Supreme Court New South Wales Medium Neutral Citation: R v Crane, James [2021] NSWSC 693 Hearing dates: 4 and 8 June 2021 Date of orders: 15 June 2021 Decision date: 15 June 2021 Jurisdiction: Common Law Before: Fagan J Decision: The application of James Crane to be tried separately from Adam Symons and six others for the murder of Clint Starkey on 12 June 2017 is dismissed. Catchwords: CRIMINAL PROCEDURE – Trial – separate trial application – whether injustice to applicant from inability to compel co-accused – where evidence proposed to be called from co-accused in part not material – where accused able to give evidence on matters for which co-accused would be called – where co-accused's credit in issue Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v Annakin (1988) 31 A Crim R 139 R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186 R v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) 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: Restricted until the conclusion of the joint trial. Judgment 1. The Crown has indicted seven men for the murder Clint Starkey at Gosford on 12 June 2017. Their joint trial is listed to commence on 12 July 2021. The first four accused, who may be referred to as the assailants, are Adam Symons, Beau McDonald, Guy Robertson and Jake McDonough. The other three are Colin Crane, his brother James Crane and Simon Rodden. I will refer to all of them hereafter by their surnames only, for brevity, except in the case of Colin and James Crane. The Crown alleges that the assailants and Colin Crane were associated with each other as members of the Peninsula chapter of the Rebels outlaw motorcycle gang. 2. Before the Court is an application by James Crane for an order that he be tried separately from his co-accused, after the conclusion of a joint trial of the other six. It is said in support of the application that Rodden could give evidence that would tend to exculpate James Crane. If all accused are tried together James Crane would not be able to compel Rodden as a witness: s 17(3) of the Evidence Act 1995 (NSW). This is said to give rise to a risk of positive injustice to James Crane that could only be averted by conducting his trial on a separate indictment after Rodden has been tried with the four assailants and the Crane brothers. At that stage there would no longer be an impediment to James Crane compelling Rodden to testify. The Court's power to order a separate trial 1. The power to order a separate trial is expressly conferred by ss 21(2)(b) and 29(3) of the Criminal Procedure Act 1986 (NSW). The principles upon which the power is exercised are not in dispute between the parties on the present application. In R v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) 107 A Crim R 432 Kirby J summed up the position at [6], as follows: There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1984) 57 ALR 543). 1. The justification for the rule was explained by Toohey J (Mason CJ and McHugh J agreeing) in Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89 as follows: King CJ dealt with this ground by pointing out that there are "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other". What King CJ referred to as "strong reasons of principle and policy" were discussed by his Honour in R v Collie [1991] SASC 2996; (1991) 56 SASR 302. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others: R v Demirok (1976) VR 244 at 254.). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused: R v Harbach (1973) 6 SASR 427 at 433. 1. The proviso to the rule was the subject of the following further statement by the Court of Criminal Appeal in R v Annakin (1988) 37 A Crim R 131 at 139: In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice will be caused so as to prevent the accused being given a fair trial […]. I approach this application on the basis that a separate trial of James Crane should be ordered if it should appear that a joint trial with the other six co-accused would carry a real risk of positive injustice to James Crane. The Crown case The assault at 10:06 pm on 5 April 2017 1. The Crown alleges that on 5 April 2017 Rodden drove Clint Starkey to a Caltex service station at Peats Ridge, arriving there just before 10:00 pm. At about 10:06 pm the four assailants arrived in two motor vehicles. A minute or so later, one of them pulled Clint Starkey from the front passenger seat of Rodden's stationary vehicle and threw him to the ground. All four proceeded to punch, kick and stomp on him. The attack lasted about 30 seconds. It included numerous severe blows to the head that resulted in brain injury. Clint Starkey was rendered unconscious. The assailants departed within about a minute after ceasing their attack, leaving the victim motionless on the service station forecourt. 2. The assault upon Clint Starkey and the actions of Rodden during and after it were captured by Closed Circuit Television ("CCTV") security cameras. About 27 minutes after the departure of the assailants, Rodden was assisted by two other men who lived in a house nearby to lift Clint Starkey onto the back seat of Rodden's vehicle. Rodden then drove Mr Starkey to Gosford Hospital. He was treated at the hospital but died of his injuries nine weeks later, on 12 June 2017. 3. The Crown alleges that the four assailants acted pursuant to a joint criminal enterprise, the object of which was to inflict grievous bodily harm on Colin Starkey. Alternatively, it is alleged that the object was to assault Mr Starkey and that it was foreseen as possible, by each of the assailants, that grievous bodily harm would be occasioned to him and that death would result. 