Crane v The King

[2024] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Crane v R [2024] NSWCCA 112

Hearing dates:

19 March 2024

Date of orders:

3 July 2024

Decision date:

03 July 2024

Before:

Harrison CJ at CL at [1]
Cavanagh J at [8]
Dhanji J at [24]

Decision:

(1)   Grant leave to appeal.

(2)   Allow the appeal.

(3)   Quash the verdict of guilty of murder with respect to the indictment dated 23 May 2022.

(4)   Enter a verdict of acquittal on that charge.

Catchwords:

CRIME – appeal – appeal against conviction – unreasonable verdict – murder – accessory before the fact – where Crown case was that the applicant and his brother had procured the assault on the deceased – where the jury’s advantage in having seen and heard the evidence was “slight” – circumstantial case – question as to whether the Crown has excluded any inference consistent with innocence that was reasonably open – combined effect of the evidence to be considered – capacity of the evidence to prove the particularised acts of assistance – finding of doubt as to the guilt of the applicant – leave to appeal granted – appeal allowed – verdict of acquittal entered

Legislation Cited:

Crimes Act1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:

AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27

Batak v R [2024] NSWCCA 66

Carbone v R (No 2) [2024] NSWCCA 7

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

Dansiev The Queen (2022) 274 CLR 651; [2022] HCA 25

Gerakiteys v The Queen (1984) 153 CLR 317

Giorgianniv The Queen (1985) 156 CLR 473; [1985] HCA 29

Johnson v Youden [1950] 1 KB 54

Lane v R (2013) 241 A Crim R 321

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92

Miller v The Queen (2016) 259 CLR 380; [2016] HCA 3

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Murrell [2001] NSWCCA 179

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v Taufehema (2007) 228 CLR 323

Category:

Principal judgment

Parties:

Colin Crane (Applicant)
Rex (Respondent)

Representation:

Counsel:
B Rigg SC with R Khalilizadeh (Applicant)
M England with V Garrity (Respondent)

Solicitors:
Jamieson Criminal Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/228604

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Crane & Ors [2022] NSWSC 1545

Date of Decision:

29 July 2022 (verdict)

Before:

Fagan J

File Number(s):

2018/228604

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Colin Crane, sought leave to appeal against his conviction and sentence for the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). From 23 May 2022 to 9 July 2022, Mr Crane stood trial with six others in the Supreme Court of New South Wales for the murder of Clint Starkey. Mr Crane was sentenced by Fagan J on 11 November 2022 to 16 years imprisonment with a non-parole period of 10 years and 9 months.

On 5 April 2017, Simon Rodden drove the deceased to the Caltex Service Station at Peats Ridge where he was swiftly and violently assaulted by Adam Symons, Beau McDonald, Guy Robertson and Jake McDonough (‘the assailants’). The Crown case against them was that the assailants were guilty of murder on the basis of joint criminal enterprise or extended joint criminal enterprise. The Crown case against the applicant and his brother, James Crane, was that they were guilty of murder as accessories before the fact. It was alleged the applicant, with the help of James Crane, procured the assailants to assault the deceased intending that at least grievous bodily harm would be inflicted on him, knowing that one of the assailants would in fact intentionally inflict really serious harm.

The applicant was allegedly motivated to procure the assault because of earlier confrontations with the deceased and threats made by the deceased towards the applicant and his family.

Mr McDonough was convicted of manslaughter. The remaining three assailants were convicted of murder. The applicant and James Crane were convicted of murder.

The principal issue on appeal was:

1. Whether the verdict of the jury with respect to the applicant was unreasonable and unable to be supported, having regard to the evidence.

The Court held (per Dhanji J, Harrison CJ at CL and Cavanagh J agreeing), allowing the appeal:

(a)   As to the deference that must be paid to the special advantage enjoyed by a jury:

Per Dhanji J at [71]: The appeal was to be allowed unless the jury’s advantage in having seen and heard the evidence was capable of resolving that doubt. In this case, the jury’s advantage was slight.

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, considered

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15, considered

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, considered

Per Harrison CJ at CL at [7]: The Crown’s case was circumstantial. It was not dependent on testimony of witnesses whose credibility or reliability was in issue. The applicant did not say or write words that were capable of conveying different meanings and which the jury were required to assess. The evidence establishing the circumstances upon which the Crown relied was in a form which the Court could assess without the disadvantage often affecting an appellate court when the conduct and atmosphere of the trial are potentially critical factors in that process.

(b)   As to the basis of the applicant’s liability as an accessory before the fact:

Per Dhanji J [80]: The jury had been provided with clear directions, setting out what needed to be proved in order to convict Mr Crane. As a result of the manner in which the Crown particularised its case, the jury was required to be satisfied the applicant had committed at least one of two acts relied on by the Crown as assisting and encouraging a principal offender. This required proof beyond reasonable doubt that that the applicant informed either his brother and/or Mr Symons that he wanted Mr Starkey assaulted so as to cause him at least really serious injury.

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, considered

(c)   As to the capacity of the evidence to prove the particularised acts of assistance and encouragement:

Per Dhanji J at [129]-[141]: The web of communications between the applicant, his brother and the assailants demonstrated the applicant’s interest in the whereabouts of the deceased and an awareness that others has been recruited to assist. However, the state of the applicant’s knowledge as to what was to happen was more difficult to discern.

A difficulty for the Crown case was that there was no evidence of what words were used by the applicant to procure the assault. The Crown sought to address this on the basis that, having regard to the level of violence unleashed, its immediacy and ferocity, there was in place a plan to inflict grievous bodily harm prior to the assailants leaving their respective vehicles. There was force in this argument, but there remained a difficulty in inferring that the applicant either instigated or was aware of such a plan.

Further, in considering what was conveyed by the applicant to James Crane, and then from James Crane to the assailants, it was significant that none of the assailants had armed themselves with weapons. Had they done so, the inference would have been more readily drawn that the applicant had instigated a reprisal involving, from its inception, the intentional infliction of really serious injury.

The Court could not be satisfied of either alleged particular beyond reasonable doubt. There was doubt as to the guilt of the applicant that was not resolved by any relevant advantage held by the jury. The applicant was thus entitled to an acquittal with respect to the charge of murder.

Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30, considered

JUDGMENT

1. HARRISON CJ at CL: I have had the significant benefit of reading in draft the judgments of Cavanagh J and Dhanji J. I am particularly grateful to Dhanji J for his detailed analysis of the events between 3 April and 5 April and the contextual examination of the communications between the applicant and the several other players concerned in the events that unfolded over that period. Having reviewed the evidence for myself, I am equally satisfied that the appeal should be allowed, and that the applicant’s conviction should be quashed.

2. As Cavanagh J has observed, particulars 1 and 2 of the charge against the applicant were incorporated into Question 3 of the trial judge's directions as follows:

"3. Has the Crown proved beyond reasonable doubt that COLIN CRANE:

(a) between 9.27pm and 9.29pm informed JAMES CRANE that Clint Starkey was at the Memorial Club, that Clint Starkey had argued with and upset Nicole Tedder there, and that he wanted Clint Starkey assaulted and really serious injury caused to him

AND/OR

at 10.04pm called Adam SYMONS and informed him of the location of Clint Starkey, being the Caltex Service Station at Peats Ridge, in order that Adam SYMONS and others could assault Clint Starkey and cause him really serious injury?"

3. Moreover, as Cavanagh J has indicated, both paragraphs required the Crown to establish beyond a reasonable doubt that the applicant informed either his brother and/or Mr Symons that he wanted Mr Starkey assaulted so as to cause him at least really serious injury. Despite the wealth of evidence establishing that the applicant communicated with his brother and Mr Symons, there is no material that establishes what were the actual terms of those communications. As there are no text or recorded voice messages or evidence from witnesses who heard what is alleged to have been said by the applicant which amounted to instructions, the Crown case relied entirely upon the circumstantial setting of these communications and the death of Mr Starkey to support the availability of the relevant inculpatory inference beyond reasonable doubt.

4. I retain a doubt, which I consider that the jury must also have had, that any such inference is available. At the most fundamental level, an at least equally available inference is that the assailants who killed Mr Starkey went there, whether or not at the applicant’s behest, with the intention of merely giving him what might colloquially be described as a hiding. The assailants were unarmed despite their presumed knowledge that Mr Starkey had a history of owning firearms. The fact that whatever took place at the service station was likely to be recorded on CCTV, which the assailants would have been aware of, also suggests that they were unconcerned about apprehension, something that seems highly unlikely if the plan was to cause really serious injury.

5. Even more fundamentally, there is no evidence rising higher than speculation that the applicant was the author of any instructions communicated to the assailants at all. This is not a case of the jury being required to interpret what the applicant actually said to the assailants in texts or recorded messages, in order to determine precisely what putative instructions he gave them. This is a case in which there is no evidence that he gave any instructions at all. The Crown case essentially draws strength from the applicant’s demonstrated animosity towards Mr Starkey as inviting only one available conclusion when several possibilities are available.

6. It might for the sake of argument be accepted that the jury could, having seen and heard all of the witnesses and considered all of the evidence, have entertained a suspicion that the applicant might later have approved of what he learned had happened to Mr Starkey. That is a far cry from proof beyond reasonable doubt that the applicant either wanted really serious injury caused to him or that his call to Mr Symons at 10.04pm was to inform him of the location of Mr Starkey for that purpose. The inference that the Crown asked the jury to draw, even if it was a rational inference, was not the only such inference that was available in the circumstances.

7. Finally, acknowledging the deference that must be paid to the special advantage enjoyed by a jury in seeing and hearing the evidence in the trial unfold before them, the significance of that advantage will in practical terms vary from case to case. The Crown’s circumstantial case against the applicant was not based or dependent on testimony of witnesses whose credibility or reliability was put in issue. The applicant did not say or write words that were capable of conveying different meanings and which the jury were required to assess. To a very significant extent, the evidence establishing the circumstances upon which the Crown relied is in a form which this Court can assess without the disadvantage so often affecting an appellate court when the conduct and atmosphere of the trial are potentially critical factors in that process.

8. CAVANAGH J: I have had the benefit of reviewing the draft judgment of Dhanji J.

9. In respect of ground 1 (unreasonable verdict), I have carried out my own independent assessment of the record of the trial (M v The Queen (1994) 181 CLR 487; [2016] HCA 3) and have come to the same conclusion as his Honour. In my view, the jury ought to have had a doubt as to the guilt of the applicant.

10. Due weight must be given to the advantage enjoyed by the jury in seeing and hearing the evidence but that advantage is not of particular significance in the circumstances of this matter.

11. The prosecution case was circumstantial having regard to all the communications between the various actors and the testimony of those that gave evidence.

12. Leaving aside the evidence of Mr Symons, the outcome did not depend on the acceptance or rejection of any particular witness’s evidence. Neither the applicant nor his brother James Crane gave evidence.

13. Particulars 1 and 2 of the charge against the applicant were incorporated into Question 3 of the trial judge’s directions as follows:

“3. Has the Crown proved beyond reasonable doubt that COLIN CRANE:

(a) between 9.27pm and 9.29pm informed JAMES CRANE that Clint Starkey was at the Memorial Club, that Clint Starkey had argued with and upset Nicole Tedder there, and that he wanted Clint Starkey assaulted and really serious injury caused to him

AND/OR

at 10.04pm called Adam SYMONS and informed him of the location of Clint Starkey, being the Caltex Service Station at Peats Ridge, in order that Adam SYMONS and others could assault Clint Starkey and cause him really serious injury?”

14. Both paragraphs required the Crown to establish beyond a reasonable doubt that the applicant informed either James Crane and/or Adam Symons that he wanted Mr Starkey assaulted in such a way that the assault would cause him really serious injury. Merely establishing the existence of communications between the applicant and James Crane and/or Adam Symons about Mr Starkey, his conduct and his whereabouts would not suffice.

15. The jury was required to be satisfied that whatever was said during the particularised calls, the applicant provided the information in order not just that Mr Starkey be assaulted but that the assault would cause him really serious injury.

16. There was no direct evidence of that which was said by the applicant to allow the jury to make a finding based on such direct testimony. The case was circumstantial, and the jury was required to draw inferences having regard to its assessment of all the evidence.

17. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court (per French CJ, Kiefel, Bell, Keane and Gordon JJ) (“Baden-Clay”) observed that, in a circumstantial case, for a jury to be satisfied beyond a reasonable doubt of the guilt of the accused it is necessary that the accused’s guilt is the only rational inference that the circumstances enable the jury to draw, meaning that the Crown must exclude any inference consistent with innocence that was reasonably open (Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]).

18. The High Court in Baden-Clay went on to explain the principles relevant to the drawing of inferences in criminal cases at [47]:

“For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.” (Citations omitted)

19. In Lane v R (2013) 241 A Crim R 321, this Court (per Bathurst CJ, Simpson and Adamson JJ) emphasised the need to distinguish between permissible inference and speculation at [108]-[110]:

“This was a case in which the jury had a particularly difficult task. They were faced with a young woman, of prior good character, accused of murdering her two day old baby. No body had been found, and therefore no cause of death could be established. Every element of the offence had to be proved by the Crown by inference. It may reasonably be asked, and the question has to be confronted, why it is permissible for the jury to draw the inference that, by some means that cannot be specified, the appellant murdered the child, but that it would not have been permissible for the jury to find that she killed the child, but in a manner that amounted to manslaughter rather than murder.

The answer to that question lies in the distinction, which is a very real one, between inference and speculation. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as “a deduction from the evidence” which, if reasonable, may have the validity of legal proof.

He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows:

“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.””

20. The problem is that there were other reasonable possibilities in terms of the applicant’s communications as to what he wanted in relation to Mr Starkey, including that he wanted Mr Starkey intimidated or touched up or spoken to. None of those would necessarily involve the level of violence particularised, that is really serious injury. The circumstances of the violence perpetrated on Mr Starkey were not such that any inference could be drawn from the fact of it occurring as to what the applicant told James Crane or Adam Symons or the state of the applicant’s knowledge in advance as to what actually happened.

21. The four assailants might have gone there at the request of the applicant to deal with Mr Starkey but that is not sufficient to establish that the really serious injury inflicted upon him was done at the request of the applicant (or more precisely, as set out in question 3).

20. Because there are other reasonable possibilities as to what the applicant communicated and what he wanted (as set out above), the jury ought to have had a doubt as to his guilt in respect of the offence with which he was charged.

21. I would thus also allow the appeal and order that the applicant be acquitted.

22. DHANJI J:

Introduction

25. The applicant, Colin Crane, seeks leave to appeal against his conviction and sentence for the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). From 23 May 2022 to 9 July 2022, Mr Crane stood trial with six others in the Supreme Court of New South Wales at Sydney before his Honour Fagan J (‘the trial judge’) and a jury, for the murder of Clint Starkey. Mr Starkey was violently assaulted by four men on 5 April 2017, in an assault alleged by the Crown to have been procured by the applicant and his brother, James Crane. Mr Starkey died of his injuries on 21 June 2017 at Gosford Hospital. The applicant was tried together with his brother, the four assailants and another man Simon Rodden who was alleged to have driven the deceased to the location where he was assaulted, for that purpose.

26. Each of the applicant and his co-accused were charged with a single offence of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). This offence attracts a maximum penalty of life imprisonment.

27. On 29 July 2022, the jury returned its verdicts; five verdicts of guilty of murder, one verdict of guilty of manslaughter and one verdict of not guilty. On 11 November 2022, those convicted were sentenced. A table outlining the details of the verdicts and sentences was provided by the Crown on appeal and is extracted, with slight modification, below.

Name	Verdict	Sentence
Colin Crane	Guilty of murder (as an accessory before the fact)	16 years imprisonment with a non-parole period of 10 years and 9 months, commencing on 8 April 2019
James Crane	Guilty of murder (as an accessory before the fact)	6 years imprisonment with a non-parole period of 4 years, commencing on 28 January 2020
Guy Robertson	Guilty of murder	19 years imprisonment with a non-parole period of 13 years, commencing on 21 December 2017
Adam Symons	Guilty of murder	18 years imprisonment with a non-parole period of 12 years, commencing on 31 October 2017
Beau McDonald	Guilty of murder	17 years and 6 months with a non-parole period of 11 years and 6 months, commencing on 8 September 2018
Jake McDonough	Not guilty of murder; guilty of manslaughter	7 years and 6 months with a non-parole period of 5 years commencing on 20 March 2018
Simon Rodden	Not guilty	-

28. The Crown case was that on 5 April 2017, Mr Rodden drove the deceased to the Caltex Service Station at Peats Ridge. There, he was swiftly and violently assaulted by Mr Symons, Mr McDonald, Mr Robertson and Mr McDonough (‘the assailants’), at the behest of brothers, Colin and James Crane. The applicant was allegedly motivated to procure the assault because of earlier confrontations with the deceased and threats made by the deceased towards the applicant and his family.

29. The applicant and James Crane were each indicted for murder on the basis that they were accessories before the fact. The Crown case was that the applicant and James Crane had organised or procured the assault on the deceased intending that at least grievous bodily harm would be inflicted on him, and that both knew that one of the people procured to assault the deceased would in fact intentionally inflict really serious injury on him.

30. It was not in dispute at trial that the deceased had been violently assaulted by four men, and that, as a result of the assault, he died from his injuries. The issue at trial in relation to the applicant was whether the Crown had established whether he (together with his brother James) had intentionally procured an assault on the deceased involving at least the infliction of grievous bodily harm, as was carried out by the four assailants.

31. On his arrest the applicant did not participate in an interview with police. He did not give or call any other evidence at trial.

Grounds of Appeal

32. The applicant seeks leave to appeal against his conviction on the following grounds:

Ground 1:    The verdict is unreasonable and unable to be supported, having regard to the evidence.

Ground 2:    The directions to the jury regarding the applicant's mental state were inadequate.

Ground 3:    The trial judge erred in not leaving the verdict of manslaughter open to the jury, in the case against the applicant, on the basis that he wanted the deceased assaulted.

33. The applicant seeks leave to appeal against his sentence on the following grounds:

Ground 1:    The sentencing judge made findings of fact regarding the applicant that were not open on the evidence, and in the context of the manner in which the Crown conducted its case.

Ground 2:    The applicant has a justifiable sense of grievance having regard to the sentence imposed upon co-offender, James Crane.

Ground 3:    The trial judge failed to make findings with respect to the applicant’s prospects of rehabilitation.

34. Mr Crane requires leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the basis that each of the grounds involve questions of fact or mixed law and fact. The applicant also requires leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in relation to ground 2 of the conviction appeal, because Senior Counsel who appeared for the applicant at trial did not object to nor request amendment to the relevant directions to the jury. The applicant requires leave to appeal his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act.

An overview of the evidence

35. The following summary of the evidence presented at trial is not exhaustive. It focuses on those aspects of the evidence which give context to the submissions made by parties on appeal. Particular emphasis is given to CCTV footage of the relevant locations and phone records of communications between the applicant, James Crane, the four assailants and their associates. With respect to the telephone contact between the various actors, there was no evidence of the content of the voice calls (putting to one side the evidence of the two accused who gave evidence, Mr Symons and Mr McDonald, and noting that evidence was rejected). With respect to SMS messages, the content of some, but not all, messages was available.

3 April 2017 – altercation between the deceased and the applicant

36. The applicant and the deceased had known each other for several years. They had once been friends though their relationship “wasn’t a particularly good one”. It was said they “weren’t as friendly in the last few weeks before” 3 April 2017.

37. At around 4:14pm on 3 April 2017 at the Mangrove Mountain General Store (“the General Store”), an altercation took place between the applicant and the deceased, parts of which were captured by CCTV. This incident was witnessed by Lisa Kerslake (the deceased’s cousin) and Angela Swinnerton, who both gave evidence at trial. Both men were in their vehicles in the carpark directly outside the store and were swearing at one another. Ms Kerslake heard the applicant yell out to the deceased, “I’m going to get you, you fucking dog cunt.” Ms Kerslake gave evidence that the applicant’s tone when he made this remark was “angry, loud” and that he was pointing out of his car window and “being like aggressive.” Under cross-examination, Ms Kerslake denied being mistaken as to what the applicant had said and confirmed that the applicant was “pointing quite threatening out of the car window as he was talking to Clint, yelling at Clint.”

38. Ms Swinnerton gave evidence that the deceased was revving his engine and accelerating towards the applicant while the applicant’s young daughter was in the car. She identified Mr Rodden, who was a close friend of the deceased, as a passenger in the car driven by the deceased.

39. The applicant’s partner, Nicole Tedder, gave evidence that the applicant told her on 3 April 2017 about the incident with the deceased at the General Store on this date. The following day, when Ms Tedder asked the applicant what the altercation had been about, Mr Crane told her that the deceased had been driving like an “F-wit” and was speeding, and had threatened to “shoot up the house” with Ms Tedder and their children inside. Ms Tedder thought the applicant also said that the deceased was “probably just talking shit”.

40. On 3 April 2017, shortly after the applicant left the General Store, there was a flurry of phone calls and text messages between the applicant, his brother, and several of the applicant’s associates. This included the assailants, Mr Robertson, Mr McDonough and Mr Symons. Key communications include:

1. Between 4:33pm and 4:36pm, the applicant had the following telephone communication:

1. a call to Luke Kachel (a person who knew both Colin and James Crane, and the deceased and was also the partner of Ms Swinnerton, who was a shop assistant at the General Store);

2. a call, three text messages to and one text message from James Crane;

3. a call to Mark Gilligan Snr (who was alleged to have a central role in the applicant’s network of contacts); and

4. a call to Adam Symons (who was one of the assailants).

2. Between 4:37pm and 5:33pm, the applicant engaged in the following communications:

1. At 4.44pm, the applicant phoned James Crane and sent him three text messages.

2. At 4.49pm, 5.24pm and 5.26pm, Mr Symons called the applicant three times and sent him a text message.

41. At 5:51pm, less than two hours after the altercation between the applicant and the deceased in the General Store carpark, a white utility vehicle (“ute”) entered this carpark. At 5:52pm, James Crane entered the General Store. At 6:03pm, Mr Robertson entered the store, followed by Mr McDonough and then Mr Symons. At 6:04pm, the applicant’s white ute entered the carpark. The applicant entered the store at 6:05pm.

42. Shortly thereafter, at 6:06pm to 6:07pm, three white utes exited the carpark in convoy.

43. At trial, the Crown relied upon CCTV of the General Store and call charge records to support its case that the applicant had mobilised his brother and associates to find, and at least intimidate the deceased that evening, because he was angered by the deceased’s threats towards him and his family.

44. Mr Symons gave evidence that the reason he was at the General Store that evening was that he was on his way back from a barbeque at a friend’s house, located on the same road as the deceased and his family. Mr Symons said he saw James Crane at the General Store that evening but didn’t speak to him. He denied attending a meeting at the store, with a number of men including the applicant, or travelling in convoy from the venue. However, this evidence did not sit well with the CCTV from the General Store described above, viewed in the context of Mr Symons’ call charge records.

3 April 2017 – a convoy of cars attends the deceased’s property

45. On 3 April 2017, the deceased’s father, David Starkey, saw three white utes containing six men driving in a convoy along Waratah Road, Mangrove Mountain. He saw them stop at the top of his property, where he lived with his wife and the deceased. The applicant was driving one of the vehicles. The applicant asked David Starkey where the deceased was, twice. Both times, Mr Starkey told the applicant that he did not know where his son was, and the vehicles then drove away.

46. Lorraine Starkey, the deceased’s mother, gave evidence that she observed three cars driving past their home three times every hour or so that evening, slowing down and speeding up outside their property.

4 April 2017 – the applicant threatens to kill the deceased

47. On 4 April 2017, the deceased's aunt, Kim Gane spoke with the applicant at the General Store, where she was an employee. Ms Gane gave evidence that the applicant told her that “he was going to fucking kill him” which she took to be a reference to the deceased. She described him as appearing agitated.

48. That night, at about 8:14pm the applicant encountered Toni Meath (the deceased’s partner) and Aimee Starkey (the deceased’s cousin) at the Caltex Service Station at Peats Ridge. Conflicting evidence was given as to what was said by the applicant. Ms Meath said in her statement to police that the applicant had pointed his finger at her and said “[y]ou, I know that you’ve been with him.” In evidence at trial, she said she heard the applicant talking to Ms Starkey but could not hear the words said. Ms Starkey said a white Mazda driven by the applicant rolled past and the applicant said, either “[w]here is he?” or “[w]here is it?” Ms Starkey agreed in cross-examination that the applicant might have said “I know you’ll see him, tell him I want to talk to him” although she could not remember that being said.

49. Ms Tedder, who was with the applicant at the service station, gave evidence the applicant called out to Ms Starkey and Ms Meath from his car and said he wanted to speak with the deceased. Ms Tedder said she nudged the applicant and said, “keep driving” and was not sure the car even came to a complete stop.

50. At 8:20pm, while still at the Caltex, Ms Meath called Mr Rodden from Ms Starkey’s phone and spoke with him for five minutes. Her evidence was that she told him that the applicant was looking for the deceased. She gave evidence that she did not call the deceased directly so as to avoid antagonising him. (She thought Mr Rodden would be better at deescalating the situation.)

51. Call charge records of the evening of 4 April reflect a call between the applicant and James Crane at 7:57 pm. Between 8:23pm and 8:32pm that night James Crane made phone calls to and sent text messages to his associates, Garth Hayes and Mark Gilligan Snr. At 8:49pm, he also sent a text message to Mr Rodden.

52. 5 April 2017

53. The events of 5 April 2017 are discussed in some detail in my consideration of the ground 1 of the conviction appeal below. The core facts will be outlined at this stage in relatively brief form.

54. Mr Rodden’s partner was Shaye Kenzig. Ms Kenzig and Mr Rodden called the deceased “the Kid” because “[h]e was like having an extra kid around the house.”

55. On 5 April 2017, from 1:11am to 9:38am, there were numerous phone calls and text messages between the four assailants and other associates of the applicant, such as Garth Hayes and Mark Gilligan Snr. At 10:22am, James Crane sent Mr Rodden two text messages. Between 1:13pm and 1:14pm that day, there were ten phone and text message communications between the applicant and James Crane. From 5:43pm to 7:48pm, there were numerous phone contacts between James Crane and Mr Rodden, between Mr Rodden and Ms Kenzig, and between Mr Rodden and the deceased.

56. When Ms Kenzig arrived home at 8pm that evening, Mr Rodden told her that he had to go “see the boys” and “take the Kid”. He said that he had to go but that he didn’t want to. Ms Kenzig said that Mr Rodden did not often go out and did not ever go out at night with the deceased.

57. 5 April 2017 – the deceased argues with the applicant’s partner at the Memorial Club

58. On 5 April 2017 at 9:16pm, Mr Rodden and the deceased entered the Mangrove Mountain Memorial Club (‘the Memorial Club’ or ‘the Club’). There, the deceased had an argument with Ms Tedder, who was working at the Club. Ms Tedder gave evidence that she confronted the deceased about his threat to her and her children.

59. Ms Tedder’s co-worker, Luke Cannon, used Ms Tedder’s phone to call the applicant and tell him that the deceased was at the Club and that he was arguing with Ms Tedder. He asked the applicant to come to the Club to “calm her down”, however the applicant said he could not leave home as he was looking after his young children and he did not have car seats (which were in Ms Tedder’s vehicle). Mr Cannon passed the phone to Ms Tedder. Ms Tedder gave evidence that she told the applicant she had not argued with the deceased in an attempt to diffuse tensions.

60. At 9:27pm to 9:28pm, the applicant called James Crane twice and sent him four text messages. At 9:29pm, he had a 72 second phone call with James Crane. It was the Crown case that the applicant, in these communications, told James Crane that he wanted Clint Starkey assaulted and really serious injury caused to him. This was the first of two particulars relied on by the Crown as an act of the applicant founding his liability as an accessory before the fact to murder.

61. At 9:32pm, James Crane called the Memorial Club and asked Mr Cannon what was going on. Mr Cannon told him Ms Tedder was arguing with the deceased. Mr Cannon passed the phone to Ms Tedder who gave evidence that the caller (whose voice she denied recognising) asked whether Clint was there, and then asked to be put on to “Si, the guy that’s with Clint” so she passed the phone to Mr Rodden at 9:33pm.

62. At 9:35pm and 9:39pm, the applicant made four short phone calls to, and sent six text messages to, James Crane (who was on the phone to Rodden for six minutes until 9:39pm). James Crane sent a text message to the applicant at 9:39pm. At 9:40pm, James Crane called the applicant and the call lasted for 66 seconds. At 9:41pm, the applicant called the Memorial Club and Ms Tedder is shown on CCTV with a phone to her ear.

63. At 9:54pm, Rodden sent two text messages to James Crane. The first said “going to servo now with child”.

64. Mr Cannon decided that Ms Tedder should go home and followed her home in his car to make sure that she got home safely. When they arrived, Mr Cannon spoke with the applicant and told him the deceased and Mr Rodden had left the club. After seeing Ms Tedder home, Mr Cannon followed the applicant, who was driving his white ute, to the Memorial Club.

5 April 2017 – the deceased is assaulted at Caltex

65. Around this time, James Crane, Mr McDonough and Mr Robertson attended the KFC restaurant at Woy Woy, or a location in close proximity to it. A KFC receipt was located by police in Mr Robertson’s car, showing an order time of 9:34pm. Call-charge records for James Crane showed that during this period, his mobile telephone was connecting to cell towers in the Blackwall and Koolewong areas, proximate to the KFC at Woy Woy. Call-charge records for Mr McDonough showed that his mobile telephone was connecting to the same tower. Similarly, Mr Robertson's mobile telephone connected to a tower in this area when he received a call from Mr McDonald, who was not yet in the area.

66. At 9.58pm, Mr Rodden arrived at the Caltex with the deceased.

67. At 10:00pm and 10:01pm, James Crane phoned the applicant for 34 and 22 seconds respectively. At 10:04pm, the applicant had a 32 second phone call with Mr Symons. It was the Crown case that the applicant in this call told Mr Symons that Clint Starkey would be at the Caltex Service Station “in order that Adam Symons and others could assault [him] and cause him really serious injury”. This was the second of the two particulars relied on by the Crown to establish the applicant’s acts founding his liability. It was accepted that it was necessary for the Crown to prove at least one of these particulars (as to which the jury was required to be unanimous). The information given to Mr Symons was said to have been received by the applicant from James Crane in the call immediately prior.

68. At 10:06pm, two cars arrived at the service station with the four assailants. Between 10:07pm and 10:08pm, during a period of about 30 seconds, the deceased was pulled from Mr Rodden's car and violently assaulted. Between them, the four assailants threw the deceased to the ground, kicked him to the head, torso and body, struck him to the head, punched him to the kidneys and repeatedly stomped on his head and neck. The assault was captured on CCTV. The violence captured by that footage (which was provided on the appeal) is confronting.

65. At 10:08pm, the assailants left the service station car park in their two cars. As he was leaving the service station or immediately afterwards, Mr Symons made a 30 second phone call to the applicant. On the Crown case this was to confirm “the job was done”; that is, that the deceased had been assaulted in accordance with the applicant’s instructions.

66. At 10:16pm, (by which time the deceased, was motionless on the ground and bleeding from his head), Mr Rodden, who had remained at the service station, made a 19 second phone call to James Crane. At 10:20pm, Mr Rodden sent a text message to James Crane, saying “[t]his car is fucked and I need a hand getting the fucken piece of crap out of the way now please”. At 10:28pm, James Crane called him and Mr Rodden called him back at 10:29pm.

67. At 10:29pm, two men arrived and helped to put the deceased in the back of Mr Rodden's car at 10:35pm. At 10:37pm, after attempting to clean the service station forecourt, Mr Rodden drove the deceased to Gosford Hospital.

68. On 12 June 2017, the deceased died from his injuries. The direct cause of death was recorded as complications from a blunt force head injury. The Crown case was that the only reasonable inference from the primary facts was that the applicant acted as an accessory before the fact to the offence of murder committed by the assailants. Thus, assuming the offence of murder was proved against a principal or principals, proof of the applicant’s derivative liability for that offence was wholly circumstantial. That is not to suggest it was necessarily weak.

Ground 1 – The verdict is unreasonable and unable to be supported having regard to the evidence

Principles

73. In considering whether the verdict of the jury is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), this Court must consider whether, on its independent assessment of the record, a doubt exists as to the guilt of the applicant. If so, the appeal will be allowed unless the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The assessment of the weight to be given to the evidence of a witness “by reference to the manner in which it was given … has always been and remains, the province of the jury”: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38] (and see also at [35]-[37]). The advantage held by the jury in being able to see and hear the witnesses is not, however, limited to the resulting advantage in assessing the credibility or reliability of the witnesses, but rather is to be understood as including the “functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court”: Pell v The Queen at [38].

74. While the distinction between the role of the jury and the role of the appellate court is to be maintained, the practical application of principle is somewhat different in the context of a circumstantial case, such as the present. The observations of the High Court in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 are apposite. Their Honours observed (at [55]):

75. “An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.” (footnotes omitted)

76. In considering whether the Crown has excluded any inference consistent with innocence that was reasonably open, the nature of the evidence bears on any relevant advantage the jury may, or may not, have had. Thus, in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, the High Court said (in the context of a judge alone trial), at [17]:

“The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.”

77. The present case is similarly one where the jury’s advantage was “slight”. In saying this I do not discount the advantage held by the jury in hearing the evidence over a period of weeks, assisted by careful addresses of counsel. That is a very different experience to that of the appellate court attempting to absorb significant detail in a truncated process. Nor do I discount the collective wisdom that a jury brings to the task. These factors bear upon the respect to be given to the jury’s verdict as part of its constitutional place in our justice system and, concomitantly, the importance of avoiding what was described by McCallum JA (as her Honour then was) as “lawyerly arrogance” in too easily overturning a jury’s carefully reached verdict (see Lloyd v R [2022] NSWCCA 18 at [47]).

78. Of course, whether it is a jury considering a circumstantial case, or an appellate court, it remains necessary to consider the combined effect of the evidence. The force of that combined effect is not to be discounted by piecemeal consideration of each part of the evidence: Hillier v The Queen (2007) 228 CLR 618; [2007] HCA 13 at [48]; Fennell v The Queen (2019) 93 ALJR 1219; [2019] HCA 37 at [82]; Shepherd v The Queen (1990) 170 CLR 573 at 580; [1990] HCA 56; Carbone v R (No 2) [2024] NSWCCA 7 at [73].

The basis of the applicant’s liability

79. As observed above, the Crown case was that the applicant was liable for the murder of the deceased as an accessory before the fact. It is unnecessary for present purposes to embark on any detailed consideration of the law in relation to accessories before the fact. The following short discussion will suffice. Section 346 of the Crimes Act 1900 (NSW) provides:

346    Accessories before the fact—how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

80. Section 346 (and cognate provisions ss 351 and 351B) do not create substantive offences but are “declaratory of the common law and procedural in nature”: Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, per Mason J at 490.

81. Liability is accessorial in the sense that guilt is predicated on the offence having been committed by the principal offender or offenders. An accessory’s liability is thus said to be derivative.

82. In Giorgianni v The Queen (at 494), Mason J described the following statement of Lord Goddard CJ in Johnson v Youden [1950] 1 KB 544 as the “classic statement of the position”. In that case, Lord Goddard CJ said (at 546-547):

“Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, ‘I knew of all those facts but I did not know that an offence was committed,’ would be allowing him to set up ignorance of the law as a defence.

The reason why, in our opinion, the justices were right in dismissing the informations against the first two defendants is that they found, and found on good grounds, that they did not know of the matters which in fact constituted the offence; and, as they did not know of those matters, it follows that they cannot be guilty of aiding and abetting the commission of the offence.”

83. The jury was provided with clear directions, including in writing, setting out what needed to be proved in order to convict the applicant. In the written directions, the jury was instructed, by questions one and two, that it was necessary that the Crown prove that one or more of the assailants (Mr Robertson, Mr McDonald, Mr McDonough and Mr Symons), murdered the deceased. This was a necessary first step given the derivative nature of the applicant’s asserted liability. As a result of the manner in which the Crown particularised its case, the jury was required to be satisfied the applicant had committed at least one of the two acts relied on by the Crown as assisting and encouraging a principal offender, expressed in question three as follows:

“3.   Has the Crown proved beyond reasonable doubt that COLIN CRANE:

(a)   between 9.27pm and 9.29pm informed JAMES CRANE that Clint Starkey was at the Memorial Club, that Clint Starkey had argued with and upset Nicole Tedder there, and that he wanted Clint Starkey assaulted and really serious injury caused to him

AND/OR

(b)   at 10:04pm called Adam SYMONS and informed him of the location of Clint Starkey, being the Caltex Service Station at Peats Ridge, in order that Adam SYMONS and others could assault Clint Starkey and cause him really serious injury?”

84. If satisfied of the commission of murder by a principal offender, and the commission by the applicant of one of the acts of assistance or encouragement set out above, the jury was then directed in terms tailored to the circumstances, to the effect that to find the applicant guilty of murder, it was necessary that the Crown prove that in carrying out a particularised act of assistance, the applicant knew the essential facts that would make one or more principal offenders guilty of murder, and with this knowledge, he intended to encourage or assist such an offender or offenders; and that the act was capable of assisting or encouraging an offender or offenders. Knowledge of the essential facts that would make a principal guilty of the offence of murder was specified to require knowledge that one or more assailants would intentionally inflict grievous bodily harm on the deceased, either himself, or pursuant to an agreement with other assailants.

85. It was not suggested that derivative liability could flow to the applicant from the guilt of a principal based on extended joint criminal enterprise. That is, to find the applicant guilty, the Crown accepted that it was necessary to prove he intentionally assisted and encouraged at least one assailant in the knowledge that that assailant would himself, or pursuant to an agreement with others, inflict grievous bodily harm on the deceased. That is, it was accepted it would not be enough if the assailant intentionally assisted or encouraged by the applicant was guilty of murder on the basis that he entered a joint criminal enterprise to assault the deceased, but, even though he contemplated that one of the other participants in the joint criminal enterprise might intentionally inflict grievous bodily harm on the deceased, he did not agree with him doing so. [1] The correctness of this approach was recently established in Batak v R [2024] NSWCCA 66.

    1. The directions were, in fact, slightly more generous to the applicant than this. This however does not need to be considered to resolve the appeal.

Application of the principles to the present case

86. The applicant’s liability could not attach to Mr McDonough as he was found not guilty of murder. As against the remaining assailants, the Crown relied on both joint enterprise and extended joint criminal enterprise. There are, in the present case, at least in theory, nice questions as to whether the evidence establishes that a particular assailant, assisted and encouraged by the applicant, was guilty of murder based on simple joint criminal enterprise. There is some complexity to this given the Crown did not nominate any particular assailant as the principal whose liability would devolve to the applicant. For example, Mr Robertson was shown in the CCTV footage to be most obviously intent on inflicting grievous bodily harm. There was, however, no evidence of communication between the applicant and Mr Robertson. The applicant’s point of contact with the assailants was Mr Symons. While the actions of Mr Symons were not at the same level as Mr Robertson, they were still brutal and doubtless inflicted with an intention to do at least actual bodily harm to the deceased. Of course, on the Crown case, the nature of the arrangements were such as to support the inference that all participants knew what was involved, the instruction having come from the applicant.

87. Whether Mr Symons, or any of the assailants intended to do grievous bodily harm is a judgment with respect to which I would ordinarily give significant deference to the verdict of the jury. The jury’s verdict, however, is silent on this. That is the result of the case against the assailants going to the jury on bases which included extended joint criminal enterprise, a basis of liability insufficient to sustain a verdict against the applicant. That is with respect to Mr Symons amounts to a finding that Mr Symons at least contemplated that one of the other assailants would intentionally inflict grievous bodily harm on the deceased without him having necessarily agreed to this.

88. It is, convenient, at least in the first instance, to put the above complexities to one side and to instead focus on the adequacy of the evidence to prove at least one of the two particulars by which the applicant is said to have intentionally assisted and encouraged the principal offender or offenders, as contained in the jury’s question 3.

The capacity of the evidence to prove the particularised acts of assistance and encouragement

The significance of 3 April 2017

89. While the relationship between the applicant and the deceased prior to 3 April 2017 was not good, the events of 3 April and following were, on the Crown case, the catalyst for the relevant acts of assistance and encouragement on 5 April 2017.

90. Clearly, the events of 3 April both evidenced and added to the significant animosity between the applicant and the deceased. This was evident in the exchange in the car park of the General Store involving abuse and swearing in the course of which Ms Kerslake heard the applicant yell, in a tone described as aggressive, angry and loud, “I am going to get you, you fucking dog cunt”. It is, of course, not uncommon for people to say things in anger that they do not truly mean. Threats to do harm do not inevitably lead to physical action. Conversely, however, it might also be said it that it is uncommon for a person to end up dead after threats have been made.

91. The significance to be attached to the applicant’s threat of 3 April 2017 is, to a degree, informed by the events which immediately followed. The applicant and the deceased both left the car park of the general store in their vehicles at 4:16pm, the applicant following approximately six seconds after the deceased. At about the same time the applicant took a call from Luke Kachel and spoke to him for 25 seconds. He then rang Telstra messages, presumably to check his voicemail and then about 16 mins later called Mr Kachel and spoke with him for 69 seconds. At about 4:35pm, almost 20 minutes after the altercation ended, the applicant tried, unsuccessfully, to call his brother James, and then sent him three text messages, and received one back. He then made an eight second call to Mark Gilligan Snr and then a 27 second call to Mr Symons.

92. Following the applicant’s call to Mr Symons, there was, over the next hour, significant telephone contact between relevant persons including Adam Symons, Guy Robertson, Jake McDonough, Mark Gilligan, Tyrone Berry-Wright, James Crane, and the applicant. There are 44 entries in the telephone records over this period although a number of those appear to be unsuccessful attempts to make telephone contact. The applicant’s contact was limited to James Crane and Adam Symons. The evidence does suggest that the applicant was, by contacting Adam Symons, able to initiate a significant response from a network of people which included the assailants. The response appears to have been a meeting at the General Store between the applicant, James Crane, Adam Symons, Guy Robertson and Jake McDonough. I put to one side Adam Symons’ evidence that there was no meeting, as I regard it as inconsistent with the other evidence.

93. This meeting was followed by the three utes travelling in convoy to the home of the deceased, one of which was driven by the applicant. While Mr Starkey did not identify any of the other occupants it is likely that they included the persons referred to above. (Mr Starkey saw and spoke to the applicant but did not recognise his passenger. The other utes stopped some distance away).

94. The Crown case was, and remained on appeal, that the applicant’s intention was to at least intimidate the deceased. That is, despite the applicant’s earlier threat to “get” the deceased, the Crown accepted that it was not possible to draw a conclusion from the applicant’s visit to the deceased’s residence, that he intended to inflict any physical harm upon him at that time.

95. This concession raises the question as to what it is that allows a conclusion to be drawn that on 5 April 2017 the applicant wanted really serious injury to be occasioned to the deceased. The most obvious difference between 3 April and 5 April 2017 is what followed after the interaction with the deceased on the latter occasion. That involves reasoning backwards. That is not necessarily illogical or impermissible. If the evidence establishes a number of persons formed a plan, the subsequent actions of those persons may be some evidence of what the plan was. It is not, of course, irrefutable evidence of the content of the plan. Care must be taken given the possibility that events may evolve in ways were not contemplated, including, assuming a plan was made that some persons may act outside that plan. The conclusions to be drawn are to be considered having regard not just to the result but to other evidence including an escalation of tensions between 3 and 5 April.

4 April 2017

96. On 4 April 2017 James Crane made arrangements to meet Simon Rodden. Contact was initiated by SMS early in the day. Just after 7pm James Crane sent a message asking, “what time you coming over”. At some point during the day the applicant attended the General Store and told Ms Gane that he was going to kill the deceased. On the one hand, this is evidence that the applicant’s hostility towards the deceased had not diminished. On the other, it is arguably inconsistent with a plan, as ultimately alleged against him, in which the applicant would distance himself from the actual event.

97. That night, at about 8:14pm the applicant encountered Toni Meath and Aimee Starkey at the Caltex Service Station at Peats Ridge. While there is some difference in the evidence as to what was said, it can be safely concluded the applicant made it clear that he was looking for the deceased. Through cross-examination, the applicant attempted to establish that he told Ms Meath and Ms Starkey he wanted to talk to the deceased, suggesting an interest resolving differences without violence. While Ms Starkey agreed with the proposition put by the applicant’s counsel that it was possible the applicant said he wanted to talk to the deceased, she was clear that she had no memory of that being said. Her concession did no more than make clear that she did not purport to recall everything that was said. Ms Meath did not hear all of what was said between the applicant and Ms Starkey. Ms Tedder, who was with the applicant gave evidence the applicant said he wanted to speak with the deceased. She said that the applicant used a normal tone of voice with “no aggressiveness”.

96. Call charge records of the evening of 4 April show a call between the applicant and James Crane at 7:57pm. James Crane was, relevantly, in contact with Garth Hayes and Mark Gilligan later that evening. While not ultimately involved in the events at the service station, those persons were part of the group of persons said by the Crown to have been on hand to assist the applicant at his request. The call charge records do not, however, contain any evidence of telephone activity by the applicant after he spoke to James Crane at 7:57pm. Nor, beyond the contact between James Crane and others just referred to, is there any evidence of telephone activity between the assailants or others said to be involved in organising the attack. The evidence suggests that while the applicant was still anxious to locate the deceased he was not making a concerted effort to do so by involving others. This rather suggests the encounter with Toni Meath and Aimee Starkey at the service station was coincidental.

5 April 2017

99. Between 1:11am and around 7:00pm there were a number of telephone contacts between relevant individuals including the applicant, James Crane and the four assailants. Unlike the events of 3 April, there was not said to be any particular event precipitating the contact. Nor did the pattern of contacts suggest a flurry of coordinated activity. The applicant’s contact was limited to contact with his brother; Mr Robertson was in contact with Mr McDonough and Mr McDonald. Mr McDonough also received an 11 second call from Mr Symons; Mr Symons was also in contact with Garth Hayes and Mark Gilligan. It is, in the main, difficult to draw an inference other than that there was contact incidental to the ordinary relationships between various persons. An exception to this is the evidence of contact between James Crane and Mr Rodden. At 10:22am a text message was sent by James Crane to Mr Rodden, simply reading “????”. This appears to follow on from attempts that had been made the previous day to meet. Three further messages were sent by James Crane at 5:43pm, the second stating “where r [sic] you”.

100. The contact between James Crane and Mr Rodden was, on the Crown case evidence of James Crane using Mr Rodden to get to Mr Rodden’s close friend, Clint Starkey following the events of 3 April, and then, the events on the evening of 5 April. It should be noted, however, that there was in evidence call charge records tendered by James Crane establishing he had been in text contact with Mr Rodden and attempting to speak with him from at least 28 March 2017. On that day, having unsuccessfully tried to call he sent a message that said “It’s James give us a yell”. This suggests a lack of close familiarity, given the inference that James Crane did not expect Mr Rodden’s phone to recognise his number, although, James Crane identified himself with only his first name. There was a total of nine contacts between the telephones with the length of the three telephone calls suggesting either no or very limited conversation. On 2 April, there was a solitary text message sent by James Crane which simply read “?”. The next contact was on 4 April. This and subsequent contact were included in the Crown’s material in Exhibits 6 and 8. (Exhibit 6 set out the call charge records, including where available the content of any text message. Exhibit 8 was a timeline of events created by compiling call charge records and stills from CCTV footage in chronological order.)

101. Returning to 5 April, Mr Rodden replied to James Crane’s message of 5:43pm with a message to the effect that he was waiting for someone. This message is consistent with Mr Rodden waiting for his partner, Shaye Kenzig to come home. Around this time Mr Rodden made a number of calls to Ms Kenzig. It is apparent from telephone records and her evidence that Mr Rodden was impatient for her to return. When she did return around 8pm he told her that he had to “go see the boys” and he had to “take the kid but he didn’t want to”.

