R v Waldron

The representations

1. Ms Sugar was a partner in a public accounting firm in the USA from 2006 and at the time of the deposition had been in that position for 14 years. The accused sought to adduce evidence being extracts of her deposition in the matter of the Securities Exchange Commission v Eric Pulier made on 9 June 2020. Those extracts were conveniently tabled in a schedule which became MFI 1 on the voir dire, which listed 60 separate entries by reference to the transcript page and line numbers contained within the deposition. I do not propose to reproduce each of those references for the purpose of this judgment as the parties are familiar with them. The items fall broadly with the following descriptions:- 1. The fact that Ms Sugar's testimony was taken under oath. 2. Her background as a CPA and tax consultant. 3. Her professional relationship with Eric Pulier. 4. Her provision of taxation advice and preparation of tax returns on behalf of Mr Pulier. 5. Her familiarity with TechAdvisors LLC ("TA"), a company owned by Mr Pulier that owned stock in ServiceMesh ("SMI"). 6. The acquisition of SMI by CSC. 7. The provision of tax advice to Mr Pulier. 8. Mr Pulier's request by email dated 16 January 2014 for her to advise on his intention to contribute the proceeds TA received from that sale into a non-profit entity (Item 31 in MFI 1). 9. Ms Sugar's response by email dated 17 January 2014 to obtain an understanding of how Mr Pulier wanted to potentially structure this entity. 10. Mr Pulier's email received by Ms Sugar on 20 January 2014 setting out his intention to set up a foundation "dedicated to producing open-sourced technologies and applications that could be used in developing countries" and, "the foundation would then make such payments for consultants and create a mechanism to popularise its work with the appropriate people public entities that can most benefit on a regular basis" (Items 33 and 34 in MFI 1). 11. That following the email exchanges in January 2014 she had further discussions with Mr Pulier about funding a non-profit entity with the proceeds TA had received. 12. Her advice to Mr Pulier about setting up a non-profit organisation. 13. Her preparation of Mr Pulier's individual tax extension for the 2013 tax year including her statement that individual tax returns are due by April 15th but may be extended until October 15th but any tax due is still required to be paid by April 15th. 14. Ms Sugar first learnt about ACE in May 2014 from Mr Pulier, or a few weeks prior to 27 October 2014. 15. Her knowledge of Mr Andrew Goldstein. 16. Her advice to Mr Goldstein that any money left in ACE as of 31/12/2024 would be taxed. 17. In a note dated 28 October 2014 of a phone conversation Mr Goldstein advised that he intended moving forward on a non-profit application and that he and Eric Pulier were working pre-payment on as many invoices as possible prior to 31 December 2014. Prepayment of invoices would reduce the net income of ACE in the taxable year and hence reduce its tax liability (Items 45 and 49 in MFI 1). 18. Discussions Ms Sugar had with Eric Pulier related to ACE and its potential tax liability after October 2014. 19. Ms Sugar's follow-up with Mr Goldstein to ensure payments to consultants were made by the end of the calendar year in 2014. 20. Mr Pulier's response to her email dated 22 August 2014 that he intended "TA to dispose of assets for no tax". 21. That Ms Sugar received copies of invoices to support payments to consultants during 2014. She recalled listed on those invoices were "Sean Kelly, a Hans, Digisol, Keith Hunter, and Jon Waldron".

