R v Pratten (No 19)

[2015] NSWSC 1111

Supreme Court

New South Wales

Medium Neutral Citation:	R v Pratten (No 19) [2015] NSWSC 1111
Hearing dates:	13 – 15 July 2015; 17 July 2015; 20 – 23 July 2015; 27 July 2015
Date of orders:	27 July 2015
Decision date:	27 July 2015
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	The documents, comprising of notices of assessment of income tax issued for the tax years ending 30 June 1993 to 30 June 2002, are admissible.
Catchwords:	EVIDENCE – admissibility of notices of assessment of income tax relating to year period before the charge period – assessments are relevant and any unfair prejudice may be overcome by appropriate direction – assessments admitted
Legislation Cited:	Evidence Act 1995
Category:	Procedural and other rulings
Parties:	M. McHugh SC/with T. Berberian (Crown) S. Grant/with B. Dean (Accused)
Representation:	Counsel: M. McHugh SC/with T. Berberian (Crown) S. Grant/with B. Dean (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) O’Brien & Hudson Solicitors (Accused)
File Number(s):	2010/00315475
Publication restriction:	None

EX TEMPORE Judgment

HIS HONOUR: Before the Court is an issue relating to the admissibility of Exhibit B on the voir dire, which are notices of assessment of income tax issued between February 1997 and August 2005 for the tax years ending 30 June 1993 through to 30 June 2002. Two objections to their admissibility are raised by the defence. The first is the relevance of the assessments and the second is the unfair prejudice to the accused, as there is a real danger that the jury will embark upon speculation as to the veracity of the tax assessments from 1993 to 2002.

I shall deal first with the relevance objection. I shall not repeat, as I have on a number of other occasions, the definition of relevance in the Evidence Act 1995 and the fact that all relevant evidence is admissible, subject to the exceptions otherwise contained in that legislation. In my view, the questions before the jury include, amongst other things, the source of the income and the benefit of that income that was said to have been utilised by Mr Pratten during the tax year ending 30 June 2003 through to the tax year ending 30 June 2009.

In the absence of any attempt to deal with income in the years between 1993 and 2002 (and even if the defence does not raise the issue in these terms) jury would be prone to speculate as to whether the monies received, or the benefit received, during the charge years were the result of earlier accumulated wealth that was distributed during the charge years and, therefore, not caught by the limited definitions of income for the purposes of this case.

I hasten to add that, as I understand the Crown case, income for the purposes of these charges is income in the ordinary sense, not in any special statutory sense. As a consequence of that proposition, it seems to me that the tax assessments in question are indirectly relevant to a fact in issue in the proceedings and are therefore relevant.

The next objection goes to the issue of whether the notices of assessment of income tax are prone to raise a danger of unfair prejudice. It seems to me that the prejudice identified by the accused, or on his behalf, is a prejudice that can very easily be overcome with appropriate directions as to the veracity, or presumed veracity of these assessments and the absence of any evidence led by the Crown of any default or amended assessment associated with the use of income.

The matters before the Court are not uncomplicated. The jury is required to deal with some complicated relationships between various corporate entities and the accused. In part these assessments, including the presumption of their veracity, may well assist the jury in understanding better the need to separate out the affairs of a corporate entity, which has been established and operates, from the personal affairs of Mr Pratten.

In my view, there is no danger of unfair prejudice that cannot be overcome by an appropriately worded direction, and I therefore allow the documents to be tendered.

**********

Decision last updated: 04 July 2016