R v Agius; R v Abibadra; R v Jandagi; R v Zerafa
[2012] NSWSC 639
•12 June 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2012] NSWSC 639 Hearing dates: 7 June 2012 Decision date: 12 June 2012 Jurisdiction: Criminal Before: Simpson J Decision: The Crown will be permitted to call Ms Franco in reply in order to give evidence in accordance with her statement dated 6 June 2012 (Voir dire exhibit 3).
Catchwords: CRIMINAL LAW - jury trial - application by Crown to adduce evidence in reply - principles on which Crown permitted a case in reply. Legislation Cited: Evidence Act 1995 Cases Cited: Shaw v The Queen [1952] HCA 18; 84 CLR 265
R v Frank Christopher Lawrence, unreported, NSWCCA, 12 October 1980Category: Procedural and other rulings Parties: Regina (Crown)
Robert Francis Agius (Accused)
Regina (Crown)
Carol Abibadra (Accused)
Regina (Crown)
Deborah Judith Jandagi (Accused)
Regina (Crown)
Kevin Zerafa (Accused)Representation: P Neil SC/S McNaughton (Crown)
I Barker QC/P Coady (Agius)
D Jordan (Abibadra)
K Averre (Jandagi)
P Hastings QC (Zerafa)
Commonwealth Director of Public Prosecutions (Crown)
Eddy Neumann Lawyers (Agius)
Brown Wright Stein
(Abibadra/Jandagi/Zerafa)
File Number(s): 08/245425 and others Publication restriction: .
Judgment - cROWN CASE IN REPLY
On the sixtieth (and what would, subject to the following, have been the last) day of evidence in this trial, the Crown sought leave to adduce evidence in reply. Two aspects of the evidence given in the defence cases prompted the application. The first concerned evidence given by Ms Abibadra concerning her whereabouts on a date and at a time at which the prosecution evidence asserted that she was present at a particular meeting. Counsel for Ms Carol Abibadra accepted that the evidence was admissible and that he could raise no realistic objection to its admission. That evidence has been given and there is no need to explore it further.
The remaining evidence proposed to be called in reply concerns evidence given by Ms Deborah Jandagi. A little background needs to be set out.
Each of the four accused is charged with two counts of conspiracy to defraud the Commonwealth. The charges arise out of what is asserted by the Crown to be (and, to a large extent, is accepted as being) a fraudulent tax "minimisation" scheme in which more than eight Australian companies participated. The Crown case is that Mr Robert Agius was a promoter of the scheme, and the three remaining accused were accountants who facilitated that participation. A fifth person, Mr Owen T Daniel, now deceased, is also named in the indictment as a conspirator. In the case of Mr Kevin Zerafa, Ms Abibadra and Ms Jandagi, it has been made clear that the principal issue for the jury will be whether the Crown has proved that they acted dishonestly. Relevant to that question is the extent of their knowledge of the manner in which the scheme operated.
The principles on which an application by the Crown to adduce evidence in reply in a criminal trial ought to be determined were stated by the High Court in Shaw v The Queen [1952] HCA 18; 84 CLR 265, and restated in R v Frank Christopher Lawrence, unreported, NSWCCA, 12 October 1980. Essentially, the determination is discretionary, but the discretion is to be exercised in favour of the Crown only in rare and unusual circumstances. One of the circumstances that permits the exercise of the discretion is the production of evidence, not reasonably to be anticipated by the Crown, during the course of a defence case. Relevant considerations include the potential impact of the evidence, coming, as it inevitably does, at the end of the defence case (or cases), and as the last piece of evidence the jury will hear before addresses.
I now turn to the circumstances in which the Crown seeks to adduce the evidence.
Evidence was given in the Crown case by Mrs Eva Southcombe and Mr Philip Southcombe. They were the directors and shareholders of Gladesville Bridge Marina Pty Limited ("GBM"), a company which had participated in the tax "minimisation" scheme the subject of the proceedings. Mrs Southcombe gave evidence that, during 2004, she suffered a severe psychiatric breakdown, as a result of which she was hospitalised. The clear implication of her evidence was that this arose as a result of her participation in the scheme. She gave evidence that Ms Jandagi visited her in the hospital, during which visit Mrs Southcombe expressed to Ms Jandagi her concern about her involvement in the scheme. Of Ms Jandagi's response to this, she said:
"Ultimately she said she'd fix it, I'd have no further involvement with the scheme and I wouldn't have to worry about it."
