Director of Public Prosecutions v Iliopoulos (Ruling No 2)
[2016] VSC 47
•15 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0172
S CR 2014 0162
S CR 2014 0171
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVE ILIOPOULOS, VASILIS BARIAMIS AND PETER ILIOPOULOS |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 9, 11 February 2016 |
DATE OF RULING: | 15 February 2016 |
CASE MAY BE CITED AS: | DPP v Iliopoulos & Ors (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 47 |
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CRIMINAL LAW – Obtaining a financial advantage by deception – Accused alleged to engage in deceptions to obtain bank finance for employer – Admissibility of evidence – Use by accused of employer funded credit card for personal expenditures – Large sums deposited by employer into accused’s bank accounts used partly for personal expenditure – Whether relevant to motive – Whether probative value outweighs risk of prejudice – Whether introduction of evidence will result in undue waste of time – Evidence by accountant – Whether opinion – Whether based on expertise – Evidence Act 2008 ss 78, 79(1), 135, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown and Mr P Kounnas | Acting Solicitor for Public Prosecutions |
| For the Accused Steve Iliopoulos | Mr M Dempsey | Lethbridges |
| For the Accused Vasilis Bariamis | Mr G Georgiou SC and Mr L Howson | Dribbin & Brown |
| For the Accused Peter Iliopoulos | Mr D Glynn | Theo Magazis & Associates |
HIS HONOUR:
The three accused, Steve Iliopoulos, Vasilis (Bill) Bariamis and Peter Iliopoulos, are charged on an indictment containing 14 charges.
The circumstances relating to the charges against the accused are set out in an earlier ruling in this matter.[1] At the trial, the prosecution proposes to call evidence from Ms Susan Fiedler, a chartered accountant, from whom four statements have been taken. The prosecution also intends to tender each of those statements as expert reports. Objection has been taken, on behalf of Bill Bariamis, to the admissibility of the matters contained in the first and fourth statements, and, in addition, to the tender of those statements if the contents of them are admissible.
[1]DPP v Iliopoulos & Ors (Ruling No 1) [2016] VSC 32R.
The first statement by Ms Fiedler deals with two matters. The first relates to the use by Bill Bariamis of a Viking Group American Express Card (‘AMEX card’) that was issued to him. In short, during the period 1 September 2009 to 21 April 2011, the charges on the card totalled $667,357. Ms Fiedler’s analysis of those charges indicates that at least $402,479 (or 66%) of that amount appears to have been for personal expenditure, rather than expenditure relating to the business of Viking. The prosecution seeks to rely on that evidence as it provides ‘context’ for the offending alleged against Bill Bariamis, and, more particularly as it establishes a motive for Bill Bariamis to be involved in the offences, of obtaining by deception the finance for the Viking Group of Companies, that are the subject of the charges against him.
The second matter, arises out of an analysis by Ms Fiedler of a number of bank accounts that are said to be connected with Mr Bariamis, and which, it is alleged show a ‘swirl’ of money between those accounts. In particular, according to Ms Fiedler, during the period 1 September 2009 to 21 April 2011, $3,290,104 was deposited into four accounts in the name of Bill Bariamis by the Viking Group. During the same period, payments were made from those accounts to the Viking Group of Companies in the sum of $623,528, and $2,920,000 for purposes which, according to Ms Fiedler in her final statement, appear to be a mix of personal purposes and purposes relating to the Viking Group and/or Steve Iliopoulos. In the same period, $262,330 was paid into a joint account in the name of Bill Bariamis and his wife Loukia Bariamis from the Viking Group. The information currently available by Ms Fiedler does not enable her to analyse whether any of those funds were used for purposes associated with the Viking Group.
The prosecution contends that the evidence of those deposits is relevant to the issue of the motive of Bill Bariamis to engage in the offences alleged against him. It is also contended that the evidence is relevant to demonstrate that Mr Bariamis must have been put on notice that something unusual was occurring with the bank accounts and finances of the Viking Group of Companies, at the time at which he was a party to representations to the CBA that the financial situation of the Viking companies was healthy.
Summary of bases of objections to evidence of Ms Fiedler
Mr L Howson, who appears with Mr Georgiou SC for Bill Bariamis, has submitted that the evidence, as to the use of the Viking AMEX card, and as to the banking transactions, is not relevant to the issues in the case. He further submitted that insofar as the evidence is relevant to the issue of motive, it has little probative value in relation to that matter, and such probative value is outweighed by the potentially prejudicial effect the admission of that evidence would have on the fair trial of the charges against Bill Bariamis. Mr Howson further submitted that, in any event, Ms Fiedler was not qualified, as an expert, to give evidence as to the characterisation of the expenditures appearing in the bank statements. In addition it is submitted that, if the evidence is admissible, the prosecution should not be permitted to tender the parts of the first and fourth statements of Ms Fiedler in which it is set out.
It is convenient to deal, first, with the objection as to the content of Ms Fiedler’s two statements, and, then, to deal with the objection relating to Ms Fiedler’s qualification to give evidence in relation to those matters, and the question as to whether I should admit Ms Fiedler’s statements in evidence.
