R v BB (No 2)

[2019] NSWSC 1087

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v BB (No 2) [2019] NSWSC 1087

Hearing dates:

14 – 20 August 2019

Date of orders:

22 August 2019

Decision date:

22 August 2019

Jurisdiction:

Common Law - Criminal

Before:

Rothman J

Decision:

Rulings in accordance with reasons

Catchwords:

PRACTICE and PROCEDURE – opening in document case – bundle for jury – Crown permitted to tender or mark bundle and provide to jury

EVIDENCE – Business documents – provenance – obtained on search warrant from premises of accused and co-accused – each a representation or employee of business of which the document was a record

EVIDENCE – relevance – discussed in context of highly circumstantial Crown case

Legislation Cited:

Charter of the United Nations Act 1945 (Cth)

Charter of the United Nations (Sanctions – Iran) Regulations 2008 (Cth)

Evidence Act 1995 (NSW)

Cases Cited:

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39

Carr v Baker (1936) SR (NSW) 301

Elomar v R [2014] NSWCCA 303

Fabre v Arenales (1992) 27 NSWLR 437; 15 MVR 303

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Jones v Sutherland Shire Council (1979) 2 NSWLR 206; 40 LGRA 323

Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23

Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41

Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25

National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539

New South Wales Crime Commission v Cassar [2012] NSWSC 1170

R v BB [2019] NSWSC 1054

Roach v R [2019] NSWCCA 160

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40

Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22

Tsang v DPP (Cth) (2011) 219 A Crim R 304; [2011] VSCA 336

Category:

Procedural rulings

Parties:

Regina (Crown)
BB (a pseudonym) (Accused)

Representation:

Counsel:
M McHugh SC / A McGrath (Crown)
S Pararajasingham (Accused)

Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Musgrave Legal (Accused)

File Number(s):

2016/321930

Publication restriction:

Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW)

Judgment

1. HIS HONOUR: On 15 August 2019, the Court delivered judgment in R v BB [2019] NSWSC 1054 (“hereinafter “BB (No 1)”, relating to the application of the Criminal Code (Cth) (hereinafter “the Criminal Code”) to the offences charged against the accused, being, in summary, a breach of the U.N. sanctions on Iran, which is rendered criminal conduct pursuant to the terms of the Charter of the United Nations Act 1945 (Cth) and the Charter of the United Nations (Sanctions – Iran) Regulations 2008 (Cth). While the outcome determined in BB (No 1) is open to review during the course of the proceedings, as will the directions given in these reasons for judgment and/or the directions consequential thereon, it is necessary to understand the requirement on the Crown to prove the elements of the offences in question.

2. The Crown is required to prove, to the requisite standard, that the accused intended to make a supply; with knowledge that the goods to be supplied consisted of a metal with a content of nickel greater than 25% by weight; and with knowledge that the direct or indirect result of the supply was that goods would be transferred to Iran. Further, the Crown is required to prove that the accused was reckless as to whether the supply was of sanctioned goods, including that the supply was not an authorised supply. That last mentioned element requires that the Crown prove that the accused turned his mind to the fact that there was a substantial risk that the nickel (the metal that is sanctioned), with a content of which he knew, was a sanctioned good and notwithstanding, unjustifiably took the risk: s 5.4(1) of the Criminal Code.

3. As a consequence of the indication by the Court of the ultimate requirements on the Crown as to proof, the Court must now deal with objections to certain documents and material that the Crown intends to rely upon in the course of the proceedings.

4. Further, the Court must deal with an objection to the process that is intended to be taken by the Crown in proving the material upon which it seeks to rely and in putting before the jury that material in opening and before formal proof has been provided. The objections fall into a number of categories.

5. Before dealing with the issues directly raised by the parties, it is necessary to note that, as in many cases in the criminal jurisdiction, the Crown’s case is a circumstantial case, in which it seeks to prove the state of mind of the accused by surrounding events and circumstances. It is appropriate to deal with the drawing of inferences, generally, before embarking on an analysis of the classes of objections.

Inferences

6. The drawing of inferences has been described as “plain commonsense”: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; 40 LGRA 323; Fabre v Arenales (1992) 27 NSWLR 437; 15 MVR 303. The Court (Mahoney JA, with whom, relevantly, Priestley and Sheller JJA agreed), after referring to each of the reasons for judgment of Menzies and Windeyer JJ in Jones v Dunkel (at 312, 320-321), said:

“There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, ‘plain commonsense’. A factual inference (if A, B, C, exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, ‘human experience would be contradicted if’ Z did not exist: see the cases referred to in Jones v Southerland Shire Council (at 222 et seq). It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn.” (Fabre v Arenales at 455 point F.)

7. On one view of the comment by Mahoney JA, it reverses the logical effect of that stated in the joint judgment of Knox CJ and Dixon J. In my view that is not the correct interpretation or understanding of the comments of Mahoney JA. In the context which their Honours were referring, there is no distinction between drawing an inference “if general human experience will not be contradicted” or, on the other hand, not drawing in inference unless human experience would be contradicted.

8. Sir Frederick Jordan CJ in Carr v Baker (1936) SR (NSW) 301 at 306-307 described the drawing of inferences in both civil and criminal proceedings in the following terms:

“In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial ….. In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact …. It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture …. The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action … to such practical certainty as would justify a conviction in a criminal prosecution. … It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established …. This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established.”

9. As the High Court stated in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the drawing of inferences relies upon evidence that is accepted. Even where the criminal standard applies, not every fact is required to be proved to that standard or to any standard. Lastly, a number of facts, each of which may not, of itself, give rise to the drawing of any inference relating to the ultimate question, may, when taken together with other facts, give rise to an irrefragable inference.

