PAYNE JA: This judgment concerns a little explored aspect of criminal procedure in cases where multiple accused are joined on one indictment.
It is a practice apparently often observed in criminal cases in NSW where there are multiple accused that counsel for the accused "cross examine down" the indictment and "address up the indictment". Justice Hamill in R v Qaumi (No 39) [2016] NSWSC 797, said that there was a "general rule of practise" that the counsel for the accused in a multi-accused trial should "cross examine down" and "address up" the indictment (at [6]). His Honour in that judgment was not addressing this issue directly, but rather describing how fairness would be best ensured in the trial before him when determining the order in which counsel for various co-accused would cross-examine.
Despite very experienced Senior Counsel, Mr Stratton SC, supporting the practice and the remarks of Hamill J about a "general rule", the attempts of the parties to explain the basis of the "general rule" have proven elusive. I have concluded it is not a practice which should necessarily apply to a multi-accused indictment, such as the present, which is framed purely in alphabetical order. In so concluding, I am not doubting that there may often be good reason to follow what Hamill J described as the "general rule". It can easily be envisaged that in a case where the indictment is framed as naming a principal offender first in the indictment and secondary participants later in the indictment, the "general rule of practise" may well be appropriate.
The parties were originally agreed that the order of address in this case should be that the parties "address up the indictment". That consensus was abandoned upon my enquiry about the basis of the practice. Submissions were made some time ago about this issue and only completed on 17 November 2022, when it had become clear that of the accused, Mr Menon, and only Mr Menon, was giving evidence.
The position of the parties in this debate was that Mr Brasch, who appears for Mr Willmott, submitted that he should not be required to address first (as he would if the practice of addressing "up the indictment" were adopted). Mr Anderson SC, who appears for Ms Lauren Cranston, submitted that he should address last. Mr Stratton SC, who appears for Mr Adam Cranston ultimately submitted that it is the usual practice in NSW for the addresses to proceed "up the indictment" but acknowledged that the Court has the power to vary the order in the interests of justice. Mr Stratton SC submitted that he should address second last by reason of having shouldered the burden of undertaking the first cross-examinations of almost all of the Crown witnesses. Mr Bruckner, who appears for Mr Menon, submitted that the starting point was that the order of addresses should be based on indictment order, that is, the opposite of the "general rule". Mr Johnson, for Mr Onley, tentatively endorsed the submission made by Mr Bruckner that indictment order is to be preferred, but otherwise played no active part in the debate.
There is no statutory guidance about this subject. The order in which counsel for the accused in a multi-accused trial address the jury in relation to one another is not prescribed by any primary or delegated legislation. Section 160 of the Criminal Procedure Act provides:
160 Closing address to jury by accused person
(1) An accused person or his or her Australian legal practitioner may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury.
(2) If, in the accused person's closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion.
The parties agree that no other legislation addresses or is relevant to this question. There are some cases, which do not bind me, which suggest that absent agreement, closing addresses should be in indictment order, that is the opposite of the "general rule". As I will explain, I do not consider those cases to be persuasive.
The Crown's helpful written submissions referred to various editions of Archbold's Pleading, Evidence and Practice in Criminal Cases ("Archbold") published between 1862 and 1966. Prior to the publication of the twenty-third edition, the position in Archbold was that the order of final addresses be determined by order of seniority at the Bar, or in the absence of agreement, by indictment order. When the twenty-third edition was published in 1905, it stated at p. 209 that:
"… the general, and it is submitted the established rule, is that in the absence of agreement between counsel the court will call on them to cross-examine and address the jury, not in the order of seniority, but in that in which the names stand on the indictment."
