R v Dickson; R v Issakidis (No 2) [2014] NSWSC 1078

Supreme Court New South Wales

Medium Neutral Citation: R v Dickson; R v Issakidis (No 2) [2014] NSWSC 1078 Hearing dates: 06 August 2014 Date of orders: 06 August 2014 Decision date: 06 August 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Pages 83 and 1022 of MFI 2 will be admitted. Catchwords: CRIMINAL LAW – tendered of document – no question of principle. Legislation Cited: Evidence Act 1995 (NSW), s 98 Cases Cited: - Ahern v R [1988] HCA 39; 165 CLR 87 - R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 Category: Procedural and other rulings Parties: Crown (Commonwealth Prosecutor) Anthony James Dickson (Accused (12/140639)) Michael John Issakidis (Accused (12/128506)) Representation: Counsel: M. McHugh SC, S. Flood, A.D. McGrath (Crown) B. Gross QC, C.G. Catt (Dickson) M.J. Byrne QC (Issakidis)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Tully & Chiper (Dickson) Peter Shields (Issakidis) File Number(s): 2012/140639; 2012/128506 Publication restriction: Nil.

ex tempore Judgment

Ruling on admissibility of documents at pages 83 and 1022 of MFI 2 1. There has been a somewhat discursive debate about the tender of various documents concerning a parallel transaction which had its origins some time around 2002-2003. The transaction has been referred to in argument as the "Nilnav transaction". 2. I describe the features of the transaction the subject of count 1 of the indictment in R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 (the "Neumedix transaction"). The Nilnav transaction is of a similar structure, however the Crown has made some important disclaimers in respect of it. I will not recite all of them, but the most critical is that the Crown accepts that there is no evidence, and it will not assert, that any deductions claimed by Nilnav in respect of depreciation of intellectual property it purchased were, in effect, bogus. 3. The current debate started as an application by the Crown to lead evidence referable to the Nilnav transaction on a coincidence basis (see s 98 of the Evidence Act 1995 (NSW)). It emerged during the course of that debate that the Crown is contending that most of the evidence concerning the Nilnav transaction was admissible in the case against both accused on bases that did not rely on coincidence reasoning. Further, the Crown has refined the form of coincidence notice it seeks to rely upon and has indicated that it may be further refined. 4. Accordingly, the pragmatic position has been reached that at present the Court is not being asked to determine the admissibility of material which solely rests upon coincidence reasoning, although we will need to do so in the very short future. Instead the parties considered the documents identified by the Crown as relevant to the Nilnav transaction and have sought to identify what parts of that material are solely admissible for coincidence purposes, in which case their tender is deferred and whether objection is taken to the balance because it is not admissible for other reasons. 5. This process ultimately led to senior counsel for Mr Dickson objecting to one document which is replicated in two places in the folder of materials which will be marked MFI 2, namely pages 83 and 1022. The document in question is headed "Nilnav HIP Cash Flows – this diagram not to be provided to ATO". The balance of the document sets out a flow chart which identifies the various entities involved in that transaction and the flow of moneys to and from the various parties. At the bottom of the page there exists a note which reads: "Nilnav must not give documents to which it is not a party to ATO eg assignment from Sherry and Egan to IPOCL. Check all docs before just handing everything to ATO. It can be a serious breach of confidentiality, etc, etc." 1. In my view the document is clearly relevant. During the course of argument I was taken to various documents that indicate that the origin of the Neumedix transaction was the Nilnav transaction. In particular the various persons who were communicating about the Neumedix transaction appear to be doing so with some common understanding of what was involved in the Nilnav transaction and using that as a basis for their discussions. In my view it would follow that a document such as this which explains at least some aspect of the Nilnav transaction is relevant to the Crown case. 2. During the course of argument I raised with the parties whether the words "This diagram not to be provided to ATO" should be blanked out in effect by the operation of s 137 because it might be thought that they were prejudicial. The Crown Prosecutor indicated that at this point he cannot identify some fact or matter in the Crown case that is sought to be proved by the inclusion of those words in evidence. However, bearing in mind the additional note to which I have referred, I do not propose to take that course provided that it is made clear by the Crown at an appropriate time that they accept that the words "This diagram not to be provided to ATO" is to be read in light of that note, namely, concerns about confidentiality. If the Crown proposes to take a different course it will need to raise that matter with the Court in advance. 3. Finally, for the sake of completeness, I should note the position of Senior Counsel for Mr Issakidis. His position, as I understand it, was that his client does not object to the tender of material concerning the Nilnav transaction subject to two matters. The first is that he wishes to be heard before there is any determination of whether the Crown can rely on such material by the use of coincidence reasoning. Second, he has stated that the admission of this material, and indeed all material in the case, is subject to a reservation that whether evidence of the acts and declarations of any alleged co-conspirator is evidence against his client must be determined in accordance with what is stated in Ahern v R [1988] HCA 39; 165 CLR 87 at 103-104. 4. Accordingly, pages 83 and 1022 of MFI 2 will be admitted. I note otherwise that the Crown will defer its application for a ruling in respect of the admission of pages 734, 735 and 918-1007 of MFI 2.