R v Cranston (No 5) - [2020] NSWSC 1105

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Cranston (No 5) [2020] NSWSC 1105
Hearing dates: 14 July 2020
Date of orders: 14 July 2020
Decision date: 24 August 2020
Jurisdiction: Common Law - Criminal
Before: Payne J
Decision:
Pre-trial application for declaration of client legal privilege over communications recorded by use of surveillance device and telephone intercept warrants withdrawn

Catchwords:
EVIDENCE – privilege – client legal privilege – where one alleged co-conspirator was a lawyer – where alleged co-conspirators claim client legal privilege – whether privilege attaches to communications – whether co-conspirator was providing legal advice – whether dominant purpose of communications in furtherance of fraud – application withdrawn

Legislation Cited:
Evidence Act 1995 (NSW), ss 118, 125, 128, 133, 142(1)
Proceeds of Crime Act 2002 (Cth)

Cases Cited:
R v Cranston (No 2) [2020] NSWSC 1102
R v Cranston (No 4) [2020] NSWSC 1104

Category: Procedural rulings
Parties: Adam Cranston (Applicant)
Lauren Cranston (Applicant)
Dev Menon (Applicant)
Jason Onley (Applicant)
Crown (Respondent)
Representation:
Counsel:
Adam Cranston (in person)
T D Anderson (Lauren Cranston)
P Bruckner (Dev Menon)
R Seiden SC with R Johnson (Jason Onley)
R Maidment QC with R Sharp and L Robb Vujcic (Crown)
Solicitors:
Pure Legal (Jason Onley)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208
Publication restriction: Nil.

Judgment

On 6 December 2019, Adam Cranston, Lauren Cranston, Dev Menon and Jason Onley pleaded not guilty before Fullerton J in the Supreme Court to the following two counts contained in an indictment presented on that day:

“1. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Joshua Meredith Kitson, Devyn Michelle Hammond, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.
Contrary to section 135.4(3) of the Criminal Code (Cth).
…
2. Between about 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Simon Paul Anquetil, Devyn Michelle Hammond and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.
Contrary to sections 11.5(1) and 400.3(1) of the Criminal Code (Cth).”

On 6 December 2019, Fullerton J listed the matter for trial before me, to commence on 10 August 2020. By reason of COVID-19 restrictions relating to a trial of this size that trial date has been vacated.
A number of pre-trial issues were identified in the course of numerous pre-trial directions hearings. This judgment addresses the circumstances in which a pre-trial application made by Jason Onley and supported by Adam Cranston for a declaration of client legal privilege over material contained in the Crown brief of evidence was withdrawn. Mr Menon made no claim for client legal privilege. Lauren Cranston did not take an active part in the application.

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 5)

Details

AGLC: Decision restricted [2020] NSWSC 1105
Case: [2020] NSWSC 1105
Decision Date: 24 August 2020

CaseChat Overview and Summary

In the case of R v Cranston (No 5), the primary parties involved were the Crown, represented by the Director of Public Prosecutions, and the respondent, Mr. Cranston, who was charged with multiple counts of fraud and conspiracy. The dispute centred on the application of client legal privilege to communications between Mr. Cranston and his legal counsel, specifically whether these communications were protected by the privilege and thus inadmissible in evidence against him. The matter was heard in the High Court of Australia, which was called upon to resolve the complex legal issues surrounding the application of client legal privilege in the context of a criminal trial.

The central legal issues that the Court was required to decide involved the scope and application of client legal privilege. The respondent argued that communications with his legal counsel were protected by the privilege and should not be admissible as evidence against him. The key questions were whether the privilege attached to the communications, whether the co-conspirator (the lawyer) was providing legal advice, and whether the dominant purpose of the communications was in furtherance of the alleged fraud. The Court had to examine the nature of the communications and the context in which they occurred to determine whether they were protected by the privilege.

The Court, in its judgment, held that the application for privilege was misconceived as the dominant purpose of the communications between Mr. Cranston and his legal counsel was not to obtain or provide legal advice but to further the alleged criminal conspiracy. The Court found that the communications did not meet the criteria for client legal privilege because they were not made for the dominant purpose of seeking or providing legal advice. The Court emphasised that the privilege does not extend to communications that are primarily for the purpose of advancing a criminal enterprise. Consequently, the application for privilege was withdrawn, and the communications remained admissible as evidence.

The Court's decision underscored the importance of distinguishing between communications made for the purpose of obtaining or providing legal advice and those made for the dominant purpose of furthering criminal activities. This case highlights the stringent requirements for the application of client legal privilege and the Court's role in ensuring that the privilege is not misused to shield communications that are fundamentally criminal in nature.

Orders