R v Cranston (No 7)

1. [1]

   PAYNE JA: 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 before Fullerton J to the following two counts in an indictment presented on that day:

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, in July 2020 that trial date was vacated. The matter has been before me on numerous occasions for pre-trial directions. On 24 August 2020, I delivered judgment 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 accused Onley, Menon and Lauren Cranston for a separate trial 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 any part of the Crown brief. 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 2007 (Cth) and alleged excessive execution of warrants issued under that Act.

3. [3]

   On 1 December 2020, a further motion was filed by Messrs Onley and Menon and Ms Cranston seeking the following orders:

   1. (1)

      The following evidence be excluded under s 84 of the Evidence Act 1995 (NSW) or in the alternative under one or more of ss 90, 135 or 137 of the Evidence Act.

   2. (2)

      Directions for determining other material to be excluded consistent with the Court’s reasons for decision.

   3. (3)

      Further or other orders.

4. [4]

   The motion was heard on 8 December 2020. No evidence was led on the motion, but a 248 page colour coded schedule of information sourced from the Crown case statement was placed before me.

Submissions of the parties

1. [5]

   Both counts in the indictment allege a conspiracy. The Crown has served a huge volume of evidence which it proposes to lead at the trial, which is estimated to last three months. The principal, but not exclusive, focus of this application is evidence served by the Crown which derives from telephone intercepts and surveillance devices.

2. [6]

   The date range of the conspiracy is between about 1 March 2014 and about 18 May 2017. The essence of the applicants’ submission is that on and from 1 February 2017 threats of, inter alia, exposure of the conspiracy and violence, were made to the alleged conspirators by Messrs Rostankovski, Barrett and Hausman. As a result of those threats of exposure and violence the conspirators allegedly paid Messrs Rostankovski and Hausman $25 million from the proceeds of the alleged fraud, which are asserted to be over $140 million.

3. [7]

   The actual evidentiary material to which the exclusion application relates was referred to globally as the entire contents of material recorded under telephone intercepts warrants and by surveillance devices after 1 February 2017 or, alternatively, the other evidence referred to in the annexure to the applicants’ submissions of 1 December 2020, being the 248 page document. A broad but necessarily incomplete summary of the evidence to which this application refers may be ventured. The conversations relied upon by the Crown are capable of being seen as disclosing states of mind of the participants to the conversations, attitudes to payment of tax, the Australian Taxation Office and to customers of Plutus. A great deal of minute detail about relationships between various corporate entities is discussed. The movement of funds, including payments to the Australian Taxation Office is discussed. The attitudes of the participants to the conversation to threats of exposure and violence made by Mr Rostankovski, Mr Barrett and Mr Hausman are discussed. Some of the conversations are capable of being interpreted as disclosing the intention of the participant or participants to take part in activity whereby funds payable to the Australian Taxation Office are to be diverted for other purposes.

4. [8]

   Whilst no real attempt was made to explain why all of that evidence should properly be characterised as an admission and excluded from evidence under s 84 of the Evidence Act, save the reference to Edelman J’s judgment in Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686, the Crown accepted that:

5. [9]

   The Crown relies on a substantial body of circumstantial evidence to prove its case against each of the applicants on both charges. That circumstantial evidence includes numerous acts and declarations of the alleged conspirators, including each of the applicants, relevant to proof of the existence, nature and scope of the conspiratorial agreements. Many of those acts and declarations were made in the absence of one or more of the applicants. On 26 June 2020, the Crown provided the following particulars of its case to each applicant:

   1. (1)

      The Crown relies on the whole of the evidence, most of which is circumstantial, to prove the fact, nature and scope of the agreements the subject of the two charges, and upon the conduct of each alleged participant in the agreements to prove their own participation in the agreements.

   2. (2)

      For that purpose, the Crown relies upon evidence of the declarations, as well as the acts, of each individual participant (whether in the absence or presence of another participant) as part of the circumstantial evidence against all accused to prove the fact, nature and scope of the agreements the subject of the charges.

