R v Cranston (No 8)

1. [1]

   PAYNE JA: Consistent with the Court’s practice, this judgment will be published on www.caselaw.nsw.gov.au but will be removed at a time closer to any trial date which is subsequently fixed (see Matthews v R (No 2) [2013] NSWCCA 194 at [3]). To permit that to occur, I amend my non-publication orders made on 8 December 2020 in the matters of Adam Cranston (2017/148697), Lauren Cranston (2017/148185), Dev Menon (2017/148776) and Jason Onley (2017/149208) by including in each an order 2A: “Nothing in this order prevents publication of the contents of the Court’s judgment in R v Cranston (No 8) [2021] NSWSC 9.”

2. [2]

   On 20 September 2019, in the Local Court, Adam Cranston, Lauren Cranston, Jason Onley and Dev Menon were committed for trial in this Court. On 6 December 2019, the accused pleaded not guilty before Fullerton J to the following two counts in an indictment presented on that day:

3. [3]

   On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020.

4. [4]

   On 7 February 2020, the matter first came before me for pre-trial directions. Mr Cranston’s then-representatives appeared for the limited purpose of obtaining legal representation for Mr Cranston.

5. [5]

   On 13 February 2020, I convened the directions hearing with Mr Cranston in relation to his legal representation. I granted leave to file in Court a motion dated 13 February 2020 seeking a stay on Dietrich principles and directed the parties to file evidence and submissions.

6. [6]

   On 9 April 2020, I made orders seeking to crystallise any pre-trial disputes between the parties. Mr Cranston’s application for a stay in accordance with Dietrich principles was allocated to Beech-Jones J. The application was heard on 22 and 23 April 2020.

7. [7]

   On 1 May 2020, Beech-Jones J refused the application for a Dietrich stay: R v Cranston [2020] NSWSC 469. His Honour concluded, however, that the trial will involve complex issues of fact and law and that Mr Cranston was not in a position adequately to conduct his own defence: at [21]. An application was made by Mr Cranston to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW): Cranston v R [2020] NSWCCA 143. The Court dismissed the appeal. I will return to the judgment of the CCA later in these reasons.

8. [8]

   On 12 May 2020, I made timetabling orders in relation to all the then-existing pre-trial applications, proposed expert witnesses, the nature of the defences, and for the Crown to identify electronic materials which it would not seek to tender at trial. I ordered that any application for separate trials be filed and served by 15 June 2020 and listed the hearing for any such application on 7 July 2020.

9. [9]

   Since first appearing before the Local Court, Ms Lauren Cranston, Mr Menon and Mr Onley have all been granted legal aid. At all relevant times, they have appeared with a solicitor and a barrister. However, Mr Cranston was refused legal aid. With the exception of the present application, he has appeared unrepresented before me since 7 February 2020. On 15 June 2020, Ms Lauren Cranston filed a motion seeking the following orders:

10. [10]

    On the same day, Mr Onley and Mr Menon filed motions seeking relief in the same character as (2) and (3) of Ms Lauren Cranston’s orders sought.

11. [11]

    For reasons related to the COVID-19 pandemic, the August 2020 trial date was vacated. On 7 and 8 July 2020, I heard the applications made by Messrs Onley and Menon and Ms Lauren Cranston for a separate trial. In the course of the pre-trial application for a separate trial on 8 July 2020, I indicated a preliminary view, essentially for the reasons set out in R v Cranston (No 4) [2020] NSWSC 1104, that if legal aid was again refused and the ex gratia legal funding sought by Mr Cranston from the Commonwealth Attorney-General’s Department was not made available, I would order a separate trial for Mr Cranston.

12. [12]

    On 24 August 2020, I delivered judgment in relation to the motion by the accused Onley, Menon and Lauren Cranston for a separate trial from Adam Cranston given the failure of his Dietrich application: Cranston (No 4). Despite my strong preference that the alleged conspirators be tried together, I was satisfied that it would be fundamentally unfair to the remaining accused to be tried together with Mr Cranston if he remained unrepresented.

