R v Dickson; R v Issakidis

Supreme Court of NSW|2014-11-07|Before: Beech-Jones J

Re application for discharge of accused Issakidis and/or application for separate trial for accused Issakidis (ref T3341)

On 4 November, 2014, being day 51 of this trial, one of the accused, Anthony Dickson, completed his evidence in chief. On day 52, and immediately prior to the Crown Prosecutor commencing his cross-examination of Mr Dickson, I heard and determined an application by the Crown to cross-examine Mr Dickson on certain documents and lead evidence in reply (see R v Dickson; R v Issakidis (No 11) [2014] NSWSC 1570) ("Dickson (No 11)"). During the course of that application there was a discussion about the source of certain documents recently handed to the Crown Prosecutor, including one that was said to "cut right across this case". It emerged during the course of argument that the defence had never previously seen at least some of those documents.

The Crown case

I set out a brief précis of the Crown case in R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 ("Dickson (No 1)") at [7] ff ("Dickson (No 1)"). I discussed it further in R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460 at [20]ff ("Dickson (No 9)". I will not repeat either of those discussions, but the following three points should be noted.
First, the Crown case includes a vast number of documents. To date each juror has been given over twenty folders. I referred to the significance of this in R v Dickson; R v Issakidis (No 6) [2014] NSWSC 1368 at [19] and [26] ("Dickson (No 6)") and I will not repeat those comments.
Second, there is a significant difference in the strength of the Crown case on Count 1 against Mr Dickson compared to Mr Issakidis. Count 1 is a conspiracy case. The critical element of the charge is whether Mr Dickson and Mr Issakidis agreed to "cause [NHA] to lodge income tax returns claiming depreciation expenses based on the alleged cost of the purported acquisition of intellectual property by [NHA] where no such cost or obligation had been incurred by [NHA]".
It is now not in dispute that Mr Anthony Dickson caused NHA's tax returns to be lodged. At the time of the lodgement of the first set of returns the Crown witness, Michael Harper, was working with Mr Dickson and for NHA. He had commenced working with NHA in July 1999. Further, the evidence revealed that another Crown witness, Adrian Compton, prepared the amended tax returns under Mr Dickson's direction. They were ultimately signed by Mr Dickson.
Although in Dickson (No 9) I accepted that there was a prima facie case that Mr Issakidis entered into an agreement the subject of Count 1, I also accepted that there was no direct evidence that he saw the returns, any of the agreements on which the depreciation claims were based, or any of the allegedly bogus valuations from the Karkalla Biotechnology Group ("KBG") which were provided by Mr Dickson to the ATO to support the claims in the tax returns (see Dickson (No 9) at [26]). The only development on that position from Mr Anthony Dickson's evidence to date, was that he has stated that he discussed the terms of the assignment from Athena Health Patents Inc ("Athena") to NHA with Mr Issakidis. The executed documents of the assignment agreements which have been put into evidence by Mr Anthony Dickson were signed by him and not by Mr Issakidis.
Third, consistent with what I have just stated, to this time the approach taken by Mr Byrne QC on behalf of Mr Issakidis has been to cross-examine Crown witnesses in an effort to negate any suggestion that his client was involved, or at least had any substantial involvement, in the financial and taxation affairs of NHA.

Duty to ensure a fair trial

In Libke v R [2007] HCA 30; 230 CLR 559 at [35], Kirby and Callinan JJ described the duty of a trial judge to ensure a fair trial as "transcendent" and the "highest of all duties". Although their Honours were in dissent, there is no reason to doubt their description of the extent of the duty imposed on the trial judge. Nevertheless, as submitted by the Crown Prosecutor, a fair trial is not necessarily a perfect one (see Dietrich v R [1992] HCA 57; 177 CLR 292 at 365). With a perfect trial, the accused person is apprised of the evidence relied on by the Crown and all other relevant material well prior to the trial commencing. With an imperfect trial, the material is sometimes provided late, but the occasioning of an unfair trial is avoided by the Court adopting various measures that fall short of discharging the accused person, such as recalling a witness, conducting a Basha inquiry (R v Basha (1989) 39 A Crim R 337), or precluding the material that is produced late from being relied on by the Crown (see, for example, Dickson (No 6)).
However, in a trial such as this, the later the provision of documents, whether as material to be relied upon by the Crown or simply in discharge of its duty of disclosure, then the more difficult it becomes to address the prejudice thereby occasioned to the accused. That said, I make it clear that I am approaching this application on the basis that I should not discharge the jury unless I am positively satisfied that a fair trial for Mr Issakidis is no longer possible.

