Supreme Court New South Wales Medium Neutral Citation: R v Dickson; R v Issakidis (No 4) [2014] NSWSC 1357 Hearing dates: 18 September 2014 Date of orders: 18 September 2014 Decision date: 18 September 2014 Jurisdiction: Common Law Before: Beech- Jones J Decision: Tender in re-examination of first email sent on 13 March 2010 is allowed. Tender in re-examination of second email sent on 13 March 2010 is disallowed. Catchwords: EVIDENCE – re-examination – relevance – prejudice. 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.P.C. 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 evidence (ref T1268) 1. During the re-examination of the present witness it became clear that the Crown intended to tender two emails dated 13 March 2010. When senior counsel for both accused realised that, it was requested that the jury take a break. I then heard argument about whether the Crown should be permitted to take that course. 2. The first of the emails in question was sent at 8.11am on 13 March 2010 by the accused, Anthony Dickson, to his brother, the witness, John Dickson. It appears to have followed a text message from John Dickson about some long-simmering disagreements between them, John Dickson requested that his brother put all his complaints in writing, and send it to all the members of their family. 3. Anthony Dickson's email of 13 March 2010 was not sent to the other members of their family, but it does set out a great litany of allegations against the witness John Dickson, which had been simmering for some time. They include such matters as the suggestion that he had developed a severe drinking problem and had engaged in domestic violence. There were also suggestions that he was delusional, and listed various grandiose claims it is alleged that he made. The email concludes with a request that he seek some sort of assistance. 4. The second email appears to have been sent five hours later. It consists of a response from John Dickson to his brother's email, copied to John Dickson's wife, as well as the insertion of responses into the text of the emails that had been sent by Anthony Dickson earlier that morning. 5. I do not mean any disrespect to Mr John Dickson, but this email is clearly something of an emotional diatribe. It is difficult to characterise what is said, but I will place its contents into various categories. 6. First, there are parts of it which involve factual rebuttals of various allegations put to him, including his drinking habits, his treatment of his wife, and some of the claims he has made. 7. Second, there are references to the substance of this case, and in particular, whether Anthony Dickson had put his brother up as a front for tax evasion and money laundering. 8. Third, there are particular derogatory comments directed at the co-accused, Michael Issakidis. They include matters such as an assertion that Mr Issakidis had lied in relation to a business deal, and that he was of a poor business reputation in Hong Kong. 9. Fourth, there are some attacks upon Anthony Dickson himself. They are partly by way of abuse, such as comments of him being a bully, but they do include an assertion that "you told me more than once that you would have me killed by your connections in Hong Kong as well if I ever crossed you". 10. Fifth, there are references to a particular aspect of the Crown case in which it is said Anthony Dickson instructed John Dickson to lie as to his status in Hong Kong and the family's connection with leading Australian business figures as part of some proposal to impress a banking institution. 11. Finally, there is also a reference to an occasion when John Dickson, Anthony Dickson and Michael Issakidis were in Michael Issakidis' car. The email asserts that during that time there was a conversation about the bogus nature of the scientific qualifications held by a consultant to NeuMedix. 12. The context in which this has arisen has partly been adverted to. The overall point that the Crown seeks to make from John Dickson's evidence is that for a sustained period over a number of years he was the director or legal controller of two companies in Hong Kong and also two companies incorporated in the Middle East, and took directions from his brother Anthony which were part of a scheme of tax evasion and money laundering. 13. His evidence, in broad terms, consisted of him identifying various documents in connection with that alleged scheme, but there were also some conversations that he attributed to both accused which, do not appear have documentary support. 14. The cross-examination of him by senior counsel for both accused has now been completed. He was subject to a sustained attack on his credit by both of the cross-examiners. Part of the cross-examination by senior counsel for Anthony Dickson involved John Dickson being taken to a series of emails commencing in October 2009 and ending in January 2011 which broadly map the breakdown of the relationship between the two brothers. In particular it seems that in early 2010 there was a severe falling out between them and that at least a part appears to have arisen because of enmity on the part of John Dickson towards the influence that he perceived that the accused, Mr Issakidis, had over his brother. 15. The emails that he was taken to include a number that were authored by John Dickson. Parts of them are clearly offensive and abusive. The broad tenor of this part of the cross-examination was that John Dickson is generally erratic, unreliable and driven by various demons in giving evidence, including anger towards his brother, anger towards Mr Issakidis and a degree of family bitterness and jealousy. 16. At various times in the course of his answers Mr John Dickson, when taken to some of his more abusive emails, made reference to an email that he had received from his brother on 13 March 2010. Simmering away in his evidence was a contention, at least on his part, that something in that email had severely upset him and somehow justified the emails that he later sent to his brother. It is clear that the email that he is referring to is the first of the emails which I have mentioned which the Crown seeks to take him to. 17. The objection to the tender concerned both relevance and the occasioning of prejudice. 