R v Pratten (No 1) [2012] NSWSC 1664

Supreme Court New South Wales

Medium Neutral Citation: R v Pratten (No 1) [2012] NSWSC 1664 Hearing dates: 12 March 2012 & 14 March 2012 Decision date: 14 March 2012 Jurisdiction: Common Law Before: Rothman J Decision: 1. Pursuant to the terms of s 192A of the Evidence Act 1995, I do not consider it to be appropriate to make the ruling at this preliminary stage.

2. The parties' rights to re-agitate the issues are reserved fully. Catchwords: CRIMINAL - Interlocutory proceedings - preliminary ruling pursuant to s 192A of the Evidence Act 1995 Legislation Cited: Evidence Act 1995 (Cth) Category: Procedural and other rulings Parties: Regina (Crown) Timothy Charles Pratten (Defendant) Representation: Counsel: K. Chapple SC with B. Hatfield (Crown) M. Leighton-Daly (Defendant) File Number(s): 2010/315475

EX TEMPORE JUDGMENT 1. HIS HONOUR: The Court has an application for a preliminary ruling on evidence to be adduced, inter alia, so the parties can plan accordingly and so openings can be given that do not traverse inadmissible material. This application relates to the admissibility of the Statement of Stephen Barnes. 2. Much has been put in this application, which is an application pursuant to section s 192A of the Evidence Act 1995 for an advance ruling on evidence sought to be adduced. The process that has been adopted, for which, I hasten to add, I congratulate the parties, is one that of itself has given rise to a clarification of the matters that are to be adduced by the Crown and the matters that are not. 3. There are still some aspects of the Statement of Stephen Barns to which the accused objects. 4. Written submissions have been supplied. They are extremely helpful, and not only for the purpose of dealing with this application but generally for the issue that will ultimately face the Court either at the close of the Crown case or on direction of the jury. 5. The difficulty that is faced by the Court is manifest. The material to which objection is taken, and I am not going to deal with the description of it in detail, but deals, amongst other things, with the existence and calculation of default assessment by the Australian Taxation Office, and the table of what is said to have been income received by the accused that should have been the subject of disclosure in the relevant tax returns. 6. At this stage the Court is wholly unaware of what other evidence will be adduced, and upon which this material will be based. It would seem to me that that will necessarily give rise to a problem in dealing with the application at this point in time, and does give rise to such an issue. 7. Ultimately the expression of opinion, if it be opinion, is one based upon the assumption that the evidence will otherwise show certain figures upon which Mr Barns has relied. 8. Secondly, the fact of the subsequent assessment, being a default assessment, is a matter that, on one view, could rationally affect the existence of an issue in the proceedings, being the obtaining of financial advantage and/or the motive that may have existed in the alleged non-declaration of the income in the return. 9. Having said that, Mr Leighton-Daly, who appears for the accused, stresses the unfair prejudice that attains by such an opinion were before the jury. Whether that unfair prejudice outweighs the probative value, or vice versa, and I am not now talking of the onus that pertains, if there be an onus, under s 135 and s 137 of the Evidence Act, can only be assessed when one has regard to the other material that is before the jury. Therefore, pursuant to the terms of s 192A of the Evidence Act, I do not consider it to be appropriate to make the ruling at this preliminary stage. 10. The parties' rights to re agitate the issues at a more appropriate time are of course reserved fully.