R v Cranston (No 9)

1. [1]

   On 20 September 2019, in the Local Court, Adam Cranston, Lauren Cranston, Jason Onley and Dev Menon were committed for trial in this Court. On 6 December 2019, the accused pleaded not guilty in the Supreme Court arraignment list before Fullerton J to one count of conspiracy with the intention of dishonestly causing a loss to a third person contrary to s 135.4(3) of the Criminal Code (Cth) and one count of conspiracy to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime contrary to ss 11.5(1) and 400.3(1) of the Criminal Code.

2. [2]

   On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. For reasons related to the COVID-19 pandemic, that trial date was vacated and it was not possible, for the same reasons, for the trial to be conducted in 2021. On 9 March 2021, Patrick Willmott was arraigned in this Court and pleaded not guilty to the same charges before me. All of the accused are on bail.

3. [3]

   The trial of the five accused is now fixed to commence on 4 April 2022. On 21 September 2021, each of the accused was re-arraigned and pleaded not guilty to the following two counts in an indictment presented on that day:

4. [4]

   The history of previous pre-trial applications is as follows: [1]

   1. (1)

      on 24 August 2020, I delivered judgments in relation to various pre-trial issues related to disclosure: R v Cranston (No 2) [2020] NSWSC 1102 together with R v Cranston (No 3) [2020] NSWSC 1103 which addressed an application to set aside a subpoena; R v Cranston (No 4) [2020] NSWSC 1104 which addressed the motion by the accuseds Onley, Menon and Lauren Cranston for a trial separate from Adam Cranston given the failure of his Dietrich application; and R v Cranston (No 5) [2020] NSWSC 1105 which addressed the claims made for client legal privilege over parts of the Crown brief;

   2. (2)

      on 14 December 2020, I delivered R v Cranston (No 6) [2020] NSWSC 1777 which concerned an application to exclude evidence on the basis of alleged non-compliance with s 18(5) of the Surveillance Devices Act 2004 (Cth) and alleged excessive execution of warrants issued under that Act.

5. [5]

   On 1 December 2020, Messrs Onley and Menon and Ms Cranston filed a notice of motion seeking, inter alia, orders for the exclusion of evidence obtained by the Crown by use of telephone intercepts and surveillance devices under one or more of ss 84, 90, 135 and 137 of the Evidence Act 1995 (NSW). The real question raised in the application was whether certain evidence could properly be adduced for a non-hearsay purpose and, if so, whether any evidence so adduced must be examined to see whether, if it had been adduced as an admission, it would be excluded by s 84. At that time the Crown had not sought to adduce any of the challenged evidence as admissions.

6. [6]

   I heard that motion on 8 December 2020 and delivered judgment on 16 December 2020: R v Cranston (No 7) [2020] NSWSC 1834. I concluded that the evidence sought to be led by the Crown on the basis identified in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 and Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 was not inadmissible by reason of s 84 of the Evidence Act. I found that the acts and declarations of the applicants, in the context of the whole of the evidence in the trial, were properly to be regarded as facts from which both the existence of the conspiracy generally and the participation of the relevant applicant may be inferred. I concluded that the evidence could be adduced at trial for that non-hearsay purpose even if the evidence was capable of characterisation as an admission. The jury will be instructed that they cannot reason that the evidence may be used as proof of an admission. Accordingly, I dismissed the notice of motion to the extent that it related to ss 84 and 90 of the Evidence Act.

7. [7]

   I stood the balance of the motion over for further hearing on 17 and 18 December 2020. The only remaining issue, at that time, was whether specific evidence of material recorded on and after 1 February 2017 should be excluded under ss 135 and/or 137 of the Evidence Act for reasons which included a risk that, despite being given directions to the contrary, the jury might nevertheless treat some of the representations as admissions.

8. [8]

   At the further hearing on 17 December 2020, the applicants and the Crown each sought additional time to interrogate the material recorded on and after 1 February 2017 to identify the specific evidence which, in the applicants’ submission, should be excluded under ss 135 and 137. It also emerged that the Crown sought to revisit the basis upon which they sought to tender some of the material and wished to submit that admissions were contained within the material recorded on and after 1 February 2017.

9. [9]

   On 14 January 2021, on the joint application of the parties, I vacated the trial of Adam Cranston fixed to commence on 18 January 2021: R v Cranston (No 8) [2021] NSWSC 9. As indicated above, Mr Cranston will now be tried with the other four accused and the trial is listed to commence on 4 April 2022.

10. [10]

    On 15 January 2021, I listed the present application for hearing on 9 March 2021 for three days. Regrettably, the parties were not ready to proceed on that date. On 9 March 2021, I made further timetabling orders and listed the matter for directions on 23 June 2021. On 23 June 2021, I set down a 3-day period to complete pre-trial applications to commence on 21 September 2021.

This application

1. [11]

   By further amended notice of motion filed in Court on 21 September 2021, the applicants sought the following orders:

2. [12]

   The tables referred to in prayer 1(b) comprised 611 separate objections to evidence recorded by telephone intercept or surveillance device during the period on and from 1 February 2017 to 2 May 2017 (the TI and SD material).

3. [13]

   The evidence on the application comprised the following:

   1. (1)

      Exhibit 1: Crown case statement dated 18 June 2021. It is 96 pages long and sets out in considerable detail the way the Crown intends to prove its case;

   2. (2)

      Exhibit 2: table of objections from 1 February 2017 to 2 May 2017 identifying the objections as items 1-611;

   3. (3)

      Exhibit 3: the complete five volumes of transcripts of the TI and SD material, marked up with highlighting to enable the 611 objections to be considered in context. This is the principal evidence on the application;

   4. (4)

      Exhibit A: a further 13-page bundle of transcripts of telephone interception material headed “T1 (additional) 1 – T1 (additional) 13”; and

   5. (5)

      Exhibit B: requests for particulars from Mr Menon’s and Ms Cranston’s legal representatives and responses from the Crown.

4. [14]

   I have read and taken into account all of the evidence on the application, including the TI and SD material. Although some limited references were made in submissions to Exhibits A and B, those documents played no real role in the applicants’ case.

5. [15]

   Of the 611 passages objected to, the Crown proposed to rely upon 106 items which formed a part or whole of the passage objected to as admissions and submitted that the other items were admissible:

   1. (1)

      as evidence as to the existence, nature and scope of the conspiracies;

   2. (2)

      as evidence of overt acts by one or other of the alleged conspirators in furtherance of the conspiracies;

   3. (3)

      as evidence of the identity of the participants to the alleged conspiracy;

   4. (4)

      as evidence of the intention of the accused in carrying out the conspiracies; and/or

   5. (5)

      to negative a possible defence of innocent involvement or lack of intention;

6. [16]

   Exhibit 2 was filed on 9 July 2021. It comprised a schedule which categorised, by highlighting and annotation, the challenged items of evidence into the following categories:

   1. (1)

      overt acts and evidence of the existence, scope and nature of the conspiracy – highlighted in yellow and annotated with the category “overt act” (not relied upon by the Crown as admissions but sought to be adduced as circumstantial evidence of the kind described in Ahern and Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22);

   2. (2)

      evidence of participation in the conspiracies – also highlighted in yellow and annotated with the category “participation” (also not relied upon by the Crown as admissions but some of which were also described as “overt acts”); and

   3. (3)

      admissions – highlighted in red and annotated with the category “admission”.

7. [17]

   In its schedule the Crown also identified entries which were irrelevant and it agreed to omit. Those entries were highlighted in blue and marked with the category “to be omitted”.

Introduction

1. [18]

   The structure of these reasons is as follows:

   1. (1)

      first, I will address the legal principles engaged when addressing those parts of the evidence sought to be adduced by the Crown as admissions to which objection is taken;

   2. (2)

      secondly, I will set out my findings relevant in determining the ss 84 and 90 Evidence Act objections;

   3. (3)

      thirdly, I will identify those passages in the evidence to which objection is taken and, by reason of s 84 of the Evidence Act, may not be adduced by the Crown as admissions;

   4. (4)

      fourthly, I will identify the relevant principles in applying ss 135 and137 of the Evidence Act;

   5. (5)

      fifthly, I will make findings, by reference to the selection of objections identified by the applicants, relevant to applying ss 135 and 137 to the objections;

   6. (6)

      sixthly, I will address the relevant principles in identifying overt acts of a conspiracy charged under the Criminal Code;

   7. (7)

      seventhly, I will explain, to the extent necessary, what role identification of overt acts plays in the determination of the admissibility of any of the material to which objection is taken; and

   8. (8)

      eighthly, I will explain why I have chosen to stand over the question posed in prayer 1(a) of the notice of motion to a further hearing of pre-trial issues to occur no later than February 2022.

Issue 1 – relevant principles in applying s 84 of the Evidence Act

1. [19]

   Section 84 of the Evidence Act provides:

2. [20]

   “Admission” is defined in the Dictionary to the Evidence Act as meaning:

3. [21]

   A leading authority about the operation of s 84 is Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34, a unanimous judgment of the Court of Appeal constituted by Hodgson, Tobias and McColl JJA. That case stands for the following propositions.

