R v Di Cioccio (Ruling No 1)
[2011] VSC 548
•26 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. SCR 2011 0137
SCR 2011 0141
| THE QUEEN |
| v |
| ANDRE VINCENT DI CIOCCIO & MARC EDWARD DI CIOCCIO |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2011 | |
DATE OF RULING: | 26 October 2011 | |
CASE MAY BE CITED AS: | R v Di Cioccio & Anor (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 548 | |
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CRIMINAL LAW – Obtaining financial advantage by deception – Tendency evidence – Whether significant probative value – whether probative value substantially outweighs prejudicial effect - Evidence Act 2008 (Vic) ss 97, 101(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Shaw with Mr S Gelfand | Office of Public Prosecutions |
| For the Accused | Mr P Higham for Andre Vincent Di Cioccio Mr P Guggenheimer for Marc Edward Di Cioccio | Matthew White & Associates Chris McLennan & Co |
HIS HONOUR:
Before the jury has been empanelled, Marc Di Cioccio, along with his brother Andre Di Cioccio, has been arraigned on and pleaded not guilty to two charges of obtaining financial advantage by deception. The Crown wishes to lead tendency evidence to prove the charges against Marc Di Cioccio. He argues that the evidence ought not to be admitted.
On the indictment, the Crown alleges that on two separate occasions in August 2007 Marc Di Cioccio facilitated the submission of false tax invoices from Mac Spot Pty Ltd, a business with which he was associated, to Westpac Banking Corporation in support of loan applications by nominated purchasers of goods as set out in the invoices. It is alleged that he did so knowing that the invoices were false in that there was no actual sale of the goods as described in the invoices. It is alleged that Westpac advanced monies on the basis of the loan applications and that the monies were lodged with Mac Spot Pty Ltd after which some of the proceeds were paid to or for the benefit of the accused.
The evidence which the prosecution wishes to lead, relying upon s 97 of the Evidence Act 2008 (Vic), falls into two categories.
The first category is evidence from a former employee of the Mac Spot business, being Dean Dimaggio. He says that on four separate, but unidentified, occasions (presumably between 2004 and mid/late 2007 during the period of his employment) Marc Di Cioccio asked him to create invoices for transactions which, it would appear, were not genuine transactions.
The second category relates to evidence that, in 2010, Marc Di Cioccio sought to prove ownership of computer goods allegedly stolen from him, in a civil claim against the manager of the building in which he occupied an apartment, by filing at the Victorian Civil and Administrative Tribunal two Mac Spot Pty Ltd tax invoices which contained some information that was incorrect.
Section 97 of the Evidence Act provides:
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
A notice in relation to the VCAT conduct was given on 19 October 2011 and a notice relating to the Dimaggio evidence was given on 21 October 2011. There is no issue in this case about the adequacy or timing of the notices given in compliance with s 97(1)(a). The contest in relation to the satisfaction of s 97 essentially turns on the test in s 97(1)(b).
Even if evidence is admissible under s 97 the prosecution must then satisfy a second requirement, namely s 101(2):
Tendency evidence about an accused … that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Accordingly, the questions to be answered in respect of the proposed evidence is as follows:
(1)Is it evidence that proves a tendency either to act in a particular way or to have a particular state of mind?
(2)Could the evidence alone or with other evidence rationally affect the assessment of the probability of the existence of a fact in issue?
(3)Could it do so to a significant extent?
(4)If yes to the above questions, would the admission of that evidence result in any (unfair) prejudicial effect upon the accused?
(5)If yes, does the (significant) probative value of the tendency evidence substantially outweigh that (unfair) prejudicial effect?
Dimaggio evidence
Dean Dimaggio has only very recently provided a statement to the informant, Detective Leading Senior Constable Homberg. Dimaggio’s evidence is the subject of a Notice of Additional Witness filed 21 October 2011. His evidence was not the subject of any committal proceedings nor has any voir dire taken place before me.
It is common ground that Marc Di Cioccio was, at all relevant times, a director of Mac Spot Pty Ltd and worked at its Elsternwick premises (although not exclusively). Mr Dimaggio says that he was an employee at the Elsternwick Mac Spot business between 2004 and mid to late 2007. The relevant evidence of Mr Dimaggio is brief:
I do recall receiving telephone calls from Andma Legal [the legal practice conducted by Andre Di Cioccio] on at least four occasions and being asked to complete dummy invoices with the amount being invoice already chosen by Marc Di Cioccio. For example, a Mac Spot invoice that was required to reach $20,000 I was instructed by Marc Di Cioccio to just put anything that looked like computer service stuff on those Mac Spot invoices. I cannot recall any other details about these invoices.
