R -v- BARTLETT [No 14] [2014] WASC 352 (26 September 2014)

3 The evidence established that these were drawn by Mr Thomson, and that these manuscript amendments were Mr Thomson's workings in circumstances where it had become necessary to lodge an amended return, or what would amount to an amended return, taking into account additional deductions and, significantly, the interest deduction from the alleged fraudulent interest scheme. These workings, in manuscript on the former version of the income tax return, reflected the form which a return, so amended, would presumably take. The evidence, which is not contested, had emerged from Mr Thomson's crossexamination to the effect that an amended return incorporating all those alterations was not in that form ever lodged but, rather, a letter to the Taxation Department identifying the effect of the particular manuscript amendments was, indeed, despatched, in conformity with the practice of dealing with the established mode of amendment or reamendment of particular returns in those circumstances. That particular letter, what I have previously referred to as the 'epitome' of the amended return, was not put in evidence at this trial, although it was put in evidence at the first trial in September of last year.

4 The objection made by counsel for Mr Sayers to the entry in the proposed chronology about this is based on the possibility of an implication arising from the chronology that exhibit 13 could be regarded as an amended tax return as so lodged. Once the matter was the subject of closer scrutiny and submissions, counsel for Mr Sayers demonstrated, unmistakably, that the fact of whether the letter or the epitome of this amended return had ever been referred to Mr Sayers, signed by him or adopted by him, was not established, or at least there was an argument that it may not have been established. Counsel for Mr Sayers indicated that this point is of some importance as to whether or not Mr Sayers personally saw, signed or adopted the amended 1999 return in the form summarised in the epitome and was an issue of potential significance in this trial.

5 After a number of further submissions, we eventually got to the point where counsel for the prosecution, in the circumstances, sought leave to reopen the prosecution case to tender the letter containing the summary amendments to the 1999 return, what I have described as the epitome, a document dated 15 January 2003 which was, in fact, tendered at the first trial. The proposed tender of that document does not diminish the significance of the submissions to be made on behalf of Mr Sayers about whether or not he ever signed that amended return or adopted it and, indeed, submissions to that effect were made at the earlier trial when that epitome or letter was in evidence.

6 The rules relating to whether or not the prosecution should be permitted to reopen its case to tender further evidence or, in certain circumstances, to rebut evidence led on behalf of an accused person or a defendant, are quite well known and strict. They have been referred to in a number of authorities to which my attention has been drawn, starting with Dryburgh v The Queen [1961] HCA 54; (1961) 105 CLR 532. They are also extensively discussed in R v Soma [2003] HCA 13; (2003) 212 CLR 299, and in R v Chin [1985] HCA 35; (1985) 157 CLR 671.

7 These cases establish that there is a judicial discretion to permit this to be done, but that it should be very closely circumscribed, and jealously guarded. Principles to that effect were discussed recently by the Court of Appeal in Manyam v The State of Western Australia [2010] WASCA 107 [96] - [106] where there was detailed reference made to Chin's case and where, in that particular case, it was held that the trial judge should not have permitted the additional prosecution evidence to be led.

8 Dryburgh is an extreme example because there the evidence was adduced, not only after addresses by counsel had concluded and the Judge had completed his summing up, but after some hours of jury deliberation, and apparently in response to a question which had been directed to the court by the jurors. I recognise that this is a discretion to be closely scrutinised and confined.

9 In the present case, the question of whether or not a return adumbrating or epitomising the amendments to the 1999 return as shown in manuscript on exhibit 13 was ever lodged, did not appear to be contentious. At a point in the trial towards the end of the prosecution case there was a discussion, in the absence of the jury, as to the need to call further particular witnesses whose names had been disclosed by the prosecution. These included an officer of the Australian Taxation Office who was in the position to prove the dates of lodgement of the various tax returns or their equivalents, and there was a discussion by counsel and the court indicating that there was no controversy about these matters. At least, that is the impression I gained from the exchange, and I accept that it is an impression gained by the prosecution.

10 I do not suggest, that there would be any point in pursuing, any controversy about whether or not a misunderstanding in this regard can be attributable to the conduct by act or omission of any counsel or party. That is not a productive exercise. I consider that there was, nevertheless, an impression created whereby the prosecution believed, reasonably, that there was no controversy as to the lodgement, in one form or another, of an amended return for the R G Sayers Family Trust for the year ended 30 June 1999 which brought into account the deductions derived from the alleged false interest scheme, and a product of Mr Thomson's amendments to the original of exhibit 13.

11 That being the case, and because this is a formal matter only and does not, in my view, diminish or prevent the position adopted by counsel for Mr Sayers to contend that, in the revised form of the epitome or adumbration, these materials cannot be shown to have been adopted by or signed by Mr Sayers or, at least, not without some reasonable doubt or question, I will permit the prosecution to prove the letter relating to the notification, by Thomson Fisher & Co to the Australian Taxation Office, of amendments to the R G Sayers Family Trust for the year ended 30 June 1999.

12 That can be done either by tendering the document or, if necessary, its proof by a witness who I am told is familiar with the matter. I will adjourn now until 2.15. We will have the jury back, and by one or other of those means the evidence of the lodgement of the adumbration or epitome, but nothing more, will be permitted.