New South Wales Supreme Court CITATION : R v Wilkie [2008] NSWSC 884 HEARING DATE(S) : 25 August 2008 JUDGMENT DATE : 25 August 2008 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J EX TEMPORE JUDGMENT DATE : 25 August 2008 DECISION : Order for exclusion refused CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Pre-trial ruling sought to exclude particular evidence LEGISLATION CITED : Evidence Act 1995 CATEGORY : Procedural and other rulings PARTIES : Regina - Crown Daniel WILKIE - Accused FILE NUMBER(S) : SC 2007/2619 COUNSEL : A MacSporran SC; M Wigney SC; T Berberian - Crown L Robberds QC; M Thangaraj - Accused SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Speed & Stracey - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST MICHAEL GROVE J Monday 25 August 2008 1623/07 REGINA (COMMONWEALTH) v Daniel WILKIE JUDGMENT (On admissibility of evidence relating to International Book; see transcript p 24) 1 HIS HONOUR: A preliminary ruling is sought directing the exclusion from evidence of testimony relating to alterations in the reserves of which can be linked to what was known as the international book. In the circumstances I do not propose to delay matters by sketching the background, some of which can be found in a judgment earlier delivered when I rejected an application by the accused for a permanent stay of prosecution. 2 This trial, as I there noted, is focused upon alleged alterations in the reserves of insurance in respect of approximately eighty files, and I note the information that two only of those files apparently relate to what within FAIG was referred to as the international book. As I understand the accused's contention, his objection is founded upon two bases. The first is that the matter concerning the international book alterations represents an issue which has been determined in favour of the accused at a previous trial presided over by Howie J. 3 In the judgment on the stay application I describe some circumstances concerning that trial and I will not repeat at length what was said there. In support of this basis of contention, senior counsel exemplified a situation which might arise if there was an attempt pursuant to s 65 of the Evidence Act to tender evidence given by a witness at the previous trial and the handicap that may be visited upon the accused in the event that material was then elicited in re-examination with which the accused could not conveniently or appropriately deal. The second basis was the submission that the probative value of this evidence was not in any event high and the discretion vested by s 137 of the Evidence Act was the subject of appeal. It suffices for present purposes to observe that the trial before Howie J was about a Crown allegation that what purported to be re-insurance was financial re-insurance. The trial concluded in the acquittal of the accused as a result of a direction by his Honour. For present purposes I have had reference to the judgment of 14 November 2005, which led to the directed verdicts. From that I am able to observe that the key ingredient which was absent, and thus led to the failure of the prosecution, was an inability of the Crown to prove a circumstance namely that there was an oral agreement between FAIG and the re-insurer that the former would not make any claim under the re-insurance. That seems to me obviously to be quite a different proposition from an assertion that the agreements about which such a term was not able to be proved were not true re-insurance. 4 It is also significant in my view that the current trial is focussed upon activity in the early days of January 1998 concerning the report of the operations of the holding company for the half year concluding on December 31, 1997 whereas the trial before Howie J dealt with a different period that concluding in mid-1998. Senior counsel for the accused has brought attention to the circumstance that some evidence may be sought to be tendered concerning activity by the accused in December 1997 but the circumstance that there might be some overlap in evidence does not to my mind demonstrate that there has been an issue already determined. 5 The next question is whether it would be nevertheless unfair to the accused to permit the tender of such evidence. I do not perceive that it would be unfair and discharging my duty of making a balance under s 137 I would rule against the claim being advanced by the accused for exclusion of this evidence. The probative value lies in the entirety of the reductions in January 1998 and there is no outweighing prejudice in allowing testimony about that part as represented in two particular files. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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