4. [22]

   First, the party against whom evidence of the admission is sought to be admitted need not adduce evidence positively establishing a causal nexus between the proscribed conduct and the alleged admission (at [227]-[234]). In relation to the extent to which the party contesting admissibility must “raise” the issue under s 84(2) the Court said:

5. [23]

   Secondly, the test for “influence” is not difficult to satisfy. As stated at [280]:

6. [24]

   This is consistent with observations earlier in the judgment that as the effect of s 84 is the automatic exclusion of the alleged admission with no discretion, this provides a basis for not giving an expansive meaning to “oppression” and the other forms of improper conduct listed in s 84(1):

7. [25]

   Also implicit in the Court’s judgment is the proposition that “influence” is broader than the common law concept of voluntariness, where the relevant question was whether the will of the confessionalist was “overborne” by the improper conduct, and a lesser test of causation is imported by the language of “influenced by” in s 84:

8. [26]

   The Court in Habib also referred, seemingly approvingly, to the following two cases on the meaning of “influence”:

   1. (1)

      R v Ye Zhang [2000] NSWSC 1099, where Simpson J said:

   2. (2)

      Higgins v R [2007] NSWCCA 56, where Hoeben J (with whom Sully and Bell JJ agreed) said:

9. [27]

   An important and more recent examination of the section is contained in Deacon v The Queen [2019] NTCCA 21; (2019) 282 A Crim R 303, where the Northern Territory Court of Criminal Appeal traced the legislative history of the uniform evidence laws, observing that s 84 reflects a criticism of voluntariness as a test for admissibility of admissions at common law (at [31]). Their Honours continued, citing a number of New South Wales authorities including Habib and Zhang:

10. [28]

    In relation to the onus borne by the party seeking to adduce evidence of the admission, in Deacon the Court cited R v JF [2009] ACTSC 104; (2009) 237 FLR 142 at [33] and observed at [30] that “[i]t is not enough to establish that the party’s will was not overborne; or to establish voluntariness or reliability…” (where this would otherwise suffice under the common law test). The footnote to the foregoing proposition noted:

11. [29]

    At [33], their Honours quoted from Habib and noted that the term “oppressive” should not be given an overly expansive interpretation:

12. [30]

    At [46], the Court said of Dixon J’s formulation of oppression at common law, as set out in McDermott v The King (1948) 76 CLR 501; [1948] HCA 23 at 511:

13. [31]

    In its application of the principles to the facts of the case, the Court observed at [59] that it was necessary to have regard to three matters when determining whether certain conduct was oppressive within the meaning of s 84:

14. [32]

    At [60]-[62], the Court considered those three matters in the context of that case. Their Honours found that the undercover operation against the applicant was not conducted in a manner which created a coercive environment or infringed the applicant’s rights and privileges so as to draw characterisation as “oppressive conduct” for the purposes of s 84. The Court held that:

15. [33]

    At [64]-[65], the Court made the following observations about the admissions and the circumstances in which they were made:

16. [34]

    While the above authorities demonstrate that the test for “influence” is not a stringent one, nevertheless it must be shown that there is a causal relationship between the oppressive conduct and the admission or the making of the admission (or, more accurately, in order for the admission to be admitted the party seeking to adduce it must satisfy the Court as to the absence of such a causal relationship). As Forrest J found in R v Tang [2010] VSC 578:

17. [35]

    As is clear from the quoted passage, the finding in Deacon that the admission was not excluded on the grounds of s 84 was based on the absence of any “oppressive” conduct, rather than a failure to satisfy the causal requirement imported by the words “influenced by” in that provision.

18. [36]

    It is tolerably clear that in order to satisfy the causal test there need not be improper conduct (or the threat thereof) actually taking place at the time or near the time the confession is made (see Habib at [280], quoted above at [23]). In other words, temporal coincidence between the oppression and the admission is not required.

19. [37]

    Finally, in R v Spiteri-Ahern; R v Barber; R v Zraika (No 10) [2017] NSWSC 1380 the Crown sought to tender evidence obtained from listening devices and telephone intercepts of conversations between Ms Barber and Mr Zraika (respectively, the second and third accused) as admissions by Ms Barber. Ms Barber sought to have the evidence excluded under s 84 of the Evidence Act. Rothman J noted that Mr Zraika perpetrated domestic violence on Ms Barber and that violence was evident in recordings tendered in Court. The evidence which the Crown relied on as an admission emanated from one conversation in which violence was being perpetrated (or had just been perpetrated or was about to be perpetrated) and other conversations in which no such violence was being perpetrated (see at [30]).

20. [38]

    His Honour stated that where there is a continuing relationship of violence (particularly in the context of domestic violence), the absence of violence on a particular occasion does not preclude a finding of “influence” for the purposes of s 84:

21. [39]

    His Honour then continued to consider the meaning of “influence” in the context of s 84:

22. [40]

    Ultimately, Rothman J found that although “[t]here can be no doubt that violence was perpetrated” (at [35]) the statements sought to be relied on as admissions were not influenced by that conduct (at [39]). Accordingly, the evidence was admissible against Ms Barber.

Issue 2 – findings relevant in determining the ss 84/90 Evidence Act objections

1. [41]

   The applicants identified three species of “threats” relevant to determining the question of whether any evidence should be excluded under ss 84 and/or 90, namely, “threats” concerning:

   1. (1)

      violence, specifically by a motorcycle gang (the violence threat);

   2. (2)

      the possible actions of the reporter Mr Barrett whose reporting may have caused reputational damage to Adam Cranston’s father, Michael Cranston, then a Deputy Commissioner of Taxation (the applicants called this the media/Adam Cranston’s father threat); and

   3. (3)

      the claims to control what directors said to the authorities and the Australian Taxation Office (ATO) and prepare a controlled story (the applicants called this the controlled story threat).

2. [42]

   The applicants submitted that the accused made arrangements for payment of the money demanded, execution of deeds, payments in respect of the deeds and otherwise conducted themselves and their affairs in light of the circumstance that they were the subjects of an ongoing extortion for many millions of dollars from 1 February 2017 until the time of their arrest on 17 May 2017.

3. [43]

   The Crown submitted that the 106 utterances sought to be relied upon as admissions were relevant to establishing the participation of the accused and the intention of the accused in carrying out the conspiracy and to negativing a possible defence of innocent involvement or lack of intention.

4. [44]

   The Crown submitted that s 84 of the Evidence Act does not apply to those utterances because, for the following reasons, the content of them or the fact they were made were not influenced by improper conduct:

   1. (1)

      first, the evidence was consistent with, and a continuation of, the conduct of the accused prior to 1 February 2017 and involved discussions about the structure of the alleged scheme and steps that could be taken to avoid detection and mislead authorities;

   2. (2)

      secondly, the statements and conduct reflected a state of mind already in existence prior to that date; and

   3. (3)

      thirdly, the nature of the concerns expressed by the accused from 1 February 2017 onwards, and the manner in which they expressed them, when understood in context, reflected a concern about being detected by authorities, and not a concern influenced by the alleged s 84 conduct.

5. [45]

   The Crown’s primary argument was that the utterances post-1 February 2017 were of the same character as many utterances made prior to 1 February 2017 (the admissibility of which was not challenged). It was submitted that the earlier utterances were made voluntarily and without encouragement to others in circumstances where the impugned conduct could not have influenced the content or the making of those statements.

6. [46]

   The Crown case is that, before 1 February 2017, the accused were on notice that the ATO were investigating them and the alleged scheme and were taking formal investigative steps to close down that scheme. That background was said to give the proper context to the discussions on and from 1 February 2017 and lend support to the conclusion that what was being discussed was not influenced by the relevant “threats”, but was instead influenced by the accuseds’ knowledge that they needed to take swift and evasive action in order to avoid the obvious steps being taken by the ATO.

7. [47]

   The Crown case is that well before 1 February 2017, the Plutus Payroll scheme was designed to be complex so as to avoid scrutiny, so that the individual players could remain out of plain sight, and so that a finishing exercise could be undertaken and new companies interposed when investigators were becoming close to discovering either the bottom tier or the middle tier companies and their roles in the alleged scheme. The Crown case is that the alleged scheme was designed to be dynamic so as to constantly change and adapt, and that the scheme did in fact change even before 1 February in order to deceive the ATO and dissuade the ATO from investigating the alleged conspirators.

8. [48]

   The Crown pointed to statements made by the accused before 1 February 2017 such as “we are fucked” and “we are cooked” and various statements about the inevitability of the closing ATO net in support of the submission that the accuseds’ actions were not influenced by any threats made on 1 February 2017. The Crown submitted that the payment of money did not solve or address the risk of the ATO investigation, which persisted before, during and after the blackmail attempt and payment.

9. [49]

   The Crown further submitted that the following matters provided real impediments to a finding that the impugned conduct had any influence on the acts and utterances of the accused:

   1. (1)

      the time that had passed since 1 February 2017;

   2. (2)

      the perceived progress made, and increased risk posed, by investigators;

   3. (3)

      the ongoing questioning by investigators of various accused and related persons;

   4. (4)

      the formulation of the deeds as a means of misdirecting investigators and “throwing the other guys under the bus”, referring to the directors of the second-tier companies; and

   5. (5)

      the payment of $25 million to Mr Rostankovski and the directors, to the same effect.

10. [50]

    The Crown further submitted that the discretion under s 90 of the Evidence Act should not be exercised to exclude any utterances relied upon by the Crown as admissions because, in all the circumstances, there is nothing to impugn reliability (as to whether the admission was in fact made or as to whether it was likely to be true) and no unfairness.

11. [51]

    The applicants submitted that although the ATO investigation and possibility of being charged preceded the attempted blackmail, it was the cumulative effect of the investigation and the controlled story, which might have involved 12 directors giving evidence under the direction of Mr Rostankovski (alleged by the Crown to be a co-conspirator), that might have given the accused cause to consider the risks of the ATO investigation. One risk was that the accused might go to gaol, even if it was not an immediate risk before the threat. The applicants submitted that the mere similarities in wording, or an earlier contemplation of an ATO investigation, would not detract from the fact that the form of the ATO investigation and the discussions of it by the accused after 1 February 2017 were influenced by the conduct.

12. [52]

    None of the applicants made any separate submission about the exclusion of the evidence under s 90 of the Evidence Act. The operation of s 90 was explained by Gummow and Hayne JJ in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 as follows:

13. [53]

    I have considered s 90 separately in relation to those utterances sought to be led as admissions and would not come to any different conclusion about the exclusion of evidence by reference to that section, which should only be engaged as a final or “safety net” provision. The discretion under s 90 of the Evidence Act should not be exercised here to exclude any utterances relied upon by the Crown as admissions because, in all the circumstances, there is nothing to impugn reliability (as to whether the admission was in fact made or as to whether it was likely to be true) and no unfairness arises.

14. [54]

    These findings are made solely to determine whether the Crown has satisfied me that the “threat” of “violent” or “oppressive” conduct has not “influenced” any of the utterances the accused have objected to. As I have explained, 106 utterances, marked in red in Annexure A to these reasons, were objected to.