10. The burden of proof remains on the Crown in these proceedings to prove the elements of the offence beyond reasonable doubt. That means that the Crown must prove each of the essential facts and each of the elements of the offence in such a way that the accepted evidence does not allow for a reasonable hypothesis inconsistent with guilt: see The Queen v Baden-Clay, supra. An essential element is not proved beyond reasonable doubt when, on the evidence that is accepted, there remains a reasonable hypothesis inconsistent with guilt.

11. In determining whether the evidence gives rise to findings, either by way of an irrefragable inference or an inference beyond reasonable doubt, the jury is required to apply its common sense and common experience.

12. As Dixon J made clear in Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23 at 373:

“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. The application of this, as of any other general statement about relevancy is subject to the well-known .specific rules of exclusion.”

13. In the foregoing comments, Dixon J (as his Honour then was) was dealing with a conviction obtained in the Court of Petty Sessions in Victoria, which conviction was overturned by the Supreme Court of Victoria relating to whether a taxi was taking persons by reward, without the requisite licence. The Supreme Court of Victoria ruled inadmissible evidence of the prior conduct of the driver picking up and dropping passengers. The High Court overruled the Supreme Court view and reinstated the conviction.

14. The subject of drawing inferences was also a matter of discussion by the High Court, in the joint reasons for judgment of Knox CJ and Dixon J in Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25 at 173, in which their Honours said:

“The question involved largely depends upon the degree to which coincidence of events and circumstances warrants a belief in their causal connection. An examination of hypotheses logically consistent with proved facts is the received method of testing their sufficiency to establish the conclusion. In the end, however, the reasonableness or the probability of the occurrence of such hypotheses determines their admissibility, and when coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved.”

15. The foregoing is the passage to which the Court of Appeal referred in Fabre v Arenales, supra. Of course, as Dixon J points out the general rules must give way to any known exceptions and, since the earlier judgments, issues associated with coincidence of fact or states of mind may be inadmissible because of the operation of ss 97 and 98 of the Evidence Act 1995 (NSW).

16. Nevertheless, the Crown, in these proceedings, does not rely upon any of the circumstances as tendency or coincidence evidence. The fact, assuming it be the fact, that the Crown does not rely upon tendency or coincidence does not render inapplicable the provisions of ss 97 and 98 of the Evidence Act, but no objection is taken on any such basis.

17. As is clear from the structure of the Evidence Act, the Evidence Act renders admissible all relevant evidence. Material is relevant if it could rationally affect (directly or indirectly), the assessment of the probability of the existence of a fact in issue in the proceedings.

18. A fact in issue in the proceedings is not confined to the ultimate fact required to be proved. It applies to any subsidiary fact, which, in turn, may prove, together with other facts, an ultimate fact in issue. Thus, expressly, relevant evidence may include material going to the credibility of witnesses or the admissibility of other evidence.

19. In a circumstantial case, or in relying upon circumstantial evidence, the usual analogy is made with the strands of a cable. Each strand, likened to a particular fact or document, may be insufficient to prove an ultimate fact, but, when joined with other strands, may be sufficiently strengthened to prove the fact in issue and, together with other facts in issue, the ultimate question before the Court.

20. Of course, some facts are essential, in which case the analogy with the strands of a cable is inappropriate. In that circumstance, the better analogy is with the links in the chain, in which the case, if one link, or fact, were not proved to the requisite standard necessary for a criminal trial, the prosecution fails.

21. It is necessary to understand the foregoing in order to deal with the issues before the Court. The Court applies the foregoing principles.

The process of tender

22. As is common in proceedings before a jury that relate to voluminous documents, the Crown has compiled charts and summaries of the documents and intends to open to the jury on the basis of a bundle of documents that it will provide to the jury during the course of the opening. The content of the material that is contained in the bundle will be informed by the Court’s attitude to the objections that have been identified.

23. The documents either speak for themselves or they do not. In the case of a document that speaks for itself, it does not require specialist understanding and its meaning is a question of fact for the jury.

24. If, on the other hand, a document requires specialist understanding in order to understand the contents of the document, then expert evidence will be necessary in accordance with the provisions of s 79 of the Evidence Act.

25. If the Crown relies on a document, and it does not speak for itself, then, in the absence of expert evidence, the document cannot be used to prove that for which it is said to be relevant.

26. If the document “speaks for itself” and may have more than one meaning, again, it is for the jury to determine its meaning on the basis of the submissions of counsel and the directions of the Court. The meaning that the jury may give to the document may ultimately be informed by other evidence.

27. The Crown may open on the basis of the evidence to be adduced and explain its view of the meaning of the documents. If that meaning requires, in accordance with the foregoing, expert evidence that is not adduced, and directions would not adequately deal with the proposition that the jury could not take the document into account in that way, then there would be a risk of mistrial.

28. These are matters that the Crown, no doubt, takes into account in determining its attitude to the documents in question.

29. The process that the Crown intends to adopt was approved by the Court of Criminal Appeal in Roach v R [2019] NSWCCA 160 at [129] and following, where the Court (Bathurst CJ, Bell P and Johnson J) said:

“[129]    In R v Milne (No. 1) (2010) 260 FLR 166 at 171; [2010] NSWSC 932 at [9], the Court observed:

‘A criminal trial in Australia is an accusatorial and adversarial process and is essentially an oral process: Gately v The Queen [2007] HCA 55; 232 CLR 208 at 235 [88]. However, there will be criminal trials involving a substantial volume of documentary evidence where the trial is not essentially an oral process.”

