Supreme Court New South Wales Medium Neutral Citation: R v Cranston (No 7) [2020] NSWSC 1834 Hearing dates: 8 December 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Common Law Before: Payne JA Decision: Notice of motion dated 1 December 2020 dismissed to the extent it relates to ss 84 and 90 of the Evidence Act 1995 (NSW). Notice of motion dated 1 December 2020 stood over for further hearing on 17 and 18 December 2020 to the extent it relates to ss 135 and 137 of the Evidence Act 1995 (NSW). Catchwords: CRIMINAL PROCEDURE – trial – case management – evidence – admissibility – whether evidence of acts or declarations of alleged co-conspirators are admissible other than as admissions Legislation Cited: Evidence Act 1995 (Cth), s 9(1) Evidence Act 1995 (NSW), ss 9, 55, 56, 59, 60, 84, 87, 90,135,136,137,138 Cases Cited: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 Beckett v R [2014] NSWCCA 305; (2014) 315 ALR 295 Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686 R v Adam aka Odishou (1999) 47 NSWLR 267; [1999] NSWCCA 197 R v Associated Northern Collieries (1911) 14 CLR 387; [1911] HCA 73 R v Baladjam (No 38) [2008] NSWSC 1458; (2008) 270 ALR 187 R v Cranston (No 2) [2020] NSWSC 1102 R v Cranston (No 3) [2020] NSWSC 1103 R v Cranston (No 4) [2020] NSWSC 1104 R v Cranston (No 5) [2020] NSWSC 1105 R v Cranston (No 6) [2020] NSWSC 1777 R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42 R v Horton (1998) 45 NSWLR 426 R v Louden (1995) 37 NSWLR 683 R v LK (2010) 241 CLR 177; [2010] HCA 17 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 The Queen v Beckett (2015) 256 CLR 305; [2015] HCA 38 The Queen v GH (2000) 105 FCR 419; [2000] FCA 1618 The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Category: Procedural rulings Parties: Adam Cranston (Applicant) Lauren Cranston (Applicant) Dev Menon (Applicant) Jason Onley (Applicant) Crown (Respondent) Representation: Counsel: A Cranston (in person) T D Anderson (Lauren Cranston) P Bruckner (Dev Menon) R Seiden SC with R Johnson (Jason Onley) R Maidment QC with R Sharp and L Robb Vujcic (Crown) Solicitors: Greg Willis Criminal Defence Lawyer (Lauren Cranston) Hardinlaw (Dev Menon) Pure Legal (Jason Onley) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208 Publication restriction: Not to be published until after the trials. Judgment 1. PAYNE JA: On 20 September 2019, in the Local Court, Adam Cranston, Lauren Cranston, Jason Onley and Dev Menon were committed for trial in this Court. On 6 December 2019, the accused pleaded not guilty before Fullerton J to the following two counts in an indictment presented on that day: "1. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Joshua Meredith Kitson, Devyn Michelle Hammond, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth. Contrary to section 135.4(3) of the Criminal Code (Cth). … 2. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Devyn Michelle Hammond and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime. Contrary to sections 11.5(1) and 400.3(1) of the Criminal Code (Cth)." 1. On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. For reasons related to the COVID-19 pandemic, in July 2020 that trial date was vacated. The matter has been before me on numerous occasions for pre-trial directions. On 24 August 2020, I delivered judgment in relation to various pre-trial issues related to disclosure: R v Cranston (No 2) [2020] NSWSC 1102 together with R v Cranston (No 3) [2020] NSWSC 1103 which addressed an application to set aside a subpoena; R v Cranston (No 4) [2020] NSWSC 1104 which addressed the motion by the accused Onley, Menon and Lauren Cranston for a separate trial from Adam Cranston given the failure of his Dietrich application; and R v Cranston (No 5) [2020] NSWSC 1105 which addressed the claims made for client legal privilege over any part of the Crown brief. On 14 December 2020, I delivered R v Cranston (No 6) [2020] NSWSC 1777 which concerned an application to exclude evidence on the basis of alleged non-compliance with s 18(5) of the Surveillance Devices Act 2007 (Cth) and alleged excessive execution of warrants issued under that Act. 2. On 1 December 2020, a further motion was filed by Messrs Onley and Menon and Ms Cranston seeking the following orders: 1. The following evidence be excluded under s 84 of the Evidence Act 1995 (NSW) or in the alternative under one or more of ss 90, 135 or 137 of the Evidence Act. 1. The evidence on and after 1 February 2017 referred to in the Crown case statement. 2. The other evidence in the annexure to the applicants' submissions of 1 December 2020. 1. Directions for determining other material to be excluded consistent with the Court's reasons for decision. 2. Further or other orders. 1. The motion was heard on 8 December 2020. No evidence was led on the motion, but a 248 page colour coded schedule of information sourced from the Crown case statement was placed before me. Submissions of the parties 1. Both counts in the indictment allege a conspiracy. The Crown has served a huge volume of evidence which it proposes to lead at the trial, which is estimated to last three months. The principal, but not exclusive, focus of this application is evidence served by the Crown which derives from telephone intercepts and surveillance devices. 