth May QUINCE; R v Brendan Matthew GODFREY; R v Lindsay Douglas WATSON [2008] NSWDC 39 HEARING DATE(S): 4 February 2008 JUDGMENT DATE: 5 February 2008 JURISDICTION: Criminal JUDGMENT OF: Goldring DCJ DECISION: Direct that evidence be admitted CATCHWORDS: EVIDENCE - tendency evidence - evidence of context - evidence of conspiracy LEGISLATION CITED: Evidence Act 1995 (Cth) Criminal Code 1995 (Cth) CASES CITED: R v Saffron (1988) 17 NSWLR 395 R v Cornwell (2003) 57 NSWLR 82 Crown Neil Gordon Camm (Accused) PARTIES: Harold Charles Cary (Accused) Elizabeth May Quince (Accused) Brendan Matthew Godfrey (Accused) Lindsay Douglas Watson (Accused) FILE NUMBER(S): 07/11/0355 P Roberts SC with C A Webster (Crown) C Miralis (Camm) COUNSEL: G Newton (Cary) J Trevallion (Quince) J Sabharwal (Godfrey) T Pasi, solicitor (Watson) Commonwealth DPP Nyman Gibson (Camm) SOLICITORS: John Klees & Assoc (Cary) Ross Hill & Assoc (Quince) Wood Fussell Solicitors ACT (Godfrey) Pappas J Attorney ACT (Watson) JUDGMENT 1 HIS HONOUR: I reserved last night my ruling on an objection taken, I think, by several of the accused to the Crown leading evidence of applications by the accused Cary and Quince to ATSIC in February 2001 for a loan enabling them to purchase a property known as 'J', and to evidence concerning the attempts by those two accused, with the knowledge and perhaps the participation of the accused Watson, to obtain first, a loan to purchase that property, and secondly, in relation to a property called 'N'. That application had two aspects, first an application to purchase the property and then to obtain a "rebate" of $600,000. 2 The application was made in the name of Ms Quince. Mr Cary is named on the application form as the spouse of Ms Quince and Mr Watson is alleged to have been involved in the preparation of the application form, and, indeed, to have written parts of it. 3 The Crown says that the application form was misleading, in particular that the applicants stated falsely that they had over one million dollars in assets, and also in that they failed to mention a property at Coleambally, where they were living, and which was subject to a mortgage that was in default. 4 It is anticipated that the evidence will be that the purchase of the 'J' property did not proceed because that property was too expensive, and that in the event the proposed purchase of the 'N' property did not proceed because there was a dispute about the ownership of that property so that it was not available for purchase. Ms Quince and Mr Cary then sought to purchase, and did in fact purchase a property called 'V'. 5 The Crown alleges that the important thing for the alleged conspirators was to ensure that there was a property available which would be the subject of a purchase, but the Crown says that the nature of the property was irrelevant, provided that its value was less than the amount of the loan that had been approved to the accused, Ms Quince, after the initial application. 6 The Crown alleges, if I understand correctly, that the initial obtaining of the loan was not part of the conspiracy, but that the conspiracy consists of what the accused did subsequent to the initial approval of the loan in order to have money paid by ATSIC to themselves. 7 The accused objected on the basis that this evidence was not relevant to a conspiracy which the Crown alleges was committed between May 2001 and May 2002, and also on the basis that the allegations of falsity in the application had little probative value and that probative value is outweighed by the danger of unfair prejudice to the accused. 8 Counsel for the accused Camm and Godfrey say that the evidence cannot be used against their clients who did not become involved in any way with the other alleged conspirators until much later. 9 The Crown's response is that where the offence charged is conspiracy it is different in that the elements of the offence charged consist of a discrete event or events. Where conspiracy is alleged the offence is a continuing one, and in this case what is alleged is that two of the accused, with the complicity of a third, applied to ATSIC for a loan on a basis that was completely false or substantially false, and that after that their activities continued with the intention of obtaining money from ATSIC which they were not entitled to. The accused Camm and Godfrey allegedly joined in the conspiracy at a later stage. For that reason the Crown says anything done by any of the alleged conspirators at any time, whether before or after the dates charged in the indictment, may be or is relevant to show either the illegal act or illegal agreement or the illegal purpose. Events such as those which the Crown alleges in relation to the initial application may therefore have high probative value in relation to the essential elements of the conspiracy. 10 The Crown argues that this evidence is more than the type of evidence often given in cases of sexual assault to ensure that the jury does not form a mistaken view that the events alleged in the indictment happened in isolation, and that evidence is led to provide a context for those events. The Crown says in fact that the evidence in relation to 'J' and 'N' is part of the evidence of the conspiracy charged, either direct or circumstantial. 