A Supreme Court judge yesterday refused to step aside from the retrial of wealthy mining contractors Peter Bartlett and Ron Sayers despite defence lawyers attacking the way he summed up the case last year.
After more than two hours of legal argument over the complex tax fraud conspiracy case, Justice Eric Heenan said nothing had been presented to disqualify him. He put the wheels in motion for a new trial in August.
A jury of eight women and four men was unable to reach a verdict in November on charges that Mr Bartlett and Mr Sayers conspired to swindle the Commonwealth by signing backdated trust documents.
It was disclosed yesterday that lawyers for Mr Bartlett and Mr Sayers had recently written to the office of the Commonwealth Director of Public Prosecutions, Robert Bromwich, asking that the case be dropped.
Prosecuting barrister Paul Roberts said yesterday he had not seen the submission.
The alleged conspirators went on trial last year after a long investigation by the Australian Crime Commission into the links between Australian business figures and tax schemes.
The charges related to activities dating from 1999 to 2004. These included Mr Sayers and Mr Bartlett entering a $50 million tax minimisation scheme in 2000 to cover the 1999-2000 and 2000-01 financial years.
The alleged conspiracy related to backdated trust minutes created in 2002 after belated accounting work revealed a $7 million trust profit for 1998-99. Minutes and transactions were allegedly falsely created to move the income to 1999-2000, when the $50 million scheme was operating.
Commonwealth prosecutors alleged the backdating was done fraudulently to protect the tax minimisation scheme and to shield the Bartlett and Sayers family trust structures from attack by the tax office under anti-avoidance measures.
Mr Bartlett's barrister Chris Boyce told Justice Heenan yesterday that another motive was added by the judge in his summing up to the jury.
Mr Boyce said that added alleged motive was the men did not want to make a distribution in 1998-99 that would have attracted a higher rate of tax.
He said that leaving aside issues of unfairness, this could create reasonable concerns about the judge's impartiality in the mind of an ordinary observer of court proceedings.
However, Mr Roberts said the attack on Justice Heenan's summing up defied logic, ignored aspects of the prosecution case and lacked substance.
Mr Roberts said it was made abundantly clear that protection of the $50 million scheme was the main alleged objective of the alleged conspiracy but the other alleged objective was cutting the tax rate on the $7 million.
Justice Heenan said he aimed to give detailed reasons for not stepping aside at a directions hearing on April 28. The retrial is expected to run from August 5 to September 26.
I don't consider that anything has been demonstrated to require or justify disqualifying me. "Justice Eric Heenan