R v Fischetti (No. 1)

[2016] ACTSC 104

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

 R v Fischetti (No. 1)

Citation:

[2016] ACTSC 104

Hearing Dates:

11 May 2016, 12 May 2016

DecisionDates:

12 May 2016, 18 May 2016

Before:

Robinson AJ

Decision:

The application to discharge the jury is dismissed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application to discharge jury – whether any prejudice will flow to the accused from Crown opening

Parties:

The Queen (Crown)

Frank John Fischetti (Accused)

Representation:

Counsel

Ms M Jones (Crown)

Mr R McCrudden (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Macquarie Lawyers Burwood (Accused)

File Number(s):

SCC 95 of 2015

ROBINSON AJ:

On the further application to discharge the jury

1. The accused applied on the 25^th hearing day of the trial to discharge the jury. That application was based upon the Crown Prosecutor’s opening remarks to the jury. I heard the application on 11 and 12 May 2016.

1. On 12 May 2016, I dismissed the application. I did not give reasons at that time.

Reasons

1. The accused faces 12 counts but it is only necessary to set out one count to place the application in context.

1. Count 1 alleges that between 20 November 2013 and 15 December 2013 the accused, by deception, dishonestly obtained property, namely $80,000.00 belonging to Catherall Pty Ltd with the intention of permanently depriving Catherall Pty Ltd of that property.

1. In very general terms, Mr Catherall arranged for $80,000.00 of his company’s money to be transferred on 13 or 14 December 2013 to a bank account controlled by the accused in relation to a “project at Sorrento”.

1. In her opening to the jury, the Crown Prosecutor said, on this count, that there was, in fact, no genuine project at Sorrento. The flavour of her opening, on this point, can be indicated by the following:-

(T83)

“But the prosecution case is that the money was used – well, that it certainly wasn’t used on the Sorrento project, and the prosecution case is that there was no Sorrento project”.

(T84)

“The Crown case is that the money was dissipated in 4 days. It’s not used on the Sorrento project. There is no Sorrento project. That was a lie by the accused.”

1. Mr Catherall gave evidence (T202-T205) that he was told by the accused, amongst other matters:

(a)Of the existence of the property at Sorrento;

(b)That the accused was looking to purchase it;

(c)After the purchase, the accused would subdivide it;

(d)After the subdivision, it would be sold to a builder;

(e)That the particular builder had already been organised;

(f)That the vendor was a rich man who wanted to get rid of the property;

(g)That the three blocks of land could be subdivided into six or nine and would sell for $2 million each so that the builder would make money; and

(h)A real estate agent was not going to be involved. 

1. It is the Crown case that after these representations were made, Martin Green then made the final arrangements as to the amount to be invested and organised the signing of some material documentation describing the “Sorrento project”. This was done, on the Crown case, by Mr Green on behalf of the accused. The transfer of funds was made only after documents were signed. Various emails also evidence the evolution of the transaction.

1. It is these above matters which the Crown relies upon to support the charge and there is evidence capable of acceptance by the jury to show that the necessary deception required in respect of the charge can be made out.

1. However, there is now a body of evidence tendered in the case which, if accepted by the jury, demonstrates that there was, in fact, “a Sorrento project” in existence as at the critical date of 13 or 14 December 2013. It may be accepted that even if the jury conclude that there was a Sorrento project in existence as at 13 or 14 December 2013, that will not necessarily mean that the count will fail. Counsel for the accused submitted that there is ongoing prejudice caused by the Crown Prosecutor’s remarks in stating there was no “Sorrento project” and it was a “lie”.

1. Counsel for the accused drew particular attention to the characterisation of the position as a “lie”. I am not sure that, in the circumstances, that characterisation in an opening will have such an impact upon the jury in the light of the charges, the evidence and the fact that the trial has gone on for so long. All the 12 counts involve dishonesty. The first count necessarily involves making representations which are allegedly deceptive and dishonest and are made to obtain someone else’s property.

1. I interpolate to record that there is a related complication to the introduction of this body of evidence concerning the “Sorrento project”. It is that the attempt to raise the mortgage finance to acquire the Sorrento property may, itself, involve further criminal conduct by the submission of a fraudulent application for that finance. Directions may need to be given to how this evidence can be used and for what purpose.

1. The second matter relied upon by the accused, in seeking a discharge of the jury, concerned the circumstance that the Crown opened on the fact that Mr Catherall was shown by the accused a contract for the purchase of a boat having the value of $3.9 million together with a glossy brochure showing the boat in some detail.

1. At T73, the Crown opened that the contract for the boat “was part of a ruse to reel Mr Catherall in to believe that the accused was wealthy”.

Further, at T87, the Crown opened:

“So deception by which the Crown puts its case in relation to the $80,000.00 includes the following. First of all, the in effect, grooming of the – of Mr Catherall by the accused. I’ve got a boat: I’ve bought a boat for $3.9 mill. I’m a businessman with business in Canberra. But the more immediate deception the Crown would refer to, are that the accused is organising a deal in Sorrento, that he was in contact with the vendor, that he had a buyer lined up and was bypassing a real estate agent, that the land was going to be subdivided into 6 then 9, that the money that Mr Catherall would give him would be used for a deposit and that Mr Catherall’s money would be returned within 60 days of settlement,  whichever was the earliest with a 50% return rate after two months.”

1. In her opening address, counsel for the Crown submitted that there was a causal link between the boat and the decision by Mr Catherall to pay away sums of money to the accused and, in particular, to the “Sorrento project”.

1. The contract of purchase of the boat and the brochure were not tendered in evidence when Mr Catherall was first called at the commencement of the trial to give evidence. Mr Catherall described, in the witness box, the contents of the contract and brochure he said he saw when the accused had brought the document to his Copyqik shop for scanning into an email and a conversation concerning the contents developed between himself and the accused.

1. On day 23 of the trial, Mr Catherall was recalled to give evidence. He gave evidence of his further search for the actual document. He produced a contract for the purchase of the boat and brochure which was admitted into evidence as Exhibit 90. That contract for the purchase of the boat was attached to an email dated 9 March 2011. It was on this day that Mr Catherall had seen the contract. This was contrary to the Crown’s opening that the date that Mr Catherall saw the contract was in 2013 and hence being more closely connected temporally to the offences.

1. In cross-examination, on this latter occasion, Mr Catherall was asked the following:-

“This is dated 9 March 2011? ---- Yes.”

“Thank you, and while it captured your attention at the time, being a very expensive boat, and lots of pictures in it, it had nothing to do with you handing over money, did it? ---- No”

1. Counsel for the accused drew attention to the convergence of the Sorrento matter and the contract for the purchase of the boat as set out in paragraph 14 above.

1. I do not regard either of these matters, or the two matters taken together, as requiring the discharge of the jury. It will, of course, be necessary to take account of the new evidential position but I do not see that any true prejudice will flow to the accused from the opening which cannot be addressed by directions, if not cured by counsel’s addresses.

1. There will be occasions where what is said in opening by the Crown is not matched by the evidence adduced and which will create irremediable prejudice. This is not such a case.

1. I have also reiterated to the jury the limited purpose of the Crown opening and informed them that they will, in their deliberations, act upon the actual evidence and not the anticipated evidence. Further directions will be dictated by the course of the trial.

1. I dismissed the application for the discharge of the jury for the above reasons.

I certify that the preceding twenty three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.

Associate:

Date: