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of client legal privilege over communications recorded by use of surveillance device and telephone intercept warrants withdrawn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was providing legal advice – whether dominant purpose of communications in furtherance of fraud – application withdrawn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

1. 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).”

2. 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.

3. 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.

4. On 7 February 2020, the matter first came before me for pre-trial directions. On 9 April 2020, there was a further pre-trial directions hearing. I made the following orders:

“1.   Any motion concerning the form of the brief of evidence, including any evidence or affidavit in support of such a motion, is to be filed and served by the accused by 4pm Monday 4 May 2020.

2.   The Crown’s response to such a motion, including any evidence or affidavits in support, is to be filed and served by 4pm on Friday 8 May 2020.

3.   List any motion filed in accordance with Order 1 to be heard on Tuesday 12 May 2020 at 9:15am.

4.   If no motion is filed, the hearing at 9:15am on 12 May 2020 will address case management issues.

5.   Bail continued.

6.   The parties have leave to approach the associate of Payne JA by email about any matter of importance in the proceedings.”

5. The effect of these orders was to bring to a head any complaint about the form or content of the Crown brief of evidence. No notice of motion was filed.

6. On 12 May 2020, there was a further pre-trial directions hearing. I made the following orders relevant to the topic of client legal privilege, in accordance with short minutes of order proposed by Mr Menon and prepared in tandem by counsel for Mr Menon and Mr Onley:

“Privilege

5.   Accused Menon by his lawyers by 26 May 2020 is to write to possible holders of client legal privilege (Privilege) who are not accused on the Indictment, providing a copy of the following attachments to the Notice of Prosecution Case:

(a)   Attachments C1-C4 (schedule of witnesses and documents on which the Crown proposes to rely);

(b)   Attachment D (list of 191 intercepted telephone recordings on which the Crown proposes to rely);

(c)   Attachment E (list of 215 surveillance device recordings on which the Crown proposes to rely);

(d)   Attachment F (Digital items excluding from mobile phones, on which the Crown proposes to rely);

(e)   Attachment G (Digital Evidence from mobile phones on which the Crown proposes to rely);

and advising that the matter is listed for directions in respect of Privilege issues on 5 June 2020 at 8.30am, on which date:

(i)   the possible Privilege-holder who receives such notification, and other possible Privilege-holders, may apply for access to some or all of the material served by the Crown in these proceedings including the material listed in the abovementioned attachments;

(ii) orders may be made for confidentiality or other conditions of access, including under s 8(1) Court Suppression and Non-Publication Orders Act 2010 (NSW);

(iii)   the Court may make directions for determination of issues of Privilege.

5A.   The proceedings are listed on 5 June 2020 at 8.30am to make directions in respect of Privilege.”

7. The effect of those orders was to enable Mr Menon to communicate with every person or entity that may possibly have a claim for client legal privilege in relation to communications recorded by use of surveillance devices and telephone intercept warrants and inform them that the Court would entertain those claims upon application. I was subsequently informed by Mr Menon’s counsel that those orders were complied with in full.

8. Although those orders were limited to persons or entities “who are not accused on the Indictment”, at the time those orders were made nothing was said by any of the accused to indicate that they may wish to make any application for client legal privilege over material included in the Crown brief.

9. On 5 June 2020, the only appearance at the directions hearing in relation to the issue of client legal privilege was made on behalf of Mr Christopher Guillan, whose matter is apparently listed for trial in the District Court in March 2021. Directions were made to ensure Mr Gullian could make any claim for privilege before me. No such claim was made. Subsequently, counsel for Mr Guillan informed the Court that “despite taking no active part in terms of submissions, oral or written on the privilege issue, that it not be taken as Mr Guillan waiving privilege”.

10. On 5 June 2020, after orders had been made in relation to Mr Gullian, counsel for Mr Onley indicated for the first time that a privilege claim may be made on Mr Onley’s behalf:

“JOHNSON: On behalf of Mr Onley it is now time for him to speak up. He personally and on behalf of others with whom he may have a joint privilege, as well as others of which he was a principal including various entities concerned with the facts underpinning those charges, intends to claim privilege with respect to material over which that claim may be made. He certainly does not wish to cause that privilege to be waived by consenting to any orders for access but of course that seems to have fallen away this morning as Mr Guillan has the same brief that we have.”

11. Mr Adam Cranston, who represented himself, indicated that he too wished to make a claim for client legal privilege.

12. On 5 June 2020, I made the following orders relevant to any possible claims for client legal privilege by Mr Onley and Mr Adam Cranston or any entity allegedly controlled by Mr Onley or Mr Adam Cranston:

“The Court orders:

…

3. Any claim of client legal privilege by Mr Onley or Mr Adam Cranston, including any claim in relation to an entity allegedly controlled by Mr Onley or Mr Adam Cranston, and any personal claim, is to be filed and served by 4pm on Tuesday 9 June 2020.

4. Mr Onley and Mr Adam Cranston are to file and serve all evidence and written submissions in relation to any claim of client legal privilege by 4pm on Friday 12 June 2020.

5. Any Crown response to a claim of client legal privilege by Mr Onley or Mr Adam Cranston, including evidence and written submissions, is to be filed and served by 4pm on Friday 3 July 2020.

…”

13. On 9 June 2020, Mr Onley filed a notice of objection to a large number of communications contained in the Crown brief on the basis of client legal privilege, and “where applicable” settlement communications privilege. Mr Onley claimed privilege in respect of all recordings of conversations in the possession of the Crown which include Dev Menon or another lawyer from Clamenz Lawyers on the one hand, and one or more of the following on the other:

1. Jason Onley;

2. Adam Cranston;

3. others who are joint privilege holders with one or both of Jason Onley and Adam Cranston;

4. others who are agents or employees of one or more of the persons or entities in (1)-(3) above;

5. others who are persons in dispute with one or more of the persons or entities in (1)-(4) above.

14. Mr Onley also claimed privilege in respect of any email or other written communication between one or more of the “privilege holders” set out in the above list and Clamenz Lawyers, and any documents attached to those communications which are confidential documents, as well as any other documents and materials “which have yet to be identified”. No specific document of this nature was identified or particularised in the 9 June privilege objection. The 9 June objection also sought leave, to the extent it was necessary, “to provide further and better particulars of the claims” of privilege.

15. Mr Onley identified specific examples of telecommunications intercept recordings to which it was said privilege attached. The privilege objection included a table with 87 entries setting out the dates and times of each recording, listing the participants, with a reference to where the recording appeared in the Notice of Crown Case. There was no further particularisation of the claims in this table. The claims of privilege relating to telecommunications intercept recordings were further particularised in the submissions filed on 12 June 2020, [1] dealt with below. The 12 June 2020 version of the table included 88 entries.

    1. Due in large measure to changed filing practices in response to the COVID-19 restrictions there is a discrepancy in the filing of some documents, including the 12 June submissions. The submissions and an affidavit were sent by email to the Court at 5:18pm on Friday 12 June 2020, and stamped by the registry as being “eFiled” that day. They are, however, recorded in JusticeLink as having been filed on 15 June 2020, which was the following business day. I have referred to the date that documents were stamped throughout, rather than the date recorded on JusticeLink.

16. In relation to the surveillance device recordings, Mr Onley said on 9 June 2020 that he had not had sufficient time to review and particularise his claim for privilege. Attached to the 9 June objection was a document marked “Annexure A”. Annexure A was said to “at this stage” be an extract of the surveillance device materials proposed to be adduced by the Crown at trial, limited to those which listed Mr Menon as a participant. In the 12 June 2020 submissions it was noted that much of the surveillance device material objected to was recorded in the offices of Clamenz Lawyers and included Mr Menon as a participant.

17. On 12 June 2020, Mr Onley filed an affidavit of his solicitor, Christine Louise Perry, sworn on 12 June 2020. Ms Perry’s affidavit really only addressed in any detail matters potentially relevant to any suggested waiver of privilege. Ms Perry deposed that in April 2020 her office computers were hacked with ransomware and encryption software, meaning she did not have access to her emails, computer data or accounts for most of April 2020. Ms Perry now only has readily available access to her emails from 1 July 2019 onwards and no longer has access to her electronic diary prior to April 2020. Ms Perry said that she had raised “the issue of legal professional privilege and objections to tender of documents containing privileged material” in the Local Court and with solicitors from the Commonwealth Director of Public Prosecutions (CDPP), with Brereton J in the application to wind up Synep Pty Ltd, and in the Proceeds of Crime Act 2002 (Cth) proceedings. Ms Perry deposed that she “is instructed that Mr Onley continues to claim privilege, and his right to remain silent and his privilege against self-incrimination”. This was the sum total of the evidence in the affidavit supporting any claim for client legal privilege. No claim for privilege was made about any particular communication the subject of Mr Onley’s notice of objection.

18. On 12 June 2020, Mr Onley filed written submissions about his claim for client legal privilege. In the submissions Mr Onley summarised the claims he sought to make of client legal privilege (and settlement communications privilege) as follows:

“In summary, Mr Onley claims client legal privilege and, where also or separately identified, settlement communications privilege under ss.118, 119 and 131 of the Evidence Act 1995 (Cth) (Evidence Act) in respect of the evidence described in the Privilege Objection, which is comprised primarily of evidence of audio recordings made by the Australian Federal Police (AFP) pursuant to warrants under the Telecommunications (Interception and Access) Act 1979 (Cth) (TI Act) and the Surveillance Devices Act 2004 (Cth) (SD Act).”

19. Mr Onley also made the following clarification of the material over which privilege was claimed:

“A more detailed schedule than that which was included in the Privilege Objection in respect of the TI transcripts is at Annexure B. Leave is sought to file an amended Annexure A in respect of the SD transcripts which will contain information similar to that which appears in Annexure B.”

20. This was accompanied by a footnote:

“The designation ‘Annexure B’ has been chosen to avoid confusion as ‘Annexure A’ is the designation for the schedule of SD material annexed to the Privilege Objection. Time has not permitted development of a schedule in respect of the SD material which is akin to that which is at Annexure B in respect of the TI material. Leave is sought to file an amended Annexure A which contains information similar to that which appears in Annexure B.”

21. What the submissions did not do was identify any arguable basis that any confidential communication was made between any “lawyer” and any “client”, being Mr Onley or any person or entity associated with him, for the dominant purpose of giving or receiving anything arguably described as legal advice.

22. On 6 July 2020, [2] Mr Onley filed a further affidavit of Ms Perry. Subsequently, paragraphs 12, 13, 14, 15, 16, 17, 28, 30, and 31 were relied upon to seek an adjournment of the privilege claim. Those paragraphs contain a series of complaints about the size of the Crown brief, an alleged lack of co-operation by the Crown, the limited resources available to Mr Onley, and Mr Onley’s apparent dyslexia and ongoing health (including mental health) issues.

    2. This document is stamped 6 July 2020, but was recorded electronically as filed on 7 July 2020.

23. The Court had at that time set aside, 7, 8 and 15 July 2020 to hear any pre-trial issues. On 6 July 2020 Ms Martinez, on behalf of the CDPP, advised the Court of the following:

“The parties have also been discussing the various applications that are on foot.  Subject to his Honour’s views, the parties propose to argue the applications in the following order:

7 / 8 July 2020:

Separate trials applications (L Cranston, Onley and Menon)

Disclosure application (Onley and Menon)

15 July 2020:

Privilege application (Onley)

Vacating trial date (Onley)”

24. There was no indication by Mr Onley’s representatives who were copied on that email about any difficulties in that timetable. In an email from Ms Perry to Ms Martinez annexed to Ms Perry’s affidavit of 13 July 2020 it is Ms Perry who proposes that the issue of client legal privilege be dealt with on 15 July 2020. [3]

    3. Ms Perry’s email refers to “the allocated hearing day on 13 July”. 13 July was never an allocated hearing day. The reference to 13 July appears to be a typographical error. It is plain that Ms Perry intended to refer to the third scheduled hearing day, which was 15 July.