13. [13]

    I did not make an order for a separate trial on that date but stood the matter over to October 2020 to enable the Commonwealth to consider providing legal aid to Mr Cranston, thereby avoiding the unnecessary duplication of a lengthy and expensive trial.

14. [14]

    When the matter returned in October 2020, I was informed that whilst the Commonwealth Director of Public Prosecutions had sought to assist Mr Cranston to obtain legal aid from Legal Aid NSW and/or legal assistance from the Commonwealth Attorney-General’s Department so that he may be represented at the trial, neither body intended to provide legal aid to Mr Cranston, despite the clear indications by the Court in the August judgment that the failure to do so would lead to a wholly duplicative and lengthy trial at great additional public expense, which was likely to be far in excess of the costs of providing legal aid funding to Mr Cranston.

15. [15]

    This was a most regrettable outcome.

16. [16]

    Whilst I commend the officers of the Commonwealth Director of Public Prosecutions and counsel instructed by them for their efforts to obtain legal aid for Mr Cranston, the failure of Mr Cranston to be granted legal aid meant that two lengthy trials became inevitable.

17. [17]

    In October 2020, in consultation with the list judge, I set down the separate trial of Mr Cranston to commence on 18 January 2021. Since October 2020, I have considered numerous additional pre-trial applications made by Messrs Onley and Menon and Ms Lauren Cranston in which Mr Cranston has participated, together with a number of separate pre-trial applications relating to Mr Cranston’s individual case.

18. [18]

    On 14 December 2020, I delivered R v Cranston (No 6) [2020] NSWSC 1777 which concerned an application to exclude evidence on the basis of alleged non-compliance with s 18(5) of the Surveillance Devices Act 2004 (Cth) and alleged excessive execution of warrants issued under that Act. On 16 December 2020, I delivered R v Cranston (No 7) [2020] NSWSC 1834 which addressed an application for the exclusion of evidence under s 84 of the Evidence Act 1995 (NSW) or in the alternative under one or more of ss 90, 135 or 137 of the Evidence Act. That was a substantial application and, although I accepted the Crown’s principal submissions, the detailed working out of the possible exclusion from evidence of a potentially large swathe of evidence under ss 135 and 137 of the Evidence Act remains outstanding. I subsequently made directions to try to resolve those issues before 18 January, so that Mr Cranston could enjoy the benefits of any success the remaining accused had in excluding evidence. That timetable has not proven achievable. A three day hearing to complete this aspect of the pre-trial applications has been set down in March 2021.

19. [19]

    On 20 November 2020, my chambers received an email from Mr Cranston indicating that he had retained Mr Ayache solicitor on a limited retainer and that a forensic psychiatrist had been retained to assess Mr Cranston’s fitness for trial. I made directions that any report together with submissions be served by 17 December 2020. On 16 December 2020, a report of Dr Henderson, forensic psychiatrist, was served. Putting it neutrally, that report raised an issue about Mr Cranston’s fitness for trial, at least if Mr Cranston was not legally represented at trial. On 18 December 2020, a short supplementary report of Dr Henderson was served which annexed a suggested treatment program for Mr Cranston. On 18 December 2020, I made directions for Mr Cranston to be examined by a forensic psychiatrist retained by the Crown, Dr O’Dea.

20. [20]

    On 23 December 2020, my chambers received an email from the Crown indicating that the Crown consented to the trial date fixed for 18 January 2021 being vacated.

21. [21]

    On 4 January 2021, I convened an urgent directions hearing. At the directions hearing Mr Douglas QC appearing for Mr Cranston indicated that the fitness application was not pressed but that the joint application of the parties was that the trial commencing on 18 January 2021 be vacated. Dr Henderson’s opinion about Mr Cranston’s inability adequately to defend himself if self-represented was relied upon in support of that joint application.

