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Court of Criminal Appeal 18 June 2025

Crane v R

[2025] NSWCCA 93

Assault & violenceHomicide
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CIRCUMSTANTIAL CROWN CASE WHERE THE APPEALS OF THE CO

Citation: Crane v R [2025] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 18 June 2025
Judges: Harrison CJ at CL, Yehia J, Chen J

Background

In April 2017, a man was savagely beaten at a service station at Peats Ridge, NSW. He died in June 2017 from the brain injuries he sustained. Four individuals were identified as the direct assailants. Three others, including the applicant, were charged with murder on the basis of their alleged roles in organising or facilitating the assault.

The applicant was not present at the service station during the assault. The Crown alleged he was an accessory before the fact to murder, meaning it argued he had procured the attack by making arrangements with co-accused for the deceased to be brought to the service station and seriously assaulted. The Crown's case relied on call charge records showing phone communications between the applicant and some co-accused, and evidence that the applicant attended a meeting at a KFC restaurant with some co-accused before the assault.

The applicant was convicted by a jury in July 2022 following a joint trial with six co-accused. He sought leave to appeal on a single ground: that the verdict was unreasonable and unsupported by the evidence. Notably, the convictions of each of the other co-accused had already been quashed by the Court of Criminal Appeal in earlier proceedings.

  • Whether the jury's verdict of guilty was unreasonable and unable to be supported having regard to the evidence.
  • Whether, on the wholly circumstantial Crown case, it was open for the jury to be satisfied beyond reasonable doubt that the applicant procured the assault.
  • Whether the Crown could exclude reasonable possibilities, consistent with the applicant's innocence, arising from limited (and in some instances absent) evidence of the content of communications between the applicant and co-accused.
  • Whether the Crown could prove that the applicant knew the assailants intended to inflict really serious injury on the deceased, as required for accessorial liability.

Decision

The Court unanimously held that the jury's verdict was unreasonable. Chen J delivered the principal judgment, with Harrison CJ at CL and Yehia J each agreeing in separate short judgments. The Court granted leave to appeal, quashed the conviction, and entered a verdict of acquittal.

On the central issue of procurement, the Court found the Crown could not establish that the only rational inference from the phone communications and KFC meeting was that the applicant directed the assailants to seriously harm the deceased. The evidence of what was actually said or communicated was very limited, and in some instances entirely absent. As a result, other reasonable possibilities remained available, including that the applicant's involvement was consistent with neutrality rather than with organising the assault.

Harrison CJ at CL observed that even accepting the applicant's brother may have had a motive to harm the deceased, the applicant's phone activity was equally consistent with him being a neutral party to his brother's affairs. Because a reasonably possible innocent explanation was not excluded by the Crown, the jury could not have been satisfied of guilt beyond reasonable doubt.

The Court also found the Crown could not prove the applicant knew that any of the assailants intended to inflict really serious injury on the deceased. There was no evidence that the assailants held that intent at the time they met with the applicant, let alone that the applicant was aware of it. Without that knowledge, the necessary mental element for accessorial liability did not arise. The Crown's alternative submissions, that the Court could substitute a manslaughter verdict or order a new trial, were rejected, as the findings went to the fundamental sufficiency of the evidence.

Orders Made

  • Time for filing the notice of appeal extended to 7 January 2025.
  • Leave to appeal granted.
  • Verdict of guilty of murder quashed.
  • Verdict of acquittal entered.

Key Takeaways

  • A conviction for murder as an accessory before the fact requires, among other things, proof that the accused knew the principal offenders intended to inflict really serious injury. Where that knowledge cannot be established from the evidence, the mental element for accessorial liability is not made out.
  • In a wholly circumstantial case, the Crown must be able to point to evidence that excludes reasonable possibilities consistent with the accused's innocence. Where the content of alleged communications is unknown or very limited, courts cannot simply infer the most adverse interpretation.
  • The Court of Criminal Appeal confirmed that where call charge records show only that communications occurred, without evidence of what was communicated, the inference that those calls carried criminal instructions is not the only rational inference available.
  • Refusing the Crown's invitation to substitute a manslaughter verdict or order a retrial, the Court found that its conclusions about the insufficiency of the evidence left no available basis for either course.
  • This decision is the final in a series of related appeals (see Robertson v R [2024] NSWCCA 99; Crane v R [2024] NSWCCA 112; Symons v R; McDonald v R [2024] NSWCCA 212) in which the Court of Criminal Appeal quashed the convictions of all co-accused arising from this joint trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 7(2), 8

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- R v Keenan (2009) 236 CLR 397; [2009] HCA 1
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
- Stokes v The Queen (1990) 51 A Crim R 25
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
- Lane v R [2013] NSWCCA 317; 241 A Crim R 321
- Quinn v R [2023] NSWCCA 229
- Robertson v R [2024] NSWCCA 99
- Crane v R [2024] NSWCCA 112
- Symons v R; McDonald v R [2024] NSWCCA 212
- Jones v Great Western Railway Co (1930) 47 TLR 39
- Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152