Supreme Court New South Wales Medium Neutral Citation: R v Cranston (No 17) [2022] NSWSC 1522 Hearing dates: 1 November 2022 Date of orders: 2 November 2022 Decision date: 09 November 2022 Jurisdiction: Common Law - Criminal Before: Payne JA Decision: Dismiss the notice of motion filed in Court on 1 November 2022 Catchwords: CRIMINAL PROCEDURE – Stay of proceedings – Inherent power to prevent abuse of process – two counts charged – whether elements of counts wholly subsumed in other – whether additional criminality reflected in two counts – whether stay should be granted Legislation Cited: Copyright Act 1968 (Cth) Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth), ss 11.5, 135.4, 400.3 Cases Cited: Chia Gee v Martin (1905) 3 CLR 649; [1905] HCA 70 Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 Dickson v R [2016] NSWCCA 105 Environmental Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; (1992) 64 A Crim R 124 Hesketh v The Queen (2021) 106 NSWLR 200; [2021] NSWCCA 262 Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270 Li Wan Quai v Christie (1906) 3 CLR 1125 Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 R v Anquetil [2020] NSWSC 995 R v Cranston (No 2) [2020] NSWSC 1102 R v Cranston (No 6) [2020] NSWSC 1777 R v Cranston (No 7) [2020] NSWSC 1834 R v Cranston (No 9) [2021] NSWSC 1413 R v Cranston (No 10) [2021] NSWSC 1637 R v Cranston (No 11) [2022] NSWSC 167 R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 R v Dodd (1991) 56 A Crim R 451 R v Hammond [2020] NSWSC 888 Standen v Director of Public Prosecutions (Cth) (2011) 218 A Crim R 28; [2011] NSWCCA 187 Wemyss v Hopkins (1875) LR 10 QB 378 Texts Cited: Regina (Crown) Adam Michael Cranston (Accused) Lauren Anne Cranston (Accused) Dev Menon (Accused) Jason Cornell Onley (Accused) Patrick Willmott (Accused) Category: Procedural rulings Parties: Crown Adam Michael Cranston (Accused) Lauren Anne Cranston (Accused) Dev Menon (Accused) Jason Cornell Onley (Accused) Patrick Willmott (Accused) Representation: Counsel: P McGuire SC with J Paingakulam and C Tran (Crown) J Stratton SC with H Blake (Adam Cranston) TD Anderson SC (Lauren Cranston) P Bruckner (Dev Menon) RL Seiden SC with WR Johnson (Jason Onley) L Brasch (Patrick Willmott) Solicitors: Commonwealth Director of Public Prosecutions (Crown) One Group Legal (Adam Cranston) Greg Willis Criminal Defence Lawyer (Lauren Cranston) Hardinlaw (Dev Menon) Pure Legal (Jason Onley) The Defenders (Patrick Willmott) File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291 Publication restriction: Not to be published other than to the parties until after the trials of each of the accused are completed. Judgment 1. On 2 November 2022, I dismissed a notice of motion filed by Mr Jason Onley seeking a stay of the indictment and ancillary relief. These are my reasons for making that order. Background 1. The trial of the five accused, Adam Cranston, Lauren Cranston, Dev Menon, Jason Onley and Patrick Willmott, commenced on 26 April 2022. The first four of the aforementioned accused were committed for trial in this Court on 20 September 2019. On 9 March 2021, Patrick Willmott was arraigned in this Court. On 21 September 2021, each of the five accused was re-arraigned and pleaded not guilty to the two counts on the indictment presented on that day. 2. There was a long pre-trial history. I have personally case managed these proceedings since February 2020. In that time, I heard and determined numerous applications dealing with various issues including pre-trial disclosure and the admissibility of evidence proposed to be led in these proceedings: see for example R v Cranston (No 2) [2020] NSWSC 1102; R v Cranston (No 6) [2020] NSWSC 1777; R v Cranston (No 7) [2020] NSWSC 1834; R v Cranston (No 9) [2021] NSWSC 1413; R v Cranston (No 10) [2021] NSWSC 1637; R v Cranston (No 11) [2022] NSWSC 167. 3. Prior to the trial commencing on 26 April 2022, I was assured by counsel for each of the parties that there were no further legal issues requiring determination. 4. At the time of this judgment, the trial has now been proceeding for over six months. The jury have already heard evidence from many witnesses. Among these witnesses was [redacted]. [redacted] is an alleged co-conspirator of the accused. He gave detailed evidence over 22 days about the alleged Plutus Payroll tax fraud conspiracy and the alleged money laundering conspiracy which form the basis of the two counts on the indictment against each of the accused. 5. It was only on 28 October 2022 that counsel for Mr Onley informed me that his client intended to make a stay application on the basis of a legal argument that, as I was subsequently told, had been contemplated before the trial commenced. Counsel for the remaining accused joined in the application but made no written or oral submissions beyond adopting submissions made on Mr Onley's behalf. 6. Whilst I accept that fresh legal issues can emerge in long trials, I am satisfied that this was not such an issue. In particular, I do not accept that the possibility that the Crown may successfully seek to amend the particulars it had given provided any basis to delay this application for over six months and until the last day before the Crown closed its case. Notice of Motion 1. The notice of motion, filed in Court on 1 November 2022, sought the following orders: 1. The prosecution on the indictment be stayed, pending the Crown's election on which charge will be proceeded on, or on such further or other terms as are just. 2. In the alternative, Count 1 on the indictment be dismissed in the interests of justice under s. 135.4(13) of the Schedule to the Criminal Code Act 1995 (Cth). 3. In the alternative, Count 2 on the indictment be dismissed in the interests of justice under s. 11.5(6) of the Schedule to the Criminal Code Act 1995 (Cth). 4. Such other order as the Court thinks fit. Applicant's submissions 1. The five accused face an indictment containing two counts: 1. conspiring with others with the intention of dishonestly causing a loss to the Commonwealth (s.135.4(3) of Schedule 1 (the Code) of the Criminal Code Act 1995 (Cth)) (Count 1). 2. conspiring with others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime (ss.11.5(1) and 400.3(1) of the Code) (Count 2). 1. Mr Onley submitted that, as a consequence of the way the Crown put its case in opening, Count 1 is wholly subsumed in Count 2 because: 1. the Crown relies upon the offence in Count 1 as the predicate offence to Count 2, and that the two agreements subject to Counts 1 and 2 "existed at the same time and were implemented concurrently"; 2. the Crown case is that the facts and evidence in respect of the whole of the case are relevant to both Counts 1 and 2; and 3. the overt acts relied upon by the Crown are common to both Counts 1 and 2 and are wholly overlapping. 