R v Cranston

The notices of motion

1. Three notices of motion were filed for the purposes of the hearing conducted on 14 and 15 February 2022: 1. on 1 February 2022, Mr Adam Cranston filed a notice of motion seeking that certain material contained in witness statements, SMS communications and evidence recorded by telephone intercepts and surveillance devices be excluded from evidence; 2. on 2 February 2022, Mr Menon filed a notice of motion seeking the exclusion of questions and answers in the record of interview between Federal Agent Williams and Mr Menon on 17 May 2017 wherein Mr Menon answered "I decline to answer at this time", or words to that effect; and 3. on 3 February 2022, Mr Willmott filed a notice of motion seeking the exclusion of certain evidence recorded by telephone intercepts and surveillance devices.
2. The Crown responded to the notices of motion filed by Messrs Menon and Willmott on 10 February 2021. The notice of motion filed by Mr Menon was resolved between the parties before the 14 February hearing. The notice of motion filed by Mr Willmott was resolved in part. I address the evidence that remains in dispute below.
3. The Crown responded to the notice of motion filed by Mr Cranston on 11 February 2022. Whilst a number of the objections were resolved between the parties, there remained a large number of issues in dispute which I now turn to.

Mr Cranston's notice of motion

1. Mr Cranston sought the exclusion of evidence contained in: 1. certain witness statements (Annexure A to the notice of motion); 2. certain records of SMS communications (Annexure B to the notice of motion); 3. some of the telephone intercept transcripts (Annexure C to the notice of motion); and 4. some of the surveillance device transcripts (Annexure D to the notice of motion).
2. As I have said, a number of the objections were resolved prior to the hearing. I will only address the items of evidence that remain in dispute.

Annexure A: objections to proposed oral evidence of Crown witnesses

1. Before descending into the detail of this topic an overall observation is appropriate; that is, the statements served by the Crown were essentially for the purposes of giving proper notice to the accused of the evidence to be adduced from that witness. Some of the expression in those statements was inelegant and rather suggested that evidence was to be adduced from the witnesses about another person's state of mind or that the witness would be asked to summarise what another party intended to convey in the course of a lengthy conversation. I have indicated below that I would not permit the Crown to lead evidence falling within that description but that I would permit the Crown to adduce direct evidence from alleged co-conspirators about their understanding of how the scheme operated and certain terms of art that they themselves used and heard others using.
2. With those general observations in mind I turn to the outstanding objections.

Objection A2: Statement 20/2/2020 para 214(n)

1. Mr Cranston objected to what was described as [redacted] "opinion" about the conclusions that she could draw from the instructions given by Mr Cranston and Mr Onley to "move $30,000 per week to 'Prescott Page' and $15,000 per week to 'G&T'". The sentence objected to reads: "I took this to mean that Adam had access to funds in the bank accounts of those companies." Mr Cranston contended that this is inadmissible as evidence about Mr Cranston's state of mind. It was submitted that there is no difference between [redacted] own "state of mind" and her "opinion", and if there was a difference, neither would be relevant.
2. I would reject an attempt by the Crown to adduce evidence in this form as opinion evidence. It may be, however, that evidence of [redacted] state of mind is relevant in proper context to something that she observed or did as part of the alleged scheme. That is, evidence about [redacted] understanding of this aspect of the alleged scheme is relevant circumstantial evidence. I would permit that evidence, limited to [redacted] understanding, to be adduced.

Objection A6: Statement 23/4/2020 para 48

1. A number of the paragraphs in the second statement prepared by [redacted] qualify the evidence provided in the earlier statement of 20 February 2020. At para 48 of the second statement, [redacted] notes that she referred to "the 60% calculation as being a 'target'". Mr Cranston objected to the sentence that follows: "This should be read as a 'reference' as I don't believe the intention was ever to reach 60% of the tax liability being paid". In context, [redacted] describes the weekly meetings that she attended and the instructions that she and others were given at those meetings. Mr Cranston contended that this is inadmissible evidence of [redacted] opinion about the intention of the accused.
2. I will permit the Crown to adduce this evidence of [redacted] state of mind as being relevant to things she herself did and meetings that she herself attended. [redacted] was a participant in the conversation and she was tasked with carrying out instructions about payment.

Objection A7: Statement 23/4/2020 para 76(b)

1. [redacted] statement provides that "[d]ue to the level of detail in the instructions from Dev, I formed the opinion that this plan had been formed at the director level, being Adam, Jay and Dev".
2. Mr Cranston contended that this is opinion evidence about someone else's state of mind as well as opinion evidence about the guilt of the accused. It was submitted that the Crown should not be permitted to lead from the witness her opinion that those instructions must have come from the director level, based on information given to her by one person (Mr Menon). Mr Cranston submitted that this evidence is inadmissible opinion evidence.
3. It was common ground that there could be no objection to [redacted] giving evidence that Mr Cranston was present at that meeting, where the detailed directions were given by Mr Menon.
4. I will allow the Crown to adduce evidence about [redacted] state of mind about the source of instructions. That evidence is relevant to explaining things that [redacted] did and said in the course of carrying out the alleged scheme.

[redacted]

1. A brief reflection about an aspect of [redacted] evidence is necessary to understand my rulings here. [redacted] was responsible for a design feature of the alleged scheme, sometimes referred to by the parties as the "glitch", by which funds which should have been remitted to the ATO were instead diverted at the direction of the alleged conspirators. [redacted] can give direct and relevant evidence about the operation of the scheme and the role of various persons and companies in the alleged scheme.