The ATO documents

In around March or April 2012, the Australian Federal Police ("AFP") executed search warrants on the business premises of NHA, Mr Anthony Dickson's home, Mr Michael Issakidis' home, and various other premises. Following the execution of those warrants, the ATO executed notices under s 263 of the Income Tax Assessment Act 1936 (Cth) ("ITAA") on many of those premises. In executing those notices the ATO officers took copies of documents from the relevant locations that were not seized by the AFP. Later, the ATO served notices under s 264 of the ITAA on the AFP, and obtained electronic copies of the materials that the AFP had seized. In the end result, the ATO possessed an electronically searchable database that included material that was not seized by the AFP.
After the ATO executed the s 263 notices, it engaged in correspondence with the relevant owners or occupiers of the various premises in relation to such matters as to whether legal professional privilege was claimed over the documents that had been copied. However, the relevant ATO officer, Mr Harvey, accepted that no steps were taken by the ATO to apprise each of the accused persons of the documents that were seized and copied at any of the premises, other than their own homes.
On 26 May 2014, the Crown served on each of the accused persons a notice under s 142 of the Criminal Procedure Act 1986 (NSW) (the "CPA") (see Dickson (No 6) at [7]). Section 142(1)(j) of the CPA provides: "142 Prosecution's notice (1) For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following: … (j) a list identifying: (i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and (ii) the place at which the prosecutor believes the information, document or other thing is situated"
This provision needs to be read with s 142(1)(i) of the CPA which requires the Crown to provide: "A copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case …"
In relation to these provisions, the notice stated that disclosure had previously been provided by way of a letter dated 24 October 2013. A schedule enclosed with the letter of 24 October 2013 identified the ATO as a "third party" holder of documents. In this part of the schedule there were three columns, namely "Source", "Description of Items" and "Comment". Each of the descriptions were very general. Thus, for example, with the material obtained from the source "NeuMedix Head Office" the description was "[c]opies of documents and electronic files obtained in Operation Beaufighter 263 Access on NeuMedix Head Office (Eight Mile Plains QLD) in March 2012. Material relates to all aspects of NeuMedix Australian and Overseas operations".
The jury was empanelled on 21 August, 2014. On 20 August 2014 the legal representatives of Mr Dickson caused a subpoena to be issued out of this Court to the ATO. A motion was filed on behalf of the ATO seeking to set the subpoena aside on the ground that it was, amongst other matters, too wide. Within days, Mr Dickson withdrew the subpoena. Paragraph 1 of the subpoena had sought printed copies of an ATO database concerning NHA for the period 15 November 2005 to 30 June 2014. Another part of the subpoena had sought production of a so called "audit" database concerning NHA for the same period.
The following matters should be noted about the ATO database(s).
First, s 142(1)(j) of the CPA required the provision by the Crown to the defence of a "list identifying any … document or other thing of which the prosecutor is aware", etc. The description given in the schedule to the letter of 24 October 2013 was certainly not a "list". It is not known whether, at the time of that letter, the Crown was aware of what was on the database. However, as I will explain, the evidence demonstrates that at some point the Crown has had the capacity to access the database. There is, in fact, no reason to doubt that the ATO would not have provided to the Crown, if requested, a list of the documents that were contained on its database. In the context of what has emerged since the trial commenced, this is of some significance.
In the case of Mr Issakidis, the only indication he had of the scope of the material separately held by the ATO was what was copied from his own home.
The end result was that he was not provided with any indication of the scope, or content, of the materials copied from other sources by the ATO, nor proffered any means of ascertaining it, much less accessing it. Thus, Mr Issakidis' solicitor deposed in his affidavit that his reading of the letter of 24 October 2013 did not alert him to the fact that the ATO was in possession of "exculpatory documents", such as MFI 47 and 48 discussed below.
Second, on no view of what occurred was Mr Issakidis apprised that the Crown had the ability to search the ATO database and obtain document from it and that the ATO might spontaneously provide such documents to the Crown.
Third, the difficulty that has emerged in this case is exemplified by the fate of the subpoena issued on behalf of Mr Dickson. On its face the subpoena appeared too wide and was probably liable to be set aside. Amongst other problems, its width meant that the test for the validity of the subpoena discussed in R v Saleam [1999] NSWCCA 86 was unlikely to be satisfied. However, at least so far as the material copied by the ATO pursuant to the s 263 notices is concerned, as events have transpired the Crown has had the ability to access the material and the defence has not. In other words, if the ATO had simply provided to the Court what the subpoena requested and the defence had obtained access then, at least to some extent, the accused would have been in a similar position to what the Crown appears to have been in for some considerable time.

