R v Dickson; R v Issakidis (No 11) [2014] NSWSC 1570

Supreme Court New South Wales

Medium Neutral Citation: R v Dickson; R v Issakidis (No 11) [2014] NSWSC 1570 Hearing dates: 05 November 2014 Date of orders: 05 November 2014 Decision date: 05 November 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Application by the Crown to cross-examine the accused Dickson in respect of certain material and lead it in a case in reply granted in some respects and in some respects is refused. Catchwords: CRIMINAL LAW – Crown applies to re-open or lead in reply evidence and cross-examine accused – re-open refused – Crown allowed some evidence in reply – prejudice to co-accused. Cases Cited: - Browne v Dunn (1829) 3 Sim 23; 57 ER 909 - R v Chin [1985] HCA 35; 157 CLR 671 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

Concerning pp 144 and 1372 of MFI 49 1. This is the fifty-second day of the trial. The evidence-in-chief of the first accused, Anthony James Dickson, occupied a number of days and was completed on the fifty-first day of the trial. 2. Primarily as a result of the content of his evidence, the Crown undertook various enquiries and re-considered some material that was apparently available to it. This material was then reduced to a form of two statements with annexures. Just prior to Mr Dickson finishing his evidence, these statements were served on both accused. The Crown indicated that it wished to cross-examine Mr Dickson on the contents of that material and, if necessary, seek either to re-open its case to rely on the material or lead it by way of reply. 3. The author of one of those statements was Chris Harvey, an officer of the Australian Taxation Office ("ATO"), who has already given evidence. The author of the other statement was an Australian Federal Police Officer, Ian Durrand. One aspect of the material referred to in Mr Durrand's statement was refined during argument this morning. 4. Objection was taken to the use by the Crown of this material. At the outset I indicate that I am not prepared to countenance the Crown, in effect, re-opening its case. There is really nothing that has been demonstrated that would warrant that exceptional course. In substance, I am only treating this as truly an application to lead evidence by way of reply or rebuttal to what has emerged from Mr Dickson's evidence and, as part of that, to raise the material with him in cross-examination. 5. In this context I will deal with Mr Harvey's statement first. The critical part of Mr Harvey's statement is paragraphs 14 to 16 which set out his recollection of a telephone conversation he had with Mr Dickson on 16 February 2010 and his follow-up dealings with Mr Dickson in relation to the delivery of some further folders of documents. This also needs to be considered with a file note concerning the conversation on 16 February 2010 that he prepared. 6. In his evidence in chief Mr Dickson referred to a conversation he had had with Mr Harvey in some detail. The conversation referred to the material that Mr Dickson said that he would provide in response to a letter from the ATO which was, in effect, auditing the tax returns that had just been lodged by NeuMedix Health Australasia Pty Limited ("NHA"). The terms of the conversation, as recounted by Mr Dickson, appear to have particular significance in explaining why certain documents were provided to the ATO and perhaps why others were not but were later tendered in evidence in Mr Dickson's case. 7. Senior counsel for Mr Dickson referred to the passage from R v Chin [1985] HCA 35; 157 CLR 671 at 676 to 677 concerning the discretion of a trial judge to allow the calling of further evidence after evidence has been given for the defence. In particular, it was said that should be permitted: "… only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen." 1. It was also stated that: "The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting of evidence was itself relevant to prove the prosecution case unless, perhaps, it was no more than marginally, minimally or doubtfully relevant … and the need to give it could have been foreseen it will, generally speaking, be rejected." 1. This statement of principle has to be considered along with the well established rule of professional practice that requires that when counsel has the opportunity to cross-examine a witness, including a Crown witness, about a conversation said to have occurred with their client, their client's version should generally be raised with that witness so that witness could be given the opportunity to comment. 2. The difficulty in this case is that some very critical parts of what Mr Dickson said occurred in the conversation with Mr Harvey were not raised with Mr Harvey when he was first called. In terms of R v Chin, the Crown could quite reasonably expect that the rule of professional practice to which I have adverted to, which is often sourced to the decision in Browne v Dunn (1829) 3 Sim 23; 57 ER 909, will be applied. It was entitled to take the view that there was nothing of substance on the accused's, Mr Dickson's, case that occurred in the conversation with Mr Harvey. 3. Instead, as I have indicated, it emerged from Mr Dickson's evidence that matters of substance were, at least on his case, definitely discussed. In those circumstances, I have no hesitation in allowing the Crown to raise with Mr Dickson in cross-examination and then lead in by way of rebuttal, if necessary, that part of Mr Harvey's statement which deals with his conversations with Mr Dickson and the supporting file note. 4. The balance of the statement up to paragraph 28 deals with correspondence between a representative of NHA and the ATO in relation to the pursuit of their audit. I am not satisfied that any part of that was material that ought not reasonably to have been foreseen. In general terms, the dealing between the ATO and the company were matters that were quite important to the Crown case and there was nothing by way of surprise that emerged from Mr Dickson's evidence in that regard. 