R v Milne (No 1) - [2010] NSWSC 932

CITATION: R (Cth) v Milne (No. 1) [2010] NSWSC 932

HEARING DATE(S): 29 July 2010, 30 July 2010, 4 August 2010

JUDGMENT DATE :
19 August 2010

JUDGMENT OF: Johnson J at 1

DECISION: 1. The application by the Accused for a permanent stay of the prosecution on the present indictment is refused.
2. The application to admit into evidence the report dated 3 June 2010 of Shaun Evan Mark is declined. The Crown will be heard further with respect to any evidence of Mr Mark which the Crown seeks to tender.
3. The application to exclude from evidence any part of the affidavit of Wim Langeveld sworn 20 November 2009, the affidavit of Claudio Pfammetter sworn 9 December 2009 or the affidavit of Vladimir Stemberger sworn 21 January 2010 is declined.
4. The application to exclude from evidence any of the documents tendered by the Crown under the Foreign Evidence Act 1994 (Cth) is declined.
5. The application to direct the Crown to call as witnesses any of the persons specified by the Accused in notices issued for this purpose is declined.
6. The evidence identified in paragraphs 7(a) and (c) of the Further Amended Notice of Motion is admissible under s.55 and s.56 Evidence Act 1995 and the application to exclude that evidence under s.135 or s.137 Evidence Act 1995 is declined.

CATCHWORDS: CRIMINAL LAW - pretrial rulings - indictment alleging money laundering and dishonest obtaining offences - s.400.3(1) and s.135(1) Criminal Code Act 1995 (Cth) - application for permanent stay upon grounds of abuse of process - stay refused - Crown seeks to tender expert report of accountant/financial analyst - objection to tender on various grounds - tender of report rejected - Crown to rely upon documents under Foreign Evidence Act 1994 (Cth) - objection to tender on various grounds - objections overruled - application by Accused under s.169 Evidence Act 1995 for order that persons attend to give evidence - application refused - objection to certain evidence on grounds of relevance and under ss.135 and 137 Evidence Act 1995 - objection overruled

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Evidence Act 1995
Criminal Procedure Act 1986
Criminal Procedure Amendment (Case Management) Act 2009
Crimes Act 1914 (Cth)
Copyright Act 1968 (Cth)
Crimes Act 1900
Mutual Assistance in Criminal Matters Act 1987 (Cth)
Foreign Evidence Act 1994 (Cth)
Proceeds of Crime Act 2002 (Cth)
Drug Misuse and Trafficking Act 1985
Foreign Evidence Amendment Act 2010 (Cth)
Judiciary Act 1903 (Cth)
Evidence Act 1906 (WA)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Gately v The Queen [2007] HCA 55; 232 CLR 208
Smith v The Queen [1970] HCA 48; 121 CLR 572
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
R v Sam (No. 14) [2009] NSWSC 561
R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Thorn v R [2009] NSWCCA 294
Nahlous v R [2010] NSWCCA 58
R v Jones; R v Hili [2010] NSWCCA 108
The Queen v Carroll [2002] HCA 55; 213 CLR 635
Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328
The Queen v Hoar [1981] HCA 67; 148 CLR 32
R (Cth) v Petroulias (No. 1) [2006] NSWSC 788; 217 FLR 242
R v Langdon [2004] VSCA 205; 11 VR 18
R v Henderson-Drife [2007] VSCA 211
R v King [2007] VSCA 38
R v NOR [2005] VSCA 46; 11 VR 390
R v Orgill [2007] VSCA 236
R v Ansari [2007] NSWCCA 204; 70 NSWLR 89
Ansari v The Queen [2010] HCA 18; 266 ALR 446
R v Foster [2008] QCA 90; (2009) 1 Qd R 53
R v Wing Cheong Li [2010] NSWCCA 125
R v Guo; R v Qian [2010] NSWCCA 170
Kinchela v R [2010] NSWCCA 167
Schembri v R [2010] NSWCCA 149
Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 55 NSWLR 705
Australian Securities and Investment Commission v Rich [2005] NSWCA 152; 218 ALR 764
Haoui v R [2008] NSWCCA 209; 188 A Crim R 331
Harrington-Smith v State of Western Australia (No. 7) (1993) 130 FCR 424
Evans Deacon Pty Limited v Sebel Furniture Limited [2003] FCA 171
Director of Public Prosecutions (NSW) v Tong [2004] NSWSC 689; 151 A Crim R 296
Joam v Minister for Immigration and Multicultural Affairs (2002) FCA 107
R (Cth) v Petroulias (No. 22) [2007] NSWSC 692; 176 A Crim R 309
R v Cox (Ruling No. 1) [2005] VSC 157
R v Cox (Ruling No. 2) [2005] VSC 224
R v Ferguson [2009] VSCA 198
R v Mitchell [1971] VR 46
R v Parker [1912] VLR 152
Caratti v R (2000) 22 WAR 527
R v Rich (Ruling No. 10) [2009] VSC 10
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Director of Public Prosecutions (Cth) v Hart [2005] QCA 51
Gray v Official Trustee in Bankruptcy (1991) 29 FCR 166
Putland v The Queen [2004] HCA 8; 218 CLR 174
Northern Territory of Australia v GPAO [1999] HCA 8; 196 CLR 553
Bell Group Limited (In Liquidation) v Westpac Banking Corporation [2004] WASC 162; 208 ALR 491
R v Basha (1989) 39 A Crim R 337
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
Trimcoll Pty Limited v Deputy Commissioner of Taxation [2007] NSWCA 307
R v Hally (1962) Qd R 214

PARTIES: Regina (Cth) (Crown)
Michael John Milne (Accused)

FILE NUMBER(S): SC 2008/269487; 2008/54586

COUNSEL: Mr P Hastings QC; Mr D Jordan (Crown)
Mr M Wigney SC; Mr M Polden (Accused)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Johnson Winter & Slattery (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

19 August 2010

2008/269487; 2008/54586 Regina (Cth) v Michael John Milne (No. 1)
JUDGMENT (on pretrial applications)

: The Accused, Michael John Milne, has made a number of applications in advance of his trial on an indictment which includes the following counts:

(a) Count 1 - Between about 30 April 2004 and about 30 September 2005 at Sydney in the State of New South Wales and elsewhere [the Accused] dealt with property, intending that the property, namely a parcel of shares, would become an instrument of crime, in that it would be used to facilitate the commission of an offence by Barat Advisory Pty Limited and at the time of the dealing, the value of the property was $1 million or more (s.400.3(1) Criminal Code Act 1995 (Cth) - maximum penalty - 25 years’ imprisonment);

(b) Count 2 - On or about 13 November 2006 at Sydney in the State of New South Wales [the Accused] did, with the intention of dishonestly obtaining a gain from the Commonwealth, cause to be lodged an income tax return in the name of Barat Advisory Pty Limited for the year ending 30 June 2005 containing false information, namely that the net capital gain from the sale of shares in Admerex Limited was $4,597.00 (s.135.1(1) Criminal Code Act 1995 (Cth) - maximum penalty - five years’ imprisonment).

The Pretrial Applications

2 By Further Amended Notice of Motion filed on 30 July 2010, the Accused seeks the following orders:

(a) paragraph 1 - a permanent stay of his trial on an indictment containing both a count under s.400.3(1) (the money laundering charge) and a count under s.135.1(1) Criminal Code Act 1995 (Cth) (the dishonest obtaining charge), on the basis of abuse of process;

(b) paragraphs 2, 4 and 5 - exclusion of certain foreign documentary evidence upon which the Crown proposes to rely, or alternatively, an order that certain witnesses attend for examination concerning aspects of the documents;

(c) paragraph 3 - not pressed;

(d) paragraph 6 - exclusion of evidence contained in the report of Shaun Evan Mark dated 3 June 2010, which is relied upon by the Crown as expert evidence;

(e) paragraph 7 - exclusion of certain evidence upon the basis of irrelevance or, alternatively, in the exercise of discretion under s.135 or s.137 Evidence Act 1995 ;

(h) paragraph 8 - not pressed.

Applicable Statutory Regime for Case Management

3 The present indictment was signed on 3 September 2009. On 4 September 2009, the Accused was arraigned before Howie J on this indictment and a plea of not guilty was entered to each count.

4 It is common ground that the amendments to the Criminal Procedure Act 1986 effected by the Criminal Procedure Amendment (Case Management) Act 2009 do not apply to these proceedings. Those amendments (ss.134-149F) are contained in a Division entitled “Case Management Provisions and Other Provisions to Reduce Delays in Proceedings”. However, those provisions apply only in respect of proceedings in which the indictment was presented or filed on or after the substitution of those provisions on 1 February 2010: Clause 63(1), Schedule 2, Criminal Procedure Act 1986. The pre-existing case management provisions contained in the former ss.134-149 of the Act apply to these proceedings: Clause 63(2), Schedule 2, Criminal Procedure Act 1986.

5 Likewise, the substituted s.130A Criminal Procedure Act 1986 concerning pretrial orders operates only from 1 February 2010: Clause 62, Schedule 2, Criminal Procedure Act 1986. Section 130A does not apply to these proceedings.

6 It is not entirely clear to this point whether a Judge of the Court has expressed satisfaction that this is a complex criminal trial for the purposes of the former s.136 Criminal Procedure Act 1986. If it has not been done expressly, it is clearly implied in the orders which have been made which recognise the nature and complexity of the issues raised in the trial.

7 On 18 February 2010, Hall J made a number of orders, by consent, to progress the case management of the matter. On 1 June 2010, I made orders in preparation for the pretrial hearing. On 2 July 2010, by consent, I varied a number of the orders made by Hall J on 18 February 2010 and by me on 1 June 2010. This process has facilitated the case management of both the pretrial and trial stages with respect to this matter.

Criminal Trials Involving Substantial Documentary Evidence

8 It will be apparent from later parts of this judgment that the trial involves complex share and commercial arrangements in Australia and overseas. The Crown proposes to tender documents which bear upon these topics.

9 A criminal trial in Australia is an accusatorial and adversarial process and is essentially an oral process: Gately v The Queen [2007] HCA 55; 232 CLR 208 at 235 [88]. However, there will be criminal trials involving a substantial volume of documentary evidence where the trial is not essentially an oral process. The courts have recognised the assistance which a jury may derive from the provision of appropriate summary documents, including charts and chronologies: Smith v The Queen [1970] HCA 48; 121 CLR 572 at 577; Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 at 190; R v Sam (No. 14) [2009] NSWSC 561 at [9].

10 In R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462, I said at [64]-[66]:

“64 Courts have observed that the use of charts or chronologies in complicated jury trials is a desirable procedure and is to be encouraged: R v Mitchell [1971] VR 46 at 59-60; Smith v The Queen [1970] 121 CLR 572 at 577. It has been said that the use of written material to assist a jury in understanding, or readily assimilating, the effect of voluminous or complex evidence is also to be encouraged. In an appropriate case, the provision of a chronology is a desirable method of simplifying the task of a jury and of facilitating their deliberations. The jury is entitled to expect that all reasonable steps will be taken towards that desirable goal, especially in trials involving voluminous and/or complex factual evidence: R v Collins (1986) 44 SASR 214 at 249 per Olsson J.

65 A chronology is likely to be selective because it is, in substance, an extract of the dates in chronological order of events referred to in a large number of documents: R v Collins at 234 per Jacobs J. It has been said that there is a tendency, when the use of a chronology is considered, to underestimate the intelligence and commonsense of juries as to whether such material is likely to have an undue or inappropriate impact upon the jury’s thought processes: R v Collins at 249 per Olsson J.