6. [10]

   The Crown submitted that the numerous acts and declarations of the alleged conspirators, including each of the applicants, relevant to proof of the existence, nature and scope of the conspiratorial agreement were admissible as pieces of circumstantial evidence as explained by the High Court in Ahern v The Queen (1988) 165 CLR 87 at 93-94; [1988] HCA 39 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ). It was submitted that numerous authorities established that the principles explained in Ahern remained good law under the Evidence Act.

7. [11]

   The Crown did not tender any of the acts and declarations of the alleged conspirators as admissions or under the co-conspirators’ rule.

8. [12]

   The applicants’ essential case was that if evidence was capable of being characterised as an admission, despite it being adduced for a non-hearsay purpose, the evidence was excluded by s 84 of the Evidence Act, if that section was otherwise engaged. That is because s 84 is an exclusionary rule and the cases which had considered this issue, in particular, Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206, which had treated s 87 of the Evidence Act as an inclusionary rule, were distinguishable.

9. [13]

   The Crown submitted that in Elomar, R v Baladjam (No 38) [2008] NSWSC 1458; (2008) 270 ALR 187 and R v Horton (1998) 45 NSWLR 426 evidence of the kind described in Ahern had been permitted to be adduced for a non-hearsay purpose. The Crown accepted that individual acts and utterances led for a non-hearsay purpose would need to be considered at a second stage. The Crown accepted that there may be specific pieces of evidence where a question would arise about the content of any direction I should give the jury. Consideration would need to be given at that stage to exclusion of evidence under ss 135 and 137 of the Evidence Act if, having regard to the content of a particular piece of evidence, in giving a direction about admissibility to the jury, relevant unfair prejudice arose to one or more of the accused.

10. [14]

    The essence of the applicants’ argument was summarised in their written submissions as follows:

11. [15]

    The central plank of the applicants’ argument is that s 84 of the Evidence Act is an exclusionary provision and the operation of that exclusion is not dependent on how evidence “that is capable of being an admission” made its way into evidence. The effect of the applicants’ primary argument is that where the words or conduct of an applicant fall within the definition of an admission in the Evidence Act and evidence of the “admission” is caught by s 84, the legitimacy of the Crown proving the fact of a conspiratorial agreement by the use of circumstantial evidence not tendered for a hearsay purpose is “obliterated”, as Whealy J described a similar submission in Baladjam (No 38).

12. [16]

    Ms Seiden SC, who had primary carriage of this part of the argument for the applicants, sought to distinguish Elomar and the cases referred to in Elomar on the following basis:

13. [17]

    The applicants submitted that s 84 reflects questions of high policy. The High Court explained in The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [74] that involuntary statements are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. The applicants called in aid the questions of public policy addressed in Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 at 76-77 and The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 at 335 which were submitted to raise different but relevant considerations to the present question.

14. [18]

    The applicants submitted that “section 84 [refers to] conduct which Parliament has seen fit to put in a special category, because of the interests of the integrity of the justice system; not merely the effect on the accused, but also the effect on the justice system. And that’s why it has a pride of place. It has a wide ambit in a very narrow set of circumstances”.

15. [19]

    The applicants submitted that, if the s 84 prohibition could be “sidestepped” by adducing evidence to which that section might apply for a non-hearsay purpose, there would be an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice. The applicants called in aid the remarks of the High Court in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 520 per Mason CJ, Dawson, Toohey and McHugh JJ and Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50.

16. [20]

    The applicants accepted that the test for admissibility of circumstantial evidence led for a non-hearsay purpose described in Ahern survived the passage of the Evidence Act but nevertheless submitted that everything said by the accused after 1 February 2017 should be characterised as an admission and subject to exclusion under s 84, even if adduced for a non-hearsay purpose.

17. [21]

    The applicants submitted that I could not be satisfied that s 84 did not exclude any of the evidence relating to events after 1 February 2017 and in particular all of the evidence captured on a surveillance device after 1 February 2017 should be excluded under s 84 or, alternatively, ss 90, 135 or 137 of the Evidence Act.