Objection to evidence of use of Viking AMEX card
Mr Howson objected to the admission of the evidence relating to the use of the Viking AMEX card on three bases.
First, it is submitted that the evidence is dependent on proof by the prosecution that the expenditures, on the card, were attributable to the use by Mr Bariamis of the card. Mr Howson referred to the evidence of Loukia Bariamis, in the depositions, that the card was not used solely by Bill Bariamis. In that respect, he also pointed to entries on the AMEX card, which demonstrate that some of the expenses, recorded on the card, might not have been incurred by Mr Bariamis at the time. In addition, Mr Howson referred to the evidence, in Loukia Bariamis’ statement, that amounts, incurred on the AMEX card, were repaid by her to the Viking Group.
Secondly, it is submitted that the evidence is not admissible as ‘context evidence’, as it does not, in any relevant manner, provide a background or understanding of the circumstances in which it is alleged that the offences, charged against Mr Bariamis, were committed.
Thirdly, it is submitted that the evidence has only limited, if any, probative value in establishing a motive by Bill Bariamis to be a party to the offences charged against him. The prosecution has not been able to point to evidence that the personal expenditure, incurred on the AMEX card, was not repaid to Viking. Further, and in any event, it is pointed out that, during his employment with Viking, Bill Bariamis was paid a salary of approximately $500,000 per annum. Thus, the evidence relating to the AMEX card does not add materially to the motive alleged by the prosecution for the involvement of Mr Bariamis in the offending alleged against him, namely, that he wished Viking to continue trading because he was deriving considerable remuneration from it.
On the other hand, Mr Howson submitted that the evidence, relating to the AMEX card, would occasion unfair prejudice to Bill Bariamis. There is a risk that the jury might infer from that evidence that Bill Bariamis was stealing from the Viking Group, or otherwise misappropriating its funds. In addition, the form in which the evidence is to be called might create a serious risk of unfairness to the accused. If Ms Fiedler gave evidence without producing the AMEX statements, it would not be practicable to subject it to any meaningful challenge in cross-examination. On the other hand, if the AMEX statements were tendered in evidence, it would be necessary for them to be subjected to a detailed and lengthy analysis, which might necessitate the calling of a number of further witnesses. In that way, this aspect of the case would receive undue prominence, and be an unnecessary distraction to the jury.
In response, Mr P Kounnas, who appears with Mr D Brown for the prosecution, submitted that the evidence, relating to the AMEX card, is relevant and admissible. In particular, the expenditures incurred on the card, for personal use, constituted a benefit to Bill Bariamis, substantially in excess of the salary that he received from the Viking Group of Companies. In that way the evidence is relevant to establish that Bill Bariamis had a strong motive to be complicit with and engage in the deceptions that were practised on the CBA, in order to ensure that the Viking Group kept operating so that he would continue to derive the benefits that he received as a result of his employment by it. Mr Kounnas particularly submitted that, while the salary paid to Mr Bariamis was substantial, nevertheless it did not exceed the type of remuneration that Bill Bariamis would have been entitled to expect to receive from employment in any other organisation, in light of his commercial background and experience. The benefits that he received from the AMEX card were unusual, and substantial, and thus constituted an incentive for him to participate in the deceptions practised on the CBA in order to ensure that the Viking Group remained financially viable. Mr Kounnas further submitted that any risk that the jury might misuse the evidence can be sufficiently met by an appropriate direction to the jury.
Conclusion on the admissibility of evidence of use of Viking AMEX card
It is not in dispute that it is relevant for the prosecution to prove a motive of Bill Bariamis to be a party to the offences with which he has been charged. In the absence of such proof by the prosecution, a cogent argument might be mounted on behalf of Mr Bariamis as to why he, having limited or no equity in his business, would have engaged in such substantial deceptions on the bank for the benefit of the business. In the absence of proof of a relevant motive on behalf of Mr Bariamis, it might fairly be argued that it would not have made sense for Mr Bariamis, with his successful background in banking and commerce, to have become involved in such offending.
It is correct, as Mr Howson contends, that Bill Bariamis was in receipt of a substantial salary from his work with the Viking Group, which would have been imperilled if the Group became unviable. However, as Mr Kounnas pointed out, the salary, paid to Mr Bariamis at that time, was not unusual for executives of his status working in large commercial enterprises. On the other hand, the evidence of Ms Fiedler is that some $400,000 of expenditure, which might be characterised as personal, was incurred by use of the AMEX card over an 18 month period. The jury would be entitled to consider that the entitlement of Mr Bariamis, to use the card for those purposes, to that extent, constituted a substantial additional benefit to him, which would be unlikely to have been available to him in other equivalent employment he might undertake. In that way, in my view, the evidence as to the use of the AMEX card for personal expenditure does have quite substantial probative value, as it has materially to its proof by the prosecution of a motive for Mr Bariamis to be involved in the offending alleged against him.
