Crane v R

1. [1]

   HARRISON CJ at CL: I have had the advantage of reading in draft the judgment of Chen J. I agree with his Honour’s analysis and with his conclusions. In particular, having reviewed the evidence in the trial, I am satisfied that the jury’s verdict was unreasonable and cannot be supported having regard to the evidence.

2. [2]

   The facts of this case, which his Honour has reviewed in commendable detail, concern a brutal and violent assault upon Clint Starkey that ultimately caused his death. The assault is distressingly recorded upon CCTV footage that became an exhibit at the trial. Mr Starkey was set upon by a number of assailants whose identity is not in issue. For present purposes it is sufficient to note that the applicant was not one of them.

3. [3]

   The applicant stood trial upon the basis that he was an accessory before the fact to Mr Starkey’s murder. The case against him was wholly circumstantial. The Crown alleged that he was instrumental in procuring the assailants physically to attack Mr Starkey, even though he was not present when the assaults occurred. The Crown relied upon the fact that the applicant made or received telephone calls or text messages in the period both before and following the assault, from the timing of which it could be inferred that he was instrumental in organising at least the infliction of very serious injury. It was the Crown case that the inference was the only rational inference that was available in the circumstances and that it supported a finding of the applicant’s guilt beyond reasonable doubt.

4. [4]

   As Chen J has discussed at length, there were several possible reasons why the applicant was communicating by phone or text with people around the time of the fatal events. Even though the applicant’s brother may arguably have had a strong motive to harm Mr Starkey in some way, so that the filial relationship between them amounted to a circumstance to which the jury might have had regard, for all anyone could tell from the state of the evidence, the applicant’s involvement was as consistent with neutrality concerning his brother’s plight as with a role in organising the assaults. It is simply not possible to know.

5. [5]

   Accordingly, for as long as there existed a reasonably possible but innocent explanation for the applicant’s activities which the Crown failed to exclude, the jury could not have been satisfied of his guilt beyond reasonable doubt. The fundamental issue was whether the circumstantial evidence marshalled by the Crown sufficed to support the inference that the applicant gave Mr Robertson and/or Mr McDonough a direction that Mr Starkey was to be seriously assaulted and that such inference was the only rational inference available. Alike with Chen J, I do not consider that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant committed the act of procurement as alleged.

6. [6]

   YEHIA J: I have had the significant advantage of reading the draft judgment of Chen J. His Honour has summarised the evidence and conducted a comprehensive analysis with which I entirely agree. The circumstantial case relied on by the Crown was not sufficient to establish, as the only rational inference, that the applicant procured the assault of the deceased, let alone an assault intended to cause to the deceased really serious harm. Having conducted an independent assessment of the sufficiency of the evidence I have determined that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. I agree with the orders proposed by Chen J.

7. [7]

   CHEN J: Clint Starkey (‘the deceased’) died on 12 June 2017 having succumbed to serious brain injuries inflicted upon him on the evening of 5 April 2017, when he was savagely beaten in the forecourt of the Caltex service station (‘the service station’) at Peats Ridge, NSW.

8. [8]

   James Crane (‘the applicant’) was one of seven individuals charged with the deceased’s murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It was alleged that he was an accessory before the fact to that murder. He was convicted at trial and, by this appeal, challenges the jury’s verdict as being unreasonable.

Introduction: the trial, procedural history and subsequent appeals

1. [9]

   Guy Robertson, Beau McDonald, Adam Symons and Jake McDonough were described by the Crown at trial as the four “alleged assailants” who were said to have punched, kicked and stomped on the deceased and caused his catastrophic injuries. It is convenient to adopt that description of them in these reasons.

2. [10]

   Simon Rodden was charged for having allegedly formed a joint criminal enterprise (‘JCE’) with the assailants at the service station, which he had driven the deceased to in the minutes before the attack. Mr Rodden remained at the service station during the attack and drove the deceased to Gosford Hospital (‘the Hospital’) thereafter, albeit following some delay.

3. [11]

   Colin Crane (‘Mr Crane’), who is the brother of the applicant, was also alleged to be liable for the murder of the deceased as an accessory before the fact.

4. [12]

   The jury trial for all seven individuals – who each entered pleas of not guilty –commenced before Fagan J on 23 May 2022. The jury returned its verdicts on 29 July 2022. Three of the “alleged assailants” – Mr Robertson, Mr McDonald and Mr Symons – were found guilty of murder. Mr McDonough was found guilty of manslaughter. Mr Rodden was found not guilty of murder. Mr Crane and the applicant were found guilty of being accessories before the fact to murder.

5. [13]

   These verdicts resulted in appeals to this Court by Mr Crane, Mr Robertson, Mr McDonald and Mr Symons. Each appeal has been allowed:

   1. (1)

      On 3 July 2024, this Court quashed the convictions of Mr Robertson (Robertson v R [2024] NSWCCA 99 (‘Robertson’)) and Mr Crane (Crane v R [2024] NSWCCA 112 (‘Crane’)). In respect of Mr Robertson, the Court held that he suffered a miscarriage of justice by the failure of the trial judge to direct the jury as to the alternative verdict of manslaughter on the basis of “excessive self-defence” pursuant to s 421 of the Crimes Act, and ordered a new trial. In respect of Mr Crane, the Court held that his conviction was unreasonable, and a verdict of acquittal was entered.

   2. (2)

      On 29 November 2024, this Court also quashed the convictions of Mr Symons and Mr McDonald (Symons v R; McDonald v R [2024] NSWCCA 212 (‘Symons’)) and ordered a new trial, the Crown having conceded that, “given the earlier decision in Robertson it…[was] open to this Court to find that there has been a miscarriage of justice which affected the convictions of the two applicants” (Symons at [44]). The Court additionally held that each applicant suffered a miscarriage of justice by the failure of the trial judge to direct the jury as to the alternative verdict of manslaughter on the basis of “excessive self-defence” pursuant to s 421 of the Crimes Act (Symons at [45]).

6. [14]

   It is against this background, and by notice of appeal filed 6 January 2025, that the applicant – who is currently on parole, having been sentenced to a term of imprisonment for 6 years (commencing 28 January 2020) with a non-parole period of 4 years – also appeals against his conviction. He raises a single ground of appeal; namely, that the “verdict is unreasonable and unable to be supported, having regard to the evidence”. That ground requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

7. [15]

   As the appeal is out of time, the applicant applies for an extension of time and relies upon the affidavit of solicitor Damien Mahon in doing so. Mr Mahon gave evidence that he enquired about Legal Aid funding for this appeal shortly after the acquittal of Mr Crane and relatively expeditiously requested and briefed a Public Defender once that funding was approved. Further, whilst not determinative, an extension of time was granted for each of the appeals for the co-accused even where, in the case of Mr Symons, the explanation for the delay was “thin, unsupported by evidence and rather unsatisfactory” (Symons at [36]). The Crown did not expressly oppose such an order being made in its written or oral submissions.

8. [16]

   Given the above, an order extending time should be made. It should also be made because it is, in my view, in the interests of the proper administration of justice that the applicant’s conviction be reviewed by this Court in circumstances where the conviction of Mr Crane – which relied upon substantially similar evidence to that against the applicant – has now been quashed and an acquittal entered, on the basis that the jury verdict was unreasonable.

The background facts, evidence and issues at trial

1. [17]

   Given the applicant’s ultimate submission is that the verdict against him is unreasonable, it is helpful to summarise the background facts that give rise to this appeal, and the evidence and issues at trial. Summarising those facts, evidence and issues is aided by a brief introduction to and overview of the Crown cases, and the events and individuals that were argued to have been material to the deceased’s murder.

2. [18]

   In what follows, I will cover the background facts across six parts: first, a brief overview of the facts and Crown case theory against the seven co-accused; secondly, the relevant events on 3 April 2017, particularly the altercation between Mr Crane and the deceased at the Mangrove Mountain General Store (‘the store’) and the attempts by Mr Crane and others to find the deceased later that day; thirdly, the relevant events on 4 April 2017; fourthly, the argument between the deceased and Nicole Tedder (Mr Crane’s domestic partner) at the Mangrove Mountain Memorial Club (‘the club’) on 5 April 2017 and the events that immediately followed; fifthly, the applicant’s whereabouts during the argument in the club and his actions upon being notified of that argument and; sixthly, a brief description of the attack upon the deceased and what occurred afterwards.