The English decisions cited in Archbold to support this rule do not support the proposition that indictment order should prevail over some fairer order in the circumstances of the case:
1. R v Barber (1844) 1 Car & K 434 (also reported as R v Richards (1844) 1 Cox 62) records a "rule" as being that in the absence of agreement by defence counsel to do otherwise, closing addresses will take place in indictment order;
2. Fletcher (Public Officer) v Crosbie (1842) 2 M & Rob 417, an action of assumpsit rather than a criminal prosecution, was a case where Rolfe B ordered that the most junior counsel should address first because it would have been "inconvenient and unjust towards the other defendants" to permit him to go last, his client and the plaintiff having the same interest. That case does not support the proposition for which it is cited in Archbold - that closing addresses should proceed in indictment order;
3. R v Meadows [1856] 2 Jur NS 718, was a case where two alleged burglars were tried jointly with two others who were alleged to have received the stolen goods. Erle J held that it was usual practice for defence addresses to occur in indictment order, but that "[a]ttention must, however, be paid to the precise offence with which each prisoner is charged: for instance, the principal should make his defence before the accessary, and the thief before the receiver, and such like; but then when an indictment is drawn by a knowing man he usually puts the principal person first". As I have said, the indictment in this case is drawn in alphabetical order and whatever the merits of the approach in Meadows, the rule described has no application here.
There is at least one relatively recent Australian case which addresses this issue directly, R v Webb and Hay (1992) 64 A Crim R 38. In that case Debelle J referred to the 16th (1867), 29th (1934) and 1992 editions of Archbold and concluded that, absent agreement, closing addresses should be in indictment order. At its highest, Debelle J's conclusion appears to be based on an understanding that the practice in South Australia follows the practice as expressed in Archbold. As I have said, I regard the editions of Archbold relied upon by Debelle J as a flimsy foundation for any "rule" on this subject.
Debelle's J reference to R v Antill and Brown (1863) 2 SCR (NSW) 50 does not support his Honour's ultimate conclusion. In Antill and Brown, Stephen CJ held at 52 that it "never has been a matter of strict right" which accused should address the jury first based on their position on the indictment.
Debelle J's reliance on R v Orton [1922] VLR 469 was similarly misplaced. In that decision, Cussen J held at 473 that "there is no inflexible rule on the subject". That "subject" was when the Crown would be permitted to address the jury in reply in relation to three defence addresses.
The current rule in England and Wales, r 25.9(5) of the Criminal Procedure Rules 2020 (UK) is of no assistance. That rule provides: "Where there is more than one defendant, this rule applies to each in the order their names appear in the indictment, or in an order directed by the court".
The parties also referred to a report of the Criminal Law Revision Committee published in 1963: United Kingdom, Criminal Law Revision Committee, Fourth Report: Order of Closing Speeches, (September 1963). This report, upon analysis was dealing with the circumstances in which the Crown would be permitted to reply to a defence address.
I have concluded that the indictment order (or the reverse indictment order) of addresses must give way to whatever the Court considers just in the circumstances of the individual case. There is no rule applying to the order of defence addresses in a multi-accused case. Ultimately, the Court has an inherent power to organise itself and the conduct of a trial in the manner it sees fit. If the Court considers that the fairest way to proceed is to structure the defence addresses in a particular order, then it could, and should, do so.
The order of defence addresses, if no agreement has been reached, involves the exercise of a discretion by me, to be exercised judicially, to try and ensure fairness between the various accused. No a priori rule based on place in the indictment will necessarily ensure fairness in a particular case and I do not propose to adopt any such approach. I have concluded that I should require defence counsel to present their closing addresses to the jury in the order which, having regard to the way the evidence and the case has unfolded, will be fair and do justice to all parties in the case.
[2]
Relevant findings about the order of addresses in this case
I accept that the forensic disadvantage for a party who cross-examines first is a reason to permit final addresses other than in indictment order. I find that Mr Stratton SC, who has been first to cross-examine Crown witnesses throughout this trial, has been the subject of numerous instances where his careful cross-examination has been undone, no doubt inadvertently, by counsel cross-examining after him. It is fair, in those circumstances to Mr Adam Cranston that the indictment order should not prevail in relation to final address by his counsel.