It was argued on behalf of Mr Bariamis that a jury might infer, from the evidence, that he had engaged in theft from the company by using the card for such a large amount of personal expenses. The prosecution does not seek to contend that the use of the card by Mr Bariamis for those purposes, was unauthorised. Rather, the case made by the prosecution is that the use of the card by Mr Bariamis, for those purposes, was part of his ‘remuneration package’, thus constituting a strong incentive for him to take steps to ensure that the funding provided by the CBA to the Viking Group continued. Thus, I do not consider that there is any substantial risk that the jury might misuse the evidence in that way. Any such risk can be sufficiently countered by an appropriate direction to the jury.
There is, I apprehend, some risk that a jury might nevertheless think less of Mr Bariamis, for using an AMEX card in that way at a time at which the Viking Group was experiencing significant cashflow difficulties, and was regularly seeking further financial accommodation from the CBA. However, again, the risk of any such prejudice to Mr Bariamis might be adequately allayed by an appropriate direction to the jury, of the kind ordinarily given when evidence is adduced in a trial that might reflect adversely on the character or disposition of the particular accused.
Accordingly, I am satisfied that the probative value of the evidence, as to the use of the AMEX card, substantially outweighs any risk of prejudice to Bill Bariamis resulting from the introduction of that evidence.
Mr Howson further submitted that, in any event, the prosecution is not in a position to prove that the expenditures on the AMEX card, described by Ms Fiedler as personal expenditures, were incurred by Bill Bariamis. In that respect, he referred to the first statement by Loukia Bariamis in which she said that Steve Iliopoulos encouraged her to use the AMEX card, because she was not paid a salary. She said that Bill Bariamis only used the card for business purposes. The only time he used it for a quasi-private purpose was when he travelled overseas in December 2010 and January 2011. She further stated that the main purpose, for which she used it, was to pay her children’s school fees, which she repaid to the Viking Group. In addition, Mrs Bariamis says that several staff and Steve Iliopoulos’s children also used the AMEX card.
The expenditures on the card, characterised by Ms Fiedler as ‘personal expenditure’, are divided by her into seven categories. The first category is a family vacation. That item relates to a family vacation undertaken by Bill Bariamis and others in Europe in December 2010 to January 2011, at a cost of $101,867. Another category is ‘school fees’ totalling $13,206. Mrs Bariamis’s evidence is that the card was used by her husband for the holiday expenses, and by herself for the school fees. Standing alone, a jury might consider that such a use of the card, of itself, constituted a significant additional benefit to Bill Bariamis and his family arising from his employment with the Viking Group.
The other five categories of personal expenditure related to jewellery ($160,869), pens ($20,398), fashion and accessories ($12,448), vehicles ($73,619) and homewares and appliances ($18,345). In light of the use of the card by Bill Bariamis, and his wife, for the expensive family vacation and the children’s school fees, it would be open to the jury to infer that Bill Bariamis, and his family, also used the card for at least a significant part of those other expenses incurred on the card. The jury would be entitled to consider it rather incongruous that at least a significant amount of the personal expenses, incurred on the card, were not incurred by the nominated holder of the card (Bill Bariamis), but rather by other unrelated people, such as staff of the Viking Group and by Steve Iliopoulos’s children. Ultimately, it will be a matter for the jury as to whether it is satisfied that the items described by Ms Fiedler as ‘personal expenses’ were incurred by Mr Bill Bariamis or his wife, with his knowledge. However, at this stage of the proceeding, there is a sufficient evidentiary basis for the admission of the expenditure incurred on the AMEX card.
Transactions on Bill Bariamis’s Bank Accounts
In its written submissions, the prosecution sought to rely on the evidence, as to the deposits made by the Viking Group into bank accounts of Bill Bariamis, for two purposes. First, it was submitted that Mr Bariamis would have been aware of those payments into his accounts, and thus would have been put on notice that something unusual was occurring in the financial accounts of Viking. In that way it was submitted that Mr Bariamis was on notice that the finances of the Viking Group were not as secure as was represented to the banks. Secondly, it was submitted that the amounts deposited into Mr Bariamis’ accounts were substantial, and thus provided an additional motive for him to participate in the offending to ensure the continued financial viability of the Viking Group. However, in submissions before me, Mr Kounnas relied, substantially if not wholly, on the proposition that the evidence of the amounts deposited into Mr Bariamis’s accounts, were relevant for the purpose of establishing a motive. In that respect, reliance was placed on evidence by Ms Fiedler as to the amounts, in those accounts, that were used for expenses that could be characterised as personal, rather than as expenses relating to the Viking business.
In her first statement, Ms Fiedler states that, during the period 1 September 2009 to 21 April 2011, amounts totalling $3,290,104 were deposited into four bank accounts of Bill Bariamis. Those amounts were paid from the Viking accounts. The four accounts consisted of: a Westpac account number 773-267693983 (‘Westpac account number 693983’); a second Westpac account number 033-267290271 (‘the Westpac account number 290271’); a National Australia Bank account number 083-266283262763 (‘NAB account number 62763’); and a National Australia Bank Qantas Gold MasterCard number 531355661190440 (‘the NAB MasterCard’). Ms Fiedler also stated that, during the same period, amounts totalling $262,330, from the Viking accounts, were deposited into a joint account with the ANZ Bank in the name of Bill Bariamis and Loukia Bariamis. However, Ms Fiedler did not have information available to reveal to whom the cheques, drawn on that account, were paid. Accordingly the prosecution does not intend to rely on the evidence of Ms Fiedler relating to that bank account.