15. [55]

    I find, as the Crown conceded, that Mr Rostankovski made a threat of violent conduct within the meaning of s 84(1) on 1 February 2017. That threat was in the following terms:

16. [56]

    The threat that members of the Comanchero Motorcycle Club (the Comancheros) were “waiting downstairs” appears to have been accompanied by some indication of physical aggression on the part of Mr Rostankovski. There was the following exchange between Messrs Menon and Rostankovski:

17. [57]

    Mr Menon later said, “Bro, I feel like you’re being aggressive towards me … why is it you’re aggressive towards me or Adam …”

18. [58]

    That same day, Mr Rostankovski also made remarks suggesting violence carried out in Thailand by another notorious organisation, directed towards a Mr Tristan Waters, who was known to the accused:

19. [59]

    That afternoon, Messrs Menon and Cranston reflected on the nature of their exchanges with Mr Rostankovski as follows:

20. [60]

    Having examined each of the utterances made on that day which were recorded pursuant to the surveillance device warrant, I find that the threat of violence I have described may have been, at best, a minor and subsidiary “influence” upon some of the statements made by the relevant actors on that day and of no relevant influence after 1 February 2017. I am satisfied that the vast majority of utterances relied upon were the product of perceived psychological pressure that was predicament-related rather than conduct-related. They were not influenced by the threat of violence.

21. [61]

    I find that virtually all of the utterances sought to be relied upon by the Crown as admissions made on 1 February 2017 were of the same or a similar kind to utterances made by the accused before that date. Those utterances were predicament-related and not influenced by the threat of violence. There are many statements made by at least some of the accused before 1 February to the effect that “we are fucked” and “we are cooked” by reason of a perception that the ATO investigation was uncovering matters that the maker of the statement regarded as damaging to their interests. I strongly suspect that none of the accused were influenced, even slightly, to do or say anything on 1 February 2017 by Mr Rostankovski’s threat of violence. Mr Onley immediately saw the opportunity presented by Mr Rostankovski’s statements and immediately sought to engage with him on the topic of the alleged conspirators already being “fucked” by reason of the perception of a fast-closing ATO net. Mr Adam Cranston was upset about the suggestion Mr Barrett would publicise aspects of the ATO investigation and Mr Adam Cranston’s role in events which would affect his father’s employment with the ATO. Mr Menon perhaps initially took the threat of violence by Mr Rostankovski into account, although as I will explain any “influence” was almost immediately dissipated in the conversations with Mr Rostankovski during and immediately after the meeting (as explained to the others on 2 February 2017).

22. [62]

    Despite my strong suspicions about the absence of influence upon the accused in relation to Mr Rostankovski’s threat of violence, given the low threshold for “influence” required by s 84, I am not satisfied that a small number of the utterances made on 1 February 2017 were not “influenced” by the threat of violence.

23. [63]

    Accordingly, pursuant to s 84 of the Evidence Act, as explained further below, I will not allow the Crown to lead items 9-16 as admissions. The Crown, in that event, seeks to rely upon those utterances as part of its circumstantial case and not as admissions. I will return to the subject of whether those utterances should be excluded from evidence under ss 135 and/or 137 of the Evidence Act below.

24. [64]

    I turn now to consider the remaining 98 utterances which are relied upon by the Crown and submitted to be admissions. At the outset, I should make clear that I am not determining that admissions against interest have been made but simply applying s 84 of the Evidence Act to various utterances on the assumption that the utterances are capable of being understood by the jury as being admissions. The sole question for present purposes is whether s 84 of the Evidence Act applies to exclude any of those utterances.

25. [65]

    The only threat of violence in the TI and SD material is the claim that members of the Comancheros were “waiting downstairs” on 1 February 2017. I find that a threat of violence within the meaning of s 84 was made once, on 1 February 2017, and was not repeated. Although in later conversations, particularly on 7 February 2017, Mr Adam Cranston narrated the events of 1 February, having read the complete transcript of that day (and those before and after) it is clear that after 1 February 2017 Mr Adam Cranston and the remaining accused were not “influenced” by any threat of violence in making any of the alleged admissions. In context, the 7 February narrative relied upon by the applicants was couched in terms of an event in the past, which Mr Cranston had effectively dealt with.

26. [66]

    In making these findings I have carefully considered the 23-page document entitled “References to species of threats” which identifies, in the submission of the accused, the utterances which amount to threats. I have already dealt with the items at page references 4.7, 7.5, 11.8, 13.8, 14.1 and 16.5-16.9. [3] Whilst these items indicate that, at least at the outset, the meeting was heated, the only threat of violence is the one I have described above. The remaining matters do not disclose any threat of violence. Item 9.9-10.2 is perhaps a reference to the earlier threat of violence but it is significant that Mr Onley, the alleged target of the threat, is clearly not present when the statement is made.

27. [67]

    In context, item 10.8 is a statement by Mr Cranston professing his relative poverty. In context, it is not a statement from which it may be inferred that Mr Cranston was in any way influenced in making the alleged admissions he did by a threat of violence. Items 32.8-33.7, 34.5-34.8, 36.4-37.4, 37.3, 38.2, 51.9-52.5, 53.5 and 61.7-62.5, in context, have nothing whatever to do with any threat of violence. Each involves a series of utterances which, if they amount to anything, involve the alleged conspirators in a discussion about perceived predicament-related pressure.

28. [68]

    Items 69.4, 101.3, 102.9, 110.9, 111.5 and 133.9 all, in context, involve the recounting by Adam Cranston on 7 and 20 February of the events of 1 February 2017. There is a great deal of evidence, contained in the transcripts before and after 7 February, which satisfies me that Mr Cranston was not in the slightest way influenced by the threat of violence in making any alleged admissions. Items 136.5, 137.1-137.5, 150.5 and 155.9 do not relate to the threat of violence and, in context, involve a series of utterances about perceived predicament-related issues. Item 162.1-162.4 contains direct statements by Messrs Menon and Cranston that Mr Rostankovski is “not making threats” and “doesn’t need to make … violent threats”. In the context of this application this is strong evidence in favour of the Crown. Items 162.5, 163.3, 164.9, 165.3, 165.9-166.1, 167.4-167.6, 168.1-168.5, 173.2-173.5 and 181.7 do not contain threats of violence nor in context refer to such threats. They are utterances which relate to perceived predicament-related issues.

29. [69]

    Items 183.2, 185.2, 185.9, 200.1, 200.3-200.9, 202.5-203.3, 203.3-203.8, 204.9-205.5, 205.7, 207.9-208.3, 209.6-209.8, 213, 214.9 and 215.5-215.9 each contain utterances which, in context, amount to musings about possible reactions by those extorting the accused if the payments being sought were not made. The thrust of those conversations, as Mr Willmott cogently explains in the course of those conversations, was that “everyone’s fighting over extorting us”. The utterances do not contain threats of violence nor do they refer to such threats. At their highest they are musings about the possibility of a violent reaction if certain demands are not met. In context, the utterances are part of a lengthy series of conversations about perceived predicament-related issues. Items 215.5-215.9 and 222.4-222.6 do not contain threats of violence nor do they refer to such threats. In context, Mr Anquetil is saying that Mr Rostankovski is incapable of delivering on his promises relating to directors of the “bottom” companies and thus there is no need to fear him. Mr Cranston, to laughter, is describing the suicide of Mr Larcombe and attributing it to his (Larcombe) being a gangster. In context, these conversations concern perceived predicament-related issues and do not contain a threat of violence or reference to a threat of violence.

30. [70]

    Each of the accused, after 1 February, talked about the payment of the money to Mr Rostankovski and the “bottom” directors as an opportunity effectively to extricate themselves from potential legal difficulties. For example, on 7 February Mr Menon said of Mr Rostankovski’s approach, “it’s the best thing that’s ever happened”. Similar utterances were made by the other accused who are said to have made admissions. (I note that Mr Willmott and Ms Lauren Cranston are each said to have made only one admission as part of the 106 utterances I am considering here). Mr Onley, even on 1 February 2017, plainly saw Mr Rostankovski’s approach as an opportunity and said as much.

31. [71]

    I am satisfied that none of the utterances made (and recorded) after 1 February 2017 were “influenced” by the threat of violence. The very limited operation of the threat of violence can be seen in statements made by Mr Cranston later in February. Later in February, Mr Cranston told all assembled that Mr Rostankovski “is smart, he doesn’t need to make violent threats or come in violently”. Mr Cranston later said that Mr Rostankovski “is not going the gangster route”. Mr Menon spoke to Mr Rostankovski on the evening of 1 February 2017 and was busily engaged thereafter in preparation of the deed which Mr Menon explained, on multiple occasions, in his view “saved” the accused from the threat of criminal sanctions.

32. [72]

    In light of these statements, and many other statements to similar effect, I am persuaded that despite not being able to be satisfied that the threat of violence had no “influence” at all on 1 February in the making of certain alleged admissions, Mr Rostankovski’s approach was almost immediately understood by the accused as not involving a threat of violence. Rather, Mr Rostankovski’s approach was understood as a positive opportunity to advance on behalf of the accused what the Crown has termed the “Peter Larcombe defence” together with a plan to sheet home any criminal liability for the non-payment of tax to the directors of the “bottom” companies.

33. [73]

    Some examples will suffice to make the point. On 2 February 2017, the following exchange occurred:

34. [74]

    The material italicised in this extract is sought to be relied upon by the Crown as an admission. In context, the 2 February 2017 discussion is a long technical conversation between Messrs Menon and Anquetil and, subsequently, Mr Onley. Whilst there are references to a reporter (presumably Mr Barrett) and to Mr Adam Cranston’s apparent distress about the likelihood that his father, then a Deputy Commissioner of Taxation, would be approached for comment about the alleged scheme, the conversation contains not a single reference to any threat of violence. Mr Menon explained that although he viewed Mr Rostankovski as a “cocksucker” who may seek to “gang bang” the alleged conspirators, he, Menon, had spoken after the 1 February meeting to Mr Rostankovski and assured those present that Mr Rostankovski was “going to be reasonable”. A telephone intercept of that conversation is available. It is clear that Mr Menon was not “influenced” by any threat of violence in making alleged admissions then, or later.

35. [75]

    Mr Onley was clearly not “influenced” by any threat of violence. Mr Onley approved of the payment to Mr Rostankovski as “it just adds a layer of ‘well maybe it wasn’t you’ … ‘don’t blame us, it was him’” to which Mr Menon agreed, saying “Correct. It’s reasonable doubt”. The parties then discussed the details of items to be included in a deed to be presented to Mr Rostankovski which would, in Mr Onley’s estimation, add “layers”. The utterances sought to be led by the Crown as admissions are, properly understood, surmises by the parties to the conversation about Mr Rostankovski’s and the directors of the bottom companies’ likely response upon signing the deed and being paid $5 million. The surmise that Mr Rostankovski or the directors “ratting” to the ATO was no longer an option following the deed was, in the opinion of the participants, a favourable design feature of their plan. I am satisfied that in making these utterances the participants were not influenced by the threat of violence made by Mr Rostankovski on 1 February.