1. It is a common feature in criminal trials for offences of the present type, where a substantial volume of documentary evidence is to be tendered, for folders containing those documents to be prepared (usually in chronological order) for tender at the trial and with that tender occurring at an early point in the trial. In addition, courts have recognised the assistance which a jury may derive from the provision of appropriate summary documents, including charts and chronologies, as well as the use of s 50 Evidence Act 1995 (NSW) for proof of voluminous or complex documents.

2. The importance of the orderly presentation of documentary evidence was emphasised in R v Milne (No. 1) at 171-172 [11]:

   ‘That provision [s.50 Evidence Act 1995] sits well with the purposes identified in the abovementioned authorities, which have as their focus the provision of practical assistance to a criminal jury so that the jury may understand the evidence for the purpose of the discharge of its fact-finding function. These processes also serve the purpose of promoting efficient use of court time with a jury present, so as to allow the jury to understand the contents of documents, and the inferences which may be drawn from those documents, together with the relevance of those inferences to the elements of the offences charged in the indictment.’

3. It will usually be necessary for the Crown to tender the actual documents to demonstrate the course of events and communications, including (as in this case) alterations which are said to have been made to documents by the accused person. The tender of documents allows the jury, as the judges of the facts, to make findings concerning the contents of documents and to draw inferences which arise from all of the evidence in the trial.”

   30. This is the process that is adopted, almost universally, in trials of this kind, including trials relating to offences in dishonestly obtaining a benefit by deception, fraud (including tax fraud) and the like. This case, notwithstanding its novelty, is in no different situation.

   31. There is no basis for a an objection to the Crown opening by tendering material that is to be adduced, perhaps, if there be a real contest as to the proof of it, initially as a document that is marked for identification, but in possession of the jury, and proving the material in the course of the trial. In the case of documents that do not otherwise need proof, or the proof of which is determined by these rulings, they can be admitted as evidence immediately.

   32. It is also permissible for the Crown to explain the manner in which the Crown understands the documents or the facts that the Crown says the documents will prove, assuming, as I do from the foregoing comments, that the document will either speak for itself or, if it requires specialist understanding, that specialist evidence will be adduced.

Opinions of others on the accused’s state of mind

33. The foregoing heading may, in its generality, be a little misleading. Obviously, pursuant to the terms of s 78 of the Evidence Act, lay opinion as to certain matters may be adduced. Thus, if it were relevant, whether the accused was angry, drunk, tired or unwell may be the subject of lay opinion pursuant to the terms of s 78 of the Evidence Act.

34. The objection that has been taken is best exemplified by material contained in a statement of evidence of a particular witness. It is unnecessary to recite that evidence and I am reluctant so to do because, even though this judgment will be restricted until the conclusion of the trial, if it were to be the subject of access by a juror, it may be utilised impermissibly.

35. Nevertheless, it is fair to say that one or other witness expresses an opinion about the state of knowledge or mind of the accused as to whether goods were sanctioned goods or whether sanctions generally applied to goods being transferred to Iran. Such evidence is inadmissible, unless it recounts a conversation of the accused in which an admission, partial or otherwise, is made.

36. To be fair to the Crown, the Crown does not press that aspect of the statement. Nevertheless, the objection has been raised. For a matter of completeness, I make it clear that the evidence would be inadmissible and I expect, given the competence and seniority of Counsel appearing in the proceedings for both the Crown and the accused, that issues of admissibility on the foregoing bases, or generally applicable bases, will be the subject of discussion. Further, witnesses who refer to such matters in a statement will not be asked about that material and the questions that are asked of the witness will seek to avoid any such testimony.

Representations of AA in the absence of the accused

37. The next ground of objection relates to emails (and some other documents) that are representations made by the co-accused to third parties and which, on the face of the representations, are not provided to the accused. Counsel for the accused submits that such representations are neither relevant to the accused’s knowledge nor relevant to whether the goods were transferred to Iran.

38. This is an area in which the Crown relies on a circumstantial matrix, which, it submits, would allow the jury to draw an inference as to the state of knowledge of the accused. That matrix includes the relationship between AA and the accused.

39. AA and the accused were partners and living together at relevant times. They were also business partners and/or engaged in connection with the same or connected businesses. The circumstances of the relationships between AA and the accused are relied upon by the Crown as a piece in the puzzle or a strand of the cable, together with other information to infer knowledge on the behalf of the accused consistent with the representations that were made.

40. The Crown describes it in the manner utilised by the Court of Criminal Appeal in Elomar v R [2014] NSWCCA 303 at [240], in which the Court (Bathurst CJ, Hoeben CJ at CL and Simpson J, as her Honour then was) utilised the expression “mosaic”. Their Honours said:

“The very point of a circumstantial case, as this was, is that it creates a mosaic of sometimes apparently tiny items of evidence, that, when put together, make up a whole picture. The tiniest fragment of evidence might, on completion of the mosaic, be shown to have significant relevance. It is a mistake, particularly in a circumstantial case, to attempt to determine the relevance of each individual item of evidence in isolation from all of the other evidence.”

41. The objection raised under this rubric (together with other objections taken) has required the Court to read all of the emails of which the 12 utilised as an example by the accused form part and the attachments thereto. Further, the accused submits that, if the evidence is admissible, it should be excluded under s 137 of the Evidence Act.

