R v Cranston

Catchwords

[2013] HCA 27 Ahern v The Queen (1988) 165 CLR 87[1988] HCA 39 Allen v R [2020] NSWCCA 173 Beckett v R [2014] NSWCCA 305(2014) 315 ALR 295 Caratti v The Queen (2000) 22 WAR 527[2000] WASCA 279 Cranston v R [2020] NSWCCA 143 Deacon v The Queen [2019] NTCCA 21(2014) 316 ALR 206 Em v The Queen (2007) 232 CLR 67[2007] HCA 46 Gilbert v The Queen (2000) 201 CLR 414[2000] HCA 15 Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299[2010] NSWCA 34 Higgins v R [2007] NSWCCA 56 IMM v The Queen (2016) 257 CLR 300[2016] HCA 14 McDermott v The King (1948) 76 CLR 501[1948] HCA 23 Namoa v The Queen [2021] HCA 13(2021) 95 ALJR 396 Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37 R v Becerra (1976) 62 Cr App R 212 R v Beckett (2015) 256 CLR 305[2015] HCA 38 R v Blick [2000] NSWCCA 61[2017] HCA 24 R v JF [2009] ACTSC 104(2009) 237 FLR 142 R v LK (2010) 241 CLR 177

Judgment (20 paragraphs)

[1]

Introduction

The structure of these reasons is as follows: 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. secondly, I will set out my findings relevant in determining the ss 84 and 90 Evidence Act objections; 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. fourthly, I will identify the relevant principles in applying ss 135 and137 of the Evidence Act; 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. sixthly, I will address the relevant principles in identifying overt acts of a conspiracy charged under the Criminal Code; 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. 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.

[2]