Objection A14: Statement 24/4/2020 para 303(c)

1. This evidence is a commentary on a recorded phone call between Messrs Cranston and Onley on 18 November 2016 (pp 275-7 of the telephone intercept material) about [redacted] conduct. [redacted] was not a party to this conversation.
2. Mr Cranston contended that this evidence was about [redacted] understanding or interpretation of what others were talking about. Mr Cranston submitted that it is not permissible for the Crown to ask [redacted] to interpret telephone conversations to which he was not a party as this would be inadmissible opinion evidence. The proposed evidence would offer an opinion about what the speaker meant or intended to convey. It was further submitted that the meaning that a conversation (to which [redacted] was not a party) conveyed to [redacted] is not relevant to the proceedings: Petch v The Queen (2020) 103 NSWLR 1; [2020] NSWCCA 133.
3. I agree with the submission made by Mr Stratton SC, as far as it goes. It does not follow that evidence on this topic is inadmissible. It was ultimately common ground that Mr Stratton SC would not object to the witness giving evidence about his understanding of what the "glitch" was. Further, evidence may be adduced from [redacted] about the meaning of terms regularly used by the alleged conspirators and the design features of the alleged scheme. As long as the questioning is limited in this way, I will permit [redacted] to be asked about these matters.

Objection A15: Statement 24/4/2020 para 305(c) to (g)

1. This evidence also relates to the telephone conversation of 18 November 2016 transcribed at pp 275-7 of the telephone intercept material. Mr Cranston contended that this evidence is about [redacted] understanding or interpretation of what others were talking about. Mr Cranston made this objection in the same way as objection A14 above on the basis that the witness was not a party to the conversation.
2. For much the same reasons I would reject an attempt to adduce evidence about the meaning that a conversation (to which [redacted] was not a party) conveyed to [redacted]. I would, however, permit the Crown to adduce evidence from [redacted], by reference to the matters discussed in the call, about the design and operation of the scheme that [redacted] was involved in.
3. I will permit the Crown to adduce evidence by drawing [redacted] attention to particular passages. For example, [redacted] will be permitted to give evidence to the effect that he did not have any day-to-day control of Plutus and did not have any "side deal" with Mr Onley. He will also be permitted to give evidence about the regular usage amongst the alleged conspirators of terms such as the "glitch" and the meaning of that term.

Objection A16: Statement 24/4/2020 para 329(p)

1. This evidence relates to a comment made by [redacted] in a recorded conversation between alleged conspirators about the success of the Plutus scheme in the marketplace (24 January 2017, p 427 of the surveillance device transcripts). Mr Cranston contended that this evidence is about [redacted] understanding of a discussion between other people. It was submitted that the proposed evidence is opinion evidence interpreting what another person is referring to and intending to convey in the conversation. It was submitted to be irrelevant and inadmissible: Petch.
2. Whilst I will not permit the Crown to adduce evidence of [redacted] understanding of what was meant by others, [redacted] will be permitted to give evidence about matters within his own knowledge, including the success or otherwise of the Plutus model in the marketplace.

Objection A17: Statement 24/4/2020 para 339(c) to (g), (i) to (n)

1. This evidence relates to the conversation recorded on 27 January 2017 (p 480 of the surveillance device transcripts). Mr Cranston contended that this evidence is about [redacted] understanding of what others were talking about, including an interpretation of what Mr Cranston meant when referring to "three people being paid '180' a month". It was submitted that [redacted] was attempting to give an opinion about what other people meant when they made various statements, and that those opinions are irrelevant and inadmissible because it is for the jury to determine what the speakers meant.
2. I will allow most of the evidence to be adduced. [redacted] is permitted to give evidence about what he said and did, and what he saw and heard others say and do, in relation to the alleged conspiracies. I will not, however, permit the Crown to adduce evidence of [redacted] understanding of what was meant by others. I reject paras 339(j) and (l) as being an interpretation of what Mr Cranston meant.
3. In relation to para 339(e) - first and second sentences - I will permit questions about what [redacted] heard, said and did in the context of developing the scheme, but will reject questions solely limited to an interpretation of what Mr Cranston meant.
4. The remaining evidence is admissible.

Objection A18: Statement 24/4/2020 para 342(a), (b), (e), (k) and (l)

1. This evidence relates to the conversation of 30 January 2017 at p 731 of the surveillance device material. Mr Cranston contended that this evidence is about [redacted] understanding of what others were talking about and interpretation of what was meant by various people including Mr Cranston. It was submitted that the evidence is irrelevant and inadmissible for the same reasons as objection A17.
2. I will allow the evidence to be adduced. [redacted] is permitted to give evidence about what he said and did, and what he saw and heard others say and do, in relation to the alleged conspiracies. In saying that, I will permit [redacted] to be asked questions about what he heard, said and perceived in the context of developing the scheme, but will reject questions solely limited to an interpretation of what Mr Cranston meant.

Objection A19: Statement 24/4/2020 para 359(p), (v), (hh), (nn), (uu), (vv), and (ww)

1. This evidence relates to the conversation of 7 February 2017 (p 1042 of the surveillance device material). [redacted] was present during this conversation. Mr Cranston contended that this evidence is about [redacted] understanding of what others were talking about and the concerns of other people. For the reasons expressed for objection A17, it was submitted that this evidence is irrelevant and inadmissible.
2. I will permit evidence to be adduced on the matters in paras 359(p), (uu) and (vv). [redacted] is capable of giving direct evidence of the way that the scheme was operating.
3. Paragraph 359(ww) involves an account of the discussion between alleged conspirators, in which [redacted] was a participant, about the operations of the Plutus scheme. [redacted] played a central role in the alleged scheme and had firsthand knowledge of the corporate structure and the cashflows. [redacted] was in a position to make observations about the ease of tracing money the subject of the alleged scheme. I will permit evidence to be adduced on the matters addressed in this sub-paragraph.
4. I reject paras 359(hh) and (v) which are solely directed to an interpretation of what Mr Menon and Mr Onley meant.
5. In relation to para 359(nn) I will permit [redacted] to be asked questions about what he heard, said and perceived in the context of developing the scheme, but will reject questions solely limited to an interpretation of what Mr Cranston meant.