The accused's submissions

1. Counsel for the accused submitted that the evidence of Ms Sugar concerning dealings with Eric Pulier regarding tax minimisation demonstrated the pressing need on the part of Mr Pulier to make the payments to the accused that he did, and supported the evidence of the accused concerning the latter of those payments which were paid into the accused's ASB account. The evidence supported the need for Mr Pulier to defer his tax liability in the USA.
2. Counsel submitted that the representations of Ms Sugar were admissible pursuant to s65(2) and (8) of the EA. The representations received by Ms Sugar from Eric Pulier concerned his future intentions, first in respect of the non-profit corporation ACE and secondly, his intention to pay contractors from the funds received by TechAdvisors and was therefore relevant evidence and fell within the application of s66A of the EA, as does the representation received by Ms Sugar from Andrew Goldstein.
3. The accused relied on Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, a case determined prior to the EA where the majority in the High Court held that a statement by a person about his intentions or state of mind are admissible where that person's state of mind is a fact in issue or a fact relevant to a fact in issue. Such statements are an exception to the common law hearsay rule on the ground that a statement about a person's intentions is direct and "testimonial". However the judgment of Mason CJ made clear that such testimony of a person who heard the author of the representation is not hearsay but is original evidence. Counsel submitted that the decision explains how an expression of intention might inform a fact relevant to a fact in issue. The fact in issue here was whether Eric Pulier intended to defer payment of taxes thereby providing a reason for the payments to the accused. A second fact in issue is whether Mr Pulier intended to make payments to consultants assisting with his not-for-profit organisation.
4. Counsel submitted that the insertion of s62 EA provided that hearsay evidence, if otherwise admissible was limited to first-hand hearsay. However this did not apply to the emails from Eric Pulier and Andrew Goldstein addressed to Ms Sugar and her evidence in relation to those emails.
5. Counsel also referred to R v Kuzmanovic [2005] NSWSC 771 where Miles AJ admitted a statement made to police by a prosecution witness into evidence pursuant to s65(2)(b) of the EA or alternatively s65(2)(c). At [14] his Honour referred to Walton v The Queen. His Honour held that what the deceased in that case was alleged to have said to the witness was not a representation within s65 but original evidence of relevant conduct. His Honour went on to say:- "The intention of the deceased was relevant because the inference might be drawn from it that he in fact acted in accordance with his intention"
6. Notwithstanding there was no reference to it counsel submitted that in so saying Miles AJ must have been referring to s66A of the EA.
7. Counsel identified that s66A of the EA applied to the following two items of evidence:- Item 31 being Ms Sugar's understanding of what Mr Pulier intended via his email dated 16 June 2014, and; Item 49 being her understanding of Mr Goldstein's intention concerning the payouts.
8. Counsel submitted that the matters personal to Ms Sugar namely those concerning taxation law, the steps that she took and the timing of the steps (including her discussions with Mr Pulier concerning his reduction or minimisation of tax liabilities) were all matters that she had first-hand knowledge of and were therefore admissible pursuant to s65 EA as an exception to the hearsay rule. Section 65(8)(b) applied as the deposition was a document containing the previous representations of Ms Sugar.
9. It was submitted that s65(2) was satisfied in that the representations were made under oath in circumstances where it was unlikely that they would be fabricated and likely that the representations would be reliable. The Crown conceded that those preconditions had been met.
10. Counsel referred by analogy to the High Court's decision in Walton v The Queen to submit that the representations of Mr Pulier and Mr Goldstein were testimonial in nature.
11. Counsel submitted that whilst the state of mind of Eric Pulier or Andrew Goldstein was not a fact in issue in the trial both were relevant to a fact in issue. That fact was Eric Pulier's expressed intention to establish a non-profit organisation and the expressed intention of both Mr Pulier and Mr Goldstein to pay the consultants outlined therein which provided a foundation for the fact that it was what they in fact did. Counsel referred to Boral Resources Ltd (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling No. 2) [2015] VSC 459 as an example of the application of the exception to the hearsay rule contained in s66A of the EA. In that case the trial Judge admitted statements of intention to award or not award contracts made by a Union official.
12. It was submitted that the emails referred to in the deposition from Eric Pulier and Andrew Goldstein constituted expressions of their future intentions and were admissible pursuant to s66A EA. The issue had been identified in Exhibit J in the proceedings where there was reference to a text message concerning the paying out of monies so as to avoid or minimise tax.

