[1996] HCA 22
Dia v R [2014] NSWCCA 9
Dries v The Queen [2022] NSWCCA 33
Gilbert v R (2000) 201 CLR 414
[2000] HCA 15
Hinch v Attorney-General (Vic)(1987) 164 CLR 15
[1987] HCA 56
Maxwell v Director of Public Prosecutions [1935] AC 309
Medich v R [2021] NSWCCA 36
(2021) 390 ALR 398
Miller v R [2015] NSWCCA 206
Source
Original judgment source is linked above.
Catchwords
[1996] HCA 22
Dia v R [2014] NSWCCA 9
Dries v The Queen [2022] NSWCCA 33
Gilbert v R (2000) 201 CLR 414[2000] HCA 15
Hinch v Attorney-General (Vic)(1987) 164 CLR 15[1987] HCA 56
Maxwell v Director of Public Prosecutions [1935] AC 309
Medich v R [2021] NSWCCA 36(2021) 390 ALR 398
Miller v R [2015] NSWCCA 206
Judgment (2 paragraphs)
[1]
Judgment
On 20 May 2022, I refused an application by Mr Onley to discharge the jury or, in the alternative, that he be severed from the indictment. These are my reasons for refusing to make those orders.
The application was made on day 18 of the joint trial of Adam Cranston, Lauren Cranston, Dev Menon, Jason Onley and Patrick Willmott. Each has pleaded not guilty to one count of conspiracy with the intention of dishonestly causing a loss to a third person contrary to s 135.4(3) of the Criminal Code (Cth), and one count of conspiracy to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime contrary to ss 11.5(1) and 400.3(1) of the Criminal Code.
A number of witnesses have already given evidence in these proceedings. At the time of the application to which this judgment relates, the jury had heard six full days of evidence in chief from [redacted], an alleged co-conspirator of the accused who is currently in prison having pleaded guilty to the same offences with which the accused are charged. In the course of that evidence in chief, the Crown has played a considerable volume of telephone intercept and covert surveillance device recordings. Those recordings form part of Ex R in these proceedings. The Crown has also made available to the jury transcripts of those recordings, as part of MFI 6.
Before the matter came on for trial, numerous interlocutory applications were made in relation to the Crown's proposed evidence. In September 2021, objection was made by Mr Onley and others under s 84 of the Evidence Act 1995 (Cth) to a number of utterances recorded by covert surveillance devices, including utterances made by Mr Onley on 1 February 2017. I made rulings on each of those objections in early November 2021 and published reasons for those rulings: R v Cranston (No 9) [2021] NSWSC 1413. As a result of my rulings, together with subsequent rulings made in late 2021 and early 2022 and negotiations between the Crown and the accused, the final form of what became Ex R and MFI 6 was settled prior to the trial commencing on 26 April 2022.
The utterance that forms the basis of the present application (and the context in which it was made) was relevantly dealt with by me at [102(20)] of Cranston (No 9) in the following way:
"Item 30:
'ONLEY: Mate, I'll put my hand up, I'll go to jail. I'll have a good time, I'll fucken train every day.
… (indistinct simultaneous conversations) ...
MENON: Get in good shape.
ONLEY: Yeah get in good shape. Fucking be away from the wife. Yeah it'd be great. I'll fucking go to jail for everyone. I'll say it's all me ...
ANQUETIL: It doesn't look that good, bro
ONLEY: Doesn't it
ANQUETIL: It looks shit
ONLEY: Dude, I've been in jail before
A.CRANSTON: It's shit
ONLEY: I've been in jail in the US
ROSTANKOVSKI: The US?
ONLEY: ... (indistinct) ... backpacking.'
If an objection was made to the admissibility of the italicised evidence that Mr Onley had been in gaol before, I would uphold it. The remainder of the conversation, however, is not influenced in any way by any threat of violence. If, even fleetingly, Mr Onley had the slightest concern about a threat of violence, his statement that 'I'll fucking go to jail for everyone' would be inexplicable. I am satisfied that these utterances were not influenced by the threat of violence."
That is, whilst I rejected the objection advanced under s 84 of the Evidence Act in relation to this entire passage, I indicated that if objection was made by Mr Onley to the italicised portion of the exchange under ss135/137 of the Evidence Act I would uphold the objection and exclude the italicised parts of the recording. I left to the parties the question of whether any objection on those grounds was to be made. The question of the admissibility of this passage or any part of it was not agitated before me after the publication of Cranston (No 9) over the course of numerous directions hearings in late 2021 and throughout early 2022 held prior to the commencement of the trial and the settlement of the contents of Ex R and MFI 6.