Annexure B: SMS communication objections

1. These objections relate to the contents of SMS messages sent between various persons.
2. Several objections relate to evidence of enquiries made or discussions had about the purchase of luxury sports cars and an aircraft. The Crown seeks to rely on this evidence as circumstantial evidence relevant to the money laundering count.
3. Senior counsel for Mr Cranston made the global submission that, if it was relevant, the evidence of Mr Cranston spending money on "luxury toys" and putting those assets in the names of the various companies within the corporate structure was prejudicial.
4. In general, I have concluded that evidence about "luxury toys" is relevant to the money laundering count. I will address the subject of alleged unfair prejudice in addressing the specific objections below.

Objection B1: Communications between Adam Cranston and Peter Larcombe, pp 149-50

1. This evidence relates to an exchange between Mr Cranston and Peter Larcombe, in part about Mr Madison and a woman named Toni. Mr Cranston contended that this evidence, particularly in its references to "Toni", is irrelevant and prejudicial.
2. I will exclude the evidence about "Toni", which is not probative but is unfairly prejudicial.
3. I will allow the Crown to adduce the balance of the evidence, which is relevant to the nature of the relationship between Mr Cranston and Mr Larcombe. The evidence is relevant because: 1. the messages reveal aspects of the relationship between Mr Cranston and Mr Larcombe. In particular, they reveal their relative influence and power with respect to the others and hence are relevant to and probative of an issue in the case arising on the defence case statements; and 2. the exchanges include relevant references to making sure you "get paid", making "sacrifices" for the business, "dealing with shit" and taking control. These references are relevant to circumstantial proof of the Crown's case.

Objection B2: Communications between Adam Cranston and Peter Larcombe, pp 154-5

1. These messages between Messrs Cranston and Larcombe are about an unidentified claim that Messrs Cranston and Onley had paid to have Mr Larcombe murdered, which Mr Cranston immediately denied. Mr Cranston contended that this evidence is extremely prejudicial and irrelevant.
2. The Crown agreed not to adduce any evidence, including these messages, to suggest that Mr Cranston was somehow involved in Mr Larcombe's death or to suggest that the death was suspicious. I will reject the "murder" reference but allow the balance of the evidence the subject of objection B2.
3. This is because the remainder of the messages, in context: 1. reveal relevant and probative evidence about the context in which the Plutus scheme was operating; and 2. are relevant to the nature of the relationship between Messrs Cranston and Larcombe, which is an issue in the trial raised by most of the accused, including Mr Cranston.
4. The danger of any unfair prejudice may be dealt with by an appropriate direction to the jury.

Objection B3: Communication between Adam Cranston and Tim Wine, p 180

1. These messages reveal that Mr Cranston purchased a dozen bottles of wine at $85.50 each, totalling $1,026. Mr Cranston contended that this evidence is irrelevant and prejudicial.
2. I will allow the evidence. The messages are relevant to the Crown case about money laundering. They provide circumstantial evidence about some expenditures made by Mr Cranston. To the extent that evidence leads to a danger of unfair prejudice, it will be addressed by an appropriate direction to the jury.

Objection B4: Communications between Adam Cranston and Aaron, Synep Racing, p 182

1. In this message, Mr Cranston states that he has found a few good "ones" (cars) in Europe for "under 200". There is no suggestion that he has purchased any of the cars or a discussion of doing so. Mr Cranston contended that this evidence is irrelevant and prejudicial.
2. The Crown submitted that the evidence is replete with references to Mr Cranston's cars and racing and is not unfairly prejudicial. Mr Cranston's interest (including financial) in expensive assets is central to the Crown's case (in particular, the money laundering case). The Crown submitted that the evidence is relevant and probative.
3. I will allow this evidence. The evidence, which provides a link between Mr Cranston and Prescott Page and G&T Holdings, is circumstantial evidence highly relevant to the Crown case. To the extent that evidence about the purchase of relatively expensive cars leads to a danger of unfair prejudice, it will be addressed by an appropriate direction to the jury.

Objection B5: Communications between Adam Cranston and 'Steph R 1', pp 183-4

1. These messages involve an exchange between Mr Cranston and the vendor of a motorcycle that Mr Cranston had purchased. They do not disclose the price but confirm that Mr Cranston has paid for it and that he requests the receipt be made out to "G & T Holdings Pty Ltd".
2. Mr Cranston contended that this evidence is irrelevant and prejudicial. It was submitted that there is no evidence that any of the conversations related to monies which were obtained from a fraud upon the Commonwealth.
3. I will allow the evidence. This evidence provides proof of a receipt being made out to one of the entities directly relevant to the money laundering charge. It provides direct evidence of the relationship between Mr Cranston and G&T Holdings and forms part of the Crown's circumstantial case.
4. To the extent that evidence about the purchase of relatively expensive motorbikes leads to a danger of unfair prejudice, it will be addressed by an appropriate direction to the jury.

Objection B6: Communications between Adam Cranston and Nick Cutts, pp 185-6

1. These messages refer to Mr Cranston using and chartering an aircraft. Mr Cranston contended that this evidence is irrelevant and prejudicial. It was submitted that there is no evidence that any of the conversations related to monies which were obtained from a fraud upon the Commonwealth.
2. The Crown submitted that the Crown's circumstantial case against Mr Cranston included his interest in an aircraft, and thereby his use of aircrafts.
3. I find that this evidence is relevant to and probative of Mr Cranston's activity in this field, and is also relevant circumstantial evidence tending to establish his financial circumstances and control of money and assets. I will allow the evidence.
4. To the extent that evidence about the chartering of aircraft leads to a danger of unfair prejudice, it will be addressed by an appropriate direction to the jury.