The Crown submissions

1. The Crown submitted that the application of the accused should not succeed on two bases. First, the representations relied on by the accused are not relevant to any fact in issue.
2. The Crown submitted it was a fact in issue as to whether payments were made to the accused and Keith Hunter for reward for services to SMI or for work done or to be done for a different project altogether.
3. The Crown submitted that the evidence established that Mr Pulier had incorporated TechAdvisors as a shareholder of SMI and that TechAdvisors had received $5,618,331 as its share of the proceeds of sale of SMI to CSC.
4. It was an agreed fact in Exhibit A [9] that ACE had been incorporated on 9 May 2014. In June and July 2014 TechAdvisors had made payments to ACE.
5. The Crown submitted that whatever reason Mr Pulier had for transferring funds in the way he did, or similarly Mr Goldstein, was irrelevant to consideration of whether the payments made were bribes or legitimate payments. It was submitted "that they could equally be bribes or legitimate payments, notwithstanding the timing of the payments."
6. The Crown submitted there had been no cross-examination of the accused concerning anything unusual about the accused or Keith Hunter receiving payments in advance. It was the Crown case that the payments were received as a reward and the evidence of the accused that he was working for Eric Pulier was a sham. The Crown submitted that evidence that Mr Pulier reduced his tax liability by paying money sooner rather than later does nothing to shed light on the purpose of those payments.
7. The Crown submitted that the information in the deposition concerned avoiding a tax liability if funds were not cleared out of TechAdvisors and ACE at a point in time before ACE achieved charitable organisation status was not relevant to whether the payments were for work done (or to be done) or for the purpose of paying money to people consistent with Mr Martinez's evidence and spreadsheet. Thus the court should not admit the evidence of Ms Sugar or her advice or the representations of Mr Pulier and Mr Goldstein to her.
8. The Crown further submitted that even if I accept there was some relevance to the evidence it should be excluded pursuant to s135 of the EA because the probative value was "zero" as to a fact in issue, and it had the potential to unfairly prejudice the Crown which was unable to test any of the motivations of either Mr Pulier or Mr Goldstein. The Crown submitted that there was an aspect of confusion or misleading nature concerning the future intentions of Mr Pulier that may result in "undue wasted time."
9. Secondly, the Crown submitted that s62 of the EA provides for a restriction to firsthand hearsay and s62(2) excludes all of the representations that Ms Sugar relates as to the information conveyed to her by Mr Pulier or Mr Goldstein. For example, item 59 on page 179 comprised of:- "It was my understanding that there were expenses paid out during 2014 for consultants earlier in the year".
10. The Crown submitted this was clearly excluded pursuant to s62(2) of the EA. It was submitted that the Crown was unable to test any representation made to Ms Sugar on a second-hand hearsay basis.
11. The Crown referred to Vickers v R [2006] NSWCCA 60 where at [54] and following Simpson J (as her Honour then was) drew the distinction between evidence admissible pursuant to s65 of the EA and second-hand hearsay.
12. Counsel submitted that the judgment of Miles AJ in Kuzmanovic made no reference to s66A, and the Court could not be confident that his Honour took that into account.
13. The Crown referred to Mr Odgers' "Uniform Evidence Law" at [62.90] to submit that the intention behind s62(3) in combination with s62(1) is to ensure that s66A is limited to first-hand hearsay statements. The Crown therefore submitted that all representations by Eric Pulier and Andrew Goldstein to Ms Sugar were excluded by s66(2) of the EA. Statements made in the deposition by Ms Sugar as to what she did are irrelevant and should also be excluded.
14. The Crown submitted alternatively that if I concluded that any or all of the representations should be admitted then the Court would take into consideration that the statements of Mr Goldstein concerning the reason for, or the motivations for the proposed transactions was to avoid tax, "rather than in any way connected with legitimate payments for work done or, work to be done."

Submissions in reply on behalf of the accused

1. Counsel addressed the Crown's relevance objection namely, that the evidence was not relevant to a fact in issue, and the Crown's submission that the payments may have a dual purpose i.e., as a bribe or for tax minimisation. It was submitted this gave rise to an alternative reasonable hypothesis namely, tax minimisation, which would mean that the Crown was unable to prove its case beyond reasonable doubt. Counsel submitted the correct question is whether the evidence had the capacity to rationally affect a fact in issue, and that test had been amply satisfied.
2. Counsel addressed the Crown's submission for exclusion of the evidence pursuant to s135 of the EA on the basis of the inability of the Crown to cross-examine Mr Pulier and Mr Goldstein as to their motivation for the payments.
3. Counsel referred to R v Clark [2001] NSWCCA 494;123 A Crim R 506 at [162] - [165] to submit that where the evidence is not misleading or confusing to exclude such evidence on the basis of an impossibility to cross examine them would be to write the hearsay exceptions out of the legislation. In that case it was held that cross-examination of the deceased would not have assisted. Here counsel submitted "there was never any suggestion that either Mr Pulier or Mr Grossman would be called as witnesses by the Crown, let alone suggest their evidence would be tested in some fashion." I interpolate that counsel was referring to Mr Goldstein, not Mr Grossman.
4. It was submitted that one of the innovations of the Evidence Act hearsay provisions was that it does permit a greater reception of hearsay evidence. The test pursuant to s135 required a finding of real prejudice, relying on R v Clark.
5. Referring to the evidence the Crown referred to at page 179 of the deposition, counsel submitted that Ms Sugar's statement that she had received the invoices supporting the payments was not second-hand hearsay. The representations of Mr Pulier and Mr Goldstein fell fairly within s66A and it was submitted that s62 had no application, nor did the decision of the Court of Criminal Appeal in Vickers v R. Here the evidence went to the statement of intention of Mr Pulier not the fact that he had paid the consultants. Therefore s62 did not exclude the statements.
6. In the event that the Court refused the application, counsel sought to tender MFI 7 in the trial which included the relevant email from Mr Pulier. That document was marked MFI 2 on the voir dire (formerly MFI 7 in the trial).
7. The Crown objected to that tender on grounds of relevance. The Crown submitted, "If the court was not admitting the evidence in the deposition then there is a break in admitting this document."
8. The Crown relied on Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461 at [154] concerning the application of s65(2).

