[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]
On 7 March 2023, following an almost year-long trial, the jury found Adam Cranston guilty of two very serious Commonwealth offences which I will describe as a tax fraud conspiracy and a money laundering conspiracy.
Although Mr Cranston's case involves serious breaches of federal law, as with most criminal cases in NSW it has been prosecuted in the NSW courts by the Commonwealth DPP. Immediately after the verdict, the Commonwealth DPP brought an application under s 50(1) of the Bail Act 2013 (NSW) to have Mr Cranston detained before his sentencing. I granted that detention application: R v Cranston (No 28) [2023] NSWSC 199.
On 4 May 2023, I was informed that the Commonwealth Attorney-General's Department, which had provided legal aid to Mr Cranston since May 2021, had withdrawn that grant of aid on the basis that Mr Cranston had now been convicted. It was suggested by the Commonwealth Attorney-General's Department that legal aid should now be provided to Mr Cranston by Legal Aid NSW.
In our system of criminal trials, it is the obligation of the trial judge to ensure, as far as possible, that there is no unfairness to the Crown or the accused. The trial for this purpose includes any sentencing hearing. An incident of a fair trial is that, in very serious trials such as the present, the offender is legally represented. The High Court laid down these principles over 30 years ago in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. It is my obligation as the trial judge to ensure that there is a fair sentencing hearing.
After a year-long trial, in what I have already found is one of the most serious federal tax fraud trials successfully prosecuted in this country, for there to be a fair sentencing hearing, Mr Cranston must be legally represented. Mr McGuire SC, who has capably represented the Commonwealth DPP throughout this trial, agreed that it would be unfair to proceed to sentence Mr Cranston if he is not legally represented. Counsel for the Commonwealth Attorney-General's Department, who appeared today, agreed.
Given that I am not in a position to sentence Mr Cranston today, nor to fix a date for his sentencing hearing, and given the public interest in such a significant case, I should explain the background to my decision to adjourn the sentencing hearing.
It is the obligation of the Court to sentence Mr Cranston for these very serious federal offences as soon as practicable. I was available to sentence Mr Cranston at any time in the period March 2023-May 2023. The background is as follows:
1. Immediately following Mr Cranston's conviction, at the request of Mr Cranston's then-representatives, I listed his matter for mention on 4 May. I made it clear at that time, however, that an earlier date for his sentence hearing was available and, if sought, I would accommodate it. On 28 March 2023, dates for a sentencing hearing were offered to Mr Cranston's then representatives in early May 2023;
2. On 1 May 2023 by email, my chambers informed Mr Cranston's representatives that dates for a sentencing hearing by the end of June 2023 should be agreed with the Commonwealth DPP, and that failing such agreement, on 4 May 2023 I would impose orders to bring the matter on for sentence hearing before that time;
3. No dates were forthcoming and, instead, on 4 May 2023 I was informed by Mr May on behalf of the Commonwealth Attorney-General's Department that legal aid for Mr Cranston's sentencing hearing had been withdrawn.
In addressing what I should do in the light of that withdrawal of Commonwealth legal aid, the history of Mr Cranston's grant of legal aid is relevant. The starting point is that, following Mr Cranston's failed applications to obtain legal aid from the NSW or Commonwealth authorities, or to obtain a stay of the proceedings, I severed the indictment and set down a trial of Mr Cranston alone, unrepresented, to commence in January 2021. Shortly prior to the trial, Senior Counsel for the Commonwealth DPP, Mr Maidment KC, made an application to vacate Mr Cranston's trial as, he submitted, it would be fundamentally unfair if I were to proceed with the trial against Mr Cranston if he were unrepresented. I set out the history of that aborted trial and the attitude of the Commonwealth authorities in R v Cranston (No 8) [2021] NSWSC 9.
Then, as now, the Commonwealth Attorney-General's Department stated that legal aid was primarily a responsibility of the NSW authorities. I was urged to implore the NSW authorities to provide legal aid to Mr Cranston. I did raise the matter with Legal Aid NSW who did not change their initial decision to refuse Mr Cranston legal aid. I emphasise in reciting this history that I am in no way critical of Legal Aid NSW. Legal Aid NSW have, throughout the years I have been involved in these proceedings, in their communications with the Court and the parties been prompt, courteous and clear. It is to be noted that Legal Aid NSW have funded the remaining four offenders in this trial, including funding their sentence proceedings.
Accordingly, I was faced with the following situation. I could not proceed with a trial of Mr Cranston whilst he was unrepresented. I had attempted to do so and the Commonwealth DPP, acting responsibly and honourably, persuaded me that this was not an available course. I had tried, at the urging of the Commonwealth Attorney-General's Department, on a number of occasions, to engage Legal Aid NSW to provide aid to Mr Cranston. Those attempts were unsuccessful.