Objection B7: Communications between Adam Cranston and David Shield, pp 203-4

1. These messages contain evidence about Mr Cranston's relationship with G&T Holdings, Prescott Page and PPA SA Pty Ltd. The messages relate to the "wrapping" of GT3 and GT3RS vehicles for racing and invoicing to those companies. Mr Cranston contended that this evidence is irrelevant and prejudicial. It was submitted that there is no evidence that any of the conversations related to monies which were obtained from a fraud upon the Commonwealth.
2. The Crown submitted that Mr Cranston's relationships with those companies and the cars is part of the Crown case, particularly in relation to the money laundering charge. It was submitted that the messages are plainly relevant as direct evidence of the agreement and overt acts.
3. I find that this evidence is relevant to and probative of Mr Cranston's activity in this field as it is relevant circumstantial evidence tending to establish his financial circumstances and control of money and assets. I will allow the evidence.
4. To the extent that evidence about expensive cars leads to a danger of unfair prejudice, it will be addressed by an appropriate direction to the jury.

Objection B8: Communications between Adam Cranston and 'Adrian GT3', pp 205-6

1. These messages reveal that Mr Cranston purchased a car (MV-991) for "262k", which Mr Cranston asked to be put in the name of "prescottpage pty Ltd". Mr Cranston contended that this evidence is irrelevant and prejudicial. It was submitted that there is no evidence that any of the conversations related to monies which were obtained from a fraud upon the Commonwealth.
2. I find that this evidence is relevant and probative of Mr Cranston's activity in this field and is also relevant circumstantial evidence tending to establish his financial circumstances and control of money and assets. I will allow the evidence.
3. To the extent that evidence about expensive cars leads to a danger of unfair prejudice, it will be addressed by an appropriate direction to the jury.

Objection B9: Communications between Adam Cranston and +61414278476 p 207

1. This message reveals that Mr Cranston was sent the name "Angela", a log-in (ppaangela) and password (versace112). The Crown suspects that the telephone number belonged to somebody connected with Mr Rostankovski. Mr Cranston contended that this evidence is irrelevant. The Crown submitted that the reference to "Angela" is a reference to Angela Yeoland, who was a director of PPA Contractors Australia Pty Ltd (formerly Uneek).
2. Mr Cranston submitted that in Ms Yeoland's statement to police, she did not state that she ever met the accused Mr Cranston, or anyone matching his description, and did not state that she ever communicated with him. It was further submitted that there is no evidence that she used that telephone number.
3. The Crown submitted that Mr Cranston's relationships with various corporate entities in the Plutus scheme is in issue, and this message is relevant because Ms Yeoland was a "straw director" (that is, a director in name only) of PPA Contractors Australia Pty Ltd (formerly Uneek). It was submitted that the evidence is relevant to and probative of Mr Cranston's relationship with that company.
4. I reject the tender of this evidence. There is no evidence that this is a log-in of any significance to the Crown case. The probative value of the evidence is low. If further information comes to light about the log-in and phone number, I will give the Crown an opportunity to resubmit the tender.

Annexure C: objections to telephone intercept material

1. A large number of the objections to the telephone intercept material related to conversations about Mr Cranston's interest in expensive cars (objections C8, C9, C10, C14 and C19). Mr Cranston submitted that this evidence is not relevant to the issues at trial, and this evidence falls into a different category to the SMS communications where there are discussions of the purchase of cars. The evidence in annexure C was said to be much less probative.
2. Mr Cranston's primary objection to this material was that his interest in cars does not go to any issue in the trial. It was submitted that it is irrelevant whether monies paid to Mr Cranston were spent on the day to day necessities of life or were spent on champagne and expensive cars. The Crown must prove that the monies paid to, or at the direction of, Mr Cranston, and for his benefit, were monies to which he had no honest belief that he was entitled.
3. The Crown's primary submission was that this evidence is relevant to the Crown's circumstantial case relating to the money laundering count.

Objection C8: Conversation Adam Cranston and Chris Guillan 29 November 2016 CN 8140. Compilation pp 332-343

1. This evidence involves a discussion about expensive cars. The tape covers 12 pages of transcript. Mr Cranston submitted that the evidence is irrelevant because it records a discussion of the use of cars instead of the purchase of cars. Even if the evidence is relevant, Mr Cranston submitted that it should be excluded under s 135(c) of the Evidence Act as being a waste of time.
2. The Crown submitted that the conversation is relevant, probative and not unfairly prejudicial because it discloses aspects of the relationship between Mr Cranston and various assets, particularly the cars mentioned. It was submitted that evidence of that relationship is relevant to establishing the Crown's money laundering charge. The Crown submitted that the whole of the conversation provides relevant context, even though there is only some direct discussion of the relevant assets. The Crown further submitted that the evidence is relevant because it discloses the nature of the relationship between Mr Cranston and Jay Kendrick, who is alleged to have played a role in the Plutus operations. Mr Kendrick is mentioned once in the Crown Case Statement and will be called as a witness in the trial.
3. I will allow the evidence. The references to driving the Porsche, picking the Porsche up, racing the Porsche and so on are relevant to and probative of the Crown's money laundering case. To the extent that evidence about expensive cars leads to a danger of unfair prejudice, it may be addressed by an appropriate direction to the jury.
4. I accept the Crown submission that the references to Mr Kendrick are potentially significant in the Crown's money laundering case and are admissible.
5. I do not regard any of the evidence as leading to a waste of time: s 135(c) of the Evidence Act.

Objection C9: Conversation Adam Cranston and Dev Menon 30 November 2016 CN 8635. Compilation p 361

1. Mr Cranston submitted that this discussion of expensive cars is irrelevant because it relates to a car purchased before the alleged conspiracy.
2. The Crown submitted that the comments made by Mr Cranston at the bottom of p 361 about his relationship with the vehicle are relevant, probative and not unfairly prejudicial in establishing the money laundering count.
3. Senior counsel for the Crown assured me that there is other evidence in the Crown case establishing that this car was purchased after the commencement of the alleged conspiracy and proving the way in which the car was purchased. On that basis, I will allow the evidence. If that turns out not to be the case, I will permit Mr Cranston to reagitate the objection.
4. What is said in these recordings about Porsches also sheds some light on the text messages about Porsches and the use of the corporate names into which invoices were to be put. It is admissible for that additional reason.