2. The date range of the conspiracy is between about 1 March 2014 and about 18 May 2017. The essence of the applicants' submission is that on and from 1 February 2017 threats of, inter alia, exposure of the conspiracy and violence, were made to the alleged conspirators by Messrs Rostankovski, Barrett and Hausman. As a result of those threats of exposure and violence the conspirators allegedly paid Messrs Rostankovski and Hausman $25 million from the proceeds of the alleged fraud, which are asserted to be over $140 million. 3. The actual evidentiary material to which the exclusion application relates was referred to globally as the entire contents of material recorded under telephone intercepts warrants and by surveillance devices after 1 February 2017 or, alternatively, the other evidence referred to in the annexure to the applicants' submissions of 1 December 2020, being the 248 page document. A broad but necessarily incomplete summary of the evidence to which this application refers may be ventured. The conversations relied upon by the Crown are capable of being seen as disclosing states of mind of the participants to the conversations, attitudes to payment of tax, the Australian Taxation Office and to customers of Plutus. A great deal of minute detail about relationships between various corporate entities is discussed. The movement of funds, including payments to the Australian Taxation Office is discussed. The attitudes of the participants to the conversation to threats of exposure and violence made by Mr Rostankovski, Mr Barrett and Mr Hausman are discussed. Some of the conversations are capable of being interpreted as disclosing the intention of the participant or participants to take part in activity whereby funds payable to the Australian Taxation Office are to be diverted for other purposes. 4. Whilst no real attempt was made to explain why all of that evidence should properly be characterised as an admission and excluded from evidence under s 84 of the Evidence Act, save the reference to Edelman J's judgment in Nguyen v The Queen [2020] HCA 23; (2020) 94 ALJR 686, the Crown accepted that: "CROWN PROSECUTOR MAIDMENT: … many of the acts and declarations, particularly the declarations of persons in this case and accused in this case, the applicants in this case, made statements, made declarations which could amount to admissions; one accepts that. They could be relied upon or could have been sought to be relied upon by the Crown as admissions, obviously only admissible in the case against them and section 60 subsection (3) would mean, of course, that they could not be used against another accused as evidence of the truth of the assertion." 1. The Crown relies on a substantial body of circumstantial evidence to prove its case against each of the applicants on both charges. That circumstantial evidence includes numerous acts and declarations of the alleged conspirators, including each of the applicants, relevant to proof of the existence, nature and scope of the conspiratorial agreements. Many of those acts and declarations were made in the absence of one or more of the applicants. On 26 June 2020, the Crown provided the following particulars of its case to each applicant: 1. The Crown relies on the whole of the evidence, most of which is circumstantial, to prove the fact, nature and scope of the agreements the subject of the two charges, and upon the conduct of each alleged participant in the agreements to prove their own participation in the agreements. 2. For that purpose, the Crown relies upon evidence of the declarations, as well as the acts, of each individual participant (whether in the absence or presence of another participant) as part of the circumstantial evidence against all accused to prove the fact, nature and scope of the agreements the subject of the charges. 1. The Crown submitted that the numerous acts and declarations of the alleged conspirators, including each of the applicants, relevant to proof of the existence, nature and scope of the conspiratorial agreement were admissible as pieces of circumstantial evidence as explained by the High Court in Ahern v The Queen (1988) 165 CLR 87 at 93-94; [1988] HCA 39 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ). It was submitted that numerous authorities established that the principles explained in Ahern remained good law under the Evidence Act. 2. The Crown did not tender any of the acts and declarations of the alleged conspirators as admissions or under the co-conspirators' rule. 3. The applicants' essential case was that if evidence was capable of being characterised as an admission, despite it being adduced for a non-hearsay purpose, the evidence was excluded by s 84 of the Evidence Act, if that section was otherwise engaged. That is because s 84 is an exclusionary rule and the cases which had considered this issue, in particular, Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206, which had treated s 87 of the Evidence Act as an inclusionary rule, were distinguishable. 