On 19 May 2022, in the course of [redacted] evidence in chief, the Crown played from Ex R a recording made by covert surveillance device on 1 February 2017. That recording included the following utterance by Mr Onley: "Dude, I've been in jail before".
By email from Mr Johnson, counsel for Mr Onley, at 8:59pm on the evening of 19 May, the following application was foreshadowed:
"I write on behalf of Mr Onley, with copy to counsel for the Crown and that of Mr Onley's co-accused, to bring the following matter to his Honour's attention and foreshadow an application to be heard at an appropriate time.
During the period between morning tea and the luncheon adjournment today, surveillance device recordings (Exhibit R) were being played for the jury which were recorded on 1 February 2017 at the offices of Clamenz Lawyers. The jury appeared to be attentively following along with the audio by reference to the transcripts of those recordings (MFI 6).
Evidence of utterances attributed to Mr Onley was adduced, which Mr Onley understood was agreed between himself and the Crown to be excluded.
This evidence appears in MFI 6 at page R1491 at lines 1 to 7, and is referred to in Cranston (No 9) at 102.
The evidence which was adduced appears below in [italicised] font, and the evidence which was edited out of the recordings and the transcript appears in strikethrough font.
ONLEY: Dude, I've been in jail before
A.CRANSTON: It's shit
ONLEY: I've been in jail in the US
ROSTANKOVSKI: The US?
ONLEY: ... (indistinct) . . . backpacking.
In Cranston (No 9) at 102, it was held that if objection was made to the admissibility of the whole of the above evidence, it would be upheld. Mr Onley's position is that the objection was made and that the whole of the above evidence was to be excluded by agreement. However, what occurred was that the highlighted portion remained in evidence, whilst only part of the evidence the subject of 102 was in fact removed.
Mr Onley considers this to be a consequence of inadvertent oversight on the part of both the Crown (for making the edits inconsistent with the agreed position) and himself (for not identifying the error). The Crown may not agree with Mr Onley on this point.
As a consequence of the above evidence having been adduced, Mr Onley will seek an order that he be severed from this trial. In the alternative, Mr Onley says the jury should be discharged and that the trial of this matter re-commence with a new jury. In the further alternative, Mr Onley seeks jury directions designed to ensure the fair trial of Mr Onley.
I apologise of the late hour of this email. The time was necessary to first discuss this important matter with the Crown and to take instructions."
On 20 May 2022, I heard Mr Onley's application to discharge the jury or to sever him from the indictment. The evidence led on the application was a folder of documents tendered by Mr Johnson, which were marked Ex A on the application. The Crown read an affidavit of Anthony John Powell affirmed 20 May 2022.
Having considered that evidence, I find that Mr Johnson, on behalf of Mr Onley, intended to notify the Crown informally of an objection to the whole of the italicised portion of the exchange set out in paragraph [5] above, but that there was a miscommunication of that intended objection. The fact that the Crown understood the objection not to extend to the entirety of that passage, but only the portion struck out in Mr Johnson's email at paragraph [8] above, is clear. On 2 March 2022, the Crown provided to the parties a Draft Schedule which set out, amongst various details, passages to be omitted from the surveillance device recordings. Relevantly, the schedule recorded as excluded:
"Omit from page 926 the words commencing 'ONLEY: I've been to jail in the US' up to and including 'ONLEY: … (indistinct) … backpacking.'"
A footnote to that notation recorded that this was "[a]greed to be removed by the Crown during the course of pre-trial hearing on 15 February 2022". The portion agreed by the Crown to be excluded did not include the utterance by Mr Onley: "Dude, I've been in jail before". No objection was raised in the "Defence comment" column of the schedule that any further passage should be excluded.
Mr Johnson says, and I accept, that in the context of the numerous objections addressed by that schedule he did not notice the fact that the deletion of the evidence he intended be made was incomplete. I find that the Crown sought to bring this matter to the attention of the legal representatives of the accused and included in the schedule the fact that a specified limited part of the recording was not to be adduced by agreement.