Objection C12: Conversation Adam Cranston and Chris Guillan 9 December 2016 CN 10507 Compilation pp 436.7-7

1. This is evidence of a discussion between Mr Cranston and Mr Guillan, a director of G&T Holdings, about expensive cars. In the conversation, Mr Cranston refers to "my Porsche" which he says G&T Holdings paid for. Mr Cranston submitted that this discussion is irrelevant and prejudicial. The Crown submitted that the evidence is relevant, probative and not unfairly prejudicial in establishing the Crown's money laundering case.
2. I will allow the evidence. To the extent that evidence about expensive cars leads to a danger of unfair prejudice, it may be addressed by an appropriate direction to the jury.

Objection C14: Conversation Adam Cranston and Christopher Guillan CN 11544 Compilation pp 450-452.9

1. Mr Cranston submitted that this discussion of Porsches is irrelevant and prejudicial. Mr Cranston refers to purchasing three Porsches in the space of two months: "I am going to get access to some … new toys now."
2. The evidence about acquiring new cars is relevant to the Crown case. I will allow the evidence. To the extent that evidence about expensive cars leads to a danger of unfair prejudice, it may be addressed by an appropriate direction to the jury.

Objection C15: Conversation Adam Cranston and Aaron Paul 6 January 2017 CSN 15510 Compilation pp 541-542.8

1. This recording is of a phone call between Mr Cranston and iiNet wherein Mr Cranston pretends to be "Jay Kendrick" and gives the address of a property at Vacy to an iiNet representative.
2. Mr Cranston contended that the evidence is irrelevant. If Mr Cranston's relationship with Jay Kendrick is relevant, Mr Cranston submitted that it is only marginally relevant and not an issue in the case. Mr Cranston further submitted that this recording could only be evidence of bad character generally, and that such evidence is not admissible: Evidence Act, s 97. It was submitted that the Crown case provided no explanation as to why Mr Cranston was giving a name other than his own to speak to iiNet.
3. I have concluded that the telephone call is highly probative. Mr Kendrick will be called as a witness in the Crown case. His statement of 7 June 2017 deals directly with instructions he received from Mr Cranston about money laundering. His statement also deals with instructions about the purchase of the property at Vacy, which was purchased on Mr Cranston's instructions but in a corporate name. Mr Kendrick was the "straw" director of that company.
4. I will allow this evidence, which is relevant to the Crown case as a significant circumstantial link between the two men. The evidence is not admissible as evidence of Mr Cranston's bad character generally. To the extent that this evidence leads to a danger of unfair prejudice, it may be addressed by an appropriate direction to the jury.

Objection C19: Conversation Adam Cranston and Christopher Guillan 26 April 2017 CSN 30577 Compilation pp 816-8

1. This is a three-page conversation between Messrs Cranston and Guillan about their Porsches. Mr Cranston submitted that the conversation is irrelevant.
2. The Crown submitted that the evidence is relevant, probative and not unfairly prejudicial in proof of Mr Cranston's relationship with the assets discussed and his attitude to accounting for his related company transactions and "compliance" (p 817.9). The Crown does not seek to rely on the reference to the Fortitude Valley property at p 818.
3. I will allow the evidence in part. The evidence is relevant as proof of Mr Cranston's relationship with the assets and his attitude to accounting for his related company transactions. To the extent that evidence leads to a danger of unfair prejudice, it may be addressed by an appropriate direction to the jury. I reject the evidence so far as it relates to the Fortitude Valley property.

Objection C21: Conversation Adam Cranston and Michael Cranston 2 May 2017 CSN 31534 Compilation p 910-926

1. This is a conversation between Adam Cranston and his father Michael Cranston about various transactions. It contains lengthy statements by Adam Cranston about the Plutus scheme and comments made by Michael Cranston about the ATO's processes for detecting unexplained wealth. Mr Cranston submitted that the Court may take the view that references to Mr Cranston's father are undesirable.
2. I have earlier made clear to the Crown my concern that allegations about Mr Michael Cranston's involvement in the scheme form no part of the Crown's case here. I am satisfied that the concern I have expressed has been heard and understood by the Crown. If it becomes necessary specifically to warn the jury about this matter, I will be attentive to do so.
3. I have concluded that the evidence is relevant and probative as: 1. the statements made by Adam Cranston are relevant to and probative of his involvement in the Plutus scheme and the extent of his knowledge of its operations; and 2. any possibility of unfair prejudice is low and does not outweigh the probative value of Adam Cranston's statements because none of the opinions expressed by Michael Cranston are stated as concluded views. Rather, they are raised as questions which Adam Cranston answers.
4. I will allow the evidence to be adduced by the Crown as part of the Crown's money laundering case. To the extent that there is a risk of unfair prejudice it may be addressed by a direction to the jury.

Annexure D: objections to surveillance device material

Objection D9 (Compilation pp 489-490)

1. This discussion between Messrs Menon and Cranston is about whether Mr Cranston will speak with his father about garnishee notices. Mr Cranston submitted that the reference to approaching Michael Cranston is irrelevant and prejudicial, and the Court may take the view that references to Michael Cranston are undesirable.
2. The Crown submitted that there is no unfairness in this part of the recording because the identity of Mr Cranston's father and the fact that he signed the garnishee notices will be in evidence. It was submitted that the probative value of the conversation lies in revealing Messrs Menon and Cranston's awareness of the garnishee notices and their sense of propriety and judgment. It was submitted that this is relevant to the Crown's case on participation, dishonesty and willingness to operate beyond proper boundaries.
3. I will allow the evidence, essentially for the reasons given by the Crown. As I have said, if it becomes necessary specifically to warn the jury about Mr Michael Cranston's role I will do so.