4. The Crown submitted that in Elomar, R v Baladjam (No 38) [2008] NSWSC 1458; (2008) 270 ALR 187 and R v Horton (1998) 45 NSWLR 426 evidence of the kind described in Ahern had been permitted to be adduced for a non-hearsay purpose. The Crown accepted that individual acts and utterances led for a non-hearsay purpose would need to be considered at a second stage. The Crown accepted that there may be specific pieces of evidence where a question would arise about the content of any direction I should give the jury. Consideration would need to be given at that stage to exclusion of evidence under ss 135 and 137 of the Evidence Act if, having regard to the content of a particular piece of evidence, in giving a direction about admissibility to the jury, relevant unfair prejudice arose to one or more of the accused. 5. The essence of the applicants' argument was summarised in their written submissions as follows: "…the applicants submit that the exclusionary force of s.84 cannot be avoided by the expedient of the prosecution offering evidence 'of an admission' as evidence not of an admission: the character and substance of the evidence remains unaltered. The subject matter, scope and purpose of Chapter 3 of the Evidence Act is inconsistent with the notion that a party may sidestep the non-discretionary exclusionary provision of s.84, by the simple expedient of asserting that the evidence is not being relied upon as an admission; when to do so would achieve, in substance, the same objective that would obtain had the exclusionary provision not existed." 1. The central plank of the applicants' argument is that s 84 of the Evidence Act is an exclusionary provision and the operation of that exclusion is not dependent on how evidence "that is capable of being an admission" made its way into evidence. The effect of the applicants' primary argument is that where the words or conduct of an applicant fall within the definition of an admission in the Evidence Act and evidence of the "admission" is caught by s 84, the legitimacy of the Crown proving the fact of a conspiratorial agreement by the use of circumstantial evidence not tendered for a hearsay purpose is "obliterated", as Whealy J described a similar submission in Baladjam (No 38). 2. Ms Seiden SC, who had primary carriage of this part of the argument for the applicants, sought to distinguish Elomar and the cases referred to in Elomar on the following basis: "SEIDEN: … Cases like Elomar were really cases about gateways to admission. The applicant there tried to in effect use 87(1)(c) as a bar to admission, and that failed, but nevertheless it was a case about how evidence goes in, not how evidence comes out. And the applicants submit that it is not necessary for what would otherwise be a hearsay statement to be tendered for the truth of the assertion. It is sufficient if it is tendered for a non hearsay purpose, if it is nonetheless a previous representation that is adverse to the maker's interest on the outcome of the proceeding; in effect, a rose by any other name." 1. The applicants submitted that s 84 reflects questions of high policy. The High Court explained in The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 at [74] that involuntary statements are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. The applicants called in aid the questions of public policy addressed in Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 at 76-77 and The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 at 335 which were submitted to raise different but relevant considerations to the present question. 2. The applicants submitted that "section 84 [refers to] conduct which Parliament has seen fit to put in a special category, because of the interests of the integrity of the justice system; not merely the effect on the accused, but also the effect on the justice system. And that's why it has a pride of place. It has a wide ambit in a very narrow set of circumstances". 3. The applicants submitted that, if the s 84 prohibition could be "sidestepped" by adducing evidence to which that section might apply for a non-hearsay purpose, there would be an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice. The applicants called in aid the remarks of the High Court in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 520 per Mason CJ, Dawson, Toohey and McHugh JJ and Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50. 4. The applicants accepted that the test for admissibility of circumstantial evidence led for a non-hearsay purpose described in Ahern survived the passage of the Evidence Act but nevertheless submitted that everything said by the accused after 1 February 2017 should be characterised as an admission and subject to exclusion under s 84, even if adduced for a non-hearsay purpose. 5. The applicants submitted that I could not be satisfied that s 84 did not exclude any of the evidence relating to events after 1 February 2017 and in particular all of the evidence captured on a surveillance device after 1 February 2017 should be excluded under s 84 or, alternatively, ss 90, 135 or 137 of the Evidence Act. Consideration 1. Section 9 of the Evidence Act states (relevantly): 9 Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. 1. Section 55 of the Evidence Act states: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not to be taken to be irrelevant only because it relates only to – (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence. 1. Section 56 of the Evidence Act states: 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. 