42. AA is a co-accused (or was). She has pleaded guilty to the offences with which the accused has been charged, or related offences. As a consequence of a plea of guilty, AA has admitted the elements of the charge preferred against her, at least to the minimum level: Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41 at [157], per Dawson J.

43. The Crown has disavowed reliance upon conspiracy and has not charged conspiracy. Further, the Crown disavows reliance upon joint criminal enterprise (extended or otherwise). The disavowal of conspiracy and joint criminal enterprise does not result in the proposition that the accused and AA do not have “a common purpose”.

44. If statements are made by one person, ordinarily, to the extent that it is an admission, including an admission of fact, it cannot be used against another party or another person. There are exceptions.

45. The provisions of s 87(1)(c) of the Evidence Act require the Court to admit a representation of one party against another party, if it is reasonably open to find that the representation was made by the person in furtherance of a common purpose between the two parties. The foregoing is an inclusionary rule that depends upon the operation of s 81 of the Evidence Act.

46. It is important to bear in mind the structure of the Evidence Act itself. As earlier stated, ss 55 and 56 of the Evidence Act render admissible all evidence that could (directly or indirectly) rationally render more probable the existence of a fact in issue. Thereafter, there are a number of exceptions to that general proposition.

47. One of the exceptions is the rule against hearsay evidence. However, by operation of s 81 of the Evidence Act, the hearsay rule and the opinion rule do not apply to evidence of an admission: s 81(1) of Evidence Act. It is unnecessary to deal with s 82 or s 84 of the Evidence Act for present purposes.

48. However, s 83 of the Evidence Act renders inoperable the provisions, of s 81(1) of the Evidence Act, as they apply to third parties. Nevertheless, s 87 of the Evidence Act includes evidence that is an admission by one party against another party, relevantly, where the person making the admission does so in furtherance of a common purpose: s 87(1)(c) of the Evidence Act. This has been described as “an inclusionary rule”, which “specifically permits – and requires – the admission of evidence tendered as an admission made with authority, where it was made in furtherance of a common purpose”: Elomar, supra, at [289].

49. With respect to the Full Court, there is no separate requirement, in the operation of s 87(1)(c) of the Evidence Act, to determine that the admission was made “with authority”. It is sufficient, for the provisions of s 87(1)(c) to operate, for the person making the admission and the person against whom the admission is to be adduced, that the admission was made “in furtherance of a common purpose”.

50. The legislature assumes that if the statement or representation was made “in furtherance of a common purpose” it was made with the authority of each person party to the common purpose. The Court of Criminal Appeal, in Elomar, discussed the issue in more detail in analysing the co-conspirators rule: see Elomar at [263] and following.

51. Ordinarily, if a statement by a party, in this case AA, is sought to be tendered as an admission, it is admissible only against the individual who made the statement, in this case, AA. As earlier stated, that is circumscribed by the provisions of s 87(1)(c) of the Evidence Act, which requires that the admission be done “in furtherance of a common purpose”, which common purpose, or the existence of which purpose, is a precondition to admissibility: see Elomar at [268].

52. In Elomar at [273], the Court of Criminal Appeal relied upon the statements of the High Court in Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22. In that judgment the High Court (Dixon CJ, Fullagar and Windeyer JJ) said:

“For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose ... When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case ... It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.”

53. The foregoing was explained more fully in the reasons for judgment in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, in which the Court (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) said:

“[7]    ... Evidence of the acts or declarations of others led for this purpose [that is, as proof of the participation of an accused] will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.

1. That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi, [at 7]. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. …

...

1. In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.”

   54. The Court of Criminal Appeal in Elomar, continued in relation to admissibility of evidence to suggest that the “co-conspirators’’ rule was only one basis of admissibility recognised by the High Court in Ahern. The Court of Criminal Appeal, referring, once more, to Ahern, said:

2. It is not correct to regard Ahern as authority for the proposition that acts, statements, declarations or conversations of one or more alleged conspirators are admissible against other alleged conspirators only if made in furtherance of the common purpose. Ahern expressly holds otherwise. The Court said:

   ‘[5]    In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.’

3. The Court quoted from the judgment of Isaacs J in the Coal-Vend Case as follows:

‘... though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.’

1. Essential for the Crown to prove in a conspiracy trial (inter alia) are:

   (i)    the existence of the conspiracy alleged; and

   (ii)    the participation in that conspiracy of the various accused.

2. While recognising that certain items of evidence might be relevant to each of these, it is necessary to carefully delineate which evidence goes to prove the existence of the conspiracy, and which goes to prove the participation of any of the individual accused. But it is wrong to say, as was contended on behalf of Elomar, that, unless conversations or statements or acts are had or made or done in furtherance of the conspiracy, or of the common purpose, that evidence is not admissible against any accused other than the accused to whom it is attributed.

3. A similar argument was put to this Court in R v Louden (1995) 37 NSWLR 683. Allen J, with whom Newman J and Simpson J agreed, categorised that argument as ‘fundamentally wrong’. The argument to which his Honour referred was, in essence, that the evidence would not be admissible on any ground other than that the conversations the subject of the evidence were in furtherance of the conspiracy charged.

4. In Louden, Allen J accepted that a good deal of the evidence there in question did not implicate the appellant, in the sense of proving his participation in the conspiracy. It was, however, circumstantial evidence of both of the existence and the nature of the conspiracy alleged. It was by other evidence that the appellant was shown to be involved.

5. The evidence the subject of this ground of appeal was not tendered under the co-conspirators’ rule, and was not subject to the limitation that it be evidence of acts or statements in furtherance of the conspiracy.