Objection D13 (Compilation pp 505-6)

1. This discussion, primarily between Messrs Menon and Cranston, is about an unrelated commercial dispute between Mr Cranston and an unnamed person over settling the purchase of a house.
2. Mr Cranston submitted that this evidence is irrelevant. The Crown submitted that the evidence is relevant to the case against Mr Cranston because it reveals his financial dealings and assets. The Crown further submitted that the relevance of such evidence is not limited only to those assets that the Crown sets out to prove in its case of betterment.
3. I will reject this evidence. I have concluded that it is not probative of any identified issue in the case.

Objection D19 (Compilation p 697)

1. This is a conversation between alleged conspirators, including Mr Anquetil and others, about the risk of accounts being frozen and investigations proceeding. It was recorded on 27 January 2017.
2. Mr Cranston submitted that the conversation involves mere "gallows humour" and the evidence is irrelevant and prejudicial. The danger of prejudice was said to be the risk of the jury concluding that the evidence is an admission that Mr Cranston should be in jail.
3. The Crown submitted that the statement by Mr Cranston under objection ("Don't get me wrong, I'm down for a good smash and grab right, but like I don't want to, do a smash and grab and go, oh its six years jail, that's a bit shit") is evidence of his attitude to the assets in the scheme, his honesty and his intention. The Crown submitted that the mention of jail is a colloquial way of describing the value of one course of conduct over others. The Crown submitted that this discussion formed part of the ongoing assessment of the risks, the planning and the adapting of the scheme. It was submitted that the evidence is relevant, probative and not unfairly prejudicial.
4. The evidence is relevant to and probative of the Crown case in "sticking to the plan" and giving back money. It reveals information about accounts and audit monies. There are also references to a "smash and grab" in the context where there is evidence of attempts to get money out of the companies. The evidence is relevant as evidence of discussions between the alleged conspirators about winding down the alleged conspiracy.
5. I will allow the evidence to be adduced. I will warn the jury that the evidence cannot be treated as an admission.

Objection D21 (Compilation p 939)

1. This is a comment made by Mr Cranston during a conversation with alleged conspirators about the extent of the risk faced by those involved in the Plutus scheme (particularly the "directors") should the scheme be investigated and exposed. Mr Cranston states: "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…"
2. The Crown relies on this evidence as an admission. I have previously made a ruling, on an objection made by Messrs Menon and Onley, that the evidence should not be excluded under s 84 of the Evidence Act: see R v Cranston (No 9) [2021] NSWSC 1413 at Annexure A, p 10 (item 45).
3. Mr Cranston did not make his objection under s 84 but instead submitted that the evidence is irrelevant and prejudicial. He submitted that the statement was made in the context of Mr Rostankovski's extortion attempt, which involved a threat that those involved would go to jail for ten years. He submitted that, in context, the statement should be read as "gallows humour". He submitted that the prejudicial effect of the statement outweighed its low probative value. Mr Cranston further submitted that the admission of the evidence would be contrary to the well-known rule that it is impermissible to put material about the likely sentence before the jury.
4. I will allow the evidence as relevant to and probative of Mr Cranston's knowledge of the scheme and the risks it involved. It is also relevant evidence in the Crown's circumstantial case on the money laundering count.

Objection D35 (Compilation pp 1621-1634)

1. This is a discussion between Mr Cranston and others about renovations at his Vacy property and the cost. Mr Cranston contended that this evidence is not relevant to any issue in the trial. If it has some relevance, Mr Cranston submitted that the material is of little probative value and should be excluded in the exercise of the Court's discretion.
2. The Crown submitted that the Vacy property and Mr Cranston's related dealings are part of the Crown's money laundering case, and this discussion is both relevant and probative because it tends to establish Mr Cranston's relationship with that property and the money he spent on it. It was also said to reveal Mr Cranston's knowledge of property development and Mr Kendrick's connection to Mr Cranston and the property development.
3. I will allow the evidence, essentially for the reasons advanced by the Crown.

Objection D41 (Compilation p 1689)

1. This is also a discussion about Mr Cranston's renovations. It refers to Mr Cranston obtaining a quote for work on his swimming pool. Mr Cranston contended that the evidence is irrelevant.
2. The Crown repeated the submission made in relation to objection D35 above. It was further submitted that an inference may be drawn that corporate funds were used to pay for the development of the Vacy property and the pool. The various ways in which Mr Cranston dealt with funds were said to be overt acts which are relevant to the Crown's money laundering case.
3. I will allow the evidence.

Objection D50 (Compilation p 2296)

1. In this evidence, Messrs Onley, Menon and Cranston discuss how they might deal with the risk of Ms Hammond disclosing information about the fraudulent nature of the Plutus scheme. The objection relates to comments about how they might concoct a story of infidelity in order to discredit Ms Hammond. The transcript records the following: "ONLEY: Can't someone fucking say we had an affair, anytime she says something. That's always a good one that one that you, you know what she was just saying that I had an affair and she wanted to bring me down. MENON: Bags not me. Bags not me saying that, like my wife (Indistinct) … ONLEY: I'm already getting divorced, what am I (Indistinct)"
2. The Crown does not seek to rely on the statement made by Mr Cranston immediately afterwards (A. Cranston: "But we can say we both bang … we can say we both banged her…").
3. Mr Cranston submitted that the suggestion to concoct a story of infidelity, made in jest, is irrelevant and adds nothing to the Crown case. It was submitted that the danger of prejudice is that the jury might think that it was a serious plan.
4. The Crown submitted that this evidence is relevant and probative in the Crown's circumstantial case. In the wider context, the alleged conspirators were having a discussion about the risk of exposure and the way in which they should plan for that event. There are references to training Ms Hammond to "stand tall". There is also speculation about whether she had a plan for "when this all went pear shape". The Crown submitted that the passage here pressed is a continuation of that topic and the way in which the alleged conspirators might minimise the risk of Ms Hammond not sticking to the plan when dealing with enquiries made by the authorities.
5. I will reject the evidence objected to. It is not sufficiently probative to outweigh the danger of unfair prejudice. The immediately preceding references to Ms Hammond (which in any event are not the subject of the objections) are admissible.