4. With respect to Colin and James Crane and Rodden it is alleged that they also were parties to this joint criminal enterprise. Alternatively, the Crown alleges that the Cranes and Rodden are each guilty of murder as accessories before the fact, by force of s 346 of the Crimes Act 1900 (NSW). Neither of the Crane brothers was present at the attack on Mr Starkey. Rodden was present but took no part in inflicting blows. Lead up to the assault – on 3, 4 and 5 April 2017 1. It is the Crown case that Colin and James Crane knew the deceased well. The Cranes and the deceased lived in the Mangrove Mountain area, near to Peats Ridge, inland from the Central Coast. It is alleged that in early April 2017 Colin Crane and the deceased were in an ongoing dispute with each other, in the course of which they had both made threats of violence. Rodden also lived in the Mangrove Mountain area. He was a friend and frequent companion of Clint Starkey. 2. The Crown will adduce evidence that at around 4:00 pm on 3 April 2017 the hostility between Colin Crane and Clint Starkey escalated to a confrontation at the Mangrove Mountain General Store. This involved shouting and threats. It culminated in Clint Starkey driving his vehicle in a dangerous and threatening manner towards Colin Crane's vehicle, which was stationary with his child on board. Rodden was present at this incident. Immediately after it, Colin Crane spoke by phone with each of Symons, Robertson and McDonough as well as other members or associates of the Rebels outlaw motorcycle gang. 3. The Crown alleges that later, during the evening of 3 April Colin, Crane and five other men attended Clint Starkey's home at Mangrove Mountain looking for him. The Crown will ask the jury to infer that this was the commencement of Colin Crane's enlistment of the assistance of associates to find Clint Starkey and to assault him. The accessory role alleged to have been played by Colin Crane includes that two days later, on the night of 5 April 2017, he arranged with the assailants, either directly or indirectly, for them to come to Peats Ridge and to attend the service station at a time when he expected Clint Starkey to be there and to carry out the assault. 4. The Crown will tender against each of James Crane and Rodden evidence of communications between them over the two days preceding the assault and during the evening on which it took place. That evidence will show that SMS text and voice communications were exchanged between these two men during the afternoon and early evening of 4 April 2017, followed by numerous further such contacts on 5 April between approximately 10:00 am and 6:00 pm. The Crown is not able to establish by direct evidence the content of the phone calls. Most of the text messages are very cryptic. The Crown relies upon surrounding circumstances, particularly the sequence of objectively established events on the night of 5 April, to support an inference that in telecommunications after 9:00 pm that evening, at the latest, James Crane procured Rodden to reveal Clint Starkey's whereabouts so that he could be attacked. The evening of 5 April 2017 1. It is alleged that on the evening of 5 April 2017, sometime between about 8:00 pm and 9:00 pm, Rodden borrowed his partner's motor vehicle and said to her: I've got to have a meeting with the boys. I shouldn't take the kid but I have to. There will be evidence that Rodden regarded the deceased as somewhat childlike in his behaviour and at times referred to him as "the kid" or "the child". The above statement could be regarded by the jury as evidence that from when Rodden set out to meet with Clint Starkey at about 9:00 pm on 5 April 2017 he intended to take him to a location where Colin Crane and/or his associates could confront him. 1. The Crown alleges that Rodden drove Clint Starkey to the Mangrove Mountain Memorial Club, which they entered at about 9:16 pm. They remained there until about 9:54 pm. Soon after their arrival Clint Starkey argued with Ms Tedder, an employee at the Memorial Club who was also the partner of Colin Crane. Colin Crane was informed of this argument by phone and immediately thereafter made a series of phone calls and sent text messages to his brother James. James Crane then called the Club on its landline at 9:32:28 pm. The Crown will lead evidence that the receiver was passed to Rodden at 9:33:21 pm. Rodden remained on the call with James Crane for six minutes until 9:39:23 pm. At that time the Crown alleges James Crane was in the Woy Woy area, as was at least one of the four assailants. Circumstantial evidence, including call charge records and cell tower information, will be relied upon to prove that the assailants left the vicinity of Woy Woy at about 9:40 pm and drove towards Mangrove Mountain and Peats Ridge. 2. Evidence will be adduced that as Rodden left the Memorial Club he sent an SMS text to James Crane at 9:54:50 pm which read: Going to servo now with child. It will be alleged that James Crane would have understood this message as meaning that Rodden was conveying Clint Starkey to the Caltex service station at Peats Ridge. The Crown alleges that Rodden then drove with Mr Starkey from the Club to the service station, ostensibly to put petrol in his vehicle but knowing that Colin and James Crane were arranging for Clint Starkey to be attacked there. 1. The Crown further alleges that, following receipt of Rodden's message, James Crane sent to Colin an SMS text at 9:56:42 pm and followed up with phone calls to Colin at 10:00:06 pm for 35 seconds and at 10:01:11 pm for 22 seconds. Colin Crane phoned Symons at 10:04:22 pm and the call remained connected for 32 seconds. Based on these communications the Crown alleges that James Crane had alerted his brother that Clint Starkey was going to be at the service station. He thereby acted as the conduit for information that enabled Colin Crane to coordinate the attendance of the four assailants. 