R v Cranston (No 20)

1. [1]

   This trial commenced on 26 April 2022. On 3 November 2022, the Crown case closed. On 4 November 2022, one of the five accused, Mr Dev Menon, commenced giving evidence.

2. [2]

   On 15 November 2022, immediately prior to his cross-examination commencing, Mr Menon’s counsel, Mr Bruckner, sought the issue of a certificate under s 128 of the Evidence Act 1995 (NSW) in relation to “evidence on a particular matter” being the following four “particular matters”:

   1. (1)

      Procuring an allegedly false affidavit (witnessed by Mr Menon) verifying a statement of claim filed in the Supreme Court where the deponent falsely claimed knowledge about the underlying facts asserted in the claim;

   2. (2)

      Procuring allegedly false affidavits from “straw” directors of 7 second tier entities allegedly involved in a dishonest scheme to cause a loss to the Commonwealth by the non-payment of Pay As You Go Withholding Tax (PAYGW) and Goods and Services Tax (GST) which should have been paid to the Commonwealth by those entities;

   3. (3)

      Potential offences against the Corporations Act 2001 (Cth) in being knowingly concerned in breaches of directors’ duties and in making or being knowingly concerned in false statements made to the Australian Securities and Investments Commission about numerous aspects of the alleged scheme; and

   4. (4)

      Breaches of solicitors’ duties.

3. [3]

   In oral submissions on 17 November 2022 (reflecting written submissions earlier filed), Mr Bruckner refined the evidence of “particular matters” about which a certificate was sought by adding forgeries allegedly procured by Mr Menon of the signature of a dead man, Mr Peter Larcombe, on a backdated “agreement” between a second tier entity, Uneek Consulting Services Pty Ltd, and the head company allegedly involved in the tax fraud, Plutus Payroll Australia Pty Ltd for the purpose of misleading the Australian Tax Office. Mr Bruckner withdrew his earlier reliance upon breaches of solicitors’ duties.

Submissions

1. [4]

   Mr Menon submitted that s 128 in its current form was introduced by the Evidence Amendment Act 2007 (NSW). The Explanatory Note to the Evidence Amendment Bill 2007 (NSW) makes reference to Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 and states:

2. [5]

   Changes in two matters addressed by the section were identified in the Explanatory Note. First, that the process of taking objection was simplified. The objection in relation to a “particular matter” was introduced. Secondly, it was made clear that a certificate under s 128 does not provide protection in respect of a retrial, being a central issue addressed by the plurality in Cornwell at [86].

3. [6]

   Mr Menon submitted that the majority in Cornwell did not decide what was meant by “fact in issue” in the former s 128(8) – replicated in the current s 128(10). Rather, it was submitted that the majority held at [80] that:

   1. (1)

      it was not necessary to decide whether the expression “fact in issue” in then s 128(8) includes “facts relevant to facts in issue” (that is, circumstantial evidence: at [57]); and

   2. (2)

      the “approach is sound” to assume that the term “fact in issue” in then s 128(8) does not include “facts relevant to facts in issue”, but directs attention to the statutory expression of which “fact in issue” forms part.

4. [7]

   The reasoning of the majority then proceeded at [81] on the basis that “[e]ven if” the expression “fact in issue” in then s 128(8) “is limited” to direct evidence, such as whether a person accused of murder shot the deceased, that this would be “evidence that the defendant … did an act the doing of which is a fact in issue”.

5. [8]

   It was submitted that on the reasoning in Cornwell, it remains open to construe the term “fact in issue” in former s 128(8) as not being concerned with the distinction between direct evidence and circumstantial evidence. The term “fact in issue” may instead be concerned with matters that are in issue in the proceeding.

6. [9]

   It was submitted that none of the subjects about which a certificate was sought were a “fact in issue” as Mr Menon had essentially admitted engaging in all of the relevant conduct in his evidence in chief or that conduct was essentially “common ground”. It was submitted that Mr Menon was recorded procuring forgeries of various signatures, has admitted to seeking affidavits from “straw” directors in connection with the extortion deed and being involved in other potentially criminal matters in respect of which other witnesses have received certificates. The accuracy of the recordings in those respects, including attributions to Mr Menon, are, thus it was submitted, not facts in issue in this case. An affidavit verifying a statement of claim, witnessed by Mr Menon, is in evidence. That this document (and other documents) is a true copy, has not been an issue in this case.

7. [10]

   Accordingly, it was submitted that it was appropriate to grant Mr Menon a certificate in respect of cross-examination in connection with, at least, the specified matters in [2] and [3] above. It was also submitted that it is appropriate to grant Mr Menon a certificate in respect of the whole of his cross-examination.

8. [11]

   The broad scope of these matters, and the potential connection between questions and issues, is such that it is difficult to exclude the risk or apprehension that the answer to any particular question may tend to prove commission of an offence or liability to a civil penalty.

9. [12]

   The Crown opposed the grant of a certificate and relied on both sub-sections of s 128(10). The Crown was required to prove all of the matters Mr Menon asserted were common ground. In addition, it was submitted that the Crown case against Mr Menon is that a solicitor would only engage in lying, forgeries and Corporations Act offences because that person had a particular state of mind. The existence of the state of mind is a fact in issue in reaction to both Counts in the indictment. The Court thus had no power to grant a certificate here.

Relevant law

1. [13]

   Section 128 of the Evidence Act provides:

2. [14]

   In Cornwell the High Court addressed the former s 128(8), now 128(10). The joint judgment explained that the circumstantial evidence relevant to determining the ultimate question in a criminal case is “evidence that the defendant … did an act the doing of which is a fact in issue”:

3. [15]

   In Cornwell, the High Court proceeded on the basis, favourable to Mr Menon’s application, that “fact in issue” does not include “facts relevant to facts in issue” but is confined to acts and states of mind which are to be established beyond reasonable doubt in order for the prosecution to prove guilt. Thus, in the High Court’s example of murder, the fact in issue was whether the accused person shot the deceased.

4. [16]

   Proceeding on that basis, the High Court held at [81]-[84] that circumstantial evidence tending to prove acts or states of mind necessary for the Crown to prove its case is evidence to which then s 128(8) (in terms identical to s 128(10)) applies.

5. [17]

   Cornwell is binding on me. It has not been subsequently explained or qualified. The Parliament was clearly aware of Cornwell and chose to replicate s 128(8) in the current s 128(10).

Consideration

1. [18]

   I have concluded that s 128 does not apply because of the operation of s 128(10) and that a certificate cannot be given to Mr Menon in these circumstances.

2. [19]

   The High Court in Cornwell made clear at [81]-[84] that “fact in issue” is to be construed as relating to acts and states of mind which must be established beyond reasonable doubt in order for the prosecution to prove guilt. Thus, in the High Court’s example of murder, the fact in issue was whether the accused person shot the deceased. Proceeding on that basis, the High Court held that circumstantial evidence tending to prove those acts or states of mind is evidence to which then s 128(8) applies.

3. [20]

   Here, critical facts in issue include whether the agreements alleged by the Crown were in existence, whether Mr Menon participated in them, and whether he knew that causing a loss to the Commissioner of Taxation by the non-payment of PAYGW and GST was dishonest. The specified matters identified in Mr Menon’s submissions are each important parts of the evidence relied upon by the Crown to establish those acts and states of mind. They are each, on the authority of Cornwell, facts in issue. Accordingly, s 128 does not apply to the identified matters.

Orders

1. [21]

   For these reasons the application for a certificate under s 128 of the Evidence Act is refused.