For over a month prior to the playing of the recording on 19 May, legal representatives for Mr Onley have been in possession of the final form of the recordings the Crown intended to tender as Ex R and play to the jury, and the agreed transcript of those recordings (given to the jury and marked MFI 6). The Crown made it clear that it intended to play that part of the recording not struck through in Mr Johnson's email, replicated at paragraph [8] above. I accept, however, that Mr Johnson did not notice that the passage where Mr Onley talks of having "been in jail" had not been completely deleted from Ex R and he did not check MFI 6 in this respect before the recording was played to the jury on 19 May.
In relation to the application to discharge the jury, Mr Johnson submitted that a direction to the jury was not sufficient to ameliorate the prejudice arising from the inadvertent adducing of evidence which might tend to suggest that Mr Onley has a relevant criminal history because, despite the presumption that the jury will follow directions, there is a danger that the jury would not be able to do so in relation to such a "critical" piece of evidence. In the alternative, Mr Johnson submitted that severance of Mr Onley from the trial would achieve the same result as discharging the jury, without disrupting the proceedings against the remaining four accused. As to Mr Johnson's final submission, that the jury should be given a direction about the evidence, he submitted that an admission could be made by his client. A suggested form of admission was handed up and marked MFI 13. I will return to the suggested admission later in these reasons. The Crown submitted that any possible prejudice could be addressed by a jury direction. None of the remaining accused sought the discharge of the jury.
As to the application to discharge the jury, the High Court in Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22 explained:
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact."
In Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126], the NSW Court of Criminal Appeal summarised the principles to be applied:
"The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v R [2010] NSWCC 129 per Hall J at [265] ff. The following principles emerge from his Honour's review and from the two leading cases he cites Crofts v R [1996] HCA 22; 186 CLR 427 and Maric v R (1978) 52 ALJR 631:
(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440.
(2) In deciding an application to discharge the jury, key considerations include:
(a) the fairness of the trial: Crofts at 440;
(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to 'have been left vividly etched on the mind of the jury': Crofts at 441;
(c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;
(d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;
(e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;
(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.
(3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.
(4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that '[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict', and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can 'say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable'.
(5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind 'that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript': Crofts at 440-441.
(6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge 'is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind': Crofts at 441, but rather must apply the broader test stated at (4) above."
The Court's summary was recently quoted with approval by Bathurst CJ in Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [86]. See also Dries v The Queen [2022] NSWCCA 33 at [37]; Cox v The Queen [2022] NSWCCA 66 at [48].
In a case such as the present, where the evidence has been placed before the jury inadvertently and without fault on the part of the Crown, the lack of "deliberateness of the conduct" is an important factor in shaping the approach which the Court should take. The leading authorities from the High Court and the Court of Criminal Appeal do not require trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material: R v Ahola (No 6) [2013] NSWSC 703 at [17].
The context in which the evidence is received is of critical importance. In Dia v R [2014] NSWCCA 9, the Crown inadvertently led evidence about a tattoo on the applicant's arm which was prejudicial to the applicant's defence that he had been wrongly identified. The tattoo evidence was brief - a one-line response to a question in chief. It was not subsequently repeated, and no further reference was made to it, save for a specific direction from the trial judge that the jury ignore that evidence. As Hoeben CJ at CL explained at [47]:
"[47] There is an important distinction between this matter and the circumstances considered in Crofts because in this case the trial judge was able to be more specific in directing the jury to ignore the evidence about which complaint was made. His Honour was able to give a specific direction directed to the tattoo. Following the resumption of the trial, his Honour said:
'The evidence about a tattoo in relation to Mr Dia is not led against Mr Dia by the prosecution it is only led in the case against Mr Fawaz because Fawaz made some comments about a person having a tattoo. So when you come to consider your verdict, you will just take that evidence in determining the issues before you as regards the accused Mr Fawaz and not in relation to Mr Dia.'
That direction was specific and clear and did not in the circumstances, contrary to the applicant's submission on appeal, reinforce the impermissible chain of reasoning in relation to the appellant's identity, which the jury was not to engage in by reference to the evidence of the tattoo."
The context of Mr Onley's statement, that he had "been in jail before", is important. I do not accept that it is a "critical" piece of evidence. Mr Onley was in the lengthy passage preceding this utterance negotiating with Mr Rostankovski, who was at that stage seeking to extort him and the other alleged conspirators for a payment of $5 million by threatening to expose their conspiracy to defraud the Australian Taxation Office. In the course of seeking to rebuff that extortion attempt, Mr Onley said words to the effect that "we're all fucked anyway, so it doesn't matter", "we're going to jail", "we're all going down anyway" and "we're already cooked" for the purpose of indicating that he did not find Mr Rostankovski's threats of exposing the alleged conspiracy to be persuasive as he believed he was already going to gaol.
