R (Cth) v Petroulias

CATCHWORDS : CRIMINAL LAW - trial by jury - content of written directions to jury - provision of chronology to jury as part of summing up - complex trial involving large number of documentary exhibits

LEGISLATION CITED : Crimes Act 1914 (Cth) Evidence Act 1995

R (Cth) v Petroulias (No. 1) [2006] NSWSC 788) R (Cth) v Petroulias (No. 7) [2007] NSWSC 16 (R (Cth) v Petroulias (No. 30) [2007] NSWSC 1119 Royall v The Queen (1991) 172 CLR 378 R v Franklin (2001) 3 VR 9 Pinkstone v The Queen (2004) 219 CLR 444 Petroulias v R [2006] NSWCCA 415 Petroulias v The Queen [2007] HCATrans 92 CASES CITED : R v Moussad (1999) 152 FLR 373 R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 Jones v Dunkel (1959) 101 CLR 298 Dyers v The Queen (2002) 210 CLR 285 Quinlan v The Queen (2006) 164 A Crim R 106 R v Mitchell [1971] VR 46 at 59-60 Smith v The Queen [1970] 121 CLR 572 R v Collins (1986) 44 SASR 214 R v Kardoulias [2005] NSWCCA 150

PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)

COUNSEL : Mr P Hastings QC; Mr C Hoy (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)

SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)

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

2002/93 Regina (Cth) v Nikytas Nicholas Petroulias (No. 34)

JUDGMENT (On issues concerning provision of written directions and chronology to jury) 1 JOHNSON J: After closing addresses of counsel were completed on 20 November 2007, I heard submissions from counsel concerning the content of written directions and a chronology to be provided to the jury as part of my summing up. 2 Draft written directions (MFI135) were provided by me to counsel together with a draft chronology (MFI134). The draft written directions were based, to an extent, upon written directions provided by Sully J to the jury at the 2005 trial, although amended and expanded in a number of significant respects. Aspects of Sully J's written directions had been the subject of argument by counsel and decision by me at the pre-trial stage (R (Cth) v Petroulias (No. 1) [2006] NSWSC 788) and at the conclusion of the Crown case (R (Cth) v Petroulias (No. 30) [2007] NSWSC 1119). In particular, these judgments had considered appropriate directions of law on the elements of the first count, a charge of defrauding the Commonwealth under s.29D Crimes Act 1914 (Cth). 3 The draft chronology was settled by me after receipt of draft chronologies from counsel for the Crown (MFI125) and the Accused (MFI128), provided at my request. No chronology had been provided to the jury in the 2005 trial, given a dispute between the parties about the proposed content of any chronology. 4 Counsel were provided with an opportunity to consider the draft written directions and draft chronology on 21 November 2007 (T4789-4791) and I heard submissions from counsel on those issues on 22 November 2007 (T4795-4872). Mr Sutherland SC, for the Accused, relied upon written submissions (MFI136 and MFI137) and made oral submissions as well concerning the proposed written directions. The Crown made oral submissions on these matters. I indicated my decision with respect to contested issues on 23 November 2007 (T4873-4876) when the parties were provided with the written directions in the form which I proposed to give to the jury (MFI138). I received written submissions from the parties concerning contested matters in the chronology (MFI139 and MFI140) and, having considered those submissions, I provided to the parties on 23 November 2007 the chronology in the form to be provided to the jury (MFI141). 5 On 23 November 2007, I indicated that I would give my reasons at a later time with respect to issues bearing upon the written directions and the chronology (T4873). This judgment contains those reasons. 6 On 26 November 2007, folders containing documents, including the written directions and chronology, were provided to each member of the jury at the commencement of the summing up (MFI142). Written Directions to Jury

