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Supreme Court 24 August 2020

R v Cranston (No 4)

[2020] NSWSC 1104

Fraud & dishonesty
CRIMINAL PROCEDURE FOUR CO ACCUSED ONE UNREPRESENTED ACCUSED

Citation: R v Cranston (No 4) [2020] NSWSC 1104
Court: Supreme Court of New South Wales
Date: 24 August 2020
Judge(s): Payne JA

Background

Four co-accused faced two counts on indictment: conspiracy to dishonestly cause a financial loss to the Commonwealth, and conspiracy to deal with the proceeds of crime valued at $1,000,000 or more. The alleged conduct spanned from March 2014 to May 2017. Three of the four accused had secured legal representation through legal aid, but the fourth had not.

The unrepresented accused had applied for a stay of proceedings on Dietrich principles, arguing he was indigent and unable to fund his own defence. Beech-Jones J refused that application, finding the accused had not discharged the onus of establishing indigence. The Court of Criminal Appeal dismissed a subsequent appeal, though members of that Court expressed significant concern about the practical consequences of an unrepresented accused proceeding to a lengthy, complex trial alongside legally represented co-accused.

With the trial approaching, the three represented co-accused indicated they would seek separate trials if the fourth remained unrepresented. That application came before Payne JA for determination.

  • Whether a separate trial should be ordered for the three represented accused, given that one co-accused remained unrepresented
  • Whether the interests of justice favoured severance of the indictment in those circumstances
  • What procedural steps, if any, could encourage legal funding to be secured before a final order was made

Decision

Payne JA declined to make a final order for separate trials at this stage, instead adjourning the application to October 2020. His Honour signalled clearly, however, that if legal assistance for the unrepresented accused had not been secured by that date, he would sever the indictment and, absent persuasive argument from the Crown to the contrary, remit the unrepresented accused's trial to the District Court.

His Honour expressed a firm disinclination to allow the trial of the unrepresented accused to proceed alongside those of his co-accused. The concerns of the Court of Criminal Appeal, particularly those expressed by Johnson J and joined by Wilson J, regarding the difficulties of a complex, lengthy jury trial involving an unrepresented accused weighed heavily in that assessment.

Before arriving at that position, Payne JA had already indicated informally at an earlier pre-trial hearing that a separate trial would be ordered if a pending ex gratia payment from the federal Attorney-General's Department did not materialise. When that prospect was described by the Crown as "unlikely," his Honour was persuaded to make remarks on the record encouraging the Legal Aid Commission of NSW to reconsider its position in light of the Court of Criminal Appeal's judgment and the remarks made in that decision.

Orders Made

  • The application for a separate trial was adjourned to a date to be fixed in October 2020.

Key Takeaways

  • Where one of several co-accused in a complex conspiracy trial is unrepresented, the trial judge retains a discretion to order separate trials and may signal a strong inclination to do so if legal representation is not secured.
  • Although the ordinary course is to try co-accused on conspiracy charges jointly, that principle yields where the circumstances of one accused's lack of representation would create unfairness or practical difficulties that could not be adequately managed.
  • The Court of Criminal Appeal's concerns about the consequences of an unrepresented accused proceeding to a lengthy, complex trial informed the Supreme Court's approach at the pre-trial stage, illustrating how appellate observations, even in a dismissed appeal, can carry weight in subsequent proceedings.
  • A Dietrich stay application requires the accused to discharge the onus of establishing indigence. Failing that onus does not remove the court's separate discretion to manage the trial's structure through severance.
  • Payne JA's approach of adjourning rather than immediately ordering severance reflected a measured attempt to preserve the joint trial while creating a defined window for funding arrangements to be resolved, with the consequence of severance made explicit if they were not.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.5(1), 135.4(3), 400.3(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 29
- Proceeds of Crime Act 2002 (Cth)

Cases
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Cranston v R [2020] NSWCCA 143
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Nader v R [2018] NSWCCA 256
- R v Cranston [2020] NSWSC 469
- R v MAK [2003] NSWSC 849
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- Trotter v R [2016] NSWCCA 57
- Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30