In her first statement, Ms Fiedler noted that in the period 1 September 2009 to 21 April 2011, amounts totalling $623,528 were paid from the four bank accounts in the name of Bill Bariamis to the Viking Companies or to American Express cards issued in the name of the Viking Companies. She stated that $2,920,449 was also withdrawn from the four accounts ‘… for other purposes which appear to be a mix of personal purposes and purposes related to Viking and/or Steve Iliopoulos’. In her first statement Ms Fiedler provided some detail as to the items on which the amounts, so withdrawn, were expended. However, the information contained in the first statement was, of itself, insufficient for the prosecution to be able to rely on it on the issue of the motive of Bill Bariamis to engage in the offences charged against him. Accordingly, a further (fourth) statement was taken from Ms Fiedler in relation to that matter. Ms Fiedler was cross-examined, on a voir dire, in relation to the contents of her further statement.
Ms Fiedler’s evidence is that, apart from withdrawals for payments to Viking bank accounts and the Viking AMEX cards, and transfers into other accounts in the name of Bill Bariamis, there were $1,069,038 withdrawals from the Westpac account number 693983. She provided a detailed breakdown of those withdrawals, allocating them to three categories, namely, ‘Viking business’, ‘personal’ and ‘unallocated’. In total, withdrawals amounting to $420,245 were allocated to the ‘personal’ category.
In cross-examination, Ms Fiedler stated that she was not aware whether any other person, than Bill Bariamis, was authorised to operate the Westpac account, or indeed any of the other three bank accounts under consideration. Thus, she could not exclude the possibility that someone other than Bill Bariamis, had made the ‘personal’ payments identified by Ms Fiedler. Ms Fiedler identified a number of payments of expenses, which she considered could be properly considered to be for the benefit of Bill Bariamis, paid from the Westpac 693983 account. They included payments made in respect of the purchase of a property at 6 Ocean Street, Dromana, which was purchased in the name of Bill Bariamis and his brother in law A Prades; periodic payments relating to a property located at Wunda Street, Dromana, which was also owned by Bill Bariamis; a transfer to the mortgage account for Bill Bariamis’s home at 64 Kwanana Street; and payments to family members.
In submissions, Mr Kounnas advised me that the item of ‘funeral costs’ of $10,736, also identified by Ms Fiedler as personal expenditure, related to the funeral of Bill Bariamis’s mother. In addition, an amount of $63,980 paid to Esanda Finance from the account, and allocated by Ms Fiedler to the ‘unallocated’ column, related to payments for Mr Bariamis’s motor vehicle. As a result, the combined total of the personal expenditures amounted to approximately $435,000. Ms Fiedler, in cross-examination, agreed that she was unable to say whether the other items, contained in the ‘personal’ column, might have been for the benefit other than Bill Bariamis or someone closely related to him.
In respect of the Westpac account number 290271, Ms Fiedler identified withdrawals totalling $185,205. Of that sum, she allocated $153,205 to the ‘personal’ column. In cross-examination, she stated that of that sum, $150,000 consisted of funds transferred to the mortgage account of Bill Bariamis. Accordingly, she could characterise that amount as being for the benefit of Bill Bariamis. She was unable to say whether the balance of the ‘personal’ column (totalling $3,205) was withdrawn by Bill Bariamis, or was in respect of personal expenditures for the benefit of Bill Bariamis or his close family.
In respect of the NAB account number 262763, Ms Fiedler identified withdrawals of $126,519. Of those amounts she allocated $15,970 to the ‘personal’ column. In cross-examination, she could not exclude the possibility that those withdrawals were made by some other person than Bill Bariamis, and were for the benefit of some person other than Bill Bariamis or his family.
In respect of the NAB MasterCard, Ms Fiedler identified $1,539,687 withdrawals. Of that amount, she allocated $36,895 to ‘Viking business’, $1,247,049 to ‘personal’, and $255,743 to ‘unallocated’. In evidence, she stated that the amount for ‘vehicles’ of $74,194, contained in the ‘personal’ column, should, on reflection, have been placed in the ‘unallocated’ column. She also stated that another item in the ‘personal’ column — travel/accommodation $114,677 — might have been for a combination of business and personal expenditure. In cross-examination, she agreed that she was not able to state whether the other items, contained in the ‘personal’ column, related to withdrawals by some person other than Bill Bariamis. Nor was Ms Fiedler able to exclude the possibility that the items in the ‘personal expense’ column were for the benefit of persons other than Bill Bariamis or his family.