3. [19]

   On the afternoon of 3 April 2017, Mr Crane and the deceased had an altercation in the carpark outside the store, whilst Mr Crane’s daughter was with him. Mr Crane knew the deceased as they had been friends for some time, but they had fallen out with one another for reasons that remain unclear. During the altercation, the deceased was described as having reversed his car “in a fashion towards [Mr Crane’s] car without actually ramming it”.

4. [20]

   Later, Mr Crane and others (alleged to have been the applicant, Mr Symons, Mr Robertson, Mr McDonough and Tyrone Berry-Wright) drove to the deceased’s address but could not locate him. Mr Crane advised Ms Tedder about the altercation and described to her certain threats that were made by the deceased.

5. [21]

   On the evening of 5 April 2017, Mr Rodden and the deceased attended the club together. Ms Tedder (who also worked there) confronted the deceased about what had occurred. They began to argue. Luke Cannon (the head chef at the club) observed this argument and contacted Mr Crane, to suggest that he drive to the club and take Ms Tedder home. Mr Crane was unable to do this.

6. [22]

   After Mr Rodden and the deceased eventually left the club, Mr Rodden drove the deceased to the service station and parked near the bowsers. CCTV footage from the service station shows the four assailants arrive in two cars and surround the vehicle shortly afterwards. The deceased was pulled from the vehicle, brutally set upon and seriously injured. The four assailants then departed the scene. Mr Rodden drove the deceased to the Hospital.

7. [23]

   The Crown case was that the attack upon the deceased was perpetrated by the alleged assailants as retribution for the deceased’s conduct towards Mr Crane and Ms Tedder on 3 April 2017 and 5 April 2017, and that Mr Crane and the applicant, in effect, procured that attack, such that they too were responsible for the deceased’s death as accessories.

8. [24]

   Having provided this brief overview, I will now address the background facts and, thereafter, the Crown cases in greater detail.

9. [25]

   On the afternoon of 3 April 2017, an altercation occurred between the deceased and Mr Crane in the carpark outside the store, at about 4:15pm.

10. [26]

    The relationship between Mr Crane and the deceased at that time was described as not “a particularly good one”. Whilst they used to be friends, “they weren’t as friendly in the last few weeks”, for reasons that remain unclear.

11. [27]

    The altercation between the deceased and Mr Crane in the carpark was witnessed, and some of it is captured on CCTV footage.

12. [28]

    Lisa Kerslake, the deceased’s cousin, was shopping for items in the pharmacy, which is located close to the store. She heard:

13. [29]

    Ms Kerslake specifically heard Mr Crane tell the deceased “I’m going to get you, you fucking dog cunt”. She saw that Mr Crane’s vehicle was parked facing the shopping complex and that the deceased’s vehicle was arranged perpendicularly to it.

14. [30]

    Angela Swinnerton, a shop assistant who worked at the store but who was not on shift, had returned to the store to “get mobile reception” that was otherwise unavailable at her house. She saw the deceased revving, accelerating and reversing his car back-and-forth in the direction of Mr Crane’s car “as though he was going to hit it”. Ms Swinnerton also described each of them as “quite angry; they were yelling” and recalled hearing them calling one another a “bitch” but could not otherwise discern what was being said. She noticed that Mr Rodden was a passenger in the deceased’s car. After the altercation, Ms Swinnerton saw both Mr Crane and the deceased drive from the carpark in their vehicles and turn towards and travel down Waratah Road. The deceased lived at an address with his mother and father on Waratah Road (‘the Starkey family home’).

15. [31]

    CCTV cameras from within the store captured footage of some of these interactions and movements. Still photographs taken from that footage were tendered as part of an exhibit at trial.

16. [32]

    Between 4:34pm and 4:45pm, Mr Crane messaged and attempted to call the applicant multiple times. Multiple calls were also exchanged between the co-accused in the hours that followed, particularly between Mr Robertson and Mr McDonough.

17. [33]

    Later that afternoon, David Starkey (the deceased’s father) was at the Starkey family home when he saw three white utility vehicles drive by, with “two males in each one”. Two of the vehicles, which were occupied by people not known to Mr Starkey, pulled over and stopped alongside Waratah Road. One vehicle, however, pulled over to the verge closer to where Mr Starkey was. That vehicle was driven by Mr Crane.

18. [34]

    I pause momentarily in this account. The Crown, in its opening to the jury, submitted that CCTV footage from the store shows that Mr Crane, the applicant, Mr Symons, Mr Robertson, Mr McDonough and Mr Berry-Wright were present there at about 6:00pm. The jury was invited to infer that those who attended the store “were the same men that attended the [Starkey family home]” and did so to “back up and support and assist [Mr Crane] in dealing with this problem with the deceased”. The Crown case was that Mr Crane and these other men went to the Starkey family home “in the very least to intimidate” the deceased, following the earlier altercation.

19. [35]

    I return now to the narrative. Mr Crane then asked Mr Starkey twice from the verge about where the deceased was. Mr Starkey advised him that he did not know, causing Mr Crane to leave. Mr Crane “sort of yelled a bit” when asking the first question and was “a little bit rough but…[not] much different to the way he said it the first time” when asking the second.

20. [36]

    Mr Starkey’s evidence was that this exchange occurred at around 4:00pm in the afternoon, but possibly earlier. The Crown submitted, in its closing submissions, that this time estimate was probably mistaken.

21. [37]

    Mr Starkey later described these events to his wife (and the deceased’s mother), Lorraine Starkey. Ms Starkey gave evidence that she saw three cars return in convoy to Waratah Road and slow down outside the property on an hourly basis that evening, which she thought was “odd” given there was ordinarily little traffic on Waratah Road. She recalled a conversation that she had had with the deceased where he told her about an altercation between he and Mr Crane at the store, and where he told her to tell Mr Crane that he was “gone” should Mr Crane ask for his whereabouts.

22. [38]

    Mr Crane later, in a visibly shaken state, told Ms Tedder about the altercation and said that the deceased was trying to “ram” his car whilst their daughter was in it.

23. [39]

    At 7:42pm, the deceased sent a message to Mr Rodden describing the same altercation, which read:

24. [40]

    Later, the deceased visited Mr Rodden at Mr Rodden’s house. Shaye Kenzig (Mr Rodden’s partner) overheard a conversation between Mr Rodden and the deceased about the altercation at the store. She heard Mr Rodden “getting annoyed at [the deceased] for causing an argument in front of the” store and the deceased replying, jokingly, that it “wasn’t an argument”.

25. [41]

    On 4 April 2017, Kim Gane (the deceased’s aunt and an employee at the store) was working at the store. Ms Gane recalled Ms Swinnerton speaking with her about an argument that occurred between Mr Crane and the deceased that she had witnessed the day prior. Ms Gane subsequently mentioned the altercation to Mr Crane when he arrived at the store later that day and was “a hundred percent” sure that she heard Mr Crane tell her that “he was going to fucken kill [the deceased]”.

26. [42]

    Mr Crane also provided Ms Tedder with further details about the altercation. Mr Crane disclosed to her that the deceased had threatened to “shoot up the house with…[her] and the kids in it”.

27. [43]

    Messages and calls were also exchanged between the applicant and Mr Rodden (see [150]ff, below).

28. [44]

    On the morning and in the early afternoon of 5 April 2017, numerous calls and messages were exchanged between Mr Crane and the applicant and, separately, some of the co-accused.

29. [45]

    Sometime around 8:30pm, Mr Rodden communicated to Ms Kenzig that “he had to go out” and “see the boys”, and that “he had to take the kid but didn’t want to”. Mr Rodden and Ms Kenzig referred to the deceased by the nickname “the kid”. Mr Rodden drove the deceased to the club in Ms Kenzig’s black Ford Territory (NSW registration: BCW-53V). It is convenient to refer to this vehicle as ‘Mr Rodden’s vehicle’, despite it not being owned by him. Mr Cannon was working alongside his colleagues – Ms Tedder, Erin Roper, Michelle Behan and Jordan Lambert – at the club this evening. Mr Cannon observed the deceased and Mr Rodden (who Mr Cannon did not know at the time) attend the club. CCTV footage shows them both arrive at 9:16pm.

30. [46]

    Mr Cannon told Ms Tedder that the deceased was looking for her. Ms Tedder subsequently told Mr Cannon not to answer the phone if Mr Crane rang the club. This instruction was because Mr Crane rang the club “quite frequently” to see what time Ms Tedder would be home following her shift, and because Ms Tedder did not want Mr Crane to find out that the deceased was at the club. Ms Tedder wanted to speak with the deceased so that she had:

31. [47]

    At about 9:17pm, Ms Tedder approached the deceased and spoke with him. She asked him if the threats were true. The deceased responded “Yeah” and went on to say:

32. [48]

    Ms Roper heard a “little bit” of this conversation, including Mr Starkey’s threats.