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

Section 84 of the Evidence Act provides: 84 Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by - (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
"Admission" is defined in the Dictionary to the Evidence Act as meaning: a previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.
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.
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: "[234] We would conclude from the language of s 84, the statutory context and legislative history and the common law position when s 84 was enacted that in order to raise a s 84 issue, that there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct (cf Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 at 19 per Hodgson JA, Handley JA and Ipp JA agreeing). However it is not necessary that that evidence prove as a fact that an admission or its making were so influenced."
Secondly, the test for "influence" is not difficult to satisfy. As stated at [280]: "[280] … the question whether an admission was 'not influenced by' relevant s 84(1) conduct is not a stringent test. … As the earlier discussion demonstrates, it is not necessary that the s 84(1) conduct actually take place at the time the admission is made. Rather, the relevant inquiry to which s 84(1) directs the Court is as to whether any admission was not influenced by s 84(1) conduct. It is clear that that conduct may have occurred prior to any relevant interview and need not have been the conduct of those interviewing the relevant party. The question is whether such conduct did not have any influence at the time of the interview." (Emphasis added.)
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): "[241] In R v JF Refshauge J commented (at [37]) that because the effect of s 84 was 'automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety'. With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the 'admission and [its] making' were 'not influenced by' conduct of the nature identified. At best, as was said in R v Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving 'an expansive meaning to "oppression" in s 84'."
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: "[237] As we have said, under the common law voluntariness rule, the question was whether the will of the confessionalist was overborne by the allegedly improper conduct. This language is still used in some judgments. In Higgins v The Queen [2007] NSWCCA 56 at [28] Hoeben J (Sully J and Bell J agreeing) referred to the lack of evidence that '[the maker's] will was overborne in any way'. However, as Adams J observed in R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348 at 385 [120], that is not the relevant test under s 84. [238] The Macquarie Dictionary Online defines 'influence', relevantly, to mean 'modify, affect, or sway', while the Oxford English Dictionary Online refers to 'influence' as to 'affect the mind or action or; to move or induce by influence' and also 'to affect the condition of, to have an effect on'. Neither of these definitions evokes a particularly high test of causation."
The Court in Habib also referred, seemingly approvingly, to the following two cases on the meaning of "influence": 1. R v Ye Zhang [2000] NSWSC 1099, where Simpson J said: "[44] …However, s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible." Her Honour's observations were subsequently adopted by Hamill J in R v Sumpton [2014] NSWSC 1432, but with the caveat at [138] that "it may be more accurate to speak in terms of the oppressive conduct 'influencing' - rather than provoking or causing - the confession"; and 1. Higgins v R [2007] NSWCCA 56, where Hoeben J (with whom Sully and Bell JJ agreed) said: "[26] I accept that s 84 does not require the isolation of a single reason or a single incident of conduct provoking the confession. There may be a number of factors working together (R v Zhang [2000] NSWSC 1099, Simpson J)."
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: "[32] Section 84 will operate where the party seeking to adduce the admission cannot establish that it was 'not influenced by' the proscribed conduct. That connotes a causal relationship between the making of the admission and the conduct which has been described as 'not a stringent test', and which does not require that conduct to be the sole factor which influenced the making of the admission. It is not in dispute that the conduct of the covert operatives influenced the applicant in the making of the admissions. However, a distinction is properly drawn between admissions made as the consequence of perceived psychological pressure which is a response to an individual's predicament, and those which are the product of oppressive conduct." (Footnotes omitted.)
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: "… For this reason, s 84 of the [Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA)] has been described as having a deontological purpose directed to the protection of a suspect's basic rights, rather than a teleological purpose directed to the rejection of admissions which might be unreliable (ENULA, s 85) or a purpose directed to avoiding the contamination of court processes by unfairness (ENULA, s 90): see Greg Taylor, 'The Difference Between ss 84 and 85 of the Uniform Evidence Acts' (2019) 93 Australian Law Journal 53." [2]
At [33], their Honours quoted from Habib and noted that the term "oppressive" should not be given an overly expansive interpretation: "[33] The applicant does not suggest that undercover police engaged in violent, inhuman or degrading conduct within the meaning of the provision. The contention is that the conduct was 'oppressive'. Neither that term nor any of the other species of conduct referred to in s 84(1) are defined in the ENULA. The New South Wales Court of Appeal considered the scope of that term in Habib v Nationwide News Pty Ltd. The Court observed that the dictionary definition of 'oppressive' included 'burdensome, unjustly harsh … causing discomfort because uncomfortably great, intense'; and that the term 'oppression' was defined as 'the exercise of authority or power in a burdensome, cruel or unjust manner'. The concept of 'authority' in this context necessarily extends to the exercise of de facto authority, control and power in an oppressive manner even where it emanates from a non-official source. Oppressive conduct is not limited to physical conduct, and extends to encompass mental and psychological pressure. The assumption of unlawful powers of direction, control and detention may also amount to oppression in the relevant sense. In making that assessment, however, it is necessary to bear in mind that the term 'oppressive' is to be read eujsdem generis with the other terms in s 84(1)(a), and is not to be given an overly expansive interpretation." (Footnotes omitted.)
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: "[46] … That formulation was directed to what has come to be termed 'basal voluntariness' at common law, but it is unlikely that conduct which does not rise even to that level could, without more, reasonably be characterised as 'oppressive conduct' within the meaning of s 84 of the ENULA."
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: "[59] Of course, it is not enough to say in a general sense that covert 'scenario' operations do not constitute 'oppressive conduct' requiring the exclusion of confessions or admissions made in the course of such operations. It is necessary to give attention to the character and content of this particular operation, the context in which the admissions were made, and the applicant's personal characteristics and position in the matter." (Footnote omitted.)
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: "[60] … There was no actual criminal activity or violence involved in any of the scenarios which formed part of the ruse. The applicant's participation in each of those scenarios was free and voluntary. So much was apparent from the fact that the applicant declined to participate in some of those activities due to other commitments. … [62] There is nothing in the applicant's personal characteristics to suggest that he suffered from any vulnerability which made him susceptible to coercion or oppression… the trial judge characterised him as 'intelligent and careful'. There is no basis on which to impugn or question that characterisation. The applicant was an independent man of mature age with considerable life experience. He had been married twice and had lived in different parts of Australia working in various occupations requiring organisation and skill. He was running an active concreting business. He was not socially isolated from family or peers..." (Footnotes omitted.)
At [64]-[65], the Court made the following observations about the admissions and the circumstances in which they were made: "[64] The trial judge analysed the conversation from the applicant's perspective according to his belief at the time. He understood the 'boss' to be the head of a powerful criminal organisation and a prospective employer, and himself to be the prospective employee. The 'boss' said a number of things which led the applicant to believe that the organisation valued his skills and involvement. Although the 'boss' held the advantage as a powerful prospective employer, he did not abuse the advantage by threat or intimidation. The applicant was initially confident in both his bargaining position as a prospective employee and his successful disposal of the deceased's remains. That confidence was shaken by the assertion that the police were coming after the applicant. That put pressure on the accused to tell the truth. The show of anger by the 'boss' at the suggestion that he was a police officer reassured the applicant that he was not, but did not intimidate him. The trial judge found cautious support for that analysis of the applicant's position from what was said by the applicant in the conversation with another covert operative immediately following the meeting. We concur with that analysis. [65] Having regard to that characterisation, a number of observations can be made about that conversation and the admissions made. First, there was no duress or intimidation beyond the fact that the applicant considered the 'boss' to be a man of power and influence. Although the applicant suggested in a formal interview with police on 23 December 2014 that he thought the 'boss' was going to punch him at one stage during the course of the conversation, the audiovisual record of that meeting does not suggest that the applicant apprehended a physical threat. Secondly, during the course of that conversation the applicant came to the considered conclusion that he would benefit from saying what he did. Those potential benefits took the form of the financial advantage which he thought would come from membership of the gang and his belief that the gang could make his exposure to criminal liability for the murder of the deceased 'go away'. Thirdly, the applicant had free choice whether to stay or leave, and whether to speak or stay silent. The fact that he may have felt under pressure to disclose his involvement in the death of the deceased in order to stay in the gang requires no different conclusion." (Footnotes omitted.)
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: "[25] Oppressive conduct as countenanced by s 84 is distinct from the common law concept of oppression overbearing the will of an accused so as to make subsequent admissions involuntary. There can be a combination of factors operating to produce 'oppression' and the oppressive conduct is not limited to physical or threatened physical conduct. Intended mental or psychological pressure can amount to oppressive conduct. Causation is critical however. Perceived psychological pressure that is predicament related rather than conduct related cannot by definition be the product of oppressive conduct. It is a response to an individual's predicament only. Whilst the boundaries of 'oppressive conduct' are uncertain, I am positively satisfied that the answers given in the record of interview were not influenced by any oppressive conduct on the part of investigating police officers. …" (Footnotes omitted; emphasis added.)
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.
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.
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]).
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: "[32] In circumstances where there is a continuing relationship of violence or the threat of violence, the fact that on one particular occasion no violence was perpetrated does not mean that the admission, if made on that occasion, was not 'influenced by' violence or its threat. [33] Last, in a circumstance where domestic violence is being perpetrated, the continuing threat of violence towards the victim in such a relationship may constitute a threat of violence and fall within the terms of s 84 of the Act."
His Honour then continued to consider the meaning of "influence" in the context of s 84: "[38] 'Influence' is a broad term, which requires that the impugned is a cause for making (or the content of) the admission. The conduct needs to be a factor that is not wholly ephemeral, but need not be the major factor and other factors may also be causative."
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.