66 In determining to provide a chronology to the jury, I proposed to emphasise that the chronology is not evidence in the trial, but a time line intended to assist the jury’s deliberations to be undertaken by reference to the actual evidence itself. I directed the jury to this effect when the chronology was provided, together with other written material in the jury folder (MFI142) at the commencement of the summing up. I reminded them during the summing up that the chronology was not a substitute for the evidence.”

11 Section 50 Evidence Act 1995 provides for proof of voluminous or complex documents. That provision sits well with the purposes identified in the abovementioned authorities, which have as their focus the provision of practical assistance to a criminal jury so that the jury may understand the evidence for the purpose of the discharge of its fact-finding function. These processes also serve the purpose of promoting efficient use of court time with a jury present, so as to allow the jury to understand the contents of documents, and the inferences which may be drawn from those documents, together with the relevance of those inferences to the elements of the offences charged in the indictment.

12 I will return to these principles later in the judgment. A number of the issues raised for pretrial determination involve, directly or indirectly, considerations of the type referred to in these authorities. Of course, a number of the pretrial applications contend that evidence of certain types should not be admitted at all. However, if that evidence is to be admitted, I will have firmly in mind the effective presentation of evidence which is to be admitted, together with such summary documents, charts, aids and chronologies as will assist the jury in the discharge of its duty at trial.

The Pretrial Hearing

13 The hearing of the pretrial applications proceeded on 29 and 30 July 2010 and 5 August 2010. The Accused was arraigned before me on 29 July 2010 and entered a plea of not guilty to each count on the indictment. The Court’s jurisdiction was engaged for the purpose of the pretrial applications: s.130 Criminal Procedure Act 1986. As already noted, s.130A Criminal Procedure Act 1986 does not apply to these proceedings.

14 The trial of the Accused on this indictment is fixed to commence with a jury on 18 October 2010.

15 No oral evidence was adduced at the pretrial hearing. A number of documents were tendered to allow the Court to understand the parameters of the issues raised by the various applications. Written submissions were provided with oral submissions extending over three hearing days.

16 The transcript of the committal proceedings and statements of witnesses proposed to be called by the Crown were not tendered at the pretrial hearing. Nor (as I understand it) was the totality of the documents proposed to be tendered by the Crown. In raising this, I am not being critical of the parties. Rather, I mention it to emphasise that the rulings sought in advance of trial, on a range of issues, proceed from a limited evidentiary base.

17 A number of the issues raised by the Accused concern the relevance of evidence under ss.55-56 Evidence Act 1995 and the question of the exclusion of evidence, if relevant, under s.135 or s.137 Evidence Act 1995. In some cases, it may be that the trial Judge is in a position in advance of trial to determine, with certainty, whether evidence subject to objection ought be excluded on one of these bases. The present proceedings involve an allegation of elaborate dealings in shares, and associated commercial arrangements, over a period of time. I will do the best I can at this distance from the trial, and utilising the evidence and submissions before the Court at the pretrial hearing, to reach conclusions concerning these areas of objection.

18 These comments are not intended to invite a series of applications where rulings are revisited. Rather, they are intended to convey the limited evidentiary base from which I am working, and the prospect that the evidentiary base may expand between now and the commencement of the trial in a manner which may bear upon, in one way or another, the admissibility of evidence to which objection is being taken.

19 This judgment will determine the permanent stay application based on abuse of process (paragraph 1) and the objection to the evidence of Mr Mark (paragraph 6). In addition, this judgment will consider submissions concerning the foreign documentary evidence relevant to paragraphs 2, 4 and 5 of the Further Amended Notice of Motion. The Court was informed that the Crown is to provide to the Accused an additional statement from Anne Harley, an important Crown witness, which will refer to a number of these documents. I will consider the arguments by reference to statutes and case law addressed by counsel concerning paragraphs 2, 4 and 5, and will determine the objections, although remaining conscious that the provision of a supplementary statement from Ms Harley may affect these issues. Finally, I will determine the objections covered by paragraph 7 of the Further Amended Notice of Motion.

Outline of the Crown Case Against the Accused

20 A lengthy Crown Case Statement dated 4 May 2010 (“CCS”) (Exhibit PTA) was utilised as a foundation for much of the pretrial argument. The CCS was provided in accordance with the orders of Hall J made on 18 February 2010. Helpfully, the CCS identifies areas of agreement (green) and dispute (red), as well as areas not yet agreed upon (yellow).

21 It is useful to provide an overview of the Crown case. The following is drawn from the CCS and written and oral submissions made at the pretrial hearing.

22 At the centre of the Crown case is activity related to dealings with shares in Admerex Limited (“Admerex”). Admerex was previously known as Global Technologies Australia Limited (“GTAL”). GTAL carried on business in the supply of information technology systems to financial institutions. It operated under a South African parent company.

23 Temenos Group AG (“Temenos”) was a Swiss-based international organisation involved in the business of supplying information technology systems to banks and other financial institutions. Mr Kim Goodall was associated with Temenos and, in particular, had a significant shareholding in that company which was of considerable value. Mr Goodall appeared to occupy the effective position of Southeast Asian manager, including overseeing the activities of Temenos in Australia.

24 At the point when (the Crown says) relevant activities commenced, Mr Goodall appeared to be in the process of winding down his active involvement in Temenos, and it seems that the South African parent of GTAL was trying to extricate itself from Australian operations.

25 The Crown alleges that the Accused was introduced to Mr Goodall in about May 2003 and agreements were made in which Temenos injected money into GTAL.

26 The Crown alleges that the Accused achieved something in the nature of a windfall as a result of a series of events which commenced with the acquisition on 21 May 2003, by Clairmont Holdings and Finance Limited (“Clairmont Holdings and Finance”), of a debt of approximately $11 million owed by GTAL for $1.00, payable if and when demanded. Clairmont Holdings and Finance was a company registered in the British Virgin Islands. The Crown alleges that the Accused had a substantial connection with that company and possessed an ability to control and give directions about the activities of Clairmont Holdings and Finance. The Crown alleges that the Accused had an arrangement for control of the activities of Clairmont Holdings and Finance through a Swiss company, Sinitus Treuhand AG (“Sinitus”), a provider of financial services of which Mr Urs Meisterhans was a partner.

27 On 8 July 2003, the Accused was appointed an executive director and acting Chief Executive Officer of GTAL, which then changed its name to Admerex.

28 In or about October 2003, the Accused and Mr Goodall decided to acquire approximately $7.9 million of the debt owed by Admerex to Clairmont Holdings and Finance.

29 On 18 November 2003, Clairmont Holdings and Finance sold $2,236,459.00 of the debt owed by Admerex to another company, Barat Advisory Pty Limited (“Barat Advisory”), for consideration of $1.5 million, which it appears was never paid. The Accused was the sole director and shareholder of Barat Advisory. The Crown alleges that the remainder of the debt which had been owed to Clairmont Holdings and Finance was sold in unequal portions to a company owned by Mr Goodall and to the Accused’s company, Barat Advisory.

30 On 24 November 2003, Mr Goodall was appointed as a director of Admerex, and he continued thereafter to hold that office.

31 On 19 December 2003, Barat Advisory opened a bank account with the Commonwealth Bank of Australia (“the Barat Advisory CBA Account”). This bank account was opened at the direction of the Accused, in his capacity as the sole director and shareholder of Barat Advisory. Barat Advisory operated the Barat Advisory CBA Account during the period from 19 December 2003 to 19 November 2007. The Accused was the only person authorised by Barat Advisory to operate the Barat Advisory CBA Account.

32 In the period from 31 March 2004 until 4 January 2005, Barat Advisory operated a bank account with the St George Bank.

33 On 30 April 2004, whilst the Accused remained in the position of acting CEO of Admerex, an allotment of 55,911,475 shares in Admerex was issued to the Accused's company, Barat Advisory, at a value of four cents per share, to repay the debt of $2,236,459.00 owed by Admerex to Barat Advisory as a result of the earlier actions of the Accused.

34 On 7 January 2005, the Accused resigned as a director of Admerex.

35 The Crown case is that the Accused was then in the position whereby his company, Barat Advisory, had acquired an asset in the form of the Admerex shares with a value of at least $2,236,459.00 in circumstances where Clairmont Holdings and Finance, which was also controlled by the Accused, had acquired the original asset, being the debt of approximately $11 million, at a cost of $1.00. The Accused was then confronted with the problem of liquidating the profit from those transactions without having the proceeds substantially diminished by an obligation to pay tax, particularly capital gains tax.

36 For that purpose, it is alleged that in about May 2004, the Accused approached Anne Harley, a solicitor and partner at Atanaskovic Hartnell. Ms Harley had expertise in taxation law. There had been a solicitor from that firm giving more general advice to the Accused, but Ms Harley became involved shortly before June 2004 in the context of providing the Accused with advice about an overseas structure which could hold assets and with the advantages of tax minimisation.

37 The Crown alleges that, in response to the Accused’s request for advice, Ms Harley developed an offshore structure which used foreign companies and entities known under Dutch law as “Stichtings”. Ms Harley travelled to Switzerland and her advice was put into effect. In order to minimise the tax liabilities of Barat Advisory arising from the disposal of the Admerex shares, in around June 2004, the Accused set up an elaborate structure of five companies known as the “Stichting Group” as a device whereby the Admerex shares could be transferred offshore into what appeared to be an arms-length trust arrangement, pursuant to which the Accused would have the opportunity to dispose of the shares and return the proceeds to Australia, without disclosing that these funds were derived from the disposal of the Admerex shares. The Stichting Group structure was something in the nature of a blind trust where any beneficiary was not to be identified directly, at least in the place of origin. Each of the five Stichtings was under the control of a corporate entity established in conjunction with the Stichting.

38 On or around 6 June 2004, Ms Harley travelled to Amsterdam to arrange for the establishment of five Stichtings. Ms Harley then travelled to Switzerland where she was joined by the Accused and Mr Goodall.

39 Five Stichtings were established on 11 June 2004 and were administered on behalf of the Accused by a Dutch administration services company known as Citco Nederland BV (“Citco”). The five offshore companies were incorporated in St Vincent and the Grenadines by Mr Meisterhans, at the request of Ms Harley, on 3 June 2004. Mr Meisterhans was appointed as a director of each of these companies. Each Stichting was the sole shareholder of the nominated offshore company.

40 On 11 June 2004, Ms Harley, acting on instructions from the Accused, provided Citco with a statement of purpose for each Stichting. In relation to each of the five Stichtings, the Accused was identified as the beneficial owner.

41 The Stichting Group structure, and associated offshore companies, were as follows:

(a) Stichting Black - Challinor Equities Limited (“Challinor Equities”);

(b) Stichting Badinage - Schlossman Partners Limited (“Schlossman Partners”);

(c) Stichting Adelaar - Thouvanel Investments (Asia Pacific) Limited (“Thouvanel Investments”);

(d) Stichting Aurelius - Metevier Securities International Limited (“Metevier Securities”);

42 In the same period, Ms Harley explained to the Accused, both orally and in writing, that he would not be entitled to any payment by a Stichting Group, and would not be entitled to any asset of a Stichting Group, until after the termination of the Stichting Group arrangements.

43 In the period from May to August 2004, Ms Harley advised the Accused that the payment he would receive upon the termination of the Stichting Group arrangements would be subject to capital gains tax in Australia if that payment represented a capital gain on the value of the assets which had been held in that Stichting Group.

44 Contrary to the terms which governed the Stichting Group, as they were established by Ms Harley, there was no dividend paid by any of the Stichting Group companies to any of the Stichtings. In similar contravention to those terms, the Accused did not make any annual payment to any of the Stichtings representing the shortfall between the dividend paid, or payable, by any of the Stichting Group companies, and the amount equivalent to 10% of the committed capital of any of the Stichting Group companies. The Accused also did not, on the termination date, make any payment to any of the Stichtings equivalent to 10% of the committed capital of any of the Stichting Group companies.

