R v Dickson

Applications for directions to supplement summing-up (ref T324) 1At the conclusion of my summing-up and prior to the selection of the verdict jury a number of matters were raised by senior counsel for the accused, one matter was raised by the Crown Prosecutor, and there is currently an outstanding jury request. It is appropriate I deal with those matters. 2The first matter raised by senior counsel for the accused Mr Gross QC was a request that I give a good character direction in respect of the alleged co-conspirator Mr Issakidis. I accept that contention and will give a direction concerning so much of the usual good character direction that concerns whether a person is likely to have behaved in the way the Crown accuses them of acting. Mr Issakidis has not given evidence on oath so it is not appropriate to address the direction to his credibility as a witness. 3The second matter raised by Mr Gross QC was a request that I supplement the discussion in that position of Part 4 of the summing-up that concerned the Crown's contention that HFAC did not and never would have had the ability to pay the patent rights consideration under the relevant assignment agreements. The two matters identified were an assertion that NeuMedix Health Australasia Pty Ltd ("NHA") had adopted a diversified approach to its development of medical technologies and to refer to the suggested negative impact of the global financial crisis on NHA's ability to raise funds. Again I am prepared to do that to the extent that I will refer to the evidence of Mr Dickson on that topic. 4The third point raised by Mr Gross QC was a complaint that in the course of providing a direction on circumstantial evidence, I did not proffer any example of a reasonable explanation consistent with innocence with the various circumstances relied on by the Crown. In the course of making his submissions he proffered an explanation that he submitted could have been provided, namely that: "It has to be pointed out to the jury the reasonable explanation has an organising theme being the honest pursuit by Mr Dickson and Mr Issakidis to have a legitimate medical technology investment business in relation to intellectual property rights concerning what they sell were important medical technologies of potentially high value". 5I reject this particular application and the request to proffer that explanation. This complaint has to be seen in the context of an earlier complaint by Mr Gross QC that the circumstantial evidence direction which he had requested on behalf of his client had the temerity to include a recitation of the circumstances relied upon by the Crown in relation to each alleged conspirator, namely the accused and Mr Issakidis. 6The explanation proffered by Mr Gross QC in his submission is one which is premised upon an acceptance of the accused's case or at least would involve a failure by the Crown to disprove it. It engages at the point of the jury considering whether the circumstances relied on by the Crown have been made out. Put in other words if the explanation that Mr Gross QC has suggested was in fact accepted by the jury then the Crown case would not even get to the point of raising an inference that the agreement which was the subject of Count 1 was established and so the necessity for the Crown to exclude any reasonable explanation consistent with innocence would not arise. 7Otherwise I note that twice in the course of summing-up on Count 1 I identified a series of competing inferences concerning the form of the agreement referred to in Count 1 that the Crown had to exclude and might still need to exclude even if it established the various circumstances that it says gives rise to the inference it seeks. 8In a written submission Mr Gross QC also contended that some form of direction of law should be given concerning the dates of execution of contracts and that the relevant direction should commence with the proposition that "the date written at the beginning of the contract is not the date the contract is formed" and should conclude with the proposition that "the jury should not necessarily take the date which is written at the beginning of the contract as being the date when it was executed". 9I see no reason to make this direction and consider it would only confuse matters. Leaving aside one document, the Crown contends that by providing to the Australian Taxation Office ("ATO") contracts with typed dates written on them and certain handwritten annotations that accompanied them the accused suggested that the contracts were executed on or about those dates when they were not. 10The accused in his evidence said that they were in fact executed on or about those dates but, as I have said, the Crown said that is false. Given those respective positions I do not consider the jury would derive any assistance from the proposed directions. 11The one document that is by way of exception concerns a deed that bears the date 1 March 2006 which is signed by the accused and Mr Issakidis and also by a company called Athena and, on the accused's case, by a representative of HFAC. In his evidence the accused explained in some detail that that deed was prepared some months after 1 March 2006 but that a term sheet which is included in his exhibits was executed on or around that day. The Crown attacked his evidence as a recent invention suggesting that the term sheet was in fact recently concocted to overcome a difficulty that the deed referred to a company, namely Athena, which did not bear that name as at 1 March 2006. 