2. James Crane was at the time living in a house immediately behind the Peats Ridge service station but he was not there when the assault took place. It has been mentioned that the assault commenced at 10:07 pm and lasted about 30 seconds. At 10:15 pm, seven minutes after the assailants had completed their attack and had driven off and while Mr Starkey was lying unconscious on the ground, Rodden moved his vehicle to a position between the roadway and Mr Starkey. It would be open to the jury to conclude that his purpose in doing so was to prevent passers-by from seeing the man lying on the ground. At 10:16 pm Rodden called James Crane and was connected for 16 seconds. At 10:20:13 pm Rodden sent James Crane the following SMS text message: This car is fucked and I need a hand getting the fucken piece of crap out of the way now please. 1. The jury could infer that Rodden intended by this message to convey that Mr Starkey was injured at the service station and that Rodden needed assistance to move him. Phone calls, text messages and movements at the service station over the next 15 minutes could support an inference that James Crane arranged for the attendance of the two men who came to the scene and lifted Clint Starkey onto the back seat of Rodden's vehicle. Those two men lived in a house near the service station and near to the house occupied by James Crane. Rodden drove away with the injured man about 29 minutes after the assault had ended. The Crown will adduce evidence that after Rodden had taken Mr Starkey to Gosford Hospital he met with James Crane at the McDonald's outlet in West Gosford shortly after 11:30 pm for 20 minutes. Rodden's induced statement 1. Rodden signed an induced statement on 13 June 2017. Therein he made numerous assertions that a jury could conclude are definitively contradicted by the CCTV footage of the assault and/or by other evidence. The following are examples: 1. At pars 31 and 32 Rodden states that after he had put $20 worth of petrol in his vehicle and had returned to the driver's seat, with Clint Starkey in the front passenger seat, the following occurred: I started to drive out but only got a couple of metres. All of a sudden I heard the sound of a car horn and saw headlights from the other side of the pump. My initial reaction was to slam the brakes on because a car was coming at me with the horn on. This car was a red Commodore around the VN model. The CCTV footage shows that a red car and a white one entered the service station forecourt while Rodden's vehicle was still at the bowser with both of its front doors open and Rodden and Mr Starkey standing near it. The red car stopped parallel to Rodden's vehicle, facing in the opposite direction and with the petrol bowser in between the two. As Rodden drove a few metres forward the red car accelerated in the opposite direction, performed a U-turn on the service station forecourt and came back at speed towards the left side of Rodden's vehicle. At that stage Rodden had driven his vehicle away from the bowser and was on the driveway facing towards the exit onto the public road. No other vehicle approached and Rodden's path ahead to the service station exit was clear. However, the footage shows that Rodden stopped and when he did so two men approached his door. While they stood there talking to Rodden two others approached the front passenger side door and one of them pulled Clint Starkey out and onto the ground. 1. The paragraph quoted at (2) above conveys that the approach of the assailants and their attack on Clint Starkey was unexpected. To the contrary, evidence will be adduced that Rodden had the following exchange with Detective Jeffrey and another officer shortly after 6:00 am on 6 April 2017 near Rodden's house: Rodden: I know you guys are detectives. Det Jeffrey: […] Tell me what you think we are here for first. Rodden: It was supposed to be a touch up but that was way more than a fucking touch up. The last statement is open to being understood by a jury as an admission that Rodden was on notice of an intended assault upon Clint Starkey immediately before it occurred. Rodden's statement to his partner before he went out on the evening of 5 April 2017, quoted at [14] above, is also capable of supporting an inference that he was expecting a confrontation by someone with Mr Starkey that night. 1. At par 32 Rodden states that after Mr Starkey had been dragged from the car, the following occurred: I turned to get out of the car. I opened the door and stepped out. As I got out there was a guy standing in front of me with a knife. He was holding the knife at waist level with the blade pointed towards my stomach. […] I stayed at the driver's door and could hear Clint screaming from the other side of the car. When the screaming stopped the man with the knife ran around the back of my car to where Clint was. At par 34 Rodden states that the knife had a 4 inch blade with "blue on it somewhere". The CCTV footage shows that the two men who approached the driver side of Rodden's car had nothing in their hands. There is no part of the footage that is consistent with Rodden having been threatened with a knife, as he asserts. The man who ran around the back of Rodden's vehicle joined in the assault upon Clint Starkey and clearly had nothing in either hand. 1. At par 35 Rodden states that he was "too scared" to call an ambulance but that he "wanted to get Clint to