Consideration

1. [22]

   Section 9 of the Evidence Act states (relevantly):

2. [23]

   Section 55 of the Evidence Act states:

3. [24]

   Section 56 of the Evidence Act states:

4. [25]

   Section 59 provides, relevantly:

5. [26]

   Section 60 provides:

6. [27]

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

7. [28]

   Section 84 of the Evidence Act states:

8. [29]

   Section 87 of the Evidence Act states:

9. [30]

   Section 90 provides:

10. [31]

    Section 135 provides:

11. [32]

    Section 137 provides:

12. [33]

    The principles of construction were not controversial here. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] the High Court said:

13. [34]

    In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ at [14] said about ascertaining the meaning of a statutory provision:

14. [35]

    The relevant text of the Evidence Act is tolerably clear. Sections 84 and 90 are provisions which only exclude evidence of an admission. Section 60 specifically contemplates that evidence relevant for a non-hearsay purpose may be admissible. Section 60(3) addresses the circumstances where evidence admissible for a non-hearsay purpose is also capable of characterisation as an admission. In a criminal case, the effect of s 60(3) is that s 60 does not apply; that is, evidence adduced for a non-hearsay purpose which is also an admission is not admissible to prove the truth of the previous representation comprised by the admission.

15. [36]

    As to relevant context concerning evidence adduced for a non-hearsay purpose, in Ahern at 93-94, Mason CJ, Wilson, Deane, Dawson and Toohey JJ referred to “utterances” or “verbal acts” admissible for a non-hearsay purpose:

16. [37]

    In R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42, the Court of Criminal Appeal (per Simpson and Howie JJ, Fitzgerald JA not deciding) held that the Ahern principles of admissibility of acts and utterances for a non-hearsay purpose remained applicable notwithstanding the introduction of the Evidence Act. The Court of Criminal Appeal was called on to consider whether evidence could be led of the acts and declarations of other participants in a joint enterprise prior to Mr Dinh joining it. At [51], their Honours said:

17. [38]

    Their Honours went on in [52] to observe that:

18. [39]

    As Whealy J pointed out in Baladjam (No 38) at [52], the decision of the Court of Criminal Appeal in Dinh “establishes the continued operation of the Ahern principles, post the introduction of the Evidence Act 1995”.

19. [40]

    As I have explained, the Crown seeks to adduce the evidence here objected to as being circumstantial evidence of the kind described in Ahern and Elomar. The Crown seeks to adduce the evidence for a non-hearsay purpose. No submission was made that any of the evidence sought to be adduced by the Crown was inadmissible for the non-hearsay purpose described in Ahern. Rather, the submission was that the evidence must be excluded by s 84 (and failing that s 90).

20. [41]

    In R v Adam aka Odishou (1999) 47 NSWLR 267; [1999] NSWCCA 197 the Court of Criminal Appeal explained (at [116]) that the “purpose” to which s 60 of the Act refers is the use to which the evidence, if admitted, would be put objectively ascertained. It is not a reference to the subjective purpose of the person seeking to adduce the evidence. An appeal to the High Court was dismissed: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 and this issue addressed at [32]-[33]. No authority was pointed to by the applicants for the proposition that where evidence has properly been adduced for a non-hearsay purpose, and not as an admission, it was nevertheless correct to reject that evidence under s 84.

21. [42]

    An initial matter to note about this application is that the claim may properly be described as ambit, being an objection to all evidence sought to be relied upon by the Crown on and after 1 February 2017 referred to in the Crown case statement, or alternatively, all evidence in the 248 page annexure to the applicants’ submissions of 1 December 2020. No real attempt was made to identify particular representations, the extent to which any representation amounted to evidence of an overt act of the alleged conspiracy or to explain how any particular piece of evidence could properly be characterised as an admission.

22. [43]

    The applicants sought to meet those difficulties by asserting that in Nguyen at [57] Edelman J had identified the test for discerning whether evidence amounted to an admission in such a broad way as to capture the evidence the subject of the applicants’ motion. His Honour said there:

23. [44]

    Edelman J in Nguyen was not addressing the present question. His Honour was not saying that if evidence was admitted as circumstantial evidence in a conspiracy case and not as an exception to the hearsay rule as an admission, s 84 would nevertheless apply to exclude the evidence. The context of what his Honour was addressing is important:

24. [45]

    Edelman J’s judgment is not authority for the proposition that evidence properly adduced for a non-hearsay purpose may be excluded from evidence by s 84.

