Supreme Court Denies Pre-Trial Hearing on Fringe Benefit Tax Evidence

The court denied an application for a pre-trial hearing on the admissibility of evidence related to fringe benefit tax matters, ruling that the issue should be addressed during the trial itself.

New South Wales Supreme Court

CITATION : R (Cth) v [NAME] (No. 10) [2007] NSWSC 532

HEARING DATE(S) : 1 March 2007

JUDGMENT DATE : 1 March 2007

JUDGMENT OF : Johnson J at 1

EX TEMPORE JUDGMENT DATE : 1 March 2007

DECISION : Application by [NAME] for pretrial hearing on objection to evidence in light of the decision in Commissioner of Taxation v [COMPANY] (Qld) Pty Limited [2007] FCAFC 16 is refused.

CATCHWORDS : CRIMINAL LAW - application for pretrial hearing on admissibility of evidence - application refused

LEGISLATION CITED : Crimes Act 1914 (Cth)

Commissioner of Taxation v [COMPANY] (Qld) Pty Limited [2007] FCAFC 16 R v [NAME] (No. 1) [2006] NSWSC 788 [COMPANY] v Commissioner of Taxation [2002] 51 ATR 629 [COMPANY] v Commissioner of Taxation [2003] 138 FCR 1 CASES CITED : [COMPANY] v Commissioner of Taxation [2004] 55 ATR 745 [COMPANY] v Commissioner of Taxation [2004] 213 ALR 450 [COMPANY]) Pty Limited v Commissioner of Taxation [2006] FCA 734 [NAME] v [NAME] (No. 2) [2003] 58 NSWLR 618 R v Petroulias [2005] 62 NSWLR 663

PARTIES : Regina (Commonwealth) (Crown) [NAME] ([NAME])

FILE NUMBER(S) : SC 2002/93

COUNSEL : [redacted] Mr R [NAME] SC; [NAME] ([NAME])

SOLICITORS : [redacted] [NAME] ([NAME])

LOWER COURT DATE OF DECISION : ---

LOWER COURT MEDIUM NEUTRAL CITATION : ---

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

Johnson J

1 March 2007

2002/93 Regina (Commonwealth) v [NAME] (No. 10)

JUDGMENT (on application by [NAME] for pre-trial hearing on objection to evidence in light of the decision in Commissioner of Taxation v [COMPANY] (Qld) Pty Limited [2007] FCAFC 16 - see PT919) 1 JOHNSON J: On 20 July 2006, I commenced to hear a series of pre-trial applications, in advance of the trial of the [NAME], upon a number of counts alleging:

(a) defrauding the Commonwealth under s.29D Crimes Act 1914 (Cth) ;

(b) agreeing to receive a benefit, namely money, whilst an officer of the Commonwealth on an understanding that the exercise by him of his duty as an officer of the Commonwealth would be affected: s.73 Crimes Act 1914 (Cth) ; and