[3]

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

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. violence, specifically by a motorcycle gang (the violence threat); 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. 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).
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.
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.
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. 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. secondly, the statements and conduct reflected a state of mind already in existence prior to that date; and 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.
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.

[4]

Findings relevant to s 84 - the violence threat

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.
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: "MENON: Bro, Bro, bro sit down ROSTANKOVSKI: Sit down, I'll be honest, let's sit down I've got all boys all the Commo boys waiting downstairs they all want to come up and belt [the] fuck out of you guys"
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: "MENON: But, but D [Mr Rostankovski], with that, you're over reacting bro, can we all calm down for a second, like bro ... … MENON: bro to be honest with you, you, I feel like you're getting aggressive about this D … ROSTANKOVSKI: Jay's lucky he's not here the boys want to grab him"
Mr Menon later said, "Bro, I feel like you're being aggressive towards me … why is it you're aggressive towards me or Adam …"
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: "ROSTANKOVSKI: ..if you want to know the truth of what's going to happen to Tristian, he's not going to make it to next month. Up, after today, until I found out what he did ... ROSTANKOVSKI: … Tristan is going to cop it … … ROSTANKOVSKI: … I went off at him and said, don't you fucking dare. If you fucking do that I, I'll fucken kill ya. … ROSTANKOVSKI: I've already tracked him down, he's in Thailand. There a few boys I know there that are just waiting for me to call up and he ain't going to make it. He's finished. So, in regards to Tristian ... A.CRANSTON: ... (indistinct) ... ROSTANKOVSKI: ... he'll hurt so he'll learn. ROSTANKOVSKI: I told him, there's no hiding in another country man … he thought I'm in another country and it's too hard to get to him. It's not too hard. I already know where he is … I already know he's in Thailand, I got BFL [Brothers for Life] boys there because of that oh [they're] on the run from here and they said, we'll get him. … They all messaged me and said he just arrived in Thailand today and whatever, so. … I'll sort him out from there. People die in Thailand all the time ..."

[5]

Findings relevant to s 84 - the media/Adam Cranston's father threat and the controlled story threat

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. 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. 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.
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. the character and content of the threats; 2. the context in which the alleged admissions were made; and 3. the applicants' personal characteristics and position in the matter.
I make the following findings about those issues.

[6]

The character and content of the threats

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.
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.
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".

[7]

The context in which the alleged admissions were made

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.
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.

[8]

The applicants' personal characteristics and position in the matter

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.

[9]

Conclusion - absence of influence of the "threats"

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. 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. secondly, they would give the false appearance that it was the directors who were responsible for the alleged conspiracy, not the accused; and 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.
This is illustrated by the following statements made on 7 February 2017, six days after the approach by Mr Rostankovski: 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. 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.
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.