Determination

1. The following provisions of the Evidence Act are relevant to the determination of this application:- 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to - (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)). (3) However, this section does not apply in a criminal proceeding to evidence of an admission. 62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made. 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was - (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied - (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that - (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but - (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by - (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends - (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to - (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that - (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. 66A Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
2. The evidence the accused seeks to adduce pursuant to ss65 and 66A of the EA fall into two categories:- 1. The representations of Ms Sugar as outlined above being representations the accused submits are admissible pursuant to s65(2) and (8) of the EA. 2. Her evidence concerning the representations made by email to her by Mr Pulier and Mr Goldstein which are said to be admissible pursuant to s66A of the EA.
3. Section 55 of the EA provides that relevant evidence is evidence that "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". Here the ultimate fact in issue is whether the accused received money in circumstances which would be regarded according to ordinary standards as being corrupt (Counts 1 to 7) and that he aided and abetted Keith Hunter to corruptly receive monies (Counts 8, 9 and 10). The accused has led evidence of a positive case that the payments received by him in Counts 1 to 7 were for work done, or work to be done by him, and the payments made to Keith Hunter (Counts 8, 9 and 10) were similarly made.
4. The evidence subject of this application is contained in a sworn deposition given by the accountant for Mr Pulier, and his related companies. The nature of the payments made by two of those companies namely, TA and ACE Inc. i.e., whether they were made as bribes or for work done or work to be done, is very much a fact in issue. The evidence subject of this application is therefore relevant as evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The Crown submission that "whatever reason Eric Pulier had for transferring the funds in the way that he did, or similarly Mr Goldstein was irrelevant" is misconceived, as is its submission that the payments "could equally be bribes or legitimate payments".

The first category - Representations by Ms Sugar

1. I am satisfied that the representations contained within the sworn testimony of Ms Sugar in the deposition are representations made under a duty to make representations of that kind and were made in circumstances that make it highly probable that the representations are reliable so as to comply with s65(2)(a) and (c) of the EA. The Crown properly conceded that.
2. I am also satisfied that those representations are contained in a document so as to satisfy s65(8)(b) of the EA and I therefore intend to grant the application in respect of the first category.

The second category - Representations made by Pulier and Goldstein

1. The second category of representations comprise the emails referred to above from Mr Pulier and Mr Goldstein concerning Mr Pulier's intention first to establish a not-for-profit corporation for tax purposes, and secondly his intention, and that of Mr Goldstein, to make payments to certain persons within a time period so as to minimise the tax liabilities of the related corporations. I am satisfied that the evidence in Items 31 and 49 constitute personal knowledge of Ms Sugar of the representations made by both Mr Pulier and Mr Goldstein as to their future intentions and state of mind at the time the representations were made. The evidence is therefore in each case first-hand hearsay and thus complies with s62(3) of the EA.
2. The decision in R v Vickers may be distinguished as in that case the Court held the representations in question (that the accused said he was provoked) were not relevant to a fact in issue (where the accused was relying on self-defence). I further find that the representations were made by both Mr Pulier and Mr Goldstein contemporaneously about their intentions or state of mind concerning those matters. I therefore find that they are admissible as an exception to the hearsay rule in s59 of the EA pursuant to s66A of the EA.
3. In so finding I reject, for the reasons set out above, the Crown's submission as to relevance and its characterisation of the facts in issue as misconceived.
4. Section 135 of the EA provides as follows:- 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
5. The Crown has submitted that it would be unfairly prejudicial to the Crown to admit the evidence because of the lack of opportunity to cross-examine Mr Pulier or Mr Goldstein to test their evidence. The Crown further submitted that the evidence is misleading or confusing and may result in an undue waste of time. The Crown submitted that the probative value of the evidence is zero and is substantially outweighed by the danger caused by the evidence on the above basis. The Crown therefore seeks an order that the court refuse to admit the evidence.
6. I reject the Crown's submission that the probative value of the evidence is zero. It is relevant to a fact in issue as outlined above and may provide some support to the evidence given by the accused. The Crown never intended to call Mr Pulier in these proceedings and whilst initially the Crown did not intend to call Mr Goldstein, it subsequently did so for the purpose of adducing documents held by Mr Goldstein into evidence which go to the very issue of the nature of the payments made by ACE Inc. to the accused. The evidence is neither misleading nor confusing and will not result in any waste of time. The fact that it may not assist the Crown case does not amount to unfair prejudice that would outweigh the probative value of the evidence. I adopt what Heydon JA said in R v Clark at [164], that to exclude the evidence pursuant to the discretion under s135 would result in writing out the hearsay exceptions out of the EA to a large extent and would be contrary to the legislative intention. Further, as this is a Judge alone trial, there is no risk of misuse of the evidence in some unfair way. The fact that the evidence remains untested may ultimately go to its weight. I therefore refuse to exercise my discretion pursuant to s135 of the EA to exclude the evidence.
7. For these reasons I grant the application by the accused to adduce the evidence highlighted in Exhibit 2 on the voir dire. I direct that the highlighted portions of that exhibit be extracted into a separate document that will become Exhibit 119 in the trial. It should be filed on or before 5 April 2024.

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: 08 May 2024