hospital as soon as possible". He states that he moved his car to line it up beside Mr Starkey so that he could lift the injured man onto the back seat. The CCTV footage contradicts this. Rodden stood about for many minutes doing nothing towards getting Clint Starkey into his vehicle. The position to which he moved his vehicle was less advantageous than its original position for the purpose of placing the injured man on the back seat. It would be open to the jury to conclude that the real purpose of repositioning was to screen Mr Starkey from the view of anyone driving past along the public road. In contradiction of his claimed haste to get Mr Starkey to the emergency department, Rodden delayed his departure until 29 minutes after the assailants had left. He made no attempt to attend to the injured man in the meantime. Prejudice from evidence of association with Rebels OMCG 1. It is submitted on behalf James Crane that the Crown is not alleging any association between him and members of the Rebels outlaw motorcycle gang but that he will suffer irremediable prejudice by being tried in circumstances where the jury will hear that his brother Colin is affiliated with the Rebels and that the assailants were members of that organisation. It is submitted that it would not be possible to frame directions capable of neutralising potential prejudice from this cause. I do not accept that submission. It is an everyday occurrence in criminal trials that juries are directed to disregard circumstances that are not probative of the accused's guilt and that might collaterally jaundice the jury's view of the accused. The institution of trial by jury is founded upon an acceptance that jurors will follow directions. If this submission on behalf of James Crane were valid, he could never be tried. It is a significant part of the Crown's circumstantial proof of a joint criminal enterprise between Colin Crane and the four assailants, to which enterprise James Crane is alleged to have adhered and in which he is said to have participated, that Colin and the assailants were associated through the Rebels club. Non-compellability of a co-accused in a joint trial is not an injustice 1. The considerations that favour a joint trial of multiple accused persons charged with the one offence, identified by Toohey J in Webb and Hay v The Queen, are applicable here. There being no irremediable prejudice to James Crane flowing from the evidence to be tendered against the other accused, I turn to the applicant's principal ground, being his inability to compel the co-accused Rodden to give evidence. Section 17 of the Evidence Act is in the following terms: 17 Competence and compellability: defendants in criminal proceedings (1) This section applies only in a criminal proceeding. (2) A defendant is not competent to give evidence as a witness for the prosecution. (3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant. (4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3). 1. A co-accused being jointly tried for the same offence is clearly an "associated defendant", as defined in Pt 1 of the Dictionary to the Evidence Act. Section 17 preserves the co-accused's right to remain silent. Irrespective of precisely what evidence Rodden might be expected to give and with what degree of credibility, the operation of s 17(3) cannot amount to a positive injustice to James Crane in a joint trial for this murder. 2. The Crown case is such that it is inherent in James Crane's and Rodden's pleas of not guilty that each of them implicitly imputes that the other must have adhered to and participated in the alleged joint criminal enterprise. By Rodden's defence of the charge he necessarily denies that he learned directly from Colin Crane and/or from the assailants that Clint Starkey was to be set upon. He also necessarily denies that he directly informed Colin Crane and/or the assailants that he was taking Mr Starkey to the service station at about 10:00 pm on 5 April. It is indisputable that Rodden spoke to James Crane for six minutes from 9:33 pm that evening and that at 9:54 pm he sent James Crane the message, "Going to servo now with child". Necessarily, Rodden's defence of the charge involves a contention that James Crane must have passed on to Colin Crane and/or to the assailants that Clint Starkey was being taken to the service station. In the circumstances, the Crown will contend James Crane could have had no reason for passing on this information except that he was a party to the assailants' joint criminal enterprise and that he sought to facilitate an assault upon Mr Starkey. 3. James Crane's defence has reciprocal implications against Rodden. By pleading not guilty James Crane necessarily disputes that he reached an understanding directly with Colin Crane and/or the assailants that Mr Starkey should be attacked. Given the events and communications that will be objectively proved and that are not contestable, it follows that James Crane's defence inherently involves an imputation that Rodden must have had direct contact with Colin Crane and/or the assailants to reach his own understanding that on the night of 5 April there would be a "meeting", as he described it to his partner, and that Clint Starkey would receive "a touch up", as said to Detective Jeffrey on 6 April. By defending the charge James Crane also necessarily imputes that Rodden must have informed Colin Crane and/or the assailants directly, perhaps earlier in the evening, that Mr Starkey would be at the service station at 10:00 pm. 4. In summary, by defending the charge both James Crane and Rodden are each trying "to cast blame on the other", in the words of Toohey J. This brings the case within the class for which it is particularly important that a joint trial should be conducted. Of course, James Crane does not and cannot commit himself to calling Rodden in his own separate trial if that should be ordered. He could not be held to such a future course, whatever he may say on the application. His argument can be no stronger than that he suffers injustice by being tried jointly with Rodden because he will not have the choice to compel Rodden as a witness, whereas in a separate and subsequent trial that choice would be open to him. For reasons stated below I have substantial doubt that Rodden would be called by James Crane in a separate trial and still stronger doubt that such a course would assist his defence. 