36. [76]

    The next utterances (items 99 and 104) sought to be relied upon by the Crown as admissions were made by Mr Menon on 7 February:

37. [77]

    I am satisfied that in making these utterances Mr Menon was not influenced by a threat of violence. In context it is clear that what was being discussed in the first extract was the need to pay (directors of the “bottom” companies and Mr Rostankovski) “these guys five million dollars” to prevent them “going to rat”. Not a word was said in this very lengthy conversation even hinting at a threat of violence being a relevant influence. Moreover, Mr Menon explained later during the conversation to Mr Kitson that his aim was to ensure that at the end “everything gets wound up … and everyone’s not in gaol” (the second alleged admission in this conversation). Mr Menon explained, later in the conversation in relation to the topic of this utterance, that “what’s going to save us is the deed”. In making these utterances Mr Menon was not influenced by the threat of violence. The “threat” the accused believed they were being saved from was of long standing and arose from taxation events long prior to 1 February 2017.

38. [78]

    The next alleged admission (item 105) is as follows:

39. [79]

    In context, this is a conversation about Mr Anquetil and the effect the ATO investigation, which was of long standing and pre-dated 1 February 2017, was having on him so far as Mr Menon and Mr Kitson understood it. I am comfortably satisfied that the making of these utterances was not influenced by a threat of violence.

40. [80]

    Later in the same conversation the next alleged admission is made (item 106):

41. [81]

    In context, Mr Menon was explaining the desirable design features, from his point of view, of the deed and the payment of $5 million to directors of what the accused called the “bottom” companies in the event that any director sought to reveal the involvement of the accused in the alleged tax scheme to the ATO. I am comfortably satisfied that this utterance was not influenced by a threat of violence.

42. [82]

    Skipping over the next objections, which are of the same character, the alleged admission at item 114 provides as follows:

43. [83]

    Mr Menon was again explaining the desirable design features from his point of view of the deed and the payment of $5 million and expressing his views about the prospects of the accused facing criminal sanctions if the scheme he allegedly devised did not proceed. The threat of criminal sanctions being addressed by this alleged admission arose by reason of events long before 1 February 2017 and this threat was known to all the accused long prior to that time. I am comfortably satisfied that these utterances were not influenced by a threat of violence.

44. [84]

    To summarise, I strongly doubt that any of the alleged admissions were “influenced” by the threat of violence. To the extent, as I will explain, that I am not positively satisfied that certain of the alleged admissions made on 1 February 2017 were not influenced by the threat of violence, I am satisfied that none of the alleged admissions made after 1 February 2017 were influenced by the threat of violence.

45. [85]

    I am unable to accept that the remaining two species of threat amounted to a threat of “oppressive” conduct within the meaning of s 84(1). Those threats concerned:

    1. (1)

       the possible actions of Mr Barrett and the reputational damage to Mr Cranston’s father of a journalist reporting about the alleged tax scheme; and

    2. (2)

       a “controlled story” involving Mr Rostankovski having a degree of control over the directors of the various entities and Mr Rostankovski’s stated capacity to control a story given to taxation authorities by them.

46. [86]

    In considering whether the media/ Adam Cranston’s father threat and the controlled story threat amounted to oppression within the meaning of s 84, as explained in Deacon at [59] it is necessary to give attention to:

    1. (1)

       the character and content of the threats;

    2. (2)

       the context in which the alleged admissions were made; and

    3. (3)

       the applicants’ personal characteristics and position in the matter.

47. [87]

    I make the following findings about those issues.

48. [88]

    The character and content of the “threats” demonstrate that they were not of “oppression” as defined. There was here no “exercise of authority or power in a burdensome, cruel or unjust manner” (Habib at [245]; Deacon at [33]). Fully accepting that the concept of “authority” in this context necessarily extends to the exercise of de facto authority, control and power, I find that there was no threat of the exercise of authority or power in a burdensome, cruel or unjust manner. Fully accepting that oppressive conduct is not limited to physical conduct, and extends to encompass mental and psychological pressure, I find that none of the alleged admissions were influenced by “mental or psychological pressure” exerted by the so-called reputational damage to Mr Cranston’s father or “controlled story” threats. In context, I am satisfied that the alleged admissions were made in response perceived predicament-related pressure.

49. [89]

    The applicants submitted that the threats made by Mr Rostankovski were ongoing and continued beyond 1 February 2017. On 23 February 2017, Mr Onley said “we’re always on the back foot and he just turns up and keeps hitting us and hitting us and hitting us and hitting us … we got to call his bluff.” The applicants submitted that statements such as “they keep trying different angles” indicated that the threats were ongoing and that the extorters often changed their approaches in order to get what they wanted. This was said to be significant in relation to the risks faced by the accused and the pervasiveness of the threats.

50. [90]

    I do not agree that this amounts to evidence that any of the alleged admissions were influenced by a threat of “oppression” as defined. In effect, these “threats” involved an alleged conspirator claiming a greater share of the proceeds of the alleged conspiracy. The relevant “threat” was to expose the conduct of the accused in the alleged scheme to the regulatory authorities. Far from fearing a false narrative, the accused repeatedly stated that the fear was exposure of elements of their conduct that would otherwise be obscure to the taxation authorities. This was perceived predicament-related pressure. To quote the test of oppression identified in Habib and making every allowance for the circumstances of the accused here, there was no “oppression” in the sense of “the exercise of [de facto] authority or power in a burdensome, cruel or unjust manner”. There was no threat of the exercise of authority or power, let alone a threat of an exercise of such authority or power in a “burdensome, cruel or unjust manner”.

51. [91]

    The relevant context is that Mr Rostankovski, alleged by the Crown to be a conspirator, was demanding a larger share of the proceeds of what the Crown says was a conspiracy to defraud the Commonwealth. The accused characterised Mr Rostankovski’s demands as being for a greater share of the “kitty”. Here, the relevant context was one where, however the sum of money the subject of the demands is characterised, Mr Rostankovski was claiming a greater share. I am satisfied that the accused at no time believed that Mr Rostankovski was threatening to tell a false or “controlled” story but, rather, they appreciated that he was in a position to provide information about their activities to the taxation authorities which they would not otherwise have disclosed. This involved predicament-related pressure.

52. [92]

    In addition, almost from the moment that Mr Rostankovski made his initial demand, the accused were conscious of the opportunity the demand afforded them to escape the threat of criminal sanctions and were working on ways to ensure that the payment of money would insulate them from any possible criminal consequences of their conduct. The accused did this by, as Mr Onley put it, creating additional “layers” the authorities would need to penetrate to effect criminal consequences upon them.

53. [93]

    Each of the accused who is alleged to have made an admission is a sophisticated businessperson involved, on any view, in an operative way in a complex series of commercial transactions. Mr Onley, in the TI and SD material, appeared commercially savvy and comfortable with complex concepts. Mr Menon was an experienced lawyer. Mr Adam Cranston was an experienced businessperson who explained to the other accused, at length, relevant aspects of the regulatory landscape and the relationship between civil and criminal enforcement of taxation laws and regulations. There is only one admission allegedly made by Mr Willmott. He was on the evidence commercially savvy and comfortable with complex concepts. There is only one admission allegedly made by Lauren Cranston. She demonstrated, on the evidence of the TI and SD material, a sound grasp of complex commercial transactions.

54. [94]

    Even if, contrary to the conclusion I have reached, the media/Adam Cranston’s father and controlled story threats were ones of “oppressive” conduct within the meaning of s 84, I conclude on all of the evidence that any “threat” did not influence any of the making of the alleged admissions. On 1 February 2017 and at all times thereafter, the accused understood that Mr Rostankovski’s “threats” were in fact an opportunity they could turn to their own advantage to address the problem of possible criminal investigations by the ATO which the accused were aware of long before 1 February. They did that by seeking to put certain documents into place, including the deed and affidavits. There are numerous references in the TI and SD material to that being the end of the matter, in the sense that the documents would have a number of benefits:

    1. (1)

       firstly, they would dissuade any of the directors from approaching the ATO (that is, carrying out the threat that was conveyed as part of the conduct on 1 February);

    2. (2)

       secondly, they would give the false appearance that it was the directors who were responsible for the alleged conspiracy, not the accused; and

    3. (3)

       thirdly, they could be used by the accused in some form of defence to say that it was others, not them, who were involved in the carrying out of the alleged scheme and in doing so, escape criminal punishment.

55. [95]

    This is illustrated by the following statements made on 7 February 2017, six days after the approach by Mr Rostankovski:

    1. (1)

       Mr Menon’s statement that “what’s going to save us is the deed… That’s why, that was the key to the whole thing”. Mr Menon later said “once I have those affidavits … they’re checkmated” (see item 106); and

    2. (2)

       Mr Menon’s statement, in the context of a discussion about the “Peter Larcombe defence”, that the “second thing is it’s all in the deed. So the deed stipulates that Peter Larcombe ran this” (see item 117). There was then further discussion about how the deed would in fact prove to be beneficial for the alleged conspirators because it could be used by them in the future to distract attention away from them and towards the deceased Peter Larcombe.

56. [96]

    I find that, leaving aside the one reference on 1 February 2017 to there being members of the Comancheros downstairs, which in any event had a very limited operation, the accused, who are sophisticated businesspeople, almost immediately turned Mr Rostankovski’s approach into something that they believed would operate to their advantage. These circumstances are similar to those which prevailed in Deacon, where conduct which was said to be oppressive was turned into an opportunity by the accused.

57. [97]

    I am satisfied that the “threat” of Mr Cranston’s father being spoken to or the so-called “controlled story” did not influence the making of any of the alleged admissions. The words that were said on and after 1 February were not the result of any relevant oppression or psychological pressure. Rather, the words were said in the context of discussions between the accused about the way to deal with “threats” which long pre-dated 1 February.