1. Ms Seiden SC, who appeared on the motion with Mr Johnson for Mr Onley, submitted that the Crown must elect on which Count it will proceed. Failing such an election, there should be a stay of these proceedings until an election is made. 2. It was submitted by Ms Seiden that the test for when a plea in bar would lie in circumstances where the offences were not identical (as in this case) was articulated by McHugh, Hayne and Callinan JJ in Pearce v R (1998) 194 CLR 610; [1998] HCA 57 (at [20], quoting Griffith CJ in Chia Gee v Martin (1905) 3 CLR 649; [1905] HCA 70 at 653) as "whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first", which requires the Court to pay attention to "what must be proved to establish commission of each of the offences". 3. The focus, it was submitted, should be on whether the elements of the offences are identical or whether all the elements of one are wholly included in the other (citing Pearce at [24]; Wemyss v Hopkins (1875) LR 10 QB 378; Li Wan Quai v Christie (1906) 3 CLR 1125; [1906] HCA 42 at 1131; and Environmental Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; (1992) 64 A Crim R 124). 4. In oral address, Ms Seiden placed considerable reliance on Wemyss v Hopkins as establishing that the abuse of process doctrine has been applied to quash a conviction where two charges had been laid in respect of the same conduct. Ms Seiden relied upon that fact that it was held that the first conviction of negligence or wilful misbehaviour was a bar to the second, the Crown having propounded an unlawful assault case based on wilful misbehaviour. 5. R v Dodd (1991) 56 A Crim R 451 was also cited as authority for the proposition that the Court should consider the substance of two relevant offences in terms of the particulars of the charge in light of the facts of the case. In that case, the conviction for possessing illegal drugs was a bar to a subsequent conviction for supplying them where the charge of supply was merely an aggravated version of possession. Ms Seiden submitted that the majority in Pearce confirmed this as an appropriate approach in that the Court ought to consider "what must be proved to establish commission of each of the offences", which necessarily involved a consideration of the evidence necessary to prove each Count. 6. In writing, Ms Seiden also relied upon Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 as authority for the proposition that it would be an abuse of process for the Court to convict a person of an offence which amounted to selling an item unlawfully and an offence of dealing with the proceeds wholly derived from that offence where the dealing constituted merely receiving the funds, where there was no additional criminality to which the dealings charge could attach. 7. Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 was distinguished from Nahlous and the present case. There the Court (Hoeben CJ at CL, Harrison and Beech-Jones JJ agreeing) held there was no basis for a plea in bar as there was a separate element in each of the charges. It was submitted that Delaney should be distinguished on the facts, because a demand with menaces does not of necessity involve the receipt of funds and thus there was no overlap with the dealings charge. It was further submitted that Delaney was distinguishable from the present case, as a failure to remit tax necessarily results in receipt (and possession) of funds which can then be further dealt with. 8. Ms Seiden relied on R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 for the proposition that it is necessary to consider carefully the particulars and overt acts, including what facts are necessary to be proved for each element. 9. It was submitted that, for multiple charges arising out of the same acts or course of conduct, there must be additional criminality in respect of each charge as distinct from the other and that the nature of the relevant offences is to be understood in light of the particulars of each charge. 10. Ms Seiden submitted that, having regard to what was said in Pearce at [20], the test here is whether "the evidence necessary to convict on the Proceeds Count (Count 2) [was] sufficient to convict on the Fraud Count (Count 1)". It was submitted that this test was satisfied in Mr Onley's case because, notwithstanding that Count 2 "has on its face different elements" to Count 1, given the facts necessary to prove the elements and the Crown's pleaded case were the same, the latter is wholly subsumed within the former. 11. In respect of the elements of Counts 1 and 2, it was submitted that, with respect to Count 2, to prove money dealt with was proceeds of a crime, the Crown must first prove that Mr Onley believed the money he had agreed to deal with was the proceeds of Count 1. This necessarily, it was submitted, entailed the Crown proving Mr Onley's participation in the conspiracy, the subject of Count 1, to ground his belief that the money he conspired to deal with was proceeds of Count 1. As such, it was submitted, every element of Count 1 will have to be made out to establish the facts necessary to make out Count 2. 12. In respect of the particulars and the Crown's opening, Ms Seiden submitted that it was the Crown's case for Count 2 that the belief that moneys to be dealt with were proceeds of crime comprises participation in Count 1, not simply passive observation or awareness of it. It followed, it was submitted, that the Crown relies on Mr Onley's participation in Count 1 to found belief for the purposes of proving Count 2. The Crown also relied upon the same evidence of conduct to prove knowledge or belief for Count 2 and participation in furtherance of Count 1, including the same overt acts. 13. Ms Seiden also relied upon a co-incidence in timing, the Crown's case being that the respective accused joined each of the two separate agreements contemporaneously. The Crown case was also that the two conspiracies are alleged to have been agreed and carried out simultaneously. It was submitted that the Crown case was that the "whole purpose" of Count 1 was self-dealing, the subject of Count 2. 14. Ms Seiden submitted therefore that it was an abuse of process in continuing both charges arising from the fact that (a) if the Crown makes out Count 2, they will necessarily have made out Count 1, and (b) proof of knowledge or belief for Count 2 relies on Count 1. 15. It was submitted that this was not a case where each charge required proof of something not required to be proved in the other charge. Count 2 requires something additional to that required to be proved under Count 1 (i.e. dealing), but the same cannot be said in reverse. 