[10]

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

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.
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.
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.
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. Item 9: "ONLEY: We're fucked anyway, so it doesn't matter. … (indistinct simultaneous conversations) … ONLEY: the ATO are shutting us down anyway." 1. Item 10: "ONLEY: we're all fucked right so it doesn't matter. ROSTANKOVSKI: Pretty much, and um.." 1. Item 11: "ONLEY: Oh yeah, we're all fucked but it's a good extort. It's great, you've got us by the balls." 1. Item 12: "ONLEY: We're going to jail, it's, we're going to jail anyway because the ATO has already fucked us, they've already investigated us, so we're already done." 1. Item 13: "ONLEY: Are they gonna go to jail for us? ROSTANKOVSKI: No one's going to jail. They're going to say that they fucked everything up. ONLEY: Well we are. We are …" 1. Item 14: "ONLEY: How it's gonna stop us going to gaol MENON: yeah cause they need to go, some of them will need to go to interviews, some of them will need to plea like it's not as simple as that." These items (9-14) may be addressed together. Whilst I harbour significant doubts that Mr Onley was influenced in the slightest to make these utterances by the threat of violence, as he was not even present when it was made, given the proximity of the utterances to the threat of violence and the fact that the meeting with Mr Rostankovski, at least initially, was quite heated, I am not satisfied that these utterances were not "influenced", to the relatively low level required, by the threat of violence. 1. Item 15: "ONLEY: That's the fucking mail that that cooked us" 1. Item 16: "ONLEY: They, they either get paid… How it works… there's no then getting out of this." These items (15-16) may also be addressed together. These utterances are made in circumstances where I am satisfied that Mr Onley was negotiating with Mr Rostankovski, having recognised the significant opportunity afforded by Mr Rostankovski's approach. It is clear, in context, that the threat being addressed by Mr Onley arises from the ATO investigation which he was aware of long before 1 February 2017. It is only by the barest of margins that I have concluded that the Crown should not be permitted to adduce the utterances in items 15-16 as admissions. 1. Item 17: "ONLEY: That's not … (indistinct) … the ATO is not going to fucking give a shit. They're going to go yeah good, thanks ok, we've got them, now we're still going you, you, me and you. That's the problem" 1. Item 18: "ONLEY: Otherwise, we're already cooked so," 1. Item 19: "ONLEY: If we can make it that they … this is the deal right … we can make it that they put their hand up, it's all fucking me. I'll take it all, it's all, or I did it all, wrong I did it all or this that or other. And that's of value to us." These utterances, in context, were clearly direct references to the ATO investigation and Mr Onley's perception, which was not influenced by any threat of violence. Mr Onley's stated belief was that the directors may, for a payment, "put their hand up" and say to the ATO "it's all fucking me". Mr Onley explained that this was "of value to us". I am satisfied that these alleged admissions were not influenced by any threat of violence. 1. Item 20: "ONLEY: … (indistinct) … it's like we just go we're fucked anyway right MENON: That's it. ONLEY: We're all going down anyway, then why pay it… MENON: That's what I'm saying, if you push too hard … ONLEY: ... if you keep that formula ... (indistinct) ... MENON: ... if you get to that point where it's a don't pay, what's the point we're fuck. These guys are fucked anyway, like what I'm trying to say is ... ONLEY: But we're already cooked MENON: ... but what I'm trying to say is ... ONLEY: You're a week too late if you were two weeks earlier ... (indistinct)" 1. Item 21 (the portion of which is identified as an admission): "A. CRANSTON: … we're going to jail … … A. CRANSTON: … we're going to jail mate and" 1. Item 24 (the portion of which is identified as an admission): "ONLEY: … and out of jail" 1. Item 25: "ONLEY: … you're fucked if we pay, we're fucked if we don't pay." These items may be dealt with together. In context, these utterances were each concerned with the opportunity perceived by Messrs Onley and Cranston to have been afforded by Mr Rostankovski's demand for money, allegedly on behalf of the directors of the "bottom" companies. I am satisfied that these utterances were not "influenced" by the threat of violence. Rather, both Mr Onley and Mr Cranston were clearly conscious of the opportunity the demand afforded them to escape the threat of criminal sanctions. They were working on ways to ensure that the payment of money would insulate them from any possible criminal consequences of their conduct. This was to occur, as Mr Onley later explained, by creating additional "layers" the authorities would need to penetrate to effect criminal consequences upon them. I am satisfied that these alleged admissions were not influenced by any threat of violence. 