R (Commonwealth) v Mark William Standen

[2011] NSWSC 1043

Supreme Court

New South Wales

Medium Neutral Citation:	R (Commonwealth) v Mark William Standen [2011] NSWSC 1043
Hearing dates:	10 May 2011
Decision date:	10 May 2011
Jurisdiction:	Common Law - Criminal
Before:	James J
Decision:	Evidence admitted
Legislation Cited:	Evidence Act - ss 135, 137
Category:	Interlocutory applications
Parties:	Regina, Mark William Standen
Representation:	T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC, G Farmer (Accused) Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused)
File Number(s):	2009/8922
Publication restriction:	Published

JUDGMENT - On admissibility of evidence - see page 1698 of the transcript

1. HIS HONOUR: I propose to allow the evidence to be given. The present witness, Mr Newton, has given evidence that in about November 2006 he lent a sum of approximately $210,000 to the accused, principally to enable the accused to purchase a house at Bateau Bay, in circumstances where the amount that a finance company was prepared to advance to the accused fell short of the amount required to purchase the house by approximately $200,000.

1. No objection was taken on behalf of the accused to Mr Newton giving evidence of the making of the loan by him to the accused. This evidence was clearly relevant to the motive alleged by the Crown as part of the Crown case, that the accused was motivated to commit the alleged crimes by reason of his serious financial difficulties.

1. The Crown now proposes to adduce evidence from Mr Newton that in about October 2007 he was required by the New South Wales Crime Commission, the common employer of both Mr Newton and the accused, to complete a financial declaration. In this financial declaration Mr Newton disclosed, as a liability, the amount Mr Newton had borrowed from his bank to enable him to make the loan to the accused but, according to the evidence the Crown proposes to lead, Mr Newton was induced by the accused not to disclose in his declaration an asset of Mr Newton consisting of the accused's obligation to repay the amount which Mr Newton had advanced to the accused.

1. Objection has been taken to this proposed evidence on the grounds of relevance and, alternatively, on the basis that, if the evidence has some relevance, nevertheless the court should exclude the evidence under section 135, or more particularly section 137, of the Evidence Act .

1. It seems to me that the evidence is relevant as evidence relating to the accused's true financial position and therefore to his motivation.

1. The evidence could also be regarded by the jury, if it is accepted, as showing a desire on the part of the accused to conceal from his employer his true financial position and, in particular, a desire to conceal from his employer the Crime Commission that he had accepted a loan of a substantial sum of money from a fellow employee. If this information had been disclosed to the Crime Commission, it is likely that the accused and his affairs would have been subjected to close scrutiny by the Crime Commission. It would be open to the jury to infer that the accused wished to avoid such a close scrutiny because of the fear that it might uncover matters which the accused wish to keep concealed from his employer and, in particular, the accused's participation in a conspiracy of the kind alleged by the Crown, which on the Crown case was already on foot.

1. I consider that the evidence has probative value of some force. I accept that the evidence has some prejudicial effect in that it shows the accused inducing a fellow employee to make a false declaration to their common employer. Nevertheless, I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused and I would not exclude the evidence under s 137 of the Evidence Act . I would not exercise the discretion under s 135 to refuse to admit the evidence.

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