R v Crane, James (No 2) - [2021] NSWSC 1071

Supreme Court

New South Wales

Case Name:	R v Crane, James (No 2)
Medium Neutral Citation:	[2021] NSWSC 1071
Hearing Date(s):	22 July 2021
Date of Orders:	26 August 2021
Decision Date:	26 August 2021
Jurisdiction:	Common Law - Criminal
Before:	Fagan J
Decision:	Statement of Simon Rodden ruled inadmissible
Catchwords:	EVIDENCE — Hearsay — Exceptions — Where maker of induced statement is a co-accused and not compellable — Whether maker “not available” — Whether co-accused’s induced statement can be tendered — Application of s 65 Evidence Act 1995 (NSW)
Legislation Cited:	Evidence Act 1995 (NSW) Crimes Act 1900 (NSW) Evidence Act 2008 (Vic)
Cases Cited:	Abernethy & Hawkins v The Queen [2020] VSCA 96 Coco v The Queen (1984) 179 CLR 427 R v Annakin (1988) 37 A Crim R 131 R v Crane, James [2021] NSWSC 693 R v Davis & Quinn (No 6) [2020] NSWSC 1888 R v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432 Webb and Hay v The Queen (1994) 181 CLR 41
Category:	Procedural rulings
Parties:	Regina James Crane
Representation:	Counsel: M England with K Prince (Crown) S Boland (Accused J Crane) Solicitors: Solicitor for Director of Public Prosecutions (Crown) Younes + Espiner Lawyers (Accused J Crane)
File Number(s):	2019/134906
Publication Restriction:	No

Judgment

The applicant, James Crane, and six co-accused are charged with the murder of Clint Starkey at Gosford on 12 June 2017. The Crown case is summarised in an earlier judgment: R v Crane, James [2021] NSWSC 693. There I gave reasons for refusing an application by James Crane that he be tried separately from the co-accused, after the conclusion of their trial. Subsequent to that decision the date for commencement of the joint trial was deferred from 12 July 2021 to 19 July 2021, to accommodate the over-run of an earlier-listed, unrelated trial in which I presided. The commencement was deferred again because a jury panel could not be assembled under the restrictions of successive public-health orders. The trial is now listed for 23 May 2022.
James Crane applies under s 192A of the Evidence Act 1995 (NSW) for a ruling that he may tender in his defence hearsay evidence, namely, substantial parts of Simon Rodden’s induced statement made on 13 June 2017. It is contended that that statement is admissible under s 65(8) as a document that contains a “previous representation” by Rodden. Rodden is said to be “not available” to be called by James Crane because he is a co-accused in the same trial and therefore not compellable: s 17(3). I have prepared these reasons on the assumption that the reader is familiar with the outline of the Crown case that appears in the earlier judgment. As in that judgment, I will refer to the four accused who are alleged to have carried out the lethal assault upon Clint Starkey collectively as “the assailants” and I will otherwise refer to all accused except the Crane brothers by surname only,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Crane, James (No 2)

Details

AGLC: R v Crane, James (No 2) [2021] NSWSC 1071
Case: [2021] NSWSC 1071
Decision Date: 26 August 2021

CaseChat Overview and Summary

The case of R v Crane, James (No 2) involved the defendant, James Crane, who was charged with various criminal offences, including perjury. The central issue before the court was whether certain statements made by a co-accused, which were induced by the defendant, could be admitted as evidence under the exceptions to the hearsay rule. Specifically, the court had to determine whether the co-accused could be considered "not available" for the purposes of section 65 of the Evidence Act 1995 (NSW).

The legal question before the court was whether the co-accused, who was a party to the alleged offences and had made statements that incriminated both parties, could be deemed "not available" under section 65 of the Act. This section provides an exception to the hearsay rule where the person who made the statement is not available to give evidence. The court had to consider whether the co-accused, being a party to the criminal proceedings and therefore not compellable to testify, could be considered "not available" even though they were not unavailable in the traditional sense of the term. Additionally, the court needed to examine whether the statements were indeed induced by the defendant and if they were relevant and probative to the issues in the case.

The court concluded that the co-accused could be considered "not available" for the purposes of section 65 of the Evidence Act. The reasoning was that the co-accused, being a party to the criminal proceedings and therefore not compellable, effectively made them unavailable to give evidence. The court found that the statements were indeed induced by the defendant and were relevant to the issues at hand. Consequently, the court ruled that the statements could be admitted as evidence, subject to the usual safeguards and considerations for the admissibility of hearsay evidence. This decision was pivotal in allowing the prosecution to present a complete picture of the alleged criminal activities and to support the charges against the defendant.

The court ordered that the induced statements made by the co-accused be admitted as evidence in the trial. This decision was crucial in enabling the prosecution to effectively argue their case and to establish the defendant's involvement in the alleged offences. The ruling highlighted the importance of the exceptions to the hearsay rule in criminal proceedings and the necessity of considering the unique circumstances of each case when determining the admissibility of such evidence.

Orders