102. Despite the evidence suggesting that Mr Rodden was under pressure to take the deceased to a meeting with, at least James Crane, and was impatient to do so, Ms Kenzig said that he did not immediately leave. She said he remained in the garage with the deceased. She had a cup of coffee and a cigarette with them before they eventually left at some time after 8:30pm . They told her they were going to the Memorial Club to “wet the baby’s head”, a reference to the deceased’s partner Ms Meath having recently given birth. It is unclear how the evidence of Mr Rodden’s impatience and the associated inference that he was under pressure from others is to be reconciled with his delay in leaving the house. It might also be noted that, that James Crane’s attempts to meet with Mr Rodden at this point precede the escalation of concerns as a result of the events between the deceased and Ms Tedder at the Memorial Club. Prior to those events, nothing had happened to raise concerns with respect to the conduct of the deceased towards the applicant and his family since 3 April.

103. Mr Rodden and the deceased went to the Memorial Club, arriving there at 9:16pm. The events at the club have been described above. What is clear is that despite James Crane’s attempts to contact Mr Rodden through the day, and the evidence suggesting Mr Rodden was under pressure to leave home with the deceased, there was no meeting arranged with James Crane, or anyone else, at the club. It is, at least possible, that there was at that stage a plan for Mr Rodden to take the deceased to the Club as a step towards getting him to the service station around the time it was to close. A plan of that nature, made that far in advance seems unlikely. It might be thought that, if planning well ahead of the event, a location without CCTV would be selected. Further, as noted above, the conflict on 5 April said to have been the catalyst for subsequent events had not yet occurred.

104. The interaction between the deceased and Ms Tedder has been referred to above. As there noted, Ms Tedder’s evidence was that she minimised the encounter with the deceased when speaking with the applicant. While that may have been so, Mr Cannon had contacted the applicant and told him that the deceased was at the club and arguing with Ms Tedder. Mr Cannon asked the applicant to attend to “calm her down to take her home if she wouldn’t go home”. Whatever message was given by Ms Tedder it must have been apparent to the applicant that the deceased’s behaviour towards his partner was sufficiently troubling to result in her becoming upset to the point where her manager wanted him to take her home.

105. Mr Cannon’s contact with the applicant was at 9:25pm. Between 9:27pm and 9:29pm the applicant had telephone contact with James Crane. An unsuccessful phone call from the applicant to James Crane was followed by five text messages, four from the applicant and one was from James Crane to the applicant, before a call from the applicant resulting in a 72 second conversation. It is in these communications that the Crown alleged the applicant “informed James Crane that Clint Starkey was at the Memorial Club, that Clint Starkey had argued with and upset Nicole Tedder there, and that he wanted Clint Starkey assaulted and really serious injury caused to him”.

106. I am in no doubt given the timing of the calls, that the applicant informed his brother that the deceased was at the club and had argued with, and upset, his partner. It is the final part of the particular, that he wanted him assaulted and really serious injury caused to him, that creates difficulty, and warrants scrutiny.

107. Looking back at events preceding the conflict between the deceased and Ms Tedder on 5 April, the applicant had attempted to confront the deceased on 3 April. Whilst no contact was made, the applicant must have believed that the deceased knew that the applicant, with five others in three vehicles had attended at his home. The relative lack of activity on 4 April suggests the applicant may have believed he had done enough to arrest the deceased’s threatening behaviour. The events of the evening of 5 April made plain that that was not the case. This suggested that further action was required, either to have Mr Starkey desist, or to ensure the applicant and his family were safe, or both. What is not clear is what form that further action would take.

108. The evidence suggests the applicant viewed the deceased’s threats seriously. There was evidence that the deceased was involved in a shootout with police in 2015. This had caused the applicant’s road to be closed for several hours, such that the applicant would have been aware of the incident. Quite apart from the applicant’s road being closed, the nature of the incident in a semi-rural community and that the applicant and deceased were known to each other meant it was most unlikely the applicant was not aware of the prior incident. Ms Tedder was certainly aware of these events . The applicant’s actions confirm he regarded Mr Starkey as posing a real threat. After the encounter on 3 April he returned home and brought one of his dogs inside to protect it . As has been discussed, he also asked Mr Cannon to escort Ms Tedder home on the night of 5 April. Once she arrived home he discussed them staying with Ms Tedder’s mother (although this was also convenient for other reasons and had been previously discussed).

109. Accepting the applicant was genuinely fearful, and that the attempt to intimidate Mr Starkey on 3 April had not been effective, was the next step necessarily to have grievous bodily harm inflicted on him? There are various forms of escalation beyond what was done on 3 April that would fall short of doing really serious injury to the deceased. This is particularly so in light of the fact that the applicant had not had direct contact with the deceased after 3 April by which the applicant’s message could be communicated.

110. The events that unfolded on 5 April, are, for the reasons above, capable of shedding light on the nature of the applicant’s contact with James Crane between 9:27pm and 9:29pm, and whether it was as alleged in the Crown’s particular in 3(a) of the written directions. It is necessary to consider these events before drawing any conclusions as to what was communicated by the applicant to his brother at this time.

111. The first thing that might be observed is that James Crane lived at the rear of the Caltex Service Station which was which was only about 3 km from the Memorial Club. While he was not home at the time (he was in Woy Woy with his partner, Leanne Blackett), it is understandable that the applicant may have thought he was proximate to the Club and potentially able to assist Ms Tedder. Almost immediately after ending the (9:29pm) call with his brother, the applicant called Ms Tedder, on her mobile phone and then on the landline. This sheds no light on his conversation with James Crane. More significant is that within 50 seconds of ending the call with the applicant, James Crane tried to call and then sent a text message to Mr Rodden. At 9:32pm James Crane rang the Memorial Club and spoke to Mr Cannon and was told that Ms Tedder was having an argument with the deceased. The phone was then handed to Ms Tedder. According to Ms Tedder the conversation was short, essentially asking if the deceased was there and then asking to speak with Mr Rodden. CCTV footage establishes that 40 seconds passed between the phone being handed to Ms Tedder and her then passing it to Mr Rodden.

112. The call from James Crane to the Memorial Club was seven minutes and 21 seconds long. Approximately one minute passed between the call being answered and the phone being handed to Mr Rodden with the result that the call between James Crane and Mr Rodden was in the order of six minutes long. An inference is available that James Crane in this time persuaded Mr Rodden to drive the deceased to the Caltex at Peat’s Ridge, or at the least to take him somewhere and advise James Crane of the location. On the Crown case this was in order that the deceased be assaulted and serious injury occasioned to him in accordance with the wishes of the applicant conveyed between 9:27pm and 9:29pm. Just prior to that conversation ending (at 9:39:49pm) the applicant unsuccessfully attempted to ring James Crane (who was on the call to Mr Rodden) then sent him three text messages in quick succession before receiving a text message in return. The applicant then attempted to call Ms Tedder before receiving a call from James Crane which lasted for over a minute. He then called Ms Tedder on the Club’s landline and spoke with her for 29 seconds.

113. The applicant’s actions at this point are all consistent with a concern as to the location of the deceased and, perhaps more importantly a concern that that the deceased was going to do something to harm the applicant or his family. What is less clear is what he planned to do in response, and in particular, whether it included the assault, with the intentional infliction of grievous bodily harm, which followed.

114. Turning to events in Woy Woy, at 9:34pm, Mr Robertson placed an order at the KFC drive-through service, based on a receipt in his car , which exited the drive-through facility at 9:40pm. Mr McDonough can be inferred to have been with him at this point based on the quantity of food ordered, the fact they later arrived at the Caltex Service Station together, and the absence of phone records showing telephone contact between them from that time.

115. The next call made by James Crane was to Ms Blackett at 9:43pm. Her evidence was he called to clarify the particular burger she had wanted from the KFC. This seems a somewhat prosaic action in the context of organising the serious assault of the deceased. Importantly, however, it places James Crane at the KFC and in the vicinity of Mr Robertson and Mr McDonough. It is not clear how any meeting between the men was arranged. It is, nonetheless, apparent that something was done to enlist Mr Robertson and Mr McDonough in the events that followed.

116. There was a call from Mr McDonald to Mr Robertson at 9:41pm that lasted 22 seconds. This was approximately two minutes before James Crane’s call to Ms Blackett about the burger. Assuming James Crane had met with Mr Robertson prior to 9:41pm, this call provided an opportunity for Mr Robertson to pass relevant information to Mr McDonald, although it is curious that it was Mr McDonald that called Mr Robertson and not the other way around.

117. The next phone contacts were calls made by Tyrone Berry-Wright to Mr McDonough and Mr Symons at 9:43pm and 9:45pm respectively (that is to both cars that made their way to Mangrove Mountain). On the Crown case, Mr Berry-Wright played a co-ordinating role in the events. It is not clear as to how Mr Berry-Wright had been informed of what was going on. He had received a seven second call from Mr McDonough at 9:34pm. It is possible he was with James Crane. Given the timing of his calls and the co-ordination of events the inference is available that he was somehow informed.

118. There was a series of calls between the applicant and Ms Tedder between 9:49pm and 9:52pm. Ms Tedder was on her way home at this time, having left the Club at 9:49pm. The applicant’s contact with Ms Tedder is consistent with the applicant’s ongoing concern for her safety but does not shed any light on any involvement by the applicant in planning the attack on the deceased.

119. James Crane received a call at 9:49pm and spoke for 10 minutes with a family member, who was not suggested to be in any way involved. During this call, at 9:54pm, James Crane received the message from Mr Rodden that he was “going to servo now with child”. Given that the assailants were already on their way to Mangrove Mountain, it would appear this message was in accordance with earlier arrangements made between them, most likely when James Crane spoke to Mr Rodden on the Memorial Club landline.

