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." s 90 - CONSIDERATION 1. The language of s 90 expresses the concept of unfairness in the widest possible form: The Queen v Swathfield (1988) 192 CLR 159 at [67]; EM v The Queen (2007) 232 CLR 67 at [50], [177]. 2. The Australian law reform commission intended by s 90 to reflect the decision of the High Court in The King v Lee (1950) 82 CLR 133, to ensure that there was a discretion to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the defendant who made them and the exercise of that discretion would not involve, as does the discretion under s 138, a balancing of public interest. 3. The interpretation of s 90 is not affected by the more particular or specific provisions of the Evidence Act. The language of s 90 is general. In EM, Kirby J at [206] held the exercise does not depend on any intention by investigating officials to deprive the defendant a fair trial. It is whether the conduct had the effect of depriving him of such a trial. Every citizen has the right to remain silent, however pursuant to s 37(1)(b) of the ICAC Act a witness who appears at a compulsory examination or public inquiry is not entitled to refuse to answer any relevant question and a witness is not excused from answering a question on the ground that the answer may incriminate or tend to incriminate the witness: s 37(2). 4. The accused was required to answer all relevant questions at the compulsory examination. There was a prohibition on the publication of those answers pursuant to s 112(1)(d) of the Act. 5. In this case, the suppression order for the impugned passages had not been released and the accused was cross examined about his answers from the compulsory hearing at the public hearing where he was forced to answer and admissions against interest were made. 6. Mr Robinson in his helpful written submissions contends that the admissions made were not voluntary. He also relies upon what was said by Howie J in R v EM [2003] NSWCCA 374 at [104]. "It is unfairness arising from the use of the admissions by the prosecution that are central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused for a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated." 1. He contends that the Crown have obtained a forensic advantage by the failure of experienced counsel - as Gartelmann SC DCJ was then - to obtain a release of the material and that forensic advantage has been obtained unfairly by the Crown from the way the accused was treated at the public hearing in that he was cross examined about the letter and its contents, demonstrating inferentially that it was only he who had the requisite knowledge to write such a letter. This is the Crown case against the accused, and it is derived from his admissions and other circumstantial evidence in relation to count two. 2. Mr Robinson contends that due to the compulsory nature of an ICAC hearing, that compulsion carried with it a responsibility for counsel assisting to seek to lift the suppression order, and for the Assistant Commissioner to ensure that counsel assisting sought to lift it. There is much force to this argument. 3. Mr Robinson further submits that: 1. The procedures outlined to lift the suppression order are intended to ensure fairness in the conduct of the proceedings before ICAC. 2. The accused's rights including that whatever he said at a compulsory hearing would not be used against him unless this important safeguard was applied means that he cannot have a fair trial. His rights were not considered by those questioning him. 3. The failure to lift the suppression order is forensically disadvantageous to the accused in this criminal trial and gives the Crown an unfair tactical advantage. 4. The Crown's unfair advantage means that the use of the impugned evidence in the criminal trial is unfair to the accused. s 90 ORDERS 1. I conclude that having regard to the circumstances in which the admission was made, it gives the Crown an unfair tactical advantage, and the use of the impugned evidence in the trial is unfair to the accused, and I exclude the admissions pursuant s 90 of the Evidence Act. s 138 - CONSIDERATION 1. Although I have excluded the evidence pursuant to s 90, I would have also excluded the evidence pursuant to s 138 of the Evidence Act. Section 138(1)(a) applies in that the evidence was obtained in contravention of an Australian law. Section 112 of the ICAC Act required the lifting of the suppression order before the questioning at the public hearing was conducted. Section 112(2) creates an offence of publishing evidence in the absence of a s 112 lifting order and carries a maximum penalty of 12 months imprisonment. 2. The Court is to engage in a balancing exercise. The evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. Subsection (3) provides a list of matters for the Court to take into account. This list is not exhaustive. (a) PROBATIVE VALUE OF THE EVIDENCE 1. Mr Robinson submits that the evidence has limited probative value because some of the questions are objectionable in a criminal trial. He submits that the questions may not have been objectionable under the ICAC hearing rules, but if asked in a criminal trial, they are not admissible. He submits on that basis, the evidence has limited probative value. 2. For my part, I have read with great care the questions and answers. There are only two questions and answers that possibly could be objectionable under the Evidence Act. The question, "You're suggesting that he made it up?" would be objectionable in a criminal trial. The question, "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", may be objectionable in that it is a comment captured in the guise of a question. I do not see any objections to the other questions asked in the impugned passage. I do not accept the submission that the evidence has limited value. Admissions against interest are a powerful prosecution tool. (b) THE IMPORTANCE OF THE EVIDENCE 1. The case against the accused in relation to count two is a circumstantial case. The Crown relies upon an anonymous letter received by Mr Bastow. The letter was received after the accused attended a private hearing of ICAC. The contents of the letter matched a number of items found at the accused's home, and that those items can be traced to Mr Bastow's credit card. The circumstantial case is that only the accused and Mr Bastow knew how those items were purchased, and it follows that it must be the accused who wrote, "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". 1. The Crown says that when one examines in combination, the items found, the credit card details, the fact that a hearing took place, the temporal connection between the hearing and the finding of the letter, and the contents of the letter, the only rational inference is that the accused wrote the letter. Without the admissions, there is other circumstantial evidence that the Crown can rely upon in proof of the charge. (c) THE NATURE OF THE OFFENCE 1. The accused counsel concedes that the offence is a serious offence. (d) THE GRAVITY OF THE CONTRAVENTION 1. The contravention was serious. It is an offence punishable by gaol to publish evidence in the absence of a lifting order. It was a failure by counsel assisting to seek, and the Assistant Commissioner to lift the suppression order which applied to the evidence. It was that contravention that resulted in the admissions against interest. (e) WHETHER THE CONTRAVENTION WAS DELIBERATE OR RECKLESS 1. Exhibit B demonstrates that experienced senior counsel who was appearing as counsel assisting the day before the impugned evidence had applied for the lifting of a suppression order for the compulsory examination of this accused. Counsel was not a stranger to the procedure. The contravention was not deliberate but reckless, however it was an important contravention. (f) and (g) are not relevant. Insofar as (h) is concerned, the evidence subject to challenge could have easily been obtained with the lifting of the suppression order. It was not done. s 138 ORDERS 1. In my view, the nature of the contravention was serious. An important fundamental right was not afforded to the accused by ICAC, resulting in admissions against interest. I have weighed up the factors and have come to the view that in exercising a discretion, it should be in the favour of the accused, and the evidence is excluded pursuant to s 138. ********** 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: 19 November 2019