Supreme Court New South Wales Medium Neutral Citation: R v Dickson (No 15) [2014] NSWSC 1861 Hearing dates: 16 December 2014 Decision date: 16 December 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Applications by the accused for further directions rejected. Catchwords: CRIMINAL LAW - question arising as to the causal element in the various counts - challenge to listing of the conduct of each of the co-accsued. Legislation Cited: - Criminal Code (Cth), s 135.4, s 135.5 Cases Cited: -- Texts Cited: -- Category: Procedural and other rulings Parties: Crown (Commonwealth Prosecutor) Anthony James Dickson (Accused (12/140639)) File Number(s): 2012/140639 EX TEMPORE JUDGMENT Applications by defendant in respect of the summing-up (ref T279) 1. Shortly after the jury adjourned for lunch today senior counsel for the accused Mr Gross QC made a couple of applications in respect of the course of the summing-up so far. The first concerned Count 1. His application was that the jury be directed in respect of Count 1 that to be satisfied of elements 2.3 and 2.4 as set out in the written directions given to the jury they had to be satisfied beyond reasonable doubt that all three assignment agreements were a sham. He contrasted that with the fact that a direction to that effect was being given in relation to Counts 2 to 5. The effect of the submission was that there was a causal element in Count 1 that was not relevantly different to Counts 2 to 5. I reject that application. 2. In my view there is a significant difference between Count 1 and Counts 2 to 5 on this issue. Counts 2 to 5 require the jury to be satisfied beyond reasonable doubt that the conduct of Mr Dickson "caused a risk of loss to the Commonwealth". It is apparent from those words that there is a causal nexus that has to be established. During submissions some time ago it eventually came to be accepted that to meet that causal element of Counts 2 to 5 the Crown would, at a minimum, have to demonstrate that all three assignment agreements for Counts 3 to 5, and two of them for Count 2 were, in effect, shams. However Count 1 is a charge under s 135.4(5) of the Criminal Code (Cth) and that does not contain the word "caused". It is a conspiracy count. It is directed to a person conspiring with another person "to dishonestly cause a loss". As such it is directed to what the alleged co-conspirators agreed would be the intended result of their actions and does not require as an amount of proof that their actions in fact achieved the desired result. 3. This is reinforced by s 135.5(10) which provides that a person may be found guilty of an offence under this section, including s 135.4(5), even though the obtaining of the gain was impossible. Accordingly I decline to give the further direction sought by Mr Gross QC. 4. A related complaint of Mr Gross QC was that the directions are currently apt to confuse. The current position is that because the Crown case on Count 1 is circumstantial the jury have been directed that before finding the accused guilty they have to be satisfied beyond reasonable doubt that at least one of the agreements was a sham and be unanimous about which one. That position was arrived at during debate some weeks ago and is directed to how a jury would reason in a circumstantial case to arrive at a conclusion that the accused and Mr Issakidis reached the agreement in [2.1] of the written directions. Thus this submission elides the fact that the circumstantial direction concerns the manner of proof of the element in 2.1 with what is required by 2.3 and 2.4 which concern causation. 5. The second point raised by Mr Gross QC was a general objection to that part of the summing-up in which I had listed the conduct that emerged from the Crown's address that it said it had proved in respect of Mr Dickson and Mr Issakidis. He submitted that it was somehow unduly prejudicial to the accused. The listing of the conduct said to have been proved in respect of each of Mr Dickson and Mr Issakidis occurred at two points in the summing-up. The first was at the point of which I was giving the jury an explanation in relation to Count 1 of the manner in which the Crown seeks to prove the existence of the alleged conspiracy, and in particular the agreement that is referred to in [2.1] of written directions to the jury. By reference to an index that has also been handed out to the jury this arose in Part 3 of the summing-up. Similarly in dealing with Count 6 and explaining how the Crown sought to prove the agreement that was the subject of the conspiracy for that count I also listed certain instances of conduct relied on by the Crown in relation to both Mr Dickson and Mr Issakidis. The other part in the summing-up in which the conduct was listed was section 4.19 when the jury were given a list of the circumstances relied on by the Crown as part of a direction on circumstantial evidence. 6. In my view a direction to the jury on conspiracy which does not attempt to isolate the conduct of each alleged co-conspirator relied upon by the Crown to draw the inference of an agreement is a waste of time. Similarly there is little utility in giving the jury a direction on circumstantial evidence if the jury are not told what the circumstances relied on by the Crown are. The fact that the number of circumstances in respect of each accused is in double figures is simply a product of the fact that this is a long trial. The jury were repeatedly told that they were simply the matters the Crown said that they had proved and that they were denied by the accused. The listing of the conduct of each of the alleged co-conspirators at those points in the summing-up was necessitated by the very direction that was being given. 7. The last point raised by Mr Gross QC concerned some aspects of the summing-up had not properly put the Crown case. That is best dealt with at the conclusion of the summing-up. ********** Amendments 13 September 2018 - coversheet - publication restriction notation removed 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: 13 September 2018