Supreme Court New South Wales Medium Neutral Citation: R v Cranston (No 18) [2022] NSWSC 1553 Hearing dates: 09 November 2022 Date of orders: 09 November 2022 Decision date: 09 November 2022 Jurisdiction: Common Law - Criminal Before: Payne JA Decision: The application is rejected. Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury on day 111 of the trial — application refused Cases Cited: R v Thompson (2002) 130 A Crim R 24; [2002] NSWCCA 149 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Willmott) File Number(s): 2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291 Publication restriction: Not to be published other than to the parties until after the trials of each of the accused are completed. EX TEMPORE JUDGMENT [Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123] 1. This trial commenced on 26 April 2022 with a jury of fifteen. In the over six months which has elapsed since then I have discharged three members of the jury. The trial is continuing with a jury of twelve. The Crown case has closed. So, too, have the cases for Adam Cranston and Lauren Cranston. At present one of the accused, Mr Menon, is giving evidence in chief. 2. It is day one hundred and eleven of the trial. This trial will likely conclude at the earliest in January 2023. This morning counsel for Mr Menon, Mr Bruckner, made an application to discharge the jury. The application was principally based on three passages of transcript at transcript 7382, transcript 7448 and transcript pages 7473 to 7474. It was principally submitted that by reason of exchanges between Mr Bruckner and the Bench and/or things that I have said that Mr Bruckner's authority was undermined and that the jury might think that I was intending to undermine the defence case in relation to Mr Menon. Accordingly, it was submitted that it was necessary that the jury be discharged, presumably on the basis that Mr Menon could no longer receive a fair trial. 3. It was also submitted that there had been observations by unidentified others present in court of various facial expressions I am said to have adopted last week, during the evidence of [redacted], now some months ago, and [redacted] even longer ago together with shaking my head. I record that I have certainly not intended to make any facial expression nor to shake my head. As the Crown observed when reading I often have my head down. It may be that my head moves from side to side when doing so. I will, if ultimately asked by Mr Bruckner or anybody else, say something to the jury to the effect I am not intending to secretly communicate with them by facial expression, taking my wig or mask off or shaking my head. 4. I reject the application. I do not consider that any of the passages of transcript relied upon by Mr Bruckner or those additional matters considered as a whole give rise to the necessity that the jury be discharged. Nor do I consider that, fairly considered as a whole, they give rise to any legitimate concern that Mr Menon's interests might be prejudiced. 5. A fair reading of the three matters relied upon discloses that the first two occurred in the course of exchanges dealing with objections and the third occurred in dealing with a longstanding practice about playing, and in this case replaying recordings, and in this respect I refer to the remarks of the Court of Criminal Appeal in R v Thompson (2002) 130 A Crim R 24; [2002] NSWCCA 149. In respect to the other matters, I was dealing with objections to evidence. 6. During argument, I made clear to Mr Bruckner that if he so desired, I would give an instruction to the jury not to draw any inference adverse to Mr Menon or indeed to any other accused by reason of any exchange between Mr Bruckner and the Court. I am satisfied to the extent that any suspected prejudice has been identified in this application to Mr Menon it could effectively be removed by such a direction. 7. In the course of a very lengthy trial the jury well understand, as I have repeatedly told them, that they are the sole judges of the facts and nothing that I say or do indicates that I have any views about the evidence being given. I will remind the jury of those matters. For those reasons the application is rejected. ********** Amendments 21 March 2023 - Publication restriction lifted. Name of witness redacted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2023