Mr Shields' affidavit

As noted, the solicitor for Mr Issakidis has sworn an affidavit in support of his client's application. His solicitor, Peter Joseph Shields, recounts in detail the history of the provision of the material by the Crown to the defence. There is no doubt that there has been a continuous "stream of material" supplied by the Crown from the time of the letter of 24 October 2013. However, some aspects of that history can be dealt with briefly as they have not created any existing prejudice to a fair trial that can then be accumulated with the concerns that have been raised recently. Thus, for example, in the period up to or just after the trial commenced, the Crown was still providing revised charts and summaries to the defence when, strictly, they were required to be supplied in April 2014 pursuant to the order requiring compliance by the Crown with s 142 by that time (see s 142(1)(g) of the CPA). However, I have not been able to discern any prejudice to Mr Issakidis as a result of this. To the contrary, such charts have assisted in making the trial far more manageable.
Also Mr Shields points to a number of notes of recent conferences conducted by the Crown Prosecutor with Crown witnesses that he was supplied with as the trial proceeded. On its face, there is nothing objectionable about this. To the contrary, it can be expected that the Crown Prosecutor will conduct such conferences and, if apprised of something new, will immediately disclose it. In some cases, not this one, such disclosure can cause a trial to be aborted. However, this will not be through any fault of the Crown. In any event, in this case the disclosures were addressed by such measures as the granting of short adjournments or conducting Basha inquiries.
However, this does not exhaust the matters addressed by Mr Shields in his affidavit. He addresses the circumstances of the disclosure of MFI 33, 47 and 48 which are outlined below. Further, Mr Shields explained that he has obtained instructions from Mr Issakidis on every document in the Crown tender bundle, every witness statement, every witness summary and all relevant documents which have been disclosed in the correspondence of the Crown. The significance of this is that it reveals that very careful consideration has been given within the legal team representing Mr Issakidis to the approach that they would take to the Crown case, both in light of the material sought to be relied on by the Crown, and the material that was disclosed to them pursuant to the Crown's disclosure obligations.