6. To classify any particular item of evidence as ‘in furtherance of the conspiracy’ may, in some cases, present difficulties. If it were necessary to make that decision in the present case, it would present particular difficulties, in the absence of any breakdown of the particular conversations to which objection is taken. Since the evidence was not tendered under the co-conspirators’ rule, but was tendered for a different purpose, that question does not arise. The evidence was amply able to prove the existence and nature of the conspiracy.”

   55. Further, in Elomar, the Court of Criminal Appeal was dealing with a conspiracy or an alleged conspiracy. The existence of a conspiracy, as is clear from the foregoing, requires evidence of an agreement (either express or implied) and evidence of the participation of a particular person in that conspiracy. A common purpose is a broader term and does not require the existence of a conspiracy or the kind of agreement that would give rise to joint criminal enterprise.

   56. As a consequence, the disavowal, by the Crown, on each charge of conspiracy, or reliance upon joint criminal enterprise, does not preclude the Crown from relying upon “common purpose”: see Tsang v DPP (Cth) (2011) 219 A Crim R 304; [2011] VSCA 336 at [42]-[44].

   57. The material in question is part of a “mosaic” each tiny piece of which makes up the entire picture. The totality of the evidence sought to be adduced by the Crown would, in its entirety, allow the drawing of an inference that there was a common purpose between AA and the accused.

   58. Further, the entirety of the evidence, including the nature of the business and personal relationship between the accused and AA and the nature of other correspondence, would allow the Crown to submit, and allow the jury, properly instructed, to infer, that the accused was aware of the matters represented by AA in the correspondence about which complaint is made.

   59. In those circumstances, it is a matter for the jury, properly instructed, whether it draws those inferences. Much care will need to be taken in the manner in that the directions will be provided and I expect that each of the Counsel involved will provide assistance to the Court in the nature and content of those directions.

   60. The representations of AA in emails, and otherwise, and in the absence of the accused, are admissible as part of the matrix of evidence upon which the Crown is entitled to rely.

Metalloy correspondence with or about unrelated Iranian companies

61. Objection is taken to a series of emails between Metalloy and the accused, on the one hand, and various third parties, on the other hand. The Crown seeks to rely upon that material to show the accused’s knowledge that the goods particularised in the indictment were “export sanctioned goods” and that the same goods were transferred to Iran.

62. The emails to which this objection relates have no connection to the impugned transaction. Each of them discloses a connection to Iran.

63. Part of the case that the Crown is required to prove is that the accused was aware of the U.N. sanctions in relation to the supply of goods to Iran and, in that context, was aware of a substantial risk that the goods being transferred were sanctioned goods and proceeded with the supply regardless of that risk.

64. Part of the evidence, to which this objection does not relate, is that the accused sought to change the description of the goods from goods, which revealed it was nickel of particular content, to stainless steel. The material to which this objection relates is intended to show that the accused was doing business with Iran on an ongoing basis and was possessed of knowledge of the sanctions.

65. Any individual email or document in this category would not be capable of rationally affecting the likelihood that the accused was aware of sanctions or aware that there was a substantial risk that the Iran sanctions applied to goods of the kind sought to be supplied. Nevertheless, together with the other material, that is the emails and other documents to which this category of objection relates, is admissible as capable of proving more probable that the accused continued to do business with Iran and had knowledge of the sanctions.

61. Those two subsidiary facts are facts, which, together with other facts, may be relied upon by the Crown to prove that the jury should infer that the accused was aware there was a substantial risk that the impugned supply was a supply of goods that was the subject of a United Nations sanction. Thus, as material on which it is possible, with other material, to draw an inference of knowledge of sanctions generally, from which, with further other material, knowledge of the substantial risk that these goods were sanctioned, may be found to be in the mind of the accused would be admissible and the material to which this objection relates is admissible, on that basis.

62. However, the Court makes clear that it is not able to be used for any other purpose and, to the extent necessary, the Court will give directions under s 136 of the Evidence Act to confine the purpose of the documents.

Internal HICo Fze correspondence

68. The next category of documents to which objection is taken relates to internal correspondence between a company, HICo Fze (hereinafter “HICo”), which is registered in the United Arab Emirates and headquarters of which are in Dubai. In turn, it was under the umbrella of a holding company, Hirbodan Management (hereinafter “Hirbodan”), registered and headquartered in Iran.

69. Hirbodan is an engineering, procurement, construction and management consulting firm. AA is alleged to have resided and worked in Iran and been employed by Hirbodan and/or HICo and, on the material for the Court, certainly performed work for HICo.

70. The difficulty in dealing with this objection in the absence of all of the other material, or to be considered separately, is manifest. The two examples utilised, for the purpose of the objection, are emails referred to as E0458 and E0507.

71. Taking email E0458, it is an email from M. Jafari on a HICo email address to Ali Reza Emad and AA, each at HICo email addresses. It attaches a document which is at p 648 of Exhibit C on the voir dire.

72. That document refers to, or is a guarantee to, bank Saderat Dubai branch for the issuing of an advance payment for Euros 1,110,600.00 which is to be collected by AA.

73. The second example, utilised by the accused in this category, is the email at E0507, which is correspondence that also includes AA and attaches a letter which can be found in Exhibit C on the Voir Dire at p 681. The email and letter is from Ali Reza Emad on HICo letterhead and addressed to [REDACTED], and AA, and refers to the purchasing from Metalloy setting out a procedure, which includes a reference to ports, insurance, inspection by AA and an expert, whom we otherwise know is from Iran, letters of credit, reference to the shipping to be done by IRISL Group (the Islamic Republic of Iran Shipping Lines) and other such matters.