In his submissions, in support of the objection to the admissibility of the banking evidence, Mr Howson referred to the evidence of Loukia Bariamis, given on an earlier voir dire, to the effect that the statements for the two Westpac accounts were not forwarded to the home address of Bill and Loukia Bariamis, but that they were sent to her email address at work. Thus, Mr Howson submitted that there is no evidence that Bill Bariamis was relevantly aware of the transactions conducted on the four accounts. In addition, Mr Howson referred to the parts of the statement of Mrs Bariamis in which she said that she permitted members of the staff of the Viking Group to use Bill Bariamis’s National Bank MasterCard for business purposes. Mr Howson also referred me to an affidavit of Steve Iliopoulos’s former wife, Emma Iliopoulos, in the Family Court proceedings between them, in which she deposed that Loukia Bariamis purchased a number of items of clothing and other personal items for her daughter Jennifer Iliopoulos.
Mr Howson submitted that that material provided further weight to the proposition that not of all the personal expenses, incurred on the four Bill Bariamis accounts, were for the personal benefit of Bill Bariamis and his family. Accordingly, Mr Howson submitted that the evidence, as to the deposits into the Bill Bariamis accounts, and the items spent on ‘personal’ expenditure, was limited. In that way, he contended, it had little probative value, over and above the evidence as to the large salary paid by the Viking Group to Bill Bariamis, in establishing that Bill Bariamis had a motive to participate in the offences with which he has been charged.
On the other hand, Mr Howson submitted that the introduction of the evidence of the transactions on Bill Bariamis’s bank accounts would be prejudicial in two ways. In the first place, it would involve a detailed examination of his bank account. The expenditures, that are in question, were incurred some years ago, and not all of the records can be easily located. The examination of this aspect of the case would lengthen the trial. Secondly, he submitted that evidence, as to the large amounts paid from the Viking Group accounts into the four bank accounts of Bill Bariamis, might lead the jury to consider that those amounts were stolen, or misappropriated, by Bill Bariamis from the Viking Group accounts. He submitted that there is a substantial risk that any direction given by me to the jury, not to reason in that way, might be ineffective, and might highlight the suggestion that the monies were wrongfully appropriated by Bill Bariamis from the accounts of the Viking Group.
In response, Mr Kounnas pointed out that the Family Court proceedings related to the breakdown of the marriage of Steve Iliopoulos and Emma Iliopoulos in 2007. Thus, in her affidavit, Emma Iliopoulos was referring to payments made by Loukia Bariamis, for the benefit of Jennifer Iliopoulos, before 2007. Mr Kounnas submitted that if a jury would consider that it as highly improbable that Bill Bariamis had no knowledge of the amounts contained in his bank accounts, or how they were spent. He submitted that, on the evidence of Ms Fiedler, significant amounts were paid for the benefit of Bill Bariamis, or his family. Accordingly, it would be open to the jury, in the absence of evidence to the contrary, to infer that Bill Bariamis had a substantial knowledge of the amounts paid into his bank accounts from the Viking Group accounts, and the amounts of personal expenditure debited to the four bank accounts. Mr Kounnas submitted that the amounts incurred for personal expenditure, identified by Ms Fiedler, constituted a significant remuneration derived by Mr Bariamis from his employment with the Viking Group. As such, it was an additional and substantial incentive for him to engage in deceptions of the CBA to ensure that funding was secured from the CBA, in order that the Viking Group remain financially viable.
Mr Kounnas stated that the prosecution would not contend that the amounts, paid into the four accounts of Bill Bariamis, were misappropriated or stolen by him from the Viking Group. On the contrary, the prosecution would allege that those amounts in effect, constituted part of the ‘remuneration package’ of Bill Bariamis from his employment with the Viking Group. Mr Kounnas submitted that any risk that the jury might consider that the funds were misappropriated by Bill Bariamis from the Viking Group could be adequately foreclosed by an appropriate direction to the jury.
Conclusion on admissibility of Bariamis Bank Accounts Evidence
It is clear that, in the period examined by Ms Fiedler, particularly substantial amounts were paid into the four accounts of Bill Bariamis from the accounts of the Viking Group, and, in particular, amounts well in excess of his salary. It is equally clear that, of the amounts paid into those accounts, a considerable sum — of approximately $1.8 million — was spent in respect of items that Ms Fiedler has characterised as ‘personal expenditures’. The principal issue, raised by the submissions of Mr Howson, is whether there is sufficient evidence that Bill Bariamis himself used the funds, so deposited into his account, for those personal purposes, or knowingly benefited from expenditures made out of those funds, so that the prosecution would be in a position to contend that the amounts, paid into his account from Viking, constituted an incentive for Bill Bariamis to engage in the offending alleged against him.
Mr Howson relied on the evidence of Loukia Bariamis, on the voir dire, that hard copies of the Westpac Bank statements were not forwarded to the home address of herself and Bill Bariamis. However, Mr Kounnas told me that, on enquiries made by the informant, it would appear that Westpac only commenced to send the bank statements by way of email to Loukia Bariamis in 2013, and that, before that time, the hard copies were sent to the home address of Bill Bariamis and Loukia Bariamis. However, and in any event, in my view a jury would be entitled to consider it to be highly improbable that Bill Bariamis was so ignorant of the state of the four bank accounts, that had been opened in his name, that he was unaware of the large amounts deposited into those accounts from the Viking accounts, and that he was also unaware of the nature of the payments made from those accounts.