MFI 33

On about 2 October 2014, the instructing solicitor for the Crown sent an email to each of the solicitors acting for the accused stating: "Dear Colleagues, It has been brought to my attention that the handwritten note on page 3912 of the Critical Documents, refers to a separate teleconference that occurred on 6 July 2010 between the NZIRD, Anthony Dickson and Adrian Compton and that the ATO possesses a summary of this teleconference conference in the same form as the summary at pp.3912-3920. I have requested the ATO to provide me with this document today in order that I can disclose it forthwith."
Two matters should be noted about this email. First, the author clearly recognised her obligation to disclose any relevant material that she personally received. Second, implicit in the email was that the Crown had the capacity to request the ATO to provide any documents without the necessity to obtain a court order or other form of authorisation.
In his oral evidence, Mr Harvey explained that the document that was requested had been received by the ATO from the New Zealand tax authorities some months previously, but the ATO could not release it without the New Zealand authority's approval. Mr Harvey said that there had been a number of discussions about its release. He said that on the morning of 2 October 2014 he again requested permission from the New Zealand authorities to release it and that permission was granted. The document was then provided to the Crown and the defence. It was marked MFI 33.
It should also be noted that, although this document appeared to have a restriction on its disclosure outside of the tax office, there was no such restriction on the disclosure on the material that had been copied by the ATO pursuant to the s 263 notices, at least so far as disclosure to the Crown was concerned.
MFI 33 is a typed record of a meeting between tax officers from New Zealand, Mr Anthony Dickson and the Crown witness, Adrian Compton. It appears to relate to a series of depreciation claims made in tax returns submitted to the New Zealand authorities by a company of which Anthony Mr Dickson was a director and of which Mr Issakidis was not.
The scheme appears to have many similar attributes to the scheme that is alleged by the Crown to have been implemented in this case. The depreciation claims appear to have been supported by valuations allegedly made by Dr Peggy Wong from KBG. During the interview Mr Anthony Dickson, in the presence of Mr Compton, made various assertions about the role of his brother, Mr John Dickson, and Dr Wong from Karkalla. At one point Mr Compton is recorded as making a comment supporting Mr Anthony Dickson's protestations about the genuineness of the amount said to have been incurred by the relevant New Zealand company in acquiring intellectual property the subject of the depreciation claims in the tax returns that were lodged.
The potential forensic significance of this document to Mr Issakidis' case was immediately recognised by Mr Byrne QC. Thus, in the absence of the jury on 3 October 2014, he stated: "The new material reveals to us what we have hinted at from the start of this, that there is evidence capable of showing a conspiracy, firstly, it is not a conspiracy involving Mr Issakidis, rather it is a conspiracy involving other persons, some of whom have been called as witnesses. One will be called as a witness and others who perhaps should, if the matter is to proceed, be called as witnesses."
At this time the possibility of the discharge, so far as Mr Issakidis was concerned, was raised. Mr Byrne QC told the court that that was something, "we wouldn't do lightly". Ultimately, a discharge was not pursued.
The following week, Mr Byrne QC cross-examined Mr Compton concerning MFI 33 on a Basha inquiry. He later cross-examined Mr Compton in front of the jury, but did not refer to MFI 33. Instead, the cross-examination was directed to negating any suggestion of any involvement by Mr Issakidis in the accounting and taxation affairs of NHA and establishing the legitimacy of certain loan transactions in favour of Mr Issakidis that the Crown alleges are bogus.
For present purposes, the critical point to note is that the suggestion that was made on this application that Mr Issakidis could have, if armed with material at a proper time, realistically pursued an approach pointing to a "conspiracy involving others", including Crown witnesses, is not some recent contrivance, but something his legal team were alive to from an early point. Although there are obvious risks in pursuing such an approach, it does have the potential advantage that it can be the basis of a more substantial attack on Crown witnesses who may incriminate Mr Issakidis, and it also addresses the potential line of thought that involves one considering the unlikelihood of Mr Anthony Dickson pursuing the scheme alleged by the Crown without the knowing assistance of others.

