R v Dickson; R v Issakidis (No 10) [2014] NSWSC 1482

Supreme Court New South Wales

Medium Neutral Citation: R v Dickson; R v Issakidis (No 10) [2014] NSWSC 1482 Hearing dates: 24 October 2014 Date of orders: 24 October 2014 Decision date: 24 October 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Application for Prasad direction rejected. Catchwords: CRIMINAL LAW – Prasad directions – conspiracy – Crown Case largely documentary – Prasad direction not appropriate. Cases Cited: - R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460 - R v Pahuja (1987) 49 SASR 191 - R v Prasad (1979) 23 SASR 161 - Seymour v R [2006] NSWCCA 206 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 1. On 22 October I gave judgment dismissing a no case submission made on behalf of one accused, Mr Issakidis, in respect of counts one and six on the indictment: R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460 (Dickson (No 9)). The other accused, Mr Anthony Dickson, also made such an application but, as explained in Dickson (No 9), his application was wholly dependent upon the outcome of the application made on behalf of Mr Issakidis. 2. Following my rejection of Mr Issakidis' no case submission, and in the absence of the jury, Senior Counsel for Mr Issakidis, Mr Byrne QC, made an application that I give to the jury a Prasad direction in respect of count one concerning his client (see R v Prasad (1979) 23 SASR 161). 3. Implicit in Mr Byrne QC's submissions is that the case against his client does not have great strength. For the purposes of deciding this application, I will act upon that premise. It derives some support from the judgment in Dickson (No 9), in that the only substantial evidence directly connecting Mr Issakidis to the lodgement of the false tax returns, which is at the heart of the conspiracy the subject of count one, appears to have been certain communications that he was a party to with an accountant who prepared financial statements on behalf of NeuMedix Health Australasia Pty Ltd, and his signing of two versions of the financial accounts for that company in respect of the financial year 2007. 4. As a general matter, given the very specific nature of the agreement the Crown must prove to establish count one, then the more removed the alleged co-conspirator is from involvement in the preparation and lodgement of false tax returns, the harder it is for the Crown to prove their participation in any such agreement by means of inference. 5. Nevertheless, I decline to give the Prasad direction. Such directions are usually reserved for simple cases in which the critical evidence against an accused appears to lack credibility or reliability (see Seymour v R [2006] NSWCCA 206 at [58]) ("Seymour"). Thus, in R v Pahuja (1987) 49 SASR 191, a Prasad direction of seventeen pages in length was criticised as being too long (at 218). In Seymour, the giving of a Prasad direction by the trial judge was criticised because it occurred in a case of joint criminal enterprise, but in circumstances where the jury received no assistance on what that concept meant (Seymour at [64] to [65]). 6. In this case the giving of a Prasad direction would occasion a serious injustice to the Crown. The judgment in Dickson (No 9) illustrates that the principal evidence against Mr Issakidis is documentary. Yet the Crown has not yet had the opportunity to fully put its case about what the documents show as to Mr Issakidis' involvement. An opening to a jury is not the proper place for the Crown to argue an accused person's guilt. While the evidence of various witnesses has addressed the contents of a number of the documents that have been tendered, there are obvious restrictions on what they can state about documents and their contents, especially in respect of documents in which they were not the author or recipient. It is not the function of witnesses to tie together documents which, together, might implicate an accused. Otherwise, as in Seymour, this case involves extended criminal responsibility, and a jury cannot properly consider such a case without receiving appropriate directions. 7. Thus the only possible fair manner in which a Prasad direction could be given in that respect at this point would be to effectively stop the trial and provide a relatively detailed mini summing up. Such a process is implicitly disapproved of in the authorities to which I have referred. 8. Accordingly, I refuse the application.