R v Bartlett [No 12] - [2014] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- BARTLETT [No 12] [2014] WASC 350

CORAM: EM HEENAN J

HEARD: 15 AUGUST 2014

DELIVERED : 15 AUGUST 2014

PUBLISHED : 26 SEPTEMBER 2014

FILE NO/S: INS 107 of 2012

BETWEEN: THE QUEEN
Prosecution
AND
PETER MERVYN BARTLETT
First Accused
RONALD GEORGE SAYERS
Second Accused

Catchwords:

Evidence - Admissibility - Information obtained and accepted by agents of accused when carrying out enquiries directed by accused - Purpose of certain financial transactions involving the accused - Source of the information accepted by solicitor for accused making those enquiries

Legislation:

Nil

Result:

Evidence admissible

Category: B

Representation:

Counsel:

Prosecution                   :     Mr P Roberts SC & Mr A L Troy
First Accused                :     Mr R Richter QC & Mr C Boyce
Second Accused            :     Mr D Staehli SC & Mr A E Eyers

Solicitors:

Prosecution                   :     Director of Public Prosecutions (Cth)
First Accused                :     Clifford Chance
Second Accused            :     Clifford Chance

Case(s) referred to in judgment(s):

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1

EM HEENAN J: I have been hearing submissions in the absence of the jury arising from an objection taken to a question put to the witness, Mr Ian Cochrane, in the course of his examination‑in‑chief by counsel for the prosecution.
Mr Cochrane has been giving evidence for some time, and he reached the point where evidence had already been adduced in relation to a transaction which had occurred on 26 February 2003, the complicated details of which are set out in exhibit 60; that is, a document given to Mr Cochrane some time later, it seems an appreciable time later, by Mr Thomson, and which is acknowledged to have originated from Mr Dunn.
There is other evidence before the court about this transaction, although not in as much detail. The other evidence establishes that on or about 26 February 2003, certain promissory notes issued by Barminco and made payable to Bremerton and indorsed to others had been reindorsed to Barminco. The details of those indorsements and the transactions are set out more fully in exhibit 56, a set of minutes of Barminco on 26 February 2003, the same date as exhibit 60.
This evidence establishes that promissory notes to a total value of $10,923,176 were indorsed to Bremerton to the credit of the two family trust companies, who were subscribers to the 79.9 million partly paid special units, in part payment of their outstanding liabilities under those special units. All the other evidence before the court tends to support that.
Against that background, Mr Cochrane was then taken to the minutes of the meeting; exhibit 56, and asked for his 'understanding' of the reasons for this transaction. Before I go on to his answer and any admissibility of it, it is necessary to say that Mr Cochrane obtained the information which was the subject of his answer, which is under objection, in 2004/2005, some time later. At that time he was the solicitor, and hence the agent, of Mr Sayers and Mr Bartlett and their associated trust companies commissioned, among other things, to investigate the nature and extent of the Crossline transactions, the role of Crossline, the origin of the promissory notes, and the Appointor Arrangement.
Mr Cochrane said in evidence earlier that it was important, in his opinion, for this information to be obtained so that Messrs Bartlett and Sayers, and, by implication, he himself, would be able to deal with all aspects of these matters if they ever lost access to Mr Dunn. In the course of extensive discussions with Mr Dunn over succeeding years, Mr Cochrane had a number of explanations given to him about the role of Crossline, its structures, apparent purpose, and the various promissory notes.
I pause at this moment to say that what I have said so far is supported by all the evidence which has been received in this retrial to this point. What I am about to say emerges from evidence which is in the brief and which it is acknowledged, if I understand Mr Richter correctly, to be evidence which is available and which might be led at this trial.
That other evidence is to the effect that during these succeeding years, at the instructions of Messrs Bartlett and Sayers and their companies, Mr Cochrane was engaged in an extensive process of further investigations into the role and activities of Crossline, the location of the promissory notes and their eventual return via solicitors in Singapore to Australia, a process which on an earlier occasion he described as repatriation of the notes.
It follows, it seems to me, that enquiries made by Mr Cochrane for the purposes of obtaining information about the operation of Crossline, its activities, the promissory notes, its structures and so on were all part of a task which he was required to undertake for his clients, Mr Bartlett and Mr Sayers, and that all information which he gathered in that behalf, and which is relevant to any of those matters, and which he has, by implication, adopted is also relevant.
We come now to the very point of the objection, and it is to the explanation proffered by Mr Cochrane that the purpose of the February 2003 transaction, the subject of exhibit 56, was to capitalise the trust and to allow the issue of the audit certificate without any qualification by the auditors. This was said to him in June or August by Mr Dunn.
The objection is that it is hearsay because it is mere repetition or adoption of what Dunn has said, and that Dunn's statements in this regard are not admissible against either of the accused because of the principles associated with the co‑conspirators rule and set out authoritatively in Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7, and in Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 95. My attention has also been drawn to a number of other authorities bearing on this well known aspect of the law, including passages in Cross On Evidence (9th ed, 2013) 33,565.
I consider that the results of Mr Cochrane's enquiries, and certainly to the extent that he has adopted and acted on them on behalf of his clients, are admissible as to the nature of the transactions into which he was commissioned to enquire. Whether he obtained that information from Mr Dunn or from bankers or from public records does not diminish the admissibility of that evidence. All evidence coming from third persons is not direct evidence but that does not mean that it is excluded by the hearsay rule. There is a basis, in my view, to consider that Mr Dunn was acting in co‑operation with Messrs Bartlett and Sayers and others in relation to the February 2003 transaction, although that is no part of the conspiracy which is alleged in this case. There is also scope to accept that he was acting in co‑operation with Mr Cochrane in making these enquiries.
That would, in my view, justify the reception of this evidence if it were otherwise inadmissible, but I consider that it is admissible, being the direct product of enquiries which Mr Cochrane was required to undertake on behalf of his clients and which he did undertake and which he did act upon.
I will allow the evidence.