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5
Supreme Court 1 May 2020

R v Cranston

[2020] NSWSC 469

Fraud & dishonesty
CRIMINAL LAW DIETRICH APPLICATION COMPLEX AND LENGTHY TRIAL DISPUTE ABOUT COST OF REPRESENTATION ACCUSED’S EXPENSES ONUS NOT DISCHARGED

Citation: R v Cranston [2020] NSWSC 469
Court: Supreme Court of New South Wales
Date: 1 May 2020
Judge: Beech-Jones J

Background

The accused was charged with two serious federal offences: conspiracy to dishonestly cause a loss to the Commonwealth (maximum ten years imprisonment) and conspiracy to deal with proceeds of crime exceeding $1 million (maximum 25 years imprisonment). He was due to stand trial alongside three co-accused in August 2020. The prosecution case, set out in an 88-page Crown Case Statement, involved allegations of tax fraud and money laundering.

A significant complicating factor was that the accused's assets had been frozen under the Proceeds of Crime Act 2002 (Cth) following earlier civil proceedings brought by the Australian Federal Police Commissioner. The accused argued that, as a result of those freezing orders, he could not afford appropriate legal representation for what was expected to be a lengthy and complex trial.

By notice of motion filed in February 2020, the accused sought a stay of proceedings until he could secure adequate legal representation. The application invoked the principle established by the High Court in Dietrich v The Queen (1992), which allows a court to stay a serious criminal trial where an indigent accused is unable to obtain representation through no fault of their own.

  • Whether the accused had discharged the onus of proving he was "indigent" for the purposes of a Dietrich application, meaning he lacked the means to engage appropriate legal representation
  • Whether any inability to obtain representation arose through no fault of his own, or whether his own conduct had contributed to that position
  • Whether a non-publication order should be made over the entirety of the application proceedings

Decision

Beech-Jones J dismissed the application, finding that the accused had not discharged the onus of proving indigence on the balance of probabilities. The court accepted that indigence, in this context, does not mean poverty in the ordinary sense. Rather, it means the accused's assets and income fall well short of what is required to fund a proper defence. The trial was estimated to require ten weeks of preparation, a 17-week hearing, and approximately $60,000 in disbursements.

The central difficulty for the accused was the court's finding that there was a realistic likelihood he had "parked" funds in businesses in a way that left those resources available to him, even if not directly accessible. His evidence about his financial position was not sufficiently detailed or forthcoming, and that lack of transparency contributed to the court being unsatisfied that the onus had been met. Under the principles confirmed in R v Macdonald (No 4), an applicant who is not forthcoming with details of their financial circumstances risks the court being left unsatisfied on the issue.

On the publication question, Beech-Jones J refused a blanket non-publication order over the entire application, finding that the public interest in open justice outweighed the risk of prejudice given the trial was more than three months away. However, the court made a limited order suppressing the portion of the accused's cross-examination in which he responded to the core criminal allegations against him. The court reasoned that compelling an accused to answer prosecution allegations before trial, and then publishing those answers, could undermine the fairness of the subsequent jury trial. No suppression order was made over the portion of cross-examination dealing with the accused's dealings with specific assets.

Orders Made

  • The notice of motion filed 13 February 2020 was dismissed.

Key Takeaways

  • Indigence under Dietrich is trial-dependent: it requires proof that the accused's assets and income fall well short of the cost of a proper defence, not merely that the accused lacks ready cash.
  • The onus of proving indigence rests on the accused on the balance of probabilities, and a failure to give detailed and transparent evidence about financial circumstances may be fatal to the application.
  • Where a court finds a realistic likelihood that an accused has arranged assets in businesses in a way that obscures available resources, that finding can defeat a claim of indigence even where formal freezing orders are in place.
  • Partial non-publication orders may be appropriate in Dietrich applications: the Supreme Court drew a distinction between evidence responding to the substance of criminal charges (suppressed) and evidence about an accused's asset dealings (not suppressed).
  • The public interest in open justice carries significant weight in applications of this kind, particularly where the trial date is not imminent.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 135.4(3), 11.5(1), 400.3(1)
- Proceeds of Crime Act 2002 (Cth)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 10
- Criminal Assets Recovery Act 1990 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Dietrich v The Queen (1992) 177 CLR 292
- Craig v South Australia (1995) 184 CLR 163
- R v Macdonald (No 4) [2016] NSWSC 486
- R v Karonous (1995) 63 SASR 451
- R v BK (2000) 110 A Crim R 298
- R v Marchi (1996) 67 SASR 368
- R v Warwick (No 64) [2019] NSWSC 163
- Attorney-General (NSW) v Milat (1995) 37 NSWLR 370
- Matthews v R (No 2) [2013] NSWCCA 194
- Croke v R [2020] NSWCCA 8
- R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834
- Commissioner of the Australian Federal Police v Cranston and 65 Ors (No 8) [2018] NSWSC 365
- Commissioner of the Australian Federal Police v Cranston and 65 Ors (No 10) [2018] NSWSC 542
- Onley v Catlin Syndicate Ltd [2018] FCAFC 119