She said that that did not eventuate.
Mr Southcombe gave in evidence his account of how this visit came about. He said that he telephoned Ms Jandagi and asked if she would visit Mrs Southcombe and "console her with the news that they were going to be removed from the scheme". He said that he told Ms Jandagi that Mrs Southcombe's concern about the scheme was the cause of her hospitalisation.
Mr Southcombe's evidence was, in cross-examination, put in dispute. It was put to him directly that he had never spoken to Ms Jandagi about visiting his wife in the hospital. He disagreed with that proposition. It was also put to him, as a possibility, that he had had conversation to the effect with Mr Owen Daniel. He did not accept that as a possibility and said that his memory was that he had spoken to Ms Jandagi.
In one sense, in a trial in which evidence has been presented over 60 days, the evidence in question might appear to be relatively insignificant. As I understand it, the Crown will seek to rely upon the evidence of Mr Southcombe concerning what he said to Ms Jandagi - that his wife's involvement in the scheme was the cause of her psychiatric illness - and his request to her to console Mrs Southcombe by saying that the company would be extricated from the scheme, together with Mrs Southcombe's evidence that Ms Jandagi promised to achieve that, as (taken together with other evidence) indicative of a recognition by Ms Jandagi that the arrangements under which the scheme operated were, and were known by Ms Jandagi to be, fraudulent.
That the evidence is of more significance that might otherwise appear is demonstrated by Ms Jandagi's response to it, in her evidence. She did not dispute having visited Mrs Southcombe in hospital. She gave her very different account of how that came about. That account is as follows:
"The week previous to this, I think it was the Friday, late in the week I received a phone call from a lady called Andrea Franco and she explained to me that 'I've taken over from Eva at Gladesville Bridge doing all the book work there'. I thought at the time, oh, that's strange. But she said 'because Eva's not well and she's in hospital'. I said, 'Oh my gosh, what's happened?' And she said, 'Well, she's had a nervous breakdown and I'll be taking over from her'; I said, 'OK, thanks for letting me know.'
I immediately told my father [Owen Daniel] because he was good friends with them and he was going to Queensland that night. He said to me, 'I will definitely ring Philip but in the meantime could you arrange to take some flowers to Eva next week?' and I said, 'Yes, that's fine, I'll do that'. I called Andrea Franco back and I said I wanted to visit her if that's all right with her. She said, 'I'm sure that will be fine", and she gave me the address of the hospital and I put it in on the Wednesday because ... I thought that would be a good day to go down and visit her. That's what I did." (T3689)
Ms Jandagi said that she had never spoken to Mr Southcombe about the matter.
This evidence was given by Ms Jandagi during the morning of Monday 4 June.
She then gave an account of the hospital visit. She maintained that she and Mrs Southcombe had chatted about a variety of "light" subjects, but had not mentioned business at all. She expressly denied telling Mrs Southcombe that she would "fix it".
Although the name "Andrea Franco" had previously been mentioned, in passing, by Mrs Southcombe, it was not mentioned in connection with Ms Jandagi's visit to Mrs Southcombe in hospital. And although Mr Southcombe's evidence of his conversation with Ms Jandagi was directly put in issue in his cross-examination, there was no hint in that cross-examination that Ms Jandagi would assert that the visit had been precipitated by a conversation with Ms Franco, or that Ms Jandagi's awareness of Mrs Southcombe's illness had come to her through such a conversation. The Crown therefore had no notice of the nature of the content of the evidence given in this respect by Ms Jandagi.
The evidence the Crown now seeks to adduce in reply is contained in a statement made by Ms Franco on 6 June 2012. Ms Franco says that, since 2000, she has been engaged as a part time bookkeeper to various business entities associated with Mr and Mrs Southcombe. She says that she has not been involved in bookkeeping for GBM.