25. [46]

    That conclusion is underlined by the plurality judgment in Nguyen which makes clear at [21] that “[t]here are of course other means by which a record of interview may be admissible but it is not necessary to canvass them”. The High Court in Nguyen was not intending to address the admissibility of evidence adduced for a non-hearsay purpose.

26. [47]

    The real question raised in this application is whether evidence may 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 is excluded from evidence by s 84 of the Act.

27. [48]

    In Baladjam (No 38) at [34] Whealy J summarised the leading principles in relation to the admission of evidence in a criminal conspiracy case as:

28. [49]

    In the present case the Crown expressly disclaimed reliance upon the co-conspirators’ rule. Nor is any of the evidence objected to sought to be adduced as an admission.

29. [50]

    In Elomar, the Court of Criminal Appeal dealt with the conviction appeal from the trial in which Baladjam (No 38) had been an interlocutory decision. The Court explained at [276]-[284] that it was a case, like this one, where the evidentiary material to which the ground related was not specified with any precision. It was referred to globally as “evidence of acts and declarations of the alleged co-conspirators which were not in furtherance of the conspiracy”.

30. [51]

    The Court at [267] described the evidence as being:

31. [52]

    The argument put to Whealy J, rejected by his Honour, and maintained in the Court of Criminal Appeal, was that evidence of acts and/or declarations of the alleged co-conspirators was admissible only pursuant to the co-conspirators’ rule or as evidence of an admission and thus subject to Part 3.4 of the Evidence Act.

32. [53]

    The Court held that on either basis, the admissibility of the evidence was circumscribed. If adduced under the co-conspirators’ rule, it was admissible only if the statements or acts were made or done “in furtherance of the conspiracy”. If the evidence was adduced as an admission, it was admissible only against the individual who made the statement or did the act, unless it fell within s 87(1)(c) of the Evidence Act which, again, required, as a pre-condition to admissibility, that it be said or done “in furtherance of a common purpose”.

33. [54]

    The relevant contest in Elomar, for present purposes, was whether evidence could be adduced by the Crown of acts and utterances to prove the existence and nature of the conspiracy without meeting the requirements of the co-conspirators’ rule or Part 3.4 of the Evidence Act.

34. [55]

    The Court summarised the argument as being that evidence of statements made by any accused were not admissible, unless the statements are made “in furtherance of the conspiracy”. Specifically, evidence of such statements were not admissible to prove the existence and nature of the conspiracy. The Court rejected that argument.

35. [56]

    The Court explained that the co-conspirators’ rule dates back at least to the decision in R v Associated Northern Collieries (1911) 14 CLR 387; [1911] HCA 73, and adopted in Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22. In Tripodi, the Court (Dixon CJ, Fullagar and Windeyer JJ) said:

36. [57]

    The Court in Elomar at [275]-[276] explained that it is “correct to assert that, where evidence of a statement or conversation attributed to one accused is tendered against another accused pursuant to the co-conspirators’ rule, it is admissible against that other accused only where (inter alia) it was said ‘in furtherance of its common purpose’” (emphasis in original). The flaw in the argument was to regard admissibility under the co-conspirators’ rule as the only basis of admissibility recognised in Ahern. The argument also overlooked the important circumstance that the evidence was not, and never was, sought to be adduced under the co-conspirators’ rule.

37. [58]

    The Court in Elomar stated that it was not correct to regard Ahern as authority for the proposition that acts, statements, declarations or conversations of one or more alleged conspirators are admissible against other alleged conspirators only if made in furtherance of the common purpose. Ahern expressly held otherwise. The Court in Ahern said at 93:

38. [59]

    It was explained in Elomar that it is essential for the Crown to prove in a conspiracy trial:

39. [60]

    While recognising that certain items of evidence might be relevant to each of these topics, the Court in Elomar explained that it is necessary carefully to delineate evidence which goes to proving the existence of the conspiracy and evidence which goes to proving the participation of any of the individual accused. But it is wrong to say, as was contended on behalf of the appellant in Elomar, that, unless conversations or statements or acts are had or made or done in furtherance of the conspiracy, or of the common purpose, that evidence is not admissible against any accused other than the accused to whom it is attributed.

