R v Sigalla (No. 5)

[2016] NSWSC 1921

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sigalla (No. 5) [2016] NSWSC 1921
Hearing dates:	14 November 2016
Date of orders:	14 November 2016
Decision date:	14 November 2016
Before:	Adamson J
Decision:	Documents tendered on behalf of the accused rejected on grounds of relevance.
Catchwords:	CRIMINAL LAW – evidence – documents tendered on behalf of the accused – relevance – documents rejected on grounds of relevance
Legislation Cited:	Evidence Act 1995 (NSW), s 56(2)
Cases Cited:	Nil
Category:	Procedural and other rulings
Parties:	Regina Andrew John Sigalla
Representation:	Counsel: P McDonald SC/ S Callan (Crown) W P Brewer (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brendan Pigott (Accused)
File Number(s):	2013/1511552013/355116
Publication restriction:	Nil

JUDGMENT

1. Mr Brewer, who appeared on behalf of the accused, tendered the following three documents which I have marked for identification MFI 43:

1. A deed of release dated 2 June 2009 between the accused, TZ Ltd and Telezygology Inc (the 2009 Deed of Release);

2. A deed of settlement dated 17 August 2011 between the accused, TZ Ltd, Telezygology Inc, BZI Pty Limited, ZMS Investments Pty Ltd and Melissa Sigalla (the 2011 Deed of Settlement); and

3. A deed of release dated 17 August 2011 between the accused, TZ Ltd, Telezygology Inc, BZI Pty Limited, ZMS Investments Pty Ltd and Melissa Sigalla (the 2011 Deed of Release).

2. I rejected the tender of each of these three documents on the grounds of relevance. What follow are my reasons for the ruling.

3. The counts with which the accused stands indicted relate to alleged conduct between December 2006 and 2 March 2009. On 2 June 2009 the accused resigned as a director of TZ Ltd and from his employment with Telezygology Inc as a result of which the 2009 Deed of Release was executed. Thereafter a new board was appointed, which began investigating payments made by TZ Ltd to the accused and his companies and at his direction which led to a letter from TZ Ltd’s new solicitors, Landerer & Co, in August 2009 to the accused questioning certain payments.

4. Ultimately, TZ Ltd commenced proceedings in this Court (2009/00290315, formerly 4286 of 2009) against the accused, BZI Pty Limited and ZMS Investments Pty Ltd. Thereafter, the accused commenced proceedings (2009/290688, formerly 4682 of 2009) against TZ Ltd. The 2011 Deed of Release and the 2011 Deed of Settlement brought to an end the issues between the parties arising from those proceedings.

5. In my view, the 2009 Deed of Release has no bearing on the criminal trial since it was entered into at a time before the new board had had the opportunity to analyse the transactions the subject of the proceedings.

6. Mr Brewer argued, in support of the tender of the 2011 Deed of Release and the 2011 Deed of Settlement, that it was relevant for the jury to know of the terms on which the proceedings were resolved, since the letter from Landerer & Co dated August 2009 and the accused’s response were in evidence. I accept that it may be relevant for the jury to know that the proceedings were resolved, if only to prevent idle speculation concerning their outcome. However, I am of the view that the details of the terms of the resolution (which are contained in the two deeds executed in 2011) could only be a distraction. Any arrangement that TZ Ltd sought fit to make with the accused and his companies is binding only on the parties and is not evidence of the fact of any entitlement or otherwise. I infer that the agreements reflect a compromise brought about by the commercial interests of the contracting parties. Since the Crown opposes the tender, it is plain that nothing in the agreements is relied upon as an admission against the accused.

7. As the documents are irrelevant, they are inadmissible and ought be rejected: s 56(2), Evidence Act 1995 (NSW).

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Decision last updated: 17 February 2017