She denies the conversations attributed to her by Ms Jandagi and says that, as a matter of confidentiality, she would not have made any disclosure about Mrs Southcombe's medical condition. She says that, indeed, she did not have any real information about the nature of Mrs Southcombe's condition, and did not know the name of the medical facility in which Mrs Southcombe was hospitalised.
I should mention here that, while the evidence clearly has the capacity to affect the jury's assessment of Ms Jandagi's credibility, it is not tendered, and would not be admissible - (Evidence Act 1995, s 102) for that purpose. It is evidence on which the Crown seeks to rely to contribute to establishing that Ms Jandagi's state of mind was dishonest, and that she was aware of the allegedly fraudulent nature of the arrangements under which the scheme operated.
Counsel for Ms Jandagi initially argued that the evidence fails to meet the tests propounded in Shaw and Lawrence. Eventually, he retreated somewhat from that position, accepting that the Crown could not reasonably be expected to have anticipated the evidence given by Ms Jandagi concerning Ms Franco. Since that acceptance fell short of a concession, it is necessary that I state explicitly that I am satisfied that the evidence is admissible on received principles. It is evidence that the Crown could not reasonably have anticipated and met in advance.
Counsel, however, strenuously urged (correctly) that the admission of the evidence is discretionary and, further, that the discretion ought not be exercised in favour of the Crown. Circumstances relevant to the exercise of discretion include the relative importance of the evidence (with which I have already dealt), the scope of the evidence proposed (see the facts in Shaw), and the potential of the evidence to have a disproportionate impact due to its timing - as the last piece of evidence the jury will hear. This last is, in my opinion, the most powerful argument in favour of rejection of the evidence. However, it must be seen in the context of the circumstances of the trial. As I have mentioned, the oral evidence has been given over 60 days. There is an enormous amount of documentary evidence to which the jury have repeatedly been directed and to which they will again be directed, in the course of five addresses and a summing up.
The issue arose on Thursday 7 June, the last day of sitting before a long weekend, it having already been determined (by reason of a prior commitment of one member of the jury) that the court would not sit on the Friday of that week.
Regrettably, the witness, Ms Franco, was not available to give evidence on the Thursday, and so, if the evidence is permitted, will be called after a four day break. At that time, the Crown case in reply will close.
It has been agreed that, at the conclusion of the evidence, the jury will be released for the remainder of the week. That is to allow for the finalisation of legal issues concerning directions to be given to the jury, and to allow counsel an opportunity to prepare what will inevitably be lengthy and detailed addresses. In my opinion, that combination of circumstances very significantly minimises what might otherwise be the potential, and the potentially undue, impact of the evidence. The prominence it might otherwise assume will, inevitably, be dissipated. In these circumstances, I have concluded that the evidence ought to be admitted.
Mr Barker QC, appearing for Mr Agius, who was not initially involved in the argument, sought to be heard with respect to consequential determinations in the event that I made the ruling that I have just indicated that I will make. He sought that, if such an order were to be made, it ought to be conditional upon the Crown recalling both Mr and Mrs Southcombe for further cross-examination.
There is no basis upon which such a condition ought to be imposed. Ms Franco's evidence is to be admitted for the very limited purpose of enabling the Crown to rebut one specific assertion in the evidence of Ms Jandagi. Both Mr and Mrs Southcombe have been cross-examined on the matters relevant to Ms Franco's evidence. Nothing additional that can be put to them on that topic, at least nothing that could not have been put when they gave their evidence initially, has been identified. To recall them would merely permit the reopening of matters that have been, or were available to be, put to them then. To allow the course suggested by Mr Barker would potentially and impermissibly reopen areas of evidence that are closed, with consequent potential damage to the cases of the other accused. Even if I were to allow that course at the express request of one accused, I must bear in mind the potential unfairness to the other accused. Accordingly, I decline to impose such a condition.
The order I make is that the Crown will be permitted to call Ms Franco in reply in order to give evidence in accordance with her statement dated 6 June 2012 (Voir dire exhibit 3).
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Decision last updated: 06 August 2013
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