Supreme Court New South Wales Medium Neutral Citation: R v Macdonald; R v Maitland (No3) [2017] NSWSC 722 Hearing dates: 30 January 2017 Decision date: 30 January 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Allow the parts of document 73-0300 which are objected to. Catchwords: EVIDENCE – admissibility – alleged risk of unfair prejudice – s 137 of the Evidence Act 1995 (NSW) – danger of unfair prejudice did not outweigh considerable probative value – reasons behind enactment of s 69 of the Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 69 and 137 Category: Procedural rulings Parties: Regina Ian Macdonald (Accused) John Maitland (Accused) Representation: Counsel: M McHugh SC/P English (Crown) M Johnston SC (Accused Macdonald) D Jordan SC/ ES Kerkyasharian (Accused Maitland) Solicitors: Solicitor for Public Prosecutions (Crown) Horton Rhodes Lawyers (Accused Macdonald) Bob Whyburn Solicitor (Accused Maitland) File Number(s): 2015/59940; 2015/59990 Judgment: ex tempore Introduction 1. Objection has been taken to document 73-0300 by Mr Jordan SC, who appears with Mr Kerkyasharian for the accused Mr Maitland. This document is the transcription of a handwritten document which is accepted to comprise notes taken by Mr Stevenson of a meeting which occurred on 21 November 2007. Mr Maitland was present at that meeting. Parties' submissions 1. The principal submission made by Mr Jordan is that there is a real danger of unfair prejudice and, accordingly, the document should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused. 2. The Crown relies on the document and has made submissions about its probative value as follows. The Crown submitted that at the meeting there was a discussion about the approval to be sought by a company in relation to a mine at Doyles Creek and the difficulty of approaching the matter in what the Crown says would be an orthodox fashion. It is said by the Crown that the Doyles Creek entity did not have the wherewithal to make the appropriate financial contribution to the State Crown, having regard to the nature and size of the resource and that, therefore, in order to obtain an exploration licence and to proceed to mine the resource, it would need to go about it in a different way. 3. The Crown relies on statements made by Craig Ransley, the managing director of the Doyles Creek entity, in the presence of Mr Maitland, who was its Chairman, relating to the approach to be taken. 4. The Crown relies on particular words in the document, including "Need bankable document to present to the Dept" and the reference to a "'pre-feasibility' study with 'spin' for training mine". The Crown also highlights, in the passage objected to: "4. Considering capital raise of $250K in CR [Craig Ransley] - don't want to spend $1M don't want to have to go to tender . . ." 1. Mr Jordan accepts that the document is relevant on one reading, albeit that the evidence is hearsay, but says that it is that reading which creates the risk of unfair prejudice. He submitted that the notes of the meeting taken by Mr Stevenson were not a complete record of what was said and stressed there is no evidence that they were accepted as being correct by those present at the meeting, either in a subsequent meeting or at all. He contended that the parts objected to had slight probative value because, in the context, Mr Ransley was talking about financial matters and "spin" in that context; whereas the jury might think that Mr Ransley was talking about how to "spin" the matter to the Department. Mr Jordan contended that, because of the potential for the objected to passage to be read in that way, there was a real danger of unfair prejudice which outweighed the probative value outlined by the Crown to which I have already referred. Consideration 1. It seems to me that the words used in the document are sufficient to indicate that the statements made by Mr Ransley could properly be inferred to go beyond financial matters and to go to how to, as it were, sell the proposal to the State and the Department; rather than to any individual financier, or group of financiers. 2. I am satisfied that the parts objected to have substantial probative value. I do not consider that any prejudice identified by Mr Jordan would be unfair since it seems to me that the document could properly be read as being consistent with the Crown case. I note what Mr Jordan has said about this not being a complete transcript of the agreement. However, one of the reasons for the enactment of s 69 of the Evidence Act was that it was generally acknowledged that there is a reliability associated with documents which are prepared as part of a business record by somebody (in this case, Mr Stevenson) who has an interest in recording accurately what was said. 3. Accordingly, I am not satisfied that the danger of unfair prejudice outweighs the probative value of the parts objected to. I consider the probative value to be considerable and the danger of unfair prejudice to be relatively remote. Ruling 1. Accordingly, I allow the parts of document 73-0300 objected to on behalf of Mr Maitland, being the passage beginning with the initials "CR" on page 300 down to "it can stand alone" on page 301. ********** Amendments 30 March 2023 - Publication restriction removed – judgment republished 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: 30 March 2023