Supreme Court New South Wales Medium Neutral Citation: R v Dickson; R v Issakidis (No 6) [2014] NSWSC 1368 Hearing dates: 03 October 2014 Date of orders: 03 October 2014 Decision date: 03 October 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender of original three-page document allowed. Tender of the original documents already in evidence and the jury to be apprise of the location of those documents and their proximity to any other documents in evidence. The balance of the tender of Folder 1 is rejected. Catchwords: EVIDENCE – case management of criminal proceedings – proposed tender of material by Crown late in trial – material not identified pursuant to s 142(1)(f) -- rejection under s 146 (1) Legislation Cited: Criminal Procedure Act 1986 (NSW), s 142, s 146, Ch 3 Evidence Act 1995 (Cth), s 135 Judiciary Act 1903 (Cth), s 68 Cases Cited: 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.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: Restriction lifted. ex tempore Judgment Admissibility of document (ref T2023) 1. This is the 32nd day of the trial. Three days ago the Crown notified the legal representatives of the accused that it proposed to tender a further seven bundles of documents. They were seized during various searches that were undertaken during the investigation that led to the laying of charges. 2. The next day, copies of that material, together with a short note outlining its asserted relevance, were served on the legal representatives of the accused. 3. Both senior counsel for the accused advised the Court at an appropriate time that they took objection to its tender. The practical reason for their objection was the extremely late stage in the conduct of the Crown case that they were notified the material was to be relied upon. The legal basis for the objection was s 146(1) of the Criminal Procedure Act 1986 (NSW) ("the CPA"), and s 135 of the Evidence Act 1995 (Cth). (It was not contended that s 146 of the CPA was not "picked up" by s 68(1) of the Judiciary Act 1903 (Cth)). 4. I heard argument in respect of the admissibility of one of the seven bundles, and determined to pronounce a judgment in respect of it in anticipation that my reasons would assist the parties in considering the fate of the remaining six. 5. The background to this matter was set out in R v Dickson; R v Issakidis (No. 1) [2014] NSWSC 1068. I will not repeat it. It is, however, necessary to explain some further aspects of the procedural background. Both accused were arrested in the first half of 2012. They were committed for trial on 28 May 2013. They were arraigned in this Court on 1 November 2013. At that time, a trial date of 4 August 2014 was set. 6. On 4 April 2013, orders were made in accordance with Division 3, Part 3 of Chapter 3 the CPA for the service of material. They required the Crown to serve material in accordance with s 142 of the CPA. On or about 26 May 2014, the Crown did so. 7. Section 142(1)(f) of the CPA requires the Crown, as part of that process, to include in its notice a copy of any exhibit that the prosecutor proposed to adduce at the trial. In relation to that requirement, the Crown's notice stated: "In addition to the documents contained in the Crown tender bundle, the Crown intends to adduce: 1. original diaries, notebooks and work books seized. 2. original company stamps ie chops seized and produced. 3. if necessary, any original other document contained in the Crown tender bundle". 1. In accordance with the order of the Court, responses to the Crown's notice were in due course filed. 2. The trial did not commence on 4 August 2014. Instead, both accused were arraigned before the jury on 21 August 2014. In the interim, the Court determined a number of pre-trial applications. Further, a significant degree of case management was undertaken during that period. 3. Amongst other matters, the Court required the Crown to provide full particulars of the charges. Further, the legal representatives of the parties engaged in long discussions, which led to the tender of a 18-volume Crown bundle at the time of the Crown's opening. Each juror was provided with a copy. 4. As I have stated, the trial is now at day 32. Around 20 witnesses have already been called in the Crown case. A large number of documents, additional to the jury bundle that I have referred to, have been tendered. Two witnesses remain to be called in the Crown case. 5. As stated, I heard argument concerning the first bundle of Crown material ("Folder 1"). That material consists of a folder and accompanying documents which were located at the home of the accused, Anthony Dickson, during the execution of a search warrant. 6. The documents found within Folder 1 include some faxes, some bank statements and the like and some handwritten documents concerning, or which appear to concern, the distribution of funds received by NeuMedix Health Australasia Pty Limited pursuant to its structured finance deal with the ANZ Banking Group. In broad terms the material appears to be directed towards the charge which is the subject of Count 6. 7. The material in Folder 1 can be conveniently divided into two categories. The first consists of originals of documents that have already been tendered. The tender of such documents was specifically adverted to by the Crown in the extract from the Crown notice that I have already referred to. 8. Upon being pressed, senior counsel for both accused did not object to the tender of those original documents, nor did they indicate any objection to the jury being advised where those documents were found and their proximity to other documents that were in evidence. 