16. In the alternative, Ms Seiden submitted that if the argument on abuse of process was rejected, but only on the basis that the Crown had provided separate particulars of the "statutory" overt acts, the Court should exercise its power to dismiss a charge of conspiracy under s 135.4(13) (for Count 1) and s 11.5(6) (for Count 2) of the Code, because it would be in the interests of justice to do so. Consideration Relevant law 1. A person who has been convicted or acquitted of an offence cannot be prosecuted later for the same offence. A plea in bar arises in relation to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. A plea in bar is not available if a person is charged with different offences arising out of substantially the same set of facts. In Pearce, McHugh, Hayne and Callinan JJ explained this distinction: "[18] It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for "substantially the same" offence, or for an offence the "gist" or "gravamen" of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins, for the "same matter". It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. … [23] Thus Blackburn J speaks of "proceedings for the same offence" and punishment "for the same matter"; Lush J speaks of prosecution "twice for the same offence" and conviction "again for the same act"; Field J speaks of twice being "punished for the same cause". (Examination of other reports of the same case reveal even greater differences in expression.) But, all of these expressions must be understood in their context. Their differences should not obscure the fact that the elements of each offence alleged against Wemyss were identical. The inquiry made in Wemyss was an inquiry about the offences that had been alleged, not about what other offences the relevant statutes might create. Thus the case against Wemyss on the first prosecution appears to have been not a case of negligent conduct but one of "wilful misbehaviour" constituted by his intentionally striking the victim's horse. That being so, the court was satisfied that the case propounded on the second prosecution was identical with the case propounded on the first. [24] On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other. … [28] Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld." (footnotes omitted) 1. In Pearce, Gummow J reached the same conclusion for separate reasons: "[63] Had the occasion required a comparison between the elements of the two disputed counts 9 and 10 for the purposes of ascertaining the availability of a plea in bar, in my view the applicable principles would have been those explained by McHugh, Hayne and Callinan JJ, with particular reference to what they say respecting Wemyss v Hopkins and Blockburger v United States. It may also be noted that in United States v Dixon, Rehnquist CJ stated that the cases applying Blockburger "have focused on the statutory elements of the offenses charged, not on the facts that must be proved under the particular indictment at issue". The New Zealand Court of Appeal took a similar approach in R v Brightwell." (footnotes omitted) 1. These conclusion by a majority of the High Court about how it is that Wemyss should be understood are inconsistent with the meaning attributed to that case by Ms Seiden. 2. Kirby J agreed with the conclusion of the plurality in Pearce and said: [125] This Court should accept the same test for a complaint about duplication in a second indictment or second charge as that now adopted in England, the United States and other jurisdictions of the common law. To make the complaint good, it is necessary to show that the subject of the second prosecution or charge is the same offence or substantially or practically the same. The last words allow for minor variations in the verbal formulae of offences under comparison. It is necessary in each case to analyse the essential elements of the offences said to be duplicated. Minor differences of language may be discarded. But elements which add distinct and different features (normally of aggravation) to the definition of an offence will result in differentiation between charges which is legally significant. To prosecute an accused in respect of such different offences is not to offend the rule of the common law against double jeopardy. There is jeopardy; but it is not double because the offences are not legally the same. By this test, the elements of the offences charged in counts 9 and 10 are different. They are not the same; nor are they substantially or practically the same. The evidence necessary to establish the elements in count 10 might fall short of establishing the specific intent alleged in count 9 necessary to secure a conviction of the offence against s 33 of the Act." (footnotes omitted) 1. In Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30, the High Court returned to this subject. Gleeson CJ, Heydon and Crennan JJ said: "[30] As the joint judgment pointed out, when Griffith CJ said in Li Wan Quai v Christie that "[t]he true test whether [a plea of autrefois acquit] is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first", his reference to "evidence" must be understood as a reference to the facts constituting the elements of the offence. One thing is clear. Griffith CJ was referring to a case, like R v Elrington, where the offence the subject of the second charge was, to use the words of Cockburn CJ, a more aggravated form of the offence the subject of the first charge. In the passage from Li Wan Quai v Christie just quoted, which was cited in Pearce v The Queen, Griffith CJ referred to the twenty-first edition of Archbold's Criminal Pleading. His statement of the "true test" was taken directly from Archbold, which, in turn, referred to R v Elrington. It cannot be that Pearce v The Queen was contradicting the propositions stated by Cockburn CJ and Griffith CJ. …." (footnotes omitted) 1. In Island Maritime Gummow and Hayne JJ explained: "[49] No doubt a plea in bar is available if the offence charged second is the same offence as was the subject of an earlier conviction or acquittal. But the pleas in bar are not confined to cases of identical charges. As was noted in Pearce, Li Wan Quai expressed the relevant test (as did other earlier cases) as being whether the first prosecution was for an offence "substantially the same" as the second offence charged. Expressing the test in this way presented further questions. In particular, what was meant by "substantially the same"? As the course of United States' decisions reveals, to treat the test of "sameness" as requiring identity (or substantial identity) between the evidence that had to be led in support of the two charges produces a rule that is unstable in application. Rather, as the