1. Item 26: "ONLEY: Do you know that you're not personally liable for that yeah … ROSTANKOVSKI: No ONLEY: ... you know that you're not personally liable for ... ROSTANKOVSKI: Then we can take it. This is the only outcome I see where they ... (indistinct) ... ONLEY: ... this is where we can turn it into something it's worth the money get what I mean, otherwise ... ROSTANKOVSKI: which I why ... (indistinct) ... … (indistinct simultaneous conversations) ... ROSTANKOVSKI: ... and I'm left holding this thing till there's an escape ... ONLEY: Yeah. Because it doesn't solve them, it doesn't solve you ... ROSTANKOVSKI: They're likely ... (indistinct) ... ONLEY: ... you know what we're under right, you know what's going on? ROSTANKOVSKI: I do know what's going on, they, they ONLEY: We're getting all ... (indistinct) ... we're getting called in MENON: ... (indistinct) ... I've sent it to his mobile. ONLEY: Um, this isn't going to get rid of the ATO for us. ROSTANKOVSKI: Sorry. ONLEY: This isn't going to end it for us. You understand that right. ROSTANKOVSKI: It will once they sign the ... (indistinct) ... ONLEY: No not for us, we're already fucked, we're already linked, they're already investigating us, we're already done. ATO doesn't give a fuck if we've settled with the directors ..." Here Mr Onley noted that "this is where we can turn it into something" but "this isn't going to get rid of the ATO for us… this isn't going to end it for us". His statements that "we're already fucked, we're already linked, they're already investigating us, we're already done" are clear references to the ongoing ATO investigation, which Mr Onley was conscious about long before 1 February. Mr Onley was in these passages negotiating with Mr Rostankovski about what Mr Onley perceived as the opportunity the latter's demand afforded the alleged conspirators to escape the threat of criminal sanctions. It is significant that despite Mr Rostankovski's initial reference to the Comancheros waiting downstairs, there is not a word uttered by any of the alleged conspirators linking these negotiations of possible payments to any perceived outcome touching or concerning the Comancheros or the threat they might pose. Mr Onley at this time plainly did not regard that matter as influencing him in the slightest. As he said, the ATO were "already investigating us, we're already done. [The] ATO doesn't give a fuck if we've settled with the directors". This utterance by Mr Onley was not influenced by any threat of violence. 1. Item 27: "ONLEY: ... we're fucked, like we're fucked, we are fucked, one way or another it's over ok so, if this solve the problem well let's make it work if it solves a problem, and then it's worth something, otherwise what's the point, right cause we're fucked anyway. So we just go yeah well go dob us, turn it into a story and we'll just fight it for the next two years ... (indistinct) ... cause I don't think this is gonna solve it for us, I think this money ... ROSTANKOVSKI: The money will solve it. ONLEY: … we gonna got to get rid of, no it doesn't stop the ATO, you don't get it, I'm not worried about them, not worried about the fucking media. I'm worried about the ATO, that's the beast that never stops. That thing never fucking slows down. Yeah, it will create a lot of heat we'll get in the media it will be a fucking big story, but you know so is the twenty other stories everyday. I'm not, the threat of that is not my, not what I'm worried about, the threat of the ATO is what I'm worried about and ... ROSTANKOVSKI: ... (indistinct) ..." Here Mr Onley indicated, in the presence of Mr Rostankovski, that the threat of the ATO investigation was what he was worried about (being a threat that he had already indicated was one that the extorters had no power to effect). I am satisfied that these utterances were not influenced by the threat of violence. 1. Item 28: "ONLEY: Plutus has been paying the accounts, yeah but Plutus, Plutus is cooked. Like we were sh ... I came in here today before I knew about you. How we gonna shut it all down? We were fucked. We're already fucked. So nothing's improved my situation in terms of being fucked ... ROSTANKOVSKI: Yeah ONLEY: ... what the money yeah whatever. I don't give a shit, it's not about the money, it's about a stake attitude. It's whether I just go you know what, take the five million bucks, stick it under fucking shit, and do, do my three months in gaol. Okay, or pay to try to have this work where I don't have to go to jail. Cause if I'm going to jail anyway, what do I, what do I care, turn the heater up ROSTANKOVSKI: No, no one will go to jail ONLEY: No, no we're going to jail. You go and get it, it's not them." In context, the statements made by Mr Onley reveal that "I came in here today before I knew about you". The issue being addressed by Mr Onley at that time was, as he explained, "How we gonna shut it all down?". The utterances made were part of a negotiation between Mr Onley and Mr Rostankovski about the division of what counsel for Mr Menon described as the "kitty". The whole of the evidence makes clear that these utterances were not influenced by the threat of violence. 1. Item 29: "MENON: cause you're not, there clearly is a scheme, we all agree with that, but" Mr Menon was in this passage negotiating with Mr Rostankovski about what he regarded as an opportunity effectively to deal with the pre-existing threat of sanctions, including criminal sanctions, upon the alleged conspirators as a consequence of the ATO investigation. I am satisfied that this utterance was not influenced by the threat of violence. 1. Item 30: "ONLEY: Mate, I'll put my hand up, I'll go to jail. I'll have a good time, I'll fucken train every day. … (indistinct simultaneous conversations) ... MENON: Get in good shape. ONLEY: Yeah get in good shape. Fucking be away from the wife. Yeah it'd be great. I'll fucking go to jail for everyone. I'll say it's all me ... ANQUETIL: It doesn't look that good, bro ONLEY: Doesn't it ANQUETIL: It looks shit ONLEY: Dude, I've been in jail before A.CRANSTON: It's shit ONLEY: I've been in jail in the US ROSTANKOVSKI: The US? ONLEY: ... (indistinct) ... backpacking." If an objection was made to the admissibility of the italicised evidence that Mr Onley had been in gaol before, I would uphold it. The remainder of the conversation, however, is not influenced in any way by any threat of violence. If, even fleetingly, Mr Onley had the slightest concern about a threat of violence, his statement that "I'll fucking go to jail for everyone" would be inexplicable. I am satisfied that these utterances were not influenced by the threat of violence. 