120. Ms Tedder arrived home having been escorted by Mr Cannon. Mr Cannon was back at the Club by about 10:22pm, consistent with his evidence the drive was about 10 to 15 minutes (he having left at 9:49pm). When Mr Cannon arrived with Ms Tedder he told the applicant that Ms Tedder had had an argument with the deceased “and his mate”, although he had obviously already spoken to the applicant about collecting Ms Tedder from the Club. Mr Cannon said he also told the applicant the deceased (and Mr Rodden) had left the Club, Mr Cannon having been informed of this by a staff member. It is at this point he said the applicant said “I’m going to go fucking find him and kill him” and then left for the Club. Significantly, as the above chronology shows, this threat was made after James Crane had engaged with Mr Rodden, and enlisted the assailants, who were by that time on their way to Mangrove Mountain. That is, the threat, and hasty departure was made after, on the Crown case, the applicant had matters in hand as a result of his contact with James Crane. Of course, it may have been that, while believing James Crane had taken action, the applicant nonetheless wanted to be involved. Mr Cannon followed the applicant back to the Memorial Club, but said the applicant turned around before reaching the Club. I will return to the timing of this event.

121. As noted above, the message from Mr Rodden to James Crane, “going to servo now with child” was sent at 9:54pm. A second message was sent one second later the content of which is unknown. These messages were sent very soon after the CCTV showed Mr Rodden and the deceased leaving through the front door of the Club (it appears very narrowly missing the two men Mark Gilligan Snr and his companion ) that parked and entered the Club around the same time. Mr Rodden then called the service station and asked Ms Boucher to stay open for a little longer. At about this time the two cars (Robertson and McDonough in one, Symons and McDonald in the other) were travelling in apparent convoy through Koolewong which is on the route between Woy Woy and Mangrove Mountain. It would appear that, at this time, they were likely headed for the Memorial Club, that being the last known location of the deceased.

122. Meanwhile at the Club, Mark Gilligan Snr and the unknown man with him made enquires as to the whereabouts of the deceased and were told he had left. It will be recalled that at about the same time the men were informed of this one of them received a message prompting him to say Mr Starkey had been found. This was about 9:55pm. The overwhelming inference is that these men were part of the group looking for the deceased. What is less clear is who sent the message to advise that the deceased had been found. One possibility is Mr Berry-Wright whose complete telephone records were not in evidence.

123. At 9:56pm the applicant, apparently unsuccessfully, tried to call James Crane and then sent three SMS messages. At this point it was the applicant trying to contact his brother, and not the other way around, despite James Crane being in possession of the most up to date information, he having spoken to, and received the text from Mr Rodden. This is potentially explained by James Crane being on a call with his son at this time. James Crane did send a text in response (while still on the call to his son), also at 9:56pm. He then called the applicant immediately after ending the call with his son, at 10:00pm and again 10:01pm and spoke (or at least the call was connected for) 34 seconds and 22 seconds respectively. Given events to this point in time, it is clear that the applicant was concerned about the threat posed by the deceased, and in that context was concerned that the deceased be located and the threat contained. What is less clear is what information James Crane provided in these calls. On the Crown case, the inference to be drawn was that the applicant was informed of the location of the deceased.

99. As noted above, the applicant left for the Memorial Club after Ms Tedder arrived home, escorted by Mr Cannon. Mr Cannon observed the applicant to turn around in Memorial Drive which is the driveway into the club. The applicant’s turnaround was therefore shortly before 10:22pm when Mr Cannon returned to the Club. The most obvious reason for the applicant turning around is that he learnt the deceased was no longer at the Club. Having regard to the distances, it was certainly some time after the calls with James Crane referred to above. It is not clear why had James Crane informed the applicant of the location of the deceased (as advised to James Crane at least at 9:54 pm) the applicant was still headed towards the Club at a time within a few minutes (and very likely less) of 10:22pm. Further, not only was James Crane informed that the Mr Rodden was on the way to the service station at 9:54pm, for the reasons given above, this appears to have been confirmation of an earlier arrangement.

100. It is also to be observed that the applicant, after his contact with James Crane, did not immediately try to call Mr Symons. It was just over two minutes after his contact with James Crane that the applicant tried to call Mark Gilligan Snr. It was on failing to reach him, 35 seconds later that he called Mr Symons (at 10:04 pm). The Crown’s second particular is based on this call. By it the Crown assumed the burden of proving (if the first particular was not proved) that in the call the applicant “informed [Mr Symons of the location of [the deceased] … in order that Adam Symons and others could assault [the deceased] and cause him really serious injury”.

101. Mr Symons gave evidence of this conversation in which he said the applicant directed him to the service station. No weight can be given his account. It was given in the context of a narrative by which Mr Symons sought to exculpate himself. His evidence was rejected. It is not possible not to isolate one part of his evidence adverse to the applicant and find it to be reliable. It is necessary to consider the objective evidence.

102. The petrol station was closed very shortly after Mr Rodden and the deceased attended there. Ms Boucher (the attendant) left and while Mr Rodden and the deceased were still present. As she left she saw a vehicle approach which was likely the first of the assailants (who arrived at 10:06 pm). The four assailants plainly knew to go to the service station. There was no suggestion they simply happened on the deceased and Mr Rodden while they were driving past. Information as to the deceased’s location was actively being sought as is clear from the evidence of Mr Gilligan and his companion’s visit to the Memorial Club.

103. There is an additional call which appears in Exhibit 6 that does not appear to have been included in Exhibit 8. That is a 39 second call from Mr Berry-Wright to Mr McDonough at 10:03pm. If, as appears to be the case, Mr Berry-Wright was actively co-ordinating events, it would follow that he communicated the location of the deceased to Mr McDonough. That does not exclude the applicant also passing that information to Mr Symons in the 10:04 call. Mr Symons was in a separate car, and in front of Mr McDonough, at least at the time they approached the service station. If Mr McDonough knew of the deceased’s location, and even if this was also known to Mr Symons, that any information passed to Mr Symons by the applicant at 10:04pm as particularised by the Crown may have been redundant, would not defeat the Crown’s case.

104. The assault on the deceased concluded around 10:08pm. At that time Mr Symons called the applicant and spoke to him for 30 seconds. The irresistible inference is that Mr Symons told him, in some way, that the threat posed by the deceased had been resolved. The applicant had contact with Ms Tedder shortly after this. It can be inferred that he was anxious to put her at ease with respect to what had been an extant threat, at least against him, if not the whole family.

105. At 10:20pm, Mr Rodden sent his coded message to James Crane indicating he needed help with moving the deceased. Mr Rodden called and spoke to James Crane for over a minute from 10:29pm and they later met in the McDonald’s car park at West Gosford. There were various calls between relevant actors over this time. Amongst these, at 10:39pm the applicant called and spoke to James Crane.

106. Meanwhile at the Club, Mark Gilligan Snr and the unknown man returned, sometime after Mr Cannon had arrived back (which was at 10:22pm). Mr Cannon was asked if he knew where the deceased was by one of the men who, after looking at his phone said, “[w]e’ve got to go, they’ve found him” .

Is either particular proved beyond reasonable doubt?

132. The real issue with respect to each particular is proof that, in the first instance, the applicant communicated that he wanted the deceased assaulted and really serious injury caused to him, and in the second, that information was given to Mr Symons as to the deceased’s location “in order that Adam Symons and others could assault [the deceased] and cause him really serious injury”.

133. As has been made clear, at the time of the first particular the applicant appears to have been extremely anxious with respect to his safety and that of his family. The deceased was, at that time, still at the Memorial Club. While I am satisfied that the applicant was, in the course of his contact with James Crane between 9:27pm and 9:27pm, preoccupied with dealing with the threat he believed the deceased posed, I am unable to conclude that the only reasonable inference is that he engaged James Crane for the purposes of having really serious injury occasioned to the deceased.

134. As noted above, contacting James Crane was understandable having regard to the proximity of James Crane’s home to the Memorial Club. A concomitant of the Crown’s allegation that the applicant told James Crane that he wanted really serious injury occasioned to the deceased was that James Crane agreed and put in place (or continued with) a plan to do so. As discussed above, it is likely that the plan between James Crane and Mr Rodden to take the deceased to the service station was discussed in the telephone call between them at 9:32pm (almost immediately after the contact between the applicant and James Crane), and that the 9:54pm text was confirmatory. While the applicant’s contact with James Crane in the first particular appears to have precipitated the steps taken by James Crane, the applicant’s departure for the Memorial Club at the first opportunity (sometime after 10pm), speaks against proof of the first particular. The applicant’s action in leaving for the Club is not consistent with a belief that James crane had matters in hand. That is, leaving for the Memorial Club at a time that was very likely after the 9:54pm text, and at a point when the assailants were on their way to Mangrove Mountain suggests he was unaware of the plan (or at least the detail of it) instigated by James Crane. That he did not change course until close to 10:22pm, well after the others were aware the deceased was to be taken to the service station, adds force to this conclusion. That raises some doubt as to what the applicant resolved with James Crane between 9:27pm and 9:29 pm.

135. By the time of the second particular, the applicant had again threatened to kill the deceased (in his statement to Mr Cannon), having previously threatened to do so on 4 April to Ms Gane, and following the threat on 3 April to “get” the deceased. I accept that this threat is capable of informing the applicant’s belief as to what would occur when the deceased was found. It does not however neatly translate to the events as they unfolded. That is, it was not the case that the applicant himself killed the deceased. Nor was it suggested by the Crown that the attack was carried out with an intention to kill. Conversely, while the threat was not literally carried out, it demonstrated the applicant’s anger at the time. The events of 3 April support a willingness on the part of the applicant to confront the deceased directly, with the support of others. Ultimately, the point to be made is that, while acknowledging the proximity of the applicant’s threat to kill the deceased to the alleged act of assistance at 10:04pm, there is a danger in placing too great a weight on it. It remains a matter to be considered in the context of all the evidence. On its own it could not prove the relevant intent (either to kill in accordance with the threat literally, or to inflict grievous bodily harm).

136. The limitations in relying on the threat, and other evidence preceding the assault, highlight the issue with respect to the care to be taken in reasoning from the assault to proof of any instructions given to James Crane (for the purposes of particular one), or any information provided to Adam Symons in the context of a shared understanding (for the purposes of particular two) by the applicant.