45 It is the Crown case that Ms Harley’s advice was bona fide in the sense that she quite genuinely and professionally provided advice concerning a structure which, in her mind, justified a situation in which there would be at least a tax deferment. Ms Harley envisaged that these arrangements would be in place for a period of 10 years, and then some other arrangement would have to be made because the benefits would revert to the Accused and he would still be faced with the tax consequences, albeit at a later time.

46 On or around 15 June 2004, bank accounts in the name of each of the Stichting Group companies were opened with a Swiss bank known as EFG Bank AG (“EFG”).

47 The EFG accounts were opened by Mr Meisterhans. The account opening documentation identified the Accused as the beneficial owner of the assets held in each of these EFG accounts and as the beneficial owner of each of the Stichting Group companies. The sole signatory in relation to each of the EFG accounts held in the name of the Stichting Group companies was Mr Meisterhans.

48 Each of the EFG accounts held in the name of the Stichting Group companies was closed on or around 14 September 2005.

49 On about 11 June 2004, the 55 million Admerex shares which had been acquired by Barat Advisory were transferred to the five corporations established in conjunction with the five Stichtings in differing parcels as follows:

(a) transfer of 12,000,000 Admerex shares to Challinor Equities for consideration of $600,000.00;

(b) transfer of 11,900,000 Admerex shares to Schlossman Partners for consideration of $595,000.00;

(c) transfer of 11,500,000 Admerex shares to Thouvanel Investments for consideration of $575,000,00;

(d) transfer of 9,411,475 Admerex shares to Metevier Securities for consideration of $470,575.75; and

50 While he was in Switzerland with Ms Harley and Mr Goodall in June 2004, it is alleged that the Accused said to Mr Goodall that he was pleased with the work Ms Harley had done in setting up companies for him. The Accused told Mr Goodall that he had sold his Admerex shares to a group of companies to give himself a tax position in Australia. The Accused said to Mr Goodall that, by splitting his Admerex shares amongst five companies, he had effectively sold his holding to those five companies.

51 The Crown alleges that the transfer of the Admerex shares to the five Stichting Group companies did not transfer beneficial ownership of the shares. Rather, the Accused intended to use the Stichting Group to conceal or dispose of the Admerex shares, and the proceeds of such disposal, in order to avoid payment by Barat Advisory of capital gains tax (CCS, paragraph 62).

52 The Crown alleges that, in the aftermath of action taken on 3 February 2005, the Accused communicated with Mr Goodall and directed that he would take one million Temenos shares which had just been relinquished in exchange for his Admerex shares, and which had by then diminished to a parcel of 48 million shares. The Crown noted that it would be Mr Goodall’s evidence that he did not immediately accept the proposition and considered that he was in control of the situation because he was the signatory to the Temenos account. An account had earlier been established with SwissFirst (No. 6009) in which the Temenos shares had been held.

53 On about 3 February 2005, one million Temenos shares were transferred out of Account 6048 which had become the account through which the Temenos shares were traded. That account had been established in the name of Challinor Equities. The Crown alleges that, even though the shares had been transferred specifically in five separate parcels to five different corporations, everything was done in the name of Challinor Equities.

54 From 3 February 2005 until about mid-June 2006, one million Temenos shares in Account 6048 were disposed of and funds were raised with the result that, on the Crown case, about eight million Swiss Francs were generated by the sale of the shares.

55 The Crown has particularised the value of the shares by reference to the market value on the Australian exchange throughout that period, being $8.4 million to $9.1 million depending on the precise fluctuation of the share price at any given time.

56 The issue of beneficial ownership of the shares is relevant to the question of liability to capital gains tax. The Crown contends that one of the factors to be taken into account in determining whether there was a change in the beneficial ownership of the shares was whether the Accused, on behalf of Barat Advisory, continued to exercise effective control over the shares after they were purportedly transferred to the Stichting Group companies in June 2004. The Crown contends that the issue of effective control is also relevant to the issue of dishonesty. It is the prosecution case that the Accused established the Stichting Group arrangement for the purpose of giving the appearance that he had caused Barat Advisory to divest itself of the Admerex shares to a group of entities which were independent and at arm’s length, when in fact, at all material times, the Accused continued to exercise control over the shares and the proceeds of their disposal, sometimes to his own personal use.

57 The Crown alleges that, in disregard of the terms governing the conduct of the Stichting Group, the proceeds of the share trading were then distributed. A total of approximately $5.6 million was transferred, in the period from March 2005 to January 2006, to the Barat Advisory CBA Account. Other amounts from the proceeds of the sale of the shares were allegedly used to the personal benefit of the Accused, including a house purchase, the purchase of a yacht, jewellery, a luxury vehicle and art works.

58 By the series of transactions described, the Accused is alleged (in the first count) to have dealt with the 48 million Admerex shares with the intention of using them as an instrument of crime relating to the avoidance of the payment of capital gains tax.

59 The Crown alleges that the conduct so far described gives rise to the money laundering charge (so that the first count is an appropriate charge to bring). The Crown alleges that these acts were directed ultimately to the Accused securing the maximum benefit from his acquisition of the debt from GTAL, initially through Clairmont Holdings and Finance, and later transferred into shares without diminishing his return by having to pay tax. The Crown alleges that the money laundering offence was complete, even in the middle of 2005, because the Accused had dealt with the shares in a way that was intended to cause a loss to the Commonwealth. The Crown alleges that, whether the Accused went ahead and submitted a tax return or not did not matter, because he had carried out these actions in the context of the scheme arranged by Ms Harley as a tax minimisation arrangement.

60 With respect to the question of whether a tax return would be lodged, the Crown alleges that the Accused had not personally lodged a return since 1994 and Barat Advisory had not lodged a return for the 2004 financial year.

61 The Crown alleges that there was a second phase of activity (CCS, paragraph 131ff), wherein the Accused went to his accountants (William Shew, Stephen Thurn and Colin Samuel of Grant Thornton Accountants) and, between May 2005 and November 2006, a process was underway whereby his accountants endeavoured to extract sufficient information from the Accused to enable them to lodge returns on his behalf. The Crown alleges that the end result was such that the accountants were so dissatisfied with the information provided that they simply prepared some documents and sent them to the Accused, giving him the opportunity to lodge them himself.

62 The Crown alleges that this process is important because it involved a second phase of activity in which there was deception of the accountants. The Crown alleges that the Accused provided false information to his accountants, in particular when the accountants pressed the Accused for an explanation of funds from Barat Advisory’s accounts overseas. The Crown alleges that at no stage did the Accused disclose to his accountants the acquisition and/or the sale of the Admerex shares by Barat Advisory. In the end, returns were prepared, including returns for Barat Advisory for the years ending 30 June 2004 and 30 June 2005.

63 The Crown alleges that the Admerex shares remained under the beneficial ownership and effective control of Barat Advisory, through the Accused, after they were purportedly transferred into the Stichting Group companies on about 11 June 2004.

64 The Crown alleges that the disposal of the 48 million Admerex shares in exchange for one million Temenos shares on or about 3 February 2005 resulted in a net capital gain to Barat Advisory of between $6,560,000.00 and $7,574,012.30. Thus, the Crown says, the net capital gain derived by Barat Advisory from the disposal of the Admerex shares in the 2005 financial year was in excess of the sum of $4,597.00 disclosed in the income tax return that the Accused caused to be lodged.

65 The Crown submitted that the “Achilles heel” of the scheme was the reluctance on the part of the Accused to relinquish control of the money. This manifested itself here because the Accused ignored the rules relating to the Stichting Group embodied in the documents by which they were created, in terms of exchange of the shares and repatriating the funds without waiting until the end of the specified period as required by the Stichting Group documentation (T94, 30 July 2010).

66 It is appropriate to set out the way in which the Crown seeks to apply the facts to the elements of the money laundering count (CCS, paragraphs 165-172) (with footnotes and evidentiary references omitted):

“165) Count 1 avers that, contrary to s 400.3(1) of the Criminal Code, the accused between about 30 April 2004 and about 30 September 2005 at Sydney in the State of New South Wales and elsewhere dealt with property, intending that the property, namely a parcel of shares, would become an instrument of crime, in that it would be used to facilitate the commission of an offence by Barat Advisory Pty Limited and at the time of the dealing, the value of the property was $1,000,000 or more.

The accused dealt with property

166) On or around 3 February 2005 the accused dealt with property, namely, the Forty Eight Million Admerex Shares, when on behalf of Barat Advisory he disposed of those shares by exchanging them for one million Temenos shares.

Intending that the property would become an instrument of crime

167) The Admerex Shares remained under the beneficial ownership and effective control of Barat Advisory, through the accused, after they were purportedly transferred into the Stichting Group companies on or around 11 June 2004. At the time of that purported transfer, and subsequently, the accused intended to use the Stichting Groups to conceal the disposal of the Admerex Shares, and the proceeds of such disposal, in order to avoid the payment by Barat Advisory of capital gains tax.

168) When the Forty Eight Million Admerex Shares were disposed of on 3 February 2005, by exchanging them for one million Temenos shares, the accused intended to avoid the payment by Barat Advisory of tax on the capital gain which was derived as a result of that disposal. For that purpose, the accused used the Stichting Groups to conceal the disposal of the Forty Eight Million Admerex Shares and the proceeds of that disposal.

169) As such, the accused intended that the Forty Eight Million Admerex Shares would be used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as a Commonwealth indictable offence, namely, the obtaining by Barat Advisory of a financial advantage by deception, contrary to s 134.2 of the Criminal Code.

170) On this basis, the accused intended that the Forty Eight Million Admerex Shares would become an instrument of crime.

At the time of the dealing the value of the property was $1,000,000 or more

171) When the Forty Eight Million Admerex Shares were disposed of on 3 February 2005, by exchanging them for one million Temenos shares, they were valued on the Australian stock exchange at between $8,400,000 and $9,120,000.

172) Alternatively, when they were disposed of on 3 February 2005, the Forty Eight Million Admerex Shares were valued at between $8,480,000 and $9,494,012.30, being the value of the one million Temenos shares for which they were exchanged.”

67 The Crown seeks to apply the facts to the elements of the dishonest obtaining offence in the following way (CCS, paragraphs 173-177) (with evidentiary references omitted):

“173) Count 2 avers that, contrary to s 135.1(1) of the Criminal Code, the accused on or about 13 November 2006 at Sydney in the State of New South Wales did, with the intention of dishonestly obtaining a gain from the Commonwealth, cause to be lodged an income tax return in the name of Barat Advisory Pty Limited for the year ending 30 June 2005 containing false information, namely that the net capital gain from the sale of shares in Admerex Limited was $4,597.

The accused caused to be lodged the Barat Advisory income tax return for the financial year ended 30 June 2005 which contained false information

174) On or about 13 November 2006, the accused caused to be lodged an income tax return in the name of Barat Advisory for the financial year ended 30 June 2005.

175) That tax return contained false information, namely, that the net capital gain in the financial year ended 30 June 2005 from the sale of shares in Admerex was $4,597. This information was false because Barat Advisory derived a net capital gain of between $6,560,000 and $7,574,012.30 from the disposal of the Forty Eight Million Admerex Shares on or around 3 February 2005.

With the intention of dishonestly obtaining a gain from the Commonwealth

176) The accused intended to obtain a gain for Barat Advisory from the Commonwealth, namely, keeping the capital gain derived from the disposal of the Forty Eight Million Admerex Shares, and avoiding the payment of tax on that capital gain.