The circumstances in which the evidence was adduced in the atmosphere of the trial are also highly relevant in rejecting the submission that this was a "critical" piece of evidence. The relevant passage constituted one second out of approximately 70 hours of covert surveillance device recordings played to the jury and one line out of 3,645 pages of transcript of those recordings. As in Dia, the relevant utterance here was "somewhat obscure and formed but a small part of a much larger body of evidence": see at [45]. Any link between Mr Onley's having "been in prison before" and his responsibility for the present charges is not clear: Dia at [49]. The impugned evidence has not, and will not, be repeated to the jury. In the atmosphere of the trial, I judged that the evidence was not very important and that any possible prejudice to Mr Onley could adequately be addressed by a direction to the jury.
Mr Johnson also relied upon Maxwell v Director of Public Prosecutions [1935] AC 309 and principles drawn from the contempt cases Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56 and Attorney-General (NSW) v Willessee [1980] 2 NSWLR 143. Consideration of those cases leads to no different conclusion. Maxwell is an inapposite comparison. This was not a case where evidence of a prior conviction was deliberately adduced in any cross-examination of Mr Onley by the Crown. The utterance did not suggest that Mr Onley had been convicted of any crime, let alone one relevant to the present charges. The utterance made by Mr Onley was a small part of his initial rejection of Mr Rostankovski's extortion attempt, when he sought to convince Mr Rostankovski that his threat was not potent because, as Mr Onley explained, "we're all fucked anyway, so it doesn't matter", "we're going to jail", "we're all going down anyway" and "we're already cooked". Hinch and Willessee also address a different issue to the present, being interference by broadcasters in a criminal trial by publishing details of prior criminal convictions of an accused during a criminal trial.
For these reasons, in the exercise of my discretion, I determined that the jury should not be discharged. If the jury were to be discharged and the matter adjourned, there is no certainty that the trial could be heard before 2023.
As to severance, the principles were explained by Hamill J in R v Qaumi (No 3) [2016] NSWSC 15 at [128] as follows:
"In terms of separating the trials of individual accused, 'separate trials may be appropriate where the evidence to be led against one accused is significantly different from that to be led against another': Annakin at 139 citing Re Guldur (1987) 8 NSWLR 12 and R v Darby [1962] HCA 32; 148 CLR 668. The principles were encapsulated in the following passage from Hunt J in R v Middis (Supreme Court (NSW), 27 March 1991, unrep) which is often referred to in later authorities:
'Briefly, the relevant principles are that:
1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,
a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.'"
I do not accept that it is appropriate in this case that Mr Onley be severed from the trial. I am not satisfied that there is such a difference in the evidence properly admissible against Mr Onley, as compared to the evidence admissible against the other accused, which requires Mr Onley to be tried separately. The relevant passage inadvertently played to the jury formed a tiny part of the evidence. As I have explained above, any possible prejudice to Mr Onley could adequately be addressed by an appropriate direction to the jury. Further, the stage to which this joint trial has already progressed is significant. The jury have already heard a considerable volume of evidence. Almost an entire month of the Court's time has been devoted to this trial (not to mention the substantial time devoted to the hearing of pre-trial and other interlocutory matters). I reject Mr Johnson's submission that the trial is at a relatively early stage.
I am satisfied that a direction from me to the jury that they are to disregard the evidence, and that the utterance that Mr Onley had previously been in gaol forms no part of the Crown case or the issues before them, is sufficient to ameliorate any possible prejudice that may be suffered by Mr Onley. In making that finding I proceed on the basis that the jury will follow that direction: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13].
Having decided that a direction to the jury will suffice to cure any possible prejudice arising from the inadvertent playing of the relevant passage to the jury, I heard Mr Johnson on the question of his suggested admission.
No admission in accordance with s 184 of the Evidence Act was produced as MFI 13 remained unsigned. Mr Johnson agreed that if an admission is ultimately to be made, he will deal with the matter more formally. If Mr Johnson makes this application, I will repeat my direction about this utterance to the jury in my summing up.
[2]
Amendments
25 May 2022 - Amended to remove catchwords on restricted decision.
21 March 2023 - Name of witness redacted. Catchwords added.
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Decision last updated: 21 March 2023