12Given the time that the accused said that that deed was prepared and the particular nature of the submission put by the Crown, in my view it is self-evident that the competing contentions are all factual. The proposed directions of law would simply not engage with those cases. It would be a distraction. 13In his written submissions Mr Gross QC also said the jury should be directed to the effect that a contract to sell intellectual property does not require any particular formality, that it can be oral or written, and that there is no evidence to suggest that a legal formality was not complied with by NHA in relation to the subject assignments. I decline to give this direction. The jury have already been directed about the relevance of a contract being unsigned to a contention that it is a sham. Otherwise the proposed direction bears no relevant connection to the issues and evidence in this case. 14As I have said the Crown contends that Mr Dickson provided to the ATO written assignment agreements with handwritten notations which it says falsely suggested that they had in fact been executed and exchanged. The accused said that the assignment agreements in similar terms had in fact been executed and exchanged. Given that that is the evidentiary dispute between the parties the proposed direction is, in my view, likely only to confuse the position. 15In his written submissions that accompanied this application Mr Gross QC proposed a form of direction that concerned Count 6 of the indictment. One part of that direction seeks to inform the jury that $68 million paid by ANZ to NHA was the proceeds of the agreement between ANZ and NHA concerning the structured finance arrangements, that it was NHA's funds to lawfully use at it saw fit, and was therefore not the proceeds of crime. The emphatic nature of that direction led the Court to query with Mr Gross QC whether what he was really seeking was a directed verdict on Count 6. Mr Gross QC said that he was and he applied accordingly. 16I will deal with this aspect of the matter first. I reject the application for a directed verdict. The statement made in the proposed direction addresses the point in time when funds were received by NHA from the ANZ. The proposition that those funds were not at that time the proceeds of crime may or may not be correct depending upon the point in time when the jury finds that the conspiracy the subject of Count 1 was formed. But its true vice is that it does not really address the Crown case. Count 6 is a conspiracy count and not a substantive count. It takes as its start the point at which the conspiracy the subject of Count 1 was formed and then looks to the dealings in property being the balance of various banks accounts that existed from time to time thereafter provided that the conspiracy the subject of Count 1 was formed prior to 12 January 2007. 17The end result is that the approach that has been put to the jury is a conservative one in that it focusses on the amounts standing in the bank accounts from the time the funds started their movement out of NHA's bank account overseas on 12 January 2007. Thus at page 259 of the summing-up I outlined this aspect of the Crown case as follows: "The Crown case is that by entering into the agreement that was the subject of Count 1 Mr Dickson and Mr Issakidis had agreed to ensure that NHA would not have any tax liabilities because they planned to lodge tax returns falsely claiming depreciation deductions to eliminate its tax liabilities." The Crown says they then planned to deal with the funds obtained from the ANZ financing deal because they both decided it would not be needed to meet NHA's tax liabilities or any obligation on the part of NHA to pay for the patents because of the plan to make false depreciation claims. Thus the Crown alleges that by no later than early 2007 Mr Dickson and Mr Issakidis knew that the money received from the trusts was wholly derived from the agreement the subject of Count 1 and they each believed it to be the proceeds of crime, that is money derived from their agreement or their plan the subject of Count 1". 18Implicit in this approach is the proposition that from the time of the formation of the conspiracy the subject of Count 1 the funds then standing in the accounts of NHA, the funds to be received by NHA and the funds in other accounts overseas but sourced from NHA were capable of being found to be derived from that conspiracy. 19In my view that conclusion is clearly supported by Isbester v R [2013] NSWCCA 230 especially by the finding of Hoeben CJ at CL at [45] that approved a proposition inherent in the decision in DPP v Jeffery [1992] 58 A Crim R 310, namely, that money that is made available for use by a tax evasion offence was directly derived by or from the commission of that offence. 20There then remains the question of whether I will provide the jury with any further direction on this issue. I propose to treat the directions to the jury as set out in Mr Gross QC's written submissions as a direction that should be given summarising the defence case on this aspect of Count 6 except that where that part of the direction refers to funds being available to be used by NHA for whatever purposes it likes I will refer to "whatever legitimate commercial purposes it chose." 