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Court of Criminal Appeal 3 July 2024

Crane v R

[2024] NSWCCA 112

Homicide
CRIME APPEAL APPEAL AGAINST CONVICTION UNREASONABLE VERDICT MURDER ACCESSORY BEFORE THE FACT

Citation: Crane v R [2024] NSWCCA 112
Court: Court of Criminal Appeal, NSW
Date: 3 July 2024
Judge(s): Harrison CJ at CL; Cavanagh J; Dhanji J

Background

The applicant was convicted of murder as an accessory before the fact following a trial in the NSW Supreme Court. The Crown alleged he procured a violent assault on the deceased at a petrol station in April 2017, intending that at least really serious injury would be inflicted. The applicant's alleged motive was animosity arising from earlier confrontations and threats made by the deceased toward him and his family.

The assault was carried out by four men who drove to the location where the deceased had been directed. The deceased died as a result. The applicant and his brother were not present at the scene but were convicted of murder on the basis that they had arranged the attack. The applicant was sentenced to 16 years' imprisonment with a non-parole period of 10 years and 9 months.

On appeal, the applicant argued that the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the verdict against the applicant was unreasonable and unable to be supported having regard to the evidence, under the applicable test from M v The Queen and Pell v The Queen
  • Whether the Crown had proved beyond reasonable doubt that the applicant committed either of the two particularised acts of assistance and encouragement relied on as the basis for accessory liability
  • Whether, if the particulars were not made out, the jury should have been directed to consider manslaughter as an alternative verdict

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the murder conviction and entering a verdict of acquittal. All three judges agreed in the result, with Dhanji J delivering the principal judgment and Harrison CJ at CL and Cavanagh J each adding reasons.

Jury advantage and the circumstantial case. The court applied the principle from M v The Queen that an appeal against an unreasonable verdict must be allowed unless the jury's advantage in seeing and hearing the evidence could resolve the appellate court's doubt. Here, the jury's advantage was assessed as slight. The Crown's case rested entirely on circumstantial evidence and did not turn on contested witness credibility or the interpretation of ambiguous spoken words. The appellate court was therefore in substantially the same position as the jury when evaluating the evidence.

Capacity of the evidence to prove the particularised acts. The trial directions required the jury to be satisfied beyond reasonable doubt that the applicant had informed either his brother or one of the assailants that he wanted the deceased assaulted with really serious injury caused. The communications between the applicant and others demonstrated his interest in the deceased's whereabouts and an awareness that others had been recruited, but there was no evidence of the actual content of those conversations. No text messages, recorded voice messages, or witness accounts captured what the applicant said. The Crown argued that the ferocity and immediacy of the assault permitted the inference that a plan to inflict grievous bodily harm had been formed before the assailants arrived. The court accepted there was force in that argument but found a significant difficulty remained: none of the assailants had armed themselves, despite knowing the deceased had a history of owning firearms. The fact the assault occurred in a location likely monitored by CCTV was also noted as inconsistent with a pre-formed plan to cause really serious injury. An equally available inference was that the assailants attended intending only to deliver a beating, without instructions to cause really serious harm.

Doubt and acquittal. The court concluded it could not be satisfied of either particularised act beyond reasonable doubt. The doubt was not resolved by any relevant advantage held by the jury. On the alternative verdict issue, the Crown had maintained before both the trial judge and the Court of Criminal Appeal that manslaughter should not have been left to the jury in the event the particulars were not proved. Given that position, the court declined to order a new trial and instead entered a verdict of acquittal.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Verdict of guilty of murder quashed
  • Verdict of acquittal entered on the murder charge

Key Takeaways

  • An appellate court's obligation to defer to the jury's advantage is reduced where the Crown's case is wholly circumstantial and does not depend on contested witness credibility or the interpretation of ambiguous spoken words.
  • Accessory before the fact liability, where particularised by the Crown as requiring proof of specific communications, demands proof beyond reasonable doubt of the actual content of those communications, not merely that communications occurred.
  • The absence of direct evidence of what the applicant said to the alleged principals created an inference gap the circumstantial setting alone could not bridge, particularly where an alternative, innocent inference remained reasonably open.
  • Where an equally available inference consistent with innocence exists alongside an inculpatory one, the Crown has not discharged its burden of excluding that innocent inference beyond reasonable doubt.
  • The Court of Criminal Appeal confirmed that where the Crown did not seek to preserve the option of a manslaughter conviction, and where the evidence did not support the particularised murder charge, an outright acquittal rather than a retrial was the appropriate remedy.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 163
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123
- Coughlan v The Queen (2020) 267 CLR 654
- Dansie v The Queen (2022) 274 CLR 651
- Miller v The Queen (2016) 259 CLR 380
- Giorgianni v The Queen (1985) 156 CLR 473
- Sio v The Queen (2016) 259 CLR 47
- AJS v The Queen (2007) 235 CLR 505
- R v Murrell [2001] NSWCCA 179
- The Queen v Baden-Clay (2016) 258 CLR 308
- Shepherd v The Queen (1990) 170 CLR 573
- Gerakiteys v The Queen (1984) 153 CLR 317