R v Cranston

Consideration

1. The legal principles applying to this application are clear. Section 29 of the Criminal Procedure Act 1986 (NSW) provides: 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.
2. 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: "… when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must 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. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge ... Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred." (Footnotes omitted.)
3. 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. 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. 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. 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: "[12] The classic context in which an application for separate trials arises is, put simply, the case of two joint accused, the case against one of whom is demonstrably strong and the case against the other of whom is demonstrably weak. Such cases will be ordered to be tried separately if it is demonstrated that there is, in the particular circumstances of the particular cases, a real risk of positive injustice should there be a joint trial, that risk lying in a reasonable perception that the strength of the one case will unjustly cancel out the weakness of the other. [13] Authorities such as Beavan, Fernando and Grondkowski are concerned with this particular kind of prospective injustice. [14] There are, however, no closed categories of prospective injustice sufficient to entail a proper order for separate trials."
7. I respectfully agree with his Honour. What may constitute prospective injustice must be examined in each case.
8. 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. 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. The real point was made eloquently by Sully J in MAK at [25]: "[25] … Clearly, [the unrepresented accused] have a perception that if they are tried jointly with the three represented accused they will be able, as they themselves have put the point, to help the three co-accused. Anybody with any experience of the practical conduct of a joint criminal trial will understand immediately that such a prospect is almost a cast-iron guarantee of a mis-trial. I mean no disrespect to either of the two unrepresented accused when I observe that in my view they are, understandably as must be at once acknowledged, wholly at sea so far as concerns the relevant law, the relevant practice, the relevant procedure, that they would be required to deal with, wholly unassisted and unrepresented, in the event of an undifferentiated joint trial."
11. 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. 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. 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. 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. 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. make admissions from the bar table adverse to the others' interests; 2. cross-examine relying on knowledge that is personal but which is not in the brief; and 3. make opening and closing addresses which prejudice his co-accused.
16. 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. There are other more specific issues which are also a likely source of prejudice for Mr Cranston's co-accused: 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. 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. 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. For all of these reasons, if Mr Cranston remains unrepresented, I would order a separate trial for Mr Cranston from his co-accused.
19. 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. 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. 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. 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. 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. 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: "[35] On 23 October 2019, Mr Cranston submitted an application for legal aid to the Legal Aid Commission of New South Wales. Mr Cranston's email contained a summary of the events since his arrest and the financial circumstances of his wife. Attached to the email were, inter alia, a completed application dated 2 October 2019 and a copy of the POCA orders. One of the questions in the application asked whether any of Mr Cranston's legal fees had been paid on his behalf. His answer referred to his wife having paid $100,000 towards his legal fees. As the evidence below indicates, this was an incomplete answer as other relatives and his employer have paid legal fees on his behalf. The CDPP submitted that Mr Cranston's answer was adverse to his credit. I do not accept that it was. When he was cross-examined about completing the form, Mr Cranston stated that he 'sent through to [the Legal Aid Commission] the trust account summary detailing all payments made to Ms Musgrave'. Consistent with this, there was tendered an email from Mr Cranston to the Legal Aid Commission. The email attached a spreadsheet outlining his legal costs and the payments made to that time. [36] On 25 October 2019, Mr Cranston was advised that his application for legal aid was unsuccessful. On 30 October 2019, Mr Cranston appealed against the refusal. On 25 November 2019, Mr Cranston was advised that his appeal had been considered by the Legal Aid Review Committee and was unsuccessful. The letter stated that the Committee had disallowed the appeal because the income Mr Cranston had disclosed 'in support of the appeal exceeds the limits of the Legal Aid NSW Means Test and that there are no exceptional circumstances to warrant the exercise of discretion'. [37] On 18 December 2019, Ms Musgrave wrote to the CDPP and the Commissioner of the AFP seeking their support for an application to the Commonwealth Attorney‑General for an ex gratia payment or their consent to a variation of the POCA order. On the same day, Ms Musgrave wrote to the Attorney‑General seeking an ex gratia payment for the payment of fees for Mr Cranston's legal representation in his trial. [38] In a letter dated 18 December 2019, the CDPP stated that it was 'unable to comment'. Ms [Musgrave] sought clarification and was advised in a letter dated 19 December 2019 that the CDPP 'does not wish to comment on any applications'. On 9 January 2020, the Attorney‑General's Department responded on behalf of the Attorney‑General and stated that '[i]t is unlikely that an ex gratia payment would be available'. However, the letter advised that the Australian Government can provide grants of legal financial assistance under a number of different schemes including the 'Special Circumstances Scheme, the Commonwealth Public Interest & Test Case Scheme and the Disbursement Support Scheme'. [39] In a letter dated 9 March 2020, the CDPP advised Ms Musgrave that Mr Cranston had not exhausted all avenues of available legal assistance. The letter advised that Mr Cranston should make a fresh application to the Legal Aid Commission setting out 'the fact that a stay application is pending; and … the adequacy of the restrained funds to meet any cost the Commission would incur if it agreed to fund his defence'. In response to this letter, Ms Musgrave wrote to the Grants Division of Legal Aid NSW requesting advice on whether there was any avenue open for Mr Cranston to secure assistance from the Legal Aid Commission. On 10 March 2020, they responded confirming the finality of the decision of the Legal Aid Review Committee. [40] On 16 March 2020, Ms Musgrave submitted an application for ex gratia funding to the Commonwealth Financial Assistance Office of the Attorney-General's Department on Mr Cranston's behalf. In her oral evidence on 22 April 2020, Ms Musgrave stated that she was advised a response might be forthcoming on 29 April 2020. As at 30 April 2020 no response had been provided. [41] Mr Cranston has made enquiries of two solicitors who have advised him that they are unable to act on a pro bono basis. Ms Musgrave has also contacted six sets of chambers with counsel who have criminal experience. No counsel who is able to appear on a pro bono basis has been identified." (Footnotes omitted.)
25. 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. 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: "HIS HONOUR: … Mr Crown, I would ask that your instructing solicitor and whoever in Canberra is making the decision cooperate with Mr Adam Cranston to send to the Legal Aid Commission a copy of the Court of Criminal Appeal's decision on the appeal, together with the transcripts of what I have said. I would encourage the Legal Aid Commission of New South Wales to give consideration of whether there are changed circumstances by reason of the Court of Criminal Appeal's judgment and particularly the remarks of Justice Johnson which were joined in enthusiastically by Justice Wilson. As I say, I apprehend what they might say, but I would encourage them to approach this with an open mind and with the interests of justice, particularly having regard to their funding, as I understand it, the other accused in this trial."
27. The trial will shortly be fixed to commence in 2021.
28. 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. The application for a separate trial is adjourned to a date to be fixed in October 2020.

Amendments 22 March 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2023