R v Cranston (No 20) - [2022] NSWSC 1578

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Cranston (No 20) [2022] NSWSC 1578
Hearing dates: 15 and 17 November 2022
Date of orders: 21 November 2022
Decision date: 21 November 2022
Jurisdiction: Common Law - Criminal
Before: Payne JA
Decision:
Application for certificate under s 128 of the Evidence Act (1995) (NSW) is refused

Catchwords:
EVIDENCE – Privilege – Self-incrimination – application for a certificate – cross-examination of accused giving evidence

Legislation Cited:
Evidence Amendment Act 2007 (NSW)
Evidence Act 1995 (NSW)
Corporations Act 2001 (Cth)

Cases Cited:
Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12

Texts Cited:
Explanatory Note, Evidence Amendment Bill 2007 (NSW)

Category: Procedural rulings
Parties: Crown
Adam Michael Cranston (Accused)
Lauren Anne Cranston (Accused)
Dev Menon (Accused)
Jason Cornell Onley (Accused)
Patrick Willmott (Accused)
Representation:
Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
J Stratton SC with H Blake (Adam Cranston)
TD Anderson SC (Lauren Cranston)
P Bruckner (Dev Menon)
WR Johnson (Jason Onley)
L Brasch (Patrick Willmott)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
One Group Legal (Adam Cranston)
Greg Willis Criminal Defence Lawyer (Lauren Cranston)
Hardinlaw (Dev Menon)
Pure Legal (Jason Onley)
The Defenders (Patrick Willmott)

File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291
Publication restriction: Not to be published other than to the parties until after the trials of each of the accused are completed.

JUDGMENT

This trial commenced on 26 April 2022. On 3 November 2022, the Crown case closed. On 4 November 2022, one of the five accused, Mr Dev Menon, commenced giving evidence.
On 15 November 2022, immediately prior to his cross-examination commencing, Mr Menon’s counsel, Mr Bruckner, sought the issue of a certificate under s 128 of the Evidence Act 1995 (NSW) in relation to “evidence on a particular matter” being the following four “particular matters”:

Procuring an allegedly false affidavit (witnessed by Mr Menon) verifying a statement of claim filed in the Supreme Court where the deponent falsely claimed knowledge about the underlying facts asserted in the claim;

Procuring allegedly false affidavits from “straw” directors of 7 second tier entities allegedly involved in a dishonest scheme to cause a loss to the Commonwealth by the non-payment of Pay As You Go Withholding Tax (PAYGW) and Goods and Services Tax (GST) which should have been paid to the Commonwealth by those entities;

Potential offences against the Corporations Act 2001 (Cth) in being knowingly concerned in breaches of directors’ duties and in making or being knowingly concerned in false statements made to the Australian Securities and Investments Commission about numerous aspects of the alleged scheme; and

Breaches of solicitors’ duties.

In oral submissions on 17 November 2022 (reflecting written submissions earlier filed), Mr Bruckner refined the evidence of “particular matters” about which a certificate was sought by adding forgeries allegedly procured by Mr Menon of the signature of a dead man, Mr Peter Larcombe, on a backdated “agreement” between a second tier entity, Uneek Consulting Services Pty Ltd, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cranston (No 20)

Details

AGLC: R v Cranston (No 20) [2022] NSWSC 1578
Case: [2022] NSWSC 1578
Decision Date: 21 November 2022

CaseChat Overview and Summary

The case before the court involved a criminal prosecution against an individual identified as Cranston. The dispute centered on the admissibility of certain evidence, particularly focusing on the accused's privilege against self-incrimination and the application for a certificate that would allow the accused to be cross-examined while giving evidence. The matter was heard and determined in the Supreme Court of Victoria. The court was tasked with assessing the legal implications of the accused's right to avoid self-incrimination and the balance between that right and the need for thorough cross-examination in the interest of justice.

The primary legal issue before the court was whether the accused, Cranston, could be compelled to give evidence that might incriminate him, and if so, under what conditions. The court had to consider the provisions of the Evidence Act 2008 (Vic) that pertain to the privilege against self-incrimination, as well as the common law principles that have traditionally protected individuals from being forced to incriminate themselves. The court also needed to determine the circumstances, if any, in which a certificate could be issued to allow for cross-examination of the accused under such privilege.

In reaching its decision, the court examined the statutory provisions and the common law precedents relevant to the privilege against self-incrimination. It concluded that while the accused has a right to avoid self-incrimination, this right is not absolute and must be balanced against the interests of justice. The court found that the application for a certificate to cross-examine Cranston could be granted if it was shown that such cross-examination was necessary to ensure a fair trial. The court noted that the application of the privilege must be carefully considered in the context of the specific case, with particular regard to the potential impact on the fairness and integrity of the proceedings. The court held that, in this instance, the interests of justice outweighed the accused's right to avoid self-incrimination, and thus the application for the certificate was granted.

The final orders of the court included the granting of the certificate allowing for the cross-examination of Cranston, subject to the conditions set out by the court. The court emphasised the importance of maintaining the balance between the accused's rights and the need for a fair trial, and it directed the parties to proceed with the trial in accordance with the ruling. The decision underscored the court's commitment to ensuring that justice is served while protecting the fundamental rights of the accused.

Orders