Element of Causation in the First Count (page 13, Written Directions ) 7 Mr Sutherland SC submitted that the jury ought be instructed on the element of causation in the first count in accordance with the doctrine of innocent agency. Written and oral submissions were made for the Accused in support of that application (MFI136; T4795-4804; T4807-4808). Those submissions referred to a number of decisions including Royall v The Queen (1991) 172 CLR 378, R v Franklin (2001) 3 VR 9 and Pinkstone v The Queen (2004) 219 CLR 444. 8 I should place this application in context. 9 In R (Cth) v Petroulias (No. 1) (a pre-trial application by the Accused, inter alia, to quash or permanently stay the first count on the indictment), I referred at [178] to an argument by then counsel for the Accused (Mr Clelland SC and Mr Livermore) on the element of causation which relied, in part, on the doctrine of innocent agency: "It was submitted for the Accused that this direction [by Sully J at the 2005 trial] was erroneous in that a direction was not given in terms of Royall v The Queen (1991) 172 CLR 378 at 411 that the actions of the Accused must amount to 'a substantial or significant cause' of the issue of favourable rulings and opinions. The Accused submitted, further, that directions should have been given with respect to the concept of innocent agency in accordance with R v Franklin (2001) 3 VR 9 and Pinkstone v The Queen (2004) 219 CLR 444 given that the rulings and opinions were not issued by the Accused himself, but by other ATO officers." 10 Having considered those submissions, I expressed the following conclusions at [206]-[208] concerning the Accused's contention that the first count was foredoomed to fail with respect to the element of causation:

"I have considered, as part of my independent assessment, the transcript and exhibits from the first trial to which my attention was drawn in the course of submissions. In addition, I have considered carefully the judgment of Sully J of 27 June 2005 in which his Honour found a prima facie case on causation. The evidence relied upon by the Crown at the first trial supports a prima facie case on this element. In forming this view, I have kept in mind the concept of 'substantial or significant cause' referred to in Royall v The Queen . Although Sully J did not use this precise phrase in directions to the jury, I consider that the directions which were given involved the same concept.

I am not satisfied that the concept of innocent agency has application to this case. The wording of the first count is significant in this respect. It is not alleged that the Accused himself issued the rulings or opinions. It is alleged that he caused them to be issued. Even if the concept of innocent agency did have application to this case, however, I am satisfied that the evidence of Mr Aivaliotes and the other evidence at the first trial identified by Sully J which bears upon the issue of causation supported a prima facie case in this respect.

