Asked whether Dreyfus had been told the judge had been “engaged for some years in hearing this case” and that Stratton “appeared funded by the Commonwealth attorney throughout that period”,May said,“I believe the attorney was aware”.

The court heard steps had been taken to consider whether Cranston could access NSW Legal Aid,and an application was pending determination. Wilson said he had attempted to contact the organisation but “they’ve cited privacy reasons”.

Payne told May he was “lost for words”.

“So,the Commonwealth is going to bow out and what,NSW Legal Aid is to pick this up? Mr Cranston is not to be represented on sentence? Is that seriously the Commonwealth attorney’s position about[a $100 million fraud]?” he said.

Asked by the judge if any reason had been given for the “remarkable change of position”,May said that now the conviction against Cranston had been recorded,funding for sentencing “would not fall in the purposes of special circumstances”. He said the decision was made on May 1.

Payne said the situation raised “fundamental unfairness” and suggested Dreyfus be advised “a judge of the Supreme Court of NSW is profoundly unhappy about being told now about this decision”. He noted it had been two months since the conviction.

He said former attorney-general Michaelia Cash had previously “to her great credit … personally intervened” and funding had continued for Cranston.

“I am flabbergasted … that you tell me the attorney[Dreyfus] has personally made that decision,” Payne said.

“I think there is a significant public interest in setting out what’s happened,in the operation of our criminal justice system,in a very serious case.”

He said the cost to the community for someone else to be briefed on the long-running case would be “astronomical”,and described the “tug of war” between the Commonwealth and the states as “profoundly unhelpful in a Commonwealth prosecution”.

Cranston appeared via video link,wearing a hi-vis vest over prison green shorts and a jumper.

Crown prosecutor Paul McGuire,SC,for the Commonwealth Director of Public Prosecutions,said he joined with the judge in relation to his reaction about fairness.

He said withdrawing funding now might save the Commonwealth tens of thousands of dollars “at the 12th hour” when “so much money” had already been spent,describing the decision as absurd.

“Nobody else could reasonably be expected to run this apart from counsel who have been engaged for some period,” McGuire said,adding that it would be “impossible for someone to get across the evidence” in several months.

“Mr Cranston … should not,in fairness,be expected to run[it] himself,” the prosecutor said.

In a statement,a spokesperson for the Attorney-General’s Department said:“While his guilt was being determined Mr Cranston was provided with extensive taxpayer-funded Commonwealth legal financial assistance.

“The standard process for individuals who wish to access financial assistance is to apply to the legal aid commission in the state and territory they are located,and we understand that Mr Cranston has taken steps to explore this option.”

The federal department directed questions about legal aid to Legal Aid NSW,which has been contacted for comment. NSW attorney-general Michael Daley declined to comment.

The judge adjourned the matter until Tuesday.

“It is my hope that this can be resolved by then,” Payne said.

Cranston’s school friend Patrick Willmott will be sentenced on Friday for his role in the conspiracies,while solicitor Dev Menon and former professional snowboarder Jason Onley will face sentencing in June. All three men were found guilty of the same two charges as Cranston.

The conspirators skimmed PAYG (pay as you go) withholding tax and GST from money received from clients of payroll business Plutus Payroll,and the tax debt was held by second-tier companies.

Plutus and the eight second-tier companies should have paid more than $141.3 million of PAYG and GST to the Tax Office between March 2014 and May 2017,but only $30.8 million was paid voluntarily and $4.7 million later garnisheed,resulting in a misappropriation of $105 million. Funds were used by conspirators for properties,luxury cars,a boat and a plane.

The Morning Edition newsletter is our guide to the day’s most important and interesting stories,analysis and insights.Sign up here.