25. In any case, the Court responded on 6 July 2020 as follows:

“His Honour is anxious to complete as much as possible on the two days which have been set aside 7 and 8 July. The hearing on the 15^th has been fixed to determine any matters of overflow and the Constitutional question which has been identified. Accordingly, his Honour would prefer that all four matters the subject of your email should, if possible, be addressed on 7 and 8 July.

Of course, if that is not possible, any matters not addressed can be adjourned and considered on 15 July.”

26. The hearing on 7 and 8 July was consumed with the application for disclosure made by the accused and a separate trial application. Both of those matters are addressed in separate judgments: [2020] NSWSC 1102; [2020] NSWSC 1104. On 7 July 2020, it was determined that a further day needed to be set aside to address further pre-trial matters. 14 July 2020 was appointed for hearing of the privilege claim. No complaint was made by Mr Onley’s representatives or Mr Adam Cranston about the selection of that date to consider privilege issues.

27. On 13 July 2020, Mr Onley filed a further affidavit of Ms Perry, in support of an application that the privilege argument to be heard on 14 July 2020 should be adjourned. Ms Perry stated that by reason of:

“work being undertaken in respect to warrants disputes, constitutional issues, vacation application, separate hearing application, privilege claims, briefing expert, preparing Mr Onley’s defence for anticipated hearing on 10 August 2020 coupled with Mr Onley’s ongoing health issues and poor mental health as well as his dyslexia there has not been enough time to review and take instructions in respect of the SD material.”

28. In relation to what Ms Perry described as the “balance” of the privilege objection, namely, the telecommunications intercept transcripts, Ms Perry stated that her instructions were that Mr Onley was concerned, and that she shared his concern, that he may unnecessarily prejudice his defence if, without it having yet been determined what material (if any) was unlawfully obtained he were to go into evidence in support of the Privilege Objection; and/or his legal representatives were required to make submissions in respect of s 118 of the Evidence Act 1995 (NSW) in response to the Crown’s submissions concerning a fraudulent or improper purpose. Annexed to the affidavit was a series of email communications, made in the days immediately prior to the affidavit, seeking retainer agreements. The request for retainer agreements, first made on 12 July 2020, should be understood in context. Mr Onley’s submissions of 12 June said that:

“Mr Onley does not rely upon a written retainer to establish his status as a client, unless a retainer is identified prior to the hearing of the Privilege Objection. However, if the Crown is aware of any retainers between Clamenz Lawyers or Dev Menon and any person or entity referred to in the Crown Case Statement or other particulars provided, Mr Onley seeks production of those retainers. For now, he relies primarily on the content and context of the communications the subject of the Claim.”

29. On 3 July 2020, the Crown response contained the following reply:

“There is no evidence of any retainer, despite the applicant having access to all the materials within the Crown’s possession: see paragraphs [7] – [12] of the Williams Affidavit (cf AS [59] – [62]).”

30. At the latest, on 3 July 2020, Mr Menon and Mr Adam Cranston were aware that the Crown considered there to be no evidence of any relevant retainer. No specific request appears to have been made for any retainer until 12 July 2020.

31. On 13 July 2020, Mr Onley sought to stay the proceedings until the determination of a separate application brought by the applicants regarding disclosure obligations in respect of warrants issued by the Crown. On 14 July 2020, the adjournment application was upheld in part and refused in part.

32. On that date, I made it clear that I would not entertain any evidence or submissions about the operation of s 125 of the Evidence Act. I found that there was merit in Mr Onley’s argument that it was not possible properly to deal with matters arising under s 125 of the Evidence Act on that day. There were difficult questions involved in whether I should permit the Crown to tender the brief of evidence on the voir dire and whether I should look at particular documents as permitted by s 133 of the Evidence Act. Fairness required consideration of what Mr Onley or Mr Adam Cranston may or may not have wanted to say about the fraud exception and the evidence that was before me.