1. Item 31 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions): "ONLEY: Give me the five mil and I'll do my six months. I'll say it's all me, give them all the evidence, I'll fucking go forward. MENON: That's the other option ... seriously ... why, I, I can, let's explore every option, I'm just saying, D. ONLEY: Less stress if we can do it that way. ROSTANKOVSKI: You think six months ... (indistinct) ... ONLEY: I do twelve months. … ROSTANKOVSKI: … six months… ONLEY: Na, that's a maximum seven. You plead guilty. I do a plea deal with DDP MENON: Jay, Jay, sorry leave it, let's just. Let's ... ONLEY: I do three to six months. I get to do six, right, I do four months on a reduced sentence, I get out in six right fuck ... MENON: Let's, let's do this, just ... (indistinct) ... just get it done, let's just fucking make sure its all ANQUETIL: ... (indistinct) ... fucking, you can see we're trying right ROSTANKOVSKI: ... (indistinct) ... I know, I'm trying to, you know what I mean. ANQUETIL: Mate so, I'm just saying, that all. ... (indistinct simultaneous conversations) ... ANQUETIL: I'm trying to say, all I'm trying to say is just so you know and ... ONLEY: Keep him outta jail fucking ... (indistinct simultaneous conversations) ... ROSTANKOVSKI: Dev knows. Dev knows ... (indistinct) ... MENON: Come on, D, D, D ... (indistinct simultaneous conversations) ..." 1. Item 32 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions): "MENON: … if they're going to rat either way … … ROSTANKOVSKI: I think they're going to ... (indistinct) ... ONLEY: It doesn't matter if they wanted to rat or not, doesn't matter MENON: That's what I'm saying ROSTANKOVSKI: If they wanted to rat, they'd rat already ONLEY: Yeah, exactly" 1. Item 34: "ONLEY: It doesn't matter whether we settle with these guys or not, we're still fucked, right, so ..." 1. Item 35: "ONLEY: How do you make them take the hit for this because they ... ... (indistinct simultaneous conversations) ... MENON: Jay, we'll work out that after this" 1. Item 37: "ONLEY: And you know what, they do rat, they rat ... … (indistinct simultaneous conversations) ... ONLEY: Well guess what, they don't get paid ..." 1. Item 39: "ONLEY: … I'll jump on a fucking plane and I'm gone ah…" 1. Item 40 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as an admission): "ONLEY: You think this is gonna solve the rat but we've already been ratted." 1. Item 41: "ONLEY: We pay the ATO they rat it doesn't matter, so, so that's ... ANQUETIL: I, I know ..." 1. Item 42 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions): "ONLEY: So we just pay these guys and then we go to jail anyway, so what's the point? MENON: Jay ... … ONLEY: If they need a Patsie, I'll go, that's me" 1. Item 44: "ROSTANKOVSKI: I'll do six months, bro, you're looking at fucking ten years you dumb fuck ... (indistinct) ..." 1. Item 45: "A.CRANSTON: It wouldn't be, it wouldn't be ten years, your like, Rodney Adler they've swindled something like four hundred million dollars from like mums and dads and he did like a year and a half, man, so, if you went forward, Rodney Adler didn't go forward, he actually got found guilty. So, the, what Jay's saying, I, Jay, the thing is, between you and I, I don't think Jay would do it. The, the, do you know what I mean ..." 1. Item 50 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as an admission): "ONLEY: … we're already cooked" 1. Item 53: "ONLEY: or ... (indistinct) ... then we're fucked ... (phone ringing) ... ONLEY: … we're already cooked so how do we" 1. Item 54 (the following is an extract of the portions of this passage which the Crown seeks to rely upon as admissions): "ONLEY: … then we're fucked … we're already cooked ... ONLEY: … you're fucked … … ONLEY: Mate, the ATO subpoenaed all of us, we're all fucked, we're done." 1. Item 56: "ONLEY: we're all fucked we're done" 1. Item 57: "ONLEY: we're cooked, it's all over." 1. Item 58: "ONLEY: As soon as they sit with the ATO we're done!" 1. Item 59: "ONLEY: The ATO is fucking level five investigation, we're done." 1. Item 60: "A. CRANSTON: It solves the immediate problem though Jay, it just. … ONLEY: It solves a problem. A. CRANSTON: No, it's a, it's a … ONLEY: It solves them ratting … (indistinct) …" 1. Item 61: "ONLEY: You already fucked us! You already …" 1. Item 62 "ONLEY: We're gone!" 1. Item 65: "ONLEY: If they go to the ATO we are cooked," 1. Item 66: "ONLEY: could we get Azza back to jail so at least we can hangout? A. CRANSTON: Possible" All of these alleged admissions (at (21)-(43)) may be dealt with together. The central focus of the lengthy conversation was how best to protect the alleged conspirators from the possible consequences of the ATO investigation. In context, it is clear that what was being discussed was the need to ensure that the directors of the "bottom" companies did not participate in the enquiries already being conducted by the ATO, at least until they had committed themselves to a version of events favourable to the alleged conspirators. Not a word was said in this very lengthy conversation even hinting at a threat of violence being a relevant influence upon any of the utterances. The "threat" being addressed by the alleged conspirators was of long standing and arose from taxation events long prior to 1 February 2017. I find that the makers of the various utterances relied upon were not influenced in the slightest about a threat of violence in making any of the alleged admissions.

