R v Cresnar (No 2) [2019] NSWDC 671

District Court New South Wales

Medium Neutral Citation: R v Cresnar (No 2) [2019] NSWDC 671 Hearing dates: 28 – 30 October 2019 Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: The impugned evidence is excluded pursuant to s 90 and s 138 of the Evidence Act. Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone — s 90 Evidence Act — discretion to exclude — s 138 Evidence Act — improperly obtained Legislation Cited: Evidence Act ICAC Act 1988 Cases Cited: EM v The Queen (2007) 232 CLR 67 R v EM [2003] NSWCCA 374 The King v Lee (1950) 82 CLR 133 The Queen v Swathfield (1988) 192 CLR 159 Category: Procedural and other rulings Parties: Regina (Crown) Phillip Cresnar (Accused) Representation: Counsel: S Talbert (Crown) D Robinson (Accused)

Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) Legal Aid Commission NSW/ACT (Accused) File Number(s): 2017/00247006

Judgment

INTRODUCTION 1. The accused has been arraigned on a two count indictment and has pleaded not guilty to a count of knowingly give false evidence before ICAC contrary to s 87(1) of the ICAC Act 1988 and a count of did attempt to cause the giving of false evidence contrary to s 89(a) of the Act. 2. The accused applies for the exclusion of evidence pursuant to s 90 and/or s 138 of the Evidence Act. The accused gave evidence before ICAC on 23 January 2015; the Crown seeks to use that evidence in proof of count 2 and relies upon the admission against self-interest made by the accused. 3. Count 2 provides "On the 21st day of August 2014 at Sydney in the state of New South Wales did attempt to cause the giving of false evidence by Jason Bastow at a hearing before the Independent Commission Against Corruption". The impugned evidence is at pp 464-467 and reads as follows: "Q. And in the course of that compulsory examination, you were asked questions about your dealings with Mr Bastow? A. Correct. Q. And you were asked questions about who paid for a number of items in your home. Correct? A. Yes. Q. Such as a Pioneer DVD Blu-ray player? A. Yes. Q. Such as a Bosch fridge? A. Correct. Q. And a Sony TV? A. Yes, and a holiday. Q. I want you to have a look at something. Page 1339, 1340 - I'm sorry, yes, 1340. Do you see before you a copy of a typewritten note or letter? A. Yes. Q. And you have followed the evidence in this inquiry would understand that Mr Bastow says that that letter was inside an envelope dropped off at his letterbox? A. Right. Q. On 21 August last year. A. Okay. Q. Now, that letter makes reference to the three items that I've asked you about, the Pioneer DVD player, the Bosch fridge, and the Sony TV, doesn't it? A. It does. Q. And it goes on to say how those items have been traced back to transactions placed with your - IE: Mr Bastow's, credit card number, doesn't it? A. It does. Q. And then it goes on to say, 'Don't be bluffed into saying any more'. A. That's correct. Q. And it goes on to provide what appears to be an explanation, 'These items were gifts for finding resources for you to fill the day labour crew position, as you had no one available at the time'. A. It does. Q. Now, at the time that this letter was dropped off at Mr Bastow's letterbox A. Yep. Q. you were well and truly aware, of course, that you were the subject of an investigation by the Independent Commission Against Corruption, weren't you? A. I was. Q. And you've only recently been asked about those very same items, the Pioneer DVD player, the Bosch fridge, and the Sony TV, in a compulsory examination at the Independent Commission Against Corruption. Correct? A. I think so. Yeah. Q. No one else would know apart from yourself and Mr Bastow how you came to purchase those items, would they? A. No. Q. And the letter has been dropped off to Mr Bastow's house, isn't it? A. Oh, I don't know. Q. Well, you understand A. That's what he says. Q. That's the evidence that he's given here. A. That's right. Q. So, accepting A. But I wouldn't have - if - if this was my letter, I would have had to say something about the holiday, right? Because I told you he bought me a holiday, and Q. Is it the case that after perhaps your compulsory examination, you got hammered, too? A. Could have been. Q. All right. And is it the case that you remembered some things you were asked about and not other things? A. I don't know. Q. And is it the case that you wrote out a letter to Mr Bastow giving him a false explanation to provide to investigators about how those items were purchased for you? A. Sorry, say that again? Q. Is it the