58. [98]

    The accused were commercially sophisticated and equipped with knowledge of the practices of the ATO in seeking to ensure apparent compliance with the law. They were concerned about ATO investigations, including criminal investigations and possible sanctions, long before 1 February. By that date, the alleged conspirators regarded the $5 million payment not as a response to a “threat” of “oppression” but, rather, as an excellent opportunity to deflect attention from their conduct and to conclude their involvement in the alleged taxation scheme without consequences to them.

Issue 3 – evidence which, by reason of s 84 of the Evidence Act, may not be adduced by the Crown as admissions

1. [99]

   Each of the rulings that I have made in relation to the 611 items of challenged evidence are set out in Annexure A to these reasons. In this section, I provide some examples of the 106 rulings I have made in relation to s 84 of the Evidence Act in light of the findings made above.

2. [100]

   I have concluded that a number of the statements made by the accused on 1 February 2017 should be excluded under s 84 as, despite my suspicions, I cannot be positively satisfied that the relevant alleged admission was not influenced by the threat of violence made by Mr Rostankovski earlier that day. That is to say, I am not satisfied that the Crown has shown that the utterances I have excluded were not influenced by the threat of violence.

3. [101]

   Whilst the various references to the effect that the accused were “fucked anyway” (see item 9), “going to jail anyway” (item 12) and “fucked if we pay, we’re fucked if we don’t pay” (item 25) clearly indicate that the accused had knowledge of the ongoing ATO investigation (which long pre-dated 1 February), it does not necessarily follow that all of the alleged admissions made on 1 February were not made by reason of the threat of violent conduct.

4. [102]

   For that reason, it is necessary to address each of the utterances made on 1 February 2017 sought to the led by the Crown as admissions and indicate whether I am satisfied that the alleged admission was not influenced by the threat of violence:

   1. (1)

      Item 9:

   2. (2)

      Item 10:

   3. (3)

      Item 11:

   4. (4)

      Item 12:

   5. (5)

      Item 13:

   6. (6)

      Item 14:

   7. (7)

      Item 15:

   8. (8)

      Item 16:

   9. (9)

      Item 17:

   10. (10)

       Item 18:

   11. (11)

       Item 19:

   12. (12)

       Item 20:

   13. (13)

       Item 21 (the portion of which is identified as an admission):

   14. (14)

       Item 24 (the portion of which is identified as an admission):

   15. (15)

       Item 25:

   16. (16)

       Item 26:

   17. (17)

       Item 27:

   18. (18)

       Item 28:

   19. (19)

       Item 29:

   20. (20)

       Item 30:

   21. (21)

       Item 31 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions):

   22. (22)

       Item 32 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions):

   23. (23)

       Item 34:

   24. (24)

       Item 35:

   25. (25)

       Item 37:

   26. (26)

       Item 39:

   27. (27)

       Item 40 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as an admission):

   28. (28)

       Item 41:

   29. (29)

       Item 42 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions):

   30. (30)

       Item 44:

   31. (31)

       Item 45:

   32. (32)

       Item 50 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as an admission):

   33. (33)

       Item 53:

   34. (34)

       Item 54 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions):

   35. (35)

       Item 56:

   36. (36)

       Item 57:

   37. (37)

       Item 58:

   38. (38)

       Item 59:

   39. (39)

       Item 60:

   40. (40)

       Item 61:

   41. (41)

       Item 62

   42. (42)

       Item 65:

   43. (43)

       Item 66:

5. [103]

   I have concluded that each of the alleged admissions made after 1 February 2017 should not be excluded under s 84 of the Evidence Act. The threat of violence made on 1 February had limited operation on, and no relevant operation beyond, that date. As I have explained above, I find that after 1 February the alleged admissions were not made under the influence of a threat of violent conduct but, rather, in the course of preparing the deed for the intended use in the accuseds’ interests.

6. [104]

   By way of example, the following admissions demonstrate the development by the accused of a plan so that they could use the threats to their advantage:

   1. (1)

      Item 108 (the portion of which the Crown seeks to rely on as an admission):

   2. (2)

      Items 120 and 121 (the portion of which the Crown seeks to rely on as an admission):

   3. (3)

      Item 124:

   4. (4)

      Item 142:

   5. (5)

      Item 249 (14 February 2017; the portion of which is relied upon as an admission):

   6. (6)

      Item 259 (20 February 2017; the portion of which is relied upon as an admission):

   7. (7)

      Item 362 (23 February 2017; one portion of which is relied upon as an admission):

   8. (8)

      Item 367 (23 February 2017; the portions of which are relied upon as admissions):

   9. (9)

      Item 459 (15 March 2017; the portion of which is sought to be relied upon as an admission):

Issue 4 – relevant principles in applying ss 135 and 137 of the Evidence Act

1. [105]

   Section 135 of the Evidence Act provides:

2. [106]

   The nature of the balancing exercise required under s 135 was explained by Basten JA in Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 at [78] as follows:

3. [107]

   The power exercisable under s 135 is wider than that provided at common law. It permits the exclusion of evidence if its probative value is “substantially outweighed” by one or more of the factors listed. What Basten JA said in Dyldam must be qualified by the decision in Rogerson v R; McNamara v R [2021] NSWCCA 160, where s 135(a) was held at [544] to involve an evaluative judgment, rather than the exercise of a judicial discretion.

4. [108]

   Section 137 of the Evidence Act provides:

5. [109]

   Section 137 involves an evaluative judgment which, if it is made, mandates exclusion of the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [16]; R v Blick [2000] NSWCCA 61; (2000) A Crim R 326; R v SJRC [2007] NSWCCA 142.

6. [110]

   Unfair prejudice may eventuate because evidence has some quality which will give it more weight in the jury’s assessment than is warranted or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence: R v Dickman (2017) 261 CLR 601; [2017] HCA 24 at [48].

7. [111]

   In R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509, Wood CJ at CL (with whom Sully and Howie JJ agreed) observed at [116]-[117]:

8. [112]

   In considering the question of whether there is a danger that the evidence might be unfairly prejudicial, the Court must be mindful of any danger that the evidence might be misused by the jury in some unfair way. In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, the High Court held that:

9. [113]

   The assessment under ss 135 and 137 should take into account alternative ways of ameliorating any unfair prejudice, such as directions to the jury. The assumption at common law that jurors will follow such directions, including directions limiting the use of evidence, is equally applicable to assessments of prejudice under ss 135 and 137.

Issue 5 – findings, by reference to the selection of objections identified by the applicants, relevant to applying ss 135 and 137 to the objections

1. [114]

   I will commence by first considering the items sought to be led by the Crown as admissions which I have concluded are precluded by s 84 of the Evidence Act (items 9-16).

2. [115]

   In Rogerson v R; McNamara v R, at [559], the Court of Criminal Appeal constituted by Bell P, R A Hulme and Beech-Jones JJ explained that the statements in the authorities to the effect that juries follow directions “do not go so far as to say that a trial judge’s directions are capable of dealing with every instance where there is danger of unfair prejudice”. The Court referred, with approval, to the reflections on this topic of Button J in Allen v R [2020] NSWCCA 173 at [152]-[160]. In short, the greater the danger that the evidence in question will have an unfairly prejudicial effect, the less likely a direction to the jury is capable of negativing that unfairly prejudicial effect.

3. [116]

   There is a heightened risk of unfair prejudice in relation to the evidence that the Crown seeks to lead as admissions that I have excluded under s 84. Unlike the vast majority of the TI and SD material sought to be adduced by the Crown, those utterances were selected by the Crown as amounting to admissions and they are not admissible as such. Although I have wavered about the admissibility of some of those utterances, I have concluded that the danger of unfair prejudice outweighs the probative value of those utterances, being for present purposes merely strands in the cable of a circumstantial case. No part of items 9-16 was relied upon by the Crown as evidence of an overt act.

4. [117]

   As to the remaining utterances, however, I have concluded that extensive directions given to the jury about how it is that they may use the TI and SD material will sufficiently ameliorate the risk of unfair prejudice identified by the applicants. Whilst it is not appropriate to formulate those directions so long prior to the trial (fixed to commence in April 2022), and in circumstances where the interests of the various accused about those directions may well not be identical, it is likely that directions warning against consciousness of guilt reasoning and use of the recorded utterances as admissions except where clearly indicated will be warranted.

5. [118]

   As I will explain by reference to the numerous examples provided by the applicants, the unfair prejudice suggested by the applicants will be adequately cured by directions that I will give the jury. There are several ways that these directions could be given efficiently and effectively. Some suggestions made by the Crown about innovative ways that the correct directions may be conveyed to the jury are certainly worth exploring; in particular, that parts of the transcript be colour‑coded in a certain way to make clear to the jury the permissible and impermissible uses of the material.

6. [119]

   I am unable to accept the applicant’s submissions about the dangers of the jury employing impermissible reasoning. As noted above, juries are taken to follow directions. This is a fundamental part of the jury system. In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, Gleeson CJ and Gummow J observed that:

7. [120]

   McHugh J gave a more extensive explanation of the general rule at [31]-[32]:

8. [121]

   The concerns raised by the applicants, in the main, are ones that are amenable to being addressed by careful jury directions. That is, the jury will be given specific directions about specific parts of the evidence and specific uses to which that evidence can be put. There is nothing unusual or particularly difficult about that exercise in the circumstances of this case.

9. [122]

   Where a legitimate concern has been raised by the applicants that there is a risk that the jury might use particular evidence in an impermissible way, it may be dealt with by careful direction, perhaps accompanied by producing schedules with colour-coding.

10. [123]

    As to the particular concerns raised by the applicants, most objections under ss 135 and 137 were put on the basis that there was a risk that the jury might infer that the items objected to are admissions or that the jury might engage in impermissible consciousness of guilt reasoning. I am satisfied that, to the extent that it arises, any risk of unfair prejudice can be cured by appropriate directions.

11. [124]

    I turn then to consider the particular examples that the applicants submitted demonstrated the problems with the specific items of evidence to which objection was taken.

12. [125]

    The first objection, item 1 (A. Cranston: “I don’t know and I’ve probably got my own suspicions that, that, that Jay might have swindled a hell of a lot more right, because”), was said to carry the risk that the jury would use the words “Jay might have swindled” as an admission that Mr Onley had in fact “swindled” somebody, to Mr Cranston’s knowledge. The evidence is not tendered as an admission. The Crown relies on it as evidence of “participation”. The Crown case is a largely circumstantial case. This is one, albeit reasonably small, part of that circumstantial case. Whilst the probative value of the evidence does not rise higher than what was described in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 as a “strand” in the “cable” of that circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The jury will be directed that they should not treat the evidence as an admission.