1. Section 59 provides, relevantly: 59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. … 1. Section 60 provides: 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)). Note— Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. (3) However, this section does not apply in a criminal proceeding to evidence of an admission. Note— The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay: see section 82. 1. "Admission" is defined in the Dictionary of 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. 1. Section 84 of the Evidence Act states: 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. 1. Section 87 of the Evidence Act states: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that– (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove– (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority. 1. Section 90 provides: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if— (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note— Part 3.11 contains other exclusionary discretions that are applicable to admissions. 1. Section 135 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. 1. Section 137 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. 1. The principles of construction were not controversial here. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] the High Court said: "[39] 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." 1. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ at [14] said about ascertaining the meaning of a statutory provision: "[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (Footnotes omitted.) 1. The relevant text of the Evidence Act is tolerably clear. Sections 84 and 90 are provisions which only exclude evidence of an admission. Section 60 specifically contemplates that evidence relevant for a non-hearsay purpose may be admissible. Section 60(3) addresses the circumstances where evidence admissible for a non-hearsay purpose is also capable of characterisation as an admission. In a criminal case, the effect of s 60(3) is that s 60 does not apply; that is, evidence adduced for a non-hearsay purpose which is also an admission is not admissible to prove the truth of the previous representation comprised by the admission. 2. As to relevant context concerning evidence adduced for a non-hearsay purpose, in Ahern at 93-94, Mason CJ, Wilson, Deane, Dawson and Toohey JJ referred to "utterances" or "verbal acts" admissible for a non-hearsay purpose: "Thus it was said in Tripodi [(1961) 104 CLR 6] that proof of the crime of conspiracy 'may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment'. For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred. Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts. In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant. It was such a situation that Isaacs J. had in mind in R. and Attorney-General (Cth) v. Associated Northern Collieries [(1911) 14 CLR 387] when he pointed out that both the fact of combination and the participation of the participants may be proved by the same evidence. He said [at 400]: '... though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.'" 1. In R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42, the Court of Criminal Appeal (per Simpson and Howie JJ, Fitzgerald JA not deciding) held that the Ahern principles of admissibility of acts and utterances for a non-hearsay purpose remained applicable notwithstanding the introduction of the Evidence Act. The Court of Criminal Appeal was called on to consider whether evidence could be led of the acts and declarations of other participants in a joint enterprise prior to Mr Dinh joining it. At [51], their Honours said: "[51] … The evidence of things done and said by persons engaged in the enterprise before Dinh joined it would, in our view, be admissible to show the nature of the enterprise in which he became involved." 1. Their Honours went on in [52] to observe that: "[52] This has been held to be the law in a number of decisions of this Court which were relied upon by Dunford J in coming to the conclusion that the evidence of the acts and declarations of others prior to 5 September was admissible for this limited purpose and are referred to him in the passage quoted above. The evidence could not be used to prove Dinh's participation in the joint enterprise at that time, the Crown does not propose to use it for that purpose." 1. As Whealy J pointed out in Baladjam (No 38) at [52], the decision of the Court of Criminal Appeal in Dinh "establishes the continued operation of the Ahern principles, post the introduction of the Evidence Act 1995". 2. As I have explained, the Crown seeks to adduce the evidence here objected to as being circumstantial evidence of the kind described in Ahern and Elomar. The Crown seeks to adduce the evidence for a non-hearsay purpose. No submission was made that any of the evidence sought to be adduced by the Crown was inadmissible for the non-hearsay purpose described in Ahern. Rather, the submission was that the evidence must be excluded by s 84 (and failing that s 90). 