R v Cranston

[2022] NSWSC 167

Supreme Court of NSW|2022-02-15|Before: Payne JA

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Source facts

Court

Supreme Court of NSW

Decision date

2022-02-15

Before

Payne JA

Catchwords

[1988] HCA 39 Cranston v R [2020] NSWCCA 143 Petch v The Queen (2020) 103 NSWLR 1

Source

Original judgment source is linked above.

Catchwords

[1988] HCA 39 Cranston v R [2020] NSWCCA 143 Petch v The Queen (2020) 103 NSWLR 1

Judgment (52 paragraphs)

[1]

Judgment

HIS HONOUR: The trial of the accused is listed to commence on 4 April 2022. The history of the various pre-trial applications is as follows: [1] 1. on 24 August 2020, I delivered judgments in relation to various pre-trial issues related to disclosure: R v Cranston (No 2) [2020] NSWSC 1102 together with R v Cranston (No 3) [2020] NSWSC 1103 which addressed an application to set aside a subpoena; R v Cranston (No 4) [2020] NSWSC 1104 which addressed the motion by Mr Onley, Mr Menon and Ms Lauren Cranston for a trial separate from Mr Adam Cranston given the failure of his Dietrich application; and R v Cranston (No 5) [2020] NSWSC 1105 which addressed the claims made for client legal privilege over parts of the Crown brief; 2. on 14 December 2020, I delivered R v Cranston (No 6) [2020] NSWSC 1777 which concerned an application to exclude evidence on the basis of alleged non-compliance with s 18(5) of the Surveillance Devices Act 2004 (Cth) and alleged excessive execution of warrants issued under that Act; 3. on 16 December 2020, I delivered R v Cranston (No 7) [2020] NSWSC 1834 which addressed an application to exclude evidence obtained by use of telephone intercepts and surveillance devices under ss 84, 90, 135 and 137 of the Evidence Act 1995 (NSW); 4. on 14 January 2021, I delivered R v Cranston (No 8) [2021] NSWSC 9, dealing with a joint application that the trial of Mr Adam Cranston, initially set down for 18 January 2021, be vacated; and 5. on 4 November 2021, in R v Cranston (No 9) [2021] NSWSC 1413, I determined a number of further pre-trial evidential matters and stood over prayer 1(a) of the notice of motion filed on 21 September 2021, which sought extensive exclusions of evidence recorded by telephone intercepts or surveillance devices under s 135(c) of the Evidence Act. I indicated that I would ensure that this matter would be heard no later than February 2022 to allow senior counsel for the Crown an opportunity to consider what recordings he considers must, in the interests of his case, be played to the jury; and 6. on 15 December 2021, in R v Cranston (No 10) [2021] NSWSC 1637, I dismissed the notice of motion filed by Messrs Menon and Onley seeking the exclusion of certain paragraphs of the statements of Ms Whiting, an officer of the Australian Taxation Office (ATO), under s 135 or s 137 of the Evidence Act.

[40]

Objection D50 (Compilation p 2296)

In this evidence, Messrs Onley, Menon and Cranston discuss how they might deal with the risk of Ms Hammond disclosing information about the fraudulent nature of the Plutus scheme. The objection relates to comments about how they might concoct a story of infidelity in order to discredit Ms Hammond. The transcript records the following: "ONLEY: Can't someone fucking say we had an affair, anytime she says something. That's always a good one that one that you, you know what she was just saying that I had an affair and she wanted to bring me down. MENON: Bags not me. Bags not me saying that, like my wife (Indistinct) … ONLEY: I'm already getting divorced, what am I (Indistinct)"
The Crown does not seek to rely on the statement made by Mr Cranston immediately afterwards (A. Cranston: "But we can say we both bang … we can say we both banged her…").
Mr Cranston submitted that the suggestion to concoct a story of infidelity, made in jest, is irrelevant and adds nothing to the Crown case. It was submitted that the danger of prejudice is that the jury might think that it was a serious plan.
The Crown submitted that this evidence is relevant and probative in the Crown's circumstantial case. In the wider context, the alleged conspirators were having a discussion about the risk of exposure and the way in which they should plan for that event. There are references to training Ms Hammond to "stand tall". There is also speculation about whether she had a plan for "when this all went pear shape". The Crown submitted that the passage here pressed is a continuation of that topic and the way in which the alleged conspirators might minimise the risk of Ms Hammond not sticking to the plan when dealing with enquiries made by the authorities.
I will reject the evidence objected to. It is not sufficiently probative to outweigh the danger of unfair prejudice. The immediately preceding references to Ms Hammond (which in any event are not the subject of the objections) are admissible.

[46]

Item 6: 14 February 2017 p 1853-4 (from A. Cranston: "Pat didn't send me any money…" to L. Cranston: "Peter, Peter was a (indistinct)")

Item 6 is part of a discussion between alleged conspirators about the scheme's financial records ("there's money going everywhere…") and whether they are easily understood ("it would take them years…"). The discussion is about the risk of the financial records being discovered and the scheme exposed.
Mr Willmott objected to the evidence on the basis that it is prejudicial. The Crown submitted that the evidence is relevant, probative, and, save for a small portion (at p 1854.2 to 1854.4), not unfairly prejudicial. The Crown submitted that: 1. the first part of item 6 (at pp 1853.1 to 1853.5) is not unfairly prejudicial but, rather, is beneficial to Mr Willmott because it confirms that he did not send Mr Cranston any money that might spark enquiries; 2. the second part of item 6 (at pp 1853.5 to 1853.6) does not relate to Mr Willmott because it only involves Mr Cranston explaining how to "set someone up"; and 3. the third part of item 6 (at p 1853.6 to end of page) is a discussion about "Pete" (presumably Peter Larcombe) and is roundly critical of his conduct. It mentions Mr Willmott only indirectly to further the criticisms made of Mr Larcombe.
The Crown submitted that the only portion of item 6 that is detrimental to Mr Willmott are the comments made by Mr Cranston (at pp 1854.2 to 1854.4) about "Pat's" reason for giving "Pete" money ("Pat was just giving … that's exactly how Peter would've been.") The Crown submitted that this evidence is relevant and probative of the relationship between Mr Cranston and Mr Willmott (as well as Mr Larcombe). The Crown noted that the other accused may have an interest in the material being adduced.
Senior counsel for Ms Cranston indicated that his client's preference was that the evidence at pp 1853 to 1854 be admitted as part of the Crown's evidence. I will allow all of the evidence comprising item 6 to be adduced. It is admissible for the non-hearsay purpose described in Ahern as evidence of participation and the scope of the agreement. To the extent there is a danger of unfair prejudice that may be addressed by a direction to the jury.

R v Cranston

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