[11]

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

Section 135 of the Evidence Act provides: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
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: "[78] Section 135 has a number of features which should be identified at the outset. First, it is based on an assumption, namely that the evidence in question is otherwise admissible. Secondly, it confers a power to refuse to admit such evidence if a particular opinion is formed. Even if the power is engaged, it would seem to be discretionary, and the Court could still admit the evidence. Thirdly, the opinion involves a balancing exercise. That which is to be put into the balance on one scale is the probative value of the evidence, namely 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue': Evidence Act, Dictionary. A trial judge will frequently be asked to make rulings involving such an assessment, without being able to determine with any certainty the likely effect of the particular evidence, depending on the stage the trial has reached. In the other scale, the court must assess a 'danger' that the evidence might, if admitted, have one of three classes of effect. Fourthly, the power to reject the evidence will only be engaged if the probative value is 'substantially outweighed' by a danger of the kind identified in one of paras (a), (b) or (c)."
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.
Section 137 of the Evidence Act provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

[12]

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

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).
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.
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.
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.
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.

[13]

Items to which the applicants' oral submissions were addressed

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.
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.
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.
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.

[14]

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

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.
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] "[169] The primary judge found that the compelled interview of the applicant was admissible pursuant to the Evidence Act, ss 55 and 58 because it contained statements relied on by the Crown to prove both offences and were clearly relevant to those offences. Her Honour also found that the evidence was not otherwise excluded by the Evidence Act. In this regard, her Honour's primary view was that the Evidence Act, s 90 did not apply to exclude the interview and its contents because the statements made in the interview were 'not admissions but are primary evidence relied on by the Crown as proof of the offences charged'. Section 90 only relates to admissions. … [179] In my opinion, there was no error in her Honour's characterisation of the statements made by the applicant in the course of the compelled interview, that the two bank cheques were available to her for payment of stamp duty prior to the generation of the notice of assessment of stamp duty, as the primary evidence upon which the Crown seeks to rely. Those statements were allegedly false statements as to when she had obtained the cheques and are the subject matter of the charge on the second count in the indictment. The authorities to which the applicant referred all involved statements made by an accused person charged with an offence that did not involve the falsity of the statement itself. Rather, the statements made were said to be exculpatory, and therefore to constitute a consciousness of guilt of the offence charged." (Emphasis in original.)

[15]

Construction of the Code

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".
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.
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.
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: "[97] … The words 'conspires', 'conspiracy' and 'overt act' each had an established meaning in the criminal law at the time of the enactment of the Code. None is defined within the Code. The principle that the appellant calls in aid, that a code should be construed according to its natural meaning and without any presumption that it was intended to do no more than to re-state the existing law, is qualified with respect to the adoption in a code of a word or expression having an established meaning under the pre-existing law. A number of the relevant authorities are referred to by Spigelman CJ in his discussion of the topic. To these may be added the observations of Brennan J in Boughey v The Queen: 'It is erroneous to approach the Code [the Criminal Code (Tas)] with the presumption that it was intended to do no more than restate the existing law but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law including decisions subsequent to the Code's enactment. The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found but when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required.' (Citations omitted.)" (Footnotes omitted.)