course of decisions in this Court, up to and including the decision in Pearce, reveals, the relevant test must be framed by reference to the elements of the offences under consideration. But recognising that the test of "sameness" requires examination of the elements of the two offences in question, rather than of the evidence that may be offered in proof of each, does not reveal the extent of the overlap that is to be required if the test is to be met. Rather, to identify the content of the test of "sameness" of two offences, when expressed by reference to the elements of those offences, it is necessary to consider the principles and values that underpin both the availability of a plea in bar of autrefois acquit and the application of an analogous principle in cases in summary jurisdiction." (emphasis in original; footnotes omitted) 1. In Dickson v R [2016] NSWCCA 105, Schmidt and Wilson JJ (Macfarlan JA agreeing) said: "[72] In determining whether a plea in bar exists, consideration must be given to those matters raised in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 ("Pearce"), and to whether the evidence necessary to establish count 6 would have been sufficient to sustain a guilty verdict for count 1: Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649; Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125. This necessarily means considering the elements of each offence to see if there is complete correspondence between them. [73] To prove count 1, an offence contrary to s 135.4(5) of the Criminal Code 1995 (Cth) ("the Code") the Crown had to prove, beyond reasonable doubt that: (1) The appellant conspired (that is, entered into an agreement) with Michael Issakidis to intentionally and dishonestly cause a loss or risk of loss to a third person; (2) The appellant knew or believed that the loss would occur or that there was a substantial risk of loss occurring; (3) The third person is the Commonwealth; and (4) The appellant or Mr Issakidis committed an overt act in furtherance of the agreement. [74] To prove count 6, an offence contrary to ss 11.5 and 400.3 of the Code, the Crown had to prove beyond reasonable doubt that: (1) The appellant conspired with Michael Issakidis to "deal with" money or other property which is the proceeds of crime; (2) The appellant believed the money or property to be the proceeds of crime, or he believed it would become an instrument of crime; and (3) The money or other property was valued at or in excess of one million dollars. [75] "Deal with" means receiving, possessing, concealing or disposing of money or property; importing money or other property to, or exporting it from, Australia; or engaging in a banking transaction relating to money or other property. [76] As that outline of the elements of each of the two offences makes clear, the elements required to be proved are different, and quite separate. [77] A plea in bar is not available to prevent a person being prosecuted for different offences arising out of the same set of facts. Its availability is confined to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other: Pearce at [24] per McHugh, Hayne and Callinan JJ. [78] No plea in bar could arise here based upon the sameness or commonality of the elements of the offences since each of the offences with which the appellant was charged required proof of a fact which the other did not. [79] The appellant's broader argument is that the division by the Crown of the charged conduct into two offences was an abuse of process which should have led to count 6 being stayed. That argument, however, is no more meritorious than is the argument for the availability of a plea in bar. [80] It is open to a trial judge to stay the prosecution of a particular charge where a separate charge on the indictment arising from the same conduct readily encompasses the criminality of that charge: Thorn v R [2009] NSWCCA 294. In such circumstances there is a basis to conclude that the addition of a separate charge is oppressive. [81] However, that is not the situation that arises in the present matter." 1. As these cases make clear, a plea in bar is not the only way in which the law manifests a concern about double jeopardy. Even if a plea in bar is not available, this Court retains an inherent power to prevent abuse of its processes. In Pearce, McHugh, Hayne and Callinan JJ acknowledged at [29] that "there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process" (emphasis in original). 2. Gummow J held at [67] that "the inclusion of separate counts for what in substance, if not entirely in form, is the same offence may be an abuse of process". 3. It is a demanding task for an accused person to demonstrate an abuse of process in the laying of more than one charge arising out of the one course of conduct because a permanent stay is an exceptional remedy. 4. In this field of the operation of the principle, one important consideration is whether the elements of one of the offences are the same, or included in, the elements of the other offence. Essentially, could a plea in bar have been entered had it been sought, or had the offences been prosecuted sequentially rather than concurrently? 5. If the elements are not the same, then that is often a sufficient reason why the prosecution of both offences is not an abuse of process. That is so because "it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach" and because "prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct" (Pearce at [11]; [13]). It is often the case that charging an accused with multiple offences arising out of a single event may have to be done to capture the entire criminality of the conduct. 6. The force of this consideration is demonstrated by the fact that some cases have rejected the existence of an abuse of process on account of this consideration alone. Pearce is one such case. McHugh, Hayne and Callinan JJ (with whom Gummow J agreed) said this: "[31] There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately." 1. Another example is Delaney. In Delaney, Mr Delaney had threatened the victim such that the victim handed money over to Mr Delaney's co-offender, Mr Ivory. Mr Delaney was charged with demanding money with menaces in the company of another and with intent to steal that property contrary to s 99(2) of the Crimes Act 1900 (NSW) and receiving proceeds of crime knowing them to be proceeds of crime contrary to s 193B(2) of that Act. Mr Delaney argued that the facts underpinning Count 3 "were the same as those relied on with respect to count 2" (at [32]) and that an abuse of process thereby resulted. 