33. [49]

    Ms Tedder continued to try to prompt the deceased for an apology, but he continued to keep “big noting himself” and was abusive. The deceased and Ms Tedder began to exchange reciprocal insults. Mr Cannon observed this argument from afar but could not hear the precise words that were being said. Ms Tedder appeared “very red in the face and seemed flustered and stressed”. The argument ended when Ms Tedder “just walked off”.

34. [50]

    At 9:22pm, Mr Cannon went to the carpark to retrieve Ms Tedder’s phone from her car. Mr Cannon called Mr Crane on Ms Tedder’s phone at 9:25pm and asked for him to come to the club to “calm [Ms Tedder] down” and to “take her home if she wouldn’t go home”. He did not tell Ms Tedder that he intended to make this call.

35. [51]

    Mr Crane advised Mr Cannon that he was unable to attend the club because he had “the kids at home and…[Ms Tedder] ha[d] the car seats in the car”. Mr Cannon returned Ms Tedder’s phone to her at 9:26pm upon re-entering the club, and whilst still connected to the call with Mr Crane. Ms Tedder asked Mr Cannon why he had called Mr Crane when she had asked him not to: “what the fuck did you do that for?”

36. [52]

    Mr Crane called the applicant at 9:27pm, and spoke with him until 9.29pm. This call, and what was allegedly conveyed by Mr Crane to the applicant during it, was relied upon by the Crown as an act of procurement against Mr Crane. The Crown alleged that Mr Crane advised the applicant that the deceased had argued and upset Ms Tedder and that he wanted the deceased “assaulted and really serious injury caused to him” (Mr Crane’s procurement particular (a)).

37. [53]

    Following the argument, Ms Tedder asked Ms Behan to monitor the live CCTV feed as she was concerned that the deceased might damage her new car in the carpark. Ms Behan offered Ms Tedder accommodation at her home for the night, but Ms Tedder said that there was “no threat” and that Mr Crane and the deceased “were going to talk it out”. Ms Roper similarly offered Ms Tedder accommodation.

38. [54]

    Ms Tedder then received a call for her on the club’s landline from Mr Crane at 9:31pm. Ms Behan passed the phone to her. Mr Crane asked Ms Tedder “what’s going on?” and questioned “[a]re you up there arguing with [the deceased]?” Ms Tedder responded “no”, to prevent Mr Crane from worrying. Mr Crane then proposed to drive to the club to collect Ms Tedder by putting the children in the front of his utility without baby seats, however, Ms Tedder firmly disagreed and said that she would be “home soon”.

39. [55]

    Meanwhile, Mr Cannon had received a phone call from the applicant on a cordless phone in the club at 9:32pm. The applicant identified himself (“[i]t’s James”) and asked “what’s happening up there?” Mr Cannon replied “[Ms Tedder]’s having an argument with [the deceased]”. The applicant subsequently asked Mr Cannon who the deceased was with. As Mr Cannon did not then know Mr Rodden, he described Mr Rodden’s appearance to the applicant. The applicant asked Mr Cannon to put Ms Tedder on the phone.

40. [56]

    Mr Cannon gave the cordless phone to Ms Tedder at 9:32pm whilst she was still on the landline to Mr Crane. CCTV footage shows Ms Tedder holding both phones at once. Ms Tedder did not recognise the voice of the applicant. The conversation went as follows:

41. [57]

    Ms Tedder passed the cordless phone to Mr Rodden at 9:33pm and continued conversing on the landline with Mr Crane before, ultimately, ending the phone call. Ms Lambert observed Mr Rodden with “one hand presumably on the phone and the other hand gesticulating from time to time”.

42. [58]

    The phone call between the applicant and Mr Rodden, which went for around 6 minutes (‘the 6-minute call’), occurred fairly promptly after Mr Crane had spoken with the applicant between 9:29pm and 9:32pm. This call, and what was allegedly conveyed by the applicant to Mr Rodden during it, was an act of procurement relied upon by the Crown against the applicant. The Crown alleged that the applicant spoke with Mr Rodden at this time and arranged with him “to take [the deceased] to a place so that [the deceased] could be assaulted and really serious injury caused to him” (applicant’s procurement particular (a)). The Crown alleged that this arrangement was the first act of procurement by the applicant.

43. [59]

    From 9:29pm, Mr Crane began to message and call the applicant. Ms Tedder also began speaking to Mr Rodden in-person at 9:39pm, whom she had never spoken to before. Mr Rodden tried to assure Ms Tedder that he disagreed with what the deceased had said and that the deceased was “off his head”.

44. [60]

    The applicant spoke to Mr Crane on the phone for 66 seconds at 9:40pm. This call, and what was allegedly conveyed by the applicant to Mr Crane during it, was a further act of procurement relied upon by the Crown against the applicant. The Crown alleged that the applicant “informed” Mr Crane that “he had made arrangements with” Mr Rodden for the deceased “to be taken to a location in order that [the deceased] could be assaulted and really serious injury caused to him” (procurement particular (b)). The Crown alleged that providing this information was the second act of procurement by the applicant.

45. [61]

    At 9:41pm, Mr McDonald called Mr Robertson.

46. [62]

    At 9:42pm, Ms Tedder had another brief conversation with the deceased where he told her that he “would never hurt [her] or the kids” but also that:

47. [63]

    Mr Cannon advised Ms Tedder that he would follow her home to ensure that she arrived safely. Mr Cannon asked Ms Roper to text him if and when the deceased and Mr Rodden left, to ensure that he and Ms Tedder were not being followed home.

48. [64]

    At 9:48pm, Ms Tedder left work. Mr Cannon followed her in his vehicle. Mr Crane tried to call Ms Tedder at 9:50pm and again called the club at 9:51pm. Ms Tedder called and messaged Mr Crane between 9:51pm and 9:52pm.

49. [65]

    At 9:53pm, Mr Rodden and the deceased exited the club. Mr Rodden sent a message to the applicant at 9:54pm, which read “going to servo now with child”.

50. [66]

    Between 9:51pm and 10:01pm, Mr Cannon and Ms Roper began to message and call each other. During that contact, Ms Roper told Mr Cannon that the deceased “had left the club”.

51. [67]

    When Mr Cannon arrived at Ms Tedder’s home, he spoke to Mr Crane and told him that he had been advised that the deceased and Mr Rodden were no longer at the club, but that he did not know where they had gone. Mr Crane told Mr Cannon “I’m going to go fucking find him and kill him”.

52. [68]

    Mr Crane told Ms Tedder to take her and the kids to her mother’s house in Wyoming because he was “fucking going to go to the club”. She did. Mr Crane then got into his car and drove ahead of Mr Cannon back to the club but stopped and turned his car around about halfway up the driveway to the club, and left. When Ms Tedder arrived at her mother’s house, Mr Crane “was already parked out the front”.

53. [69]

    Mr Cannon returned to the club at 10:22pm and spoke with Ms Roper, who told him that “two guys [had] turned up at the club looking for” Ms Tedder, but that they were no longer there. These two men were Mark Gilligan Senior and Joel Mackay. CCTV shows them arrive at 9:55pm and depart at 9:56pm. Ms Behan was working in the service area at the time and had not seen them before, nor had Ms Lambert or Ms Roper.

54. [70]

    Those two individuals returned shortly after, and Mr Cannon met them at the front of the club. One of them asked him where the deceased was but then appeared to read something from his phone, turn to the second individual and say: “We’ve got to go, they’ve found him”. Neither party relied upon the presence of these men as being necessarily supportive of, or detracting from, one or other of the particularised acts. At trial, the Crown did not allege that the applicant arranged for Mr Gilligan or Mr Mackay to attend. To the extent that the call charge records throw light on who did, the evidence is somewhat limited: at 9:57pm Mr McDonald made an 8-second call to Mr McKay and, at 10:03pm, Mr Crane attempted to make phone contact with Mr Gilligan which was likely to have been unsuccessful given the call is recorded as lasting for one second.

55. [71]

    The applicant was said to have been at the Woy Woy KFC (‘the KFC’) when he was making and receiving the abovementioned calls and messages, as he had left Leanne Blackett’s (the applicant’s partner) home to get her a burger and his phone signal was detected in the vicinity of a signal tower in the nearby suburb of Blackwall (see outbound phone call at 21:32:28). The applicant made a further call to Ms Blackett at 9:43pm in the vicinity of the Koolewong tower (see outbound call at 21:43:07) to confirm her choice of burger. Blackwall and Koolewong are close to Woy Woy.