177) The intention of the accused was dishonest because:

i the accused was aware that tax was payable on any capital gain derived from the disposal by Barat Advisory of the Admerex Shares, including the Forty Eight Million Admerex Shares, and

ii the accused used the Stichting Groups to conceal the disposal of the Admerex Shares, including the Forty Eight Million Admerex Shares, and the proceeds of such disposal, in order to avoid the payment by Barat Advisory of tax on any such capital gain.”

68 The Crown seeks to aggregate the evidence in relation to both counts and alleges that the activity relating to the trading is relevant to the second count dealing with the inaccuracy of the return, and vice-a-versa, in that the way in which the Accused went about providing information to his accountants and lodging his return, was a reflection that he had dealt with the shares previously with a view to avoiding tax.

69 The Crown has indicated an intention to call the following witnesses at trial:

(a) Philip Bacon, Philip Bacon Galleries;

(b) Peter Carney, Admerex;

(c) Kim Goodall;

(d) Anne Harley;

(e) Stephen Knipler, Australian Taxation Office (“ATO”);

(f) Shaun Mark, financial analyst, Australian Federal Police (“AFP”);

(g) Colin Samuel, Grant Thornton Services Pty Limited;

(h) William Shew, Grant Thornton Services Pty Limited;

70 In addition to these witnesses, the Crown proposes to tender documents, some of which will be referred to later in this judgment.

71 Detailed written submissions were furnished by counsel with respect to the issues raised in the Further Amended Notice of Motion falling for pretrial determination. It is not necessary to recite in detail the submissions advanced on the application, the written submissions being available on the Court file if future reference is necessary, together with the transcript of the oral submissions. It is appropriate, however, to provide an overview of the submissions concerning each area of objection.

The Permanent Stay Application Upon the Ground of Abuse of Process

Submissions of the Accused

72 Mr Wigney SC, for the Accused, submits that the Court should stay the prosecution of the Accused on the proposed indictment as an abuse of process. He submits that it will be an abuse of process to include in the one indictment, two charges that arise from substantially the same act where that would be unjustifiably oppressive to the Accused: Pearce v The Queen [1998] HCA 57; 194 CLR 610.

73 Mr Wigney SC places particular reliance upon decisions of the Court of Criminal Appeal where it has been said that an abuse of process occurs where the criminality of one of the charges encompasses the criminality of another charge: Thorn v R [2009] NSWCCA 294 at [27]; Nahlous v R [2010] NSWCCA 58 at [13]-[18]; R v Jones; R v Hili [2010] NSWCCA 108 at [17]-[18].

74 Mr Wigney SC submitted that, in considering the availability of the stay on the basis of double jeopardy, it is immaterial that there may be no identity of elements between the two offences such as to give rise to a plea in bar: Pearce v The Queen at 620 [29]. He submitted that the present case is relevantly indistinguishable from R v Jones; R v Hili. He submitted that, as was the case in R v Jones; R v Hili, in this case it is impossible to imagine how the s.135.1 charge (the second count) could be committed without necessarily giving rise to facts that would amount to a breach of s.400.3 (the first count).

75 He submitted that the relevant “dealing” in property alleged in the first count is the dealing with the parcel of Admerex shares which occurred on 3 February 2005, when those shares were allegedly swapped for a parcel of shares in another company (Temenos) (CCS, paragraph 166). He submitted that the Crown does not allege in this case that there was anything unlawful or dishonest per se in relation to that dealing, rather the Crown alleges that the dealing gave rise to a capital gain (CCS, paragraph 163). It is that capital gain that the Crown alleges was omitted from the tax return of Barat Advisory which was the physical element of the second count (CCS, paragraph 175).

76 Mr Wigney SC submitted that in every case where the physical element of a s.135.1 charge is the lodging of a tax return which was false because a capital gain was omitted from the return, there will always be a prior dealing with property that gave rise to the capital gain. Where it is alleged by the Crown that the intention not to disclose the capital gain existed at the time of the relevant dealing (CCS, paragraphs 169, 173, 176), the offence under s.135.1 (committed upon the lodging of the false return) will necessarily also give rise to a consequential breach of s.400.3.

77 In these circumstances, Mr Wigney SC submitted that the Accused is being twice vexed for the one cause. There is no additional criminality involved in the prior dealing that is not necessarily encompassed in the s.135.1 offence.

78 Mr Wigney SC submitted that the circumstances of the present case are relevantly identical to the transmission of money by the Accused in R v Jones; R v Hili, which was the initial step in a round-robin scheme which was part and parcel of the scheme by which the Accused was alleged to have defrauded the Commonwealth by avoiding the payment of tax, and which was the dealing that was the physical element in the money laundering offence. Mr Wigney SC submitted that it is plain that the Court of Criminal Appeal in R v Jones; R v Hili (at [17]-[18]) considered that the money laundering count offended the principle of double jeopardy and was an abuse of process.

79 It was submitted for the Accused that the statements in R v Jones; R v Hili echoed the concerns of the Court of Criminal Appeal in Thorn v R and Nahlous v R. That concern involved the improper and unjustified charging of a money laundering count alleging dealing in property with the intention that the property would become an instrument of crime, when the substantive crime, being the crime that was committed with the use of that property, is also charged.

80 Mr Wigney SC noted that, in Thorn v R, Howie J provided an analogy of a robber being sentenced for both the robbery and being in possession of stolen goods. He submitted that an appropriate analogy in the present case would be charging a drug importer, who imported drugs in a shipping container, not only with a substantive count of drug importation, but also with money laundering because he was involved in dealing with property, being the shipping container, that was an instrument of the substantive offence.

81 Mr Wigney SC submitted that this not only offends the double jeopardy maxim because the Accused is being twice vexed with the one cause, but it is also oppressive and vexatious, and brings the administration of justice into disrepute and amounts to prosecutorial harassment or misuse of prosecutorial powers: The Queen v Carroll [2002] HCA 55; 213 CLR 635 at 673 [130]; Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328 at 354 [78].

82 He submitted that the joinder of the two counts in the indictment will unnecessarily complicate and lengthen the trial and, in this sense, is akin to charging an accused person both with conspiracy to commit an offence and the substantive offence, a practice which has been criticised by the Courts: The Queen v Hoar [1981] HCA 67; 148 CLR 32.

83 Mr Wigney SC submitted that the money laundering charge (Count 1) should be stayed on this basis as an abuse of process, with it being open to the Crown to proceed on the dishonest obtaining charge (Count 2). In oral submissions, he conceded that it may be open to the Court, if the Accused’s submission was accepted, to allow the trial to proceed on the first count only (T17, 29 July 2010). He contended, however, that this would involve a prosecution in circumstances where a substantive charge was appropriate (the second count) and where the legislative purpose of money laundering offences would not be served by prosecution of the first count.

Submissions of the Crown

84 The Crown submitted the prosecution of the Accused for the two counts contained in the indictment does not constitute an abuse of process. It was submitted that, unlike the circumstances considered in the decisions of the Court of Criminal Appeal relied upon by the Accused, the alleged facts in this case (upon which the money laundering charge is based) disclose significant additional criminality, over and above the facts which are required to establish the elements of the dishonest obtaining charge. Although there is some overlap between the alleged facts in relation to each count, the Crown submitted that it is appropriate that both charges be included in the indictment, in order to properly reflect the extent of the alleged criminality of the Accused, in accordance with Pearce v The Queen, in particular at 620-621 [29]-[30].

85 The Crown submits that, as in the present case, the two charges against the appellant in Pearce v The Queen arose from a single episode and involved an overlap between the facts required to prove the elements of both offences, but with the elements of each offence not being identical: Pearce v The Queen at 613 [7], 615-616 [16]. In this context, the Crown observed that the High Court considered the nature of double jeopardy and clarified the relevant principles as follows:

(a) double jeopardy has been used with various meanings ranging from the pleas in bar of autrefois acquit and autrefois convict, to a wider principle of double punishment (at 614 [9]);

(b) double jeopardy is an expression employed in relation to different stages of the criminal justice process, from prosecution to conviction and punishment (at 614 [9]);

(c) if there is a single rationale for the rule against double jeopardy, it is that the State should not be allowed to make repeated attempts to convict an individual for the same alleged offence (at 614 [10]);

(i) a single series of events can give rise to several different criminal offences to which different penalties attach,

(ii) an offender should only be punished for the offence with which he or she was charged, and

(e) a plea in bar was not available to the appellant because the elements of the offences were not identical and neither offence was wholly included in the other (at 616-619 [17]-[28]);

(f) a court retains its inherent power to prevent abuse of process and there may be cases in which repeated prosecution gives rise to an abuse of process, even where no plea in bar is available (at 620 [29]);

(g) however, it is for prosecuting authorities to decide which charges should be laid and, ordinarily, it is preferable that all offences arising out of a single event, or series of events, are dealt with at the same time, although charges should not be multiplied unnecessarily (at 620-621 [39]);

(h) there was no abuse of process in charging the offender in that case with both of the offences (at 621 [31]);

86 The Crown submitted there was no relevant distinction between the charges and circumstances considered in Pearce v The Queen and the charges and circumstances in the present case. Indeed, the Crown submitted that the application of the principles in Pearce v The Queen operated with added force here, because there was a greater overlap between the offences committed in Pearce v The Queen than there is in the present case.

87 The Crown submitted that the money laundering charge is directed to separate and earlier conduct, in which it is alleged that the Accused took steps in order to facilitate the evasion of tax and, in particular, the disposal of the 48 million Admerex shares in exchange for one million Temenos shares on 3 February 2005. The dishonest obtaining charge is directed to the subsequent conduct of the Accused when, on 13 November 2006, the tax return for Barat Advisory was lodged without disclosing the capital gain on that disposal of shares. By way of contrast, the Crown submitted that both offences considered in Pearce v The Queen arose out of a single incident in which the offender broke into the victim’s home and beat him.

88 The Crown submitted that analysis of the decisions of the Court of Criminal Appeal in Thorn v R, Nahlous v R and R v Jones; R v Hili must be undertaken with regard to the Pearce v The Queen principles, and their application.

89 The Crown submitted that the prosecution case in this matter is significantly different to the facts of the cases in which criticism was directed at the prosecution. In this case, the Crown submitted that the primary case is dealt with in the first count, being the s.400.3(1) charge of dealing with property intending that the property would become an instrument of crime. That charge does not require proof that the property was actually used as an instrument of crime. The second count relates to an allegation that a s.135.1(1) offence was later committed by the lodgement of a false income tax return. The Crown submitted that the two charges complement each other and relate to different aspects of the conduct of the Accused.

90 The Crown referred to the facts of the Court of Criminal Appeal decisions relied upon by the Accused, and sought to distinguish them by reference to the facts and the particular observations made by the Court in those cases. With respect to Thorn v R, the Crown submitted that the circumstances of that case are different to the present case, where it is alleged that the very purpose of the Stichting Group was to hide the source of the funds derived from the disposal of the Admerex shares. The Crown submitted that the Accused is incorrect in submitting that the Crown does not allege that there was anything per se unlawful or dishonest in relation to the dealing with the 48 million Admerex shares on 3 February 2005. To the contrary, the Crown submitted that the Accused specifically orchestrated the arrangements concerning the disposal of the shares in a manner by which he intended that they would become an instrument of crime.

91 With respect to Nahlous v R, the Crown submitted that the circumstances are very different to the present case. The money laundering count in the present case is directed to the use by the Accused of the Stichting Group in order to hide the source of the proceeds of the disposal of the Admerex shares.