Further documents

On 24 October, 2014, Mr Anthony Dickson commenced giving evidence. Mr Harvey was present during at least part of his evidence. Mr Dickson stated that, throughout his time as a director of NHA, he was acting in his capacity as an employee of a firm known as Rand Stone Consulting, which was providing consultancy services to a "private equity partnership" registered in the Cayman Islands, "HFAC".
Mr Anthony Dickson said that Athena entered into the relevant assignment agreements with NHA as agent for HFAC. He said that he negotiated the assignment agreements with a John Taylor from HFAC and he took directions from him as to the distribution of the funds said to have been paid by NHA under the assignment agreements. Mr Dickson said these arrangements were recorded in a Deed dated 1 March 2006 to which, inter alia, he, HFAC, NHA and Mr Issakidis were parties. Mr Dickson said his signature was applied to the final draft of the Deed around June or July 2006 and his was the last to be applied.
On learning of Mr Dickson's evidence about taking instructions from a John Taylor, Mr Harvey undertook some key word searches on the ATO's database using that name. One document yielded by that search was a draft Non-Compete Agreement between an entity called Karkalla Timber Fund and the company Craxgold, being Mr Issakidis' private company. In this draft Agreement John Taylor was listed as the contact name for Karkalla Timber Fund.
This document had been obtained by the ATO from the AFP and was referred to in R v Dickson (No 11) at [31] as the "more advanced version". It is not clear whether that document was previously disclosed by the Crown to the defence.
Mr Harvey's searches also revealed an early version of this agreement with handwritten annotations which has been marked MFI 48, also referred to in Dickson (No 11) at [31]. This document was obtained by the ATO pursuant to a s 263 notice executed on NHA's offices. It follows that it was a document that was not previously disclosed by the Crown to the defence. It has only emerged because an ATO officer perceived it to have significance to the case and provided it to the Crown.
This version includes various annotations in what appears to be Mr Anthony Dickson's handwriting indicating that John Taylor should be listed as a contact for Karkalla Timber Fund. On its front there is the annotation "MM, please amend as shown - fresh copy/not mark-up. Due Today 7.4.10". The evidence elicited in the trial is such that the reference to "MM" is capable of referring to Michael Harper. As noted, Michael Harper was called by the Crown and he said that he commenced working for NHA in July 2009.
The significance of these documents to the Crown case is they suggest that in April 2010 Mr Dickson gave instructions to include John Taylor as a representative of Karkalla Timber Fund on an agreement that was to be backdated. On the evidence elicited to date Mr Taylor had no connection to Karkalla Timber Fund. Thus these documents are capable of suggesting that Mr Anthony Dickson simply placed Mr Taylor's name on documents when it suited him.
Mr Harvey's search of the ATO database also yielded an earlier draft of the Deed dated 1 March 2006 which Mr Dickson says was executed no later than June or July 2006. This document was initially marked as part of MFI 47, but to avoid confusion will be referred to as MFI 47B. This Deed was also obtained by the ATO when executing a s 263 notice on NHA's offices. That is, it was not seized by the AFP and therefore was not provided to the defence pursuant to any previous disclosure regime. This version of the Deed contained the following annotation: "MM, Please keep mark-ups shown on this document + add to the mark-ups with what is shown in green on this document. Thx. AD."
As stated, the evidence is capable of demonstrating that "MM" is Michael Harper. He said he did not commence work with NHA until July 2009. Other handwritten annotations on the document make provisions for the inclusion of HFAC as a party. Thus this document is capable of supporting a conclusion that sometime after July 2009 Mr Anthony Dickson instructed Mr Michael Harper to amend the Deed to include references to HFAC and then backdate its execution. It was no doubt for this reason that this document was described by the Crown Prosecutor as cutting "right across this case". Nevertheless the Crown accepted that the timing of the document's production meant that it could not be used against Mr Dickson. However, this only begs the question, to which I will return, as to how any prejudice occasioned to Michael Issakidis by its late production could be addressed.
Further, in his evidence Mr Anthony Dickson addressed that part of the Crown case that alleged that the KBG valuations supplied to the ATO in support of NHA's depreciation claims was bogus. Mr Anthony Dickson stated that their alleged author, Dr Peggy Wong, was a real person. He tendered a number of documents which he stated emanated from her. They included her telephone number. This telephone number was also listed in certain documents said to have been published by KBG, including some documents that had been tendered well prior to the close of the Crown case.
Mr Harvey undertook a search on the ATO's database using that telephone number. His search yielded an email chain from April 2007 between Mr Dickson's brother, that is Mr John Dickson, and their sister, who said she was relaying messages from Mr Anthony Dickson (MFI 47A). The emails referred to Mr John Dickson as having provided Mr Anthony Dickson with a mobile phone. The number of the phone is stated in one of the emails and corresponds with the number listed for Dr Peggy Wong on the documents to which I have referred. It is also the contact number for various other entities that do not appear to be associated with her.
In one of the emails Anthony Dickson's sister requested that Mr John Dickson do "Anth a big favour" and have his wife leave a message on the phone "in her best English accent" to the effect "the offices are currently unattended". Mr John Dickson replied suggesting that he could have his personal assistant "do a message in a Chinese accent in both English and Cantonese? Far more convincing then … whaddya think?" This email chain is clearly capable of supporting a conclusion that, via their sister, Mr Anthony Dickson and Mr John Dickson planned to use the phone in a manner that falsely suggested that it would be associated with a business. The suggestion by Mr John Dickson that his personal assistant leave two messages may have particular significance. It is at least capable of supporting the suggestion that the phone number is that of Dr Peggy Wong. Mr Anthony Dickson has stated that she is a woman in her 60s of Chinese extraction. Hence the reference to leaving a message in Cantonese. Mr Anthony Dickson's evidence also suggests that she is capable of speaking English.
As I have said, Mr John Dickson was called in the Crown case. He denied having any knowledge of Dr Peggy Wong whatsoever. Mr Harvey stated that this email chain was obtained by the ATO from the AFP. Despite the fact that the AFP had the email chain, it was not provided to the defence in accordance with the disclosure requirements in s 142 of the CPA.

