CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — evidence — application for exclusion of evidence — whether alleged admissions influenced by violence or oppressive conduct — Evidence Act 1995 (NSW), s 84
CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — evidence — application for exclusion of evidence — whether probative value of evidence outweighed by the danger of unfair prejudice — Evidence Act 1995 (NSW), ss 135, 137
CRIME — federal offences — conspiracy — overt acts — Criminal Code (Cth), s 135.4(9)(c)
Legislation Cited:
Criminal Code Act 1995 (Cth) Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) Criminal Code (Cth), ss 11.5(1), 135.4(3), 135.4(9)(c), 400.3(1) Evidence Act 1995 (NSW), ss 84, 90, 135, 135(c), 137 Surveillance Devices Act 2004 (Cth), s 18(5)
[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 Cranston (No 9)
Sign in free to access the full text
Details
AGLC
R v Cranston (No 9) [2021] NSWSC 1413
Case
[2021] NSWSC 1413
Decision Date
CaseChat Overview and Summary
In the case of R v Cranston (No 9), the accused faced allegations of conspiracy under the Criminal Code. The case involved a complex web of commercial transactions and alleged admissions made by the accused, which the prosecution sought to use as evidence. The primary dispute centred around the admissibility of these alleged admissions under the Evidence Act 1995, particularly whether they were influenced by oppressive conduct or whether their prejudicial effect outweighed their probative value.
The court was tasked with determining whether the alleged admissions made by the accused were influenced by oppressive conduct, which would render them inadmissible under section 84 of the Evidence Act. Additionally, the court had to assess whether the probative value of these admissions was substantially outweighed by the danger of unfair prejudice under sections 135 and 137 of the Evidence Act. Given the sophisticated nature of the accused and their commercial acumen, the court had to closely scrutinise the circumstances under which the alleged admissions were made.
The court found that the accused, who were experienced businesspersons, understood the implications of the threats made by Mr Rostankovski as an opportunity rather than oppressive conduct. They acted promptly to mitigate the potential threat by creating documents that would shift blame and potentially exonerate themselves. The court concluded that the accused were not influenced by any oppressive conduct and that the admissions were made voluntarily. Moreover, the court determined that the probative value of the evidence did not substantially outweigh the danger of unfair prejudice. Consequently, the alleged admissions were deemed inadmissible.
The court ruled that the alleged admissions made by the accused were not influenced by oppressive conduct and could not be used as evidence in the trial. This decision was based on the accused's understanding of the situation and their proactive steps to address the potential threats. The court also found that the prejudicial effect of the admissions outweighed their probative value, leading to their exclusion from the trial.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Each of the accused who is alleged to have made an admission is a sophisticated businessperson involved, on any view, in an operative way in a complex series of commercial transactions. Mr Onley, in the TI and SD material, appeared commercially savvy and comfortable with complex concepts. Mr Menon was an experienced lawyer. Mr Adam Cranston was an experienced businessperson who explained to the other accused, at length, relevant aspects of the regulatory landscape and the relationship between civil and criminal enforcement of taxation laws and regulations. There is only one admission allegedly made by Mr Willmott. He was on the evidence commercially savvy and comfortable with complex concepts. There is only one admission allegedly made by Lauren Cranston. She demonstrated, on the evidence of the TI and SD material, a sound grasp of complex commercial transactions.Conclusion – absence of influence of the “threats” Even if, contrary to the conclusion I have reached, the media/Adam Cranston’s father and controlled story threats were ones of “oppressive” conduct within the meaning of s 84, I conclude on all of the evidence that any “threat” did not influence any of the making of the alleged admissions. On 1 February 2017 and at all times thereafter, the accused understood that Mr Rostankovski’s “threats” were in fact an opportunity they could turn to their own advantage to address the problem of possible criminal investigations by the ATO which the accused were aware of long before 1 February. They did that by seeking to put certain documents into place, including the deed and affidavits. There are numerous references in the TI and SD material to that being the end of the matter, in the sense that the documents would have a number of benefits:(1)firstly, they would dissuade any of the directors from approaching the ATO (that is, carrying out the threat that was conveyed as part of the conduct on 1 February);(2)secondly, they would give the false appearance that it was the directors who were responsible for the alleged conspiracy, not the accused; and(3)thirdly, they could be used by the accused in some form of defence to say that it was others, not them, who were involved in the carrying out of the alleged scheme and in doing so, escape criminal punishment. This is illustrated by the following statements made on 7 February 2017, six days after the approach by Mr Rostankovski:(1)Mr Menon’s statement that “what’s going to save us is the deed… That’s why, that was the key to the whole thing”. Mr Menon later said “once I have those affidavits … they’re checkmated” (see item 106); and(2)Mr Menon’s statement, in the context of a discussion about the “Peter Larcombe defence”, that the “second thing is it’s all in the deed. So the deed stipulates that Peter Larcombe ran this” (see item 117). There was then further discussion about how the deed would in fact prove to be beneficial for the alleged conspirators because it could be used by them in the future to distract attention away from them and towards the deceased Peter Larcombe.