56. [72]

    It was also alleged that some of the co-accused, namely Mr Robertson and Mr McDonough, were at the KFC at about the same time as the applicant. At 9:40pm, CCTV footage shows a silver Holden Calais (‘the Calais’) registered to Mr Robertson depart the KFC drive-thru and turn into the KFC carpark. A KFC receipt printed at 9:34pm was found in the Calais when it was later searched by police.

57. [73]

    Whilst this CCTV footage shows the Calais at the KFC, there is no CCTV footage showing Mr Robertson or Mr McDonough in that vehicle or elsewhere within the KFC. There is also no CCTV footage that shows the applicant being there.

58. [74]

    Notwithstanding, it was alleged that, between 9:27pm and 9:54pm, the applicant “directly or indirectly” informed one or more of the alleged assailants that the deceased “was at Mangrove Mountain” and that he was “to be assaulted and really serious injury caused to him” (procurement particular (c)). The Crown alleged that providing this information, or giving this direction, was the third act of procurement by the applicant.

59. [75]

    At 9:41pm, Beau McDonald called Guy Robertson. Call records indicate that the “caller location” was in the vicinity of Umina and that the “receiver location” was in the vicinity of the Koolewong tower.

60. [76]

    At 9:45pm, Mr Symons’ mobile was also detected as receiving a call on the Blackwall tower, suggesting that it (and he) was in the vicinity of the applicant.

61. [77]

    At 9:55pm, Sophie Boucher, an employee at the service station, received a call from Mr Rodden asking her to keep the store open slightly later than the usual 10:00pm closing time, as Mr Rodden wanted to get fuel or cigarettes. Mr Rodden arrived at the service station at about 9:58pm with the deceased in his car as a passenger.

62. [78]

    Mr Rodden and the deceased entered the service station and “grabbed a couple of bags of chips and a drink, and just basic products sort of a thing” and were “kind of wandering around shopping after they got in”. Ms Boucher began to hurry them out of the service station and returned to her car. Mr Rodden’s vehicle remained in the bowser area.

63. [79]

    At 10:00pm and 10:01pm, the applicant made two phone calls to Mr Crane (34 seconds and 22 seconds in duration respectively). The Crown alleged that the applicant “informed” Mr Crane on these occasions that the deceased had been taken to the service station by Mr Rodden and that Mr Symons and others “were on their way to Mangrove Mountain to assault [the deceased] and cause him really serious injury” (procurement particular (d)). This alleged contact with Mr Crane was relied upon by the Crown as the fourth act of procurement against the applicant.

64. [80]

    At 10:04pm, Mr Crane called Mr Symons (32 seconds in duration) and allegedly informed him that the deceased was at the service station so that Mr Symons and others “could assault [the deceased] and cause him really serious injury” (Mr Crane procurement particular (b)). This alleged contact with Mr Symons was relied upon by the Crown as the second act of procurement against Mr Crane.

65. [81]

    The applicant also received a phone call from Aaron Crane (his son) “after 10pm”, whilst he was at Ms Blackett’s home. The applicant said words to the effect of “shits (sic) happening just got to go”, before leaving with Ms Blackett’s daughter, Chez Blackett, to drop her at her then boyfriend’s home in Woy Woy. Ms Blackett understood that the applicant would return to his home afterwards, which was at the rear of the service station.

66. [82]

    As Ms Boucher drove away from the store, she saw “that there was (sic) some headlights pulled up at the bowsers”.

67. [83]

    At 10:06 pm, CCTV footage shows a red Holden Commodore sedan (NSW registration: CBB-20L; ‘the Commodore’) and the Calais (NSW registration: ZFA-855) travel along Peats Ridge Road and pull into the service station. Mr Rodden attempted to drive away from the bowsers at 10:07:10pm but the Commodore was repositioned to block his vehicle in. Mr Symons’ evidence was that he was driving the Commodore, with Mr McDonald as a passenger, and that Mr Robertson was driving the Calais, with Mr McDonough as a passenger.

68. [84]

    The deceased was forcibly removed from the passenger seat of Mr Rodden’s vehicle at 10:07:22pm and was surrounded and viciously assaulted by the four men. The deceased is visible in CCTV footage on the ground. The Commodore, Calais and four men departed the service station at 10:08pm.

69. [85]

    Between 10:09pm and 10:14pm, Mr McDonald, Mr Robertson, Mr McDonough and Mr Symons attempted to or did make phone calls with other parties. Mr Crane messaged and called Ms Tedder at 10:12pm.

70. [86]

    At 10:16pm, the applicant received a further call from Mr Rodden (19 seconds in duration) and, at 10:20pm, a text message that read:

71. [87]

    At 10:27pm, Mr McDonald attempted to call Mr Robertson. The applicant called Mr Rodden at 10:28pm (46 seconds duration) and Mr Rodden called the applicant at 10:29pm (80 seconds duration).

72. [88]

    At 10:36pm, Mr Rodden began to clean the forecourt of the service station using water from a watering can. Danny Bron and Jason O’Callaghan, who also lived behind the service station, continued cleaning from 10:37pm.

73. [89]

    At 10:39pm, Ms Kenzig received a call from Mr Rodden. Mr Rodden was “frantic” and “crying” and described that the deceased had been “ripped” from the car so hard that “he left a shoe in the floor of the passenger side of my car” (this shoe was later found by Ms Kenzig in her car when it was returned to her). Mr Rodden described being held at knifepoint by a “giant of a man” to prevent him from intervening and indicated that the deceased was “unrecognisable” and “dying”. Mr Rodden told Ms Kenzig that the deceased was on the backseat of the car and that he was driving to the Hospital.

74. [90]

    At about 11:00pm, the applicant, Aaron Crane and Mr Bron arrived at the applicant’s home at the rear of the service station. Between 11:01pm and 11:02pm, those three and Mr O’Callaghan approached the service station forecourt and are shown on CCTV footage standing near the wet patch where the assault occurred. They returned to their homes at 11:03pm.

75. [91]

    Steven Petersen, a friend of Mr Rodden’s, met Mr Rodden at the hospital after receiving a call from him. Mr Rodden told Mr Petersen “I found [the deceased], he’s been bashed”. Mr Petersen observed that the deceased’s:

76. [92]

    Mr Petersen spoke with a nurse in the emergency department. The deceased was removed from Mr Rodden’s car and was taken into the hospital at 11:15pm.

77. [93]

    At 11:33pm, the applicant met Mr Rodden at the McDonald’s at West Gosford and had a conversation with him on the grass verge. The applicant and Mr Rodden both left at about 11:53pm.

78. [94]

    Dr David York, an emergency specialist at the hospital, examined the deceased upon his arrival and identified a “serious brain injury with haemorrhage and clot collection” and a “small skull fracture over the left temple area”.

79. [95]

    Dr Allan Cala, a forensic pathologist, performed an autopsy on the deceased and again identified the deceased as suffering from a serious haemorrhage caused by a blunt force injury.

80. [96]

    On 6 April 2017, the applicant attended the store. CCTV footage shows him raise his hands above his head upon entering.

81. [97]

    Ms Gane was working at the store on this day. When the applicant entered the store she said: “Your brother is a dog”. The applicant responded: “I think he should have died” or “he should have been dead”. Her evidence was that the applicant also said: “[the deceased] went up and harassed [Ms Tedder] up at the club”.

82. [98]

    Ms Swinnerton also recalled an instance where Mr Crane attended the store, approached her at the coffee machine, “waved his arms around and said, ‘I didn’t do it’”. Ms Swinnerton was unable to say whether his arms were raised any further than above his shoulders. Ms Swinnerton believed that this occurred on 6 April 2017, however, the Crown accepted that this date could not have been accurate given Mr Crane is not depicted in the store in any CCTV footage from that day.

83. [99]

    I now turn to outline the Crown cases against each of the accused.

The Crown cases

1. [100]

   The Crown case was that the altercation between the deceased and Mr Crane in the carpark of the store on 3 April 2017, in combination with the argument between the deceased and Ms Tedder in the club on 5 April 2017, set in “train a series of events that would ultimately lead to” the death of the deceased.

2. [101]

   The Crown’s basic case theory was that, in and by these events, the deceased “aggravated” Mr Crane and that he and the applicant then “by certain acts procured [and] brought about a very serious assault of [the deceased] by enlisting their associates and Mr Rodden’s help”, to get back at him and to “teach him a lesson”.