Mr Menon is the only accused to give evidence. That evidence will stretch over several weeks. This is a factor tending in favour of requiring Mr Bruckner to address first, so the remaining accused hear how Mr Bruckner proposes to close his case on behalf of Mr Menon before they are called on to address. In addition, I have taken into account the likely length of defence addresses. Mr Bruckner estimates his closing address will take 3 days, Mr Johnson estimates his will take at least 2 days, Mr Stratton SC estimates his will take up to 1 day, and both Mr Brasch and Mr Anderson SC estimate theirs will take between half a day and 1 day.
Taking these matters into account I have concluded that it is appropriate that Mr Bruckner address the jury first. If forced to address before Mr Bruckner, a short forensic closing by Mr Stratton SC, Mr Anderson SC or Mr Brasch runs the risk of being lost in the much more considerable detail involved in Mr Bruckner's 3 day address. It is fairest to the other accused that they hear how Mr Bruckner puts his client's case so that they may respond. I find that in a number of respects in his evidence to date Mr Menon has said things, no doubt inadvertently, that the jury may regard as inculpating Mr Cranston, Ms Cranston and Mr Onley in the conspiracies alleged. It is only fair to Mr Cranston, Ms Cranston and Mr Onley that their counsel hear how Mr Bruckner deals with these issues before they are called on to address the jury.
Mr Johnson will address the jury second whether I adopt what I regard as the correct approach or whether I adopt the practice of addressing "up the indictment". I did not understand Mr Johnson to seek any different order. As his address will be up to 2 days in length, I find that a short forensic closing by Mr Stratton SC, Mr Anderson SC or Mr Brasch runs the risk of being lost in the much more considerable detail involved in Mr Johnson's 2 day closing address.
To summarise, I find that the appropriate order of address is that the two lengthy addresses from counsel for Mr Menon and Mr Onley proceed first, followed by the other three accused.
I find that the case conducted on behalf of Ms Cranston is quite different to the remaining accused. In his opening address, Mr Anderson SC told the jury that "[h]er case is, very simply, she knew nothing" and that she "is in a very different category to the four men sitting behind her." Ms Cranston's case is that her conduct was not done "as part of the facilitation of either conspiracy, but rather she was fulfilling her role as an employee acting at the direction of others". I find that Mr Anderson SC's address is likely to be different to the others. Having regard to the way the evidence has emerged and the case which has been conducted, I have concluded that it is fairest that Mr Anderson be permitted to address the jury last.
I have found the question of whether Mr Brasch or Mr Stratton SC should address third to be the most difficult.
Mr Brasch correctly submits that the Crown case against his client is perhaps more limited than against Mr Cranston. Mr Willmott was not part of the proceedings at the time of Cranston (No 4) [2020] NSWSC 1104. He is said not to have been part of the formative meetings concerning the relevant scheme and the period of his involvement on the Crown case is substantially less than the other accused.
I have concluded, however, that it is fairest to all parties that Mr Brasch address before Mr Stratton SC. On a number of occasions Mr Stratton's careful cross-examination has been qualified by counsel cross-examining after him, including Mr Brasch. Mr Brasch has had the relative luxury of only cross-examining on rare occasions and to a very limited extent, Mr Stratton SC having broken the back of all of the significant cross-examinations of Crown witnesses. I have concluded that it is fairest as between Adam Cranston and Patrick Willmott, Mr Stratton SC having been the principal focus of challenges to Crown witnesses, that Mr Brasch address the jury before Mr Stratton SC. In so concluding, I note that had Mr Stratton's closing address been estimated to last more than a day I would have come to a different conclusion.
[3]
Conclusion
For the foregoing reasons, after the Crown has completed its address, I propose to invite the accused to address the jury in the following order:
1. Mr Bruckner for Mr Menon;
2. Mr Johnson for Mr Onley;
3. Mr Brasch for Mr Willmott;
4. Mr Stratton SC for Mr Cranston; and
5. Mr Anderson SC for Ms Cranston.
[4]
Amendments
21 March 2023 - Publication restriction lifted.
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Decision last updated: 21 March 2023