R v Cranston (No 4)

1. [1]

   PAYNE J: On 6 December 2019, the accused Adam Cranston, Dev Menon, Jason Onley and Lauren Cranston pleaded not guilty to the following two counts in an indictment presented on that day:

2. [2]

   On the same day, Fullerton J set down the trial to commence before me on 10 August 2020. Due to COVID-19 restrictions on the available courtrooms to conduct a jury trial of this size, that date was vacated.

3. [3]

   On 7 February 2020, the matter first came before me for pre-trial directions. Mr Cranston’s then-representatives, who were appearing for the limited purpose of obtaining legal funding for Mr Cranston, on that day sought, and were granted, a separate directions hearing for Mr Cranston in relation to issues of his legal representation.

4. [4]

   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.

5. [5]

   On 9 April 2020, there was a further directions hearing for all matters. I made the following orders:

6. [6]

   On 12 May 2020, there was a further directions hearing for all matters relating to a number of pre-trial applications of the accused. I made timetabling orders in relation to the 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.

7. [7]

   Since first appearing before the Local Court, Ms Lauren Cranston, Mr Menon and Mr Onley have all been granted legal aid. At the hearing of pre-trial applications, they appeared with a solicitor and a barrister. However, to date, Mr Cranston has not been granted legal aid. He has appeared unrepresented before me since 7 February 2020 when he indicated his intention to make a Dietrich stay application. At that time Musgrave Legal was acting pro bono on his behalf for the purposes of that application only. He was represented pro bono at the hearing of the Dietrich application. He was represented by a solicitor on the appeal.

8. [8]

   Due to concerns expressed by the parties about the possibility of credit findings about Mr Cranston being necessary, 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. Before Beech-Jones J, Mr Cranston was represented by Musgrave Legal and Mr Barrow of counsel.

9. [9]

   On 1 May 2020, his Honour refused the application for a Dietrich stay: R v Cranston [2020] NSWSC 469. In his judgment, Beech-Jones J described Mr Cranston’s explanation about critical matters as “vague and unconvincing” and concluded that it is likely that Mr Cranston “‘parked’ funds in various businesses either before or after his arrest”: at [81].

10. [10]

    Beech-Jones J refused the application for a Dietrich stay because Mr Cranston failed to discharge the onus on him to demonstrate that he is indigent and therefore unable to afford appropriate legal representation: at [4]. His Honour agreed that the trial will involve “complex issues of fact and law” and was satisfied that Mr Cranston is not in a position adequately to conduct his own defence: at [21]. In dismissing the motion seeking a stay of Mr Cranston’s trial, Beech-Jones J noted that counsel for Mr Cranston’s co-accused, Mr Menon and Mr Onley, had reserved their positions on whether to apply for a separate trial if Mr Cranston’s application was refused and he was unrepresented at the trial: at [92].

11. [11]

    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. In that Court he was represented by Mr Ayache. The CCA dismissed the appeal. The Court found that it was open to the primary judge to regard the arrangement between Mr Cranston and his current employer as extending beyond a type of unorthodox commercial arrangement: at [50]. In considering that it was necessary to grant leave to appeal, Johnson J said:

12. [12]

    Agreeing with the reasons of Johnson J, Wilson J said:

13. [13]

    Also agreeing with the reasons of Johnson J, N Adams J added:

14. [14]

    On 15 June 2020, Ms Lauren Cranston filed a motion seeking the following orders:

15. [15]

    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. On 7 July 2020, I heard the applications made by Messrs Onley and Menon and Ms Lauren Cranston for a separate trial.

Consideration

1. [16]

   The legal principles applying to this application are clear. Section 29 of the Criminal Procedure Act 1986 (NSW) provides:

2. [17]

   In Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 89; [1994] HCA 30, Toohey J (with whom Mason CJ and McHugh J agreed) held:

3. [18]

   It is clear from this passage from Webb that some prejudice to an accused is almost inevitable in any joint trial and that is a factor which must be taken into account in striking the necessary balance. As Webb at 89 also makes clear, where prejudice may arise because there is evidence which is admissible against one accused but not the other, that prejudice may be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. Jury trials proceed on the assumption that the jury will obey any direction which is given by a trial judge: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], [31].

4. [19]

   This is not a case where (with the possible exception of Ms Lauren Cranston) the evidence is stronger against Mr Cranston than it is against the remaining co-accused. Nevertheless, the categories of possible prejudice are not closed. Where there is a real risk of positive injustice to an accused from a joint trial, separate trials should be ordered: R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 at [62].

5. [20]

   I have carefully considered the judgment of Sully J in R v MAK [2003] NSWSC 849. I have found his Honour’s reasoning in that case compelling. MAK involved the proposed joint trial of five accused persons on an indictment containing 11 counts. The Crown case relied upon an alleged unlawful common enterprise to which all five accused were said to have been parties. The objective of the enterprise was to entice the two young women to certain premises and detain them there for sexual gratification. Of the five accused, three were represented by counsel. The remaining two accused were unrepresented.