3. [102]

   The Crown’s explanation for the involvement of the alleged assailants in this agreement was that they were all (except Mr Rodden) part of “a friendship group that regularly socialised together”. The Crown conceded, though, that some were “certainly closer than others”.

4. [103]

   In relation to Mr Rodden, the Crown argued that his involvement arose because he was friends with the applicant and, importantly, was good friends with the deceased. The closeness of that relationship was argued by the Crown to be “an important aspect of [the] trial, because it was by means of that close relationship that [the applicant] was able to arrange for Mr Rodden to bring” the deceased to the service station.

5. [104]

   During the trial, the Crown provided particulars of the acts said to support the finding of accessorial liability against Mr Crane and the applicant. These particulars were included in the directions given to the jury by the trial judge and were also provided to them in written directions as part of a “question trail”, to assist the jury in arriving at its verdicts (‘the question trail’).

6. [105]

   The particulars of the accessorial acts alleged against the applicant – and the evidence argued to support one or more of those acts being established beyond reasonable doubt – are at the forefront of this appeal. That is, the applicant argues that it was not open for the jury to find beyond reasonable doubt that any of the particulars were established to the required criminal standard. The Crown acknowledged that some particulars were stronger than others but submitted that there was evidence available to satisfactorily prove the applicant’s guilt and that, therefore, the jury’s verdict could not be considered unreasonable.

7. [106]

   Given the allegations against the applicant unavoidably overlapped and intertwined with the allegations against some of the other co-accused – particularly Mr Crane and Mr Rodden – it is also necessary to consider the allegations against them.

8. [107]

   The Crown case against the alleged assailants was that each of them were party to a JCE wherein it was agreed that the deceased was to be assaulted, such that serious injury would be occasioned to him, and “that they drove up there to Mangrove Mountain that night to carry that out”.

9. [108]

   That agreement was allegedly formed to exact retribution for the altercation and argument on 3 April 2017 and 5 April 2017 respectively; that is, “as payback” for the deceased’s behaviour toward Mr Crane and his family. The agreement is reflected in the question trail for each alleged assailant (questions 2(a) and (b), MFI 31). It was allegedly reached before the assailants commenced “driving up there to Mangrove Mountain” but, alternatively, “in the very least…before [the deceased] was ripped out of [the] car”.

10. [109]

    The acts that were alleged to have been committed in furtherance of the agreement were identified in the question trail as – at the time the deceased was assaulted – the alleged assailants attending the scene and assaulting the deceased “in furtherance of the agreement” and doing so without believing that inflicting those blows was necessary to defend themselves against the deceased (questions 3(a) and (b), MFI 31).

11. [110]

    The Crown case against Mr Rodden was that he “delivered [the deceased] to the [service station] in order that [the deceased] could be seriously assaulted and really serious injury inflicted upon him by” the alleged assailants, “having been arranged to do so by [the applicant]”.

12. [111]

    The Crown argued that, by delivering the deceased to the service station so that he could be seriously assaulted, he joined and participated in the JCE formed between the alleged assailants. That is, although he did not participate in the physical assault of the deceased, he was nevertheless part of the agreement and participated in other ways, including that he “delayed [the] departure” of the deceased from the service station and “by his presence and being ready and willing to assist and by his conduct in enabling others access to [the deceased] so that he could be assaulted”.

13. [112]

    The question trail identified the acts that Mr Rodden allegedly committed in furtherance of the agreement (questions 3(a)-(d), MFI 31).

14. [113]

    The Crown case against the applicant was that he procured the “very serious assault” of the deceased and was thus criminally responsible for its consequences.

15. [114]

    The Crown particularised four acts that were said to constitute the “counselling, assisting [and] procuring” of the alleged assailants to carry out the very serious assault of the deceased. Those particulars were incorporated into the question trail provided to the jury during the trial judge’s summing up and were the subject of further oral directions.

16. [115]

    I will first outline the Crown case against the applicant and then identify the four particulars.

17. [116]

    The Crown case against the applicant was footed upon the basis that the argument between Ms Tedder and the deceased on 5 April 2017 caused Mr Crane to become “even angrier” towards the deceased, and that Mr Crane determined “that the way in which the deceased would be dealt with was to be seriously assaulted” and then set about procuring that with the applicant.

18. [117]

    Mr Crane allegedly communicated to the applicant that a serious assault was to occur through multiple telephone calls and messages between 9:27pm and 9:29pm on 5 April 2017. The Crown argued that Mr Crane “was telling [the applicant] about what had happened…and they were discussing in those communications how the deceased could be seriously assaulted”. This communication between Mr Crane and the applicant was, as earlier noted, the principal (and first) act of procurement relied upon by the Crown against Mr Crane: see also [124], below.

19. [118]

    Importantly, this communication also formed the basis of the first act of procurement relied upon by the Crown against the applicant: see also [122]ff, below. That is, the Crown alleged that the applicant promptly made contact with Mr Rodden and arranged for him to take the deceased “to a place so that [the deceased] would be assaulted and really serious injury caused to him”, having apparently been advised by Mr Crane “that he wanted [the deceased] assaulted and really serious injury caused to him”.

20. [119]

    The Crown case was then that the applicant, having spoken with Mr Rodden, updated Mr Crane between 9:39pm and 9:40pm with the arrangements that he had made with Mr Rodden. This “updating” was alleged by the Crown to be a further step taken by the applicant “in the procurement of the very serious assault of the deceased”. This communication was the second act of procurement relied upon by the Crown against the applicant: see also [122]ff, below.

21. [120]

    Once that arrangement had been made, the Crown relied upon a further alleged “event” – namely, that the applicant “either directly or indirectly” informed one or more of the alleged assailants (Mr Robertson, at a minimum) between 9:27pm and 9:54pm that the deceased “was at Mangrove Mountain” and “was to be assaulted and really serious injury caused to him”. The applicant was said to have been at the KFC at the time and “was updating Mr Robertson about the situation with the deceased, that there had been this confrontation up at [the club]. He communicated the deceased’s location…and he communicated at that time that the deceased was to be seriously assaulted”. The Crown also contended that Mr Symons “either met with those people [at the KFC] or he was informed of the location [of the deceased and Mr Rodden] through another party…”, given his proximity to the KFC at the time. This contact was the third act of procurement relied upon by the Crown against the applicant: see [122]ff, below.

22. [121]

    The Crown also relied upon a final act of procurement – that the applicant informed Mr Crane that the deceased was going to be at the service station and that Mr Symons and others were on their way to Mangrove Mountain to assault the deceased and cause him really serious injury. The Crown case was that this occurred in a text message sent by the applicant to Mr Crane at 9:56pm. This text message between the applicant and Mr Crane was the fourth act of procurement relied upon by the Crown against the applicant: see [122]ff, below.

23. [122]

    The Crown’s case against the applicant was that he “did some acts which amounted to counselling, encouraging, procuring or assisting the [assailants] to carry out the crime”. These particulars were contained in a document headed: “[a]lleged acts of counselling, assisting, procuring the very serious assault of [the deceased]”.

24. [123]

    In that document, the Crown identified the acts that were argued to amount to the counselling or procurement of the alleged assailants to participate in the physical assault of, and the infliction of serious injury to, the deceased. The particulars alleged against the applicant were incorporated into the question trail upon which the jury were directed:

25. [124]

    The Crown’s case against Mr Crane was that he “did some acts which amounted to counselling, encouraging, procuring or assisting the [assailants] to carry out the crime”. The Crown identified the acts it argued amounted to the counselling or procurement of the alleged assailants to participate in the physical assault of, and the infliction of serious injury to, the deceased. Those particulars were contained in MFI 27, and were incorporated into the question trail upon which the jury were directed:

26. [125]

    It will be necessary to return to these particulars later when addressing aspects of the Crown case against the applicant. Nevertheless, it is important to presently note that, in relation to each, this Court determined in Crane that it was not open to infer and find that either particular was capable of proof beyond reasonable doubt.

Unreasonable verdicts: the ground of appeal

1. [126]

   Before dealing with the arguments raised by the applicant to support his ground of appeal, I will outline the general principles that apply in determining whether a jury’s verdict is unreasonable, and the approach required when considering an entirely circumstantial prosecution case, such as the present.

2. [127]

   The general principles that apply in determining whether a jury’s verdict is unreasonable are settled, and were summarised by Bell CJ in Quinn v R [2023] NSWCCA 229 at [82]-[86]:

3. [128]

   Thus, the ultimate question “must always be whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487, 494-495; [1994] HCA 63 (‘M’); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. The question is one of fact, not law, and requires this Court to make its own independent assessment of the evidence – both its sufficiency and quality – to determine it: M at 492; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (‘Dansie’) at [8] and [12].