[16]

Issue 7 - admissibility of items identified as "overt acts"

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.
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.
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.
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.

[17]

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

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.
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.
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: "[39] In a case where s 135(c) is relied upon I must conduct a balancing exercise, which involves taking a number of steps. [40] Firstly, I must assess the probative value of the evidence. The term 'probative value' is defined in the Dictionary to the Act in the following terms: Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. [41] The second step in the process is to assess the danger that the evidence might cause or result in an undue waste of time. [42] The final step in the balancing exercise is to determine whether the probative value of the evidence is substantially outweighed by such danger. If I am satisfied that it is, the evidence may be excluded. [43] In carrying out that balancing exercise and in the context of the present case, it is important to emphasise the following: (i) the purpose for which the evidence is sought to be tendered in the accused's case is to establish that the accused accessed material, other than extremist material, through the internet; (ii) the fact in issue to which that evidence is said to go is whether the accused had the requisite intention to commit the offence with which he has been charged; (iii) the content of what the accused accessed is to be distinguished from the fact that he accessed it. It is for the purpose of proving the latter that the evidence is sought to be tendered; (iv) it is accepted by senior counsel for the accused that the fact that the accused accessed material other than extremist material has been the subject of evidence from Detective Victor; (v) it is also accepted by senior counsel for the accused that the fact that the accused accessed material other than extremist material can be established in another way, namely by tendering schedules either in the form of those prepared by the Crown, or in some modified form; and (vi) it is also accepted by senior counsel for the accused that the fact that the accused's accessing of such material can be established in that alternative way is relevant to the exercise of my discretion under s 135(c). [44] At common law, evidence which, although possibly relevant, would involve a waste of the Court's resources out of all proportion to the probable value of the results, could be excluded in the exercise of the Court's discretion on the basis that it was too remote, or collateral to the main inquiry In D F Lyons Pty Limited v Commonwealth Bank of Australia (a case determined prior to the enactment of s 135(c)) it was accepted that there was a common law discretion to refuse to enter upon a burdensome inquiry, from which there might be no substantial countervailing benefit in assisting the resolution of the primary issues before the Court. [45] Section 135(c) reflects these common law principles. It applies to all evidence, including the evidence sought to be adduced by an accused in a criminal trial. Whilst there is authority to support the proposition that a Court will be cautious in relying on the section as a basis for excluding evidence in an accused's case, that is not to say that the section can never operate in such circumstances. [46] Carrying out the balancing exercise under s 135(c) necessarily involves weighing 'essentially incommensurable factors'. At the same time, the balancing exercise involves taking several distinct and well-defined steps, the first of which is an assessment of the probative value of the evidence. [47] In my view, for a number of reasons, the probative value of the content of what was accessed by the accused is low. The fact that the accused accessed (for example) a pornographic video, as opposed to extremist propaganda, is relevant, and may bear upon a relevant fact in issue, namely whether he had the requisite intention to commit the offence. However, the content of that material, described by senior counsel for the accused as involving people 'reacting to one another in various ways' has little or no bearing on that fact in issue. Similarly, the fact that the accused accessed a UFC video, as opposed to extremist propaganda, is relevant, and may bear on the same fact in issue. But the fact that that video depicts, as senior counsel described it, images which render it 'hard to believe that human beings would engage in (it)' similarly has little or no bearing on that (or for that matter, any other) fact in issue." (Footnotes omitted; emphasis in original.)

[18]

Conclusion and orders

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

[19]

Endnotes

R v Cranston [2020] NSWSC 469 and Cranston v R [2020] NSWCCA 143 involved a pre-trial Dietrich application by Mr Adam Cranston which is no longer relevant.
In that article, the author opines at 59 that "[s] 84 is deontological, not teleological: it is about what is right and wrong, not about what is useful and reliable. It points beyond the immediate purposes of the criminal law to other, greater values; it is an end in itself". This is based on the fact that s 84 excludes admissions wherever the admission is influenced by oppression; there is no exception for admissions that are true. Reliability is therefore irrelevant under s 84.
In addressing this document for ease of reference I will use the page references in the "References to species of threats" document rather than any other identifying marker.
Item 243 is of a similar character (Lauren: "… that's what we could say, Peter, and he died, we just know that James, this James called and said he was doing, getting us to do stuff on behalf of Peter").
Reversed, but not on this issue, in R v Beckett (2015) 256 CLR 305; [2015] HCA 38.

[20]

Amendments 22 March 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2023

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