2. Hoeben CJ at CL (Harrison and Beech-Jones JJ agreeing) dismissed this ground of appeal stating: "[36] The simple answer to this ground of appeal is that the elements of offences contrary to s 99(2) and s 193B(2) of the Crimes Act are different. Neither offence is wholly included in the other. Each of the offences require proof of a fact which the other did not. In the case of the s 99(2) offence, there is the element of the demand with menaces, and in the s 193B(2) offence there is the dealing with the proceeds of crime." 1. Of course, as the doctrine of abuse of process is not limited to circumstances where a plea in bar can be established, in considering whether one charge is an abuse of process an important consideration is whether the criminality involved in the two charged offences is the same, such that the criminality associated with one could have been captured in sentencing for the other. If they are the same, then this may lead to a conclusion that prosecution of both offences is oppressive, and thus an abuse of process. 2. In Standen v Director of Public Prosecutions (Cth) (2011) 218 A Crim R 28; [2011] NSWCCA 187, Adams J reasoned that the criminality of one charge was not encompassed in the criminality of the other, even if the criminality of the latter was encompassed in the criminality of the former. Usually, to amount to an abuse of process on this basis, the whole of the criminality for each offence is captured in the other: Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270 at [56]. 3. In considering whether there is any difference in criminality between two offences, the cases make it clear that a single course of conduct may give rise to more than one and even multiple offences. Merely because one set of facts or evidence indeed prove two different offences does not mean that, for this reason alone, the criminality of the offending could have been captured by charging one offence. As Bell P (Price and Hamill JJ agreeing) explained in Hesketh v The Queen (2021) 106 NSWLR 200; [2021] NSWCCA 262: "[38] As Gleeson CJ observed in EPA, "it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct". A corollary of this is that the fact that the same set of underlying acts may contribute to or relate to more than one offence does not mean that the offender is necessarily being punished twice when sentenced for the different offences." 1. Bell P went on to say: "[40] Neither Pearce nor any other High Court authority holds that, where two or more offences are charged, the fact that the conduct that establishes one offence may also establish the commission of another offence means that a conviction achieved in respect of one of those offences should be quashed, cf Sessions. The position may be different where the second offence is merely an aggravated form of the first or where its prosecution would have amounted to an abuse of process." 1. The High Court in Pearce emphasised that the prosecutorial discretion in the formulation of charges should not lightly be confined. The plurality in Pearce observed at [30], "[t]he decision about what charges should be laid and prosecuted is for the prosecution". The offences charged in Pearce arose out of one relatively brief course of conduct and overlapped in terms of their elements, in that both of the counts charged had in common the infliction of grievous bodily harm. Nevertheless, the High Court rejected the suggestion that charging of two counts amounted to an abuse of process, emphasising the discrete criminality involved in the overlapping offences and the importance of not unduly constraining prosecutorial discretion in the choice of charges, 2. In writing, and perhaps to a more limited extent orally, Mr Onley relied on Nahlous. In that case, Mr Nahlous was charged with, and pleaded guilty to, several charges of selling unauthorised decoders contrary to the Copyright Act 1968 (Cth) and an offence of dealing in the proceeds of crime constituted by receiving $15,000 as a result of the unlawful sales. The Court of Criminal Appeal held that the proceeds offence ought to have been permanently stayed. 3. Nahlous should be understood as a case where an offence which included the element of a sale was held necessarily to involve the obtaining of a financial gain, being the other offence charged. As such, the receipt offence was subsumed by the more serious "sale offence" and there was no separate act of criminality. 4. Further, I agree with Beech-Jones J in R v Dickson (No 1), that Nahlous should not be understood as inviting an open-ended assessment of "criminality", but consistently with High Court authority, as focusing attention on the identity or difference in elements of the relevant offences. Beech-Jones J explained Nahlous as follows: "[26] The discussion in Nahlous referred to an abuse of process arising if there was no "separate act of criminality that warranted a separate charge and a separate penalty". As this passage was stated to be consistent with Pearce, I do not understand the concept of "act of criminality" as used in Nahlous to be different to elements of the offence. Thus this analysis leads to a conclusion that an abuse of process will occur in such cases where there is no element of the further offence which is separate and distinct from the predicate offence. However, if there is some element of overlap, even if not of a substantial nature, then without more it will not amount to an abuse of process. To the contrary, to conclude otherwise may result in the charges laid not fully reflecting the criminality of the conduct said to have been engaged in." 1. I respectfully agree with his Honour. 2. In the Court of Criminal Appeal in Dickson v R, an argument close to the present in some respects (albeit that it was the proceeds offence in that case which was alleged to be wholly duplicative of the fraud offence) was advanced. Mr Dickson was convicted of conspiring to cause a loss or risk of loss to the Commonwealth, being a complex tax fraud, and conspiring to deal with proceeds of crime being the fruits of that tax fraud by sending large sums of money overseas before returning them to Australia. Schmidt and Wilson JJ (Macfarlan JA agreeing) dismissed an argument that it was an abuse of process to have charged both offences. Their Honours said: "[82] In R v Dickson (No 1) the trial judge correctly concluded that there was an overall scheme put in place by the appellant, being an agreement to obtain a finance deal to derive income which would not be subject to taxation because it would be offset by false tax deductions. That conduct was reflected by count 1. Count 6 reflected the steps taken by the appellant, acting in agreement with Mr Issakidis, to conceal and "launder" the proceeds derived from the conduct the subject of count 1, by a series of involved international banking transactions. [83] The criminality