4. [129]

   Further, when this Court undertakes an independent assessment of the sufficiency and quality of “the whole of the evidence” in order to decide whether a conviction is unreasonable, it does so within the context of, and by reference to, “the features of that evidence that support [the] respective cases on appeal” and not “by simply reconsidering the parties' respective cases at the trial”: The King v ZT [2025] HCA 9; (2025) 99 ALJR 676 at [11] (‘ZT’). It follows that “it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not”: ZT at [12].

5. [130]

   The Crown’s case against the applicant was circumstantial. The jury’s verdict therefore depends upon the sufficiency of the circumstantial evidence to discharge the burden of proving one or more of the acts of procurement alleged against the applicant beyond reasonable doubt.

6. [131]

   Where, as here, a jury verdict based on a circumstantial case is challenged as being unreasonable, an assessment of the sufficiency of the evidence to support the verdict of guilty requires this Court “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and to assess whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”: Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]; Dansie at [12]; Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 at [143]. As explained in Baden-Clay at [47], for an inference to be reasonable, “it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’” (emphasis in original).

7. [132]

   In R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] (‘Hillier’), the Court confirmed the approach when considering whether a verdict based on a circumstantial case was unreasonable – namely, that it is wrong for a jury (and thus for an appellate court) to separately consider each piece of evidence in isolation:

8. [133]

   When adopting the approach mandated by these decisions, consideration must be given to “the accumulation of the evidence” and “the weight which is to be given to the united force of all the circumstances put together”: Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 535; [1984] HCA 7 (‘Chamberlain’); Hillier at [48]. Taking that approach, when considered as a whole, the tribunal of fact “may find that one piece of evidence resolves their doubts as to another”: Chamberlain at 535; R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [61].

9. [134]

   Given the Crown case was circumstantial and depended upon the availability of inferences drawn from that body of evidence, and that the applicant did not give evidence, the advantages enjoyed by the jury as compared to this Court are, I consider, slight: Dansie at [17]; ZT at [9].

10. [135]

    I turn now to consider the “aspects of the evidence” that the applicant argued warrant a conclusion that the jury’s verdict was unreasonable.

Discussion and consideration: the arguments

1. [136]

   The crux of the applicant’s argument was that it was not reasonably open for the jury to convict him. His essential contention was that the evidence relied upon to support each particular of procurement was insufficient to permit the jury to infer and find beyond reasonable doubt that he committed any of the alleged acts.

2. [137]

   Additionally, the applicant argued that the Crown case against him was “intrinsically linked” to the Crown case against Mr Crane such that, given Mr Crane’s appeal was allowed, the same result must follow (applicant’s submissions at [205]). The applicant did not, however, suggest that Mr Rodden’s acquittal was material, given the very particular way in which the Crown case against Mr Rodden was framed (applicant’s submissions at [8]).

3. [138]

   The Crown’s overarching submission was that the “evidence amply supported the verdict of the jury”, with the consequence that the appeal should be dismissed (Crown submissions at [11]). That conclusion was said to follow because it was open for the jury to be satisfied (and, therefore, for this Court to be satisfied) that one or more of the alleged “acts of counselling, assisting [or] procuring the very serious assault” of the deceased by the applicant was capable of being established beyond reasonable doubt (Crown submissions at [75] and [82]).

4. [139]

   In relation to the effect of Mr Crane’s acquittal, the Crown did not agree that the applicant’s case at trial was “intrinsically linked” to that of Mr Crane. The Crown also disputed – as a corollary – that the decision of this Court in Crane necessarily dictated the outcome in the applicant’s case and submitted that, whilst there was “considerable factual overlap between the Crown case against the applicant and [Mr] Crane”, the particulars against the applicant as alleged (and the evidence adduced to support them) were materially different (Crown submissions at [9]).

5. [140]

   The Crown, consistent with the authorities earlier referred to (see [130]-[133], above), relied upon general and particular circumstances, and their combination, to demonstrate the availability of the serial inferences necessary to support one or more of the acts of procurement.

6. [141]

   In what follows, I address the general “circumstances” relied upon by the Crown to support its case that the applicant procured the “very serious assault” of the deceased and, thereafter, address the specific arguments raised about the acts of procurement, and whether it was reasonably open to infer one or more of them to the required standard.

7. [142]

   The Crown identified fourteen “circumstances” which it relied upon at trial to prove its circumstantial case against the applicant (Crown submissions at [76](a)-(n)). Two matters should be noted about these circumstances.

8. [143]

   First, some of the circumstances relate more directly to one or other of the particularised acts of procurement (or are no more than restatements of those acts). Where the circumstances are of this character, they will be dealt with when addressing the specific acts of procurement.

9. [144]

   Secondly, although it has been observed that “the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately” (Shepherd v The Queen (1990) 170 CLR 573, 580; [1990] HCA 56), it is still necessary to address at least some of the circumstances and whether the facts may reasonably be inferred from the evidence, as the Crown argues.

10. [145]

    The Crown submitted that, following the confrontation that Mr Crane had with the deceased in the carpark of the store on 3 April 2017, Mr Crane contacted the applicant (Crown submissions at [76](a)). That submission may be accepted. This contact is demonstrated by the call charge records, which indicate that Mr Crane made a 4-second call to the applicant at 4:34:59pm and sent him 3 messages between 4:35:03pm and 4:35:35pm. Given the first contact was a 4-second call, it is likely that Mr Crane attempted to speak with the applicant but was unable to reach him, and then sent the messages. There was no evidence about the content of those messages.

11. [146]

    Mr Crane made further contact with the applicant at 4:44pm. He made a 3-second call at 4:44:15pm and sent him 3 messages between 4:44:18pm and 4:44:28pm. It is again likely that, given the first contact was a 3-second call, Mr Crane attempted to speak with the applicant but was unable to reach him, and then sent the messages. There was again no evidence about the content of those messages.

12. [147]

    The Crown next submitted that, at around 6:00pm that day, the applicant met with Mr Crane, Mr Robertson, Mr McDonough and Mr Symons at the store (Crown submissions at [76](b); this submission differs slightly from the one advanced at trial by the Crown, where it was suggested that Mr Berry-Wright was also involved in these events: see [34], above. Nothing was suggested to turn upon this difference). Those men subsequently left the carpark in convoy and went to where the deceased lived.

13. [148]

    In my view, consistent with what the Crown submitted, there was ample evidence upon which the jury could be satisfied about those matters. This evidence includes the call charge records, the evidence of Mr Starkey (see [33]-[37], above) and the CCTV footage (which shows each of the abovementioned individuals attend the store and three utility vehicles depart the store carpark at about 6:07pm.

14. [149]

    In relation to who met at the store and drove to the Starkey family home, the following matter warrants emphasis: the Crown’s case at trial was that the men came to the “Mangrove Mountain area after the call by [Mr Crane] to [Mr Symons] which came very shortly after the incident” with the deceased, and that they came for the purpose of assisting Mr Crane “with this issue”. That is, it was Mr Crane and not the applicant who organised for those men to attend Mangrove Mountain in the late afternoon. The call charge records provide clear support for that being so.

15. [150]

    The Crown relied upon the existence and content of four messages exchanged between the applicant and Mr Rodden on 4 April 2017 (Crown submissions at [25] and [76](c)) to establish contact between them, as follows:

16. [151]

    Two matters should be noted about these messages.

17. [152]

    First, in relation to the messages at 7:03pm and 7:27pm, the Crown’s written submissions refer to this communication as occurring at 1:03pm and 1:27pm. Those submissions are mistaken.

18. [153]

    Secondly, although not referred to in the Crown submissions, there was also phone contact between the applicant and Mr Rodden at 3:18pm on 4 April 2017 (166 second duration). At trial, the Crown referred to this call in submissions when describing the contact between the applicant and Mr Rodden on 4 April 2017, but did not invite the jury to attach any particular significance to it.

19. [154]

    As explained later (see [186]ff, below), the evidence permits an inference to be drawn that, between the applicant and Mr Rodden, there was an intention to meet. However, whether they in fact did so is simply unknown.

20. [155]

    The Crown also relied upon what was submitted to be the “significant number of phone and SMS contacts” exchanged between Mr Crane and the applicant on 5 April 2017 from 9:00am until 6:00pm and that, “at around the same time, the applicant was in direct contact with [Mr] Rodden including to arrange a meeting” (Crown submissions at [76](d)).