(c) whilst an officer of the Commonwealth, publishing to [NAME], a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose: s.70 Crimes Act 1914 (Cth) . 2 I have delivered a series of judgments on pre-trial applications heard since July 2006. The trial is fixed to commence before a jury on Monday next, 5 March 2007. 3 Yesterday evening, 28 February 2007, an email was received from Senior Counsel for the [NAME] indicating a desire to raise a further pre-trial argument. Reference was made to a decision of the [ADDRESS] of the Federal Court of Australia in Commissioner of Taxation v [COMPANY] (Qld) Pty Limited [2007] FCAFC 16, a decision given on 22 February 2007. It was foreshadowed that this decision provided a foundation for a further argument with respect to an aspect of evidence in the case. 4 Today, the matter being before me for mention for the purpose of any procedural issues before the commencement of the trial next Monday, [NAME], for the [NAME], has indicated a desire to seek a pre-trial hearing. 5 Application was made for a temporary stay of the trial to allow representations to be made on behalf of the [NAME] to the Commonwealth Director of Public Prosecutions in light of the decision of the Full Federal Court in Indooroopilly. I infer that this has not yet been done, despite the fact that the decision was handed down a week ago. I do not regard this as being a reason for an adjournment of the trial. It is open to the legal representatives for the [NAME], as it has been since 22 February 2007, to make such representations as they see fit to the Director in that respect. 6 Application was made for a temporary stay of the trial to allow time to prepare an argument based upon the Indooroopilly decision which could be advanced by way of pre-trial application. I sought from [NAME] an indication as to the arguments which he sought to advance by reference to the decision in Indooroopilly, and asked him to identify with some precision the nature of the pre-trial application which he seeks to make. In its final form, the application was said to be an application to exclude evidence concerning fringe benefit tax matters, including the evidence of what I will describe as the [NAME] paper and other pieces of evidence, on the ground that they are not relevant to the case. It was submitted that the Crown ought not be allowed to open the case until that issue of relevance had been determined. 7 The Crown submitted that an earlier judgment of mine on a pre-trial application had effectively dealt with this matter, based upon earlier Federal Court of Australia decisions, and that the recent Indooroopilly decision did not, in any material sense, alter the position. 8 In my judgment of 8 August 2006, R v [NAME] (No. 1) [2006] NSWSC 788, I considered a number of applications made at that time by Senior Counsel for the [NAME] seeking, amongst other things, a permanent stay of the first count of fraud, or an order quashing that count on the indictment. Arguments advanced over a number of days included the proposition that the s.29D count was foredoomed to fail on the issue of deprivation. At paragraph 100 and following of my judgment of 8 August 2006, I referred to a number of matters which had been raised in support of that argument. 9 As is clear from paragraph 102 of my judgment, [NAME], then appearing for the [NAME], relied upon the decisions of Kiefel J in [COMPANY] v Commissioner of Taxation [2002] 51 ATR 629, the decision of Hill J in [COMPANY] v Commissioner of Taxation [2003] 138 FCR 1, the decision of Merkel J in [COMPANY] v Commissioner of Taxation [2004] 55 ATR 745, the decision of the Full Federal Court comprising Ryan, Sackville and Sundberg JJ in [COMPANY] v Commissioner of Taxation [2004] 213 ALR 450 and the decision, at first instance, in Indooroopilly of Collier J at [2006] FCA 734. 10 It is fair to say that those decisions involved findings and conclusions by the various judges of the Federal Court of Australia on the issues raised in them, which were then relied upon in argument in earlier proceedings concerning this [NAME]. [ADDRESS] of Appeal in [NAME] v [NAME] (No. 2) [2003] 58 NSWLR 618 was invited to reconsider its earlier decision on the basis of the judgments in [NAME]. At paragraphs 108 and 109 of my judgment of 8 August 2006, I extracted passages from the judgment of Spigelman CJ (Handley and Santow JJA agreeing) with respect to those matters. [ADDRESS] of Criminal Appeal in R v Petroulias [2005] 62 NSWLR 663 considered aspects of the Federal Court decisions. It was a well-known fact, advocated by the [NAME] by that time, that there was a series of Federal Court decisions commencing with [NAME] which the [NAME] said ought lead to a stay of the s.29D count against him. 13 It does not appear that the Court of Criminal Appeal, in either the joint judgment of the Chief Justice and Hunt AJA or the separate judgment of [NAME], expressed the view that the result of the Federal Court decisions at that time rendered irrelevant to the trial the evidence which may bear upon this issue, including the [NAME] document and other pieces of evidence referred to by [NAME], and repeated at paragraph 123 of my judgment. Indeed, the question was ultimately how these issues were to be left to the jury. 14 To date, no pre-trial application has been made before me seeking to exclude the [NAME] and other evidence upon the basis that it is irrelevant to this trial. [NAME] now submits that the effect of the Federal Court decision of Indooroopilly is such that there is a strong finding which ought lead to a conclusion that the evidence which the Crown seeks to lead on this issue is irrelevant and inadmissible and that this issue ought be determined as a pre-trial issue. 15 I do not agree. It is clear that the decision of the Full Federal Court in Indooroopilly rejects arguments advanced on behalf of the Commissioner of Taxation, and affirms the line of authority to which I have referred. This line of authority has already been the subject of argument at earlier points in proceedings involving the [NAME] before the Court of Appeal, the Court of Criminal Appeal, Sully J and myself. 16 I do not consider that the latest Federal Court decision, as a matter of law, gives rise to a clear basis for a pre-trial application, or the foundation for a pre-trial application to exclude evidence. 17 It seems to me that the appropriate way in which issues arising from the Indooroopilly decision (and indeed, the earlier Federal Court decisions) may be considered is in the context of the trial itself. That is what the Court of Criminal Appeal envisaged in 2005. How these issues will be determined, and whether they bear upon the admissibility of any particular piece or pieces of evidence will be matters to be considered and ruled upon in the event that the issue arises. It may be that there is argument at the end of the Crown case in the light of the evidence actually adduced. It may be, and one may confidently predict there will be, submissions as to the directions to be given to the jury on these issues. 18 I am satisfied, however, that this is not an appropriate matter to be determined as a pre-trial application. In my view, Indooroopilly does not raise a new and clear basis. It is a basis that would have been open to the [NAME] in the past, but has not been the subject of earlier application. 19 In my view, the appropriate course to deal with this issue is in the manner in which I have foreshadowed - in the course of the trial itself. 20 I refuse the application for a pre-trial hearing with respect to this question. **********

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