…
I do not recall Marc Di Cioccio giving me a reason as to why he wanted me to put anything that looks like computer service stuff on the made up invoices.[1]
[1]Paragraphs 10 and 12 of Dean Dimaggio’s statement.
The Crown has not provided any further details or amplification of that evidence. Any assessment of the probative value of that evidence can only be made as it currently stands.
The Crown’s tendency notice in relation to that evidence says that it is to be used to prove Marc Di Cioccio’s tendency to act in a particular way, namely: that he would create or procure the creation of Mac Spot tax invoices that contained false information.
The facts in issue to which the tendency evidence is said to relate are identified as:
(1)That the accused facilitated the submission to Westpac Banking Corporation Limited of a false Mac Spot tax invoice in order to obtain a financial advantage, and
(2)That the accused knew that the invoice was false.
In my view the Dimaggio evidence is evidence of conduct which may prove that Marc Di Cioccio had a tendency to create or procure the creation of Mac Spot invoices that contained false information. Admittedly the evidence is short on detail, but the relevant essentials are there – that is, that on a number of occasions Marc Di Cioccio directed the production of invoices which equalled a dollar amount yet with details of the actual goods to be concocted by Dimaggio. It may be possible to establish a tendency without the conduct being manifested on many occasions[2], but in any event I regard the evidence of conduct on four occasions, in the circumstances of this case, to be sufficient to demonstrate a tendency.
[2]R v Ford (2009) 201 A Crim R 451, 467 [45].
But is it a tendency that has significant probative value?
Probative value of evidence is defined in the Dictionary to the Evidence Act 2008 (Vic) to mean the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The adjective “significant” requires that the evidence rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. This has been held to mean that something more than mere relevance must be demonstrated, although something less than a substantial degree of relevance. It is a degree of relevance which is “important” or “of consequence”.[3]
[3]R v Ford (2009) 201 A Crim R 451, 468 [51]; R v PWD (2010) 205 A Crim R 75, 88 [66].
The evidence need not show a tendency to commit acts that are closely similar to those that constitute the crime with which the accused is charged. All that is required is a tendency to act in a particular way.[4]
[4]R v Ford (2009) 201 A Crim R 451, 466 [38].
The means by which tendency evidence may rationally affect the assessment of the existence of a fact has been put succinctly in these terms:
… tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).[5]
[5]Ibid 466 [39], citing Simpson J in R v Cittadini (2008) 189 A Crim R 492, [22]-[23].
The assessment of the probative value of the evidence is to be undertaken by taking the evidence at its highest. Where the tendency evidence is relied upon to found an available inference of a particular kind, the court must approach the assessment of the probative value of that evidence on the basis that such an inference is capable of acceptance by a jury without assessing the competing explanations which may be advanced for the accused’s conduct.[6]
[6]R v Suman Sood [2007] NSWCCA 214, [38]-[40]; R v Ford (2009) 201 A Crim R 451, 467-468 [48]-[49].
It follows from these principles that there must be demonstrated a logical connection between the evidence sought to be adduced and the probability of the existence of a fact in issue. This requires one to pay attention to what are the facts in issue of which the tendency evidence is said to be probative. In this case, as I have said, the relevant facts in issue are whether Marc Di Cioccio did facilitate the submission to Westpac of the false tax invoices and, if so, whether he did so knowing that the tax invoices were false.
The Crown does not specifically allege, either in the indictment or in the prosecution opening, any particulars of the alleged facilitation on the part of Marc Di Cioccio. However, the creation or procuring of the false invoices to accompany the loan application to Westpac could well be regarded as the facilitation of their submission to Westpac.
In my view a jury could – in the sense of it being open to them to do so – rationally reason that because Marc Di Cioccio has procured the creation of false Mac Spot invoices on a number of occasions in the past, knowing (by necessary inference) that they were false, he is more likely to have done so on the occasions the subject of the charged offences also knowing that they were false.
The next question, therefore, is whether the tendency evidence could rationally affect the assessment of the probability of the facts in issue to a significant extent. In my view it can.
