R v Cranston (No 5)

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

On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. By reason of COVID-19 restrictions relating to a trial of this size that trial date has been vacated.

A number of pre-trial issues were identified in the course of numerous pre-trial directions hearings. This judgment addresses the circumstances in which a pre-trial application made by Jason Onley and supported by Adam Cranston for a declaration of client legal privilege over material contained in the Crown brief of evidence was withdrawn. Mr Menon made no claim for client legal privilege. Lauren Cranston did not take an active part in the application.

On 7 February 2020, the matter first came before me for pre-trial directions. On 9 April 2020, there was a further pre-trial directions hearing. I made the following orders:

The effect of these orders was to bring to a head any complaint about the form or content of the Crown brief of evidence. No notice of motion was filed.

On 12 May 2020, there was a further pre-trial directions hearing. I made the following orders relevant to the topic of client legal privilege, in accordance with short minutes of order proposed by Mr Menon and prepared in tandem by counsel for Mr Menon and Mr Onley:

The effect of those orders was to enable Mr Menon to communicate with every person or entity that may possibly have a claim for client legal privilege in relation to communications recorded by use of surveillance devices and telephone intercept warrants and inform them that the Court would entertain those claims upon application. I was subsequently informed by Mr Menon’s counsel that those orders were complied with in full.

Although those orders were limited to persons or entities “who are not accused on the Indictment”, at the time those orders were made nothing was said by any of the accused to indicate that they may wish to make any application for client legal privilege over material included in the Crown brief.

On 5 June 2020, the only appearance at the directions hearing in relation to the issue of client legal privilege was made on behalf of Mr Christopher Guillan, whose matter is apparently listed for trial in the District Court in March 2021. Directions were made to ensure Mr Gullian could make any claim for privilege before me. No such claim was made. Subsequently, counsel for Mr Guillan informed the Court that “despite taking no active part in terms of submissions, oral or written on the privilege issue, that it not be taken as Mr Guillan waiving privilege”.

On 5 June 2020, after orders had been made in relation to Mr Gullian, counsel for Mr Onley indicated for the first time that a privilege claim may be made on Mr Onley’s behalf:

Mr Adam Cranston, who represented himself, indicated that he too wished to make a claim for client legal privilege.

On 5 June 2020, I made the following orders relevant to any possible claims for client legal privilege by Mr Onley and Mr Adam Cranston or any entity allegedly controlled by Mr Onley or Mr Adam Cranston:

On 9 June 2020, Mr Onley filed a notice of objection to a large number of communications contained in the Crown brief on the basis of client legal privilege, and “where applicable” settlement communications privilege. Mr Onley claimed privilege in respect of all recordings of conversations in the possession of the Crown which include Dev Menon or another lawyer from Clamenz Lawyers on the one hand, and one or more of the following on the other:

Mr Onley also claimed privilege in respect of any email or other written communication between one or more of the “privilege holders” set out in the above list and Clamenz Lawyers, and any documents attached to those communications which are confidential documents, as well as any other documents and materials “which have yet to be identified”. No specific document of this nature was identified or particularised in the 9 June privilege objection. The 9 June objection also sought leave, to the extent it was necessary, “to provide further and better particulars of the claims” of privilege.

Mr Onley identified specific examples of telecommunications intercept recordings to which it was said privilege attached. The privilege objection included a table with 87 entries setting out the dates and times of each recording, listing the participants, with a reference to where the recording appeared in the Notice of Crown Case. There was no further particularisation of the claims in this table. The claims of privilege relating to telecommunications intercept recordings were further particularised in the submissions filed on 12 June 2020, [1] dealt with below. The 12 June 2020 version of the table included 88 entries.

In relation to the surveillance device recordings, Mr Onley said on 9 June 2020 that he had not had sufficient time to review and particularise his claim for privilege. Attached to the 9 June objection was a document marked “Annexure A”. Annexure A was said to “at this stage” be an extract of the surveillance device materials proposed to be adduced by the Crown at trial, limited to those which listed Mr Menon as a participant. In the 12 June 2020 submissions it was noted that much of the surveillance device material objected to was recorded in the offices of Clamenz Lawyers and included Mr Menon as a participant.

On 12 June 2020, Mr Onley filed an affidavit of his solicitor, Christine Louise Perry, sworn on 12 June 2020. Ms Perry’s affidavit really only addressed in any detail matters potentially relevant to any suggested waiver of privilege. Ms Perry deposed that in April 2020 her office computers were hacked with ransomware and encryption software, meaning she did not have access to her emails, computer data or accounts for most of April 2020. Ms Perry now only has readily available access to her emails from 1 July 2019 onwards and no longer has access to her electronic diary prior to April 2020. Ms Perry said that she had raised “the issue of legal professional privilege and objections to tender of documents containing privileged material” in the Local Court and with solicitors from the Commonwealth Director of Public Prosecutions (CDPP), with Brereton J in the application to wind up Synep Pty Ltd, and in the Proceeds of Crime Act 2002 (Cth) proceedings. Ms Perry deposed that she “is instructed that Mr Onley continues to claim privilege, and his right to remain silent and his privilege against self-incrimination”. This was the sum total of the evidence in the affidavit supporting any claim for client legal privilege. No claim for privilege was made about any particular communication the subject of Mr Onley’s notice of objection.