6. [21]

   The three represented co-accused made an application for a separate trial, that is to say, for a joint trial of the three of them and for a separate joint trial of the two unrepresented accused. Sully J explained the background to the application this way:

7. [22]

   I respectfully agree with his Honour. What may constitute prospective injustice must be examined in each case.

8. [23]

   Sully J held that even if the five accused were legally represented, the trial would be a very difficult trial to manage fairly and efficiently. His Honour found that the case “bristles” with difficult legal, factual and procedural points. To ensure a fair trial as a joint trial of five accused would be a considerable task even with the assistance of competent professional representation for all five accused. To ensure a fair trial having two unrepresented accused would make the task exponentially more complex and difficult.

9. [24]

   With minor modifications, all of these propositions apply here. The present estimate of the Crown is that 16 weeks need be set aside for this trial. This is one of four pre-trial judgments I have already been called upon to write. Whilst, on one view, the Crown case is deceptively simple, numerous difficult legal, factual and procedural points will need to be navigated and addressed. To ensure a fair trial for the remaining accused if Mr Adam Cranston is unrepresented will make the task exponentially more complex and difficult. That, of itself, would not be a sufficient reason to order a separate trial.

10. [25]

    The real point was made eloquently by Sully J in MAK at [25]:

11. [26]

    Here too, with appropriate modification the point made by Sully J is compelling. In fairness to Mr Adam Cranston, unlike the unrepresented parties in MAK, he recognises to some extent his limitations in the conduct of the trial. It is, however, undeniable that if Mr Cranston is tried together with the three represented accused he will have no choice but to seek to assist himself and his co-accused.

12. [27]

    As in MAK, such a prospect is almost a cast-iron guarantee of a mistrial. I mean no disrespect to Mr Cranston when I observe that he is wholly at sea about the relevant law, the relevant practice and the relevant procedure that he would be required to deal with, unassisted and unrepresented, in the event of an undifferentiated joint trial.

13. [28]

    A number of pre-trial applications have now been decided in the present case. Mr Cranston has been self-represented. Whilst Mr Cranston has behaved politely and respectfully, I am comfortably satisfied that he will be unable competently to conduct his own defence in this trial. The extent to which Mr Cranston is struggling with legal and factual issues in the case is already obvious. What is obvious to me will also be painfully obvious to a jury. In presiding over such a trial I will necessarily have to make regular interruptions to the ordinary course of the evidence and cross-examination to attempt to ensure fairness to Mr Adam Cranston. Even with regular and careful directions to the jury that they should not draw inferences about Mr Cranston’s guilt or the guilt of his co-accused based on these judicial interventions, I have concluded there is real risk of irremediable prejudice to the remaining accused in permitting them to be tried jointly with Mr Adam Cranston if he remains unrepresented.

14. [29]

    Having observed Mr Cranston’s conduct of pre-trial applications over some months, and without any disrespect to him, the observations of Beech-Jones J and Johnson J to the effect that Mr Cranston is not capable of adequately conducting his own defence are undoubtedly correct.

15. [30]

    Mr Adam Cranston’s conduct of the trial is likely to prejudice the case of each of the co-accused. The complexity of the issues are such that a non-legally trained person is likely to:

    1. (1)

       make admissions from the bar table adverse to the others’ interests;

    2. (2)

       cross-examine relying on knowledge that is personal but which is not in the brief; and

    3. (3)

       make opening and closing addresses which prejudice his co-accused.

16. [31]

    The jury will observe Mr Cranston as he asks questions, which in turn reflect on his knowledge of matters that are the subject of the alleged conspiracies. The jury is likely to be given the impression that Mr Cranston is making admissions. The likelihood is that the jury will regard those admissions as also made on behalf of his co-accused. All of these issues are problematic in a long and difficult trial, in which Mr Cranston would have abundant opportunity inadvertently to create prejudice to his co-accused.

17. [32]

    There are other more specific issues which are also a likely source of prejudice for Mr Cranston’s co-accused:

    1. (1)

       an important part of the Crown case relies on the evidence of three co-conspirators, who have each pleaded guilty and been sentenced. Mr Cranston is likely to cross-examine those witnesses on the basis of his personal knowledge. He had many first-hand conversations with these witnesses at which his alleged co-conspirators were present. Disclosure of these matters will likely have a negative impact on the view the jury takes of each of the other accused;

    2. (2)

       Mr Cranston will be present at the bar table with counsel for other co-accused. That could give the jury an impression that others are hiding behind a lawyer. It may give an impression that Mr Cranston has limited resources, in contrast to the other co-accused. Assuming that I am persuaded to explain the reason for Mr Cranston being unrepresented, this too carries the risk of prejudice to his remaining co-accused; and

    3. (3)

       in a long and complex case, the Court will necessarily be required to treat Mr Cranston differently. The Court will provide Mr Cranston with appropriate assistance. Mr Cranston will have the benefit of asking questions and giving impressions to the jury about his state of mind by the content and manner of his questions, which the other accused will not have.

