R v Macdonald; R v Maitland (No2)
[2017] NSWSC 721
•30 January 2017
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Macdonald; R v Maitland (No2) [2017] NSWSC 721 Hearing dates: 30 January 2017 Decision date: 30 January 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Document 56-0260 rejected.
Catchwords: EVIDENCE – admissibility – relevance – establishing provenance of an undated document – wording of summons to produce insufficient to indicate date of document – risk of unfair prejudice insufficiently ameliorated
Category: Procedural rulings Parties: Regina
Ian Macdonald (Accused)
John Maitland (Accused)Representation: Counsel:
Solicitors:
M McHugh SC/P English (Crown)
M Johnston SC (Accused Macdonald)
D Jordan SC/ES Kerkyasharian (Accused Maitland)
Solicitor for Public Prosecutions (Crown)
Horton Rhodes Lawyers (Accused Macdonald)
Bob Whyman Solicitor (Accused Maitland)
File Number(s): 2015/59940; 2015/59990
Judgment: EX TEMPORE
Introduction
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Objection is taken by both accused to document 56-0260, which is a “with compliments” slip of ResCo Services Pty Ltd of which the accused, Mr Maitland, was relevantly a director.
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It appears, on the basis of the statement dated 17 February 2016 of Adam Griffiths, an investigator employed by the Independent Commission Against Corruption (ICAC), that the “with compliments” slip was attached to two pieces of correspondence between the accused Mr Macdonald and Peter Murray, the General Secretary of the CFMEU Mining and Energy Division, dated 6 September 2007 and 8 August 2007 respectively. Neither of these documents is the subject of objection.
The parties’ submissions
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The three documents (the slip and the two letters) are relied on by the Crown in support of its case that there was a strategy between the two accused to obtain letters of support for the training mine at Doyles Creek and that, as part of the implementation of that strategy, Mr Maitland approached certain people for support and that those people wrote to Mr Macdonald, the then Minister, to provide evidence of their support.
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The relevance of the “with compliments” slip to the Crown case against Mr Maitland is that it is said to be evidence that ResCo Services Pty Ltd (of which Mr Maitland was a director), who was neither the sender or the recipient of either of those pieces of correspondence, was in possession of those two pieces of correspondence and that they were relevant to the Doyles Creek Mine since the “with compliments” slip was endorsed by hand as follows:
“James-
For the Doyles Creek files.
Stacey”
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The Crown contends that “James” is a reference to James Stevenson, a solicitor with Sparke Helmore, which produced the three documents, and that “Stacey” is a reference to Stacey Noonan who was an employee of ResCo Services Pty Ltd and later became its company secretary.
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The relevance of the “with compliments” slip against the accused Mr Macdonald is that correspondence, to which he was a party, somehow found its way into the possession of ResCo Services Pty Ltd, which is relied on by the Crown in support of its case that there was a strategy between Mr Maitland and Mr Macdonald.
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The objections are taken on the basis of relevance by Mr Johnston SC who appears on behalf of Mr Macdonald; and also by Mr Jordan SC, who appears with Mr Kerkyasharian, on behalf of Mr Maitland. Both counsel also rely on the fact that the “with compliments” slip is undated and contend that its lack of date carries with it a risk of unfair prejudice. They submit that if the slip post-dated the events the subject of the indictment, then it is irrelevant and, if admitted, the evidence of the slip carries with it the prejudice that it will appear that the strategy was being implemented by Mr Maitland and Mr Macdonald at a relevant time, which would be quite unfair if the documents were provided after the relevant events.
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In response, the Crown relies on a summons to produce issued by ICAC dated 1 March 2012, which, relevantly, seeks documents and records relating to the application for a training mine at Doyles Creek and the granting of the exploration licence to ResCo Services Pty Ltd or another entity. It contends that this is sufficient to make the document relevant.
Consideration
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The material indicating the date of the “with compliments” slip is rather sparse. The summons to produce relied on by the Crown does not seek documents which are limited in time to those created prior to the application or the grant of the exploration licence. It is well established that the words "relating to" are words of considerable width. Accordingly, I do not read the summons as limiting the time of the “with compliments” slip. If the Crown could establish that the “with compliments” slip was dated or that the documents were received by Sparke Helmore at a material time, then I consider that any risk of unfair prejudice would be sufficiently ameliorated, but I am not presently so satisfied.
Ruling
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Accordingly, on that basis, document 56-0260 is rejected as against both accused.
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Amendments
30 March 2023 - Publication restriction removed – judgment republished
Decision last updated: 30 March 2023
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