74. The Crown is required to prove that the goods were intended to be shipped to Iran and were shipped to Iran. This material plainly evidences that and is admissible for that purpose. It may also be admissible for other purposes, which will depend, very much, on proof of common purpose and/or proof of the relationship and the nature of authority that was possessed as between AA and the accused.

75. This objection is rejected.

Evidence Concerning [REDACTED]

76. [REDACTED] is an entity in which each of the accused and AA have an interest. It seems, and inferences may be available to this effect, that [REDACTED] received commissions from the transaction between Metalloy and HICo. It is also evidence of a business relationship between the accused and AA.

77. Given the nature of the interest in [REDACTED], an inference may be available, depending upon the totality of the evidence, that [REDACTED] had authority to make representations on behalf of the accused (and vice versa) and, relevantly, that AA had authority to make representations on behalf of [REDACTED] and, in turn, the accused.

78. The evidence certainly shows the business relationship between AA, the accused and [REDACTED]. In those circumstances, it may be relevant for admissions under s 87 of the Evidence Act and may be relevant as part of the matrix that shows sufficient to allow the jury to infer knowledge of certain matters.

79. This objection is rejected.

Miscellaneous emails

80. The objection taken in this area is in four subcategories. First, it relates to emails concerning matters outside the date range particularised in the indictment. Included in this category are: a Metalloy/HICo meeting in Malaysia; correspondence with Mr Kim in North Korea; the fact of SPF (Stainless Pipe and Fittings Australia) ending the commercial arrangement with Metalloy and certain matters that occur after the Crown allege the shipments reached Iran.

81. Secondly, the emails relate to AA’s personal affairs. Thirdly, the emails relate to the task undertaken by the expert metallurgist, Ms Pahlavanyali, the expert, known to be from Iran. And, lastly, the objection relates to emails from Mr Parkin to AA concerning an unrelated transaction.

82. The last mentioned objection concerns, as is made clear from the foregoing, unrelated transactions to the impugned transactions. It seems, on their face, they evidence a system of work, relied upon by the Crown, which establishes that knowledge of goods transported is essential and [REDACTED] is available to and known by the accused.

83. Whether, by itself, these emails would establish that proposition is debatable. Nevertheless, it seems, given the nature of the proceedings, that the Court ought not rule the material out at this point in time.

84. As earlier stated, subject to the capacity of any direction by the Court to be effective, the Court will revisit that ruling, if application is made so to do, at a time when the Crown evidence has concluded (or an earlier appropriate time) and if it is not possible to be effective, it may be necessary to abort the trial.

85. In relation to the penultimate subcategory (the expert metallurgist), it seems to me that the evidence is essential, rather than merely relevant. It goes to the steps taken to verify the content of nickel in the alloy that was supplied and, possibly, its end use location.

86. The second subcategory of emails relates, it is said, to AA’s personal affairs and the accused uses an example, being email E0644. This email is pressed on the basis that it is a business record; it proves that AA and HICo were based in Iran; it is circumstantial evidence from which inference can be drawn that the metals were transferred to Iran and that BB knew that the metals were going to Iran (together with other material); and, lastly, that the accused had concealed the end user in Iran, in order to circumvent the sanctions.

87. The email in question is uninformative. The attachment to the email can be found at exhibit C p 768. It is plainly a business record and shows AA to be Iranian and is an entry permit for Dubai, issued on 25 August 2009 and valid until 23 October 2009.

88. It is said that the fact that AA is Iranian and based in Iran, with an Iranian passport, is evidence that forms a very small part of the matrix used to prove that one of the facts in issue is more probable. Frankly, it is a minor aspect of the proceedings, which, on that which I have heard thus far, seems not to be in dispute. Nevertheless, the Crown is capable of proving that fact as a fact relevant to the proceedings as a whole.

89. The first subcategories, being emails outside the date range particularised in the indictment raises different issues. The first example utilised by the accused is email E0970, relating to a meeting, between HICo (AA) and persons representing Metalloy, at a time prior to the conclusion of date range particularised in the indictment.

90. However, the date range of the indictment, which is between 19 March 2009 and 1 April 2010 for each of the offences, is a date range relating to the contravention of subs 27(1) of the Charter of the United Nations Act. The meeting in question was a meeting between two of the companies involved in the relevant transaction, at a time prior to the time at which the conduct that contravened the UN Sanctions Law commenced. That does not mean that the meeting is irrelevant to the contravention.

91. On the contrary, it would be almost impossible for the impugned conduct to have occurred without prior meetings. The fact, if it be the fact, that the meeting occurred at a time before the conduct in contravention of the law occurred, does not mean that the meeting is irrelevant to the proceedings. The document is admissible.

92. The next aspect of this first subcategory is an email between a Korean company and Metalloy relating to a transaction that, on its face, has nothing to do with the impugned supply. Nevertheless, that is not the basis upon which it is sought to be tendered.

93. Its tender is relevant to establishing the prominence and authorised personnel of GATAC (Gulf Austral Trading Company), which the Crown alleges is relevant to prove that the author of the emails is the accused and that, therefore, the accused has knowledge of the content of the supplier from the fact that it is to be used in the manufacture of turbine blades. It is relevant for that purpose. It is also relevant as part of the matrix showing that the accused is the owner and operator of Metalloy, if that be an issue in dispute in the proceedings, which, in turn is a client of HICo.