3. In R v Adam aka Odishou (1999) 47 NSWLR 267; [1999] NSWCCA 197 the Court of Criminal Appeal explained (at [116]) that the "purpose" to which s 60 of the Act refers is the use to which the evidence, if admitted, would be put objectively ascertained. It is not a reference to the subjective purpose of the person seeking to adduce the evidence. An appeal to the High Court was dismissed: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 and this issue addressed at [32]-[33]. No authority was pointed to by the applicants for the proposition that where evidence has properly been adduced for a non-hearsay purpose, and not as an admission, it was nevertheless correct to reject that evidence under s 84. 4. An initial matter to note about this application is that the claim may properly be described as ambit, being an objection to all evidence sought to be relied upon by the Crown on and after 1 February 2017 referred to in the Crown case statement, or alternatively, all evidence in the 248 page annexure to the applicants' submissions of 1 December 2020. No real attempt was made to identify particular representations, the extent to which any representation amounted to evidence of an overt act of the alleged conspiracy or to explain how any particular piece of evidence could properly be characterised as an admission. 5. The applicants sought to meet those difficulties by asserting that in Nguyen at [57] Edelman J had identified the test for discerning whether evidence amounted to an admission in such a broad way as to capture the evidence the subject of the applicants' motion. His Honour said there: "[57] The statements of admission in the video record of interview fall within the exception, in s 81(1) of the Uniform Evidence Act, to the general inadmissibility of hearsay evidence in Pt 3.2. This exception for admissions is broad. An admission by the accused is any previous representation that is 'adverse to the person's interest in the outcome of the proceeding' whether by statement or conduct. Almost any statement or conduct, no matter how apparently innocuous, is capable of being an admission. It need not be against the maker's interest at the time it was made. It might not even be apparent prior to trial whether the statement is an admission. However, a substantial constraint on the matters which can constitute an admission is that the previous representation must be adverse to the interest of an accused 'in the outcome of the proceeding'. In other words, at the point in time that the admissibility issue is raised, there must be some possibility that the previous representation could have an effect upon the outcome of the proceeding that is adverse to the interest of an accused." (Footnotes omitted.) 1. Edelman J in Nguyen was not addressing the present question. His Honour was not saying that if evidence was admitted as circumstantial evidence in a conspiracy case and not as an exception to the hearsay rule as an admission, s 84 would nevertheless apply to exclude the evidence. The context of what his Honour was addressing is important: "[56] Although the respondent orally queried the admissibility of the video record of interview, the respondent did not file any cross-appeal to challenge the answer given to the first question by the Full Court, that the video record of interview was admissible. It became common ground during oral submissions that the mixed video record of interview was admissible because it contains admissions." 1. Edelman J's judgment is not authority for the proposition that evidence properly adduced for a non-hearsay purpose may be excluded from evidence by s 84. 2. That conclusion is underlined by the plurality judgment in Nguyen which makes clear at [21] that "[t]here are of course other means by which a record of interview may be admissible but it is not necessary to canvass them". The High Court in Nguyen was not intending to address the admissibility of evidence adduced for a non-hearsay purpose. 3. The real question raised in this application is whether evidence may properly be adduced for a non-hearsay purpose and, if so, whether any evidence so adduced must be examined to see whether, if it had been adduced as an admission, it is excluded from evidence by s 84 of the Act. 4. In Baladjam (No 38) at [34] Whealy J summarised the leading principles in relation to the admission of evidence in a criminal conspiracy case as: "1. In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. 2. The fact of the agreement to engage in a common enterprise can seldom be proved by direct evidence and must, in almost all cases, be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. 3. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others, provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule. 4. If a combination be proved, there are then circumstances in which evidence of the acts and declaration of other participants, outside the presence of the individual, may be led against him [or her], not of separate facts from which, when combined with other facts an inference of combination may be drawn, but as evidence of his [or her] own participation. 5. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declaration. 6. Led in this (second) way the evidence will not be excluded as hearsay. This is because of the co-conspirators' rule. 7. The co-conspirators' rule states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others. The analogy is that of partnership." 