R v Sigalla (No. 2) [2016] NSWSC 1918

Supreme Court New South Wales

Medium Neutral Citation: R v Sigalla (No. 2) [2016] NSWSC 1918 Hearing dates: 28 October 2016 Date of orders: 28 October 2016 Decision date: 28 October 2016 Before: Adamson J Decision: (1) I allow evidence to be given by Ms Wilkie of the conversation in [80] of her statement to the Australian Securities and Investment Commission dated 28 February 2011. Catchwords: CRIMINAL LAW – evidence – application by accused to exclude evidence under s 137 Evidence Act 1995 (NSW) – evidence from statement of witness to ASIC – probative value of evidence not outweighed by danger of unfair prejudice Legislation Cited: Evidence Act 1995 (NSW) ss 136, 137 Cases Cited: Nil Category: Procedural and other rulings Parties: Regina Andrew John Sigalla Representation: Counsel: P McDonald SC/ S Callan (Crown) W P Brewer (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brendan Pigott (Accused) File Number(s): 2013/1511552013/355116 Publication restriction: Nil

JUDGMENT

Introduction 1. On 28 October 2016 Mr Brewer, counsel for the accused, objected to the Crown adducing certain evidence from Fiona Wilkie and submitted that it ought be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant. The evidence to which objection was taken was derived from [80] of Ms Wilkie's statement to the Australian Securities and Investment Commission (ASIC) dated 28 February 2011, which said as follows: "Also during this meeting [in late 2008 or early 2009], either Mr Fornasaro or I queried with Mr Sigalla various loans that appeared in account '2-4193 TZ Limited' of the client MYOB General Ledger of the Sigalla Family Trust for the financial year commencing 1 July 2008. Mr Fornasaro or I said words to the effect; "What is this account?" and "What are these loans for?" Mr Sigalla said to Mr Fornasaro and I words to the effect; "Sometimes we have to artificially inflate the price of TZL. I tell my mates to do it too. Sometimes I borrow money to buy shares for myself, and sometimes I get money from friends to buy shares on their behalf."" 1. I allowed the evidence as I did not consider that its probative value was outweighed by the danger of unfair prejudice and indicated that I would provide reasons for my ruling later. I note that when the jury returned and Ms Wilkie was asked about the conversation with the accused, the following exchange ensued: "Q. I asked you about the conversation which was in about late 2008/early 2009 in which Mr Sigalla was asked "what's the account? What are the loans for?" He provided you with an answer? A. Yes. Q. What did he say? A. From my recollection, the answer was that basically people he knew and other parties to TZL would trade in shares of TZL to influence the market value of the shares on the stock exchange." 1. The answer given by Ms Wilkie did not go as far as her proof of evidence set out above, in which the accused is said to have said: "Sometimes we have to artificially inflate. . ." The actual evidence adduced made the ruling, in effect, hypothetical. Nonetheless, the accused is entitled to reasons for my allowing the evidence, which are set out below.