In circumstances where I am satisfied, based on the evidence adduced at the first trial, that a prima facie case exists on this element, I am not satisfied that the first count is foredoomed to fail by reference to this element. I reject the application of the Accused based on this contention." 11 The Court of Criminal Appeal refused leave to appeal from my decision rejecting the applications by the Accused to quash or stay the first count in the indictment: Petroulias v R [2006] NSWCCA 415. The High Court of Australia refused an application by the Accused for special leave to appeal from the decision of the Court of Criminal Appeal: Petroulias v The Queen [2007] HCATrans 92. 12 At the conclusion of the Crown case, Mr Sutherland SC sought a verdict by direction with respect to the first count upon a number of bases, including the element of causation. In R (Cth) v Petroulias (No. 30) at [9]-[16], I considered and rejected the Accused's argument concerning the element of causation. No submission based upon the doctrine of innocent agency was advanced by the Accused in support of that application. 13 During his closing address to the jury, Mr Sutherland SC referred to the concept of an innocent agent with respect to the element of causation in the first count (T4139-4140). In the absence of the jury, I raised with Mr Sutherland SC his reference to the doctrine of innocent agency and reminded him of my pre-trial ruling on that issue (T4286-4288). As part of that discussion, Mr Sutherland SC informed me that he would apply, in due course, for a direction to be given to the jury by reference to the doctrine of innocent agency. The issue was raised by Mr Sutherland SC, after closing addresses, by way of application for directions of law to be given to the jury. 14 Mr Sutherland SC submitted that the legal concept of innocent agency or innocent instrument had application to this case. He submitted that the Crown argument that Mr Aivaliotes was a "puppet" of the Accused, and that the Accused exercised a measure of control in this respect, attracted the application of this principle. He submitted that the jury ought be directed in accordance with paragraph 68 of the defence written submissions (MFI136). 15 The Crown opposed the defence application that the jury be instructed by reference to the doctrine of innocent agency (T4804-4807). The Crown submitted that the issue had been argued and determined by me in R (Cth) v Petroulias (No. 1) and that the Accused had unsuccessfully appealed from that judgment to the Court of Criminal Appeal and the High Court of Australia. The Crown submitted that the directions on the element of causation given by Sully J at the 2005 trial remained appropriate, but accepted that the direction should include the phrase "substantial or significant cause" (T4806.6). 16 The Crown submitted that the doctrine of innocent agency had no application to this case. The Crown case on the first count alleges a course of conduct by the Accused over a period of time involving documentary and verbal contact between the Accused and each of Messrs Chow, Targett, Charles and Aivaliotes. 17 I have considered the written and oral submissions of the Accused with respect to the doctrine of innocent agency and have examined the authorities and text relied upon in this regard. Having done so, I remain of the view expressed in R (Cth) v Petroulias (No. 1) that the doctrine of innocent agency does not have application to this case. I accept the submissions of the Crown on this issue. 18 As I observed in R (Cth) v Petroulias (No. 1) at [207], the wording of the first count in the indictment is significant. It is not alleged that the Accused himself issued the rulings or opinions. Rather, it is alleged that he caused them to be issued. It is the Crown case that the Accused, as part of a course of conduct, caused the relevant opinions and rulings to issue. The Crown submits that the evidence reveals conduct on the part of the Accused, both subtle and unsubtle, which caused Messrs Chow, Charles, Targett and (particularly) Mr Aivaliotes to issue the 75 advance opinions and private rulings (Exhibit C95) which are the subject of the first count. The Crown case, on the element of causation, relies upon ongoing contact, in documentary and verbal form, between the Accused and each of these officers. The Crown contends that this contact, as part of a course of conduct, establishes that the Accused caused these rulings and opinions to issue. 19 I remain unpersuaded that the doctrine of innocent agency has application to this case. This conclusion is reinforced by an examination of the proposed direction at paragraph 68 of the defence written submissions (MFI136), which I do not consider ought be given to the jury. 20 It was for these reasons that I declined to direct the jury with respect to the doctrine of innocent agency on the element of causation in the first count. Element of Dishonest Means in the First Count (pages 14 and 15, Written Directions ) 21 The draft written directions contained an additional direction on the element of dishonest means in the first count to that given by Sully J at the 2005 trial. Mr Sutherland SC made written and oral submissions concerning the proposed direction (MFI137, page 14; T4827-4828). He did not oppose the additional direction, but sought some additions to it. The Crown agreed, in general terms, with the additional direction proposed by Mr Sutherland SC (T4848-4850). 22 The directions concerning the element of dishonest means captured the essence of what had been proposed by Mr Sutherland SC and the Crown during submissions (T4874).

Course of Conduct in the First Count (page 11, Written Directions ) 23 The draft written directions furnished to counsel (MFI135) included directions that the Crown case on the first count involved an alleged course of conduct on the part of the Accused between about 1 September 1997 and 27 February 1999 which was said to form part of the same transaction or criminal enterprise, involving an ongoing and systematic defrauding of the Commonwealth. The draft written directions included further directions with respect to a case based upon a course of conduct. 24 As I explained to counsel at the time of distribution of the draft written directions (T4790), I included a direction to this effect given the reference in closing addresses, including the closing address of Mr Sutherland SC, to the Crown case on the first count alleging a course of conduct on the part of the Accused. I had regard also to my conclusions in R (Cth) v Petroulias (No. 1) at [325]-[334] where a submission was rejected the first count was bad for duplicity. In reaching this conclusion, I relied upon the decision of the New South Wales Court of Criminal Appeal in R v Moussad (1999) 152 FLR 373 where the concept of a single criminal enterprise was applied by the Court with respect to a count alleging fraud under s.29D Crimes Act 1914 (Cth). 25 Mr Sutherland SC opposed a written and oral direction to the jury with respect to course of conduct in the first count (pages 12-13, MFI137; T4825-4827). The Crown requested that such a direction be included in the written directions (T4847-4848). 26 In circumstances where both counsel acknowledged that the Crown case on the first count was based upon a course of conduct by the Accused, it seemed to me that the jury were entitled to practical assistance on the legal concepts relevant to such a count in the written directions. There could be no good reason, in my view, why a direction of that type would be given to the jury orally rather than in writing, particularly given the complexities otherwise affecting the first count. 27 Accordingly, the written directions to the jury included directions concerning the concept of course of conduct with respect to the first count.