22. [22]

    On 13 January, the report of the forensic psychiatrist retained by the Crown, Dr O’Dea, was filed with the Court. Dr O’Dea concluded, in terms far stronger than Dr Henderson, that Mr Cranston was not fit to stand trial whilst unrepresented. I will return to Dr O’Dea’s report below.

23. [23]

    On 14 January 2021, I heard the application and made an order vacating the trial date. The following comprises my reasons for making that order.

Consideration

1. [24]

   The evidence before me on this application comprised the two reports of Dr Henderson and the report of Dr O’Dea (Exhibit A). The joint submission of the parties was that it was in the interests of justice for Mr Cranston’s trial to be postponed, the trial date of 18 January 2021 vacated, and the matter adjourned to commence after the conclusion of the trial of the co-accused.

2. [25]

   An important issue in considering the application to vacate the trial is the public interest in the timely disposition of serious criminal charges, such as those faced by Mr Cranston. Vacating the lengthy trial which was fixed to commence on 18 January at this late stage involves not only wasted resources of the parties but also wasted public resources of the Court. Other litigants, whose cases were not set down by reason of this trial being listed for three months have necessarily been affected. By reason of the late application to vacate the trial date it will simply not be possible to commence another serious criminal trial in the Supreme Court on 18 January 2021.

3. [26]

   The parties submitted that an order vacating the trial was warranted by reason of efficiencies in the trial process if Mr Cranston’s trial were heard after that of the co-accused. If this were the only basis for the application to vacate the trial date, I would have refused it. Whilst I accept that the potential difficulties faced by Mr Cranston will be ameliorated to some extent if his trial proceeds after that of his co-accused, that matter would provide an insufficient basis, by itself, to vacate a trial at this late stage:

   1. (1)

      I accept that Mr Cranston will be assisted by legal arguments, which will impact upon the co-accused, being agitated on their behalf before Mr Cranston’s trial. Any rulings, however, would not be binding in a subsequent trial. It is possible that the pre-trial rulings yet to be made in the cases of Messrs Onley and Menon (see [18] above) would be in a different category, although those matters have not been determined and despite my best efforts, will not be determined before March 2021. I would not vacate the trial on that basis alone;

   2. (2)

      I accept that counsel for the co-accused will have cross-examined all witnesses and, accordingly, Mr Cranston will be apprised of the nature and extent of cross-examination. The risk of inconsistent verdicts based on the absence of cross-examination by Mr Cranston will be lessened. There is always, however, a risk of inconsistent verdicts when separate trials are ordered. It was for that reason that before making the order I gave the Commonwealth Attorney-General’s Department two months to re-consider the approach they had taken to Mr Cranston’s legal aid request. I made the separate trial ruling reluctantly and only because I was satisfied that it was fundamentally unfair to the remaining co-accused to be tried with Mr Cranston if he were unrepresented. I would not vacate Mr Cranston’s trial on that basis alone; and

   3. (3)

      I accept that counsel for the Commonwealth Director and for the co-accused will have addressed the jury. That process will serve to identify the legal issues for Mr Cranston so that he will, in turn, be aware in detail of how the elements of the offences he is charged with are said to have been proved by the evidence and how it might be argued that the prosecution has failed to establish the elements of the offence. I would not, however, vacate the trial on that basis alone.

4. [27]

   I also accept that the outcome of the trial of the co-accused has the capacity to impact upon the conduct of any subsequent trial involving Mr Cranston. Mr Cranston will, at the very least, be in a much better position to decide whether to consent to the tender of evidence once he has had the opportunity to know what evidence was presented and what impact that had upon the issues in the co-accused’s trial. A conviction of the co-accused may also have a bearing upon whether Mr Cranston proceeds to trial and, conversely, an acquittal of the co-accused may have the same effect. These matters, however, do not themselves provide a sufficient reason to vacate the trial.