13. [126]

    The second objection, item 2 (A. Cranston: “I’ll be honest with ya, Jay’s got some capacity to pay something right”), was said to carry the risk of the jury using the evidence for a hearsay purpose and reasoning that Mr Onley had “some capacity to pay” because he had taken money that ought to have been directed to the ATO, and also that Mr Cranston thought that Mr Onley had the capacity to pay. It was also suggested that the jury might accept that Mr Cranston was seeking to deflect attention away from himself and the immediate threat that he faced. The Crown relies on item 2 as evidence of “participation”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice identified outweighs the probative value of the evidence.

14. [127]

    The third objection, item 3 (A. Cranston: “… the only people who have got the capacity is Plutus and Jay that’s really it”), was said to carry the risk that the jury would use the evidence for the hearsay purpose of proving the truth of what was said, or engage in consciousness of guilt reasoning. One difficulty with that submission is that the TI and SD material is replete with material of a like kind that has not been objected to. Statements such as “maybe Plutus can come together maybe with one or two [million] today”, which were not objected to, carry essentially the same risk of the jury reasoning in this way. The Crown relies on item 3 as evidence of “participation”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of prejudice identified by the accused arises. Even if it did, the risk of prejudice can be sufficiently ameliorated by careful directions.

15. [128]

    The fourth objection, item 4 (A. Cranston: “… and I’m pretty sure Jay to[ok] a fuck load too”), was said to involve the risk that the jury would take it as proof that Mr Onley “took” a large amount of money from relevant entities. Again, similar statements (such as that “Pete and Pat took a fuck load”) have not been objected to elsewhere in the TI and SD material. The Crown relies on item 4 as evidence of “participation”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

16. [129]

    The fifth and sixth objections, items 5 and 6 (A. Cranston: “I was actually, if you speak to Dev, I was just gonna split with Jay after this process, because I think the guy’s a scammer”; A. Cranston: “… I think the guy’s a fucking scammer”), were said to involve a risk that the jury would see the evidence as an admission that Mr Onley was a “scammer”. The Crown relies on these items as evidence of “participation”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. Any risk of prejudice can be sufficiently ameliorated by careful directions.

17. [130]

    The seventh objection, item 7 (Rostankovski: “Between you, between you and I, how much do you think he’s made from this? I reckon made at least thirty million.”… A. Cranston: “… And he goes oh, I’ll offer you this? And I’m like can we get it valued? And he said oh I’ve got it valued and I, I just know he’s trying to scheme. I don’t know how really much money he’s got but I think it’s a fair amount”), was said to carry the risk that the jury would treat as an admission Mr Cranston’s statement that Mr Onley had taken at least $30 million in the alleged scheme, and also that Mr Cranston had knowledge of the details of that taking. The Crown relies on item 7 as evidence of “participation”. Although the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

18. [131]

    The eighth objection, item 8 (A. Cranston: “I, I, I, I, I, I, I can’t say hundred percent because I know they are fucking, I don’t know how much they’ve swindled on the side here and there, I just, I don’t know where their capacity is at but I”), is on the same basis. The same conclusion applies.

19. [132]

    The twenty-second objection, item 22 (Onley: “Are they going to get, are they willing to go to jail for that money?”), was said to involve the danger that the jury would see it as an admission because of the reference to the prospect of certain people going to jail for a payment of money. I think this reasoning highly unlikely. If I was ultimately persuaded about such a risk, however, a direction would be given that the jury should not reason in this way.

20. [133]

    The twenty-fourth objection, item 24 (Onley: “Look, there’s a positive of this. I’m looking at it as, if this solves the problem which gets him off the hook”), was said to present a problem of being treated as an admission or evidence of consciousness of guilt because of the reference to the “hook”. I fail to see any unfair prejudice to Mr Onley or any accused by this reference. Here, Mr Onley is speaking about Mr Chalabian being on the “hook”, apparently for the extortion of the accused. The applicants submitted that there was a risk that item 24 would be misused by the jury because they may think there is a risk Mr Chalabian might go to jail or be on the hook for what the accused have allegedly done. Read in context, that risk is not a risk of unfair prejudice to these accused.

21. [134]

    The thirty-third objection, item 33 (Onley: “Well we pay the five million the ATO fucks it anyway”), was said to carry the risk of use as an admission and to be of very little probative value. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. I have concluded that a direction to the jury will address any potential unfair prejudice.

22. [135]

    The thirty-sixth objection, item 36 (Menon: “They don’t have to pay it, and …” A. Cranston: “Okay anyway, it doesn’t matter, fuck it …”), involves an apparent reference to a “$70 million tax debt”. It was submitted that there was a real danger that this evidence would be used as an admission (as to whether Mr Menon considered a tax debt ought to have been paid or not). The Crown relies on item 36 as evidence of “participation”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

23. [136]

    The forty-third objection, item 43 (Menon: “I want you to understand, and I’ve always given you my, I know you think I lie to you but I, I know you think Adam did, on our mothers life we never once lied to you. I can go to my grave knowing that part and I know you can too. ‘Cause, mate, we never ever once lied to you, D.” Rostankovski: “You’re making assumptions, bro.” Menon: “Well, I thought we were genuine friends, like all us three were actually mates, like ...”), was said to carry the risk of the jury treating the statements made as admissions. Whilst item 43 might be taken by the jury as demonstrating that Messrs Rostankovski and Menon had a comfortable relationship, I consider there is no risk of unfair prejudice of the kind suggested.

24. [137]

    The forty-sixth objection, item 46 (Onley: “Where are the fucking rats ... (indistinct) ...” Rostankovski: “Money, money ...” Onley: “Money, money is the fucking deal ... Shut up ...” Menon: “D can you uhm, ..” Onley: “I’m over it ...”), was said to carry the risk of the jury understanding the statements made as admissions, given that the Crown elsewhere relies upon “ratting” as an admission. I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. A direction to the jury will address any potential unfair prejudice.

25. [138]

    The fifty-first objection, item 51 (Onley: “It’s about the survival… I’ve already accepted it’s done… my number one guess is that they take the money, the ATO calls them in or stops them travelling…”), was said to carry the risk that the jury would understand the statements made as admissions or employ consciousness of guilt reasoning. I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. Any unfair prejudice can also be cured by a direction.

26. [139]

    The seventy-fifth objection, item 75 (Anquetil: “… we want to get ready for that software that has the glitch …”), was said to carry the risk of use as an admission that there was software that had a glitch. The applicants identified a further risk in the various discussions about the destruction of documents (for example, Menon: “… I think we wind up everything and that software either we are going to be doing NVL or someone’s going to wind up Plutus, came out from a debt, there’s an … (indistinct) … accident at Plutus, like a reasonable one, a corrupt one, with the software, I don’t know, with this I don’t know. Like a virus that you could send through the fucking … like a Trojan horse that fucking tears everything apart. This is your speciality, it’s not mine… like a virus that infected the whole fucking thing and brings down the whole thing…”). The applicants submitted that the Crown relies upon the “destruction of documents” material only for the fact that words were said. It was submitted that in light of the abundance of other material in this case, the probative value of item 75 and similar items of evidence (to establish that the words were said) is significantly outweighed by the risk of consciousness of guilt reasoning. It was submitted that there is a risk that the jury will treat the evidence as an admission or take the references to wanting to destroy documents, for example through a software program, as demonstrative of guilt.

27. [140]

    As to the first objection, subject to the s 135(c) Evidence Act objection which I will address at [183] below, I accept that the Crown case is a circumstantial case and that it is not for the Court to exclude “strands in the cable” of that circumstantial case on the basis that an abundance of other material about the topic is available to the Crown. In any event, as to both passages, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. Any possible prejudice can be sufficiently ameliorated by a jury direction.

28. [141]

    The seventy-seventh and eighty-first objections, items 77 (Onley: “… It just adds a layer of ‘well maybe it wasn’t you’ … ‘don’t blame us, it was him’ …” Menon: “Correct. It’s reasonable doubt”…) and 81 (Anquetil: “… we’ve uncovered a glitch on our system…” Onley: “That’s for later.” Menon: “I’ll just be addressing that … what will happen is Jay, we’ll keep the glitch going, til June because we need to get the money. And then on June thirty, we’ll…”), raise a very similar point. Both items were said to carry the risk of use as admissions and consciousness of guilt reasoning, given the discussions about the desirability of storing documents or concealing them. As to both objections, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. Any possible prejudice can be sufficiently ameliorated by a jury direction.

29. [142]

    The ninetieth to ninety-third objections, items 90-93, were said to carry the risk of consciousness of guilt reasoning in relation to Mr Menon’s words “Don’t do it on the phone”. The applicants submitted that items 91 and 92 involved the expression of a desire to have documents destroyed or deleted, rather than directing that they be destroyed. The applicants submitted that item 93 involved the expression of the desirability of telling lies (Menon: “You and your defence is, I, I don’t know anything, Peter Larcombe told me what to do and, like, you know Peter Larcombe’s the one doing this …” Hammond: “Okay. But when they say Peter died in October and you’ve been doing it …” Menon: “Yeah you just say … Like you can say James … Just say James, He had a team of people…”). I do not consider that the risk of unfair prejudice outweighs the probative value of any of these items of evidence. Any possible prejudice can be sufficiently ameliorated by a jury direction.

30. [143]

    The one hundred and fifth objection, item 105 (Menon: “If we get through this, Josh, we pull … off the great escape here ... like ... (indistinct) ... is Alcatraz shit … Well we’re in Alcatraz at the moment we’re fuckin’ tunnelling with spoons …” Kitson: “Look, he’s – it’s unusual seeing Simon’s not filled with confidence. It’s very unusual to see ‘cause he’s – nothing fazes him and ... this has – this has hit him hard. Um, he’s – it’s unusual to see him worried. Um, but again, but the initial – the initial panic from him was that the two were then to be linked, that the – his garnish had to be linked to the bottoms garnish …”), was said to involve the risk of consciousness of guilt reasoning or use as an admission of a problem that people were “to be linked”. I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. Any possible prejudice can be sufficiently ameliorated by a jury direction.

