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

Supreme Court New South Wales

Medium Neutral Citation: R v Crane, James (No 2) [2021] NSWSC 1071 Hearing dates: 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 1. 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. 2. 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, for brevity. 3. The Crown's position on the evidentiary ruling now sought is as follows: 1. It argues affirmatively that Rodden's statement is admissible in James Crane's case, with citation of authority and reference to materials extrinsic to the Evidence Act in support of the proposition that the statutory definition of a witness who is "taken not to be available" extends to a non-compellable co-accused. 2. The Crown submits that Rodden's statement should only be received in James Crane's case to the extent that it contains first-hand hearsay; that is, assertions by Rodden of matters that he claims to have seen or heard directly. It submits that the statement contains second- or third-hand hearsay, being assertions of things Rodden claims to have learned from others, and that those parts of the statement should be excluded. 3. It is argued that the reception of the parts of Rodden's statement that James Crane is pressing should be conditional upon him also tendering other parts that are "necessary to properly understand the representations that [James Crane] proposes to adduce". 1. Thus the Crown does not oppose the tender of Rodden's statement. The combination of the Crown indicting the other accused jointly with James Crane and at the same time acquiescing in the tender of Rodden's statement creates considerable difficulty for the Court and for the co-accused. 2. The Crown could not tender Rodden's statement in its own case against any of the accused. Parts of it have a tendency to incriminate Rodden, other parts are self-serving. As the statement was induced by a promise from investigating police that "no information given will be used in any criminal proceedings" against the maker, it could not be tendered against Rodden. Parts of the statement tend to incriminate at least Colin Crane and the assailants. The statement could not be tendered by the Crown against those accused over their objection. Both Colin Crane and Symons have objected to at least some of the parts of Rodden's statement that James Crane wishes to tender and they have provided written submissions in support of their respective positions. Their objections are not made globally on the basis of any submission that Rodden does not qualify as an unavailable witness but rather on grounds of relevance, prejudice, second- and third-hand hearsay and that proffering of assumptions and unqualified opinions. 3. If, in the absence of objection by the Crown, I were to admit the statement in James Crane's case, the other accused would be exposed to a risk of prejudice. That would call for a strong direction to the jury that, in considering the Crown's respective cases against each of the other accused, the jury should disregard any parts of Rodden's statement that may appear adverse. The jury would have to be directed to treat those parts of Rodden's statement that tend to incriminate any of the other accused as evidence only in the case against James Crane. 4. Commonly, where the Crown does not object to evidence tendered by an accused, the Court would not intrude to reject that evidence upon a point of admissibility that the Crown has chosen not to rely upon. However, in this case the Crown opposed James Crane's application for a separate trial and I upheld the Crown's election to indict all accused together. In those circumstances, I cannot allow the Crown's acquiescence in the tender by James Crane of evidence that is potentially prejudicial to the others to dictate that the evidence be admitted. In the interests of a fair trial for the co-accused I must examine the admissibility of Rodden's statement, independently of the Crown's stance, according to my interpretation of the Evidence Act.