On 12 June 2020, Mr Onley filed written submissions about his claim for client legal privilege. In the submissions Mr Onley summarised the claims he sought to make of client legal privilege (and settlement communications privilege) as follows:

Mr Onley also made the following clarification of the material over which privilege was claimed:

This was accompanied by a footnote:

What the submissions did not do was identify any arguable basis that any confidential communication was made between any “lawyer” and any “client”, being Mr Onley or any person or entity associated with him, for the dominant purpose of giving or receiving anything arguably described as legal advice.

On 6 July 2020, [2] Mr Onley filed a further affidavit of Ms Perry. Subsequently, paragraphs 12, 13, 14, 15, 16, 17, 28, 30, and 31 were relied upon to seek an adjournment of the privilege claim. Those paragraphs contain a series of complaints about the size of the Crown brief, an alleged lack of co-operation by the Crown, the limited resources available to Mr Onley, and Mr Onley’s apparent dyslexia and ongoing health (including mental health) issues.

The Court had at that time set aside, 7, 8 and 15 July 2020 to hear any pre-trial issues. On 6 July 2020 Ms Martinez, on behalf of the CDPP, advised the Court of the following:

There was no indication by Mr Onley’s representatives who were copied on that email about any difficulties in that timetable. In an email from Ms Perry to Ms Martinez annexed to Ms Perry’s affidavit of 13 July 2020 it is Ms Perry who proposes that the issue of client legal privilege be dealt with on 15 July 2020. [3]

In any case, the Court responded on 6 July 2020 as follows:

The hearing on 7 and 8 July was consumed with the application for disclosure made by the accused and a separate trial application. Both of those matters are addressed in separate judgments: [2020] NSWSC 1102; [2020] NSWSC 1104. On 7 July 2020, it was determined that a further day needed to be set aside to address further pre-trial matters. 14 July 2020 was appointed for hearing of the privilege claim. No complaint was made by Mr Onley’s representatives or Mr Adam Cranston about the selection of that date to consider privilege issues.

On 13 July 2020, Mr Onley filed a further affidavit of Ms Perry, in support of an application that the privilege argument to be heard on 14 July 2020 should be adjourned. Ms Perry stated that by reason of:

In relation to what Ms Perry described as the “balance” of the privilege objection, namely, the telecommunications intercept transcripts, Ms Perry stated that her instructions were that Mr Onley was concerned, and that she shared his concern, that he may unnecessarily prejudice his defence if, without it having yet been determined what material (if any) was unlawfully obtained he were to go into evidence in support of the Privilege Objection; and/or his legal representatives were required to make submissions in respect of s 118 of the Evidence Act 1995 (NSW) in response to the Crown’s submissions concerning a fraudulent or improper purpose. Annexed to the affidavit was a series of email communications, made in the days immediately prior to the affidavit, seeking retainer agreements. The request for retainer agreements, first made on 12 July 2020, should be understood in context. Mr Onley’s submissions of 12 June said that:

On 3 July 2020, the Crown response contained the following reply:

At the latest, on 3 July 2020, Mr Menon and Mr Adam Cranston were aware that the Crown considered there to be no evidence of any relevant retainer. No specific request appears to have been made for any retainer until 12 July 2020.

On 13 July 2020, Mr Onley sought to stay the proceedings until the determination of a separate application brought by the applicants regarding disclosure obligations in respect of warrants issued by the Crown. On 14 July 2020, the adjournment application was upheld in part and refused in part.

On that date, I made it clear that I would not entertain any evidence or submissions about the operation of s 125 of the Evidence Act. I found that there was merit in Mr Onley’s argument that it was not possible properly to deal with matters arising under s 125 of the Evidence Act on that day. There were difficult questions involved in whether I should permit the Crown to tender the brief of evidence on the voir dire and whether I should look at particular documents as permitted by s 133 of the Evidence Act. Fairness required consideration of what Mr Onley or Mr Adam Cranston may or may not have wanted to say about the fraud exception and the evidence that was before me.

I found, however, that the complexities involved in s 125 of the Evidence Act did not arise until the basic building blocks of client legal privilege were established. Those building blocks were:

I refused the application for an adjournment in so far as it related to Messrs Onley and Adam Cranston demonstrating an arguable basis that any confidential communication was made between any “lawyer” and any “client”, being Mr Onley, Mr Adam Cranston or any person or entity associated with either of them, for the dominant purpose of giving or receiving anything arguably described as legal advice. I reserved my reasons. My reasons for rejecting the adjournment application and going ahead in this limited way may be briefly stated:

After obtaining instructions, Ms Seiden SC for Mr Onley withdrew any objection to the tender of evidence in the trial on the basis of client legal privilege or any other privilege. Mr Adam Cranston also withdrew any objection to the tender of evidence in the trial on the basis of client legal privilege or any other privilege.