R v Pratten (No 21)
[2015] NSWSC 1112
•17 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: R v Pratten (No 21) [2015] NSWSC 1112 Hearing dates: 13 – 15 July 2015; 17 July 2015 Date of orders: 17 July 2015 Decision date: 17 July 2015 Jurisdiction: Common Law Before: Rothman J Decision: The document is inadmissible.
Category: Procedural and other rulings Parties: M. McHugh SC/with T. Berberian (Crown)
S. Grant/with B. Dean (Accused)Representation: Counsel:
Solicitors:
M. McHugh SC/with T. Berberian (Crown)
S. Grant/with B. Dean (Accused)
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 a document described as document 20 and currently attached to the statement of Thomas Rowland Walker, an agent of the Australian Federal Police. As a matter of abundant caution, I will mark the statement and its attachments, including the stickers 20 and 22, as Exhibit A on the voir dire.
The document that is in issue is a printout of a website. The printout occurred in 4 April 2012. It is a website that refers at length to a company called Chartered Pacific Insurance Brokers. It also refers to Rural and General Insurance Brokers and it uses the website address cpi.com.vu which on evidence that has already been received is or was the website address of Commercial Pacific Insurance, a company highly relevant to the issues in these proceedings.
There are a number of aspects of the document that it is necessary to recite. First, the document bears a copyright impression at the foot of each page, which, at the least suggests and I would say overwhelmingly discloses, that the original document was published in or about 2008 on the internet, or was compiled in 2008. The second aspect is, as earlier stated, that the document was printed in 2012 and the third aspect is that the document’s content, particularly at page 3 of 4 of that part of the website which states why “Chartered Pacific Insurance recommends Doing Business in Vanuatu because of;-”, reveals that the second dot point at the foot of page 3 of 4 was crafted at a point in time before 2011, but at a time when the plans of certain airlines for 2011 were known. The suggestion made in submissions, which suggestion I accept, is that that paragraph was possibly crafted in or about 2010.
The contents of the document, if they are able to be associated with Mr Pratten and with the time of the establishment of Commercial Pacific Insurance and/or with the arrangements made that giving rise to the financial relationships between Mr Pratten and Commercial Pacific Insurance, are highly relevant. Page 1 of 4 states on the website some of the financial advantages and aspects of establishing a business in Vanuatu and utilising the kind of arrangement that it is suggested by the Crown was utilised by Mr Pratten. This makes the document, given the relationship between Mr Pratten and the abovementioned website address and given the importance of the state of knowledge of Mr Pratten as to financial relationships, to the advantages of establishing a business in Vanuatu and to the need for "secrecy", a document that is significantly probative. It seems to me, and I rule that the document is relevant.
However, the difficulty with the document, in my view, is that even though I accept that the content of the document was originally posted sometime in 2008, other aspects of the document plainly show that the content has been amended since it was originally posted, assuming for that purpose that it was originally posted in 2008.
One then is left with the proposition that a document which, which is highly probative on the assessment already made by me, is material that the Crown seeks to rely upon even though the Crown cannot determine, the content of the document. It is not clear whether the material relating to the advantages of establishing business in Vanuatu and the features of a business in Vanuatu were matters that were published prior to 29 October 2009, which was the last date when Mr Pratten filed an income tax return, which is a subject of the charges before the Court.
Evidence of a state of knowledge later in time can in certain circumstances be used to prove a state of knowledge at a relevant time. However, that is a very dangerous thing to do without a basis for it, particularly where the state of knowledge of the accused is a matter that is so crucial to the proceedings in this case.
No objection is taken as to the provenance of the document, but the document invites the jury to utilise a state of knowledge as a basis for a state of mind in circumstances where it is not clear that the state of knowledge is one that relates to the relevant time period. Such a process of reasoning is significantly dangerous and imports a danger of inappropriate and improper reasoning to the extent that the danger of unfair prejudice outweighs its probative value. Therefore, even though probative value of the document is significant, I reject the tender of the document.
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Decision last updated: 04 July 2016
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