Objection D61 (Compilation pp 2981-2983)

1. In this passage, Messrs Cranston, Menon and Onley discuss hiring "muscle", namely, men with guns, apparently to deal with the "gangsters" attempting to extort them (Compilation pp 2978-2983). The Crown agreed that it will not lead the evidence at pp 2978-80.
2. I will allow the evidence at pp 2981-2983 to be adduced. The evidence is probative in circumstances where the relationship with Mr Rostankovski and the possible defence of duress has been put in issue by the defence statements filed pursuant to s 141(1)(b) of the Criminal Procedure Act 1986 (NSW).

Objection D72 (Compilation p 3539)

1. In this passage, Mr Cranston makes a joke to "just bomb Darwin" (and the tax office in Darwin in particular) immediately after Mr Onley expresses a hope that North Korea releases a nuclear weapon on the same day that any adverse media is published about the scheme. The men then laugh.
2. Mr Cranston contended that this evidence is irrelevant, prejudicial and lacking in probative value. It was submitted that some jurors (particularly those from Darwin) might regard the joke as one made in extremely poor taste.
3. The Crown conceded that the comment was a joke but submitted that a jury can be expected to put this kind of comment in context. The Crown does not seek to rely upon any suggestion that the alleged conspirators were considering a joint operation with a foreign nation against Darwin.
4. The Crown further submitted that the relevance of the passage is not in the joke. The relevance was said to be in the following statement made by Mr Anquetil (p 3538): "If it hits the papers there's a good chance my father's finished as well", the discussion of the media and the reputational damage that would flow from being named. This evidence was said to involve a continuation of the broader theme of discussing and managing the risk of being named in the media.
5. I reject the evidence about the bombing of Darwin. I will allow the Crown to rely on the remainder of the passage (which is apparently not in any event objected to).

Mr Willmott's notice of motion

1. Mr Willmott made three objections to the telephone intercept evidence. He submitted that the evidence objected to was irrelevant and prejudicial to him because it suggested that he had dishonest dealings with the Department of Home Affairs. The Crown agreed not to adduce that evidence.
2. Mr Willmott made nine objections to the surveillance device evidence. Items 1-3 were resolved prior to the hearing and do not need to be addressed further.
3. In addressing these objections, I have taken into account, in the way explained in R v Cranston (No 7) [2020] NSWSC 1834 and R v Cranston (No 9) [2021] NSWSC 1413, that the Crown relies on a substantial body of circumstantial evidence to prove its case against the accused. That circumstantial evidence includes numerous acts and declarations of the alleged conspirators relevant to proof of the existence, nature and scope of the conspiratorial agreements and participation of the accused.
4. The numerous acts and declarations of the alleged conspirators relevant to proof of the existence, nature and scope of the conspiratorial agreement are admissible as pieces of circumstantial evidence: Ahern v The Queen (1988) 165 CLR 87 at 93-94; [1988] HCA 39 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ).
5. The Crown does not seek to adduce any of the evidence here objected to as an admission. Rather, the Crown seeks to adduce the evidence for a non-hearsay purpose as circumstantial evidence of the kind described in Ahern, particularly as it relates to the way in which the alleged conspirators managed risks while the arrangement remained on foot. As will become apparent, I have concluded that the evidence sought to be adduced by the Crown is prima facie admissible for the non-hearsay purpose described in Ahern.

Item 4: 1 February 2017 p 880 (from A. Cranston: "What about Pat as well" to Rostankovski: "… whatever's going to happen")

1. Item 4 is an extract of a discussion between Messrs Rostankovski and Cranston about what might happen in a putative investigation or proceeding if lawyers "bring up everyone from the past". Mr Rostankovski's comments are about what "Pat" (Mr Willmott) will say or do in certain circumstances.
2. Mr Willmott objected to the evidence on the basis that it is speculative and prejudicial because it relates to Mr Willmott's flight risk. The Crown submitted that the evidence is relevant, probative and not unfairly prejudicial, notwithstanding the fact that it records speculation by one of the alleged conspirators.
3. I will allow the evidence. Item 4 is circumstantial evidence relevant to the nature and scope of the scheme, including its ongoing risks should certain events occur. The risk of unfair prejudice to Mr Willmott can be sufficiently ameliorated by a warning to the jury not to engage in speculation.

Item 5: 7 February 2017 p 1314 (from A. Cranston: "Paddy and Pete thing…" to A. Cranston "it's not that hard.")

1. Item 5 is an extract of a conversation between Messrs Cranston and Anquetil. In the discussion, Mr Cranston gives an account of searching for and finding records of Mr Willmott's involvement in various companies and related finances.
2. Mr Willmott submitted that the evidence is prejudicial because it refers to his involvement in hidden companies over a period of time. The Crown submitted that the evidence is relevant, probative and not unfairly prejudicial. The Crown submitted that the evidence is probative of Mr Cranston's familiarity with corporate operations, financial matters and the ease with which those matters can be monitored or disclosed. Item 5 was said to be relevant to Mr Cranston's knowledge and awareness of such matters. Mr Willmott submitted that there is ample evidence of Mr Cranston's knowledge elsewhere, and this evidence does not take the Crown's case any further (whereas it is prejudicial to Mr Willmott).
3. The Crown does not seek to rely upon this evidence as containing an admission. I will allow the evidence. Item 5 is circumstantial evidence about the nature and scope of the scheme and, in particular, the risk of the corporate structure being exposed. It is admissible in the Ahern sense. Any risk of unfair prejudice can be sufficiently ameliorated by directions to the jury.