94. To the extent that these emails disclose that there were in place sanctions by the United States against Iran, or that the accused was aware of US sanctions against Iran, the material is not relevant to the Crown case for that purpose and the existence, assuming for present purposes that they did exist, of sanctions against Iran by the United States Congress is irrelevant to the charge before the Court. However, it may be relevant for the defendant to show that the mere knowledge of sanctions leaves open a hypothesis that the sanctions of which the accused had knowledge were other than U.N. sanctions.

95. The next objection is taken to an email relating to the ending of the commercial arrangement with Metalloy (email E0987). As presently informed, I can see no basis for the tender of this material, except, the existence of an arrangement between SPF and Metalloy at an earlier time.

96. It would seem, on the face of it, that the existence of such a business relationship is not in dispute and is otherwise easily proved from the material otherwise tendered. That conclusion does not mean that the material may not be relevant, but it does inform the s 137 issues to which reference will be made shortly.

97. The last category of emails relates to the emails from E0987 through E0991, which correspondence occurs after the Crown asserts that the shipments reached Iran, or so it is alleged by the accused. First, the contravention dates in the indictment relate from 19 January 2009 to 1 April 2010. The emails in question date from 11 January 2010 through 26 January 2010. They are certainly within the range of dates particularised in the indictment.

98. Some of the material in the emails is, at best, pejorative, but otherwise much of the material relates to the existence of the relationship and transactions that occurred during the time that the shipping was organised and occurred.

99. The Court makes it clear that, except to the extent that an email, post shipment, informs a knowledge of the arrangements between the parties to the shipment, the nature of the material or any other factual issues before the Court, the material would be inadmissible. Thus far, it seems each of these emails relates to the existence and terms of the arrangements that gave rise to the supply of material to Iran.

Unfair prejudice

100. The accused relies upon the provisions of s 137 of the Evidence Act, which requires the Court to reject evidence, if the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant. It is important to understand a number of aspects of the operation of s 137 of the Evidence Act.

101. First, probative value will, when analysed, amount to the degree to which material is relevant. Ordinarily, relevance does not depend upon degree. But “probative value” is defined in Schedule 2, the Dictionary, to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. Presumably, that effect may be direct or indirect.

102. Secondly, the Court is required to refuse to admit evidence in the circumstances prescribed by s 137 of the Evidence Act, assuming as I must, that one is dealing with a criminal proceeding. The balance that must be struck is a balance between the probative value of the evidence or material, on one hand, and the “danger” of unfair prejudice to the defendant, on the other.

103. Not all prejudice is “unfair”. Prejudice becomes unfair when it is used for a purpose or in a manner that is impermissible, improper or in some other unfair way: The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40.

104. Further, it is not the use of the evidence unfairly against which the probative value is weighed. It is the “risk” or “danger” of a jury using it impermissibly or inappropriately that is the measure against winch probative value must be weighed. Further, comparing the terms of s 137 to those of s 135 of the Evidence Act, the outweighing by the danger of unfair prejudice need not be substantial, for the requirements of s 137 of the Evidence Act to have been satisfied.

105. The authorities make clear that the use of evidence in a manner that is permissible, even though prejudicial, is not caught by the provisions of s 137 of the Evidence Act. Further, the assessment of the balancing exercise between probative value, on the one hand, and, on the other hand, the danger of unfair prejudice is informed by the nature of the directions that are required to be given.

106. Given the stage of the proceedings at which the Court is dealing with these issues, the Court is disinclined to set out directions that it might ultimately give in dealing with the evidence that is adduced. However, the Court makes it clear that, in areas where there is a possibility of impermissible use of evidence, the Court will be specific and direct as to the jury’s inability to use it in that way.

107. It seems to the Court, at this stage, that any unfair prejudice associated with the admission of the material can be negated by appropriate directions. As a consequence, at this stage of the proceedings, the application for the rejection of the material under s 137 of the Evidence Act is not upheld.

Business documents

108. Lastly, there is objection taken to a number of documents, found in the material on which the Crown seeks to rely, on the basis that it is sought to be adduced as business records, but the documents in question have not been proved to be business records and cannot be admitted solely on the basis that they “look like” business records. The high point of such an argument was the acceptance by Bryson J of the inadmissibility of certain evidence in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309.

109. The comments and approach of his Honour in Rusu has been the subject of much academic and judicial criticism. The issue of the admissibility and provenance of business records was dealt with by the Court, as presently constituted, in New South Wales Crime Commission v Cassar [2012] NSWSC 1170. In that case the Court said:

1. The provisions of s 62 of the Evidence Act confine hearsay to a representation made by a person who had personal knowledge of an asserted fact: s 62(1) of the Evidence Act. A person has such personal knowledge if that person’s knowledge might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person: s 62(2) of the Evidence Act. As a consequence, s 62 restricts the meaning of a previous representation in Division 2 of Part 3.2 of the Evidence Act to what is generally called ‘first-hand hearsay’.

2. However the limitation in s 62 of the Evidence Act, described above, is a limitation confined to the provisions of Division 2 of Part 3.2. The exceptions, more generally available, under s 69 and s 75 of the Evidence Act are exceptions found in Division 3 of Part 3.2 of the Evidence Act. As a consequence, at least on its express provisions, the limitation or qualification that hearsay evidence is and must be confined to first-hand hearsay, does not apply to either ss 69 or 75.

3. To some extent, this is to be expected. A business record will, in a number of cases, comprise representations from a number of people. The example in these proceedings of a bank statement exemplifies that fact.