5. If it could properly be said that relevant injustice flows from the non-compellability of a co-accused in a joint trial, where each is blaming the other, then there could never be a joint trial in a case of this type. The fallacy of asserting that the operation of s 17(3) gives rise to injustice to one accused is exposed by considering the position of the co-accused. As considered below, the only evidence from Rodden that has been identified as potentially benefiting James Crane would be an account of their phone communications. James Crane could also testify on that subject. If it is open to James Crane to seek a separate, subsequent trial on the basis that a joint trial, in which he would not have the choice of calling Rodden, would be unjust, then it would be equally open to Rodden to seek a separate trial subsequent to that of James Crane – in order to be able to compel James Crane to give evidence about their communications. If James Crane's application were granted, Rodden might yet apply for an order that he be tried separately and after the conclusion of the trial of James Crane, on a ground equivalent to that on which the present application is brought. 6. If two or more accused persons are to be tried separately it is within the authority of the Director of Public Prosecutions to decide the order in which they will be tried. I will assume for the purposes of this application that the Court has a residual power to stay proceedings on one indictment pending the conclusion of a trial on another, if that should be necessary to avoid injustice. If a separate trial could properly be granted upon the ground now advanced by James Crane, it would be impossible for the Court to determine whose trial ought to proceed first. Rodden may have an equal claim to be tried second in order to have the choice of calling James Crane. 7. This potential impasse reveals that an order for a separate and subsequent trial cannot be justified on the consideration that the applicant wishes to have open to him the possibility of adducing evidence from a co-accused about matters on which either or both of them could testify. It does not amount to an injustice to an accused person who wishes to adduce evidence in his own case that, by reason of being tried with a co-accused, the first-mentioned accused may be limited to giving his own evidence on the relevant subject rather than calling the co-accused. Inability to call Rodden's evidence of Colin Crane's 3 April visit 1. The above considerations lead to the dismissal of the application. For completeness I will state my conclusions on the lack of utility of Rodden's evidence to James Crane's defence. The Crown has made clear that if James Crane were to be tried separately after the trial of his co-accused, it would not call Rodden, either in support of its own case or for the purpose of making him available to be questioned on behalf James Crane. Understandably, in view of very significant anomalies in Rodden's induced statement, of which examples have been given at [20] above, the Crown does not regard Rodden as a witness of truth. Pars 17 and 18 of Rodden's statement 1. James Crane has identified parts of Rodden's induced statement that he would adduce if he could call Rodden. The first part, on which counsel placed most reliance in support of the application, is in pars 17 and 18 of the statement. Rodden states that on the evening of 3 April 2017 after the altercation at the Mangrove Mountain General Store, Colin Crane together with five or six other men attended Rodden's residence looking for Clint Starkey. According to par 17 Colin Crane and his associates arrived in "about three cars", of which Rodden thought one was a red Commodore VN sedan and another might have been a white Commodore VN sedan. At par 18 Rodden describes the following exchange on this occasion: As I walked out the front of my house, Colin called out to me, "Hey, Simon". I saw that he was [with] five or six people. Colin asked me where Clint was. I told him I did not know where he was. I told Colin that Clint does not mean what he says and that he (Clint) has brain damage. Colin said words to the effect of, "I have a lot of pull". I said to Colin, "He's going to jail in a couple of days". Colin said, "These guys just got out of jail. I can get him got in jail". 