5. The last part of Mr Harvey's statement deals with the terms of taxation information agreements between Samoa and the Cayman Islands. They are not of any great moment. The reason, as I apprehend it, for the Crown seeking to rely upon those is that, in his evidence, Mr Dickson said that he was aware that there were such tax information exchange agreements. It will no doubt be submitted that, in those circumstances, his alleged actions in incorporating and controlling companies in Samoa and the Cayman Islands were not some form of scheme of tax fraud because, in effect, he knew that those places were not beyond the reach of the Australian Taxation authorities. 6. The material the Crown seeks to lead simply identifies the dates and terms upon which those information sharing agreements came into effect. In my view, they are matters that solely arise out of Mr Dickson's evidence and they are not matters that the Crown could reasonably have foreseen would be relied upon. Accordingly, I will allow the Crown to, if necessary, lead that evidence by way of rebuttal and raise it with Mr Dickson. 7. Thus, in summary, I will allow that part of Mr Harvey's evidence which concerns his conversations with Mr Dickson on around 15 and 16 February 2010 and his denial that there was any further telephone conversation as well as the file notes in support as well as the material concerning the tax information exchange agreements with Samoa and the Cayman Islands to be raised with him in cross-examination and to be led in rebuttal. I will not allow the Crown to lead the balance of Mr Harvey's statement. 8. I then come to Mr Durrand's statement, but I will pass over that part of it that deals with the terms of the non-compete agreement that were annexed to his statement as what the Crown sought to lead on that topic was clarified in oral argument. 9. The balance of Mr Durrand's statement consists of a number of searches of persons and entities done on the Internet. The searches either seek to demonstrate, or disprove, their existence as well as one search which involves an historical Internet search of a particular website. 10. The first of the identities is Rand Stone Consulting ("Rand Stone"). In his evidence Mr Dickson has stated that he was an employee of Rand Stone, that Rand Stone was providing services to a Cayman Islands based private equity partnership known, in broad terms, as HFAC Harmony, and that the actions he took as a director of NHA were, in effect, done pursuant to, and in accordance with, his obligations to Rand Stone and Rand Stone's obligations to HFAC. 11. Subject to one matter, it is clear that Rand Stone was not referred to in any of the materials that the Crown relied upon, nor raised with any of the Crown witnesses, although I add I am not suggesting that there was any such obligation. Subject to the one matter which I will shortly note, Rand Stone is an entity that appears to have first originated in this case in Mr Dickson's evidence. 12. The one matter of exception is that there is a dispute apparently between Mr Dickson and the Crown as to whether a copy of his employment agreement with Rand Stone was, or was not, seized during the execution of various search warrants undertaken back in 2012. It is simply not possible, without resolving every other factual issue in the case, to determine that dispute. It seems reasonably clear that if it was seized, it had certainly never fallen into the hands of the prosecution legal team. 13. In those circumstances, I am satisfied that the accused's reliance upon his employment with Rand Stone is a matter that solely arose for the first time in his evidence and it could not be said that the Crown ought reasonably to have foreseen that there was any necessity to chase up its existence or history. In those circumstances, I will allow the Crown to lead evidence by way of rebuttal in respect of that entity and cross-examine Mr Dickson on what was obtained. 14. The next entity that is the subject of various searches is "HFAC Harmony". There is no doubt that prior to the trial Mr Dickson flagged that it was part of his case that he undertook various acts on behalf of an entity known as HFAC: see [4] of his notice of response to the prosecution's notice dated 11 July 2014. The full name given for HFAC in that document was "an overseas partnership HFAC Harmony Biotechnology Private Equity Partnership". 15. The search that has been undertaken by Mr Durrand is some form of historical web search of the website "HFAC Harmony". This has arisen because, in his evidence and in the materials supplied in support of his case, Mr Dickson included some printouts from that website and explained that it was related to the entity HFAC. 16. It is finely balanced in my view as to whether this is material of which the Crown ought reasonably to have foreseen. On the one hand they were clearly told about HFAC and the word "harmony" does appear in the description. Equally in the world of website names perhaps one could easily see how one would not necessarily immediately leap to looking into a permutation that involves "HFAC Harmony". 17. In the end I am satisfied that the necessity for this material to be obtained has solely arisen out of the material as relied upon by Mr Dickson in support of his case, and is not material which the Crown ought reasonably to have foreseen was part of its case. Accordingly I will allow the Crown to lead it in rebuttal if necessary and rely upon it. 18. The next category of searches concerned the travel movements of Mr Paul Gregory Dickson, Mr Anthony Dickson's brother. Included in the materials in support of Mr Dickson's case is a document said to have been executed on or around a particular date that was witnessed by Mr Paul Dickson. This document was not included in the Crown bundle. Mr Anthony Dickson contends, and the Crown denies that it was initially seized pursuant to the search warrant. In any event, I think it is clear it is certainly not in the possession of the prosecution team. 19. In the end, bearing in mind my earlier observations, I am satisfied the necessity to obtain this material has solely emerged out of the case put forward by Mr Dickson. I will allow the Crown to lead it in rebuttal if necessary and to cross-examine Mr Dickson on it if it so chooses. 