…

1. The provisions of ss 69 and 75 of the Evidence Act, as has been stated, are within Division 3 of Part 3.2 of the Evidence Act. As a consequence, the definition of hearsay in s 62 of the Evidence Act does not apply to ss 69 and 75. If there be an overriding discretion to exclude otherwise relevant evidence on the basis of unreliability, it must arise from the provisions of s 135 of the Evidence Act, namely, that the unfair prejudice to the defendant outweighs its probative value. On the other hand, if material is so unreliable, e.g. a rumour to prove the truth of the assertion therein, it may not meet the standards imposed by s 55 of the Evidence Act that the material could rationally affect (directly or indirectly) the assessment of the probability of the existence of the ‘rumoured’ fact.

2. I accept the view expressed that second-hand, or subsequent, hearsay is generally unreliable and should be admitted only when some fact or circumstance exists which renders the material sufficiently reliable to outweigh the unfairness from which the party against which it is tendered would otherwise suffer. Hearsay is difficult, if not impossible, to test and particularly so where testing would require cross-examination.

3. Nevertheless, as a general proposition, I take the view and rely upon the proposition that the exceptions in ss 69 and 75 of the Evidence Act are not confined to first-hand hearsay and the material is not inadmissible on that basis.

4. I am comforted in the foregoing analysis by the reasons for judgment of Merkel J in Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1, in which his Honour held that the provisions of s 75 of the Evidence Act applied not only to first-hand hearsay, but also to more remote forms of hearsay. Further as Spigelman CJ said in New South Wales Crime Commission v Vu [2009] NSWCA 349, nothing in s 75 of the Evidence Act ‘suggests that it is necessary, when adducing evidence in the course of a hearsay statement, to identify the ultimate source of the information contained in that statement’: at [42].

…

1. These proceedings relate to the admissibility of business records, or alleged business records. It is now trite, and if it were not trite, would be self evident, that a document does not become a business record merely because the document looks like a business record. There must be evidence from which the Court can infer that the document is a business record: National Australia Bank v Rusu, supra. In other words, as stated by Bryson J in Rusu, the Court must be satisfied that the document is that which it purports to be, namely, a business record. In this case the document looks like a bank statement, or a series of statements, and otherwise looks like a summary of bank records. Is it a business record?

2. As Austin J held in ASIC v Rich [2005] NSWSC 417, while evidence of the authenticity or authentication of a document cannot be achieved solely by drawing inferences on the face of the document and something more is necessary, the nature of the document may mean that only a small amount of evidence is necessary in order to draw the inference as to the document’s authenticity. Nevertheless, authenticity cannot be achieved solely from the document itself. In this case, authenticity is shown by the establishment, by hearsay, of the ultimate source of the documents and, having been authenticated by hearsay, the documents are admitted as business records pursuant to the terms of s 69 of the Evidence Act.

1. For the purpose of determining whether the document, to be tendered in substantive proceedings, is a business record, the Court, technically, conducts a voir dire. The voir dire is an interlocutory proceeding in that it is a proceeding that does not conclude the rights of the parties inter se. Interestingly, s 75 of the Evidence Act exempts from the hearsay rule evidence ‘in an interlocutory proceeding’, not evidence that will give rise to ‘an interlocutory order or judgment’.”

   110. The material in dispute was obtained by the Crown from the investigating officers, who obtained the material as a result of the execution of a search warrant. A video of the execution of the search warrant is available.

   111. Further, there is, before the Court, a transcript of the exchange between the accused and investigating officers. In the course of that exchange, the investigating officers ask whether there are things “named in the warrant on these premises” to which the accused replies: “There’s half a million of them”. Then, when asked about identification documents, passports, freight and postage records, shipping documents, datasheets, mobile telephones, things like that that, the accused says:

“probably available. Well some of them are, I hope they are. … Because when I moved from the workshop that I used to be in … we did it in such a rush because of our financial situation I was kicked out practically. … so some of the documents simply were missing because we had to reduce things, you know, from the big space to smaller. … but I think most of the things that we had must be in here.”

112. There is some dispute is as to what the words “in here” refers. As a consequence of the search warrant, two relevant classes of documents were seized. [REDACTED]

113. In order to be business records, the documents do not need to be records of the accused. Indeed, in order to be business records, the documents do not need to be documents of which the accused was aware, although if he were unaware of them or their contents that may create other evidentiary and prosecutorial problems for the Crown.

114. [REDACTED] The accused is a representative of the business (or a number of them). The evidence suggests that there is only one office that the accused occupied and from which he was ejected. The fact, if it be the fact, that the documents that were seized relate to a number of different businesses, with which either AA or the accused were associated, does not render the documents other than business documents.

115. On the contrary, the nature of the files in lever arch folders and the provenance of the manner in which the documents were seized are matters from which the Court is, on the voir dire, entitled to draw the inference that the documents are business documents. Likewise, the hard drive documents have a provenance and history from which the Court draws the inference that the documents are business documents, either original business documents or copies thereof. If the documents are copies of business documents, they are admissible pursuant to the terms of s 48 of the Evidence Act.

116. The alternative proposition, and the only other available inference, is that the documents were forged. That would be an inference that would tell against the accused and/or AA. There is no evidence to suggest forgery and each of the documents relates to business arrangements made either by AA or the accused or businesses associated with one or other of them.

117. In the circumstances, the Court draws the inference that the documents are business records and are admissible as such.

Conclusion

118. The Court makes rulings in accordance with the foregoing and, unless otherwise expressly stated, allows the evidence to which objection is taken.

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Amendments

08 December 2021 - Pseudonym updated.

Decision last updated: 08 December 2021