In addition, in cross-examination, Ms Fiedler said that she is able to exclude the possibility that withdrawals, totalling almost $500,000, from the two Westpac accounts, were made for the benefit of some other person than Bill Bariamis or his immediate family. The fact that those funds were used for personal expenditures related to Bill Bariamis would strengthen the inference that at least a significant part of the other items of personal expenditure, paid out of the four accounts, also were for the benefit of Bill Bariamis and his family. In that respect, the same reasoning would apply to the withdrawals from the four bank accounts, that applies to the debits to the AMEX card. The jury would consider it particularly unusual that the large amount of personal expenditures, incurred on the four accounts, were not made by or with the knowledge of the holder of those accounts (Bill Bariamis) and were not made for his benefit, but rather were made by and for the benefit of other unrelated persons.
In that way, I consider that there is a sufficient evidentiary basis for the jury to conclude, in the absence of evidence to the contrary, that Bill Bariamis knew of the significant deposits made to his accounts from the Viking Group, and that he himself made, or was aware of, substantial withdrawals from those accounts for the purpose of paying for items, that might be fairly described as ‘personal expenditures’, for the benefit of Bill Bariamis and his family. In that way, I consider that there is a sufficient evidentiary basis for the transactions, on the four bank accounts, that are the subject of Ms Fiedler’s evidence, to be put before the jury.
I am further satisfied that the evidence, as to the banking accounts, is of reasonably substantial probative value in the proof by the prosecution of a relevant motive for Bill Bariamis to engage in the offending alleged in the indictment. The amounts, used for personal expenditure, are significant, even if they were confined to the $500,000 expenditures which, Ms Fiedler was able to unequivocally attribute to the benefit of Bill Bariamis. The jury would be entitled to consider that such an amount constituted a significant additional benefit to Bill Bariamis deriving from his employment with the Viking Group. In that way, the evidence as to the banking accounts of Bill Bariamis would add materially to the proof by the prosecution of a motive for Bill Bariamis to be involved in the offending.
The prosecution has specifically disavowed any contention that the amounts, deposited into Bill Bariamis’s accounts, were stolen or misappropriated by him, or on his behalf, from the Viking Group of Companies. Indeed, as I have already noted, the prosecution case will be that those amounts were part and parcel of his remuneration, over and above the salary paid to him. I therefore consider that there is little risk that the jury would engage in the type of reasoning referred to by Mr Howson, namely, that the monies were stolen by Bill Bariamis from the Viking Group of Companies. In my view, any such risk can be suitably negated by an appropriate direction to the jury.
Potential complexity of Fiedler evidence
Mr Howson’s submissions also raise the issue as to whether, pursuant to s 135 of the Evidence Act, I should refuse to admit the evidence on the basis that it might involve lengthy and complex evidence relating to a relatively collateral issue, which is disproportionate to the probative value of that evidence. In that respect, it would be of concern if the admission of the evidence, in that way, might unduly distract the jury, to the disadvantage of Bill Bariamis.
Mr Howson submitted that the statements of the account relating to the AMEX card comprise some 97 pages, so that the evidence relating to the use of the AMEX card would be complex and lengthy. However, Mr Howson was not able to demonstrate why it would be necessary to tender the whole of the account statements relating to the use of the AMEX card. Rather, I would expect that, at most, it would be necessary to tender those parts of the statements that contained entries evidencing personal expenditures on the cards. The other entries, on the statements, could be suitably redacted or removed.
In addition, as I have noted, it would seem that two of the items of personal expenditure, namely, the overseas holiday, and the school fees, will not be the subject of any dispute. It is likely that the item relating to ‘jewellery’ ($160,859.42) could be addressed through the evidence of Mrs Bariamis. Overall, I do not consider that the evidence relating to the use of the AMEX card, or any cross-examination in relation to it, would be particularly lengthy or complex.
From the matters that I have already discussed in relation to the bank accounts of Bill Bariamis, it would seem that there would be limited scope for controversy in relation to items allocated to ‘personal expenditure’ in respect of three of the accounts. As I have already noted, Ms Fiedler did not consider that there is a reasonable possibility that most of the items of personal expenditure paid from the Westpac account number 693983, could have been incurred for the benefit of any other person than Bill Bariamis or his immediate family. Similarly, almost all of the personal expenditure incurred on the Westpac account number 290271 consisted of the transfer of funds from that account to Bill Bariamis’s mortgage account, and therefore will probably be uncontroversial. The amounts drawn from the NAB account number 62763 might be more controversial, but they are relatively limited in scope and amount.
Of greater concern is the amount of personal expenditure on the NAB MasterCard. The amount of expenditure on that card, characterised by Ms Fiedler as ‘personal’, is large ($1,247,049). It consists of some 20 separate categories. I accept that in relation to that aspect of Ms Fiedler’s evidence, there is some scope for the evidence to be more detailed, and for cross-examination in relation to it to be more lengthy.
The matters that I have discussed do give me some cause for hesitation in admitting the evidence. However, I do not consider that they are of sufficient moment to cause me to conclude that the probative value of the evidence is substantially outweighed by the potential that the evidence might either be misleading or confusing, or that it might cause or result in an undue waste of time or delay in the trial.