I formed the view that if the Commonwealth wanted to prosecute Mr Cranston for what appeared to be very serious federal tax fraud, the federal authorities would need to bear the costs of 2 separate federal trials or the Commonwealth would have to provide legal aid to Mr Cranston. Eventually, and after at least 5 further hearings in the Court, in May 2021, the Commonwealth provided legal aid funding to Mr Cranston. At the time I expressed my gratitude to the officers of the Commonwealth Attorney-General's Department and the then-Commonwealth Attorney-General for stepping in to allow this important Commonwealth criminal trial to proceed.
In May 2022, in the midst of the trial, I was informed that officers of the Commonwealth Attorney-General's Department had cast doubt on the continuation of Commonwealth legal aid. The then-Commonwealth Attorney-General stepped in and ensured the continuation of legal aid and the continuation of the trial. I expressed my thanks to her at that time.
On 4 May 2023, without any notice to the Court, legal aid for Mr Cranston's then-imminent sentencing hearing was withdrawn by the Commonwealth and it was suggested that Legal Aid NSW should instead provide legal aid for Mr Cranston's sentence proceedings. My chambers received an email last evening from Legal Aid NSW, the effect of which was that due to the time the application had been made and the need for further information a decision could not be expected about NSW providing legal aid funding until, at least, early June 2023. In keeping with all communications in this matter Legal Aid NSW were prompt, courteous and clear.
The reason that on 4 May 2023 I expressed my surprise and disappointment at the decision by the Commonwealth Attorney-General's Department to withdraw legal aid for Mr Cranston's sentencing hearing is that the Commonwealth provided legal aid for weeks of preparation for the trial and 173 days of the trial (including deliberations). Assuming the same counsel are provided with federal legal aid funding, there is likely only perhaps a few days of preparation left, including obtaining sentencing reports, and a half-day oral hearing. That impression I had formed is reinforced by the terms of Exhibit 1 which provides for an amount of about $37,000 for Senior Counsel and solicitor sentencing hearing attendance and preparation together with about $11,500 for disbursements, being a psychiatrist report, psychologist report and subpoenas. If legal aid funding by the Commonwealth is not restored, and is replaced by Legal Aid NSW funding, there is a risk that new counsel would be briefed. If that were to occur, the costs to the community would be exponentially higher as the new counsel would need to acquaint themselves with the issues from a year long trial. That is, there is a risk that withdrawal of legal aid funding by the Commonwealth, even assuming Legal Aid NSW steps in, may result in duplication and a waste of scarce public resources.
More importantly, delays caused by the withdrawal of legal aid by the Commonwealth Attorney-General's Department affect the community. Mr Cranston has been convicted of involvement in dishonestly taking over $105 million of federal tax money which should have been available to the whole community. I am anxious, on behalf of the community, to proceed to sentence Mr Cranston as soon as practicable. As I have already said in sentencing his co-offenders Lauren Cranston and Patrick Willmott, tax fraud offences of this kind are corrosive of our society. They are difficult to detect and difficult to successfully prosecute. The community is entitled to know, and know as soon as practicable, about the sentence to be imposed on Mr Cranston for his very serious offending.
One of the most important purposes of sentencing for serious tax offending of this kind is general deterrence; to send a message to others who might be tempted to steal from the tax system that the courts will not tolerate that behaviour. The longer the sentence hearing for Mr Cranston is delayed the more diluted that message of general deterrence will become.
The Supreme Court of NSW takes extremely seriously its obligation speedily to conduct all of the serious criminal trials which it is tasked with conducting, including important cases involving Commonwealth laws such as the present. By reason of the withdrawal of legal aid by the Commonwealth Attorney-General's Department for Mr Cranston, it is likely I will not be able to sentence him or make orders to bring that sentencing hearing on before the end of this financial year. I will adjourn the matter for a sufficient period to permit the Commonwealth and State legal aid authorities properly to consider funding the sentencing hearing and to consider these reasons. If legal representation is not obtained by Mr Cranston prior to the next hearing, I will consider what steps, however unpalatable, are available to be taken by the Court.
Accordingly, I make the following orders:
1. The sentence proceedings concerning Adam Cranston be stood over for directions to 13 June 2023 at 9.30am;
2. Direct that these reasons be supplied by the Commonwealth DPP to representatives of the Commonwealth Attorney-General's Department and Legal Aid NSW.
[2]
Amendments
09 May 2023 - Cover sheet corrected
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Decision last updated: 09 May 2023