The Element of Deprivation in the First Count (pages 15-19, Written Directions ) 28 The draft written directions included directions concerning the element of deprivation in the first count which followed, in broad terms, the directions given by Sully J to the jury at the 2005 trial. In addition, I included draft directions which flowed from conclusions reached in my judgment on the application for a verdict by direction on the first count: R (Cth) v Petroulias (No. 30) at [75]-[102]. 29 Mr Sutherland SC sought directions in accordance with the submissions advanced by him, and rejected by me at the close of the Crown case on the element of deprivation (MFI137, pages 14-15; T4828-4834, T4859-4865). The Crown submitted that the draft written directions ought be given subject to some modifications (T4850-4855). 30 Consistent with my earlier rulings in R (Cth) v Petroulias (No. 1) and R (Cth) v Petroulias (No. 30), I determined that the directions on deprivation ought accord largely with the draft written directions. 31 In the light of oral submissions of counsel, I made further modifications to the written directions, which I explained briefly on 23 November 2007 (T4874-4875).

The Evidence of Mr Morgan (page 5, Written Directions ) 32 Mr Sutherland SC sought that I incorporate in the written directions to the jury a number of propositions which appeared in the written directions given by Sully J to the jury in the 2005 trial together with some additional matters (MFI137, pages 2-6; T4811-4816). His Honour had directed the jury, in effect, that acceptance of the evidence of Mr Morgan was essential if the Crown was to prove that the Accused was a party to a commercial arrangement for the marketing of opinions and rulings (which were the subject of the first and second counts) for financial benefit to the Accused. Mr Sutherland SC submitted that a direction to this effect should be given. 33 The Crown opposed the directions sought by the Accused and submitted that directions in accordance with the draft written directions ought be given (T4837-4838). The Crown had submitted to the jury that a combination of inferences available from the Crown's substantial documentary case and statements made by the Accused in documents provided by him to Mr Aivaliotes on 16 March 1999 (Exhibit C147) and to Mr Panos prior to 8 April 1999 (Exhibit D42) and in intercepted telephone conversations in September and October 1999 (Exhibits C196, C197, C198, C230, C231, C232, C233), together with statements made by him to Federal Agent Wildman during a conversation on 24 March 2000 (Exhibit C199) provided a foundation for the jury to be satisfied beyond reasonable doubt that the Accused was party to such a commercial arrangement, for financial benefit, without reliance upon the evidence of Mr Morgan. The Crown submitted that it was a question of fact for the jury to determine whether it was satisfied that the Accused was party to such an arrangement, and that the Court should not direct the jury that such a finding could only be made if the evidence of Mr Morgan was accepted. 34 I gave careful consideration to the appropriate characterisation of Mr Morgan's evidence as the trial progressed. I was conscious of the approach taken by Sully J at the 2005 trial on this aspect. Nevertheless, and with respect, I took a different view to Sully J and accepted the Crown submission that the jury should not be instructed on this aspect in the manner adopted by Sully J at the 2005 trial. 35 I accepted that a body of evidence was available, apart from Mr Morgan, which left it open to the jury to be satisfied that the Accused was party to such a commercial arrangement for financial gain. It was, of course, a question of fact for the jury to determine whether it was so satisfied, to the criminal standard, by reference to this evidence, whether considered alone or in conjunction with the evidence of Mr Morgan. Given that I took a different view to Sully J on this issue, I should explain my reasoning by reference to the evidence. Without seeking to be exhaustive, evidence upon which my opinion was based included the following. 36 Firstly, documents are in evidence which were retrieved from the hard drive of a computer located in a Melbourne storage facility which the jury could infer were created by the Accused in September-October 1997 for marketing purposes, including documents entitled "Boosting Productivity" and "Productivity Incentive Trust Plan" (Exhibit C206, Tabs 16, 17, 18, 19). 37 Secondly, a letter was located on the hard drive of the same computer which the jury may view in the following way. The jury may conclude that the Accused created the letter addressed to Mr John McLaren on 24 October 1997. In the letter, the Accused proposed to Mr McLaren that he contact an accountant, Mr Norman Draper (a Crown witness), whom the Accused had met on 14 October 1997 at a seminar at which the Accused spoke in his ATO capacity. The jury may conclude that the Accused wished Mr McLaren to contact Mr Draper to promote the sale of a scheme by reference to the opinion issued by Mr Chow on 8 October 1997 (Exhibit C95, Tab 1) with the Accused saying in the letter, "We are the only ones with an advance opinion which includes a Part IVA sign off" and later "It is important to point out that price should not be a consideration for a scheme that will work for next 10 years so as to reduce tax - particularly when it carries no audit risk. If the cheaper end of the market sell theirs at $5,000 less than us for example, that is a small price to pay over a substantial period for avoiding audit risk" (Exhibit C206, Tab 23). 38 Thirdly, the unchallenged evidence of Mr Calligeros, accountant, was that the Accused and Mr Morgan attended his office on 11 November 1997 for the purpose of promoting for sale employee benefit trust schemes. 39 Fourthly, a letter was located on the personal computer issued to the Accused by the ATO after he resigned and returned the computer on 8 April 1999. The letter, described in the trial as the "Nick to Nick" letter (Exhibit D42), was in the following terms: "Nick, The DPP has now become involved. They are looking at favouritism towards certain people. There are a number of loose ends that need to be sorted out. These are:- Geoff and his mates. As you know, they have been giving us the problems in what they have been saying. It is important that you sort out the position with Geoff. Further, the meeting in January - the 2 day one where you, me, Geoff and Emmanuel met in the York Street offices to discuss how PIC would operate its plans and that PIC would be sending in a number of plans. It is important that you and Geoff get familiar with those notes. These are notes prepared by either Geoff or you and sent to me. (They are very suspicious of those notes). The client lists - if Geoff has any, make sure they are destroyed. McLaren: I believe they now know about Global Growth. What is the relationship with PIC? I don't know, I am going to say that they are some sort of copycat as Geoff and Mclaren swap ideas and letters. But I would not know the full story. That is for you to sort out. There is a problem with the Ashley Cain application. It is dated 25 March (as are all PIC applications - eg Co Ltd by Guarantee and ETP Plan). Further, answers questions that have not yet arisen until October. Ie the Deed of Contribution is in response to the Commissioner's ruling in October - they can't have predicted it back in March. The only answer I can suggest and please make sure that McLaren has memorised, is that because when they called in October, and I raised the FBT concerns, the [sic] amended the application but not the original date. Ie they changed their submission on the FBT point, without changing the date of the original application and faxed it a few times to the ATO to make sure that they got it. Money - This is particularly important. Everything must be accounted for, even if as loans to Geoff and others. No HK shit. It smells bad. The idea of investing in HK was to set up a major superfund as a spin off from the existing operations."