18. At least so far as the first of the two emails is concerned, I am satisfied that it has probative value and that it is a matter that the witness can be taken to in re-examination. In my view it is clearly a matter that the jury is entitled to consider in assessing the context of the emails that were sent by John Dickson, and the overall attack that was made on his credibility in the manner that I have outlined. 19. The real difficulty concerns the second of the emails, which is Mr John Dickson's response. At a stretch I can see that it does have some probative value and does arise. It is, in a sense, part of the narrative of emails to which John Dickson was taken and has some relevance to assessing the overall context in which they were sent. The Crown says that some aspects of them are also relevant to re-establishing his credit. It might be possible to interpret some isolated statements in those emails to that effect, but there is certain circularity in that contention. The circularity is that the various allegations that he is responding to are mainly those that are set out in the first email the Crown itself wants to tender, and they were only tangentially raised in the actual cross-examination itself. 20. However, I am firmly of the view that the email must be rejected because its prejudicial effect outweighs its probative value. As I said its probative value is relatively weak. Its prejudicial effect could be significant. It does, as I have said, include an allegation that Anthony Dickson threatened to have John Dickson killed. It contains random and unresponsive sprays against Mr Issakidis' character. It is generally in the form of scurrilous abuse. I see it as adding little to the assessment of John Dickson's credit, but being the sort of material that could be prejudicial to both accused. 21. Accordingly the tender of that email will be rejected. 22. It is necessary to make two further points. 23. First, it will now be a decision for the Crown as to whether it wishes to pursue the re-examination by only tendering the first of the two emails. It will be a matter for the Crown as to precisely what questions it will be allowed to answer, but I expect that I would allow some latitude to the Crown to ask John Dickson some general questions about the specific things that he is alleged to have done in the email of 13 March 2010. However, there will be limits on that and this case cannot be a basis for retrying every allegation about his character in an email the Crown itself wants to tender. 24. Second, I have not overlooked the fact that buried within the email that I have rejected is a reference to the discussion in Mr Issakidis' car. The background to this is as follows. Before Mr Dickson was called to give evidence, the Crown indicated that it wished to lead evidence about a conversation involving the two accused and Mr Dickson that occurred in 2009 when Mr John Dickson was visiting Australia. At some point they visited an academic on the Gold Coast who was undertaking work for NeuMedix Health Australasia. The conversation the Crown sought to lead was one to the effect that there was a discussion in the vehicle about the bogus nature of that academic's qualifications, which in turn led to a conversation about another person who was proposed to be employed. This, according to John Dickson, led to him querying whether that further person was in fact a pseudonym such as "Jay Corbett". It was anticipated Mr John Dickson would say that both accused laughed and that Anthony Dickson said that this further person was, in fact, real. The evidentiary significance of this later part of the conversation is that there is an issue as to whether a person who sent emails to Mr John Dickson under the name Jay Corbett was in fact the alter ego of Mr Anthony Dickson. 25. There is also a further and potentially quite significant issue as to whether Mr Michael Issakidis was aware that John Dickson was engaged in the transfer of moneys, and was doing so in accordance with emails sent from pseudonyms used by Anthony Dickson. The difficulty with the eliciting of the entire conversation was that it appears to raise a further tangential issue about the academic's qualifications. That academic was engaged in research on another project which is not said to be one for which bogus tax expenses were claimed. I ruled that the earlier part of the conversation should not be led, lest the Crown case expands to attack the veracity of that research and that academic. Instead I directed the Crown to simply, in a neutral way, introduce that aspect of the conversation and then to question John Dickson concerning that part of the conversation involving Jay Corbett. 26. In the cross-examination of John Dickson it was effectively put to him that he had recently invented that part of the conversation which referred to Jay Corbett, because it had not been mentioned in the various statements he had made to the Australian Federal Police or in conference with the Crown. The possibility was raised during submissions that this part of the second email was a rebuttal of that suggestion because it clearly was a reference to the introductory part of the conversation involving the academic's qualifications. 27. In my view it is very much a stretch to say that this part of the email rebuts a claim of recent invention of so much of the conversation as concerns the use by Anthony Dickson of the name Jay Corbett. It is not mentioned in the email. In my view the email is simply neutral on the topic. It is neutral because this part of the email is concerned with who had what qualifications. In my view this matter adds nothing to the probative value of the tender. 28. Accordingly, I indicate that the proposed tender of the second email of 13 March 2010 will be rejected. It will be a matter for the Crown to consider its position in light of this reasoning. Otherwise I will mark the email of 13 March 2010 at 8.11am as MFI 21 and the other email as MFI 22. ********** Amendments 14 June 2016 - Restriction lifted. 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. Decision last updated: 14 June 2016