R v Issakidis

[2016] NSWSC 747

Supreme Court

New South Wales

Medium Neutral Citation:	R v Issakidis [2016] NSWSC 747
Hearing dates:	16-18 March 2016, 21-24 March 2016, 29-31 March 2016, 4 April 2016, 7 & 8 April 2016, 11-15 April 2016, 18-22 April 2016, 26 April 2016, 28 April 2016, 2-6 May 2016, 8-13 May 2016, 16-20 May 2016, 23-27 May 2016, 30 May 2016.
Date of orders:	16 May 2016
Decision date:	16 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Pursuant to s 136 of the Evidence Act 2005 (NSW) the use of the document at page 513A of Exhibit A be restricted to evidence of Mr Dickson’s state of mind and what he proposed to discuss with the accused.
Catchwords:	EVIDENCE – conspiracy – whether handwritten note of alleged co-conspirator admissible to prove accused’s involvement in conspiracy – Ahern v R – use of evidence restricted – discretion to exclude – whether admissible to prove what was discussed with the accused – use of document restricted.
Legislation Cited:	Evidence Act 2005 (NSW) – s 136
Cases Cited:	- Ahern v R [1988] HCA 39, 165 CLR 87 - R v Dickson, R v Issakidis (Number 9) [2014] NSWSC 1460 - R v Masters, R v Richards, R v Wunderlich (1992) 26 NSWLR 450
Category:	Procedural and other rulings
Parties:	Crown (Commonwealth Prosecutor) Michael John Issakidis (Accused)
Representation:	Counsel: M. McHugh SC, A.P.C. McGrath (Crown) Michael Byrne QC (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Peter Shields Lawyers (Accused)
File Number(s):	2012/128506
Publication restriction:	Nil

EX TEMPORE Judgment (revised from transcript)

1. The point has been reached in the trial where the evidence is closed and the Crown Prosecutor is about to commence his address. The only remaining issue before addresses commence is what use can be made of a handwritten file note of the alleged co-conspirator, Mr Anthony Dickson, which appears to bear the date Friday, 1 September 2006.

2. The Crown Prosecutor has indicated that in his address he will make reference to the document on two bases, the first as a document indicating what Mr Dickson proposed to discuss with the accused on Saturday 2 September 2006, and the other as an implicit statement by the alleged co-conspirator, Mr Dickson, of Mr Issakidis' involvement in the conspiracy alleged, which is said to be admissible to prove that fact in accordance with in Ahern v R [1988] HCA 39, 165 CLR 87 at 100 (“Ahern”).

3. It is necessary to say something further about the note. Written at the top of the note are the words “Friday 1 September”. It is common ground that is or could at least be concluded to be a reference to, Friday 1 September 2006. The next few lines of the note refer to a topic that was clearly of mutual interest to both Mr Dickson and Mr Issakidis which is peripheral to the core allegation of the Crown, namely the so-called “Mega Bac” technology. Next on the left hand side of the page are the words: “Discussion Zac Saturday”. Adjacent to that are a series of diagrams which the Crown contends, and which the inference is open, depicts a flow of money from the ANZ Trusts through NeuMedix Health Australia Pty Limited into an account in the Cayman Islands, then to an entity marked “Dampier” with an amount, then with an arrow then pointing to “Zac” with the number “3.18” next to it.

4. The Crown contends, and I accept that the inference is open, that that diagram is capable of showing a flow of funds out of the financing deal set up by the ANZ, by NHA and ultimately back, at least in part, to a person named Zac who the evidence is capable of identifying as the accused.

5. After this, there is the topic heading "option agreement to buy patent application" and a number of matters addressed in that. At the bottom of the note are the words “to do weekend”. Four matters are listed and then crossed out.

Ahern Basis

6. In R v Dickson, R v Issakidis (Number 9) [2014] NSWSC 1460, at [7]-[14], I discussed the decision in Ahern in the context of a no case submission at a previous trial of these charges. The principle in Ahern allows evidence in the form of acts done or words uttered outside the presence of the accused by an alleged co-conspirator to be admissible to prove the participation of that accused in a conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by that participant were in furtherance of a common purpose and there is reasonable evidence, apart from the actual words, that the accused was a participant in the conspiracy.