Effect on the trial of Michael Issakidis

It is clear that the documents recently provided to the Crown by Mr Harvey have the potential to be highly damaging to Mr Anthony Dickson's case. As noted, the Crown accepted that the timing of the production and disclosure to the defence of at least the draft Deed dated 1 March 2006 was such that it could not be used by the Crown in its case against him. Leaving aside the question of use by the Crown in the case against him, no other prejudice was asserted on Mr Anthony Dickson's behalf and, as I said, he does not seek a discharge.
However, what about the position of Mr Issakidis? In his affidavits Mr Shields referred to the effect of late disclosure of material on his client's opportunity to make an application for a separate trial, and then referred to the use that might be made of this material in any separate trial that followed. However, in his oral submissions Mr Byrne QC addressed the effect of the late disclosure of this material on this trial.
The first matter to note concerns the attack that was previously conducted on behalf of Mr Issakidis on the credibility of Mr John Dickson. As I noted in Dickson (No 9), Mr John Dickson gave evidence of a particular conversation said to involve Mr Issakidis which, if accepted, appears to be particularly incriminating, especially on Count 6. The conversation is, as I understand it, strongly disputed and Mr John Dickson's credit was attacked. Nevertheless, the email chain I have noted above appears to be capable of having a very damaging effect on Mr John Dickson's credit. The Crown case is now closed and Mr John Dickson has returned to Hong Kong. Subject to the matters addressed below, the opportunity to attack him by using the emails that are MFI 47A appears to have been lost.
However, that is only part of the problem occasioned by the late production of this material. This and the other documents are all material of a kind adverted to by Mr Byrne QC on 3 October 2014 in the extract set out above, that is, it is material capable of showing a conspiracy "not … involving Mr Issakidis", but "rather … a conspiracy involving other persons, some who have been called as witnesses". If this material had been made available in a timely fashion it would have been open to Mr Issakidis to not only point to the relative absence of material incriminating him in respect of Count 1, but also point to evidence demonstrating the involvement of others.
One point made by the Crown was that this approach was always open on the basis of other material which has been tendered in the Crown case. This has some force, but it is no real answer. An assessment of whether to take the course I have outlined depends upon the strength of the available evidence, and this particularly strong evidence was not made available. As I have said, it is clear from the extract noted above that the possibility of taking this course had been under serious consideration.
Further, the Crown characterised this as only a lost opportunity for Mr Issakidis. That may be so, but it does not mean that the trial has not become unfair. In particular it was an opportunity that was lost because Mr Issakidis did not have the same level of access to evidentiary material that the Crown possessed. I have already found that the email chain involving John Dickson, that is MFI 47A, was material that should have been, but was not, disclosed.
In relation to the material obtained under the s 263 notices, that is MFI 47B and 48, the parties sought to debate the large question as to whether the ATO could be regarded as part of the prosecution for the Crown for the purpose of assessing the scope of the prosecutorial disclosure obligation. However, in my view the matter must be addressed by considering what the evidence reveals is the precise arrangements for access to documents, then considering the terms of s 142 of the CPA and otherwise considering what fairness required.
The underlying premise of the disclosure notice served in October 2013 was that the ATO was a "third party", and that the documents held by it were not "in the possession of a prosecutor" for the purposes of s 142(1)(i). That premise may have been correct at the time. However, what the above demonstrates is that at some point the Crown acquired a capacity to request any documents from the ATO database, and no doubt had the capacity to request that searches be undertaken of the database without any court order or apparently other form of authorisation. It is also clear the ATO was willing to provide documents and sometimes would do so spontaneously.
The outcome of this was that at some point or other the Crown was certainly able to request and provide a "list" identifying any documents held by the ATO for purposes of s 142(1)(j)(i). Further, it may be that the effect of these arrangements was that the Crown was in fact in possession of those documents on the ATO database for the purposes of s 142(1)(i), although it is not ultimately necessary to determine that question.