31. [144]

    The one hundred and sixth objection, item 106 (Menon: “What’s going to save us is the deed… And that’s why that was the key to the whole thing…”), was said to involve an implied admission about the need to be “saved” from the supposed oppression of a “controlled story”. The applicants also submitted that the evidence could be used by the jury for consciousness of guilt reasoning. It was further submitted that other portions of item 106 (Menon: “they will default and they will deny that deed and they will not sign… and give me the affidavit… Once I have those affidavits … they’re checkmated …”; “Most of them will flee. Most of them will take the money and run”) could be misused by the jury as an admission that there was a need to flee. The suggested unfair prejudice in these objections seems to me not to be realistic. In any event, any possible prejudice can be sufficiently ameliorated by a jury direction.

32. [145]

    The one hundred and eleventh objection, item 111 (A. Cranston: “Jay can sell his forty-six million dollar house.” Menon: “Yeah.”), was said to involve the risk of use as an admission that Mr Onley took a large amount of money out of the alleged scheme in order to pay for his house. I do not think that conclusion is necessarily a likely one, however, to the extent that the risk of unfair prejudice exists it can be sufficiently ameliorated by a jury direction.

33. [146]

    The one hundred and twelfth objection, item 112 (Menon: “that they’re stitched up to the max, right”), was said to carry the risk of being used as an admission. In context, this passage is directed to the potential liability of people other than the accused, however, to the extent that there is any slight risk of unfair prejudice it can be sufficiently ameliorated by a jury direction.

34. [147]

    The one hundred and thirteenth objection, item 113 (A. Cranston: “And there’s no lawyer linked to you, it’s perfect …”), was said to carry the risk of being used as an admission about the desirability of Mr Menon not being linked to what had happened in the past. The path of possible jury reasoning suggested by the applicants about this passage seems to me to be quite far-fetched. To the extent that there is any slight risk of unfair prejudice it can be sufficiently ameliorated by a jury direction.

35. [148]

    The one hundred and seventeenth objection, item 117 (such as reference to the “multi-million dollar tax scam” and that “they’ll never trace the money”), contains utterances which were said to be capable of being understood by the jury as admissions. I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. Any possible prejudice can be sufficiently ameliorated by a jury direction.

36. [149]

    The one hundred and thirty-fourth objection, item 134 (Kitson: “… The other way – the other way says we bought a company seven months ago that we wrapped up for some reason seven months after we fuckin’ bought it.” Onley: “It just looks so suss.” Kitson: “And it turns out that it was getting supply from people who were doing dodgy shit. We swear we had nothing to do with that but we just decided to wind the company up, so”), involves a discussion about how to bring certain structures to an end. The applicants submitted that there was a risk the jury would understand Mr Onley’s words as an implied admission that what he had done was “suss” and “dodgy”. I regard there as being a low risk of the jury reasoning in that way. Mr Onley’s reaction about it looking “suss” was a commercially astute observation. It appears that the suggestion being put to Mr Onley about bringing the structure to an end was not a very good one. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

37. [150]

    The one hundred and sixty-ninth objection, item 169 (Onley: “You can owe tax and fuckin’ blatantly rip them off, but as long as you didn’t hide it from them because then there’s no intent. It’s all the intent ... (indistinct) ... it’s your intention to pay ... (indistinct) ... are you going to be able to, maybe not... (indistinct) ... do a part ten and wrap it all up, eighty cents in the dollars, who knows? It gets to a point where it’s fuckin’ three or four million you’re going to go, okay, well I’ll pay thirty or forty, a hundred grand ... (indistinct) ... bloody (indistinct) ... trustee and I’ll pay, I’ll do a part ten... (indistinct) and I’ll move on”), was said to carry the risk of being treated as an admission that Mr Onley had ripped off the ATO or was willing to do so. The Crown relies on item 169 as evidence of an “overt act”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

38. [151]

    The one hundred and seventy-fourth objection, item 174 (Menon: “But again, mate, it was all about smoke and mirrors. Like we just put up so much shit in there I reckon the DPP’s going, oh my God. Like, how fucking hard is this gonna be, you know? ... (indistinct) ... that was in the wheelchair, I told you about this, right?” …), involves a discussion about unrelated offending by unrelated people, for whom Mr Menon acted, who were being prosecuted by the DPP. The path of possible jury reasoning suggested by the applicants about this passage seems to me to be quite far-fetched. To the extent that there is any slight risk of unfair prejudice it can be sufficiently ameliorated by a jury direction.

39. [152]

    The one hundred and eighty-fifth objection, item 185 (Menon: “Mate, there’s two undercover cops outside. I just went down for a cigarette and to make some calls. Fuck. I’m so paranoid, about …” A. Cranston: “Oh no, but there’s two New South Wales coppers?” …), was said to carry the risk of being treated as an implied admission based on the apprehension of a criminal investigation. The applicants submitted that this would lead to the risk of consciousness of guilt reasoning. I note in passing that there is an abundance of unchallenged evidence in the TI and SD material that the accused sought to ensure that the police and other authorities were not involved in their lives. In any event, I find that the risk of prejudice arising from this particular item of evidence is low. To the extent that there is any slight risk of unfair prejudice it can be sufficiently ameliorated by a jury direction.

40. [153]

    The two hundred and seventh to two hundred and thirtieth objections, items 207-230, each relate to the so-called “Peter Larcombe” story. Mr Larcombe was an associate of the accused and was involved in the commencement of certain of Plutus’ early operations. Mr Larcombe committed suicide in 2016. Those items (for example, Lauren: “… all you have to do is play dumb … work for Peter…” and Menon: “… we take instructions from Peter Larcombe, right”) were said to contain implied admissions and invite consciousness of guilt reasoning. [4] The Crown relies on those items as evidence of “overt acts” and “participation”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

41. [154]

    The two hundred and seventieth objection, item 270 (Menon: “Like whatever’s in there, we’re never paying one hundred percent taxes” … Cranston: “… You are knowingly running this … at a loss”), was said to carry the risk that the jury would rely upon the statements to establish the truth of what was said. I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be ameliorated by careful directions.

42. [155]

    The two hundred and seventy-first objection, item 271 (Cranston: “… we can’t just do smoke and mirrors anymore. You gotta do the fee base to make this thing actually profitable… if the ATO ever looked at it … You still lost money … if we do the numbers and they stack up and the guy ticks the box and goes, ‘Okay you charged two percent which gives you a very small profit, done’. Or even a breakeven point”), was submitted to be capable of being understood as an admission that the accused had engaged in a “smoke and mirrors” strategy in the past. It was submitted that there was a risk that the jury would treat Mr Cranston’s utterances as admissions. The Crown relies on item 271 as evidence of an “overt act”. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

43. [156]

    The two hundred and seventy-second objection, item 272 (A. Cranston: “Mate he is key. Pat is fucking key to this mate…” Onley: “If he’s on side we’ve got – we’re good … if he’s offside we’re fucked” …), was said to carry the risk of being treated as an implied admission as to telling a story involving Mr Willmott. Whilst the probative value of the evidence does not rise higher than a “strand in the cable” of the Crown’s circumstantial case, I do not consider that the risk of unfair prejudice outweighs the probative value of the evidence. The risk of prejudice can be sufficiently ameliorated by careful directions.

44. [157]

    These objections were the only ones I was taken to in the three days of oral addresses. I have read and considered the remaining objections and made rulings contained in the document which is Annexure A to these reasons. Other than items 9-16, I would not exclude any of those utterances under ss 135 or 137 of the Evidence Act.

Issue 6 – relevant principles in identifying overt acts of a conspiracy charged under the Criminal Code

1. [158]

   Given the conclusions I have reached there remains an academic question about whether certain of the passages which have been sought to be excluded under ss 135 and/or 137 and which are highlighted in Annexure A in yellow and annotated as being an “overt act” are, regardless of my other conclusions, relevant and admissible against all accused as comprising overt acts of the alleged conspiracy. Without recapping all that I have decided to date, there are no instances where I would otherwise exclude the evidence which has been objected to where the Crown asserts that the relevant passage comprises an overt act of the alleged conspiracy.

2. [159]

   An overt act, as that term is described in R v LK (2010) 241 CLR 177; [2010] HCA 17, is essential to proof of the offences charged here. In Beckett v R [2014] NSWCCA 305; (2014) 315 ALR 295, Beazley P (with whom R A Hulme J and Bellew J agreed) held: [5]

3. [160]

   Thus, to the extent that any of the acts and utterances objected to are overt acts of the alleged conspiracies, the relevant acts and utterances are able not to be adduced as admissions but, rather, as primary evidence relied on by the Crown as proof of the offences charged.

4. [161]

   The essential function of overt acts in a conspiracy trial is to establish that the conspiratorial agreement has moved beyond a bare agreement and has become manifest, and that that state of affairs continues to be so manifest: Agius v The Queen (2013) 248 CLR 601; [2013] HCA 27 at [40]-[46].

5. [162]

   In Regina (C’Wealth) v Baladjam [No 19] [2008] NSWSC 1441 at [44], Whealy J quoted with approval the following passage from Peter Gillies, The Law of Criminal Conspiracy (2nd ed, 1990, The Federation Press), which remains the latest edition, at 176:

6. [163]

   Circumstantial evidence to establish the existence, scope and nature of a conspiracy does not infringe the hearsay rule: Ahern at 97-100, 103; Tripodi at 6-7; R v Masters (1992) 26 NSWLR 450 at 461.

7. [164]

   The applicants advanced the following three broad propositions as to the admissibility of the items labelled as overt acts:

   1. (1)

      first, on a question of admissibility, there is a distinction between direct (or primary) evidence of an overt act and other evidence of that overt act, such that the former is admissible, but the latter is not. Here, the applicants submitted that the challenged items were, at best, evidence of overt acts rather than overt acts themselves;

   2. (2)

      secondly, notions of “agency” or that something was said or done “in furtherance” of the alleged conspiracy are misplaced, or insufficient, as a determinant of the thing’s admissibility as an overt act within the meaning of s 135.4(9)(c) of the Criminal Code. For example, an utterance associated with an act might be within the scope of authority of an agent to do an act, but the utterance itself might not be an overt act; and

   3. (3)

      thirdly, whilst the adoption of the term “overt act” in the Criminal Code maintained its established meaning under the pre-existing law, it also changed that meaning to exclude from its scope evidence of things said (except in cases where an oral act itself is the substance of the offence that is the subject of the conspiracy).

