Supreme Court New South Wales Medium Neutral Citation: R v Seller; R v McCarthy [2015] NSWSC 1298 Hearing dates: 3 September 2015 Date of orders: 04 September 2015 Decision date: 04 September 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Tender rejected Catchwords: EVIDENCE – tender of letter and "rough diagram" – whether probative or unfairly prejudicial – whether probative value substantially outweighed by danger of unfair prejudice – whether documents might be misleading or confusing Category: Procedural and other rulings Parties: Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: P McGuire (Crown) J Stratton SC with G Antipas (Seller) P Bruckner with R Johnson (McCarthy) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (Seller and McCarthy) File Number(s): 2009/2375562009/237509 Judgment 1. HIS HONOUR: The Crown proposes to tender two documents. The first is a letter dated 23 June 1999 from Mr McCarthy to Mr de Figueiredo at Strachans. The second is a hand drawn flow chart of what purports to be a whisky scheme. It is described in the letter as a "rough diagram" and is attached to it. 2. Paragraph 8 of the letter is as follows: "8. GM makes a $375,000 paper profit on the transaction as it receives $125,000 cash from ASM and a $375,000 note/guarantee from Ambassador but only pays the distiller $125,000 in cash to produce the whisky. Borrowers get a $500,000 tax deduction in Australia for a cash contribution of $125,000." 1. The accused contend in opposition to the tender that the document is irrelevant and that its probative value is outweighed by the danger of unfair prejudice to them. 2. In my view the document is of marginal relevance only. It appears to have been written upon a preliminary basis. It makes no reference to Chambers Finance even though the diagram does. It does not attach any of the scheme documents which are otherwise in evidence in these proceedings. The representations contained in the letter are not made in a formal or binding context so that their truth or otherwise is beside the point. Significantly, they are not made to the Australian Taxation Office and do not constitute any of the actual representations that are alleged to support the charge in the indictment. 3. There is also a danger of unfair prejudice. The accused are not on trial for deceiving or attempting to deceive the Australian Taxation Office by the construction or implementation of a fraudulent tax minimisation scheme. They are charged with a quite different offence. In my opinion the receipt of the letter and the diagram into evidence would have the potential to give the jury the impression that the accused were involved in or were proposing to become involved in such a scheme with potential criminal consequences. That danger should not be permitted to materialise. 4. I am also of the view that the letter may be misleading or confusing in the context of the trial and the charge faced by the accused. That risk substantially outweighs the probative value of the letter and the diagram, which on any view could only be as background or contextual material. 5. I reject the tender. ********** 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: 28 September 2015