7. No issue has been taken on this application that there is not reasonable evidence in the sense discussed in Ahern of the participation of the accused in the conspiracy.

8. Further, the other two conditions for the application of Ahern appear to be satisfied in respect of the document, at least so far as it is to be asserted that it involves a representation by Mr Dickson that Mr Issakidis is already a participant in a conspiracy.

9. However, even if strictly speaking the pre-conditions to the use of a statement by a co-conspirator in a matter stated in Ahern are made out, there exists a discretion in the trial Judge to reject the use of the evidence for that purpose (see R v Masters, R v Richards, R v Wunderlich (1992) 26 NSWLR 450, especially at 466; “Masters”). In Masters at 466 it was held that this discretion:

“[s]hould be exercised in the same way as the usual discretion to exclude confessional and other evidence where its use against the accused would result in an unfair trial for the accused.”

10. In the period post the Evidence Act1995 (NSW) the existence of this discretion is found in s 135 and s 137, but the principles discussed in the pre-Evidence Act cases concerning conspiracy generally inform the exercise of those powers.

11. The difficulty in using this note on the Ahern basis, that is, as an implicit representation by Mr Dickson that Mr Issakidis was already involved in the conspiracy, is the equivocal nature of its contents.

12. The juxtaposition of the words “discussed Zac Saturday” with the arrow pointed to his name and a sum of money, in my view is capable of supporting an inference that Mr Dickson's intention was to discuss at least that topic with him on the day after this note. However, the note in my view is wholly equivocal about whether Mr Dickson is asserting by this note that Mr Issakidis had any knowledge of these matters at the time he wrote the note. The note is equally capable of supporting an assertion by Mr Dickson that at the time the note was written Mr Issakidis did not have knowledge of the likely intended cash flow from the ANZ transactions.

13. In my view, to allow the Crown to address this document on the basis that it involves an assertion by Mr Dickson that Mr Issakidis is already a participant in this conspiracy and to include a direction to that effect in the summing-up would be unfair and is not warranted. Thus, I will restrict the use of this document so that it cannot be used as evidence of an implied representation by Mr Dickson that Mr Issakidis is already a participant in a conspiracy.

Evidence of what Mr Dickson intended to discuss

14. The Crown also sought to address the jury on this document as evidence of what Mr Dickson intended to discuss and therefore, did discuss with Mr Issakidis in the meeting on Saturday, 2 September 2006. During the course of Mr Issakidis' cross-examination the contents of the note were put to him as the record of what Mr Dickson raised with him. Mr Issakidis rejected this suggestion.

15. In considering this it is to be remembered that the document has already been admitted by consent and cross-examined upon. Nevertheless, Senior Counsel for Mr Issakidis, Mr Byrne QC, submitted that it would be unfair to allow the Crown to rely upon this document as a note by Mr Dickson of what he intended to discuss and therefore was likely to discuss with Mr Issakidis.

16. Mr Byrne QC pointed to the other matters which were of great interest to both Mr Dickson and Mr Issakidis and which are of an innocent nature that are referred to in the note. He referred to the likely possibility it was those matters that were discussed with Mr Issakidis and not the note concerning the distribution of cash.

17. However in my view, particularly bearing in mind the juxtaposition between the phrase “discussed Zac Saturday” and the fact that one part of the note at least is open to be concluded as setting out a proposal to distribute a large sum of money to Mr Issakidis, I consider the inference is fairly open from the document that Mr Dickson was intending to discuss that matter with Mr Issakidis and did so.

18. Further, provided that the note is only addressed upon in that matter, I do not consider that there is any potential prejudice to Mr Issakidis. As stated, Mr Issakidis was cross-examined about it and was able to give his emphatic response to the suggestion that the distribution of cash was discussed. Further, it will be open to his counsel, if he so wishes, to address the jury on a number of the competing inferences that mean that no conclusion to the effect sought by the Crown can be drawn.

19. Accordingly, under s 136 of the Evidence Act I order that the use of the document at page 513A of Exhibit A be restricted to evidence of Mr Dickson’s state of mind and of what he proposed to discuss with the accused.

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Decision last updated: 09 June 2016