1. The Crown is not in a position to call any evidence of this visit to Rodden's house independent of Rodden himself. If James Crane and Rodden are tried on the same indictment, no evidence of this event will be led in the Crown case. First point: non-involvement of James Crane in threats by Colin 1. James Crane makes two points about this. The first is that he submits evidence of Colin Crane searching for and making threats about Clint Starkey, in company with others but not including James Crane, would tend to distance James Crane from involvement in the alleged joint criminal enterprise. This point has no substance. In the absence of evidence from Rodden regarding this visit – and therefore in the absence of any evidence concerning it – the Crown case will not include any suggestion that James Crane took part in threatening behaviour towards Clint Starkey, such as going out looking for him, in the days immediately before 5 April 2017. James Crane's defence could not be strengthened by proof, through Rodden, that others, namely Colin Crane and his associates, did engage in such threatening behaviour. Second point: a direct line of contact between Rodden and Colin Crane 1. James Crane's second point is that Rodden's evidence of the 3 April visit to his home would show that Colin Crane dealt directly with Rodden concerning a planned assault upon Mr Starkey. It is said that this would negate the inference, otherwise available, that the text and phone communications between James Crane and Rodden over the next two days – particularly after 9:00 pm on 5 April – were the means by which (a) Rodden was informed of and agreed to a plan of attacking Clint Starkey and (b) Rodden provided information about Mr Starkey's movements, for James Crane to pass on to Colin Crane. 2. In oral argument counsel elaborated the claimed significance of the 3 April visit to Rodden's house as follows (emphasis added): [It] establishes a direct point of contact between Colin and his associates and Rodden, which raises the question; why go to James Crane at all? Secondly, because the contact is in person, it is not detectable in the telephone records. So the jury, presented with the telephone records alone, will be wrongly told that the only way Colin and Rodden were in contact, is through James, is just wrong. We know it is wrong. […] Counsel then referred to the evidence that, upon going out for the evening on 5 April 2017, Rodden told his partner he was going to "a meeting with the boys" – see [14] above. Counsel continued: [He] is declaring that a meeting has been arranged. So the question is; who was the arrangement with? The Crown's answer is; James, because of the telephone contact, but we are not going to tell you, due to the structure of the indictment -- we can't -- about the fact that these people were approaching Rodden directly about getting to the deceased. Would it seriously be suggested that these characters left Rodden without any insistence that the deceased would be caught up with at that point? […] [There] is only one way out and it is a real way out for James, and that is to establish the truth of the fact that these people were going straight to [the] person who delivered the deceased. […] Straight to Rodden to get to the deceased. 1. These arguments proceed from a mischaracterisation of pars 17 and 18 of Rodden's statement. Paragraphs 17 and 18 cannot sensibly be described as establishing that on the night of 3 April 2017 there was brought into existence "a direct point of contact between Colin and his associates and Rodden". As recounted by Rodden, Colin Crane's words on this occasion were an arm's length delivery of threats against Clint Starkey. Rodden does not state that during this visit an arrangement or understanding was reached directly between himself and Colin Crane for Mr Starkey to be harmed. Nor is there any suggestion in the statement that an ongoing line of communication was set up between Rodden and Colin Crane for such an arrangement to be made between them in the future. What is described is a stand-off in which Colin Crane conveyed a threat to Mr Starkey through Rodden as Mr Starkey's friend. Far from Rodden reaching any understanding with Colin Crane for Mr Starkey to be assaulted, or setting up a channel of direct communication for such an understanding to be reached in the future, Rodden spoke in defence of Clint Starkey and sought to excuse Mr Starkey's conduct at the General Store. 2. Counsel's further submission that "these people were approaching Rodden directly about getting to the deceased" is an unsustainable construction of Rodden's account of the 3 April visit. The delivery of the threat through Rodden was not an "approach" in the sense submitted by counsel. Rodden does not describe in his induced statement anything in the nature of an endeavour to secure his agreement or assistance with respect to "getting to the deceased". According to par 18 of Rodden's statement, Colin Crane merely told him that Colin and his associates would themselves get to the deceased, in or out of prison. The arm's-length nature of this contact, as recounted by Rodden, is entirely inconsistent with any element of direct arrangement with Colin Crane or his associates pursuant to which Rodden would help them "get to the deceased". 3. When counsel was taxed with the absence of anything in Rodden's statement to substantiate his characterisation of the 3 April visit as quoted at [35] above, he referred to supplementary written submissions at pars 20-22, which concern Rodden's statement to his partner on the evening of 5 April that he was going to "a meeting with the boys" and his implicit admission to Detective Jeffrey on 6 April that he knew Mr Starkey was going to be assaulted. Those references are beside the point to the gulf between what Rodden states about Colin Crane's visit on the evening of 3 April and what counsel claims that he states. 4. Counsel submitted that it would be important to James Crane's defence to adduce from Rodden evidence that he had direct contact with Colin Crane on 3 April because that would rebut what he termed a "key proposition" of the Crown case. Counsel attributed to the Crown the following "key proposition": The only known mechanism by which a meeting could have been organised between Rodden, the deceased and Colin Crane's associates (at which the deceased would be assaulted) was through James Crane. 