18. [33]

    For all of these reasons, if Mr Cranston remains unrepresented, I would order a separate trial for Mr Cranston from his co-accused.

19. [34]

    I would not, however, order a separate trial for Ms Lauren Cranston from her remaining co-accused. Ms Cranston had a strong case for a separate trial from her brother, were he to remain unrepresented. Severing Mr Adam Cranston’s trial from the remaining co-accused deals with that issue.

20. [35]

    Mr Anderson accepted in oral argument that “a great deal … if not all” of the evidence will be admissible against Ms Cranston, applying the principles in Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39. I am not persuaded that the apparent strength of the Crown case against Messrs Menon and Onley compared to that against Ms Cranston warrants a separate trial. This is not a case where evidence will be admissible against other co-offenders and not Ms Cranston.

21. [36]

    The real complaint made by Mr Anderson, who skilfully put the case for a separate trial for Ms Cranston, was that she would be tarred by the same brush in the eyes of the jury with the defences mounted by her co-accused which were much more detailed and technical than hers. In effect, Ms Cranston’s case is that she has no objection to the Crown leading evidence of all of the conduct alleged against her but that she will submit that the evidence does not amount to proof of either of the offences charged. Whist I accept that the case against Ms Cranston could be seen by the jury to be weaker overall than that against Messrs Onley and Menon, there are many parts of the evidence that, on the Crown case, could be understood by the jury to incriminate Ms Cranston to an equal or greater degree than her co-accused. In any event, I am satisfied that appropriate directions can be given to the jury to ameliorate the possible prejudice to his client that Mr Anderson has identified.

22. [37]

    In the context of COVID-19 restrictions on the availability of courtrooms of a sufficient size to accommodate a four person trial, I was initially attracted to Mr Anderson’s submission made in writing that the trial of Ms Cranston, if severed, could perhaps be concluded in three weeks. In consultation with the criminal list judge I secured a courtroom for a three week trial this year. Upon reflection, however, and when presented with those 2020 dates, Mr Anderson withdrew his submission and said that the trial of Ms Cranston alone would take at least two months. Upon further analysis, and having regard to the admissibility of evidence against each co-accused, I am not satisfied that any irremediable prejudice will be suffered by Ms Cranston in a joint trial. Such prejudice as might be occasioned will be the subject of directions by me to the jury.

23. [38]

    In the ordinary course, the conclusions I have reached would lead me to make an order today that the trial of Mr Adam Cranston be severed from the trial of his remaining co-accused. I will hear further from the Crown but, if the trial were to be severed my present inclination is to remit the trial of Mr Cranston to the District Court in accordance with an undertaking on behalf of the Commonwealth Director dated 10 September 2018.

24. [39]

    There remain, however, unresolved applications for legal assistance made by Mr Cranston to each of Legal Aid NSW and the federal Attorney-General’s Department. In his Honour’s judgment on the Dietrich stay application, Beech-Jones J set out the history of Mr Cranston’s efforts to obtain a grant of legal aid:

25. [40]

    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 this judgment, that if the pending ex gratia payment by the Attorney-General’s Department was not made, I would order a separate trial for Mr Cranston. In the absence of legal representation, I was disinclined to let Mr Cranston’s case go forward with the others. Senior Counsel for the Crown indicated that he would be passing on the transcript of my remarks to the Attorney-General’s Department.

26. [41]

    At the pre-trial hearing on 14 July 2020, senior counsel for the Crown indicated that funding being made available by the Attorney-General’s Department was “an unlikely prospect” and directed me to R v Spadina (Tcpt, 2 May 2014, p 5-6) where Hamill J was prevailed upon by the parties to make remarks intended to be conveyed to the Legal Aid Commission with a view to inviting them to reconsider the position of legal aid. I was persuaded to make the following remarks:

27. [42]

    The trial will shortly be fixed to commence in 2021.

28. [43]

    I will not make an order for separate trial now. I will revisit this issue in October 2020. If legal assistance for Mr Cranston from either Legal Aid NSW and/or the federal Attorney-General’s Department not been secured by that date, for the reasons I have given, I will sever the indictment and, subject to being persuaded to the contrary by the Crown, will remit the separate trial of Mr Adam Cranston for hearing in the District Court. The only formal order I will make today is:

    1. (1)

       The application for a separate trial is adjourned to a date to be fixed in October 2020.