1. In the present case the Crown expressly disclaimed reliance upon the co-conspirators' rule. Nor is any of the evidence objected to sought to be adduced as an admission. 2. In Elomar, the Court of Criminal Appeal dealt with the conviction appeal from the trial in which Baladjam (No 38) had been an interlocutory decision. The Court explained at [276]-[284] that it was a case, like this one, where the evidentiary material to which the ground related was not specified with any precision. It was referred to globally as "evidence of acts and declarations of the alleged co-conspirators which were not in furtherance of the conspiracy". 3. The Court at [267] described the evidence as being: "[267] … a great deal of evidence of recorded conversations, both telephone and face to face, in which one or more of the appellants took part, either with one another or with members of the Melbourne group, or with others. The conversations were capable of being seen as disclosing states of mind of the participants to the conversations, attitudes to Jihad, Islam, to martyrdom in the cause of Islam, hostility to western civilisations, to the wars in Iraq and Afghanistan, and much more. Some were capable of being interpreted as directly disclosing the intention of the participant or participants to take part in terrorist activity". 1. The argument put to Whealy J, rejected by his Honour, and maintained in the Court of Criminal Appeal, was that evidence of acts and/or declarations of the alleged co-conspirators was admissible only pursuant to the co-conspirators' rule or as evidence of an admission and thus subject to Part 3.4 of the Evidence Act. 2. The Court held that on either basis, the admissibility of the evidence was circumscribed. If adduced under the co-conspirators' rule, it was admissible only if the statements or acts were made or done "in furtherance of the conspiracy". If the evidence was adduced as an admission, it was admissible only against the individual who made the statement or did the act, unless it fell within s 87(1)(c) of the Evidence Act which, again, required, as a pre-condition to admissibility, that it be said or done "in furtherance of a common purpose". 3. The relevant contest in Elomar, for present purposes, was whether evidence could be adduced by the Crown of acts and utterances to prove the existence and nature of the conspiracy without meeting the requirements of the co-conspirators' rule or Part 3.4 of the Evidence Act. 4. The Court summarised the argument as being that evidence of statements made by any accused were not admissible, unless the statements are made "in furtherance of the conspiracy". Specifically, evidence of such statements were not admissible to prove the existence and nature of the conspiracy. The Court rejected that argument. 5. The Court explained that the co-conspirators' rule dates back at least to the decision in R v Associated Northern Collieries (1911) 14 CLR 387; [1911] HCA 73, and adopted in Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22. In Tripodi, the Court (Dixon CJ, Fullagar and Windeyer JJ) said: "For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. ... When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. ... It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the [person] who made it as an admission and not otherwise, can become admissible under this principle against [their] companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts." 1. The Court in Elomar at [275]-[276] explained that it is "correct to assert that, where evidence of a statement or conversation attributed to one accused is tendered against another accused pursuant to the co-conspirators' rule, it is admissible against that other accused only where (inter alia) it was said 'in furtherance of its common purpose'" (emphasis in original). The flaw in the argument was to regard admissibility under the co-conspirators' rule as the only basis of admissibility recognised in Ahern. The argument also overlooked the important circumstance that the evidence was not, and never was, sought to be adduced under the co-conspirators' rule. 2. The Court in Elomar stated that it was not correct to regard Ahern as authority for the proposition that acts, statements, declarations or conversations of one or more alleged conspirators are admissible against other alleged conspirators only if made in furtherance of the common purpose. Ahern expressly held otherwise. The Court in Ahern said at 93: "In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other." 1. It was explained in Elomar that it is essential for the Crown to prove in a conspiracy trial: "(i) the existence of the conspiracy alleged; and (ii) the participation in that conspiracy of the various accused." 1. While recognising that certain items of evidence might be relevant to each of these topics, the Court in Elomar explained that it is necessary carefully to delineate evidence which goes to proving the existence of the conspiracy and evidence which goes to proving the participation of any of the individual accused. But it is wrong to say, as was contended on behalf of the appellant in Elomar, that, unless conversations or statements or acts are had or made or done in furtherance of the conspiracy, or of the common purpose, that evidence is not admissible against any accused other than the accused to whom it is attributed. 