92 With respect to R v Jones; R v Hili, the Crown submitted that the charges there were directed to a tax evasion scheme by which the offender and his company evaded personal and company tax. False documents were created to support deductible company expenses for management and consultancy fees. The funds were then sent via a Vanuatu-based round robin through accounts in New Zealand, from where they were returned to the offender’s personal bank account in Australia. Pursuant to this scheme, the offender’s company claimed tax deductions for the false management and consultancy fees, and the offender did not pay income tax on funds which were, in reality, dividends paid to him by his company. The Crown submitted that the round robin in that case was the mechanism by which funds were transferred from the company account into the offender’s personal account and, as such, went directly to an element of the charges of defrauding the Commonwealth and obtaining a financial advantage by deception. Without the round robin or some equivalent mechanism, the Crown submitted that the company funds would not have been transferred into the offender’s personal account and he would not have received the funds upon which tax was payable for the purpose of the charges under s.29D Crimes Act 1914 (Cth) and obtaining a financial advantage by deception contrary to s.134.2(1) Criminal Code Act 1995 (Cth).

93 The Crown noted that R v Jones; R v Hili was a Crown appeal and that the observations of Rothman J (McClellan CJ at CL and Howie J agreeing) did not relate to arguments made by the parties. The Crown pointed to the observation of Rothman J at [17] that it was “impossible to imagine how either one of these offences could be committed (particularly given the facts in this case) without necessarily giving rise to facts that would amount to a consequential breach of the money laundering offence’. In contrast to the circumstances of R v Jones; R v Hili, the Crown submitted that it was possible for the second count on the indictment in the present case to have been committed without the establishment and use by the Accused of the Stichting Group. Even without any reference to the Stichting Group, the Crown submitted that the s.135.1(1) offence could still have been committed by reference to the following matters:

(a) the Admerex shares would have remained in the name of Barat Advisory;

(b) the disposal of the Admerex shares, by exchanging them for one million Temenos shares, could have occurred;

(c) the sale of the one million Temenos shares could have occurred, resulting in the proceeds of those sales being received into bank accounts operated by Barat Advisory;

(d) the Accused could have failed to disclose the capital gain derived from the disposal of the Admerex shares in the tax return of Barat Advisory;

94 The Crown submitted that this analysis demonstrates that, in contrast to the Court of Criminal Appeal decisions relied upon by the Accused, the use by the Accused of the Stichting Group to conceal the disposal of the Admerex shares involved significant criminality, over and above what is required to establish the elements of the s.135.1(1) charge.

95 The Crown submitted that it is appropriate to include the money laundering charge on the indictment in order to properly reflect the alleged criminal conduct of the Accused, in accordance with the principles in Pearce v The Queen.

Submissions of Accused in Reply

96 Mr Wigney SC submitted in reply that the first count does not involve any criminality that is not encompassed by the second count. He submitted that the money laundering charge involves the physical element of dealing in property, that property being the Admerex shares. That alleged dealing gave rise to the capital gain that was allegedly not disclosed to the ATO. That non-disclosure is the subject of the dishonest obtaining charge.

97 Mr Wigney SC submitted that any case involving non-disclosure of a capital gain must involve a prior dealing with property that gave rise to the capital gain. That prior dealing is inherent in the non-disclosure count. He submits that the implicit suggestion in the Crown submission that, if the Accused was convicted on the second count, he could not be sentenced on the basis that the criminality involved in the offence included the prior dealing in the shares that is the subject of the first count, must be wrong.

98 The Accused submitted that the present case is plainly distinguishable from Pearce v The Queen. The additional charge in Pearce v The Queen involved an additional element not encompassed in the other charge. Mr Wigney SC submitted that there is no such additional element involved in this case. He referred to the observation in Nahlous v R at [17] that nothing said in Pearce v The Queen is inconsistent with a finding that the addition of the first count gave rise to double jeopardy, was oppressive and an abuse of process.

99 With respect to the Crown submission that the additional criminality involved in the first count concerned the establishment and use by the Accused of the Stichting Group, Mr Wigney SC submitted that this was not the way the charge is pleaded and particularised in the indictment. He submitted that the dealing, the subject of the first count, is not a dealing with the Stichting Group. Rather, the dealing particularised in the charge, and in the CCS, was dealing with the Admerex shares which gave rise to a capital gain. Whilst the facts and circumstances alleged by the Crown in relation to the establishment and use of the Stichting Group may be relevant to the first count, he submitted that they are equally relevant to the second count.

100 Mr Wigney SC submitted that the Crown case in relation to the second count was obviously that the Accused established and used the Stichting Group to enable him to omit any capital gain from Barat Advisory’s tax return (CCS, paragraph 177). The facts relating to the use of the Stichting Group therefore, he submits, do not amount to separate earlier conduct, or an additional element of criminality, such as was the case with the entry to the dwelling house in Pearce v The Queen so as to warrant the inclusion of the first count in the indictment.

101 Mr Wigney SC submitted that, in pointing out that the first count does not involve proof that the property (the Admerex shares) was actually used as an instrument of crime, the Crown both ignores the facts that form the basis of the Crown case and misses the point concerning the vice or oppression involved in proceeding on both the first and second counts. There could be no doubt, he submitted, that the Crown case here is that the relevant property (the Admerex shares) was actually used as an instrument of crime.

102 Accordingly, Mr Wigney SC submitted that the Crown has charged the Accused with both the substantive offence (the second count) and with dealing with the shares with the intention of facilitating the commission of that same offence (the first count), and that this is oppressive and vexatious, and amounts to prosecutorial harassment.

103 Mr Wigney SC submitted that it is not to the point that the facts in the present case are different to the facts in Thorn v R, Nahlous v R and R v Jones; R v Hili. The circumstances that led the Court of Criminal Appeal to criticise the laying of additional money laundering charges in those cases apply equally to this case. He submitted that the statements of principle, in the cited decisions of the Court of Criminal Appeal, support the Accused’s application for a stay on the present indictment as an abuse of process.

Determination of Stay Application Upon Abuse of Process Grounds

104 The foundation in principle for the Accused’s application must be found in case law concerning abuse of process.

Principles Concerning a Permanent Stay for Abuse of Process

105 The Accused seeks an order that his trial on the present indictment, containing both counts, be permanently stayed on the basis that it is an abuse of process. This is an exceptional remedy. In R (Cth) v Petroulias (No. 1) [2006] NSWSC 788; 217 FLR 242 at 260-262 [58]-[63], I summarised the general principles in the following way:

“58 It has been emphasised that the power to stay permanently a criminal prosecution will be used only in most exceptional circumstances: Jago v District Court (NSW) (1989) 168 CLR 23 at 31 (Mason CJ). If permanent stay orders were to become common place, it would not be long before courts would forfeit public confidence: Jago at 50 (Brennan J). The power is exercisable only in exceptional cases or sparingly and with the utmost caution: Jago at 76 (Gaudron J).

59 In

R v WRC

(2003) 59 NSWLR 273, Spigelman CJ (Dunford and Hidden JJ agreeing) said at 282 [55]-[56]:

‘A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law. The public interest in ensuring that persons charged with crimes are tried is entitled to significant weight in the necessary balancing process. (See, for example,

Jago

(at 30 and 49–50).) Because of this, as Mason CJ said in

Jago

(at 34): ‘a permanent stay should be ordered only in an extreme case …’.’

60 The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz at 529. It is the defence that assumes the high burden of seeking to establish irredeemable abuse of process so as to preclude a fair trial: R v Petroulias (2005) 62 NSWLR 663 at 688 [103]-[104].

61 The Accused submits that the approach to be taken in determining the broader abuse of process ground involves the weighing process referred to by Mason CJ, Deane and Dawson JJ in

Walton v Gardiner

at 395-396:

‘As was pointed out in

Jago

, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.’

62 The circumstances that may constitute oppression or an abuse of process are various and the discretionary considerations that may be relevant in dealing with them cannot be rigidly confined: The Queen v Carroll (2002) 213 CLR 635 at 650-651 [47] (Gleeson CJ and Hayne J).

63 The jurisdiction to stay proceedings as an abuse of process is wide ranging, but not without limits. It has been said that the discretion cannot be exercised to stop proceedings because the evidence against the accused is weak or because the Bench disapproves of the prosecution:

R v Chairman of London County Sessions; Ex parte Downes

(1953) 37 Cr App R 148 at 152;

Pattenden, Judicial Discretion and Criminal Litigation

, 2nd edn, 1990, Clarendon Press, page 33.”

106 The observations of the Court of Criminal Appeal in a number of sentencing decisions for money laundering and other offences form an important body of law which I must consider on this application. It is appropriate to observe that those cases did not involve proceedings in which the Court was asked to stay a prosecution as an abuse of process. The context in which these judicial observations were made was that of sentence appeals, in which no challenge was made to conviction and where orders made by the Court involved an adjustment of sentences which had been imposed for several related offences.

The Decision in

Pearce v The Queen

107 Both the Accused and the Crown rely upon the decision of the High Court of Australia in Pearce v The Queen and it is appropriate to identify the statements of principle in that case. McHugh, Hayne and Callinan JJ at 614 [9]-[10] observed that the expression “double jeopardy” is not always used with a single meaning, and that sometimes it is used to encompass what is said to be a wider principle that no one should be punished again for the same matter. It is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. The underlying idea of the rule against double jeopardy is that the State should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

108 As pervasive as the principle referred to in the preceding paragraph may be, McHugh, Hayne and Callinan JJ observed, at 614 [10], that it is not the only force at work in the development of this part of the common law, with three further forces being identified as well. The three further forces were described as follows at 614-615 [11]-[15]:

“11 First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach.

12 Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged.

13 Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct.

14 The fact that double jeopardy is spoken of at several different stages of the process of criminal justice and the presence of other (sometimes competing) forces means that the treatment of double jeopardy has not always been clearly based on identified principles. It is not necessary, however, to resolve all the apparent inconsistencies that can be identified in the application of the rule or rules against double jeopardy in deciding the present appeal, and we do not attempt to do so.

15 In this case it is helpful to consider the stages in the criminal justice process separately, and to deal with issues of double prosecution separately from issues of double punishment. At the stage of prosecution, it is necessary to consider first whether the appellant was entitled to enter a plea in bar to one or more counts on the indictment, and secondly whether he was entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether he was entitled to be sentenced in some way differently from the sentences imposed upon him.”

109 With respect to the power to stay proceedings in an appropriate case, McHugh, Hayne and Callinan JJ said at 620-621 [29]-[32]:

“29 Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen .

30 The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.

31 There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni , would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.

32 It follows that the primary judge was right to conclude that the proceedings on the indictment (or counts 9 and 10 in particular) should not be stayed.”

110 I pause to observe that the remedy which the Accused seeks in this application is that which the High Court refused in Pearce v The Queen. It is necessary for the Accused to establish an entitlement to that remedy on the facts of his case and in accordance with the principles in Pearce v The Queen.

111 Having determined that a stay of proceedings was not appropriate in that case, McHugh, Hayne and Callinan JJ turned, at 621 [33], to consider what were described as “more difficult questions” in deciding whether the appellant “could be or was doubly punished”. An understanding of what the High Court said in that context is pertinent to this case. It assists an understanding of the powers of criminal courts to do justice where several related offences are proved, in circumstances where the prosecution of those offences did not constitute an abuse of process.

112 Reference was made, at 621 [34], to the practice that a person should not be twice punished for what is substantially the same act: The Queen v Hoar at 38. Their Honours continued at 621-622 [35]-[39]:

“35 Again, it is as well to begin from some general considerations.

36 First, in creating offences, legislatures must necessarily proscribe conduct by reference to particular elements. A complex act by an accused may contain all the elements of more than one offence.

37 Secondly, it follows that to punish the whole of the accused's criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each.