The conduct which Mr Dimaggio says took place is very closely aligned to the conduct that must have taken place in connection with the charged offences. Both concern the creation of Mac Spot invoices purporting to record a sale of goods which never occurred. The tendency of Marc Di Cioccio to procure the creation of such invoices in the past rationally bears upon the probability that he engaged in the same or similar conduct in connection with the two Westpac loan applications. And if he did engage in the same or similar conduct in relation to the submission of those loan applications then, virtually by necessary inference, he did so with knowledge of the falsity of those invoices.
In my view, the tendency evidence does have significant probative value because of the combination of the number of past occurrences, the evidence of the direct involvement of the accused, the similarities in the manner in which the invoices are said to be false, and the strength of the inference that can be drawn as to the accused’s knowledge of falsity from the manner of his involvement.
The only countervailing factor is the relative lack of detail concerning the four occasions of past conduct – that is, the dates on which they occurred, the amounts on the invoices, and other content on the invoices. It is always possible that an assessment of the probative value of the past events may change once more detail is known about those details but, on the basis of the description of the evidence to date, in my view the evidence satisfies the test in s 97(1)(b).
That then brings me to the question whether the probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused. That of course raises the question whether there is any relevant prejudicial effect. Such prejudice is not made out simply by showing that admission of the evidence might make conviction more likely. Rather, it must be shown that there is a real risk that the evidence will be misused by the jury in some unfair way such as being used in a fashion not logically connected with the issues in the case.[7]
[7]Papakosmas v The Queen [1999] 196 CLR 297, 325 [91]-[92] (McHugh J); R v Ford (2009) 201 A Crim R 451, 469 [56].
It has not been clearly identified on the part of the accused what prejudice might arise if the Dimaggio evidence be allowed to be given. It was suggested that Dimaggio’s evidence will be contested and, thus, the evidence will require a ‘trial within a trial’. That may be so, but that alone is not an indication of relevant prejudice. It is not suggested that the explanation for the uncharged conduct will require the accused to reveal some other criminality which might be prejudicial. As I understand the position, the allegations of Dimaggio are simply denied. Nor is the scope of the relevant Dimaggio evidence, as it currently appears, particularly extensive so it is difficult to see how it might have the capacity to distract the jury in such a way as to produce the risk of any unfairness. It is not for me to speculate on what risks might arise.[8] I can only deal with real, identified risks.
[8]R v Suman Sood [2007] NSWCCA 214, [47].
In the circumstances, and given my views of the relative strength of the probative value of the tendency evidence, at this stage I am persuaded that the probative value of the Dimaggio evidence does substantially outweigh any prejudicial effect it may have on the accused.
VCAT evidence
The Crown intends to adduce evidence from the Registrar of VCAT to prove the nature of the claim Marc Di Cioccio had lodged at VCAT, and the filing of the two invoices with false information in support of the claim. The evidence is summarised in the relevant tendency notice as follows:
On 27 May 2010 the accused filed an application in VCAT.
In the said application the accused alleged that the third respondent to the application, Victoria Point Docklands Real Estate Pty Ltd, mistakenly issued a security fob to Tony Nguyen thereby enabling Nguyen to enter the accused’s apartment and steal and/or cause damage to the accused’s belongings.
The accused sought damages in the sum of $76,579.
On 19 October 2010, in an attempt to prove ownership of some of the items the accused alleged were stolen, the accused faxed to VCAT Registry Mac Spot invoices MSID7564 and MSID13055.
Mac Spot tax invoice MSID13055 is dated 1 September 2006 and billed to Marc Di Cioccio of 55 Morang Avenue, Lower Templestowe to the value of $2,699.
Mac Spot invoice MSID7564 is dated Sunday 14 December 2003 and billed to Andma Legal Pty Ltd of Level 7, 84 William Street, Melbourne to the value of $823.90.
On each of the Mac Spot invoices the ABN 44 130 862 369 appears. That ABN is registered to I-Stuff Pty Ltd. I-Stuff Pty Ltd was not registered as a company at the date of the invoices.
Level 7, 84 William Street, Melbourne was not the address of Andma Legal Pty Ltd on 14 December 2003.
The Mac Spot invoices faxed to the VCAT Registry are false.
It is said that the evidence proves a tendency:
(a)To act in a particular way, namely to facilitate the submission of false Mac Spot invoices in order to obtain a financial advantage; and
(b)To have a particular state of mind, namely that at the time of facilitating the submission of false Mac Spot tax invoices he knew that those invoices were false.