of count 6 was quite separate to that of count 1, and the criminality of the latter did not reflect the former. [84] It is a matter for the prosecuting authority to frame charges against an accused person that adequately reflect all relevant criminal conduct, thus enabling a sentencing court to impose a punishment that fits the crime. That may involve charging separate offences carrying differing maximum penalties, albeit that each charge arises from the same set of facts. … [89] On the evidence, the appellant was dealing with the proceeds to "hide their source or change the nature of the proceeds." [90] The conduct charged by counts 1 and 6, whilst arising from a course of conduct with a single overriding dishonest purpose, was different in terms of both the overt acts undertaken and the criminality of those acts. Count 1 is directed towards the criminality involved in the agreement to cause a loss or risk of loss of tax revenue to the Commonwealth while count 6 is directed towards the criminality involved in agreeing to conceal the property derived from count 1, and involved considerably more than simply receiving the monies obtained from count 1. Elaborate and complicated financial transactions were effected involving numerous banking and other transactions offshore, the use of persons, companies and accounts in overseas jurisdictions to hide the appellant's role, and the creation of numerous false documents such as false loan documents and false bills of sale to disguise the true origins of the funds, and the connection of the appellant to them. [91] The criminality involved in count 6 was considerably different to that involved in count 1, and it could not have been addressed by count 1, particularly by any sentencing court." 1. In considering whether an abuse of process has been shown, a further important consideration is whether or not guilt on one charge would necessarily result in guilt on the other and vice versa. If that outcome is inevitable, it is an indicator that it might be oppressive to charge both counts. In Standen, Hodgson JA (Adams J agreeing) said this: "[22] It is clear that the elements are different, and that there is at least a theoretical possibility that the applicant could be found guilty of one and not of the other [23] I accept that it is likely that if the applicant is found beyond reasonable doubt to be guilty of one count he will be found guilty of the other; but I am not satisfied that the possibility of different verdicts is so remote that it can be dismissed. In particular, I think it is a realistic possibility that a jury could find beyond reasonable doubt that the applicant knew that the substance to be dealt with was some type of prohibited drug (this being sufficient for Count 2) but not that he knew it was pseudoephedrine or a border controlled precursor. [24] In written submissions for the applicant, objections were raised to some of the recorded conversations relied on by the Crown. These objections were not pursued in oral submissions; and in my opinion it would not be appropriate for this Court on this application to rule on admissibility. However, these objections indicate the types of points that may be raised in relation to the extensive evidence relied on by the Crown; and in my opinion, in a case of this sort, it is not possible at this stage to say that, if the Crown proves beyond reasonable doubt that the applicant knowingly took part in Jalalaty's attempt to take possession of the drug, it must be proved beyond reasonable doubt that he made an agreement with all the elements required for the conspiracy charge. [25] Thus, this is not a case like Nahlous where there was no possibility at all that the accused could be found guilty of one charge (in Nahlous, dealing in proceeds of crime) but not guilty of the other (in Nahlous, sale of unauthorised decoders), or vice versa." 1. Adams J added the following: "[34] I am unpersuaded that, as a practical matter, it is inevitable that a conviction upon one count will involve conviction of the other and vice versa. This is a difficult obstacle for the applicant to overcome without a detailed analysis of the Crown case. Such an analysis cannot practically occur in the context of this application and there is nothing in what I have seen that (at least) disposes entirely of the compelling argument of the Crown that there is a realistic possibility of different verdicts because of the different elements of each offence. The type of drug allegedly involved in each count differs significantly so that it remains distinctly possible (from the present vantage point) that the applicant might be acquitted of the importation charge and be convicted of the supply charge." 1. In considering whether an abuse of process has been shown, a fourth consideration is whether the criminality of one offence is properly to be regarded as "merely incidental or subsidiary" to the criminality of another offence. This may simply be another way of describing the second point above about additional or different criminality. In any event, in Standen, Hodgson JA (Adams J agreeing) said this about this topic: "[28] In my opinion, this is not a case like Nahlous in which one can say that one offence is the principal offence and the other is merely incidental or subsidiary. There is substantive criminality associated both with importation and with steps taken after importation, and it does not seem to me that either is purely incidental or subsidiary to the other." 1. In identifying these categories of abuse of process I do not intend to suggest that the categories are closed. Plainly, they are not. In this case, however, no further categories were relied upon by the applicants. Application of the law to the present case 1. I reject the principal way the applicant put his case in the present application. It is incorrect to say that "every element of count 1 will also have been made out" if Count 2 is established. In Count 2, the elements of the offence require proof of knowledge or belief by the accused and one or more conspirators that the money they agreed to be dealt with would be proceeds of an agreement, entered into by any two or more conspirators, referred to in Count 1. 2. The elements of Count 1 are: 1. In the period between about 1 March 2014 and about 18 May 2017, the accused person entered into an agreement with one or more other persons to do something with the intention of dishonestly causing a loss to the Commissioner of Taxation. 2. The accused person intended to enter into the agreement. 3. The accused person and at least one other party to the agreement intended to dishonestly cause a loss to the Commissioner of Taxation pursuant to that agreement. 