137. On the Crown case the assailants had a loyalty to the applicant leading them to act in the manner they did on his behalf. Clearly the assailants (putting to one side any issue of defence) were willing to seriously assault the deceased in response to the deceased’s actions towards the applicant. It does not, as a matter of logic, follow that the response was directed by the applicant. One obvious possibility is that the applicant, to the extent he was aware of an intended assault, anticipated an assault occasioning lesser injury. In this regard, possibilities include James Crane taking upon himself to instruct the assailants that serious harm should be done to the deceased. While arguably less plausible, it is also possible the assailants took such a course themselves, noting the possibility that the violence, once commenced, quickly got out of control: see Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 at [36]. Between those two situations is the prospect of miscommunication. Any instructions were, on the Crown case, given by the applicant to James Crane and then from James Crane to the assailants. While there was direct communication between the applicant and Mr Symons at 10:04pm, it was not suggested by the Crown that in the course of this call the applicant issued in any instruction as to what was to occur. Rather, as alleged in the particular, and consistent with the timing of the call (that is, at a point where the plan was already well underway) it was not suggested the applicant did anything other than inform Mr Symons of the location of the deceased, on the Crown case, in order that he could be assaulted and grievous bodily harm occasioned to him.

138. Certainly, the web of communications demonstrates the applicant’s interest in the whereabouts of the deceased and an awareness that others had been recruited to assist. There was a parallel in this regard to the events of 3 April. However, the state of the applicant’s knowledge as to what was happening is more difficult to discern. There is reason to doubt that the applicant was fully informed at critical times. In particular it is noteworthy that he was at home until Mr Cannon arrived with Ms Tedder. As I have indicated, at this point, despite being told by Mr Cannon that the deceased had left the Club he, nonetheless, drove to the Club. This suggests he had no other information as to the deceased’s whereabouts. The timing of the call to Mr Symons (the second particular, at 10:04pm) is likely to have been around the time, or shortly after, the applicant left home (and well prior to him turning around in the driveway of the Club shortly before 10:22pm). This raises in my mind a doubt as whether he was in a position to advise Mr Symons of the whereabouts of the deceased as was alleged by the Crown in particular 3(b). More likely is that he called Mr Symons to tell him what he had been told by Mr Cannon – that is, that the deceased had left the Club, but that the applicant was headed there anyway. Indeed, by the time the applicant turned around in the driveway of the Memorial Club, it is highly likely the deceased had already been assaulted, the assault having occurred between 10:07pm and 10:08pm. This tends to suggest that, rather than the applicant assisting Mr Symons at the time of the 10:04pm conversation as alleged, Mr Symons was likely to have had the more up to date information.

139. In expressing the above views, I remain mindful of the fact that the applicant was upset and agitated and had made threats to kill the deceased, including during the course of the evening of 5 April. As discussed, however, there was no suggestion that the applicant instructed others to kill the deceased. The result is that, even if the applicant gave instructions that some harm should be done, it was something less than what was threatened. Further, while it was the Crown case that he told his brother he wanted the deceased to be assaulted and “really serious injury” caused to him, it was unlikely that he used these words. A difficulty for the Crown case was that there was no evidence of what words were used. The Crown sought to address this on the basis that, having regard to the level of violence unleashed, its immediacy and ferocity, there was in place a plan to inflict grievous bodily harm prior to the assailants leaving their respective vehicles. There is force in this argument. But there remains a difficulty in inferring that the applicant either instigated or was aware of such a plan.

140. In considering what was conveyed by the applicant to James Crane, and then from James Crane to the assailants, it is of note that none of the assailants had armed themselves with weapons. Had they done so, the inference would be more readily drawn that the applicant had instigated a reprisal involving, from its inception, the infliction of grievous bodily harm. That the assailants were not armed does not exclude proof of a plan to inflict grievous bodily harm. But it does leave greater room for ambiguity or misunderstanding as to what was intended ranging from intimidation, to assault, to assault occasioning actual bodily harm to assault occasioning grievous bodily harm. This is particularly so in circumstances where the instruction was conveyed from the applicant to James Crane to the assailants.

141. As has been set out above, proof of the case against the applicant required proof beyond reasonable doubt that:

“(a)   between 9.27pm and 9.29pm informed JAMES CRANE that Clint Starkey was at the Memorial Club, that Clint Starkey had argued with and upset Nicole Tedder there, and that he wanted Clint Starkey assaulted and really serious injury caused to him

AND/OR

(b)   at 10:04pm called Adam SYMONS and informed him of the location of Clint Starkey, being the Caltex Service Station at Peats Ridge, in order that Adam SYMONS and others could assault Clint Starkey and cause him really serious injury?”

142. For the reasons given above, I am not satisfied of either of these matters. It follows that I have a doubt as to the guilt of the applicant. While due deference must be paid to the jury’s verdict, that doubt is not resolved by any relevant advantage held by the jury.

143. In these circumstances it is unnecessary to consider the applicant’s remaining grounds.

144. With respect to the orders to be made in the light of my findings, the applicant is, subject to what follows, entitled to an acquittal with respect to the charge of murder. Section 7(2) of the Criminal Appeal Act allows this Court to substitute a verdict of another offence where “the jury could on the indictment have found the appellant guilty” of that other offence and “it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence”. In the present matter, the jury, within the meaning of the provision, could have found the applicant guilty of manslaughter. This is so despite the jury having been directed that if the Crown failed to prove either particular in question 3(a) or (b) the applicant should be acquitted. It was not suggested on the appeal that the Court should exercise its power under s 7(2) to substitute a verdict of manslaughter. Given the absence of any argument that a verdict of guilty of manslaughter should be entered, I would not do so.

145. There is a question as to whether the Court should simply order an acquittal on the charge of murder or whether there should be an order for a new trial pursuant to s 8 of the Criminal Appeal Act to allow the Director to prosecute the applicant for manslaughter (or any other potential alternative to murder on the indictment) if this is considered appropriate. The following discussion does not purport to be complete and, it is noted, the Court did not have the benefit of argument.

146. There is authority in this State that, in the absence of an order for a new trial it would not be open to the Director to bring a further trial against the applicant for manslaughter: see R v Murrell (2001) 123 A Crim R 54; [2001] NSWCCA 179 at [35] – [43]; and s 163 of Criminal Procedure Act 1986 (NSW) (in force as s 125 at the time R v Murrell was decided). Further, based on that authority, it would be necessary to order a new trial generally (not acquitting the applicant on the charge of murder), leaving it to the Director to determine if some alternative to murder should be prosecuted.

147. Contrary to the approach taken by this Court in R v Murrell, in AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27, on an appeal brought from the Victorian Court of Appeal, it was held (at [4], [29]), that on finding a verdict to be unreasonable, the Court of Appeal was required to finally determine the charge and a verdict of acquittal should have been entered. (See also Gerakiteys v The Queen (1984) 153 CLR 317 at 321, 322; The Queen v Taufehema (2007) 228 CLR 323 at [52].) Given the appeal was concerned with the common form criminal appeal provision (as reflected in s 6 of the Criminal Appeal Act), subject to a proper basis on which AJS v The Queen could be distinguished, the same result would follow in the present case. If AJS v The Queen was applied, the effect of the order for acquittal, based on R v Murrell, as observed above, would be to bar any further proceedings for any alternative that would have been available on the indictment. The High Court in AJS v The Queen, however, took a different position. It was held that a verdict of acquittal entered on appeal would not be a bar to a further trial of the appellant for an alternative offence that would have been available on the original indictment. There is reason to doubt that this aspect of AJS v The Queen is binding in the present case. The High Court in AJS v The Queen (at [20]-[21]) referred to R v Murrell, disapproving the reasoning but at least leaving open the possibility that particular considerations may apply in cases of homicide. More significantly, there was no suggestion that any Victorian equivalent to s 163 of the Criminal Procedure Act applied in AJS v The Queen. While the reasoning in AJS v The Queen is, with respect, compelling, the issue raised by R v Murrell is the effect of s163 of the Criminal Procedure Act. For completeness, I note that in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32, an appeal from this Court, it was accepted that it was open to this Court to enter an acquittal for an offence and order a retrial limited to a lesser alternative for which the appellant may have been found guilty at trial. The contrary was not, however, argued and there was no reference to s 163 of the Criminal Procedure Act. Sio v The Queen is not, therefore, binding authority overruling the conclusion in R v Murrell that an acquittal will bar a further trial of a lesser offence: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]; CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at 11 [13]; Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [56].

142. Difficult questions clearly arise with respect to the effect of s 163 of the Criminal Procedure Act, AJS v The Queen and R v Murrell. It is, however, unnecessary to resolve those difficulties in this case. I have above referred to the direction given by the trial judge to the effect that if the jury found at least one of the assailants guilty of murder (which they did), the only alternatives available to the jury were guilty of murder or outright acquittal, that issue being determined on the basis of proof of the particulars in jury question 3. The correctness of this direction was challenged by the applicant. It was argued as a specific ground, essentially as an alternative to the complaint that the verdict was unreasonable, that, if those particulars were not proved, the jury should have been directed to consider an alternative of manslaughter. The Crown in this Court resisted this contention. As I have said, it is not necessary to resolve this, or other grounds.

143. The Crown did not suggest manslaughter was a viable verdict in the event that the applicant was not convicted of murder. Indeed, as I have indicated, the Crown maintained that it was correct not to leave manslaughter as an alternative in the event neither of the particulars in question 3 were established. In the circumstances, I would not order a new trial even if that course was open. It is my view that this Court should simply enter an acquittal on the charge of murder. That course is consistent with AJS v The Queen and not inconsistent with R v Murrell.

144. I propose the following orders:

1. Grant leave to appeal;

2. Allow the appeal;

3. Quash the verdict of guilty of murder with respect to the indictment dated 23 May 2022;

4. Enter a verdict of acquittal on that charge.

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Endnote

Decision last updated: 03 July 2024