20. The next four categories of searches all concern searches undertaken upon the website of the United Kingdom Law Society in respect of four persons, Susan Mary Williams, Susan Harper, Edward Chang and David Whittome. Each of these persons was referred to in material in the Crown case, but at least for Susan Mary Williams, Susan Harper and Edward Chang I do not understand that it was suggested that they were lawyers. The first suggestion that they were lawyers appears to have come in Mr Dickson's evidence. 21. The Crown appears to rely upon these searches to somehow rebut that, although I doubt that will travel very far given that one could still have the title "lawyer" and not necessarily be admitted and presumably find oneself on the United Kingdom Law Society website. That said, the material may have some marginal relevance provided those limitations are explained 22. I am satisfied that for the first of those three people it is material that has arisen solely out of Mr Dickson's evidence and was not reasonably able to be foreseen. The Crown will be allowed to cross-examine on it and lead it in rebuttal if necessary. However in respect of Mr Whittome I think the evidence in the Crown case was that he was a lawyer and there is, in my view, nothing that emerges out of Mr Dickson's evidence that really could be said to have taken the Crown by surprise in that respect. 23. The last matter concerns two versions of a non-compete agreement which bears the date 15 March 2007 between an entity Karkalla Timber Fund and Craxgold Pty Ltd. In particular the Crown seeks to cross-examine Mr Dickson and, if necessary, lead by way of reply or rebuttal a version of that agreement that has various handwritten annotations, including a handwritten annotation specifying that the contact person for the entity Karkalla Timber Fund is a Mr John Taylor. The Crown also seeks to do the same with a more advanced version of that agreement that has Mr Taylor's name typed, in effect demonstrating that the handwritten annotation was given effect to. 24. The forensic significance that the Crown attributes to this is as follows. As I have said, in his evidence Mr Dickson states that he undertook many, if not most, of the relevant conduct impugned by the Crown in his capacity as an employee of Rand Stone and in the execution of Rand Stone's alleged obligations to its client HFAC. He has tendered, as part of his case, a number of agreements that appear to bear execution by HFAC, including at least some of them by a Mr John Taylor. Otherwise he has stated that the representative of HFAC that he dealt with in respect of a number of issues, including most crucially the negotiation of the assignment agreements between NHA and Athena as the alleged agent of HFAC, was Mr Taylor. 25. It appears to be common ground that the fact that a Mr John Taylor was the representative of HFAC in a number of allegedly crucial steps first emerged from Mr Dickson's evidence. 26. The Crown seeks to cross-examine Mr Dickson about this material and, in particular, Mr John Taylor as the representative of what appears to be an unrelated organisation, namely Karkalla Timber Fund, as part of an overall submission that Mr Dickson has invented him and deploys the name Mr John Taylor when it suits him. 27. I am satisfied that this has solely emerged from Mr Dickson's evidence. Were it not for one matter, I would grant the Crown leave to cross-examine Mr Dickson on these two documents and if necessary allow the Crown to lead them in reply. The difficulty is that this is a joint trial. The agreement to which Mr Taylor's name is being attached is said to be between the other accused's personal company, that is Craxgold Pty Ltd and Karkalla Timber Fund. 28. Senior counsel for the other accused, that is Mr Issakidis, submits that there is a real risk of prejudice to his client if the suggestion is pursued that Mr Dickson attributed a bogus name to the representative of the counter party. The consideration specified in the non-compete agreement is, at least on one version, divided into two tranches, the first of which is $155,000 and the other which is $1.75 million. The first tranche appears to correspond with an amount that was paid to Craxgold and is said to be an act that gave effect to the conspiracy that is alleged by Count 6. 29. The real concern of Mr Byrne QC is that by cross-examining and suggesting that the bogus name Mr John Taylor was attached to Karkalla Timber Fund and was used in relation to this non-compete agreement that it would, at least as against his client, amount to an effective reopening on Count 6. It may have the potential to demonstrate that his client somehow participated in the disguising of funds which, at least on one view, is part of the Crown's allegation on Count 6. As I have indicated, I am not countenancing a Crown re-opening. 30. I have found the determination of this aspect of the application a difficult one. In the end I consider that the prejudice to Mr Issakidis in this respect can be ameliorated by the giving of an appropriately strongly worded direction to the jury that the sole basis upon which they are to consider any such documents and any cross-examination on this topic is to the question as to whether there was such a person as Mr John Taylor and as to the veracity of Mr Dickson's evidence in that regard, and that they are not to use it as evidence in any way to suggest that Mr Issakidis participated in disguising or covering up the source of any funds received by him or any company associated with him. 31. I accept Mr Byrne QC's submission that it is a complex trial and directions of this kind can present difficulties. Nevertheless, I think I should accept that the jury has the capacity to accept and act in accordance with appropriate and strongly worded directions in that respect. 32. Accordingly, and on that basis, I will allow the Crown to cross-examine Mr Dickson in respect of those two documents and, if necessary, to lead evidence by way of rebuttal.