1. That is not an accurate statement of the Crown Case. The Crown mounts a circumstantial case that on the evening of 5 April 2017 James Crane informed Rodden by phone, while he was at the Mangrove Mountain Memorial Club, that Colin Crane and/or his associates planned to assault Mr Starkey. Further, the Crown relies upon circumstantial evidence to support an inference that Rodden manifested his adherence to this enterprise and assisted in the execution of it by communicating to James Crane the whereabouts and intended movements of Clint Starkey on the night of 5 April and by then driving Clint Starkey to the service station. The Crown will ask the jury to draw an inference that, upon receiving from Rodden information about where Mr Starkey would be, James Crane passed that information on to Colin Crane, knowing that he and/or his associates intended to act upon it to carry out their plan of assaulting Mr Starkey. 2. This broadly describes the Crown's case against both Rodden and James Crane. At par 14 of the Crown's supplementary submissions on this application it is said that Rodden's awareness of the plan "can be timed to after" Clint Starkey's argument with Ms Tedder at the Memorial Club, which commenced at about 9:16 pm on 5 April. It would be open to the Crown to argue, on the evidence foreshadowed in the Crown Case Statement, that Rodden knew of the plan by the time he left home that evening, when he told his partner that he was going to have to take "the kid" to a "meeting with the boys". It would be open to the jury to infer that Rodden may have gained knowledge of the plan by that time through his telecommunications with James Crane earlier in the day and/or on the preceding day. 3. Contrary to the submissions made on behalf of James Crane, it is not incumbent on the Crown to prove an "only known mechanism" by which a physical confrontation with Clint Starkey "could be organised" between the accused. That is an exaggeration of the Crown's burden. In order to prove the charge against James Crane the Crown will have to satisfy the jury beyond reasonable doubt that the involvement and knowledge of James Crane as described at [40] above is the only reasonable inference from all the circumstances. Depending upon the state of the evidence at the end of the trial, it may be open to James Crane to submit that the circumstances leave open a reasonable possibility that Rodden gained knowledge of the plan for an assault upon Mr Starkey by direct contact with Colin Crane and/or his associates. Equally, it may be open to James Crane to submit that it is reasonably possible that Rodden communicated the whereabouts of Mr Starkey directly to Colin Crane and/or his associates. The raising of such reasonable doubts about whether James Crane played any part would not be supported in the slightest by evidence from Rodden to the effect of pars 17 and 18 of his induced statement, concerning Colin Crane's threatening visit to his property on the night of 3 April 2017. Inability to call Rodden's evidence of phone calls with James Crane, 4‑5 April 1. Injustice to James Crane in a joint trial is also said to arise from inability to adduce Rodden's evidence of the content of their phone conversations on 4 and 5 April 2017. The applicant refers to the following extracts from pars 24 and 25 of Rodden's induced statement: Some time after Colin came to my place [on the evening of 3 April 2017] I had a telephone conversation with James Crane. I told James that I was not happy with people turning up at my house. James said, "It wasn't good enough what he said to Colin". James was referring to the comment Clint made [during the altercation at the General Store] about coming after his [Colin's] family. James said, "Just keep out of it". We had a further conversation about the [methyl amphetamine] I brought [sic] [from James]. […] During the days after Colin came to my house I had telephone conversations and text message communication between myself and James Crane. This communication was about the drugs that I had purchased off James. It is submitted that evidence to this effect would negate any inference that the phone calls were in furtherance of the alleged joint criminal enterprise and would show that they concerned a drug debt owed by Rodden to James Crane. 1. The applicant also refers to pars 28 and 29 of Rodden's statement, concerning James Crane's call to him on the Memorial Club landline, for six minutes from 9:33 pm on 5 April, as follows: James said, "Keep out of it you were meant to catch up with me". I said, "Yeah, yeah, I been busy, I will catch up with you later". […] After we left the club I told Clint that I needed fuel because [Rodden's partner] needed to drive me to work tomorrow. I asked Clint if there were any problems if we caught up with James Crane. Clint did not have a problem with seeing James, just not his brother. [Rodden then referred to his text message to James Crane at 9:54 pm, that he was "Going to servo now with child"]. When I took Clint to see James my intention was to speak to James about the drugs and the issues Clint was having with Colin. It is submitted that this evidence would show that Rodden and James Crane spoke of the visit to the service station being for the innocent purpose of meeting to discuss Rodden's drug debt and Mr Starkey's conflict with Colin Crane, not for the purposes of the alleged criminal enterprise. 