2. The Court in Elomar referred with approval to R v Louden (1995) 37 NSWLR 683, where Allen J (with whom Newman and Simpson JJ agreed) accepted that a good deal of the evidence there in question did not implicate the appellant, in the sense of proving his participation in the conspiracy. His Honour held, however, that the evidence was admissible as circumstantial evidence of both the existence and the nature of the conspiracy alleged. His Honour explained that it was by other evidence that the appellant was shown to be involved. 3. The Court in Elomar explained that "the evidence the subject of this ground of appeal was not tendered under the co-conspirators' rule and was not subject to the limitation that it be evidence of acts or statements in furtherance of the conspiracy". 4. It is undoubtedly correct as the Court explained in Elomar that to classify particular items of evidence as "in furtherance of the conspiracy" may, in some cases, present difficulties. No attempt has been made in this case to undertake that exercise. The objection, in both instances, is in the nature of a global objection. Since the evidence was not tendered under the co-conspirators' rule, but was tendered for a different purpose, that question does not arise. The evidence was amply able to prove the existence and nature of the conspiracy. 5. The Court in Elomar also dealt with the alternative submission, that the evidence could only be tendered as admissions (against the accused to whom it was attributed) and, by reason of s 87(1)(c) of the Evidence Act, was admissible against others subject to the same limitation, that the act or statement be done or made in furtherance of the conspiracy. 6. The Court accepted that evidence properly adduced for the purpose of proving the existence and nature of the conspiracy and not adduced as an admission is not subject to Part 3.4 of the Evidence Act. Elomar is authority for the proposition that the "admissibility of evidence tendered as admissions is the subject of Pt 3.4 of the Evidence Act." It is true that in Elomar part of the Court's reasoning was that s 87(1)(c) is an inclusionary rule which specifically permits, and requires, the admission of evidence tendered as an admission made with authority where it was made in furtherance of a common purpose. That is evidence that otherwise would be excluded by the hearsay rule. Section 87(1)(c) of the Evidence Act has nothing to say about the alternative basis of admissibility recognised in Ahern – that is, evidence going to the existence and nature of the conspiracy alleged. 7. As I have said, the applicants' submission is not consistent with the text of the Evidence Act. It is clear from the express language of the Act that evidence can be adduced for a non-hearsay purpose. Section 60 has that effect, in terms. Given the amendments to s 60(3), evidence of an admission adduced for a non-hearsay purpose is not admissible for a hearsay purpose in a criminal case as an exception to the hearsay rule. It follows, however, that s 60(3) specifically contemplates the admission of evidence for a non-hearsay purpose that would be capable of characterisation as an admission. 8. I am unable to agree with the obiter remarks of Madgwick J in The Queen v GH (2000) 105 FCR 419; [2000] FCA 1618 at [78] which were relied upon by the applicants. Section 84 does not apply to evidence not adduced as an admission. The provisions of Part 3.4 are concerned only with the admissibility or exclusion of evidence of admissions that would otherwise have been excluded by the hearsay rule or the opinion rule. The Crown does not seek to rely upon the challenged evidence for any purpose that infringes either rule. In any event, I am bound by Dinh and Elomar to reject Madgwick J's obiter remarks which did not command a majority of the Court in GH in any event. Those remarks are also distinguishable by reason of s 9(1) of the Evidence Act 1995 (Cth) which is much narrower in scope than s 9 of the Evidence Act 1995 (NSW). So much was acknowledged by Madgwick J. Even if I were not bound to conclude to the contrary, I respectfully disagree with Madgwick J. The exclusionary rule in s 84 is not applied to all evidence, however it is adduced, in a notional hierarchy of Evidence Act provisions. 9. I have concluded that the evidence the subject of this objection, being adduced for the non-hearsay purposes identified in Ahern and Elomar, is not inadmissible by reason of s 84 of the Act. The acts and declarations of the applicants (in the context of the whole of the evidence in the trial) are properly to be regarded as facts from which both the existence of the conspiracy generally and the participation of the relevant applicant may be inferred. I accept that the Crown relies on the same body of circumstantial evidence to prove both "limbs" of Ahern in this case. That is, I find that the Crown relies on the acts and declarations of the applicants to "prove both the fact of combination and their participation": Ahern at 94. Acts and declarations led in that way are not relied on for any hearsay purpose and are not dependent on some circumstance to bring them within any exception to the hearsay rule. 10. I am unable to accept that the correct characterisation of the Crown adducing this evidence is that s 84 is thereby "sidestepped". I do not agree that Part 3.4 of the Evidence Act applies to evidence which is not adduced as evidence of an admission. Section 60(3) plainly contemplates that evidence can be led for a non-hearsay purpose which may also be capable of being characterised as an "admission". The questions of high policy addressed by Bunning v Cross and The Queen v Ireland are not engaged here in determining if evidence adduced for a non-hearsay purpose meeting the description of evidence in Ahern is admissible. 