9. The second category of documents within Folder 1 consists of documents not previously tendered, that is, documents, that were not notified as exhibits proposed to be tendered in accordance with s 142(1)(f). 10. The Crown pointed out that they had undertaken extensive pre-trial disclosure which involved the provision, or at least the making available, of some 100 folders of documents to both accused which included this material. 11. Nevertheless, I understand the Crown to accept, and I certainly find, that its proposal to tender these documents would involve it seeking to adduce evidence in circumstances where it had failed to disclose the evidence to the other party "in accordance with the requirements of pre-trial disclosure imposed by or under [Division 3]", such that it engages the power under s 146(1) to exclude it being adduced. 12. This, in my view, is no technical quibble. This case is extremely complex and heavily document intensive. There is a world of difference in terms of fairness between a party being told that there is a document somewhere to be found within 100 folders of documents and a party being specifically advised that a document is sought to be tendered in evidence. 13. Accordingly, it follows that, in my view, the discretion imposed by s 146(1) of the CPA to exclude the second category of documents in Folder 1, as well as the folder itself, has arisen. 14. In the time available, I have not been able to undertake any detailed research concerning the factors governing the exercise of the discretion conferred by s 146(1). Nevertheless, I am proceeding on the basis that those factors include: any reasons, or absence of reasons, for the relevant non-compliance; the probative value of the material sought to be adduced; any unfair prejudice occasioned by the tender of the material or, more importantly, by its late notification to the accused that it was proposed to be tendered and, overall, whether to allow its tender would be consistent with the conduct of a fair trial. 15. In relation to the reasons for the failure of the Crown to advise the accused that this category of documents was proposed to be tendered, it was not suggested that there was any deliberate or reckless non-compliance with the order made under s 142. 16. Instead, as is often the case in complex cases, it appears that a recent review, or at least a re-review, of the original documents was undertaken which led to the formation of the conclusion in the Crown camp that it should seek to tender the entirety of the folder. 17. Nevertheless, as senior counsel for Mr Issakidis put it, this truly involves the revisiting of an earlier decision as it is clear that some of the documents in Folder 1 had already been selected for inclusion in the Crown bundle. 18. I have already adverted to the need, in a case such as this, for the Crown to identify the material that it relies on to prove its case at an early stage and before the trial commences. 19. Trials are not well rehearsed plays. Mistakes can occur in their preparation and their conduct. Nevertheless, the history that I have outlined indicates that the Crown was given more than ample time to identify the material it sought to rely on. Proceedings such as this are simply too complex and cumbersome to be patched up as they go. 20. The Crown Prosecutor pointed out that in a letter from the Commonwealth Director of Public Prosecutions to the accused of 26 May 2014, which enclosed the notice of the Crown case, the following was stated: "The Crown reserves its right to lead additional evidence at trial from the larger brief of evidence if it is required to do so and notwithstanding it is not included in the Crown tender bundle. It is envisaged that such material would be limited and likely in response to developments at trial. including the Defence case." 1. It is not contended that anything that has occurred during the course of the trial has warranted a reconsideration of the Crown's position to justify the tender of Folder 1. 2. In those circumstances, I attribute very little weight to this reservation in this letter. The Crown cannot reserve a power to exempt itself from the operation of s 142(1)(f). 3. The entire point of the pre-trial disclosure regime is to avoid complex trials going off the rails by additional material being adduced which catches the accused by surprise. 4. In the end result, the background to this matter which I have set out above tends reasonably strongly in favour of a decision to exclude the second category of documents in Folder 1. 5. As part of the process of considering the application under s 146(1) as well as the application under s 135 of the Evidence Act 1995, I required the Crown Prosecutor to identify the forensic significance of each of the documents in Folder 1 so that I could consider their probative value and any questions of prejudice. 6. The bulk of the "new" documents, that is, those documents that have not already been tendered, consist of handwritten material produced mostly by the accused, Mr Dickson, or apparently produced by him, being various calculations concerning amounts received from the ANZ transaction that he apparently proposed to move through certain offshore accounts. 7. However, it needs to be noted that Mr Dickson has already provided an admission to the Court that he was responsible for managing and causing all of the relevant banking transactions to occur. In light of that admission, I consider that the probative value of the material I have just described, to be low. 8. However, I also note that buried within one of the documents apparently authored by Mr Dickson are two pages that appear to outline a proposed division of the funds received from the ANZ transaction during the financial year 2007 between Mr Dickson, Mr Issakidis and another person. 