1. The alleged injustice of not being able to compel Rodden to give the above evidence is rebutted, first, by the obvious significant doubts about Rodden's credibility and, secondly, by the fact that James Crane, as a party to the phone conversations, can himself give evidence of their content. 2. With respect to Rodden's credit, reference has been made to parts of his induced statement that conflict with the CCTV footage and with his acknowledgements to his partner on the evening of 5 April and to Detective Jeffrey the next day that an encounter between Clint Starkey and persons hostile to him was pre-arranged. Paragraphs 28-29 of Rodden's statement are further contradicted by the Crown's evidence that James Crane was in Woy Woy when Rodden spoke to him between 9:33 pm and 9:39 pm and when he sent the text message at 9:54 pm. James Crane was not at his home near the service station for the purpose of a meeting about Rodden's drug debt. Further, when faced with the task of moving the unconscious victim, it was James Crane whom Rodden contacted to demand assistance in dealing with this consequence of the attack. 3. The resolution of conflict between any evidence that Rodden might give and any other evidence in the trial would be a matter for the jury. But the above discrepancies show that there must be very great doubt that Rodden would in fact be called in James Crane's defence, if he should become compellable as a result of being tried first with the other co-accused. There is further doubt that Rodden's evidence would have sufficient credibility to make any contribution towards raising a reasonable doubt in James Crane's favour. 4. Supplementary written submissions on behalf of James Crane on this application acknowledge Rodden's unreliability. Those submissions include the following: The proposition that Rodden's statement contains a mixture of truth and lies is embraced by the applicant on this application. The fact that he has told lies is an important feature of his evidence which would be used to the benefit of James Crane at his (separate) trial. Specifically, James Crane's position is that there is a significant possibility that Rodden has lied about whether a "meeting" had been organised between Rodden and the other co-accused at which the deceased would be assaulted. The last part of this submission is apparently a reference to the evidence to be given by Rodden's partner that he told her, when he was going out for the evening on 5 April, that there was to be a "meeting with the boys" to which he would have to take "the kid": see [14] above.. 1. The supplementary submissions continue as follows: The fact that Rodden has told other lies in his statement is likely to assist James Crane in making this point, by establishing that Rodden is a person who tells self-serving lies within a broader structure of the truth. From these submissions it is apparent that if an order were to be made that James Crane be separately tried and if he were then to call Rodden, he would seek leave under s 38 of the Evidence Act to cross-examine on parts of Rodden's statement that are recognised as damaging to James Crane. It is not assured that such leave would be granted, given that in the hypothetical situation James Crane would have voluntarily called Rodden knowing that his evidence would be unfavourable. The application for leave would be weaker than the typical application by a prosecutor in respect of a witness whom the Crown is obliged to call: R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186 at [67]. The uncertainty about leave to cross-examine is a further factor against ordering a separate trial for the purpose of averting injustice. 1. The second, independent answer to the alleged injustice of not being able adduce Rodden's evidence about the content of phone conversations is James Crane's capacity to give that evidence himself. It is not inconsistent with the accused's right to silence that the Court should take this into account on a separate trial application. There is no suggestion that James Crane would be under any disability in testifying. If it be relevant to consider how his credit might stand with the jury relative to that of Rodden, he could hardly be a less plausible witness having regard to the contradictions of Rodden's statement in critical respects. 2. Accepting that James Crane may give evidence of the content of the communications, it is nevertheless submitted that he suffers the risk of positive injustice by not being able to compel Rodden to corroborate him. This is not significant, bearing in mind all that I have said concerning doubts about whether Rodden would be called, doubts about whether he would have any credit with the jury, features of his evidence that James Crane acknowledges would be detrimental to his case and doubts about whether leave would be granted to cross-examine him. 3. A further point made on behalf James Crane concerning pars 28 and 29 of Rodden's statement is that evidence that "Clint did not have a problem with seeing James" would assist James Crane's defence. Even if the jury accepted evidence from Rodden that Mr Starkey said he was comfortable to meet with James Crane, that would have no probative value on the issue of whether James Crane was party to the joint enterprise or played any part as an accessory before the fact to encourage or facilitate the fatal assault. The Crown case is, of course, that the arrangements for the assault were made without Mr Starkey's knowledge. His lack of apprehension about James Crane is not inconsistent with that case. Orders 1. For these reasons an order will be entered dismissing James Crane's application for a separate trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2022