Leaving aside the precise words of s 142, what in fact developed was an outcome whereby the ATO held a pool of primary evidence to which the Crown had apparent unfettered access and the defence had none, but in respect of which no disclosure of its contents was made until a document was physically handed to the Crown Prosecutor or their instructing solicitor from that pool.
The potential for unfairness to flow from such an arrangement is obvious. At the very least Mr Issakidis was entitled to a similar access to the primary material held by the ATO pursuant to the s 263 notices as that enjoyed by the prosecution.
The potential unfairness proposed by this structure has materialised in the way MFI 47B and MFI 48 have emerged during Mr Anthony Dickson's evidence. In the case of Mr Anthony Dickson, that unfairness is addressed by the Crown's disavowment of reliance on at least some of those documents, a matter that will be clarified. However, that does not address the prejudice to Mr Issakidis. As already explained, the material is potentially exonerative and could have been taken up with Crown witnesses. Theoretically it might be possible to recall them all now, including by having Mr John Dickson return from Hong Kong. However, even if that were to occur, it does not address the problem caused by the existence of the ATO's database which is simply too large to review in the time available, although perhaps some searches could be undertaken if search access was granted but even then the time frame is far too limited. On any view a reasonable level of access to the ATO database would have to be forwarded to Mr Byrne QC in the time prior to him having to cross-examine Mr Anthony Dickson, a matter to which I will return.
It follows that I am satisfied that the trial of Mr Issakidis has become unfair. As events have unfolded he has not received disclosure of, or even the means of access to, a pool of potentially exculpatory material to which the Crown has had unfettered access. It is known that that pool in fact does contain material which is exculpatory, namely MFI 47B and MFI 48. Otherwise he has also not received disclosure of MFI 47A even though he was entitled to it.
It follows I will order Mr Issakidis' trial be postponed and the jury be discharged in respect of him.
I note that the Crown Prosecutor submitted that before I did so I should consider the wider interests of justice and, in particular, have regard to the point of the trial that has been reached and the resources involved in any retrial. No doubt such considerations are relevant as to whether to grant a separate trial, but I am not persuaded that they are to be weighed up once I have reached a positive conclusion that the trial of Mr Issakidis is relevantly affected by unfairness that cannot be remedied. However, even if such matters were to be considered they would not affect my determination to order a discharge. In that regard I note three points.
First, if the trial continues then it will be open to Mr Byrne QC to cross-examine Mr Anthony Dickson on MFI 47A, 47B and 48. As I have said those documents are potentially exonerative and there is simply no basis upon which Mr Issakidis can be prevented from putting them forward and cross-examining his client's co-accused. Yet the documents are also potentially highly incriminatory of Mr Anthony Dickson and, because of their late production, as a matter of fairness he should not be confronted with them in his own case well after the Crown case has closed.
It follows that, if such a cross-examination was to occur, then it is highly likely that the trial of Anthony Dickson would need to be aborted. In that event he would have been confronted with highly damaging evidence that was not disclosed earlier. So much is implicit in the Crown's acceptance that it cannot rely on MFI 47B. If Mr Anthony Dickson's trial was to be aborted then Mr Issakidis' trial would also have to be aborted. In that event the status of Mr Anthony Dickson's evidence would be uncertain, as would the status of evidence of some acts of Mr Anthony Dickson that appear to be unrelated to the alleged conspiracies the subject of Counts 1 and 6. Thus not aborting the trial of Mr Issakidis would carry with it an appreciable risk of aborting both trials shortly thereafter.
Second, if the trial proceeds with both accused then there appears to be a reasonable likelihood it will continue well into the Christmas period. I note this would be contrary to a number of statements given to the jury about the trial's estimated length. No doubt those statements have been the basis on which they have made plans.
Third, although it is unclear, there is some reason to believe that any separate trial of Mr Issakidis may occupy significantly less time than this one. In such a trial there is some basis for expecting that the real focus would be on whether the Crown can demonstrate Mr Issakidis' involvement in an agreement to lodge false returns, and may not involve the need to prove a number of matters against Mr Anthony Dickson that the Crown has sought to do in this trial.
Accordingly I will order the discharge of the jury so far as Mr Issakidis is concerned.

