R v Pratten (No 23)
[2015] NSWSC 1132
•10 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: R v Pratten (No 23) [2015] NSWSC 1132 Hearing dates: 10 July 2015 Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Common Law Before: Rothman J Decision: See [10]
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 and, if not admissible, the capacity of the Crown to use as an aide memoire, that which is document Exhibit 2 on the voir dire.
I have no intention of repeating the general nature of the case before the Court, save that it is a case involving charges for obtaining a financial advantage from the Commonwealth dishonestly and by deception arising from the lodging of tax returns which did not disclose the full amount of the accused’s income.
I have already congratulated the parties for the degree of co-operation in summarising and providing, in a comprehensible way, a vast amount of documentation that would otherwise be impossible for a jury properly to analyse. Exhibit 2 on the voir dire is one of the documents that the Crown wishes to put into the Crown tender bundle, which has been served on the accused and which he has had an opportunity to examine.
The issue that has come before me is the manner in which some of the calculations contained in this document are described, and there has been, once more, a commendable degree of co-operation between the parties in order to avoid greater prejudice than might otherwise be the case in an document of this kind. It is, however, accurate to say that the document is a calculation is an addition of amounts that are to be described in the evidence of a witness, Ms Celona, as funds that have flowed between various accounts.
One column in the summary sheet calculates the addition of each of those figures without any other comment, that is, without dividing those figures into various categories. A second column relies upon evidence to be given by another witness and calculates the tax that would be payable, assuming that all of the amounts earlier described are taxable income and that there are no further deductions that would be allowed as a consequence of the additional income or otherwise.
There are two aspects to the issue that is before the Court. First, Exhibit 2 on the voir dire is a document that fits the description of a summary of other documents in s 50(1) of the Evidence Act 1995. Some of those other documents are summarised elsewhere, but this is a summary in arithmetical terms. The calculations performed in the document would not be possible for a jury to conveniently examine because of the volume, complexity or requirement for arithmetical knowledge and/or knowledge of how the income tax scales work. As a consequence, it seems to me that the document is one that fits within s 50(1) of the Evidence Act as earlier stated. The document has been served on the accused and the accused has had a reasonable opportunity to examine the document.
The second and real issue is one that arises under s 137 of the Evidence Act, namely, does the document in the form finally agreed unfairly prejudice the accused by the way in which the jury will deal with it? There is no doubt that there would be a need for some explanation of the document. The accused, understandably, suggests that it would give rise to unfair prejudice on the basis of an inappropriate process of reasoning on which the jury may embark. That is an interesting turn of phrase that has been used when dealing with other kinds of evidence, particularly evidence of similar facts and coincidence.
It seems to me that if there be a risk the jury might embark upon a process of impermissible reasoning, the risk can be eliminated by appropriate directions to the point where it no longer exists. Even if my confidence is misplaced, and I hasten to add that I have great confidence in the capacity of juries, it will certainly be ameliorated to the point where it will not outweigh the probative value and convenience associated with having such a document before the jury.
I add that it will be necessary for me in the directions I provide to inform the jury that the accuracy of this summary depends wholly on the acceptance of Ms Celona's analysis and the acceptance of each of the amounts described by her as income. The accuracy of the summary also depends upon the non-existence of other allowable deductions that might be claimed, bearing in mind that it is for the Crown to prove the financial advantage to the requisite standard and the foregoing is not intended to reverse the onus.
It seems to me that such directions, if appropriately stressed, will eliminate the risk to which the accused refers. As a consequence, I do not consider that the provisions of s 137 of the Evidence Act mandate that the document, Exhibit 2 on the voir dire, as amended in court today, would unfairly prejudice the accused. In those circumstances, I would allow the document to be tendered and allow it to go into the tender bundle of the Crown.
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Decision last updated: 04 July 2016
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