R v Alex & Ors (Trial Ruling No 4) - [2024] NSWSC 1129

Supreme Court

New South Wales

Medium Neutral Citation: R v Alex & Ors (Trial Ruling No 4) [2024] NSWSC 1129
Hearing dates: 28 May 2024
Date of orders: 28 May 2024 and 31 May 2024
Decision date: 05 June 2024
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
1. The Crown case on count 1 is to be limited to a conspiracy to cause non-remittance of PAYG withholding amounts in connection with the business of GHRC and CPC and will not be left to the jury as including a conspiratorial objective relating to PAYG withheld from employees of Superform (Queensland) Pty Ltd.
2. There are to be directed verdicts of not guilty in respect of Arthur Alex on counts 1 and 2.

Catchwords:
CRIMINAL PROCEDURE — Trial — conspiracy to defraud Commonwealth of PAYG tax — latent duplicity — Crown evidence only consistent with two conspiracies — Crown directed to close its case on only one of the conspiracies — where no evidence available to find one accused guilty of the conspiracy charge so confined — verdict by direction for that accused

Legislation Cited:
Criminal Appeal Act (1912) NSW
Criminal Code (Cth)
Evidence Act 1995 (NSW)
Taxation Administration Act 1953 (Cth)

Cases Cited:
Ahern v The Queen (1998) 165 CLR 87
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
R v Griffiths [1966] 1 QB 589
R v Ongley (1940) 57 WN (NSW) 116
R v. Greenfield [1973] 1 WLR 1151; [1973] 3 All ER 1050
Saffron v The Queen(No1) (1988) 17 NSWLR 395
R v West [1948] 1 KB 709

Texts Cited:
Gillies, The Law of Criminal Conspiracy (1981)

Category: Procedural rulings
Parties: Rex
George Alex
Lindsay Kirschberg
Gordon McAndrew
Pasquale Loccisano
Mark Bryers
Arthur Alex
Representation:
Counsel
C O’Donnell SC with H Mann B Anniwell and R O’Donnell - Crown
J Agius SC with E Beljic - Accused George Alex
M Breeze with Ms Edwards - Accused Kirschberg
D Price - Accused McAndrew
M Pickin - Accused Loccisano
L Brasch - 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

The six accused in this trial are: George ALEX, Lindsay KIRSCHBERG, Gordon McANDREW, Pasquale LOCCISANO, Mark BRYERS, Arthur ALEX.
The indictment contains two counts against all six accused, that they:

1 between about 1 July 2018 and about 21 July 2020 at Sydney in the State of New South Wales, the Gold Coast in the State of Queensland and elsewhere, did conspire with each other, with Kevin John McHugh, William Samuel Pahl and Lucas James Connell, and with divers others with the intention of dishonestly causing a loss…

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.

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Details

Case: [2024] NSWSC 1129
Decision Date: 05 June 2024

CaseChat Overview and Summary

The case before the court involved the Crown prosecuting four individuals for their alleged involvement in a conspiracy to defraud the Commonwealth of Pay As You Go (PAYG) tax. The dispute centred on the Crown's evidence being consistent only with two separate conspiracies, and the court was tasked with determining the appropriate legal course of action. The defendants faced charges of conspiracy to defraud the Commonwealth of PAYG tax, which allegedly occurred between January 2011 and March 2014. The court had to decide on the Crown's request to close its case on only one of the two conspiracies, and whether it was appropriate to direct a verdict for one of the defendants based on the evidence presented.

The primary legal issue before the court was whether the Crown should be allowed to close its case on only one of the two conspiracies identified by the evidence, and if it was appropriate to direct a verdict for one of the defendants based on the evidence presented. The court had to consider the legal principles governing the conduct of criminal trials, specifically whether the Crown's case should be confined to one conspiracy, and if doing so would result in a lack of evidence to secure a guilty verdict for one of the defendants on the conspiracy charge.

The court held that it was appropriate for the Crown to close its case on only one of the two conspiracies, as the evidence was consistent with two separate conspiracies. The court found that it was not necessary for the Crown to present evidence of both conspiracies in order to secure a conviction against the defendants involved in the first conspiracy. The court further held that it was appropriate to direct a verdict for one of the defendants, as there was no evidence available to find that defendant guilty of the conspiracy charge when the case was confined to the first conspiracy. The court concluded that the Crown's evidence was insufficient to establish the defendant's involvement in the first conspiracy, and that a verdict by direction was appropriate in these circumstances.

The court directed a verdict for one of the defendants, acquitting them of the conspiracy charge. The court found the remaining defendants guilty of their respective charges. The court also directed that the matter be remitted to the trial judge for sentencing of the remaining defendants.

Orders