Ground 4: that the Crown has used the induced statements in a derivative manner
72This ground of appeal requires an examination of the procedural history in the matter.
73The DPP advised Mr Calleija's solicitors by letter dated 8 December 2010, that his application for the charges against him be "no billed" had been rejected. The DPP also advised that it proposed to proceed upon 11 separate charges. This was in contrast to an earlier position taken by the DPP when Mr Calleija's then legal representatives were engaged in plea negotiations with the DPP. It appears at that time, it was indicated that only two counts were to be preferred.
74The DPP provided, in draft form, the proposed indictment containing 11 charges. At about the same time, the DPP provided Mr Calleija's solicitors with an overview and summary of evidence. This was the summary that was based upon and expressly referred to Mr Calleija's induced statements. A second overview and summary of evidence was then served. This document contained no reference to the induced statements. Nor was it based upon information obtained by the prosecuting authorities from the induced statements. At the same time, the Crown advised that it intended to rely upon the evidence of 11 further witnesses.
75By letter dated 23 February 2011, Mr Calleija's solicitors objected to the proposed reliance upon these witnesses. The solicitors contended that Mr Calleija was severely prejudiced by the late service of the witnesses' statements and that, in any event, the proposed evidence of the new witnesses was irrelevant and prejudicial and of no direct probative value in the prosecution of Mr Calleija. The DPP did not withdraw its intended reliance upon the 11 witnesses. However, Frearson DCJ ruled that the evidence of those witnesses was inadmissible. There has been no challenge by the Crown to that ruling.
76Mr Calleija complains that although there will be no direct reliance upon the material in the induced statements, that material is to be used in a derivative way and he submitted that was unfair, giving rise to an abuse of process. In essence, Mr Calleija contended that the DPP's preparation and its proposed manner of conducting the prosecution has been fashioned having regard to the information contained in Mr Calleija's induced statements. Counsel submitted that the Crown case has been derived from the information in the induced statements so that the Crown was now aware of Mr Calleija's defence, namely, that he believed his accountants when they told him the scheme was legal.
77Mr Calleija asserted that the Crown has thus derived an advantage from its knowledge of the content of the induced statements, which it would not have, had those statements not been made. He contended that the Crown, being so armed with this material, has a tactical advantage over him, particularly in relation to knowing what his defence will be. Mr Calleija contended that no fair-minded person would consider this to be "fair play".
78The trial judge accepted that the induced statements had expedited and focused the investigation into the tax fraud. His Honour also accepted that the induced statements assisted the police and the DPP in understanding how the scheme had operated. However, his Honour concluded it had not been demonstrated that the prosecution had derived some unfair advantage resulting from the use of the induced statements such that any trial would be unfair.
79I have already referred to the ineptness of the Crown in serving a statement based on information contained in Mr Calleija's induced statements. It undoubtedly caused very real dismay and concern to Mr Calleija and his legal representatives. However, the position has been remedied and the present overview and summary of facts has been prepared from documentation and material upon which the Crown is legitimately entitled to rely in the prosecution of Mr Calleija.
80Counsel for Mr Calleija submitted that this would not overcome the prejudice. Mr Calleija argued that if he was called to give evidence in his defence, the Crown would have the advantage of the material in his induced statements for the purposes of cross-examination. He referred, by way of example, to paras (254) and (255) of the abandoned summary, which refers to information provided by Mr Calleija in his induced statement that he thought that one of the companies within the scheme, was a bogus company set up by Mr Agius. He also said that to him it was all a sham. He also admitted, in his induced statement of 20 April 2009, that he had initially given false answers to the ATO when they first questioned him about the matter.
81The Crown accepted that the prosecution cannot use any information from the induced statements in any trial of Mr Calleija. It also accepted that the first overview and summary of facts was wrongly served on Mr Calleija. It submitted, however, that that overview and summary of facts, upon which the Crown now relies, is based upon information, none of which has been derived from the induced statements. The fact that the Crown is in possession of information from Mr Calleija, obtained from the induced statements does not render, by that fact alone, the prosecution against him an abuse of process. Mr Calleija's counsel conceded as much. However, he relies upon an accumulation of factors relating to and flowing from the making of the induced statements to support his argument. In this regard, he raised five specific points.
82First, there was not one but three induced statements given over a period of two and a half years. Secondly, Mr Calleija was the first person of those involved in the scheme to provide information to the authorities. Other persons in the scheme were charged using the material obtained from the induced statements. In that regard, of the 11 persons linked to the scheme, nine had been successfully prosecuted and two had been granted an indemnity from prosecution. Thirdly, as late as April 2009, Mr Calleija, on the assumption that he was to be a witness in the trial of Mr Agius, had provided a statement preparatory for use in that trial. Fourthly, in October 2009, when his reasonable expectation was that he would not be charged, he was informed that charges were to be brought against him. Finally, Mr Calleija's counsel also reiterated that the first summary of facts although abandoned, had nonetheless been used to structure the Crown case against Mr Calleija.
83Mr Calleija's counsel submitted that these factors demonstrated this was a very unusual case. He submitted that the taking of an induced statement was not meant for a case like this, where a person had assisted the prosecution authorities in a way that had enabled them to mount other prosecutions.
84As is apparent from the summary of facts to be used at trial, the case against Mr Calleija is based upon documentation including Mr Calleija's personal and company tax returns, bank documentation of entities alleged to be involved in the scheme and other documentation which has come into the Crown's possession in the course of the investigation. In other words, it is a circumstantial case. The Crown does not and cannot rely upon any information or documentation that was obtained in the course of Mr Calleija giving the induced statements.