5. [28]

   In short, the outcome of the order for separate trials, made to protect the interests of his co-accused in having a fair trial, has deprived Mr Cranston of significant advantages that would have been available to him in a joint trial. Those disadvantages can be mitigated, although not overcome, by vacating the current trial date and re-listing Mr Cranston’s trial after the trial of the co-accused. I would not, however, have done so but for the contents of Exhibit A.

6. [29]

   The dipositive issue in making the order vacating the trial is that in the circumstances revealed in Exhibit A I find there would be a real and substantial risk of injustice if Mr Cranston’s trial were to commence on Monday 18 January 2021. This is a case where there is too great a risk that the trial would be unfair: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at 333-334 per Deane J; 369 per Gaudron J; 362 per Toohey J.

7. [30]

   The starting point for this dispositive issue is the observation of Beech-Jones J in R v Cranston [2020] NSWSC 469 at [21]:

8. [31]

   Having presided now over numerous pre-trial directions hearings where Mr Cranston has represented himself, I respectfully agree with his Honour. Mr Cranston is plainly not in a position adequately to conduct his own defence.

9. [32]

   The conclusions contained in the report of Dr O’Dea, an experienced forensic psychiatrist retained by the Crown, should be set out in full: [1]

10. [33]

    In Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 at 244 Mason CJ, Toohey and Gaudron JJ held:

11. [34]

    The contents of Exhibit A seem to me to raise an issue such that if the trial on Monday were to proceed I would need to embark upon a fitness inquiry. I would need to consider the breadth of the proposition that the impact of a lack of representation is something which may properly be taken into account when considering the question of fitness: R v McKellar [2013] NSWSC 896 at [41] per RA Hulme J.

12. [35]

    As Whealy J noted in R v Sharrouf (No 2) [2008] NSWSC 1450 at [5]:

13. [36]

    I note that the Mental Health (Criminal Procedure) Act 1990 (NSW), now called the Mental Health (Forensic Provisions) Act 1990 (NSW), will be repealed and replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) which has not yet been proclaimed to commence.

14. [37]

    Section 10(1) of the Mental Health (Forensic Provisions) Act provides:

15. [38]

    The parties submitted that there was a question about the meaning of “arraigned” in s 10(1), and in particular whether, in context, it meant “arraigned” before the jury. I have not found it necessary to determine that issue for the purposes of this application. This is because under s 10(3)(a) of the Mental Health (Forensic Provisions) Act I have ample power to adjourn the proceedings, and I do so to 29 January 2020 for mention at which time I will consider the future course of this matter, including the need to address this issue.

16. [39]

    My principal reason for vacating the trial is that an experienced forensic psychiatrist retained by the Crown, Dr O’Dea, has opined that “under the current circumstances whereby he was required to represent himself at trial, Mr Cranston is currently not fit, from a psychiatric perspective, to be tried”. In effect, the unanimous expert evidence is that Mr Cranston will not be in a position, even with my assistance, properly to conduct a meaningful defence. Both parties accepted that if I did not vacate the hearing, Mr Cranston would appear without legal representation. In seeking a vacation of the trial date, no suggestion was made to me by the Crown that Mr Cranston’s appearing for himself at his trial involves any element of personal choice. I reluctantly agreed for these reasons to vacate the trial date.

17. [40]

    The Crown’s consent to the application to vacate the trial date is also significant. That is because that consent seems to me necessarily to involve an acceptance that if the trial commenced on Monday, Mr Cranston would be unrepresented. The importance of this latter proposition is that on appeal to the Court of Criminal Appeal from the original Dietrich application it was concluded that, on the evidence then available, “whether the Applicant is to be represented at trial will be answered by reference to any step which the Applicant may take concerning representation and any discretionary assessment by Commonwealth officers concerning legal representation for the Applicant at the forthcoming trial”.