11 Conspiracy is an offence that is different in nature from other offences in that it can refer to a continuing pattern of behaviour rather than a discrete event or series of events carried out with a particular intention. Of course intention is an essential element of the offence of conspiracy. It is quite clear from the authorities that to ensure fairness to the accused the Crown must point to specific behaviour on the part of the accused, which is said to constitute the offence, but that behaviour may occur over a long period, as is the case here. 12 The alleged behaviour of the accused in relation to the 'N' property, as I have indicated, falls into two parts, the first being the substitution of 'N' for 'J' as the subject of purchase, the second being manipulation of the arrangements in relation to the loan for 'N' which would, if completed, have resulted in the payment of a rebate of $600,000 to the alleged conspirators, or some of them. 13 In the course of argument I suggested that it would be impossible for the jury to understand the Crown allegations without evidence of the initial loan application and of the significance of the proposals relating to both 'J' and 'N'. I indicated at the time that I was reluctant to extend the context evidence rule beyond sexual assaults but logic would demand that it should be admitted in a case such as this if it was necessary to prevent the jury getting an impression that was distorted or mistaken. I suggested that one possibility of overcoming the problem would be to admit the evidence for a limited purpose under s 136 of the Evidence Act, but the Crown maintained that the evidence was both relevant and probative; it was not of the nature of tendency or coincidence evidence. 14 It is significant, in my view, that the conspiracy charge runs from May 2001 to May 2002. The first date stated in the indictment is the date upon which the amendment to the relevant provisions of the Criminal Code came into force. The offence charged, therefore, was not an offence known to the law before that date, in that form anyway. The actual making of the application for the loan cannot be an essential element of the offence charged. Nevertheless, the judgment of the Court of Appeal and the Court of Criminal Appeal in Saffron, (1988) 17 NSWLR 395 where Hope JA, with whom Clarke JA agreed, reviewed the authorities relating to conspiracy - the relevant passages are at pp 419 to 422, and I need not quote them - make it clear that a conspiracy can be continuing, and so long as the parties to it continue to act in furtherance of an agreed objective, the offence continues to exist. In the circumstances of this case the Crown cannot assert that the actual making of the application for the loan in February 2001, at least three months before the commencement of the period stated in the indictment, is part of the conspiracy. It is, however, if proved beyond reasonable doubt, a fact which the jury may be invited to use as the basis for inferences, both as to the fact of the agreement between the parties and of the intention of the parties. This being a conspiracy case, it is likely that the Crown will invite the jury to rely on circumstantial, as well as direct evidence. 15 For that reason evidence that the application was in fact made by the accused Quince and Cary, possibly with the agreement or assistance of the accused Watson, is both relevant to prove the facts in issue and has high probative value. 16 I do not accept the Crown's submission that evidence relating to the dishonesty in the making of the application is not tendency evidence. The Crown asserts that the application was made dishonestly by each of the three accused involved. To prove this, the Crown would need to prove not only something that is not an essential element of the offence charged, but also that each of these accused had a tendency to behave in a certain way, namely, to make false statements for the purpose of dishonestly obtaining funds. No tendency notice has been served so the evidence would be inadmissible without leave. I propose to ask defence counsel if they wish to make submissions on this issue because it is clear that the defence had notice that the Crown intended to lead evidence that the application was made dishonestly so there is no element of surprise. 17 I am required by the Evidence Act s 101 to consider certain matters. That provision reads: "Tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 18 In any event the application to exclude the evidence was made on the basis of s 137, so a consideration of the probative value of the evidence and its prejudicial effect is relevant in the consideration of both matters. 