R v Cranston (No 22)

1. [1]

   The trial of the five accused, Adam Cranston, Lauren Cranston, Dev Menon, Jason Onley and Patrick Willmott, commenced on 26 April 2022.

2. [2]

   On 25 November 2022, I delivered judgment in relation to a number of legal directions: R v Cranston (No 21) [2022] NSWSC 1616. Some legal directions remained to be settled. This judgment addresses those directions.

Draft direction regarding right to silence on arrest

1. [3]

   The directions about the right to silence on arrest were initially suggested by Mr Stratton SC, who appears for Mr Adam Cranston. A draft direction was circulated to the parties and is included as part of Annexure A to these reasons.

2. [4]

   Given that there is no evidence that any of the accused except Mr Menon exercised their right to silence upon arrest, and upon further consideration, all counsel did not seek a direction of the kind highlighted in yellow.

3. [5]

   Mr Bruckner, on behalf of Mr Menon, reserved his position about whether the remaining parts of the direction should be given in respect of his client. If Mr Bruckner seeks that direction, I will give it to the jury.

Draft direction regarding accused not giving evidence and Mr Menon giving evidence

1. [6]

   This direction, as amended by the Crown, was agreed by the parties save that Mr Anderson SC, who appears for Ms Lauren Cranston, suggested the addition of the words “and remains innocent unless and until you are satisfied” in paragraph 3. That suggested change will be made.

Draft direction on motive and intention

1. [7]

   The draft direction I had earlier circulated was agreed by all parties save Mr Bruckner. Mr Bruckner submitted that the example of motive chosen in the draft direction, in paragraphs 6 and 7, that Mr Menon was motivated by fear of extorters in assisting in the payment of $25 million to Mr Chalabian, should be replaced with an example of an alleged extortion earlier in time, involving the Eleter family.

2. [8]

   On the basis of Mr Menon’s evidence, I continue to harbour a concern that the jury will be misled about the role of motive in the task they will shortly be asked to undertake. The example I have selected deals directly with that area of possible confusion.

3. [9]

   I will, however, listen carefully to Mr Bruckner’s address and see whether I continue to perceive there to be a confusion about this topic. I will reconsider this tentative determination at the conclusion of Mr Bruckner’s address to the jury.

Draft direction regarding solicitors’ obligations

1. [10]

   The parties, save Mr Bruckner, agreed with the contents of the draft direction concerning solicitors’ obligations, which incorporated amendments suggested by the Crown.

2. [11]

   Mr Bruckner suggested deleting paragraphs 2(c) and 2(d) but accepted that those paragraphs reflected the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). I will not delete those paragraphs. They are legally accurate and address an issue I perceive to be raised by Mr Menon’s evidence.

3. [12]

   Mr Bruckner sought the deletion of paragraph 3. I will delete the first sentence as the essence of the obligation addressed by that paragraph is captured in the legally accurate second sentence.

4. [13]

   Mr Bruckner sought the deletion of paragraph 4. I have highlighted that paragraph in yellow. I am tentatively attracted to this submission. However, I will not make a final determination and will listen carefully to the remainder of the Crown address and Mr Bruckner’s address and see whether I perceive there to be any confusion about this topic that I need to address by giving the jury this direction, which is legally accurate.

Conclusion

1. [14]

   For the foregoing reasons, I propose to give additional legal directions in accordance with Annexure A to these reasons. As noted, however, I will give the parties, in particular Mr Bruckner, an opportunity to make further submissions before commencing my summing up.