8. [165]

   The applicants made a number of overlapping submissions to the effect that the items labelled as “overt acts” should be rejected:

   1. (1)

      first, the reference to “primary evidence” in Beckett v R is distinguishable because, unlike here, in that case the utterances were the central physical element of the charge;

   2. (2)

      secondly, despite several requests for particulars, the Crown has not provided a list of overt acts relied upon for the purposes of s 135.4(9)(c) and the Crown should not now be permitted to rely on the theoretical possibility of what might be included in the list;

   3. (3)

      thirdly, “an overt act is not … an element of the offence of conspiracy, although it may be evidence of the existence of a conspiratorial agreement”: Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279 at [238] (Malcolm CJ; Kennedy and Anderson JJ agreeing). Section 135.4(9)(c) does not alter that position; an overt act is a matter to be proven but not an element of the offence which is complete on entering into the unlawful agreement; and

   4. (4)

      fourthly, an overt act for the purposes of s 135.4(9)(c) does not include, as the Crown submitted, “physically observable acts in furtherance of a common purpose” and “utterances in furtherance of a common purpose”.

9. [166]

   I will deal first with the applicant’s submission that an overt act is “not only an additional matter the Crown must prove to establish guilt” but “also a statutory marker for the loss of an important defence to the offence of conspiracy”, being the withdrawal defence, given the “elevated importance [of overt acts] in the statutory regime”.

10. [167]

    The submission that a fundamental change was effected by the Criminal Code must be rejected. I reject the applicant’s submission that the “elevated importance in the statutory regime” has the effect that the scope of possible acts which are capable at law of being an “overt act” under the Code are narrower than those which may have been considered to be overt acts under the general law.

11. [168]

    I am also unable to accept the applicant’s submission that “as the overt act requirement in s 135.4(9)(c) is something the prosecution must prove which conditions a finding of guilt, utterances amongst co-conspirators are incapable of satisfying the requirement”. It was submitted that the commission of an overt act by a party to the agreement is the doing of an act, not the mere talking about it.

12. [169]

    In LK, the plurality of the High Court affirmed that, upon the adoption into the Criminal Code, the term “overt act” retained its common law meaning subject to statutory modification:

13. [170]

    The applicants’ submission must be rejected. An overt act consists of things that are said and/or done, manifesting that the conspiracy is at work. The High Court has made clear that the Code should be construed according to its natural meaning and without any presumption that its language will do any more than re‑state the common law. In Namoa v The Queen [2021] HCA 13; (2021) 95 ALJR 396, the High Court reaffirmed the position in LK. Gleeson J (with whom Kiefel CJ, Gageler, Keane, Gordon, Edelman and Steward JJ agreed) said at [11]-[12]:

14. [171]

    The distinction proposed by the applicants, that some facts in issue may only be proven by direct evidence but not indirectly, does not arise from the text or context of the Criminal Code or the Evidence Act and is not supported by any authority.

15. [172]

    It is unnecessary for me to opine about whether and, if so, the extent to which, the common law as reflected in Director of Public Prosecutions v Doot [1973] AC 807 at 827 and Saffron v The Queen (1988) 17 NSWLR 395 at 421C-E changed when s 135.4 was introduced into the Criminal Code in 2000 by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth). That question does not arise in this case. The Crown made clear that:

16. [173]

    The Crown further made clear that:

17. [174]

    An utterance “in furtherance” of the agreement may suffice to constitute an overt act if the utterance was sufficiently probative of the alleged agreement, demonstrated the ongoing transaction of the agreement and manifested or contributed to the manifesting and performance of the agreement.

18. [175]

    In Tripodi, the High Court drew no distinction between what was done or said in the absence of the accused. At 6-8, Dixon CJ, Fullagar and Windeyer JJ noted that:

19. [176]

    In Ahern, the High Court said at 93-94 that:

20. [177]

    It is clear that utterances may amount to overt acts. Two examples suffice.

21. [178]

    In The Queen v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216, the Victorian Court of Appeal considered an appeal against the applicant’s conviction for conspiring to defraud the Commonwealth. The Court described the Crown (without criticism) as having led evidence of “overt acts committed by the co-conspirators in performance of that conspiracy”. At [15], the Court set out some of the overt acts consisting of conversations between the accused, including conversations about: the subject of the alleged conspiracy; concealment; “general issues”; what to say if contacted; and the need to concoct a story.

22. [179]

    In R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858, Fullerton J considered the evidence of overt acts led against co-conspirators, including “meetings and telephone calls” between conspirators as “communication regarding the object of the conspiracy”: at [335] and [338]. The Court made no distinction between what was said and what was done by way of overt acts and made findings based on that evidence.

23. [180]

    The applicants submitted that an overt act within the meaning of s 135.4(9)(c) requires doing something rather than “merely discussing” a topic. The applicants submitted that that is the position even insofar as such discussions or declarations may be regarded as “in furtherance” of a conspiracy for the purposes of the agency that underlies the co-conspirators rule.

24. [181]

    I am prepared to assume, without deciding, that if correctly characterised as “mere discussion” an utterance may not amount to an overt act. That conclusion does not avail the accused in this case. The overt acts in LK upon which the Crown relied included that “LK, RK and RM were said to have been in contact with each other by telephone over the relevant period” and requests and instructions to transfer money into nominated accounts. As there has been no express statutory modification to the term, the scope of an “overt act” has not been restricted by virtue of its adoption into the Criminal Code.

Issue 7 – admissibility of items identified as “overt acts”

1. [182]

   Despite the attention given by the parties to this issue, in the circumstances of this application it is of little moment as none of the objections fall to be determined on this basis.

2. [183]

   If, contrary to the view I have formed, it were necessary to rule about whether the items identified as “overt acts” in Annexure A were admissible as primary evidence to prove the offences charged, I would rule that they were. The complaint by the applicants that the overt acts were only identified by the Crown in submissions goes nowhere. No request for a ruling on the better identification of overt acts was before me.

3. [184]

   In this case, there are numerous utterances which are obviously overt acts of the alleged conspiracies. Numerous of the overt acts involve changes to the operation and scope of the alleged conspiracy and giving effect to the alleged conspiracy. There is, on the Crown case, also abundant evidence of physically observable conduct in relation to the establishment of companies, liquidation of companies, and instructions in relation to the way the alleged conspiracy operated, including the destruction of electronic devices and communications. Where there are both physical acts and utterances, and despite the applicants’ submissions, I regard it as uncontroversial that the utterances might amount to overt acts.

4. [185]

   Were it necessary to decide, I would allow the items in Annexure A marked with the annotation “overt act” to be adduced in evidence as primary evidence relied on by the Crown as proof of the offences charged.

Issue 8 – proposed order 1(a) of the notice of motion

1. [186]

   The carriage of the objection to the TI and SD material recorded on or after 1 February 2017 under s 135(c) of the Evidence Act fell to Mr Anderson SC, who appears for Ms Lauren Cranston. His client’s case has been clear for some time. Ms Cranston, of all the accused, plays the smallest part in the recorded materials. Mr Anderson submitted that a great deal of the TI and SD material was of little probative value and its tendering and playing would result in an undue waste of the Court’s time. Such material that is of probative value is intended to be the subject of evidence from [redacted]. If any objection is taken to that evidence about matters the subject of the recordings, Mr Anderson submitted that the Crown could play the recordings in reply, to devastating forensic effect.

2. [187]

   During the hearing I indicated to the parties that I proposed to stand the s 135(c) objection over to allow the Crown an opportunity to narrow the scope of the TI and SD material that it sought to rely upon before I considered the issue. Mr Anderson and the other counsel did not object to that course. I intend to address the s 135(c) objection at a time after senior counsel for the Crown, who is a relatively recent inheritor of the Crown brief, has had a proper opportunity to narrow the scope of the TI and SD material as he has assured me he will. I will ensure that this will occur no later than February 2022.

3. [188]

   The principles relevant to s 135(c) of the Evidence Act were recently summarised by Bellew J in R v WE (No.13) [2020] NSWSC 225. In that case, the Crown tendered several videos and recordings that the accused had stored on his electronic devices which it sought to rely upon as demonstrating that the accused, who had been charged with doing acts in preparation for a terrorist act, had an extremist ideology. The accused then sought to tender various recordings held on the same devices which were of a non-extremist nature (including ultimate fighting championship contests, documentaries, comedy sketches, music, games, current affairs reports and pornography). The Crown objected to the accused seeking to tender those recordings on bases including that the playing of the recordings would cause or result in an undue waste of time. It was estimated that it would take several days to play the recordings. Bellew J held as follows:

4. [189]

   The point that the defence sought to make in WE (No.13) was that the accused had interests other than extremism, as evidenced by his accessing material that was other than extremist material. The Crown had agreed that it would not object to the tender of a schedule to the jury acknowledging the existence of the other material that identified the titles of the recordings and a summary of their contents. Bellew J was asked to resolve the question of whether the defence should be permitted not only to lead evidence about the existence of the material but also to require the jury to watch that material for an estimated eight days.

5. [190]

   It may be that WE (No.13) stands for the proposition that where the existence of certain material is in issue, and there are obvious ways of putting the existence of that material into evidence (for example by the tender of a summary of the content of the material), the probative value of evidence in the form of recordings might be substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

6. [191]

   Whether, as submitted by the Crown, the material sought to be played to the jury is relevant in order to establish the content and context of the conversations and potentially the relevant relationships between the alleged conspirators, is a matter I will return to in February. It may well be correct that, as the Crown submitted, all of those matters cannot be captured by the tender of a schedule, or by asking a witness to give evidence five to seven years after the fact as to the precise content of conversations that he or she had with the alleged conspirators. On the other hand, it may be that other methods can be devised to put relevant material before the jury without requiring them to listen to tapes for over a month; for example, the agreed tender of transcripts of the less contentious recordings and the playing of only important recordings so that the jury can hear, in the most direct and precise way, the words that were said.

7. [192]

   For these reasons I will stand over prayer 1(a) for the time being and review the issue when senior counsel for the Crown has had an opportunity to consider what recordings he considers must, in the interests of his case, be played to the jury.

Conclusion and orders

1. [193]

   For the foregoing reasons I make the rulings set out in the far-right hand column of Annexure A to these reasons.