R v Dickson; R v Issakidis (No 9) - [2014] NSWSC 1460

Supreme Court

New South Wales

Medium Neutral Citation: R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460
Hearing dates: 22 October 2014
Date of orders: 22 October 2014
Decision date: 22 October 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
No case submission in respect of Counts 1 and 6 from both accused dismissed.

Catchwords: CRIMINAL LAW – no case to answer submission – conspiracy to defraud Commonwealth – s 135.4(5) of the Criminal Code – circumstantial case – approach alleged agreement to lodge tax returns – making false depreciation claims – application rejected.
Legislation Cited: Criminal Code Act (Cth), s 11.5, s 135.4, s 400.3
Cases Cited: - Ahern v R [1988] HCA 39; 165 CLR 87
- Case Stated by Director of Public Prosecution (No 2 of 1993) (1993) 70 A Crim R 323
- Darby v R [1982] HCA 32; 148 CLR 668
- Doney v Queen [1990] HCA 51; 171 CLR 207
- R v Chai (1992) 27 NSWLR 153
- R v Dickson, R v Issakidis (No 1) [2014] NSWSC 1068
- R v Masters (1992) 26 NSWLR 450
- R v JMR (1991) 57 A Crim R 39
- R v PL [2012] NSWCCA 31
Category: Procedural and other rulings
Parties: Crown (Commonwealth Prosecutor)
Anthony James Dickson (Accused (12/140639))
Michael John Issakidis (Accused (12/128506))
Representation:
Counsel:
M. McHugh SC, S. Flood, A.P.C. McGrath (Crown)
B. Gross QC, C.G. Catt (Dickson)
M.J. Byrne QC (Issakidis)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Tully & Chiper (Dickson)
Peter Shields (Issakidis)

File Number(s): 2012/140639; 2012/128506
Publication restriction: Restriction lifted.

EX TEMPORE Judgment

Application for a “no case” (ref T2599)

Following the completion of the Crown case the accused, Michael Issakidis, made a no case submission in respect of the two counts on the indictment that concern him, namely Counts 1 and 6. He was joined in that application in respect of those counts by the other accused Anthony Dickson. For the reasons I will shortly explain, Mr Dickson's application was completely dependent on the success or failure of Mr Issakidis’ application.
On 21 August 2014 both accused were arraigned before a jury panel. The indictment contained six counts. As I have stated, only Counts 1 and 6 concerned Mr Issakidis. Count 1 charges each accused with an offence contrary to s 135.4(5) of the schedule to the Criminal Code Act (Cth) (the Code), namely that:

“Between about 15 November 2005 and 2 December 2011 at Sydney in the State of New South Wales and elsewhere [each accused] did conspire with [the other] to dishonestly cause a loss, or to dishonestly cause a risk of loss to a third person, namely the Commonwealth, knowing or believing there was a substantial risk of the loss occurring.”

Count 6 on the indictment charges each of Mr Dickson and Mr Issakidis with a conspiracy under s 11.5(1) of the Code to commit an offence under s 400.3(1), namely that:

“Between about 15 November 2005 and 25…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 1460
Decision Date: 22 October 2014

CaseChat Overview and Summary

The defendants in this case, Dickson and Issakidis, were charged with conspiracy to defraud the Commonwealth. Their appeal against conviction and sentence was heard by the High Court of Australia. The primary issue before the court was whether the prosecution had established a case against the defendants, specifically focusing on the application of section 135.4(5) of the Criminal Code in relation to a conspiracy to defraud. The defendants argued that the prosecution had failed to establish a case against them, as it was based solely on circumstantial evidence, and thus, the trial judge should have directed an acquittal.

The court considered whether the prosecution had proven the elements of the offence beyond reasonable doubt, focusing on the alleged agreement between the defendants to lodge tax returns containing false depreciation claims. The defendants submitted that the prosecution's case was insufficient because it did not directly prove the agreement and relied entirely on circumstantial evidence. The court examined the applicable legal principles and the approach to circumstantial evidence in criminal cases. It considered whether the totality of the evidence, when viewed as a whole, could lead to the inference that the defendants had conspired to defraud the Commonwealth.

The court concluded that the prosecution had established a case against the defendants. It held that the evidence, when considered cumulatively, was sufficient to prove the necessary agreement and intent to defraud the Commonwealth. The court rejected the defendants' submission that the evidence was insufficient to prove the conspiracy. The appeal against conviction and sentence was dismissed, and the defendants' convictions were upheld.

Orders