38 Thirdly, since the enactment of s 33 of the Interpretation Act (UK) and its Australian equivalents, legislatures have sought to address some of the questions that then arise. At first, the focus was upon punishment twice for the same offence. More recently, however, some legislation in Australia has sought to deal with whether an offender can be punished twice for the same act or omission. And, of course, in Australia, some legislation has sought to deal with the consequences of overlapping state, territory, or federal legislation.

39 Fourthly, and very importantly, it is highly undesirable that the process of sentencing should become any more technical than it is already."

113 Their Honours said with respect to double punishment at 623 [40]:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

114 In a well-known part of the joint judgment, the following was said with respect to sentencing for multiple offences, at 623-624 [44]-[48]:

“44 Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

45 To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

47 Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

48 Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.”

115 In a separate judgment, Gummow J said at 629 [67]-[68]:

“67 In Australia, concerns with ‘double jeopardy’ have come to be expressed at common law in differing ways by an evolutionary process which has crossed what often in the legal system is a false divide between substance and procedure. Thus, even if a plea in bar is not available, successive prosecutions may be an abuse of process. It should also be accepted that the inclusion of separate counts for what in substance, if not entirely in form, is the same offence may be an abuse of process. For the reasons given by the other members of the Court, there was no abuse of process here. The decision of the Court of Criminal Appeal to dismiss the appeal against conviction was correct.

68 However, the principles involved in the notion of ‘double jeopardy’ also apply at the stage of sentencing. They find expression in the rule of practice, ‘if not a rule of law’, against duplication of penalty for what is substantially the same act.”

116 Kirby J, in a separate judgment, said at 640 [98]:

“The decision of this Court in

R v De Simoni

has stood for seventeen years. Its correctness was not questioned in this appeal. Although addressed to the principles governing punishment, necessarily whilst it stands it has consequences for the exercise of prosecutorial discretions. In many cases, prosecutors will, understandably, frame the charges contained in the counts of an indictment in terms of several overlapping offences. They will do so to avoid the risk that an accused might escape punishment for circumstances of aggravation appearing in the elements of separate offences. Thus, in the present case, it was accepted for the appellant that if he had pleaded only to count 10 (based upon s 110 of the Act), there would have been a good argument that it would not have been open to the Crown to rely upon the specific intent to cause grievous bodily harm to Mr Rixon, which is an ingredient of the offence based on s 33 of the Act, alleged in count 9. That concession was properly made. In such circumstances, it is unsurprising that prosecutors should charge an accused with separate offences which they consider to be applicable and different. This then leaves it to the judge, at a later stage of the proceedings, to ensure against any impermissible double jeopardy which this course produces.”

117 The resolution of the present stay application turns upon the application of these principles to the facts and circumstances of this case.

(a) a previous representation, or

(b) evidence of a conviction of a person for an offence, or

(c) the authenticity, identity or admissibility of a document or thing.”

“169 Failure or refusal to comply with requests

(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:

(a) an order directing the party to comply with the request,

(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166,

(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence,

(d) such order with respect to adjournment or costs as is just.

(2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.

(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with.

(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:

(a) the document or thing to be produced is not available to the party, or

(b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced, or

(c) the person to be called as a witness is not available.

(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:

(a) the importance in the proceeding of the evidence in relation to which the request was made, and

(b) whether there is likely to be a dispute about the matter to which the evidence relates, and

(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved, and

(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered, and

(e) if the request relates to evidence of a previous representation - whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based, and

(f) in the case of a request referred to in paragraph (g) of the definition of request in section 166 - whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained, and

(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable, and

(h) the nature of the proceeding.”

288 This area of objection concerns the admissibility of foreign documents emanating from Citco, SwissFirst or EFG, which are attached to the affidavits of Messrs Langeveld, Pfammetter and Stemberger respectively. As mentioned above, there is an objection to the admissibility of these documents and, in the alternative, an application that the persons nominated be required to attend for examination at a pretrial hearing by way of an enquiry in accordance with the principles in R v Basha (1989) 39 A Crim R 337 (T83, 30 July 2010).

289 The solicitors for the Accused made requests to the Crown under s.167 Evidence Act 1995 that Mr Meisterhans, Mr Dukes, Ms Van Der Blij, Mr Mehm and certain unnamed makers of specified representations be called as witnesses (Exhibit PTC). The Crown has declined to do so, and thus the Accused seeks order under s.169 Evidence Act 1995 requiring the Crown to produce each of the specified persons to give evidence.

The s.25 Discretionary Objections

290 I will deal firstly with the discretionary provisions contained in s.25 Foreign Evidence Act 1994 (Cth) and then move to a decision concerning the application for witnesses to be called under s.169 Evidence Act 1995.

291 The terms of s.25 appear earlier in this judgment. The Court may direct that foreign material not be adduced as evidence if it appears to the Court’s satisfaction that, having regard to the interests of the parties to the proceedings, justice would be better served if the foreign material was not adduced as evidence. In my view, s.25(1) provides for a broad discretion to exclude evidence otherwise admissible in accordance with the statutory scheme. The very breadth of the discretion in s.25 emphasises my earlier conclusion that s.69 Evidence Act 1995 has no operation.

292 Section 25(2) provides a non-exhaustive list of matters to be taken into account for the purpose of a discretionary judgment under s.25(1) of the Act. I will turn to these matters shortly in assessing the submissions of the parties.

293 For the purpose of determining the objection to the foreign documentary evidence, I was taken to a number of documents (contained in Exhibit PTD) effectively to illustrate the heads of objection. I do not propose, in this judgment, to describe the documents or recount the particular arguments which were addressed to them. The arguments appear in the written submissions and, in particular, the transcript of oral submissions, during which the Court was taken to a number of documents. I have assessed the submissions of counsel by reference to the documents which are in evidence at the pretrial hearing.

294 I take as a starting point what I consider to be the legislative effect of the 2010 amendments to the Foreign Evidence Act 1994 (Cth), that the mere absence of persons who could shed some light upon representations recorded in the documents is not sufficient (on its own) to warrant discretionary exclusion under s.25 of the Act.

295 To the extent that a number of defence submissions involved the suggestion of possible questions, and lines of questions, which counsel for the Accused may wish to address to one or more of the specified persons concerning documents, the bare absence of the person does not of itself provide a foundation for s.25 exclusion. It is necessary to have regard to the content of the documents, what they indicate, and the extent to which any Crown witness to be called may be able to give evidence concerning transactions and events referred to in the documents. Taken with this, as well, is the ability of the Accused’s legal team to communicate in an extra curial manner with the specified persons, including the making of enquiries concerning the possible identity of persons presently unnamed who made certain representations in documents.

296 In addition, I have regard to the fact that many of the documents refer to the Accused by name, and some appear to have been signed by him. The documents point to a series of events, over a period of time, involving different persons and entities. Importantly, the fact that the Crown is to call Ms Harley is a significant feature with respect to the s.25 objections.

297 I turn to the matters specified in s.25(2) of the Act. Section 25(2)(a) requires the Court to take into account the extent to which the foreign material provides evidence that would not otherwise be available. I am satisfied that the foreign business records do provide evidence which would not otherwise be available in this case.

298 Section 25(2)(b) requires the Court to take into account the probative value of the foreign material with respect to any issue which is likely to be determined in the proceedings. I am satisfied that the foreign business records are of high probative value. I accept the Crown submission that the documents go directly to the manner in which the Stichting Group worked, the relationship between the Accused and the Stichting Group and the disposal of the Admerex shares and the transfer of the proceeds to Barat Advisory.

299 The Accused submitted that a number of the documents appear to have been compiled by interested third parties so that their probative value is to be reduced. I bear in mind that the origin for each of the three groups of documents are the particular entities Citco, SwissFirst and EFG. There is a mixture of documents created by those entities, and others provided to those entities and held by them as part of their business records. I accept the Crown submission that the documents appear to comprise contemporaneous documentary evidence compiled by non-interested third parties in the normal course of their respective businesses and that they are likely to be an independent and reliable record of what occurred and was said.

300 In this respect, I observe that there will be interaction between the evidence of Ms Harley, who was directly involved in a number of significant events apparently acting on the instructions of the Accused, and the content of the documents themselves. As mentioned earlier, there is force in the Crown submission that, to the extent that there may be some ambiguity in the documents, it will not assist the Crown as the Accused will be in a position to provide an account to be measured against the evidence of Ms Harley and the content of the documents. In summary, I am persuaded that the probative value of the foreign material in this case is high.

301 Section 25(2)(c) requires the Court to take into account the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them. The Accused relied upon this factor as operating against admission of the documents in this case. The Crown submitted that the 2010 amendments supported a view that this factor ought not be a decisive one and that, in any event, it was unlikely that persons who made representations in the foreign business records would now be able to recall or meaningfully add to those representations.

302 In assessing this factor, I bear in mind the prospect that Ms Harley will be able to shed some light upon many of the documents and the transactions and events referred to in them. I note that the provision is directed to the extent to which statements contained in the documents could be “challenged by questioning the persons who made them”. The word “challenged” is significant, bearing (in this context) its ordinary meaning of “to take exception to; to call in question”: “Macquarie Dictionary”, page 323. As I understand the issues in the proceedings, it has not been suggested that any person who acted in events contained in the foreign documents was engaged on a frolic of his or her own, or had acted in a manner contrary to the wishes of the Accused.

303 Rather, the proposed areas of questioning of persons appear to involve a desire to obtain more information about certain statements and the source or sources for those statements. In my view, this aspect is not insignificant when s.25(2)(c) uses the language referred to, involving an assessment of the extent of a contemporaneous “challenge” by questioning of persons. I do not consider that this factor provides any real assistance to the Accused in support of this objection.

304 Section 25(2)(d) requires the Court to take into account whether exclusion of the foreign material would cause undue expense or delay. The Crown submits that a potential consequence of excluding the foreign business records would be the adjournment of the trial to arrange for witnesses to be brought from overseas. The Crown submits that this would constitute undue expense or delay because Ms Harley and the Accused himself can provide their own explanations in evidence of the foreign documents. In my view, there is force in the Crown submission concerning this statutory factor which operates against the Accused on the objection.

305 Section 25(2)(e) requires the Court to take into account whether exclusion of the foreign material would unfairly prejudice any party to the proceeding. The provision requires attention to be paid to unfair prejudice and not bare prejudice: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 324-327 [90]-[97]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165].

306 In my view, there is force in the Crown submission that the areas of possible questioning identified by the Accused are repetitive and formulaic. In addition, no real basis appears to have been identified to suggest that there is a genuine dispute concerning the content of the foreign documents. If there was such a dispute, then it might be identified by the Accused. In any event, Ms Harley will be available to shed light upon a number of the documents, the Accused can give instructions to his lawyers about them (and evidence at trial if he so elects). It remains open to the Accused to make contact with persons, including Mr Meisterhans whom the Crown contends was acting as the agent of the Accused.

307 In my view, the matters raised by the Crown are pertinent. Given the significance of the foreign documents, exclusion of the foreign material would unfairly prejudice the Crown. The exclusion would constitute unfair prejudice because of the loss of the evidence to the Crown in circumstances where there is no unfair prejudice to the Accused through its admission. Although the statutory factor directs attention at unfair prejudice flowing from exclusion of the foreign material, I consider that it is pertinent as well to consider whether unfair prejudice would flow to the Accused if the documents are admitted. If there is no unfair prejudice to the Accused, then a finding of unfair prejudice to the Crown, through the exclusion of the documents, would be fortified. In the result, I am satisfied that this statutory factor operates in the Crown’s favour on the objection.

308 Having considered the submissions and the contents of documents which are the subject of objection, I am not satisfied that, having regard to the interests of the parties to the proceedings, justice would be better served if the foreign business records were not adduced as evidence pursuant to s.25(1) Foreign Evidence Act 1994 (Cth). I decline to exclude the foreign business records upon this basis.

