R v Hargraves[2008] QSC 267

SUPREME COURT OF QUEENSLAND

SCHEDULE

It is ordered that:

1.The Crown provide to the legal representatives of the Applicant the following material:

A.A complete copy of the transcripts of the evidence that Mr Phillip Jepson Egglishaw provided to the Australian Crime Commission on the following dates:

(a)17 February 2004;

(b)19 February 2004;

(c)20 February 2004;

(d)26 February 2004;

(e)1 March 2004.

B.A copy of exhibit No. M04/0037/003, namely the statement of Mr P J Egglishaw referred to in the examination conducted at 2.20pm on Friday the 20th of February 2004.

C.A copy of exhibit No. M04/0037/004, namely the folder of documents referred to and set out in Appendix “A” to statement of Mr P J Egglishaw referred to in the examination of Mr Egglishaw at 2.20pm on Friday the 20th February 2004.

D.A copy of exhibit No. M04/0037/006, namely the copy of document cover of which reads “Strachans Tax Planning And Off-shore Administration” 85 referred to in the examination of Mr Egglishaw at 10.17am on Thursday the 26th of February 2004.

E.A copy of exhibit No. M04/0037/007, namely the Schedule headed: Geneva In-house Companies, updated 20/02/2004 referred to in the examination of Mr Egglishaw at 10.17am on Thursday the 26th of February 2004.

F.A copy of exhibit No. M04/0037/008, namely the file or documents 92 referred to in the examination of Mr Egglishaw at 10.17am on Thursday the 26th of February 2004.

G.A copy of exhibit No. M04/0037/009, namely the billing schedule 92 referred to in the examination of Mr Egglishaw at 10.17am on Thursday the 26th day of February 2004.

H.A copy of exhibit No. M04/0037/010, namely the Schedule of Stachans’ clients sorted under partners’ initials 95 referred to in the examination of Mr Egglishaw at 10.17am on Thursday the 26th of February 2004.

I.A copy of exhibit No. M04/0037/015, namely the bundle of documents, commencing with facsimile sheet signed off by Mr P. De Figueiredo, dated 12/07/1999, and three other related documents 111 referred to in the examination of Mr Egglishaw at 10.17am on Thursday the 26th of February 2004.

J.A copy of exhibit No. M04/0037/022, namely the Five – page spreadsheet headed: List of Files in Geneva referred to in the examination of Mr Egglishaw at 11.10am on Monday the 1st of March 2004.

K.A copy of exhibit No. M04/0037/026, namely the copy of brochure titled Stachans Trust: A Simple Concepts referred to in the examination of Mr Egglishaw at 11.10am on Monday the 1st of March 2004.

L.A copy of any other exhibit which was referred to or by the witness Mr P. J Egglishaw during the examination of Mr Egglishaw at 2.20pm on Friday the 20th February 2004.

M.A copy of any other exhibit which was referred to or by the witness Mr P. J Egglishaw during the examination of Mr Egglishaw at 10.17am on Thursday the 26th of February 2004.

N.A copy of any other exhibit which was referred to or by the witness Mr P. J Egglishaw during the examination of Mr Egglishaw at 11.10am on Monday the 1st of March 2004.

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J 

Indictment No 418 of 2008

THE QUEEN

v.

GLENN LUKE HARGRAVES

ADAM JOHN HARGRAVES

DANIEL ARAN STOTEN

BRISBANE 

..DATE 23/10/2008

PRE-TRIAL HEARING

EXTRACT OF PROCEEDINGS

HIS HONOUR:  The three accused in this case are presently pending prosecution in this Court for conspiracy to defraud the Commonwealth.  The prosecutions arise out of an investigation carried out by the Australian Crime Commission under the name Operation Wickenby.
 

It is unnecessary for present purposes to describe the subject matter of the investigation in great detail.  It is sufficient to say that it allegedly involved an investigation into a scheme for procuring false invoices to be sent to Australian taxpayers or a company with which they were associated to inflate tax deductions and thereby procure the payment of less tax than should have been paid.

The scheme that was promoted in order to bring about that outcome was run by a firm based in Geneva named Strachans SA and a principal associated with that firm was Philip Jepson Egglishaw.  Mr Egglishaw, when in Australia, was examined by the Australian Crime Commission pursuant to the power which the Commission has to carry out such an examination under section 24A and 25A of the Australian Crime Commission Act 2002 of the Commonwealth.  A transcript was made of the evidence which was given. 

The defence has sought disclosure by the prosecution of the transcript of Mr Egglishaw's evidence.  The evidence before me discloses that the office of the Commonwealth Director of Public Prosecutions sought that transcript from the Australian Crime Commission and was given a version of it which has a significant number of pages blacked out or redacted, as it was expressed during argument.

The applications which are before me today seek directions that the Crown provide to the legal representatives of the accused complete copies of the transcript and of the exhibits referred to in the transcript.