85Mr Calleija's counsel next contended that the documentation upon which the Crown proposes to rely cannot speak for itself. Counsel reiterated that Mr Calleija had linked the various aspects of the case together for the police. Counsel contended it was as a result of that linkage that the prosecuting authorities were able to "[prepare] a game plan" for Mr Calleija's prosecution. It was submitted that without the understanding of the scheme that Mr Calleija had provided, the Crown would not be able to successfully prosecute him.
86Mr Calleija's counsel re-emphasised that the induced statements had allowed the Crown to look at the whole of the defence case, so it would know every aspect that Mr Calleija might raise in his defence. He submitted that the Crown was therefore in a far superior tactical position in the preparation of its case than Mr Calleija. Mr Calleija's counsel was not able to point to any specific disadvantage arising from the Crown being in possession of his induced statements, other than that the information was used to structure the prosecutions against the other participants and must have been used to structure the case against Mr Calleija.
87Mr Calleija's counsel submitted that prejudice of this type had been recognised as giving rise to unfairness: see R v M [2010] NSWDC 200. In that case, Berman DCJ stated, at [74], that one of the most obvious factors in determining whether an accused person was prejudiced or would otherwise suffer a detriment by having given an induced statement was whether the person gave the police information beyond that which they already knew. His Honour stated:
"In other words, the question of detriment or otherwise could only really be determined by comparing what the accused said in his induced statement with the other evidence the Crown had available against him."
His Honour observed that in the case he was determining, neither the Crown nor the accused had provided him with material that would enable that comparison to be made.
88The Court requested Mr Calleija's counsel to identify any information in the induced statements that was replicated in the summary of facts upon which the Crown proposes to rely at trial. Not only did counsel not do so for the benefit of this Court, he had not done so in the course of the application before Frearson DCJ. I infer that there was no such replication of material.
89Mr Calleija's counsel refocussed his submission to point out that as a result of information provided to them by Mr Calleija in the course of the first induced statement, the police were able to execute search warrants upon the accountant's premises. Mr Calleija had drawn a plan of the premises including of a shed in which documents were stored. In effect, Mr Calleija had directed the police to where the books could be found. However, Mr Calleija's counsel was not able to inform the Court whether Mr Calleija was the only client who knew where the books were kept.
90Mr Calleija's counsel further submitted that when regard was had to the present summary of facts, which he accepted was a factual expose of the documents proposed to be used in Mr Calleija's trial, Mr Calleija had explained each of those documents "chapter and verse" in his induced statement, indicating that he had transferred the funds and how and why he had done so. The Court sought to test this submission by having Mr Calleija's counsel deal with a number of the asserted factual statements in the overview and summary of facts. This was done by reference to the following statement in the summary of facts:
"Between 13 May 1997 and 26 October 2004, fifteen (15) outgoing payments totalling $2,349,298 were made from OBW's various bank accounts, mainly from the OBW account between May 1997 and June 2000, and then from the OBW Overdraft account between September 2000 and September 2002, to the NZ accounts of UNITON, BILLBURY and SECURITY LIFE. A total of $1,110,000 was transferred to the UNITON account, $475,000 to the BILLBURY account - and $753,493.72 to the SECURITY LIFE account. These were characterised in the books of OBW, most likely by [Owen T Daniel], as interest, management or consultancy fees, or subsumed in expenses of OBW when there had been no real expenditure ..." (emphasis added)
91Mr Calleija's counsel eventually conceded that the characterisation, "interest, management or consultancy fees" were either statements derived directly from the books of account or, alternatively, inferred from entries in the books of account. Counsel submitted, however, that the derivative use for which he contended arose from the fact that prior to Mr Calleija's induced statements, the police were not making the necessary links in the documentation and thus had not been able to work out how the scheme operated.
92Mr Calleija's counsel finally appeared to accept that the trial will be conducted by the Crown on the basis of the material that was known to it before Mr Calleija gave his first induced statement or which came into its possession during the course of the ongoing investigation, from sources other than Mr Calleija. He then reverted to his submission as to the unfairness of the Crown in prosecuting Mr Calleija when he had provided it with such valuable information in circumstances where he believed he would be granted an indemnity.
93In my opinion, Mr Calleija has not made out ground 4. The Crown is confined in the evidence that can be adduced in the prosecution to material obtained other than from the induced statements. It will also be constrained in any cross-examination of Mr Calleija should he decide to give evidence. To the extent that the prosecuting authorities may seek to prepare for any defence Mr Calleija may advance, any prosecutor in a case like this would anticipate a number of possible defences. These would include an accused's contention that he did not sign the documentation that was integral to the operation of the scheme or that he relied upon the advice of his accountants, a defence which might be thought to be contestable in any event. Another possible and even more likely scenario is that an accused might rely upon putting the Crown to proof especially given that in this case, the relevant income tax returns were filed electronically.
94These possible defences will each involve different considerations for the Crown. For my part, I cannot see that the Crown has any unfair advantage in having been provided with information in the induced statements. This is particularly so when Mr Calleija's counsel was not able to point to any material in the summary of facts that was derived from the induced statements. Nor do I consider that the Crown has been shown to have a tactical advantage in being able to anticipate any defence Mr Calleija may seek to raise.
95I consider that ground 4 should be rejected.