40. [61]

    The Court in Elomar referred with approval to R v Louden (1995) 37 NSWLR 683, where Allen J (with whom Newman and Simpson JJ agreed) accepted that a good deal of the evidence there in question did not implicate the appellant, in the sense of proving his participation in the conspiracy. His Honour held, however, that the evidence was admissible as circumstantial evidence of both the existence and the nature of the conspiracy alleged. His Honour explained that it was by other evidence that the appellant was shown to be involved.

41. [62]

    The Court in Elomar explained that “the evidence the subject of this ground of appeal was not tendered under the co-conspirators’ rule and was not subject to the limitation that it be evidence of acts or statements in furtherance of the conspiracy”.

42. [63]

    It is undoubtedly correct as the Court explained in Elomar that to classify particular items of evidence as “in furtherance of the conspiracy” may, in some cases, present difficulties. No attempt has been made in this case to undertake that exercise. The objection, in both instances, is in the nature of a global objection. Since the evidence was not tendered under the co-conspirators’ rule, but was tendered for a different purpose, that question does not arise. The evidence was amply able to prove the existence and nature of the conspiracy.

43. [64]

    The Court in Elomar also dealt with the alternative submission, that the evidence could only be tendered as admissions (against the accused to whom it was attributed) and, by reason of s 87(1)(c) of the Evidence Act, was admissible against others subject to the same limitation, that the act or statement be done or made in furtherance of the conspiracy.

44. [65]

    The Court accepted that evidence properly adduced for the purpose of proving the existence and nature of the conspiracy and not adduced as an admission is not subject to Part 3.4 of the Evidence Act. Elomar is authority for the proposition that the “admissibility of evidence tendered as admissions is the subject of Pt 3.4 of the Evidence Act.” It is true that in Elomar part of the Court’s reasoning was that s 87(1)(c) is an inclusionary rule which specifically permits, and requires, the admission of evidence tendered as an admission made with authority where it was made in furtherance of a common purpose. That is evidence that otherwise would be excluded by the hearsay rule. Section 87(1)(c) of the Evidence Act has nothing to say about the alternative basis of admissibility recognised in Ahern – that is, evidence going to the existence and nature of the conspiracy alleged.

45. [66]

    As I have said, the applicants’ submission is not consistent with the text of the Evidence Act. It is clear from the express language of the Act that evidence can be adduced for a non-hearsay purpose. Section 60 has that effect, in terms. Given the amendments to s 60(3), evidence of an admission adduced for a non-hearsay purpose is not admissible for a hearsay purpose in a criminal case as an exception to the hearsay rule. It follows, however, that s 60(3) specifically contemplates the admission of evidence for a non-hearsay purpose that would be capable of characterisation as an admission.

46. [67]

    I am unable to agree with the obiter remarks of Madgwick J in The Queen v GH (2000) 105 FCR 419; [2000] FCA 1618 at [78] which were relied upon by the applicants. Section 84 does not apply to evidence not adduced as an admission. The provisions of Part 3.4 are concerned only with the admissibility or exclusion of evidence of admissions that would otherwise have been excluded by the hearsay rule or the opinion rule. The Crown does not seek to rely upon the challenged evidence for any purpose that infringes either rule. In any event, I am bound by Dinh and Elomar to reject Madgwick J’s obiter remarks which did not command a majority of the Court in GH in any event. Those remarks are also distinguishable by reason of s 9(1) of the Evidence Act 1995 (Cth) which is much narrower in scope than s 9 of the Evidence Act 1995 (NSW). So much was acknowledged by Madgwick J. Even if I were not bound to conclude to the contrary, I respectfully disagree with Madgwick J. The exclusionary rule in s 84 is not applied to all evidence, however it is adduced, in a notional hierarchy of Evidence Act provisions.

47. [68]

    I have concluded that the evidence the subject of this objection, being adduced for the non-hearsay purposes identified in Ahern and Elomar, is not inadmissible by reason of s 84 of the Act. The acts and declarations of the applicants (in the context of the whole of the evidence in the trial) are 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 accept that the Crown relies on the same body of circumstantial evidence to prove both “limbs” of Ahern in this case. That is, I find that the Crown relies on the acts and declarations of the applicants to “prove both the fact of combination and their participation”: Ahern at 94. Acts and declarations led in that way are not relied on for any hearsay purpose and are not dependent on some circumstance to bring them within any exception to the hearsay rule.