No evidence has been put before me to suggest that the evidence is not relevant to the prosecution of the three accused.  That is so notwithstanding that there is on behalf of the Crown an affidavit of Duncan Jeffrey Brown, an investigator with the Australian Crime Commission who is currently the case officer in relation to the matter.

I would infer that if the material in the blacked out passages and the missing exhibits were irrelevant, Mr Brown would know about it and would have given evidence to that effect.

It is also reasonable to conclude from the terms of section 25A(6) that the evidence which was given was relevant to the investigation which was being carried out.  The present prosecutions are based on, among other things, that investigation.

The applications are resisted on one ground only.  That ground is that the unblacked-out transcript and the exhibits are not in the possession of the prosecution within the meaning of section 590AE of the Criminal Code.  That section defines the meaning of "possession of the prosecution".

It begins with the proposition in subsection (1) that a thing is in the possession of the prosecution only if the thing is in the possession of the prosecution under subsection (2) or subsection (3).  Subsection (2) provides the thing is in the possession of the prosecution if it is in the possession of the arresting officer or a person appearing for the prosecution.

The arresting officer is the police officer who arrested the accused, or another police officer that the Commissioner or a delegate of the Commissioner designates as the arresting officer.

In the present case, the arresting officer has ceased to be seconded to the Australian Crime Commission and returned to the Australia Federal Police sometime in 2006.  It is common ground that the documents being sought are not in his possession.

It is also common ground that they are not in the possession of a person appearing for the prosecution.  Subsection (2), therefore, does not apply. 

Subsection 590AE(3) provides:

"A thing is also in the possession for the prosecution if -

(a) the thing is in the possession of -

1. for a prosecution conducted by the director of public prosecutions - the director; or
2. for a prosecution conducted by the police service - the police service; and

(b) the arresting officer or a person appearing for the prosecution -

1. is aware of the existence of the thing; and
2. is, or would be, able to locate the thing without unreasonable effort."

It is common ground that the present prosecution is being conducted by the director of public prosecutions not necessarily within the meaning of the Code but for practical purposes within that meaning mutardis mutandis as picked up by the Judiciary Act in applying the Queensland provisions to a Commonwealth prosecution.  I hope I may be forgiven, therefore, for saying perhaps somewhat elliptically and shorthandedly that the prosecution is being conducted by the director of public prosecutions.

However, it is at least proved and probably, I think, is common ground that the director of public prosecutions does not have possession of the requested documents. 

It is also admitted by the Crown that a person appearing for the prosecution is aware of the existence of these documents and is or would be able to locate them without unreasonable effort.  In other words, the elements of subsection 3(b) are satisfied.

The question that is in issue between the parties is whether a thing is within the possession of the prosecution when either paragraph (a) or paragraph (b) is satisfied or only when both of those paragraphs are satisfied.

Putting it in the more traditional, if somewhat inaccurate way of expressing the matter, does "and" at the end of subparagraph (a) mean "or"?

In support of the proposition that it did, Mr Walker SC and Mr Byrne QC for the applicants submitted that the word did mean "or".  They pointed to the disclosure obligation set out in section 590AB(1) as governing the approach which should be taken to the case and to the decision of the Court of Appeal in The Queen v. Rollason (2008) 1 QdR 85 as supporting an interpretation of chapter division 3 generous to the accused.

They also referred to the point that it would make no sense to construe subsection (3) otherwise because to do so would mean that paragraph 3(a)(1) would cover virtually the same ground as part of subsection (2) and to the fact that the adding of a requirement to satisfy paragraph (b) to the requirement for the director to be in possession of the thing under paragraph (a) would serve little purpose and would leave the provisions open to abuse.

In response, Mr MacSporran SC for the Crown submitted that the word "and" should be given its ordinary conjunctive meaning.

He submitted that the examples of duplication relied on by the applicants were marginal cases and that in most cases the interpretation for which he contended would be a practical interpretation.

In support of his submission it can also be said that the Parliament has used the word "or" within subparagraph (a) when it plainly meant "or", and within subparagraph (b) it has used the word "and" when it plainly meant "and". 

I accept the attractiveness of the semantic reasoning and the argument put forward by Mr MacSporran.  It is a large thing for the Court to do to find that words in an Act of Parliament do not bear their ordinary meaning; but the fact is that for a long time, probably hundreds of years, Courts have been reading "and" to mean "or" where the context plainly requires that to be done.

In my judgment, Mr Walker's submissions were correct.  The Act, it seems to me, clearly requires that paragraph (a) or paragraph (b) be satisfied in order for a thing to be in the possession of the prosecution but does not require both to be satisfied.

The submissions about impracticability if the opposite meaning is adopted are, in my view, powerful and the approach which should be taken is indicated by section 590AB(1) and by the decision in Rollason.

I therefore think that the applications of the accused should succeed. 

... 

HIS HONOUR:  The application by the ACC is dismissed, costs are reserved.