33. I found, however, that the complexities involved in s 125 of the Evidence Act did not arise until the basic building blocks of client legal privilege were established. Those building blocks were:

1. Who was the claim being made by?

2. If the claim was said to be a joint privilege, who were the joint privilege holders?

3. How was any communication identified even arguably made for the dominant purpose of a person or entity seeking or giving legal advice?

34. I refused the application for an adjournment in so far as it related to Messrs Onley and Adam Cranston demonstrating an arguable basis that any confidential communication was made between any “lawyer” and any “client”, being Mr Onley, Mr Adam Cranston or any person or entity associated with either of them, for the dominant purpose of giving or receiving anything arguably described as legal advice. I reserved my reasons. My reasons for rejecting the adjournment application and going ahead in this limited way may be briefly stated:

1. the applicants accepted that they bore the onus of establishing that privilege attaches to a communication, and that this Court must be satisfied of the facts that support that finding on the balance of probabilities: s 142(1) of the Evidence Act. Before going any further, Mr Onley and Mr Adam Cranston would need to satisfy me that they (as distinct from any corporate entity with no interest in claiming privilege) had obtained something even arguably described as legal advice from a lawyer;

2. although there were no doubt difficulties created by the size of the Crown brief, Mr Onley and Mr Adam Cranston had sufficient time to consider whether there was any viable claim for client legal privilege they could make over communications forming part of the Crown brief. Even if every possible claim had not been identified, if there was in truth any viable claim for client legal privilege to be made by Mr Onley or Mr Adam Cranston, as the events related to 2016 and 2017, a claim would have been identified long ago;

3. the interests of other litigants in the Court were engaged. The indictment was presented in December 2019. The matter had been before me on numerous occasions in 2020 for pre-trial directions. Clear directions had been made on 5 June 2020 to bring the issue of any possible client legal privilege on for hearing. I could not have made it any clearer at that time that Mr Onley and Mr Adam Cranston were expected to put on all of their evidence on this issue. Other pressing court business had been put to one side to hear any claim for client legal privilege. The interests of those other litigants whose matters had been put to one side to allow this matter to be heard were relevant;

4. whilst Mr Onley’s submission that it would be preferable to agitate the privilege question after other challenges to evidence were determined might have been persuasive when the question of privilege was set down for determination, it was not persuasive when it was raised, as it was here for the first time, at the last minute;

5. the claim for client legal privilege by Mr Onley and Mr Adam Cranston can fairly be described as ambit. The claim comprises all recorded conversations and documents involving Mr Menon and a range of individuals;

6. the applicants did not put on any evidence actually in support of the claim, even on information and belief. No documents were tendered in support of the claim. What was relied upon, short form submissions, had no evidential status. In those short form submissions, no explanation was attempted of the basic building blocks of any claim for client legal privilege involving any communication, save that it involved Mr Menon;

7. the applicants submitted that they were effectively prevented from putting on the required evidence, having “claimed the privilege against self-incrimination”. Assuming (without deciding) in Mr Onley and Mr Adam Cranston’s favour that the certificate procedure in s 128 of the Evidence Act was not available to them, that positon would not change whenever the claim for privilege was to be determined. That is, assuming that an adjournment had been granted, Mr Onley and Mr Adam Cranston would have been in exactly the same position at any time prior to or during the trial.

35. After obtaining instructions, Ms Seiden SC for Mr Onley withdrew any objection to the tender of evidence in the trial on the basis of client legal privilege or any other privilege. Mr Adam Cranston also withdrew any objection to the tender of evidence in the trial on the basis of client legal privilege or any other privilege.

**********

Endnotes

Amendments

22 March 2023 - Publication restriction lifted.

Decision last updated: 22 March 2023