R v Bartlett [No 13] - [2014] WASC 351

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- BARTLETT [No 13] [2014] WASC 351

CORAM: EM HEENAN J

HEARD: 19 AUGUST 2014

DELIVERED : 19 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 - Criminal trial - Use of prior consistent statements of accused - No allegations of inconsistency or recent invention - Use by defence of evidence at ACC compulsory examination of accused which is not admissible for the prosecution against the accused

Legislation:

Australian Crime Commission Act 2002 (Cth)

Result:

Question disallowed

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 G 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):

Nil

EM HEENAN J: I have been hearing submissions in the absence of the jury as to the admissibility of an answer to a question which has already been given, conducted in the course of the cross-examination of the witness, Mr Robert MacGregor Philp, by counsel for Mr Sayers.
The course of the objection and the submissions which were received indicate that further objections along similar lines would be made if the proposed course of cross‑examination were to be continued, which it is the wish of counsel for Mr Sayers to pursue.
The issue arises this way. In a statement which is in evidence, exhibit 67, made by Mr Sayers with the assistance of his solicitors and dated 6 December 2010, which was delivered by him and his solicitors to the offices of the Australian Crime Commission (ACC) on or about that date, when he was requested to attend to participate in an interview under caution, there is this passage: par 28 (exhibit 67):
I can't recall the issue in 1999 of 80 million $1 special units in the Barminco Unit Trust, 79.9 million of them partly paid to 0.01 cent and can't recall a $7 million interest expense arising from the issue of these partly paid special units.
That statement was given to the authorities on the occasion which I have mentioned but, exercising his right not to participate in an oral interview, Mr Sayers did not answer any further questions.
What then followed was that counsel elicited from Mr Philp that Mr Sayers had previously attended for a compulsory examination before the ACC on or about 24 October 2006 and on or about that date handed to the officers involved in the conduct of that compulsory examination an earlier written statement dated 24 October 2006.
Closer examination of the historical records of that occasion suggests that what occurred was that the written statement of 24 October 2006 was prepared by Mr Sayers and/or his solicitors, to some extent with the assistance of ACC personnel and having been signed and adopted by Mr Sayers, was then produced by him in the course of the compulsory examination and became part of the evidence of that examination, the significance of which I need to consider further in a moment.
That particular statement includes a par 46 which reads:
I can't recall the issue in 1999 of 80 million $1 special units in the Barminco Unit Trust, 79.9 million of them partly paid to 0.01 cent and can't recall a $7 million interest expense arising from the issue of these partly paid special units.
It is accordingly identical, or almost identical, to par 28 of the statement in evidence. The cross‑examiner then sought to ask Mr Philp whether the explanation contained in par 28 of exhibit 67, which is in evidence, is or was consistent with the answer which Mr Sayers had given to the authorities in the statement of 24 October 2006, the ACC examination statement. He answered, or was in the process of answering the question, in the affirmative when the objection was made. The objection is based on two grounds: first of all, that the contents of the compulsory ACC examination are not admissible by virtue of the provisions of the Australian Crime Commission Act 2002 (Cth); secondly, that this is an attempt to prove a prior consistent statement where there has been no suggestion of actual inconsistency in any later statement of the witness.
Dealing with the second aspect of the objection, counsel for Mr Sayers, the cross‑examiner, responds by drawing attention to exhibit 17, a letter from Mallesons Stephen Jaques to Mr Stone of the Wickenby taskforce on 30 March 2007, which includes at page 2 a passage:
Your office has alleged that the resolutions amount to a sham and that the minutes were not brought into existence at the time which is apparent from them. The date upon which the minutes were brought into existence is of little of any significance. What is important is whether the resolutions were actually passed as set out in those minutes. As we understand it, your allegation is that they were not. This allegation is denied by our clients.
This sentence, 'that the allegation is denied by our clients' has received considerable attention during the course of the trial. It also appears in another similar exhibit. The proposition which the prosecution seeks to draw from it is that in March 2007, the solicitors for Mr Bartlett and Mr Sayers - and for the present purposes, Mr Sayers were, after due consideration and upon instructions, asserting that a resolution to the effect of exhibits 5.1 and 5.2 - or resolutions to those effects were in fact passed in June of 1999 although they may not have been recorded until much later.
Just whether the letter will bear that significance or not is a matter for the jury to consider. Mr Cochrane was cross‑examined about this and he gave an explanation that this was keeping options open, rather like in a pleading. But that is a live issue in the case upon which different conclusions could be reached, assuming that an inference be drawn from that passage is a positive assertion that a resolution to the effect of the exhibits 5.1 and 5.2 was passed in June 1999 if not then recorded.
I consider the position of Mr Sayers to be that that is not, and should not be, regarded as the true intention of exhibit 17, and that exhibit 67, taken in conjunction with the prior consistent statement, shows that he always maintained, or at least maintained well before 2007, that he had no memory of the issue of the special units or the $7 million interest expense and, for that reason, the statement is admissible in order to avoid the suggestion of subsequent invention or recent invention.
I come now to consider the grounds of the objection. I turn to the first ground - the provisions of s 30 the Australian Crime Commission Act. After the many previous decisions in this case dealing with the effect of s 30, the admissibility or otherwise of the products of the examination, I will not rehearse what has been said on those occasions but s 30, which deals with the answering of questions by witnesses at compulsory examinations, provides by s 30(5):
The answer or the document or the thing, is not admissible in evidence against the person in
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty;
other than:
[certain exceptions which do not apply here].
The prohibition appears to mean that the document cannot be tendered against the author of the statement. It does not appear to be a prohibition against the document, thing, or the answer being tendered in evidence for the person examined and, on that basis, I do not think that there is an impediment in the Act to the pursuit of this particular question although, as I have already raised with counsel for Mr Sayers, the pursuit of that course may result in the possibility that the entire statement could then be tendered by the prosecution, subject again to s 30(5).
The other issue is whether or not this really is an occasion when proof of an accused's prior consistent statement may be permitted. The question really is whether or not exhibit 17 amounts to a prior inconsistent statement. The position of Mr Sayers and, for that matter, of Mr Bartlett, which has consistently been maintained in this trial and, if I remember correctly, the earlier trial, is that the letter does not mean or should not mean what is attributed to it by the prosecution, and that it is, therefore, not incriminating, not a prior inconsistency and, therefore, there would be no occasion to seek to rebut it.
It seems to me that the situation which has arisen here does not really permit an earlier consistent statement to be proved, because there is not before the court any matter which really suggests or lays a foundation for any inconsistency and, for that reason, I will not permit the particular question. I will direct the jury to disregard it, and I will not permit further questions for similar purposes about the statement of 24 October 2006.
I will return the statement of 24 October 2006 to counsel.