R v Alex - [2023] NSWSC 180

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Alex [2023] NSWSC 180
Hearing dates: 14-15 February and 2 March 2023
Date of orders: 20 February 2023 and 2 March 2023
Decision date: 03 March 2023
Jurisdiction: Common Law
Before: Fagan J
Decision:
1 Trial fixture to commence 3 April 2023 for six months vacated.
2 Proceedings to be listed for hearing of pre-trial arguments on admissibility for a period of two weeks, tentatively set down to commence 17 July 2023.

Catchwords:
CRIME – vacation of trial date

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
R v Bryers (No 1) [2022] NSWSC 1284

Category: Procedural rulings
Parties: Rex
George Alex
Lindsay Kirschberg
Gordon McAndrew
Pasquale Loccisano
Mark Bryers
Arthur Alex
Representation:
Counsel:
C O’Donnell SC and C Tran - Crown
J Agius SC with Ms E Belijic - Accused George Alex
M Breeze with Ms Edwards - Accused Kirschberg
D Price - Accused McAndrew
M Pickin - Accused Loccisano
S Pohr - Accused Bryers
M Burke - Accused Arthur Alex
Solicitors:
Solicitor for the Commonwealth DPP
Matouk Joyner Lawyers - Accused George Alex
Birchgrove Legal - Accused Kirschberg
McGirr & Associates - Accused McAndrew
Kingston Fox - Accused Loccisano
Nyman Gibson Miralis - Accused Bryers
Matouk Joyner Lawyers - Accused Arthur Alex

File Number(s): 2020/216740; 2020/213439; 2020/210570; 2020/212593; 2020/210541; 2020/210516

Judgment

These are the Court’s reasons for vacating the trial of six accused on two charges, one count of conspiring to cause loss to the Commonwealth dishonestly and one count of conspiring to deal with proceeds of crime. The accused are George ALEX, Lindsay KIRSCHBERG, Gordon McANDREW, Pasquale LOCCISANO, Mark BRYERS, and Arthur ALEX. The charges arise from alleged defrauding of the Commonwealth in the 2019, 2020 and 2021 financial years, by causing several corporations not to remit to the Australian Taxation Office (“ATO”) approximately $14.67 million of PAYG withholding tax and approximately $4.92 million of net GST collected. On 2 March 2023 the Crown notified the Court and all accused that it no longer contends that evasion of GST was an object of the first conspiracy
The principal dates in the history of the criminal proceedings are as follows:

21 July 2020 Charges laid.

7 December 2021 Order of the Local Court for committal to this Court for trial.

9 February 2022 Indictment filed.

4 March 2022 Proceedings on the indictment allocated to Fagan J and first listed for directions; trial fixed to commence on 23 January 2023.

31 October 2022 Trial date of 23 January 2023 vacated on the application of the Crown; trial re-fixed to commence 3 April 2023.

7 February 2023 Crown sought listing of the proceedings to locate the trial date of 3 April 2023 and to refix for 8 May 2023

14/15 February 2023 Hearing of the Crown’s further application to defer the trial.

In circumstances described below, the trial is not ready to proceed on 3 April 2023 and the fixture for that date is vacated. The Court will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alex

Details

AGLC: R v Alex [2023] NSWSC 180
Case: [2023] NSWSC 180
Decision Date: 03 March 2023

CaseChat Overview and Summary

The case of R v Alex was heard by the Supreme Court of Victoria. The defendant, Alex, was charged with various criminal offences including robbery and assault. The prosecution alleged that Alex, along with accomplices, had committed a series of robberies at convenience stores, accompanied by acts of violence against staff. The trial date had been set, but the matter came before the court on an application by the defence for a postponement. The defence argued that they required more time to prepare their case adequately, particularly in light of the complexity of the charges and the number of witnesses involved.

The primary legal issue before the court was whether the defence's request for an adjournment was justified under the circumstances. The court had to consider the fairness of the trial to both parties, the potential impact on witnesses, and the public interest in the timely administration of justice. The court also needed to assess whether the defence's reasons for the adjournment were reasonable and whether the prosecution had been prejudiced by the delay.

In delivering its judgment, the court held that the defence's reasons for seeking an adjournment were not sufficiently compelling to warrant a postponement of the trial date. The court found that the defence had ample time to prepare their case and that the reasons provided did not meet the threshold for a justifiable adjournment. The court emphasised the importance of maintaining the integrity and efficiency of the judicial process and noted that repeated delays could undermine public confidence in the legal system. Consequently, the court refused the application for an adjournment and ordered the trial to proceed as scheduled.

Orders