Citation: R v Alex, George (Trial Ruling No 1) [2024] NSWSC 1128
Court: Supreme Court of New South Wales
Date: 5 June 2024
Judge(s): Fagan J
Background
Six accused, including George Alex, faced two charges in a conspiracy trial commencing February 2024. The principal charge alleged a conspiracy between 1 July 2018 and 21 July 2020 to cause loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (Cth), by failing to remit Pay As You Go (PAYG) withholding tax to the ATO. The second charge alleged a conspiracy to deal with proceeds of crime exceeding $1 million, contrary to s 400.3(1) of the Criminal Code (Cth). The total PAYG not remitted over the investigation period was approximately $12 million.
The case arose from a Queensland labour hire business. The Australian Federal Police obtained telephone intercept and surveillance device warrants in early 2019 and, over the following 18 months, recorded more than 100,000 conversations involving the accused and their associates.
This ruling addressed a specific procedural issue: the Crown's proposal, partway through the trial, to reduce the volume of audio evidence it would tender and play to the jury, and whether doing so at that stage was fair to the accused.
Legal Issues
- Whether the Crown could unilaterally reduce the volume of intercepted audio recordings it tendered during the trial, after having given pre-trial notice of 140 hours of such material.
- Whether any such reduction could be achieved without unfairness to the accused, particularly given defence objections raised before and during trial about the editing and non-tendering of certain conversations.
- How the court should manage the practical burden imposed on a jury by an exceptionally large body of audio evidence.
Decision
Before trial, the Crown gave notice of approximately 960 recordings totalling 140 hours of intercepted conversations, supported by around 7,800 pages of transcript. Playing this material would have occupied six to seven weeks of hearing time. Fagan J had repeatedly urged the Crown during directions hearings in 2022 and 2023 to reduce the volume, expressing concern about the burden on the jury and questioning whether the full body of recordings was genuinely necessary to establish the Crown's allegations.
The defence, in particular certain accused, had opposed many of the Crown's proposed edits on the basis that the redacted passages provided context for allegedly incriminating exchanges. Given those objections, the court was not prepared to simply permit the Crown to withdraw substantial portions of the audio evidence mid-trial without first ensuring that each accused had an opportunity to consent or object to specific deletions.
On 22 March 2024 (Day 25), Fagan J directed that the accused respond to the Crown's proposed deletions from a specific exhibit comprising 175 phone calls. For the broader body of remaining audio, the court made clear it would not compel the accused to respond to any further reduction proposals. In the absence of unanimous consent to deletion, the Crown was required to tender all material of which it had given pre-trial notice.
In practice, counsel used time between hearings to reach agreement on non-tendering of substantial portions of the later exhibits. After a day's adjournment granted on 6 May 2024 for that purpose, significant further reductions were achieved by consent. By the close of the Crown case on 23 May 2024, 111 hours of audio had been played to the jury, rather than the originally proposed 140 hours.
Orders Made
• By 27 March 2024, the accused to respond to the Crown's notification of intent to make deletions from Exhibit 10
• The Court would not require the accused to respond to the balance of the Crown's proposal or any further proposal for reduction of its tender of audio evidence
• The Crown was required to tender in its case all the audio material of which it gave notice prior to the commencement of the trial
• Jury stood down for Monday 6 May to allow counsel to reach agreement about non-tender of remaining conversations
Key Takeaways
- Where a Crown gives pre-trial notice of a large body of audio evidence, it cannot unilaterally withdraw significant portions mid-trial without affording each accused an opportunity to consent or object, given that defence positions may depend on the full evidentiary picture.
- Fagan J expressed serious concern about the practical capacity of juries to absorb very large volumes of intercepted conversation evidence, describing portions of the audio as having "no or marginal evidentiary value" and characterising much of the played material as "very unproductive."
- Reductions to tendered audio evidence in a multi-accused trial require unanimous agreement among all accused; where even one accused has a legitimate reason to retain a recording, the court indicated it would remain in the tender.
- Consensual negotiation between counsel, facilitated by time out of court, proved the most effective mechanism for reducing the audio burden, ultimately trimming approximately 29 hours from what had been a 140-hour tender.
- The ruling illustrates the tension between a Crown's pre-trial case management obligations and the practical demands of presenting extensive surveillance evidence fairly in lengthy criminal trials.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), ss 135.4(3), 400.3(1)
- Taxation Administration Act 1953 (Cth), Sched 1, ss 16-70 to 16-85, 353-10, 353-15
Cases cited: None cited in the judgment.