case that you wrote out a letter? A. No. It's not. Q. No one else would have known anything about these items apart from yourself and Mr Bastow. A. That's correct. Q. You've just been asked about those items in a compulsory examination, right? A. Right. Q. No one else would be providing this information to Mr Bastow conceivably. A. That's right. Q. So, it follows, doesn't it, that it must have been you who wrote this letter? A. I didn't write the letter. Q. Did you have somebody write the letter? A. No. Q. Did you ask someone to do it for you? A. Not that I'm aware of. Q. Not that you're aware of? What does that mean? A. I don't remember asking anyone to write a letter. Q. Well look, I'm going to suggest to you that there is absolutely no conceivable explanation for how a letter in those terms could have been dropped off to Mr Bastow's letterbox, apart from it being from you. A. I'd suggest to you that he left it there. Q. He left it there? A. Well, that's what I suggest to you. Q. You're suggesting that he made it up? A. That's - well look, it wasn't me, so you said it yourself. It's either him or me that knew. Q. You're lying about your knowledge of the letter to Mr Bastow's letterbox, aren't you? A. No. Q. You're giving false evidence once again in this inquiry. A. No. Q. That can be taken down, thank you. Just lastly, in relation to that topic, when you were the subject of that compulsory examination here at the Independent Commission Against Corruption, you suggested that a possible explanation for payments made by Mr Bastow on your behalf A. Yeah. Q. was that you'd helped him to find day labour crew. A. Right. Q. You said that in your compulsory examination. A. Right. Q. Now, no one else apart from yourself and Mr Bastow would know anything about that. Correct? A. Ah - potentially, yeah. Q. Well, who? A. The people that were there. The day labour crew. Q. All right, but no one else would know about - both about the explanation for the payments, being you helping A. No. They wouldn't know. Q. No. So, it follows, doesn't it, that whoever wrote that note knew that Mr Bastow purchased the DVD player, the fridge, and the TV, and knew that - I withdraw that - the person who wrote that note knew that Mr Bastow had purchased the DVD player, the fridge, and the TV, and would have had to have known about any explanation for payments on account of helping with finding day labour crew. A. That's right. Q. And it must have been A. It wasn't me. No. Q. Once again, Mr Cresner, you're lying in your evidence about your knowledge of that letter delivered to Mr Bastow's letterbox. A. I don't have any knowledge of the letter, so ". 1. The basis for the application is that counsel assisting did not seek to lift the suppression order which applied to the evidence given by the accused at the compulsory hearing on 18 August 2014. Section 112 (1)(d) of the Act prohibits the publication of evidence given at a compulsory examination or public enquiry unless specified by the Commission. It is common ground that there was a procedural irregularity in relation to the earlier evidence and its use. The Crown concedes that this was so. 2. Exhibit B on the application is p 335 of the public hearing of the accused on 22 January 2015. It demonstrates the ease with which a suppression order for earlier compulsory examination evidence can be lifted. 3. Section 90 of the Evidence Act provides: "Discretion to exclude admissions in a criminal proceeding, the Court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if; (a) The evidence is adduced by the prosecution, and (b) Having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence". 1. Section 138 provides: "Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) Improperly or in contravention of an Australian law, or (b) In consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in a way in which the evidence was obtained. (2) Without limiting subs (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) Did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) Made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false, and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the Court may take into account under subs (1), it is to take into account: (a) The probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any proceeding (whether or not in the Court) has been or is likely to be taken in relation to the impropriety of the contravention and (h) the difficulty (if any) or obtaining the evidence without impropriety or contravention of an Australian law."