Other than the Registrar’s evidence, the only other evidence in support of the alleged tendency will be the invoices themselves, and ASIC extracts to prove the incorrect ABN and address details for the relevant companies.
It is important to note what the evidence is not led to prove. The evidence is not led to establish that the goods which are the subject of the invoices were never actually sold to Marc Di Cioccio or Andma Legal Pty Ltd. It is not suggested that the evidence enables the inference that Marc Di Cioccio’s claim for compensation for the goods was a false claim. Nor is it suggested that it proves anything about the person who generated the invoices. The prosecution does not suggest that the evidence goes that far.
However, it is argued by the prosecution that the anachronisms (as to the ABN and the address) on the face of each invoice is “very cogent” evidence that the invoices are “false” and, importantly, that the accused knew that they were false.
I disagree. The evidence may establish that the invoices were inaccurate in certain particulars, but not in any way that rationally points to the probability that the invoices were, or could be used by, Marc Di Cioccio in order to obtain a financial advantage, knowing they were false. The evidence falls some distance short of that mark.
Posing the first relevant inquiry, if the evidence establishes any tendency at all (which may be doubted), what tendency can it prove? In my view it can prove no more than a tendency to submit an invoice, to another person, that is inaccurate in some particular, without any bearing one way or the other on the accused’s knowledge of such inaccuracy. Such a tendency has no capacity to rationally affect the probability that Marc Di Cioccio facilitated the submission of a false invoice to Westpac to obtain a financial advantage with the relevant state of mind.
The words “to obtain a financial advantage” in my view are an important qualification on the asserted tendency which in turn, shows why the respect in which the invoice might be inaccurate is of some importance. Unlike the “dummy” invoices the subject of the Dimaggio evidence, the VCAT invoices were not false in the sense of misrepresenting that goods were sold, or sold for a particular value. The respect in which the VCAT invoices are said to be wrong does not immediately signify a purpose to obtain a financial advantage. It is entirely neutral on that issue.
Still less does the mere submission of inaccurate invoices connote a tendency to know, at the time of submitting “false Mac Spot invoices”, that they were false.
There are some other observations to be made in relation to the VCAT evidence which bear upon its probative value.
Firstly, it is evidence of conduct which is more than 3 years distant from the charged offence – the greater the gap in time, the less cogent must be the capacity of the tendency to prove the fact in issue.
Second, it is evidence of conduct that post-dates the charged conduct. Whilst that alone may not be an obstacle in principle to such evidence being accepted as having significant probative value, in my view it introduces some complications to the reasoning process which undermines its capacity to rationally affect the probability of the existence of the facts in issue. It requires one to reason retrospectively from the tendency to the charged offence, which introduces the scope for intervening events and knowledge on the part of the accused to distort or otherwise taint the logical connection between the tendency and the fact to be proven.
Third, although two invoices were involved, it really only amounts to a single occasion. Single-occasion conduct must logically comprise the lowest base from which to establish any tendency.
Fourth, the conduct itself is sufficiently dissimilar to the charged conduct so as to lose some of the “distinctive” flavour possessed by clearly probative tendency evidence.[9] Viewed another way, in order to embrace the accused’s conduct at VCAT as evidence of tendency with the semblance of relevance, the prosecution has been forced to express the tendency in such a general way (simply employing the language of the offence itself) that it diminishes its capacity to prove the facts in issue. The more generally a tendency is stated the less likely it is to have significant probative value.[10]
[9]CGL v DPP (2010) 24 VR 486, 497 [40].
[10]R v Ford (2009) 201 A Crim R 451, 468 [53]; R v PWD (2010) 205 A Crim R 75, 88 [67], CGL v DPP (2010) 24 VR 486, 497 [40].
In my view there are several obstacles to the VCAT evidence being admitted:
(a)It is doubtful that it amounts to evidence of a tendency;
(b)The asserted tendency is not probative of a fact in issue; and
(c)Even if it is, it does not have significant probative value.
In the circumstances it is unnecessary that I analyse whether its probative value substantially outweighs any prejudicial effect.
Conclusion
For the reasons I have stated I allow the admission of the Dimaggio evidence the subject of the tendency notice filed 21 October 2011. My ruling is, of course, subject to any further ruling once more detail of the proposed evidence is revealed.
I disallow the admission of the VCAT evidence the subject of the tendency notice filed 19 October 2011.