The Crown submitted that the jury should conclude that this letter was written by the Accused to Mr Nick Panos after the investigation had commenced, with the Accused directing that persons involved in the arrangement (including Mr Panos, Mr Geoff Strong and Mr John McLaren) take action (including destruction of documents) and give accounts to investigators as suggested by the Accused. The Crown submitted that the letter demonstrates that the Accused was a controlling figure in the arrangement and that the clear inference was that the Accused was so involved for financial gain. In this respect, the Crown pointed, in particular, to the last paragraph of the letter where the Accused gave certain directions about money. 40 Fifthly, a telephone intercept conversation between the Accused and Mr McLaren on 24 September 1999 is in evidence (Exhibit C198). The conversation includes the following exchange between the Accused ("N") and Mr McLaren ("J") about what to say to AFP investigators: "J And what I wanted to talk to you about ah was sort of what I I mean I mean they're sort of ah taking my advice but do we need to drop in PRODUCTIVITY INCENTIVE CORPORATION I think it's I think that's the way to go isn't it?

J Well just that it then directs it back to ah the people in Sydney rather than me personally doesn't it?

N Um no because the problem is JEFF said that he'd only done the ten and he's only done the ten so then they will come to you anyway because . . ah they'll come to you and they'll say well hold on JEFF said he's done ten so I think what they're trying to do is piece the picture in pee piece the picture together …

J Look I was licensed under by PRODUCTIVITY INCENTIVE CORPORATION um ah RICHARD MORGAN um …

J No I haven't either okay so well where did I come up with all this information because the ruling requests exactly the same as ah …

J PANOS is well that's all right so long as I got that that contact that they know about.