18. [41]

    If there was any basis to conclude that Mr Cranston’s appearance without legal representation involved a personal choice on his part, I would expect the Crown to have alerted me to any relevant evidence relating to that question. In the CCA judgment, Johnson J (Wilson J and N Adams J agreeing) said the following:

19. [42]

    The effect of the Proceeds of Crime Act 2002 (Cth) is that, unlike in equivalent state matters in NSW, all of Mr Cranston’s property has been seized and he is unable to access any part of that property to pay legal fees. Mr Cranston is unable to borrow money to pay legal fees. Mr Cranston has been refused legal aid by Legal Aid NSW as his income exceeds the threshold set by that organisation for a grant of aid. The Commonwealth Attorney-General’s Department has refused to provide legal aid to Mr Cranston. Despite successfully resisting his Dietrich stay application almost twelve months ago, the Crown now consents to the trial date being vacated. No suggestion was made in the present application that Mr Cranston has hidden funds such that his participation in the trial unrepresented was a personal choice. Two forensic psychiatrists have given uncontested evidence that without legal representation Mr Cranston will not be able meaningfully to conduct a defence.

20. [43]

    I granted the application to vacate the trial on the basis that Mr Cranston will be self-represented if the trial were to commence on Monday. To proceed to a trial of an unrepresented accused, where no suggestion is made to me that it is by reason of his own choice, and where he will not be able adequately to defend himself, is sure to lead to a miscarriage of justice.

21. [44]

    Turing to what I should now do with Mr Cranston’s separate trial, it appears that absent an order of the Court staying the trial until legal aid is provided, any discretion possessed by Legal Aid NSW or the Commonwealth Attorney-General’s Department concerning legal representation will not be exercised in favour of granting Mr Cranston legal aid.

22. [45]

    On the current state of the evidence, based on Dr O’Dea’s report, I am far from convinced that even proceeding to trial in 12 months time and after the trial of the co-accused will necessarily ensure a fair trial for Mr Cranston. Certainly, Dr O’Dea believes that on present indications Mr Cranston will not be able adequately to represent himself in 12 months time, unless legal representation is obtained.

23. [46]

    Accordingly, I made orders bringing this matter back before me on 29 January 2021 to consider what next to do with Mr Cranston’s trial. It may be that circumstances have changed since the original application for a Dietrich stay was made by Mr Cranston such that the Court could entertain a further application. If any further application for a stay is to be made by Mr Cranston, either on Dietrich principles or as a result of the contents of Dr O’Dea’s report, it should be made in a timely manner. It is not in the interests of justice for this matter to remain unresolved. This issue, having been squarely raised by the joint application of the parties to vacate the trial date, should be resolved now so that the Court is not placed in the same invidious position in 12 months time. Further, given the contents of Dr O’Dea’s report, I will need to consider what steps, if any, I should take to resolve the question of fitness.

24. [47]

    In advance of 29 January 2021, I urge Legal Aid NSW and the Commonwealth Attorney-General’s Department to reconsider their respective decisions to decline to provide Mr Cranston with legal aid to fund representation at the trial. On the evidence currently before me, the ultimate costs to the community of the refusal to provide legal aid to Mr Cranston are likely to far outweigh the costs of providing legal aid. I direct Mr Cranston’s representatives to provide a copy of these reasons to both bodies as soon as practicable.

    1. (1)

       Vacate the trial of Adam Cranston fixed to commence on 18 January 2021.

    2. (2)

       Continue bail.

    3. (3)

       Adjourn the matter of Adam Cranston (2017/148697) for mention to 9:30am on Friday 29 January 2021.

    4. (4)

       Amend the order of 8 December 2020 in the matters of Adam Cranston (2017/148697), Lauren Cranston (2017/148185), Dev Menon (2017/148776) and Jason Onley (2017/149208) to insert an order 2A: “Nothing in this order prevents publication of the contents of the Court’s judgment in R v Cranston (No 8) [2021] NSWSC 9.”