4. The accused person or at least one other party to the agreement committed an overt act pursuant to that agreement. 5. The Commissioner of Taxation was a Commonwealth entity. 1. The elements of Count 2 are: 1. In the period between about 1 March 2014 and about 18 May 2017, the accused entered into an agreement with one or more other persons to deal with money believing it to be the proceeds of crime. 2. The accused person intended to enter into the agreement. 3. The accused person and at least one other party to the agreement intended that money would be dealt with pursuant to that agreement. 4. The accused person and at least one other party to the agreement knew or believed that the money to be dealt with pursuant to that agreement would be the proceeds of crime. 5. The accused or at least one other party to the agreement committed an overt act pursuant to that agreement. 6. The money dealt with would be of a value of $1,000,000 or more. 1. I find that the elements of the offences are quite different. The clearest differences are that Count 1 requires proof of dishonesty, whilst Count 2 does not. The differences work both ways. Count 2 requires dealings with the proceeds of crime whilst Count 1 does not. Each count requires proof of participation in different agreements, with different objectives. The mere fact that Count 1 involves the predicate offending providing the subject matter of proceeds of crime makes no difference to this conclusion. It is plain that an accused in Count 2 could be guilty without being found guilty of Count 1. 2. On the case propounded by the Crown here, the jury could, for example, find that there was an agreement between Peter Larcombe, Adam Cranston and Simon Anquetil dishonestly not to remit PAYG and GST to the Commissioner of Taxation. In that circumstance Adam Cranston would be convicted on Count 1. The jury could, however, fail to be persuaded beyond reasonable doubt that Jason Onley or Lauren Cranston participated in that agreement dishonestly not to remit PAYG and GST to the Commissioner of Taxation. In that event, having regard to the evidence and the way the Crown has put its case, it would still be open to the jury to convict either Jason Onley and/or Lauren Cranston of Count 2, on the basis that each learned that there were proceeds of the Count 1 agreement (in which they were not a participant), but nevertheless intentionally participated in a separate agreement to deal with those proceeds of crime. The Crown case is that Jason Onley and Lauren Cranston each participated in the Count 1 agreement and separately participated in the Count 2 agreement. That does not make it an abuse to charge both. Count 2 may be established without each element of Count 1 being established against Jason Onley or Lauren Cranston. 3. Dealing then with the question of whether the criminality involved in the two charged offences is the same, I find that Count 1 and Count 2, whilst overlapping in some respects, capture discrete criminality, being the non-remittance of the tax on one hand, and the dealing with the funds on the other. The different criminality for Count 2 included the use of elaborate and complicated financial transactions, involving numerous banking and other transactions, the use of "straw" directors, companies and accounts to hide the role of the accused, and the creation of false documents to disguise the true origins of the funds and the connection of the accused to them. I also reject the implicit suggestion that the criminality of Count 2 is properly to be regarded as "merely incidental or subsidiary" to the criminality of Count 1. The extent to which that separate criminality would likely affect a sentence given is shown by the sentences I have already imposed on co-conspirators in R v Anquetil [2020] NSWSC 995 and R v Hammond [2020] NSWSC 888. I reject Ms Seiden's submission that in sentencing for Count 2 (on the contingent hypothesis Count 1 was stayed) I could take into account the conduct engaged in amounting to a conspiracy to defraud. Such an approach would not be permitted: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. 4. The nature of the conspiracies alleged by the Crown is quite different. In opening, the Crown made the following submission to the jury about Count 1: "Now, dealing with the first conspiracy, the Plutus tax fraud conspiracy. In short, the Crown case in respect of that conspiracy is that the five accused and others developed a scheme to collect money that should have been paid to the tax office. They did this by agreeing through a company called Plutus Payroll Australia Proprietary Limited to provide payroll services to workers. … In addition, Plutus charged and collected GST on the payroll services it provided. Plutus was then to calculate the amount of net wages to be paid to the workers, after taking out the PAYG, and then pay those net wages to the workers, and pay the superannuation to the nominated superannuation funds, and was supposed to pay, what is sometimes called remit, to the tax office the PAYG it had retained and the GST that it had charged. Now, that is what Plutus was meant to do. But it is the Crown case that those involved in this Plutus tax fraud conspiracy, including the five accused, had no intention of paying all of the PAYG and GST it collected to the tax office. Now, as I have already said, approximately $105 million in taxes was collected which ought to have been paid to the ATO as PAYG and GST was not paid." 1. The Crown then opened the case to the jury about Count 2 in the following way: "So, members of the jury, you might be asking yourselves, what happened to this abundance of wealth and money which should have been paid to the ATO. Well, that brings me to outline count two. I think I can do this before 4 o'clock. In short, the Crown case in respect to the money laundering conspiracy is that, between about March 2014 and May 2017, the five accused and the others named on the indictment conspired to deal with money, believing it to be the proceeds of crime, and that money was worth a million dollars or more. What the Crown alleges is that the accused and others agreed to deal with that money, the money withheld from the tax office that should have been paid, the Crown alleges, to the tax office, and they dealt with it by receiving it from clients, possessing it, concealing it, disposing of it, and/or engaging in banking transactions relating to this money." 