Furthermore, Mr M Dempsey, who appears on behalf of Steve Iliopoulos, has made it clear that, in any event, he intends to cross-examine Mrs Bariamis, and, if necessary, Ms Fiedler, concerning the use of the Viking AMEX card, concerning the funds drawn from the Viking Group accounts and paid into Bill Bariamis’s accounts, and concerning the level of personal expenditure paid out of those accounts. Loukia Bariamis will be a key witness in the trial against Steve Iliopoulos. She will give evidence that she prepared and provided the false accounting documentation to the CBA on the instruction of Steve Iliopoulos. In her statement, and in the committal proceeding, she said that she did not draw any salary for the work that she carried out as the chief financial officer of the Viking Group. Effectively the gravamen of her evidence, both in her statement, and at the committal proceeding, is that she did not engage in the fraudulent activity with the expectation of any financial benefit for herself or her family, but, rather, because she felt overborne by the personality of Steve Iliopoulos to do what he required of her.
Mr Dempsey therefore intends to cross-examine Loukia Bariamis, and, if necessary, Ms Fiedler, to demonstrate that Loukia Bariamis received, and expected, substantial financial rewards for her work with the Viking Group, consisting of the use of the AMEX card and the amounts deposited by the Viking Group into her husband’s bank accounts. Thus, it apparently will be contended, she fabricated the financial documentation, that was put forward to CBA, in order that she could ensure that her employer remained viable, so that she could continue to enjoy the financial rewards that she gained from her employment with the Viking Group.
In those circumstances, I would accept that the matters that Mr Dempsey would seek to raise in cross-examination of Loukia Bariamis, and, if necessary, Ms Fiedler, would address an issue relevant to his client’s case. Based on the contents of Mrs Bariamis’s statement, and on the evidence that she gave at the committal proceeding, it is most likely that, in those circumstances, that much of the evidence contained in Ms Fiedler’s statements, concerning the use of the AMEX card, and the four bank accounts of Bill Bariamis, will become the subject of evidence in any event.
For those reasons, I am not persuaded that the potential probative value of the evidence would be substantially outweighed by the danger that the evidence might cause or result in an undue waste of time, or otherwise mislead the jury.
Whether Ms Fiedler is qualified to give evidence
As stated, Mr Howson also objected to the evidence of Ms Fiedler on the basis that her statements contain expressions of opinion, which she is not qualified to make. In particular, he submitted that the statements by Ms Fiedler, to the effect that certain expenditures in the bank accounts are ‘personal’ are expressions of opinion. Mr Howson contended that Ms Fiedler does not have any specialised knowledge based on training, study or experience to express such an opinion.
I reject that submission for two reasons. First, the statements by Ms Fiedler, that certain expenditures incurred on behalf of Mr Bariamis were personal expenditures, and not expressions of opinion. Secondly, in any event, if they are expressions of opinion, in my view, Ms Fiedler was adequately qualified to form and express such an opinion.
The principles, relating to the admissibility of opinion evidence, are contained in pt 3.3 of the Evidence Act 2008. Section 76 provides that evidence of ‘opinion’ is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79(1) provides, as an exception to that rule, that a person is entitled to express such an opinion, if that person has ‘specialised knowledge based on the person’s training, study or experience’, provided that the evidence of the opinion is wholly or substantially based on that specialised knowledge.
The expression ‘opinion’ is not defined in the Evidence Act. Obviously, not every statement by an expert witness may be properly characterised as an expression of ‘opinion’.[2] The distinction between fact and opinion is not always clear cut. Nevertheless, an opinion is, essentially, an inference or deduction from various facts, about which rational minds might fairly differ.[3] In Hodgson v Amcor Ltd,[4] Vickery J adopted, as a ‘useful definition’ of the term ‘opinion’, as a description given by Giles J in R W Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd,[5] which I also adopt. In that case, Giles J stated:
Opinion evidence may be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts.
[2]The Queen v Perry (1991) 26 SASR 119, 124 (Cox J); Hodgson v AmcorLtd (No 3) [2011] VSC 272 [43] (Vickery J).
[3]See, eg, Allstate Life Insurance Co v Australian & New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73, 75 (Lindgren J); Bank of Valletta v National Crime Authority (1999) FCR 65; Guide Dog Owners & Friends Association v Guide Dog Association of New South Wales and ACT (1998) 154 ALR 527, 536 (Sackville J); Hodgson v Amcor Ltd (No 3) [2011] VSC 272 [38] & ff (Vickery J).
[4]Ibid [46].
[5]34 NSWLR 129, 130.
In her first statement, Ms Fiedler has extracted, from bank statements, American Express card statements, and the accounts of the Viking Group, entries and information relating to deposits of Viking Group funds paid into accounts of Bill Bariamis, and expenditures incurred on those accounts. In doing so, Ms Fiedler has used source information to allocate expenditures, incurred on the AMEX card and on the Bill Bariamis accounts, to various categories. That exercise does not involve any expression of opinion by Ms Fiedler. In conducting that exercise, Ms Fiedler has identified seven categories of such expenditure that she has described as ‘personal expenditure’. In doing so, she has adopted the term ’personal expenditure’ as a convenient collective label for, or collective description of, those seven categories. That does not involve the expression of any opinion by Ms Fiedler.