11. It is a different question, however, whether a specific direction about s 60(3) should be made about any particular piece of evidence or a more general order made under s 136 of the Evidence Act limiting the use the jury can make of particular evidence. Assuming that a direction of either kind is sought, there may be questions about the content of any direction given to the jury generally and about particular pieces of evidence. It may be that the complexity of any direction necessary to be given about a particular piece of evidence would be such that unfair prejudice to the applicants would be occasioned. Depending on the specific evidence pointed to, it may be established that an order excluding particular pieces of evidence under ss 135 or 137 of the Evidence Act should be made. 12. Whilst I accept the Crown submission that the applicants have not identified how the challenged evidence identified in the 248 page document, or indeed any of the evidence that post-dates 1 February 2017, is or would be unfairly prejudicial, I do not rule out the possibility that I will be persuaded to make such a ruling excluding particular evidence. 13. I propose to stand over the motion to 17 and 18 December 2020 to permit the applicants to consider this judgment and, if so advised, identify whether to seek a specific order under ss 60(3) and/or 136 of the Evidence Act and/or a direction from the Court about the non-hearsay use only which may be made of the evidence and to identify specific pieces of evidence which may be the subject of a specific application under ss 135 or 137 for exclusion. 14. I have decided that it is inappropriate to address the additional issues that the applicants and the Crown debated about the application of s 84 on the hypothesis that my principal conclusion above is incorrect. This is because, even if I am wrong in my principal conclusion, the applicants have not addressed at least two related preliminary questions. First, the applicants have not addressed whether the evidence objected to amounts to an overt act of the charged conspiracies and the effect on any act or utterance which amounts to an element of the offence. An overt act of a conspiracy offence, as that term is described in R v LK (2010) 241 CLR 177; [2010] HCA 17 is essential to proof of the offences charged here. In Beckett v R [2014] NSWCCA 305; (2014) 315 ALR 295, the Court of Criminal Appeal [1] held: "[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.) 1. Thus, to the extent that any of the acts and utterances objected to are overt acts of the conspiracies, the relevant acts and utterances are arguably not "admissions" but, rather, primary evidence relied on by the Crown as proof of the offences charged. It is undesirable to express a view about the proper operation of s 84 in this case without that factual foundation being established. 2. The second, and related, matter not addressed by the applicants was the precise identification of the previous representations to which it is said that the hearsay rule applies. Whilst it was common ground that some (unidentified) utterances capable of amounting to admissions were made, I regard it as undesirable to express a view about the proper operation of s 84 without that factual foundation being established. Conclusion and order 1. I have concluded that evidence of acts or declarations of alleged co-conspirators may be adduced for a non-hearsay purpose. The subject matter, scope and purpose of the Evidence Act makes clear that evidence may be adduced for a non-hearsay purpose, even if that evidence is capable of characterisation as an admission. Section 60(3) of the Act is specifically addressed to evidence admissible for a non-hearsay purpose which is capable of characterisation as an admission. In the case of evidence meeting that description, s 60 does not apply to that evidence. 2. No submission was made that evidence of any particular act or declaration sought to be adduced by the Crown for the non-hearsay purpose identified in Elomar was inadmissible, save that ss 84 and 90 were said to apply. Sections 84 and 90 apply only to evidence adduced as an admission. Sections 84 and 90 have no application in relation to evidence admissible for another purpose, unless that evidence is adduced as an admission. 3. For the foregoing reasons, the notice of motion dated 1 December 2020 is dismissed to the extent it relates to ss 84 and 90 of the Evidence Act. The notice of motion dated 1 December 2020 is stood over for further hearing on 17 and 18 December 2020 to the extent it relates to ss 135 and 137 of the Evidence Act. ********** Endnote 1. Reversed, but not on this issue, in The Queen v Beckett (2015) 256 CLR 305; [2015] HCA 38. 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