1. A great deal of time was spent in this application poring over particulars given prior to the trial and the Crown case statement to identify overt acts alleged. That is a fruitless task. The Crown, in opening, clearly identified the following overt acts of Count 1: "First, the discussions and meetings during and before April 2014 where the establishment and the running of a Plutus Payroll Services business was discussed. And it was discussed that that was a means of collecting and not paying taxes"; "Next, the incorporating of Plutus"; "Next, the holding out to the public of the services of Plutus by preparing those various pieces of advertising that you will recall I played for you on, I think it was, Wednesday last week. Advertising material provided to the public and to prospective clients";. "Next, engaging Plutus Payroll Services clients. That is, actually marketing and using these services with real people and real incomes"; "Next, receiving the gross wages, and charging and collecting GST from clients"; "Next, paying the net wages and superannuation to the clients including providing PAYG summaries to those clients"; "Next, managing Plutus including paying staff from the proceeds of the fraud"; "Next, incorporating, operating and managing OMNI payroll"; "Next, incorporating, operating and managing the various second tier companies including managing, and paying, and dealing with the straw directors. Arranging bank accounts, managing bank accounts, managing those companies and their relationships with the ATO, and impersonating directors in email communications"; "Next, creating various false documents to support the second tier companies"; "Next, winding up various of the second tier companies. A process I described a number of times as phoenixing"; "Next, setting up and implementing processes whereby some or all of the gross Plutus Payroll funds received by Plutus were passed on to the second tier companies"; "Next, setting up and implementing the processes whereby the second tier companies would pay the net wages and superannuation of clients of Plutus Payroll"; "Next, calculating the proportion of tax to remit to the ATO from time to time"; "Next, incorporating, operating and managing Synep Limited and its employees"; "Next, using the premises of Clamenz Lawyers"; "Next, directing the activities of other co-conspirators including Daniel Rostankovski, Aaron Paul, and Devyn Hammond"; "Next, meeting with and amongst other conspirators and discussing strategies for the ongoing operation of the conspiracies. That included a continuing concealment of the true nature of these activities, and misleading the regulators including the ATO, ASIC, and the Office of State Revenue to avoid prosecution"; "Next, devising and agreeing to use the false Peter Larcombe and/or James story to divert investigators"; "Next, coaching Ms Hammond and Mr Anquetil what to say to better deal with the ATO"; "Next, discussing strategies for frustrating any ATO investigation"; "Next, destroying evidence"; "Next, oral communications between October 2016 and May 2017". 1. Equally clearly, the Crown identified the following four categories of overt acts that were relevant only to Count 2. "First, soliciting, drafting, and paying invoices from various companies/entities and persons associated with the accused - and that includes, at times, establishing those companies or entities - so as to direct funds from the Plutus scheme to the personal betterment of the accused or people associated with them"; "Second, converting the proceeds of the Plutus tax fraud by various means to their own benefit or to the benefit of the others including by giving directions as to the movement of those funds. That includes banking directions and directions to straw directors"; "Next, concealing the fact or purpose of the movement of funds including the reiteration of false documents and accounting records"; "Next, meeting with other conspirators and discussing strategies to respond to the blackmail demands including paying in excess of $24 million to ensure the continuing concealment of the true nature of their activities". 1. I find that the particulars of overt acts of the two counts relied upon by the Crown in opening, whilst overlapping, were ultimately quite different. That fortifies my conclusion that the separate Counts captured distinct and additional criminality from each other. Further, some of the conduct relied upon by the Crown specific to Count 2 concerned concealing the funds, for example "concealing the fact or purpose of the movement of funds including the reiteration of false documents and accounting records". That is additional criminality of a kind that goes beyond dealing constituted by mere receipt or possession. 2. If it matters, I also find that the particulars of overt acts identified by the Crown in Annexure A to its submissions (and amplified by a further reference given with leave after the hearing) further demonstrate that for each of the accused the particulars of overt acts of the two counts relied upon by the Crown in opening, whilst overlapping, were ultimately quite different. 3. No complaint by Mr Onley or any of the accused was made at the time of the opening, over 6 months ago, that these particulars were not open to the Crown or that somehow the case opened was inconsistent with the written particulars provided before the trial started. I find that the narrower way the Crown opened the overt acts relied upon for each conspiracy was open to the Crown, despite the wider particulars given in writing long before the trial commenced. 4. Finally, the notice of motion seeks dismissal of one or both conspiracy charges "in the interests of justice". Section 11.5(6) of the Code provides that "[a] court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so". Section 135.4(13) provides that "[a] court may dismiss a charge of an offence against this section if the court thinks that the interests of justice require the court to do so". 5. The only basis for dismissal on these bases suggested by Ms Seiden relied upon my being satisfied that a stay was otherwise appropriate, save for the more limited particulars of "statutory" overt acts given by the Crown in writing long before the trial. The contingent hypothesis upon which this submission was based has not been established. I am not satisfied that a stay is appropriate here and, in any event, have found that the narrower way the Crown opened the particulars of overt acts relied upon for each conspiracy was open to the Crown, despite the wider particulars given in writing long before the trial commenced. The differences in the particulars of "statutory" overt acts given by the Crown in writing long before the trial have played no part in my determination that a stay should not be granted. Conclusion and order 1. For the foregoing reasons I made the following order of 2 November 2022: 1. Dismiss the notice of motion filed in Court on 1 November 2022. Amendments 21 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: 21 March 2023