J And then basically if they ask me who I've sold to then it's pretty well all the ones that have got the rulings isn't it?

The Crown submitted that the direction by the Accused to Mr McLaren in the conversation that no mention should be made of Mr Morgan supported a conclusion that a sinister or corrupt commercial relationship existed between the Accused and Mr Morgan which the Accused did not wish to come to the attention of investigators. 41 Evidence of the type referred to at [36]-[40] above, in my view, is available to the jury to support a conclusion that the Accused was, at all relevant times between September 1997 and February 1999, party to a commercial arrangement, for personal financial gain, arising from the sale of Productivity Incentive Trust Plans and other schemes, which were the subject of advance opinions and private rulings (Exhibit C95) issued by the ATO. 42 I note that there is evidence in which the Accused denies receiving money, including a telephone intercept conversation between the Accused and Mr Strong on 2 October 1999 (Exhibit C230) and the interview between Federal Agent Wildman and the Accused on 24 March 2000 (Exhibit C199). The Crown submitted that these denials should be assessed by the jury in light of Mr Morgan's evidence that money paid to the Accused had been returned to Mr Morgan and, in about September 1999, the Accused met Mr Morgan at the Coogee Bay Hotel and, in the course of a conversation about money which Mr Morgan had gambled away, the Accused is alleged to have said, "It is probably the best thing that could have happened because at least I have not received any benefit from what we did" (T583.14). All of this, of course, was for the jury to consider as the judges of the facts in the trial. 43 It is the case that the evidence of Mr Morgan is the only direct evidence from a witness that the Accused agreed to receive money, and did receive money, as part of such an arrangement. It is the case that Mr Morgan has given different accounts, since March 2000, as to whether money had been paid to the Accused and concerning the identity of the person who returned such money to Mr Morgan. 44 I formed the view, however, that it was a matter for the jury to consider the competing submissions of the Crown and the Accused concerning the assessment of all evidence touching upon this question as part of the jury's fact-finding function. It was not for me, and would have been erroneous, to direct the jury that acceptance of Mr Morgan's evidence was a prerequisite to a finding adverse to the Accused on the existence of an arrangement to which the Accused was party for financial gain. 45 Accordingly, I did not accept the submissions of Mr Sutherland SC that the written directions to the jury should follow the directions given by Sully J at the 2005 trial. Rather, the written directions pointed to Mr Morgan being an important witness in the trial and foreshadowed the requirement for a warning (under s.165(1)(d) and (2) Evidence Act 1995) with respect to his evidence. 46 It was for these reasons that I declined the application for the Accused for additional directions with respect to the evidence of Mr Morgan.

The Evidence of Mr Aivaliotes (page 6, Written Directions ) 47 The draft written directions provided to counsel also included proposed directions concerning the evidence of Mr Aivaliotes in this trial. A significant difference between the 2005 trial before Sully J and the present trial was that the Crown was granted leave on a number of topics to cross-examine Mr Aivaliotes under s.38 Evidence Act 1995 on the basis that his evidence was unfavourable to the Crown: R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005. I formed the view that it was appropriate to touch upon this aspect of the evidence of Mr Aivaliotes in the written directions to be provided to the jury. 48 Mr Sutherland SC sought a number of modifications to the proposed directions (MFI137, pages 6-7). The Crown supported inclusion of this direction in the written directions (T4846). 49 I determined that the directions should accord with the draft with one modification (T4873).

Failure by the Crown to Call Certain Witnesses (pages 5 and 6, Written Directions ) 50 Mr Sutherland SC applied that I give a direction to the jury in terms of Jones v Dunkel (1959) 101 CLR 298 with respect to the Crown's failure to call a number of persons as witnesses, in particular, Messrs Panos, Strong, McLaren and Gray (MFI137, page 7). The Crown opposed the giving of such a direction (T4842). Sully J had declined to give such a direction at the 2005 trial. 51 In R (Cth) v Petroulias (No. 1), I considered an argument as part of a permanent stay application by the Accused, that the failure of the Crown to call competent and compellable witnesses, including Messrs Panos and Strong, constituted a basis for a stay. At [287]-[302], I considered and rejected this submission. In doing so, I referred to the judgment of Gaudron and Hayne JJ in Dyers v The Queen (2002) 210 CLR 285 at 291 [6], where their Honours said: "Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses." The Crown relied upon this statement in opposing the direction sought by the Accused. 52 Having considered the submissions advanced on behalf of the Accused in this trial, I was not satisfied that the direction sought by Mr Sutherland SC should be given. In this respect, I applied Dyers v The Queen at 291 [6]. I was not satisfied that the failure of the Crown to call witnesses, including Messrs Panos, Strong, McLaren and Gray, involved a breach of the prosecution's duty to call all material witnesses. The written directions on this aspect were similar to those given by Sully J at the 2005 trial.