21The one matter raised by the Crown concerning the summing-up related to Counts 3 to 5. The Crown noted that the written directions in respect to Counts 3 to 5 refer to the amounts claimed for depreciation expenses and the portion of the carried forward losses that relate to depreciation expenses while Count 2 only refers to the amounts claimed for depreciation expenses. The Crown does not take any issue with that but it has pointed out orally that I had stated the written directions for those counts were the same as Count 2 when there is that difference. In fact what I stated was they were in the same format. Nevertheless for an abundance of caution I will bring this difference to the jury's attention. 22Finally yesterday I note during the course of the summing-up I received a note from the jury that read: "May we have the transcript for your sum-up after you have finished?". At the time I advised the jury that I would address that further after the verdict jury was chosen. After hearing submissions from counsel I advised the jury I would not be giving them the entirety of the summing-up but I might consider giving them a portion and that they should not assume they should get any. 23To date the position of senior counsel for the accused is that none of the transcript should be provided. The Crown is generally cautious about the proposal but it did agree with the accused that the bulk of the so-called Part 4 in which I addressed the issues raised by the parties should not be provided because it risks becoming a road map to the facts in the case. 24Clearly I have a discretion for what parts of the summing-up should be provided in transcript form. In exercising that discretion in this case I am mindful of a number of matters but two in particular predominate. 25The first is the charges and their elements are complex. They present a real challenge to the jury comprised of lay people. This jury has diligently applied themselves to hearing the evidence over months and they are now being confronted with six charges under the Commonwealth Criminal Code containing elements of some complexity. In my view that is a strong reason for providing them with at least so much of the directions as explain the elements of the charges. 26Second, the evidentiary phase of the trial lasted in excess of three months but its scale is much larger given the amount of documents that were tendered. The discussion of the evidence that occurred in Part 4 of the summing-up occupied approximately a day and a half. The issues it addressed were drawn from the addresses of counsel and even then it did not canvass all their points and nor did they, understandably enough, canvass everything that occurred in the trial. 27In those circumstances the issues and material addressed in Part 4 were necessarily selective and the jury were expressly warned that that was the case. I consider that in those circumstances there is a danger that such a discussion could become a factual blueprint for the jury. Accordingly, my position is that, unless both parties were content for Part 4 or some section thereof be provided to the jury in writing, I would not propose to provide it to them. 28During submissions about the possibility of providing some part of the summing-up Mr Gross QC submitted that the discussion on the elements of the offences and the concept of conspiracy included a discussion of the Crown case. That is correct in the sense that there is a reference in those parts to the alleged conduct of each co-conspirator said by the Crown to support the existence and scope of the alleged conspiracies. Otherwise the discussion of some of the elements of the charges contain some evidentiary references to the contents of the tax returns and the like. This occurs generally in relation to various elements of the charges that were not addressed in counsels' addresses to the jury but which had been extensively discussed during the course of the trial commencing from the time the court handed to the parties MFI 33 which was in the relatively early weeks of the trial. 29Nevertheless I consider the jury should, if it wishes, be allowed a copy of those parts of the summing-up that address elements of each of the charges. The underlying premise of this trial and all trials is that juries are intelligent. Every indication is that premise is true in this case. This jury have been warned and re-warned and at various points in the summing-up about the fact that even though certain elements are being addressed, that does not mean that they should be satisfied of any other element. At the time of the provision of any such transcript the jury can have the rationale of not being provided with Part 4 explained to them and to be told that just because some parts of what they receive make reference to how the Crown puts its case it is only so they can assess for themselves how the elements of the charges are made out and that it is obviously not to be taken as any indication as to whether any matter of fact or law asserted in the Crown case is made out. 30The proposal I will adopt then is that after the verdict jury is chosen I will advise the jury of what I have just indicated, namely, that some parts of the summing-up will be available on specific request, namely those parts which correspond with Parts 1 to 3 and 5 to 8 and as may be supplemented by any direction given this morning. I will then invite the verdict jury to advise of which course, if any they wish to receive. I will also explain the rationale of not providing them with Part 4.