Sections 135 and 137

Evidence Act 1995

309 An alternative basis of objection in paragraph 4 of the Further Amended Notice of Motion contends that the foreign business records should be excluded pursuant to s.135 or s.137 Evidence Act 1995. Section 135 permits a court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, would be misleading or confusing or cause or result in undue waste of time.

310 The factors which I have considered for the purpose of the s.25 Foreign Evidence Act 1994 (Cth) objection are relevant as well to this objection. In my view, the foreign documentary evidence is of significant probative value. For reasons along similar lines to those addressed above concerning s.25, I am not satisfied that the probative value of the foreign documentary evidence is substantially outweighed by the danger that the evidence may operate in one or more of the ways specified in s.135 of the Act.

311 Section 137 Evidence Act 1995 provides that, in a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The section speaks of unfair prejudice and not bare prejudice: Papakosmas v The Queen; R v Clark. For similar reasons to those expressed in refusing to exclude the foreign business records under s.25 Foreign Evidence Act 1994 (Cth), I am not satisfied that the probative value of the foreign business records is outweighed by the danger of unfair prejudice to the Accused. Accordingly, I decline to exclude the foreign business records under either s.135 or s.137 Evidence Act 1995.

Sections 167 and 169

Evidence Act 1995

312 I turn now to s.167 and s.169 Evidence Act 1995. Those provisions are set out above.

313 I accept that each of the requests relied upon by the Accused in relation to the foreign business records (Exhibit PTC) is a request for the purpose of determining a question that relates to a previous representation pursuant to s.167(a) Evidence Act 1995. The effect of the bulk of these requests is to ask the Crown to bring witnesses from overseas to be examined (at a Basha inquiry) about previous representations included in the foreign business records. Although it is accepted that the s.167 and s.169 procedure is available in this case, it remains relevant that the context in which the application is made concerns a request to bring witnesses to Australia to be examined about foreign business records which are otherwise admissible under the Foreign Evidence Act 1994 (Cth).

314 It was not contended on this application that the requests by the Accused were not reasonable requests under s.167 of the Act. Rather, the Crown submitted that the Court had a discretion whether to make an order under s.169(1) of the Act if there is a failure to comply with a request without reasonable cause. The Crown pointed to the non-exhaustive list of statutory factors identified in s.169(5) of the Act and, in particular, s.169(5)(e) which requires the Court to take into account, if the request relates to evidence of a previous representation, whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based. In circumstances where the enquiry relates to previous representations within s.167(a), it was submitted that this consideration was a critical one and that the Accused had not pointed to a reasonable doubt as to the accuracy of the representations, but rather had proposed a series of repetitive and formulaic enquiries which the Accused would seek to make.

315 I agree with the Crown submission that the criteria in s.169(5) Evidence Act 1995 involves, in many respects, similar considerations to matters dealt with in relation to s.25(2) Foreign Evidence Act 1994 (Cth). With respect to the operation of s.167 and s.169, I have had regard to the decision of the Court of Appeal in Trimcoll Pty Limited v Deputy Commissioner of Taxation [2007] NSWCA 307. In exercising the discretion under s.169 of the Act, I have had regard to the factors identified in s.169(5) of the Act.

316 The focus of attention of these provisions (and in particular, s.169(5)(e)) concerns the extent of any dispute about the accuracy of evidence or representations which may lead a court to exercise the power to order the other party to take a step under s.169(1) of the Act. I have already referred, in different contexts in this judgment, to purposes identified by the Accused for seeking the attendance of persons to give evidence concerning the foreign business records. The evidence and arguments do not persuade me that there are substantial controversies or areas in which the Accused challenges the accuracy and reliability of the content of the foreign business records.

317 The arguments of the Accused have identified areas in which a type of interrogation of persons is sought to be undertaken, without identification of an underlying controversy or challenge with respect to the contents of the documents. It seems to me that considerations of this type bear as well upon the application by the Accused for a discretionary order of the type available under s.169 Evidence Act 1995.

318 I am not persuaded that such an order should be made and I decline to make an order under paragraphs 4 or 5 of the Further Amended Notice of Motion.

Objections to Evidence Being Adduced Concerning Certain Events referred to in the Crown Case Statement - Relevance and Discretionary Exclusion Objections

319 Paragraph 7 of the Further Amended Notice of Motion seeks the exclusion of certain evidence pursuant to s.56(2) Evidence Act 1995 on the basis that it is not relevant, or, in the alternative, pursuant to s.135 or s.137 Evidence Act 1995.

320 The evidence to which objection is taken may be identified briefly as:

(a) evidence relating to events between about 16 January 2003 and about 20 November 2003, concerning the obtaining by Barat Advisory of a share holding in Admerex (paragraphs 4-20, CCS);

321 I approach these objections upon the basis that a ruling is sought by reference to parts of the CCS, and submissions made by reference to that document. Sections 55 and 56 Evidence Act 1995 provide the test for relevance:

“55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.”

322 The effect of s.135 and s.137 Evidence Act 1995 were referred to earlier in the judgment.

Evidence Summarised in CCS, Paragraphs 4-20

323 Mr Wigney SC submitted that evidence summarised in paragraphs 4-20 CCS ought not be admitted. He noted that there is no dispute that the Admerex shares issued to Barat Advisory were acquired on 30 April 2004 for a consideration of four cents per share (CCS, paragraph 24). Accordingly, he submits that the complex circumstances in which Barat Advisory acquired this parcel of shares for a consideration of four cents per share is not relevant to either of the counts on the indictment.

324 The Accused submits that the evidence in these paragraphs could not rationally affect (directly or indirectly) the assessment of the probability of the existence of any fact in issue in the proceedings for the purpose of s.55, and was therefore not relevant and not admissible under s.56(2) Evidence Act 1995. Emphasis was placed upon the word “rationally” in s.55(1) of the Act, with it being contended that the Crown must be able to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.

325 In the alternative, Mr Wigney SC submitted that if the evidence in these paragraphs is relevant, it is only marginally so and its probative value is very slight so that it ought be excluded under s.135 or s.137 Evidence Act 1995. With respect to the danger of unfair prejudice, it was submitted that there is a risk that the jury may misuse the evidence in some unfair way (Papakosmas v The Queen at [91]) in that a jury is likely to consider, unfairly and incorrectly, that the acquisition of the shares (following as it did the acquisition of an assignment of significant corporate debt), involved some shady or sharp corporate practices. The Accused submitted that this would be an unfair misuse of the evidence.

326 It was submitted as well for the Accused that time would be wasted in the adducing of this evidence. It was submitted that the acquisition of the shares by Barat Advisory, and the events that preceded the acquisition (relating to the acquisition and assignment of the debts) was but one part of a very complex corporate reconstruction. To avoid any misleading or unfair inferences that might be drawn from the circumstances of the acquisition, the Accused would be compelled to cause to be adduced a good deal of evidence relating to the corporate restructure, so that the share acquisition could be properly seen in context. It was submitted that this will increase the undue waste of time caused by the adducing of the evidence.

327 The Crown submitted that the material in paragraphs 4-20 CCS was relevant for reasons other than merely the value of the Admerex shares when issued to Barat Advisory on 30 April 2004. The Crown submitted that it is an important part of the prosecution case to establish the circumstances in which the Admerex shares came to be owned by Barat Advisory, and a potential source of significant profit to the Accused, which would have been eroded by a liability to pay capital gains tax on the disposal of those shares. The Crown submitted that it is also relevant to understand the circumstances which led to the Admerex shares being issued to Barat Advisory on 30 April 2004 because they cast light on the relationship between the Accused and Clairmont Holdings and Finance. The Crown submitted further that it is relevant that Barat Advisory did not pay Clairmont Holdings and Finance for its acquisition in November 2003 of the debt, in the sum of $2,236,459.00, which was later satisfied by the issue to Barat Advisory of the Admerex shares on 30 April 2004. This is relevant because it gave the Accused additional incentive to avoid capital gains tax, in the expectation that the ATO may assert that the real cost base of the asset was zero.

328 On this basis, the Crown seeks to rely upon the evidence summarised in paragraphs 4-20 CCS to establish that the Accused has achieved a position whereby Barat Advisory owned assets in the form of the Admerex shares which he could not liquidate without substantially diminishing the cash proceeds from the disposal of the shares by payment of capital gains tax, and that the Stichting Group arrangement subsequently put in place by the Accused was intended to avoid that happening.

329 The present ruling is sought by reference to nominated paragraphs in the CCS only. The test of relevance in ss.55-56 Evidence Act 1995 is not a demanding one. Of course, it is necessary to consider whether the tendered evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.

330 The Crown case against the Accused involves a series of events over a period of time concerning the Accused, a number of corporations, share movements and the transfer of funds. The matters relied upon by the Crown (at [327]-[328] above) satisfy me that evidence of matters referred to in paragraphs 4-20 CCS could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. I am persuaded that the evidence of those matters is relevant.

331 With respect to s.135 Evidence Act 1995, the Court is informed that certain facts are not in issue (and thus should not absorb extensive court time) but that elaborate evidence may be required to explain these matters if the evidence is admitted. It may be that the adducing of evidence on this aspect can be narrowed by discussions and agreements between the parties concerning the factual matters which the Accused seeks to adduce in this regard. In any event, I am not persuaded that the evidence of matters contained in paragraphs 4-20 CCS ought be excluded under s.135 of the Act. No basis has been demonstrated for exclusion of this evidence under s.137 Evidence Act 1995.

332 I decline to exclude evidence of matters summarised in paragraphs 4-20 CCS.

Evidence Summarised in CCS, Paragraphs 67-70, 72, 76, 80-83, 87

333 The objection by the Accused to the second group of paragraphs in the CCS is based upon the suggested potential unfair misuse and prejudice, the potential for the evidence to mislead and confuse, and the undue waste of time that would result from this evidence.

334 These paragraphs relate to the opening of Account 6009 in the name of Admerex (Ireland) Limited at SwissFirst and the beliefs of Mr Goodall in relation to this account. In addressing the objection to these paragraphs, Mr Wigney SC submitted that it is important to consider the factual context and, in particular, what facts are not in dispute in relation to this evidence. In short, Mr Wigney SC submitted that it is the Crown case, which is not disputed, that:

(a) the account opening forms that were acted upon by SwissFirst to open the account were submitted by Ms Harley, a solicitor acting for Admerex (Ireland) Limited;

(b) they nominated the Accused and Mr Meisterhans, both directors of Admerex (Ireland) Limited, as the signatories (CCS, paragraph 79);

(c) the transaction between SwissFirst and Admerex (Ireland) Limited was the reason the account was opened required five million Temenos shares to be transferred to SwissFirst with SwissFirst to become the owner of these shares (CCS, paragraph 64);

(d) Mr Goodall gave instructions to transfer these shares to SwissFirst (CCS, paragraphs 71, 75);

(e) the shares were deposited not into Account 6009, but into Account No. 7900 and the Accused was not a signatory on that account (CCS, paragraph 77);

335 It is submitted for the Accused that although these facts are not in dispute, the Crown proposes to call lengthy, complex and disputed evidence about the preparation of earlier account opening documents that nominated Mr Goodall as a signatory, but which were rejected by SwissFirst because Mr Goodall was not an officer of Admerex (Ireland) Limited (CCS, paragraph 72); Mr Goodall’s belief about the account and the relevance of this to his willingness to transfer five million Temenos shares to SwissFirst as part of the transaction between SwissFirst and Admerex (Ireland) Limited; and his willingness to agree to later transfers of these shares (CCS, paragraphs 67,87). The Crown also proposes to call evidence about steps taken by Mr Goodall in relation to Account 6009 some considerable time after the events relevant to the charges (CCS, paragraphs 80-83).