Directions Concerning the Accused Not Giving Evidence (page 7, Written Directions ) 53 Mr Sutherland SC sought that I repeat, in terms, the written directions of Sully J at the 2005 trial with respect to the Accused not giving evidence in the trial (MFI137, pages 7-8; T4816-4819). The Crown submitted that certain directions given by Sully J ought not be repeated and that the proposed direction in MFI135 ought be given (T4842-4843). 54 I accepted the submission of the Crown on this aspect. The proposed written directions reflected those contained in the Criminal Trial Bench Book of the Judicial Commission of New South Wales on this topic. I was satisfied that the draft written directions on this issue were appropriate in the circumstances of this case.

Consciousness of Guilt (pages 7 and 8, Written Directions ) 55 The draft written directions provided to counsel, in their original form, included directions on consciousness of guilt along the lines given by Sully J to the jury at the 2005 trial. My draft directions also included reference to particular exhibits relied upon by the Crown in this respect. 56 Mr Sutherland SC opposed inclusion in the direction of any reference to particular exhibits upon which the Crown relied with respect to consciousness of guilt (MFI137, pages 8-10; T4819-4822). The Crown submitted that such references were appropriate to assist the jury to understand the areas of evidence to which this direction of law applied (T4838-4839). 57 I was satisfied that these references were appropriate, in the context of a lengthy and complex trial, to assist the jury to identify particular areas of evidence to which the direction on consciousness of guilt needed to be applied. 58 The Crown submitted that a more elaborate direction on consciousness of guilt ought be included in the written directions, reflecting the principles referred to by the Court of Criminal Appeal in Quinlan v The Queen (2006) 164 A Crim R 106 at 116 [15]. Mr Sutherland SC did not oppose the direction proposed by the Crown by reference to Quinlan v The Queen. 59 I incorporated the direction proposed by the Crown in the written directions provided to the jury (T4873-4874).

Admissions (pages 8 and 9, Written Directions ) 60 The draft written directions (MFI135) included a direction concerning evidence which the Crown relied upon as evidence of admissions by the Accused. In R (Cth) v Petroulias (No. 7) [2007] NSWSC 16, I had admitted several telephone intercept conversations involving the Accused upon the basis that they were admissible as admissions by the Accused. It was for this reason, in particular, that I included a direction on admissions in the draft written directions. 61 Mr Sutherland SC opposed this direction (MFI137, pages 10-12; T4822-4825). The Crown submitted that such a direction ought be given (T4839-4841). 62 I was satisfied that directions concerning admissions ought be given to the jury, in particular given my conclusions in R (Cth) v Petroulias (No. 7) and the approach of the Crown to relevant parts of the evidence in the Crown closing address. The issue had been raised in my earlier judgment delivered on 30 January 2007, and nothing had happened in the course of the trial to dissuade me from giving such directions. To the contrary, the conduct of the trial reinforced the need for such a direction. Accordingly, the written directions included a direction on that topic.