In any event, if the use of the term ‘personal expenditure’ by Ms Fiedler constitutes an expression by her of any opinion, she is well qualified to give evidence of such an opinion. Ms Fiedler is a qualified chartered accountant, who practices as a forensic accountant. As she stated in her evidence on the voir dire, it is quintessentially the role of an accountant to analyse primary accounts and documents, and to allocate expenses contained in those accounts and documents to categories such as personal expenditure. Such a task is commonplace for any accountant, including a forensic accountant. In my view, insofar as the statement by Ms Fiedler contains an expression of opinion, she is well qualified, pursuant to s 79(1) of the Evidence Act, to give evidence relating to that opinion.
The form in which the Fiedler evidence to be given
The prosecution seeks to tender the two statements by Ms Fiedler, to which I have referred, as part of the evidence to be given by her. It is submitted that that process is necessary, because there are more than 20 tables contained in the first statement, and some 11 tables in the second statement, which would need to be put before the jury. Mr Kounnas contended that it would be confusing for the jury if the tables were tendered, separately to the statements of Ms Fiedler. On the other hand, Mr Howson submitted that it would be unfair to his client for the statements to be tendered against him. He contended that the receipt of those statements would give the evidence undue prominence, and might distract the jury from issues raised in relation to the evidence of Ms Fiedler in cross-examination.
The prosecution relies on s 223(1)(h) of the Criminal Procedure Act 2009 in seeking to tender the two statements of Ms Fiedler. That section provides that, for the purpose of helping the jury to understand the issues of the evidence, the trial judge may, where appropriate, order that the jury be given copies of any ‘… schedules chronologies charts diagrams summaries or other explanatory material’.
It has long been the practice for courts to admit charts, and similar documents, in criminal trials, in order to assist the jury to understand and assimilate detailed evidence which may be somewhat complicated.[6] In the present case, it would be unrealistic for Ms Fiedler to give evidence before the jury without being able to tender a number of the charts contained in her statements. I do not consider that it is necessary or desirable that the whole of the sections of the statements, relating to those tables, be tendered. However, I accept that it would be confusing, and difficult, for the jury, if the charts were tendered, without some explanation attached to them, describing the nature of the charts and the contents of them.
[6]See for example R v Mitchell [1971] VR 46, 60.
Accordingly, it is appropriate that the prosecution be permitted to tender, through Ms Fiedler, a properly formulated summary, which contains the charts that are relevant to Ms Fiedler’s evidence, and a short description as to how each such chart was compiled, and an explanation of its contents.
It is not feasible for me, in this ruling, to set out precisely the format or contents of the summary. That is a matter for the prosecution. I would expect that it would be possible to compile one document which combines the relevant information contained in the two statements of Ms Fiedler that are relevant to this aspect of the case. I would also expect that it would not be necessary to include, in that document, all of the charts contained in the relevant sections of Ms Fiedler’s two statements. Otherwise, the jury would be left with more than 30 charts, which would add to the complexity of the jury’s task, and be unhelpful. In addition, as I have already stated, any narrative contained in the document should be confined to an explanation of the contents of the particular charts, and how the charts were compiled.
Accordingly, I would permit the prosecution to tender, through Ms Fiedler, a summary document in the form that I have just described. I would expect that the format and contents of the document can be sensibly settled by discussion between the prosecution and the legal representatives of Bill Bariamis. If necessary, of course, I will be able to rule on any issues that may arise in that respect.
Summary conclusions
For the foregoing reasons, I have reached the following conclusions:
(1)The evidence of Ms Fiedler, relating to the use by Bill Bariamis of the Viking Group American Express card, and relating to the deposits from the accounts of the Viking Group to four bank accounts in the name of Bill Bariamis, and expenditures paid out of those accounts, is relevant to the issue of the motive of Bill Bariamis to engage in the offending alleged against him.
(2)The probative value of that evidence substantially outweighs any risk of unfair prejudice by the accused Bill Bariamis.
(3)The probative value of the evidence outweighs any risk that the introduction of the evidence might cause or result in an undue waste of time or prolonging of the trial.
(4)The evidence of Ms Fiedler, relating to those accounts, does not contain any relevant expression of opinion by her for the purposes of s 76 of the Evidence Act 2008. Insofar as it might contain any such expression of opinion, Ms Fiedler has specialised knowledge, based on her training, study or experience, to give evidence of that opinion or those opinions, pursuant to s 79(1) of the Evidence Act.
(5)I would not permit the prosecution to tender the statements of Ms Fiedler relevant to the use by Bill Bariamis of the Viking Group AMEX card, and relating to the four bank accounts of Bill Bariamis. However, pursuant to s 223(1)(h) of the Criminal Procedure Act, the prosecution will be permitted to tender, through Ms Fiedler, a document containing the relevant charts set out in Ms Fiedler’s statements, and containing, in respect of each such chart, a brief explanation of the chart, and, in particular, the contents of the chart, and how it was compiled.
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