21. [156]

    The contact between Mr Crane and the applicant on 5 April 2017 during this period was as follows:

22. [157]

    In my view, the evidence demonstrates that there were most likely five successful telephone calls between Mr Crane and the applicant on 5 April 2017 between 9:00am and 6:00pm (at 9:04am for 27 seconds; at 9:17am for 11 seconds; at 1:14pm for 27 seconds; at 5:41pm for 103 seconds; and at 5:54pm for 32 seconds) and some other unsuccessful attempts (between 1:13pm and 1:14pm), resulting in messages being sent. There was no evidence about the content of those calls or messages.

23. [158]

    The contact between the applicant and Mr Rodden during this same period was as follows:

24. [159]

    It may be accepted from these records that there was “direct contact” between the applicant and Mr Rodden. It may also be accepted that the contact was, generally, at “around the same time” that the applicant was in contact with Mr Crane. But that is as far as the records go. There was no evidence about the content of these messages.

25. [160]

    The evidentiary basis for the further inference argued by the Crown to be reasonably open – that the applicant was in contact with Mr Rodden at 10:22am “to arrange a meeting” – was not identified. To the extent that it was said to be supported by the call charge records extracted above, in my view, that is simply not an inference capable of being drawn from the limited facts.

26. [161]

    The Crown observed that Mr Rodden and the deceased had made arrangements to go to the club, against the background of what he told Ms Kenzig (see [45], above; Crown submissions at [81](c)). I consider the significance of what Ms Kenzig said to be limited, for the following reasons. First, it was not alleged by the Crown – as a particular of the JCE against Mr Rodden or a particular act of procurement by the applicant – that any arrangement had been made that involved bringing the deceased to the club on the evening of 5 April 2017. That is unsurprising, given the Crown case was that it was only after the argument that the deceased had with Ms Tedder that there was an “escalation” involving Mr Crane determining that the deceased “was to be seriously assaulted” (see the summary of the Crown case at [116], above). Secondly, there was evidence at trial, given by Ms Kenzig, which placed a benign complexion upon the reason Mr Rodden and the deceased went to the club that evening – namely, to have a drink to celebrate the deceased’s partner recently giving birth to their child or to have a drink “because [the deceased] thought he was going to gaol in two days”.

27. [162]

    To support its case against the applicant, the Crown relied upon the fact that, on 5 April 2017 at 9:29pm, the applicant received a call from Mr Crane after he had heard about the events at the club from Mr Cannon (Crown submissions at [76](e)). That this call was made may be accepted, and was not contested by the applicant. It is amply borne out by the call charge records.

28. [163]

    Importantly, however, the Crown accepts that, given the conclusion of this Court in Crane, an inference “is not available that during that call, [Mr Crane] informed the applicant that he wanted the deceased assaulted and really serious injury caused to him” (emphasis in original; Crown submissions at [76](e)).

29. [164]

    The Crown also relied upon the fact that, on 5 April 2017 at 9:32pm, the applicant spoke to Mr Rodden “for about six minutes” on the club’s corded telephone (Crown submissions at [76](f)). That submission should be accepted, and was also not contested by the applicant. What was alleged to have been said during this call was significantly contested though – it being a specific act of procurement relied upon by the Crown against the applicant (procurement particular (a)). The arguments relating to that particular are dealt with at [178]ff, below.

30. [165]

    The next circumstance relied upon by the Crown related to what the applicant allegedly did whilst at the KFC.

31. [166]

    As noted elsewhere, this circumstance was also a specific act of procurement relied upon by the Crown against the applicant – the Crown having alleged that, between 9:27pm and 9:54pm, the applicant informed one or more of the alleged assailants “either directly or indirectly” that the deceased “was at Mangrove Mountain” and that he was “to be assaulted and really serious injury caused to him” (procurement particular (c)).

32. [167]

    The arguments relating to that particular are dealt with at [215]ff, below.

33. [168]

    The next circumstance relied upon by the Crown was that the four alleged assailants departed from Woy Woy and “travelled up the mountain” (Crown submissions at [76](h)). The fact that they did so was not significantly in issue at trial, and the applicant accepted as much.

34. [169]

    The Crown next referred to the message that Mr Rodden sent to the applicant at 9:54pm, which read “going to servo now with child”.

35. [170]

    There was no issue at trial about each of these matters. Rather, the significant controversy was whether, by sending the message and driving with the deceased to the service station, Mr Rodden was performing what he had been allegedly requested to do by the applicant, so that the deceased could be assaulted and really serious injury caused to him. That issue significantly overlaps with what was alleged to have been discussed during the 6-minute call between the applicant and Mr Rodden (procurement particular (a); the arguments relating to that particular are dealt with at [178]ff, below).

36. [171]

    The Crown also submitted that Mr Crane “was in contact with the applicant” shortly before the alleged assailants arrived at the service station (Crown submissions at [76](h)). That may be accepted, and is established by the call charge records:

37. [172]

    This contact, as noted elsewhere, was a specific act of procurement relied upon by the Crown against the applicant (procurement particular (d); the arguments relating to that particular are dealt with at [238]ff, below).

38. [173]

    The Crown then noted that the assault occurred immediately after the alleged assailants arrived. Mr Symons opened the passenger door to Mr Rodden’s car, dragged the deceased onto the ground, and attacked him with the other assailants. That may be accepted. There was no significant controversy that the attack of the deceased occurred in this way.

39. [174]

    The Crown referred to circumstances that occurred after the deceased had been assaulted at the service station, including: the text message that Mr Rodden sent the applicant (see [86], above); the fact that the applicant travelled to the service station with his son, arrived at about 11:00pm and was observed on CCTV footage to have “looked around the driveway area” of the service station (see [90], above); and that he met with Mr Rodden at the McDonald’s carpark in West Gosford for about 20 minutes after the deceased had been taken to the Hospital (see [93], above).

40. [175]

    The Crown also referred to Ms Gane’s evidence that the applicant said either “I think he should have died” or “he should have been dead” when referring to the deceased on 6 April 2017.

41. [176]

    As noted, the Crown argued that it was open for the jury to infer and find that one or other of the acts of procurement particularised against the applicant proved his guilt to the required criminal standard. In this Court, however, the Crown qualified this stance to a small degree by contending that the applicant’s alleged conduct at the KFC was the strongest particularised act of procurement. The Crown described this particular as the “highpoint of the difference” between Mr Crane’s case and the applicant’s case.

42. [177]

    Notwithstanding the Crown’s gradation of the strongest particularised acts of procurement – and given it maintained that each was capable of proof and thus open to being accepted by the jury – it is simplest to address each particular in chronological order.

43. [178]

    By this act, the Crown alleged that the applicant “arranged” for Mr Rodden to take the deceased to the service station so that he “could be assaulted and [have] really serious injury caused to him” during the 6-minute call.

44. [179]

    The applicant’s essential submission was that it was not open for the jury to infer and find that the applicant made this arrangement with Mr Rodden, and certainly not to the requisite criminal standard. The Crown adopted the contrary position and argued that the general circumstances (and some specific circumstances referable to this particular act) supported the drawing of this ultimate inference to the required standard.

45. [180]

    It is useful to begin by outlining the immediate and wider context to the 6-minute call, before then moving to consider the acts alleged against the applicant. The following contextual matters warrant emphasis:

    1. (1)

       first, the Crown case against Mr Crane;

    2. (2)

       secondly, the contact between the applicant and Mr Rodden on 4 April 2017;

    3. (3)

       thirdly, the further contact between the applicant and Mr Rodden on 5 April 2017; and

    4. (4)

       fourthly, the Crown’s concession about what inferences were not available to be drawn about the call that Mr Crane made to the applicant on 5 April 2017 at 9:29pm.

46. [181]

    The Crown case against Mr Crane was that he developed feelings of deep rage and animosity towards the deceased following the events of 3 April 2017, and especially following the arguments at the club on the evening of 5 April 2017.

47. [182]

    The Crown submitted that the jury could be well-satisfied that Mr Crane held those feelings because he had vocalised as much in the aftermath of each event. He allegedly told Ms Gane on 4 April 2017 that he was “going to fucking kill” the deceased, and Mr Cannon on 5 April 2017 that he was “going to go fucking find him and kill him”. The Crown contended that these events demonstrated both the continuation of ill-will and that Mr Crane’s anger towards the deceased had intensified.

48. [183]

    Consistent with the above, the Crown invited the jury to infer that, by attending the Starkey family home on 3 April 2017 with others, Mr Crane intended to at least intimidate the deceased. Given what occurred on the evening of 5 April 2017, the Crown invited the jury to further infer that Mr Crane wanted retribution and to have really serious harm inflicted on the deceased.