Provision of Chronology to Jury 63 As mentioned earlier in this judgment, I took the view that a chronology would assist the jury in their understanding of the substantial body of documentary evidence, and the relationship between that evidence and oral evidence of witnesses. The Crown and Defence provided draft chronologies, respectively MFI125 and MFI128. A draft chronology (MFI134) was prepared by me which represented a consolidation of the chronologies prepared by the parties with a number of deletions and additions (T4789-4790). I took the view that a useful measuring stick for including references to events in the chronology was whether the Crown and Mr Sutherland SC had referred to particular events in their lengthy closing addresses to the jury. 64 Courts have observed that the use of charts or chronologies in complicated jury trials is a desirable procedure and is to be encouraged: R v Mitchell [1971] VR 46 at 59-60; Smith v The Queen [1970] 121 CLR 572 at 577. It has been said that the use of written material to assist a jury in understanding, or readily assimilating, the effect of voluminous or complex evidence is also to be encouraged. In an appropriate case, the provision of a chronology is a desirable method of simplifying the task of a jury and of facilitating their deliberations. The jury is entitled to expect that all reasonable steps will be taken towards that desirable goal, especially in trials involving voluminous and/or complex factual evidence: R v Collins (1986) 44 SASR 214 at 249 per Olsson J. 65 A chronology is likely to be selective because it is, in substance, an extract of the dates in chronological order of events referred to in a large number of documents: R v Collins at 234 per Jacobs J. It has been said that there is a tendency, when the use of a chronology is considered, to underestimate the intelligence and commonsense of juries as to whether such material is likely to have an undue or inappropriate impact upon the jury's thought processes: R v Collins at 249 per Olsson J. 66 In determining to provide a chronology to the jury, I proposed to emphasise that the chronology is not evidence in the trial, but a time line intended to assist the jury's deliberations to be undertaken by reference to the actual evidence itself. I directed the jury to this effect when the chronology was provided, together with other written material in the jury folder (MFI142) at the commencement of the summing up. I reminded them during the summing up that the chronology was not a substitute for the evidence. 67 In R v Kardoulias [2005] NSWCCA 150, it was observed at [66] that the trial judge had prepared for the jury "a valuable chronology extending over the period 18 July 2001-24 April 2002 and covering some 50 pages listing the many telephone calls and meetings between the alleged conspirators". This was in the context of a trial where, at [19]-[20], it was said that the evidence in the trial was essentially undisputed and unchallenged and the question was whether the jury ought be satisfied beyond reasonable doubt of the guilt of the accused in light of the evidence (a circumstantial case). 68 In a number of respects, the present trial had similarities to R v Kardoulias. A substantial body of the evidence in the trial, in particular documentary evidence, was essentially undisputed and unchallenged. The question was what inferences should be drawn by the jury from the documents and other evidence, and the events (and conjunction of events) revealed by that evidence. In the same way as a chronology assisted the jury in R v Kardoulias, I took the view that a chronology would assist the jury in the present case. 69 The Crown supported the provision of a chronology to the jury. Mr Sutherland SC did not oppose such a course, with submissions touching upon the content of the chronology. 70 I considered the written submissions of the parties concerning particular entries in the chronology. As already stated, I adopted, as a starting point, an approach which considered whether counsel had referred to the particular event, and associated evidence, in their lengthy closing addresses. If not, it was difficult to see how the jury would be assisted by a reference to an event in the chronology. 71 The Accused objected to a number of entries in the chronology which included quotations or partial quotations from particular documents. It was submitted that the jury may use the chronology as a substitute for the evidence in these areas. The Crown submitted that such entries ought remain in the chronology. I took the view that quotations or partial quotations would assist the jury to recall the particular exhibits. As long as the jury received clear directions that the chronology ought not be considered in substitution for the exhibits themselves, it seemed to me that references of this type would serve to assist the jury to recall the particular documents. Oral directions to this effect were given to the jury, as I took them through the chronology and referred to the actual exhibits themselves from which quotations or partial quotations were taken. I was satisfied that this was the appropriate course to take. 72 There were other areas of debate concerning the chronology, none of which, in my view, assumed particular significance. 73 I was satisfied that the chronology would assist the jury in its deliberations and that the jury would utilise it in an intelligent and commonsense way. I was conscious of the responsibility of the trial judge to exercise discretion to ensure that the chronology did not give rise to unfairness to the Accused: R v Collins at 249. I was satisfied that the chronology would not be used by the jury in a manner which was unfair to the Accused.

Conclusion 74 With respect to the principal areas of controversy concerning the proposed written directions and chronology, this judgment expresses my reasons for the conclusions expressed on 23 November 2007 concerning the written directions and chronology included in the jury folder (MFI142) provided to the jury at the commencement of the summing up.

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.