Separate trial

Mr Issakidis' application for a separate trial was based on the following passage from Darby at 677 to 678: "Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B. In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v R (1979) 44 CCC (2d) 481, requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice."
The balance of Mr Byrne QC's written submissions in support of this aspect of his application emphasises the significant differences "in the evidence relevant to the two accused". In my view the submissions elide the difference between a case where there is different evidence admissible against co-conspirators and a case where there is a difference in the weight of the evidence pointing to each co-conspirator's involvement in the alleged conspiracy. This case is an example of the latter, whereas Darby appears to be addressing the former. In R v Ronen [2004] NSWSC 1289 and R v Baladjam (No 57) [2008] NSWSC 1471 Whealy J addressed an application for a separate trial in conspiracy cases by reference to considering the difference in the evidence admissible against each accused concerning the existence of a conspiracy, and the participation by each accused in the conspiracy. His Honour did not address it by reference to the weight of the evidence pointing to the involvement of each accused in the conspiracy.
To this point, prima facie, most of the evidence admitted in the trial is admissible against both accused. As I have indicated there are some areas of the Crown's evidence that appears to involve conduct of Mr Dickson that appears not to be related to the alleged conspiracies the subject of Count 1 and Count 6. Further, there is some uncertainty as to whether various acts and utterances of Mr Anthony Dickson that expressly or impliedly implicate Mr Issakidis in the alleged conspiracy the subject of count one and count six will ultimately be able to be used for that purpose (see Dickson (No 11) at [11] to [14]). Although I have found that there is reasonable evidence of Mr Issakidis' involvement in the conspiracy, it is still incumbent upon the Crown to identify with precision what those acts and utterances were, then for the Court to determine whether the other parts of the test in Ahern v R [1988]] HCA 39; 165 CLR 87 have been satisfied and, if so, whether any discretion to restrict the use of that material in this way should be exercised.
However, in the absence of the identification of any particular body of evidence that is admissible only against Mr Dickson and not against Mr Issakidis, it follows that the basis for a separate trial identified in Darby has not been established. This application will be refused.
However I do note two further matters. First, if the events transpire that the question of a joint or separate trial needs to be determined, then the starting point will be that the Crown must identify with precision how each item of evidence concerning Mr Anthony Dickson's conduct and utterances undertaken in the absence of Mr Issakidis is admissible against Mr Issakidis. Until that is done, in my view the question of whether the trial should be joint or separate simply cannot be properly determined.
Second, one part of Mr Shields' affidavit appears to suggest that the basis for a separate trial would be the mere fact that one alleged co-conspirator seeks to blame the other. It should be made clear that, of itself, that is not a sufficient basis, although the employment of evidence designed to establish that may cause such unfairness that a separate trial is the practical result. I have in fact already outlined how that could occur in this case.
In any event I refuse the application for separate trial.

Dickson (No 11)

In Dickson (No 11) I allowed the Crown to, inter alia, cross-examine Mr Anthony Dickson concerning the two versions of the draft non-compete agreements to which I have referred and also tender them in reply if necessary. Amongst other matters I concluded that the necessity for the Crown to so deploy that material had "solely emerged from Mr Dickson's evidence" in question. At the time of the ruling I did not address any matter arising from the provenance of those documents. I think I may have mistakenly assumed that they had all been disclosed to the defence in accordance with the orders requiring compliance with s 142.
As it transpires, MFI 48 has never been disclosed to the AFP and therefore could never have been disclosed to either of the accused in accordance with the Crown's disclosure obligations. As I have indicated, I am uncertain at this point about the status of the other non-compete agreement. At least so far as MFI 48 is concerned it would follow from my earlier findings that it cannot be used to cross-examine Mr Dickson and cannot be tendered in reply, and that that aspect of Dickson (No 11) will have to be revisited. The position of the other non-compete agreement will also need to be clarified.

Conclusion

Accordingly I will shortly order that the jury be brought in and I will discharge them in respect of Mr Issakidis.

Amendments 14 June 2016 - Restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2016

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