48. [69]

    I am unable to accept that the correct characterisation of the Crown adducing this evidence is that s 84 is thereby “sidestepped”. I do not agree that Part 3.4 of the Evidence Act applies to evidence which is not adduced as evidence of an admission. Section 60(3) plainly contemplates that evidence can be led for a non-hearsay purpose which may also be capable of being characterised as an “admission”. The questions of high policy addressed by Bunning v Cross and The Queen v Ireland are not engaged here in determining if evidence adduced for a non-hearsay purpose meeting the description of evidence in Ahern is admissible.

49. [70]

    It is a different question, however, whether a specific direction about s 60(3) should be made about any particular piece of evidence or a more general order made under s 136 of the Evidence Act limiting the use the jury can make of particular evidence. Assuming that a direction of either kind is sought, there may be questions about the content of any direction given to the jury generally and about particular pieces of evidence. It may be that the complexity of any direction necessary to be given about a particular piece of evidence would be such that unfair prejudice to the applicants would be occasioned. Depending on the specific evidence pointed to, it may be established that an order excluding particular pieces of evidence under ss 135 or 137 of the Evidence Act should be made.

50. [71]

    Whilst I accept the Crown submission that the applicants have not identified how the challenged evidence identified in the 248 page document, or indeed any of the evidence that post-dates 1 February 2017, is or would be unfairly prejudicial, I do not rule out the possibility that I will be persuaded to make such a ruling excluding particular evidence.

51. [72]

    I propose to stand over the motion to 17 and 18 December 2020 to permit the applicants to consider this judgment and, if so advised, identify whether to seek a specific order under ss 60(3) and/or 136 of the Evidence Act and/or a direction from the Court about the non-hearsay use only which may be made of the evidence and to identify specific pieces of evidence which may be the subject of a specific application under ss 135 or 137 for exclusion.

52. [73]

    I have decided that it is inappropriate to address the additional issues that the applicants and the Crown debated about the application of s 84 on the hypothesis that my principal conclusion above is incorrect. This is because, even if I am wrong in my principal conclusion, the applicants have not addressed at least two related preliminary questions. First, the applicants have not addressed whether the evidence objected to amounts to an overt act of the charged conspiracies and the effect on any act or utterance which amounts to an element of the offence. An overt act of a conspiracy offence, 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, the Court of Criminal Appeal [1] held:

53. [74]

    Thus, to the extent that any of the acts and utterances objected to are overt acts of the conspiracies, the relevant acts and utterances are arguably not “admissions” but, rather, primary evidence relied on by the Crown as proof of the offences charged. It is undesirable to express a view about the proper operation of s 84 in this case without that factual foundation being established.

54. [75]

    The second, and related, matter not addressed by the applicants was the precise identification of the previous representations to which it is said that the hearsay rule applies. Whilst it was common ground that some (unidentified) utterances capable of amounting to admissions were made, I regard it as undesirable to express a view about the proper operation of s 84 without that factual foundation being established.

Conclusion and order

1. [76]

   I have concluded that evidence of acts or declarations of alleged co-conspirators may be adduced for a non-hearsay purpose. The subject matter, scope and purpose of the Evidence Act makes clear that evidence may be adduced for a non-hearsay purpose, even if that evidence is capable of characterisation as an admission. Section 60(3) of the Act is specifically addressed to evidence admissible for a non-hearsay purpose which is capable of characterisation as an admission. In the case of evidence meeting that description, s 60 does not apply to that evidence.

2. [77]

   No submission was made that evidence of any particular act or declaration sought to be adduced by the Crown for the non-hearsay purpose identified in Elomar was inadmissible, save that ss 84 and 90 were said to apply. Sections 84 and 90 apply only to evidence adduced as an admission. Sections 84 and 90 have no application in relation to evidence admissible for another purpose, unless that evidence is adduced as an admission.

3. [78]

   For the foregoing reasons, the notice of motion dated 1 December 2020 is dismissed to the extent it relates to ss 84 and 90 of the Evidence Act. The notice of motion dated 1 December 2020 is stood over for further hearing on 17 and 18 December 2020 to the extent it relates to ss 135 and 137 of the Evidence Act.