Item 6: 14 February 2017 p 1853-4 (from A. Cranston: "Pat didn't send me any money…" to L. Cranston: "Peter, Peter was a (indistinct)")

1. Item 6 is part of a discussion between alleged conspirators about the scheme's financial records ("there's money going everywhere…") and whether they are easily understood ("it would take them years…"). The discussion is about the risk of the financial records being discovered and the scheme exposed.
2. Mr Willmott objected to the evidence on the basis that it is prejudicial. The Crown submitted that the evidence is relevant, probative, and, save for a small portion (at p 1854.2 to 1854.4), not unfairly prejudicial. The Crown submitted that: 1. the first part of item 6 (at pp 1853.1 to 1853.5) is not unfairly prejudicial but, rather, is beneficial to Mr Willmott because it confirms that he did not send Mr Cranston any money that might spark enquiries; 2. the second part of item 6 (at pp 1853.5 to 1853.6) does not relate to Mr Willmott because it only involves Mr Cranston explaining how to "set someone up"; and 3. the third part of item 6 (at p 1853.6 to end of page) is a discussion about "Pete" (presumably Peter Larcombe) and is roundly critical of his conduct. It mentions Mr Willmott only indirectly to further the criticisms made of Mr Larcombe.
3. The Crown submitted that the only portion of item 6 that is detrimental to Mr Willmott are the comments made by Mr Cranston (at pp 1854.2 to 1854.4) about "Pat's" reason for giving "Pete" money ("Pat was just giving … that's exactly how Peter would've been.") The Crown submitted that this evidence is relevant and probative of the relationship between Mr Cranston and Mr Willmott (as well as Mr Larcombe). The Crown noted that the other accused may have an interest in the material being adduced.
4. Senior counsel for Ms Cranston indicated that his client's preference was that the evidence at pp 1853 to 1854 be admitted as part of the Crown's evidence. I will allow all of the evidence comprising item 6 to be adduced. It is admissible for the non-hearsay purpose described in Ahern as evidence of participation and the scope of the agreement. To the extent there is a danger of unfair prejudice that may be addressed by a direction to the jury.

Item 7: 20 February 2017 p 1884 (from A. Cranston: "You know what Pat said." To A. Cranston: "That's every week.")

1. Mr Willmott contended that item 7 is inadmissible as an admission by Mr Willmott and as second-hand hearsay. The comment is made by Mr Cranston during a discussion with Mr Menon about whether the reality of the financial arrangements within the Plutus scheme had been effectively concealed. There is a comment that Mr Anquetil's "side" was not "covered" as he had thought (rather, it was a "shemozzle": p 1883).
2. The Crown submitted that item 7 is not an admission and is not relied upon as hearsay evidence. It was submitted that the value of the evidence is not that "Pat" made the comment, but, rather, that the problem with Mr Anquetil's invoices was observable to anyone with "half a brain". The Crown does not seek to rely on item 7 as evidence of the truth of what Mr Willmott said. It is relied upon as a discussion between alleged conspirators about identifiable risks in the Plutus scheme and the way in which the alleged conspirators could avoid detection.
3. At the hearing, counsel for Mr Willmott submitted that the evidence is prejudicial because there is a real risk that the jury will use it as an admission about Mr Willmott's knowledge of the Pay As You Go (PAYG) percentage and the very essence of the conspiracy.
4. I will allow the evidence. This is an expression by an alleged conspirator that is relevant for Ahern purposes as evidence of participation and the nature and scope of the agreement. Any risk of unfair prejudice can be ameliorated by a carefully worded direction.

Item 8: 20 February 2017 p 1885 (from A. Cranston: "I've already made,…" to A. Cranston: "it's going to look fucking bad.")

1. Mr Willmott first contended that item 8 is inadmissible as an admission by Mr Willmott and as second-hand hearsay. Secondly, Mr Willmott submitted that this evidence of what Mr Willmott said to Mr Cranston, including the reference to the exact percentage, carries the risk of the jury reasoning that Mr Willmott must have had knowledge of the operation.
2. The Crown repeated its submissions about item 7 in respect of item 8.
3. I will allow the evidence. It is relevant evidence of participation and the nature and scope of the agreement. Any risk of unfair prejudice can be ameliorated by a carefully worded direction.

Item 9: 7 March 2017 p 2717 (A. Cranston: "as Pat said there is nothing on that. Pat said mate there is no")

1. Mr Willmott contended that item 9 is inadmissible as an admission by Mr Willmott and as second-hand hearsay. The comment is made in the course of a discussion about whether the directors have "confidential information" (p 2717.2) that could damage the Plutus scheme or any of the alleged conspirators. It is implied that Mr Cranston has spoken to Mr Willmott. There is speculation about whether there is a risk and, if so, how it should be managed.
2. The Crown submitted that item 9 is not an admission and is not relied upon as hearsay evidence. That is, it is not relied upon as evidence of the truth of any representation made by Mr Willmott but is relied upon as proof that the words were said and that the conversation related to the topic of how to protect and/or adapt the operation of the scheme to avoid the risk of discovery.
3. I will allow the evidence. This is an expression by an alleged conspirator that is relevant for Ahern purposes as evidence of participation and the nature and scope of the agreement.

Conclusion

1. I have taken the time to record my rulings about each of the objections in these lengthy written reasons to permit the parties the opportunity to ensure that I have dealt with all objections and that there is no ambiguity in what I have decided. I will hear the parties on 8 March 2022 if any party perceives ambiguity in the rulings or seeks clarification of any of these rulings.

Endnote

1. 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.

Amendments 22 March 2023 - Publication restriction lifted. Witness names redacted. 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