336 It was submitted for the Accused that the Crown’s intended reliance upon this evidence involved “wounding without striking”. With respect to the Crown’s reasons for seeking to adduce this evidence, the Accused submits that they have no substance and demonstrate the inherent risk of this evidence being unfairly and incorrectly used against the Accused.

337 Even if the Court found the evidence to be relevant, it was submitted that the probative value of the evidence would at best be very limited and would be outweighed by the danger of unfair prejudice to the Accused, the danger that the evidence will be misleading and confusing and the danger that the evidence will cause or result in undue waste of time.

338 The Crown submitted that this evidence is relevant and ought be admitted. It is said that the evidence in relation to SwissFirst Account 6009 is relevant to explain the events which led to the release by SwissFirst of two million of Mr Goodall’s Temenos shares, and how the Accused was able to arrange for one million of those Temenos shares to be exchanged for the 48 million Admerex shares and deposited to the credit of the Challinor Equities SwissFirst account on or about 3 February 2005 without any signed authority from Mr Goodall. The Crown contends that it was Mr Goodall’s understanding that he was the sole signatory to SwissFirst Account 6009 and that this is relevant to the circumstances in which the shares were disposed of, and to explain how the Accused was able to arrange for the transfer of one million of Mr Goodall’s Temenos shares from SwissFirst to the Challinor Equities SwissFirst account. It is also said to be relevant to explain why Mr Goodall did not think it necessary to take any immediate action to stop the Accused from proceeding with the exchange of the 48 million Admerex shares for one million of his Temenos shares.

339 Upon these bases, the Crown intends to lead evidence to the effect that, as part of the proposed capital raising transaction, Mr Goodall agreed to provide five million of his Temenos shares in favour of SwissFirst on the understanding that he would be the sole signatory to the account in which those shares would be held. This would involve evidence from Mr Goodall and Ms Harley and, the Crown submits, is not misleading or confusing and remains open to challenge in cross-examination by the Accused.

340 The Crown makes clear that it does not allege that the dealings relating to the opening of SwissFirst Account 6009, and in particular the change to the signatory details, involved some impropriety or dishonesty on the part of the Accused. In these circumstances, the Crown proposed at paragraphs 115-116 of the Crown written submissions dated 9 July 2010 a number of steps which, if agreed between the parties, would allow the prosecution to proceed without tendering evidence summarised at paragraphs 69-70, 72, 76 and 80 CCS.

341 I approach this relevance objection keeping in mind the relevant statutory test and the nature of the issues in the proceedings. Having considered the competing submissions, I am satisfied that evidence on this topic is relevant to the issues in the trial for the reasons advanced by the Crown (at [338]-[339] above). Of course, the test of relevance does not require that each piece of evidence be critical and central to the prosecution case. In a case such as this where there is a complicated series of events alleged over an extended period of time involving different human and corporate participants, then there may be events which are of less significance, but are necessarily relevant to the issues in the trial, either directly or indirectly. I am satisfied that evidence on this topic is relevant.

342 Having reached that point, I note that the Crown has proposed a way forward which may shorten the evidence on these issues and that the Accused will consider the Crown’s proposal if the evidence is found to be relevant. Having so found, I will proceed upon the basis that the parties will give sensible consideration to this topic with a view to facilitating the trial process.

Conclusion

343 In summary, I have reached the following conclusions with respect to the issues raised by the Accused’s Further Amended Notice of Motion:

(a) I am not satisfied that the prosecution of the Accused on the present indictment, containing two counts, constitutes an abuse of process and I decline to permanently stay the prosecution on that indictment;

(b) I decline to admit as an exhibit at trial the report dated 3 June 2010 of Shaun Evan Mark - the Crown will have an opportunity to consider whether it seeks to adduce evidence from Mr Mark in accordance with the matters referred to in this judgment;

(c) I decline to exclude the evidence contained in the affidavits of Mr Langeveld, Mr Pfammetter and Mr Stemberger;

(d) I decline to exclude the foreign business records to which objection has been taken;

(e) I decline to direct the Crown to call as witnesses any, or all, of the persons specified in the defence request;

Evidence Act 1995

344 The parties will have an opportunity over the next few days to consider this judgment, and its impact upon the trial fixed to commence on 18 October 2010. I will keep firmly in mind the indications from the parties that appropriate procedures ought be utilised to ensure the effective and continuous use of court time with a jury once the trial commences. I will seek to discharge my duty as the trial Judge to ensure a trial that is fair to the Accused and the Crown, and to take steps which assist the jury to receive, in an understandable form, evidence which bears upon the jury’s fact-finding functions for the purpose of returning verdicts.

345 There is considerable scope in this case for proper and effective use of summaries under s.50 Evidence Act 1995, and charts and chronologies which will assist the jury at trial. It may be expected that a chronology will be provided to the jury as part of my summing up, and that counsel should be giving consideration to the content of a chronology in advance of the commencement of the trial.

346 I will list the matter for further pretrial hearing in the near future to allow an assessment of matters which require consideration and, if necessary, determination by me before trial.

347 I make the following orders:

(a) I refuse the application by the Accused for a permanent stay of the prosecution on the present indictment;

(b) I decline to admit into evidence the report dated 3 June 2010 of Shaun Evan Mark, but will hear the Crown further with respect to evidence of Mr Mark which the Crown seeks to tender;

(c) I decline to exclude from evidence any part of the affidavit of Wim Langeveld sworn 20 November 2009, the affidavit of Claudio Pfammetter sworn 9 December 2009 or the affidavit of Vladimir Stemberger sworn 21 January 2010;

(d) I decline to exclude from evidence any of the documents tendered by the Crown under the Foreign Evidence Act 1994 (Cth) ;

(e) I decline to direct the Crown to call as witnesses any of the persons specified by the Accused in notices issued for this purpose;

Evidence Act 1995

Evidence Act 1995.

348 I will hear the parties concerning a suitable date next week when the matter will come before me again to consider what further pretrial steps need to be taken.

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CITATION:	R (Cth) v Milne (No. 1) [2010] NSWSC 932
HEARING DATE(S):	29 July 2010, 30 July 2010, 4 August 2010
JUDGMENT DATE :	19 August 2010
JUDGMENT OF:	Johnson J at 1
DECISION:	1. The application by the Accused for a permanent stay of the prosecution on the present indictment is refused. 2. The application to admit into evidence the report dated 3 June 2010 of Shaun Evan Mark is declined. The Crown will be heard further with respect to any evidence of Mr Mark which the Crown seeks to tender. 3. The application to exclude from evidence any part of the affidavit of Wim Langeveld sworn 20 November 2009, the affidavit of Claudio Pfammetter sworn 9 December 2009 or the affidavit of Vladimir Stemberger sworn 21 January 2010 is declined. 4. The application to exclude from evidence any of the documents tendered by the Crown under the Foreign Evidence Act 1994 (Cth) is declined. 5. The application to direct the Crown to call as witnesses any of the persons specified by the Accused in notices issued for this purpose is declined. 6. The evidence identified in paragraphs 7(a) and (c) of the Further Amended Notice of Motion is admissible under s.55 and s.56 Evidence Act 1995 and the application to exclude that evidence under s.135 or s.137 Evidence Act 1995 is declined.
CATCHWORDS:	CRIMINAL LAW - pretrial rulings - indictment alleging money laundering and dishonest obtaining offences - s.400.3(1) and s.135(1) Criminal Code Act 1995 (Cth) - application for permanent stay upon grounds of abuse of process - stay refused - Crown seeks to tender expert report of accountant/financial analyst - objection to tender on various grounds - tender of report rejected - Crown to rely upon documents under Foreign Evidence Act 1994 (Cth) - objection to tender on various grounds - objections overruled - application by Accused under s.169 Evidence Act 1995 for order that persons attend to give evidence - application refused - objection to certain evidence on grounds of relevance and under ss.135 and 137 Evidence Act 1995 - objection overruled
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Evidence Act 1995 Criminal Procedure Act 1986 Criminal Procedure Amendment (Case Management) Act 2009 Crimes Act 1914 (Cth) Copyright Act 1968 (Cth) Crimes Act 1900 Mutual Assistance in Criminal Matters Act 1987 (Cth) Foreign Evidence Act 1994 (Cth) Proceeds of Crime Act 2002 (Cth) Drug Misuse and Trafficking Act 1985 Foreign Evidence Amendment Act 2010 (Cth) Judiciary Act 1903 (Cth) Evidence Act 1906 (WA) Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Gately v The Queen [2007] HCA 55; 232 CLR 208 Smith v The Queen [1970] HCA 48; 121 CLR 572 Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 R v Sam (No. 14) [2009] NSWSC 561 R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Thorn v R [2009] NSWCCA 294 Nahlous v R [2010] NSWCCA 58 R v Jones; R v Hili [2010] NSWCCA 108 The Queen v Carroll [2002] HCA 55; 213 CLR 635 Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328 The Queen v Hoar [1981] HCA 67; 148 CLR 32 R (Cth) v Petroulias (No. 1) [2006] NSWSC 788; 217 FLR 242 R v Langdon [2004] VSCA 205; 11 VR 18 R v Henderson-Drife [2007] VSCA 211 R v King [2007] VSCA 38 R v NOR [2005] VSCA 46; 11 VR 390 R v Orgill [2007] VSCA 236 R v Ansari [2007] NSWCCA 204; 70 NSWLR 89 Ansari v The Queen [2010] HCA 18; 266 ALR 446 R v Foster [2008] QCA 90; (2009) 1 Qd R 53 R v Wing Cheong Li [2010] NSWCCA 125 R v Guo; R v Qian [2010] NSWCCA 170 Kinchela v R [2010] NSWCCA 167 Schembri v R [2010] NSWCCA 149 Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 55 NSWLR 705 Australian Securities and Investment Commission v Rich [2005] NSWCA 152; 218 ALR 764 Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 Harrington-Smith v State of Western Australia (No. 7) (1993) 130 FCR 424 Evans Deacon Pty Limited v Sebel Furniture Limited [2003] FCA 171 Director of Public Prosecutions (NSW) v Tong [2004] NSWSC 689; 151 A Crim R 296 Joam v Minister for Immigration and Multicultural Affairs (2002) FCA 107 R (Cth) v Petroulias (No. 22) [2007] NSWSC 692; 176 A Crim R 309 R v Cox (Ruling No. 1) [2005] VSC 157 R v Cox (Ruling No. 2) [2005] VSC 224 R v Ferguson [2009] VSCA 198 R v Mitchell [1971] VR 46 R v Parker [1912] VLR 152 Caratti v R (2000) 22 WAR 527 R v Rich (Ruling No. 10) [2009] VSC 10 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Director of Public Prosecutions (Cth) v Hart [2005] QCA 51 Gray v Official Trustee in Bankruptcy (1991) 29 FCR 166 Putland v The Queen [2004] HCA 8; 218 CLR 174 Northern Territory of Australia v GPAO [1999] HCA 8; 196 CLR 553 Bell Group Limited (In Liquidation) v Westpac Banking Corporation [2004] WASC 162; 208 ALR 491 R v Basha (1989) 39 A Crim R 337 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 Trimcoll Pty Limited v Deputy Commissioner of Taxation [2007] NSWCA 307 R v Hally (1962) Qd R 214
PARTIES:	Regina (Cth) (Crown) Michael John Milne (Accused)
FILE NUMBER(S):	SC 2008/269487; 2008/54586
COUNSEL:	Mr P Hastings QC; Mr D Jordan (Crown) Mr M Wigney SC; Mr M Polden (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Johnson Winter & Slattery (Accused)