9. I accept that this material appears to have some level of probative value concerning Count 6 and possibly Count 1 in that, on one view, it appears to contemplate the receipt and distribution of all of those funds free of any tax liabilities, and otherwise their distribution to himself and Mr Issakidis which, when coupled with later evidence, could be characterised as having been disguised as transactions such as loans. 10. Notwithstanding that view, I nevertheless consider that this material should still be excluded under s 146(1). 11. At the risk of repetition, it is in my view self-evidently clear that a considered decision must have been made at an earlier stage not to adduce it and it is now only been tendered late. The explanation, such as it is, is far from persuasive. 12. Although I have accepted that this material has some probative value, I do not accept that it is particularly high, given the very rudimentary nature of the calculations that are set out on the documents in question. 13. There is, however, within Folder 1 another document which consists of three stapled pages. The third page of that document is already in evidence. It is a typed note addressed to "Zac". There is evidence that has been adduced in the trial that "Zac" is Mr Issakidis' nickname. The note requests that "Zac reconcile numbers re cash and send to me in mail to home address". 14. The note appears to be, at least arguably, a reference to reconciling the distribution of cash received from the structured finance transactions within ANZ during the financial year 2008. The typed note appears to contemplate a division of the proceeds and arguably, on one view, a disguising of their distribution, possibly by a loan to "Zac". 15. Within the folder stapled to the front of this note are two handwritten pieces of paper, the first of which bears the date "9 July 2008". (The typed note was headed "Friday 4 July"). 16. The first two handwritten pages are arguably a response to the typed note. They address the division of an amount that corresponds with the cash received from the structured finance deals with ANZ during the financial year 2008. 17. 44 The note proposes a division or distribution of some of those funds between someone with the initials "MI" and another person. There are also some pencilled comments on the note. It is at least arguable that the two pages constitute the response of "Zac" that is, possibly Mr Issakidis, to the request made in the handwritten note of 4 July. 18. The combination of the three pages is capable of suggesting that various loans issued to "MI" or "Zac" were, in truth, distributions. 19. In my view, this document has a reasonable level of probative value at least insofar it concerns Count 6 in relation to both accused. 20. What is to be done in relation to these extra two pages? In that regard I return to the relevant breach of s 142 that I have identified, namely, the failure of the prosecution to include in its notice advice to the accused that the document would be tendered. 21. With this document, the relevant failure is not to advise the accused that the balance of two pages of a three-page document would be tendered. In substance, what the Crown is seeking to do is to complete the tender of an incomplete document that is already in evidence. When the matter is categorised in that way and when I have regard to its potential probative value, I consider it is in a different category to the other new documents found within Folder 1. I cannot exclude the potential for there to be some procedural unfairness to Mr Issakidis, in particular, but to Mr Dickson as well from its tender at this point, but I find it difficult to see that there is any such prejudice that could not be cured by the Crown being required to recall any witness that they may require. 22. Accordingly, with some reluctance, I will allow the tender by the Crown of the original of that three-page document of which the third page is already page 2502 of Exhibit A. 23. However, this still leaves the possible application of s 135 of the Evidence Act 1995 in respect of that document. One matter of prejudice that was pointed to in the submissions was that there may be some impression created in the jury by the tender of a new folder that there had been a "late breaking discovery" of great forensic significance by the Crown. It follows from the rulings I have already made in respect of s 146, that the Crown will not be permitted to tender any folder. Instead, the limit of the tender of truly new material consists of the additional two pages of a document, which has already been tendered in evidence. Subject to the possible need to recall a witness, I am not persuaded that there is any danger of unfair prejudice from that course being taken. The jury could simply be told that there is an additional two pages of the Crown bundle (Exhibit A) that were omitted and they can be included in their folders or tendered separately. 24. It follows that I would allow the tender of the original three-page document. I will allow the tender of the original documents already in evidence and the jury to be apprised of the location of those documents and their proximity to any other documents in evidence. 25. I reject the balance of the tender of Folder 1. 26. It will be for the parties to consider the course they will take in respect of the remaining six bundles. It should be noted, however, to this point the only documents that I have allowed to be tendered beyond those which are already in evidence consists of two pages, which simply complete a document that has already been tendered. I so find. ********** 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