19 As I have indicated, as currently advised, I have formed the view that evidence about the making of the application is certainly relevant to the factual issues, both of agreement between two or more of the accused and of their intention at the time. 20 What I understand the Crown case to be is that the accused intended to obtain funds from ATSIC which they would use both to purchase a property and to gain funds for themselves. It may be that particular aspects of the objects of the intention changed during the period stated in the indictment, but in order to establish this the Crown would have to prove that there was an intention to obtain funds for this purpose and that there was an agreement between the parties who share this intention. Evidence relating to the making of the original application in my view is relevant to proof these matters and indeed the probative value of that evidence is relatively high. It is clearly prejudicial to the accused, and particularly to the three accused who were involved in the making of that application, that it be shown that on an occasion before the period stated in the indictment they acted dishonestly. What the Crown alleges against them in these proceedings is a course of dishonest conduct, and given that I would have to be satisfied before excluding the evidence that any prejudice to the accused would be unfair. 21 In response to some remarks I made earlier, counsel for various of the accused have put to me that I should not admit this evidence because its purpose would simply be to show that the accused, or some of them, had a tendency to act dishonestly. In response to that the Crown Prosecutor has indicated that he simply will not be making the assertion that the information contained in the application form was false and was inserted to deceive ATSIC, because that does not matter. 22 It is important, I think, in considering these matters to pay some attention to the wording of the Evidence Act s 97 and to the authority to which the Crown has drawn my attention, the decision of Howie J in Cornwell (2003) 57 NSWLR 82, particularly at p 93. Section 97(1) provides that: "Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that the person has or had a tendency to act in a particular way." I will not read the rest of the section. 23 It appears from what the Crown has said that this evidence is not led to show that any of the accused had a tendency to act in a particular way. If it was, it would fall within s 97, but it appears to me that the evidence is led for another purpose. I intend to read the passage on which the Crown relies from the judgment of Howie J. It is para 38: "Simply because otherwise admissible evidence reveals that an accused is generally or specifically of bad character, or that he may have committed uncharged offences, it does not follow that there is any basis for rejecting it. Provided that the evidence is relevant for some purpose, other than to raise the accused's character, or suggest that he has a propensity to commit crimes, either generally or of a specific nature, the evidence is prima facie admissible and not subject to the tendency rule contained in s 97 of the Evidence Act." His Honour refers to Quach (2002) NSWCCA 519 applying Harriman (1989) 167 of CLR 590. He goes on: "The evidence may be admitted, notwithstanding its prejudicial effect because it is necessary to give context or background to the other evidence placed before the jury, because it is relevant to show the relationship between relevant persons, such as alleged co-offenders, or the accused and the victim, or because it is part of the fact and circumstances surrounding the commission of the offence charged. But these are merely examples of situations in which evidence suggesting the bad character of an accused may be relevant for a specific purpose other than as a basis for propensity reasoning." And he refers to Spigelman CJ in Quach at para 8: "The present charge is one of conspiracy alleged to have occurred over a period of about four months. Clearly, in such a case, the conduct of persons alleged to be participants in that conspiracy over that period of time would generally be relevant to disclose their relationship with one another, and to place the conduct alleged against them as being in furtherance of the conspiracy in the context of what else they may have been doing over the relevant period. Evidence probative of those matters, which also discloses the particular accused has committed uncharged criminal acts or is otherwise of bad character will not be excluded on that account alone." 24 In this case the evidence to which the accused objects is evidence which is clearly led to place other evidence in a context. As I indicated earlier it is also evidence which is led as a basis on which a jury will be asked to make certain inferences. It is, I am satisfied, not led as evidence that the accused had a propensity to act dishonestly, but simply it is an instance of the evidence necessary to give a proper context to the evidence supporting the charges, and it is led for that purpose alone. 25 The fact that it discloses dishonesty is certainly prejudicial to each of the accused involved, but as I have indicated earlier, that prejudice is not, in my view, unduly unfair and in the circumstances I propose to admit the evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.