R v Gould (No 1)

[2019] NSWDC 688

District Court

New South Wales

Medium Neutral Citation:	R v Gould (No 1) [2019] NSWDC 688
Hearing dates:	21-25 October 2019
Date of orders:	28 October 2019
Decision date:	28 October 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [1]
Catchwords:	EVIDENCE – documents obtained from Cayman Islands – whether obtained by reason of an impropriety – documents produced pursuant to treaty
Legislation Cited:	Crimes Act 1914 (Cth) s 43 Evidence Act 1995 (NSW) s 138 Income Tax Assessment Act 1997 (Cth) s 166 Mutual Assistance in Criminal Matters Act 1987 (Cth)
Cases Cited:	DPP v Carr [2002] NSWSC 194 Esso Australia Resources Limited v Plowman (1994) 183 CLR 10 Hua Wang Bank Berhard v Federal Commissioner of Taxation (No 7) (2013) 217 FCR 1 Hua Wang Bank Berhard v Federal Commissioner of Taxation [2014] FCA 1392 Parker v Comptroller-General of Customs (2009) 83 ALJR 494 Ryan v State of Victoria [2015] VSCA 353
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	Regina (Crown) Vanda Gould (Accused)
Representation:	Counsel: J Single SC, T Epstein and M Rabsch (Crown) C Smith SC and W de Mars (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Webb Henderson (Accused)
File Number(s):	2016/00278181
Publication restriction:	Publication restricted pending the completion of the trial

Ruling

1. On 28 October 2019, I made the following evidentiary ruling that: the documents produced by the Cayman Islands Information Tax Authority (“the CITIA”) are admissible in this trial.

Findings

2. The ruling above was based upon the following findings

1. that the Cayman Islands documents (“the Disputed Documents”) were not obtained improperly or in consequence of an impropriety; and

2. irrespective of (a), that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way in which the evidence was obtained.

Reasons

3. The Accused stands trial in the District Court on the following count:

“That he, between 1 January 2012 and 20 November 2013, at Sydney in the State of New South Wales and elsewhere, attempted to pervert the course of justice in relation to a judicial power, namely Federal Court proceedings between Hua Wang Bank Berhad, Chemical Trustee Limited, Bywater Investment Limited, Southgate Investment Funds Limited and the Commissioner of Taxation, being a judicial power of the Commonwealth.”

4. Objection was taken by the Accused to the Crown relying upon the Disputed Documents. The Disputed Documents were marked Exhibit A on the Voir Dire.

5. The question of admissibility was determined based on oral evidence, as well as on the following exhibits and by reference to the documents marked for identification as follows:

1. the oral evidence of Matthew Evans on 21 October 2019 (T43-T74), 22 October 2019 (T78-T99) and 23 October 2019 (T168-T206);

2. the oral evidence of Lenore Richards on 24 October 2019 (T218-T254);

3. Exhibit A: the Disputed Documents;

4. Exhibit B: Statement of Celestine Wang dated 8 September 2015;

5. Exhibit C: Agreement between Australia and Cayman Islands on the exchange of information with respect to taxes (“the TIEA”);

6. Exhibit D: Affidavit of Lenore Patricia…