49. [184]

    There was no question that Mr Crane had a strong motivation to want the deceased harmed, but the critical issue in the case against him was whether the Crown had established, beyond reasonable doubt, that he had taken any steps to procure that. The Crown case was that he had taken the necessary steps.

50. [185]

    What is unclear though is whether the applicant was, at this time and independently of Mr Crane, similarly motivated. The Crown made no submission to the jury that he was, nor was one advanced in this Court. Rather, consistent with the acts particularised and their timing, the Crown case was that the applicant’s involvement was interconnected with Mr Crane’s. That is, following the abovementioned call, the applicant’s conduct was responsive to what was apparently communicated by Mr Crane to the applicant during it, and that he allegedly took steps to assist and facilitate the assault of the deceased as determined by Mr Crane by near-immediately making contact with Mr Rodden at the club.

51. [186]

    The Crown also alleged that the applicant was “searching” for the deceased on 4 April 2017 and that that conduct formed part of the general circumstances available to inform the inference to be drawn about the subject matter of the 6-minute call. The Crown submission was that the applicant, Mr Crane “and their associates” continued searching for the deceased and that messages between the applicant and Mr Rodden “make it clear he was trying to arrange a meeting” with Mr Rodden (Crown submissions at [81](a)).

52. [187]

    In my view, the evidence does not support an inference that the applicant was “searching” for the deceased on 4 April 2017, nor do I accept that it supports an inference that the applicant was trying to “enlist” or had “enlisted” Mr Rodden to do so, as the Crown argued. The inferences available to be drawn from what is extremely limited evidence – confined to the exchange of messages between the applicant and Mr Rodden earlier referred to (see [150], above), as informed by the altercation of 3 April 2017 – are instead somewhat more circumscribed. I will explain this further.

53. [188]

    At trial, the Crown submitted that it was open to infer from the contact between the applicant and Mr Rodden that there “was an intention to meet that day” but that whether they did meet was “not known”. In my view, there is a clear footing for the inference sought – the message that the applicant sent to Mr Rodden at 7:03pm that read “what time you (sic) coming over” strongly suggests an intention to meet.

54. [189]

    Notwithstanding this limited evidence, the Crown further submitted that the contact between the applicant and Mr Rodden permitted an inference that the applicant “was attempting to enlist Mr Rodden to assist with locating [the deceased] from 4 April”. The Crown also submitted that Mr Crane “was still angry [at this time] and that both he and [the applicant] had not given up the idea of confronting him” and, later, that his contact with Mr Rodden was to seek his help so that he would “be able to confront” the deceased “about what he had done” on 3 April 2017. Not all evidence necessarily supports the drawing of the inferences sought by the Crown though.

55. [190]

    For example, where the deceased resided was known, as the “group of men” went there on 3 April 2017. There is also no suggestion that the deceased, following the altercation he had with Mr Crane in the carpark, went into hiding and therefore needed to be “searched” for. The deceased instead remained relatively defiant and was prepared to go to the club on the evening of 5 April 2017 and engage in a further argument whilst there. I consider that these matters favour a more subdued and neutral characterisation of the contact between the applicant and Mr Rodden, as they tend to undercut any suggestion that there were difficulties locating the deceased and, thus, that there was a need to “search” for him.

56. [191]

    I also do not consider that the timing, frequency or “content” of some of the messages adds volume to the otherwise shallow evidentiary pool. I will illustrate this. First, there were six actual or attempted communications between the applicant and Mr Crane on 28 March 2017. Various messages were also exchanged between them on 30 March 2017 and 2 April 2017. Thus, the timing and frequency of contact between the applicant and Mr Rodden before 3 April 2017 was not obviously overly different to the contact after that time. Secondly, one message (on 2 April 2017 at 12:01pm) from the applicant simply read: “?”. The fact that the applicant communicated with that single character at that time is relevant to an assessment of the materiality of the messages that contained multiple similar characters sent between the applicant and Mr Rodden at 12:42pm (see [150], above). And, thirdly, aside from that message (and a message sent on 28 March 2017 at 5:58pm from the applicant to Mr Rodden which read “it’s James give us a yell”), there was no evidence about what was contained in any of those other messages.

57. [192]

    In substance, the Crown submission invited the jury to infer that (a) given Mr Crane was still angry, Mr Crane and the applicant wanted to confront the deceased; and (b) that the applicant contacted Mr Rodden to in some way assist with that occurring.

58. [193]

    As to the first matter, the basis upon which the jury were invited to infer that the applicant wanted to confront the deceased (as opposed to having agreed with Mr Crane for this to happen) was not clearly identified in the submissions. As to the second matter, I consider that an available inference is that the applicant contacted Mr Rodden to identify the whereabouts of the deceased, having regard to the events outlined above at [186]ff and because the deceased had not yet been located. To be clear, in my view, there is no sound basis to support an inference that the applicant was “searching” for the deceased, or was doing anything like that.

59. [194]

    The Crown next relied upon the contact between the applicant and Mr Rodden on 5 April 2017 as part of the general circumstances that purportedly informed the inference that could be drawn about the content of the 6-minute call: see [158], above. This contact comprised of seven messages exchanged between 9:00am and 6:00pm.

60. [195]

    As noted above at [158], the applicant sent two messages to Mr Rodden at 10:22am. There was no evidence about what was contained in the first message. The second message simply read “????”. The applicant then sent three further messages at 5:43pm. There was no evidence about what was contained in two of them, however, one read “Where r you”. At 5:57pm, Mr Rodden sent the applicant two further messages. The first read “Mine waiting for someone then out”. There was no evidence about what was contained in the second message.

61. [196]

    In my view, these confined messages do not meaningfully assist in supporting the inference sought.

62. [197]

    The content of the 6-minute call was centrally important to the Crown case as it apparently explained Mr Rodden’s subsequent actions. There is no direct evidence about what was said during that call. It is therefore appropriate to address whether the ultimate inference sought by the Crown (as reflected in the first act of procurement against Mr Crane, which inevitably influences the first act of procurement against the applicant) was open to being established beyond reasonable doubt.

63. [198]

    In my view, and with due regard to the Crown’s circumstances as a whole, I do not consider that it is open to draw the ultimate inference sought by the Crown. My reasons for so concluding are as follows.

64. [199]

    First, it is important to note and emphasise the Crown’s concession in its written submissions – namely, that it was not open to infer that, during the call between Mr Crane and the applicant, Mr Crane informed the applicant that he wanted the deceased assaulted and really serious injury caused to him (Crown submissions at [76](e)). That it was not open to do so makes drawing the ultimate inference against the applicant problematic given, in my view, the logical, temporal and factual overlap between the call made by Mr Crane to the applicant and the 6-minute call.

65. [200]

    It is further problematic given the Crown case was that the person who determined that the deceased was to be assaulted and really serious injury caused to him – and was highly motivated for that to occur – was Mr Crane and not the applicant.

66. [201]

    Thus, the Crown case was that, once notified of the incident at the club, Mr Crane “was so angry that he determined then that the way [the deceased] would be dealt with is that he would be assaulted and that really serious injury would be caused to him”. There was no evidence identified by the Crown that was said to support that the applicant, independently of the 6-minute call, determined to take matters into his own hands and arranged to have the deceased assaulted and really serious injury caused to him.

67. [202]

    Secondly, establishing this inference to the required degree depends upon whether the circumstantial evidence marshalled in the Crown’s case is sufficient to support a finding that Mr Crane gave the critical direction and that such inference is the only rational inference in the circumstances able to be drawn: Barca v The Queen (1975) 133 CLR 82, 104; [1975] HCA 42; Baden-Clay at [46]. In my view, there are several inferences available to be drawn about the communication between Mr Crane and the applicant and, in turn, the communication between the applicant and Mr Rodden that were not excluded as reasonable possibilities, and which are consistent with the applicant’s innocence.

68. [203]

    As inference drawing was central to the Crown case, it is useful to briefly restate what is required by that process of fact-finding and reasoning. There is a well-recognised distinction between permissible inference drawing and conjecture (or speculation). The former “is a deduction from the evidence, and if it is a reasonable deduction it may have validity of legal proof” or, to the same end, whether on the basis of established facts it is reasonable to draw the inference: Jones v Great Western Railway Co (1930) 47 TLR 39, 45 (‘Jones’); Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [84]-[88] (‘Seltsam’); Lane v R [2013] NSWCCA 317; 241 A Crim R 321 at [109]. The latter arises when there are “no positive proved facts from which the inference can be made, [meaning that] the method of inference fails”: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 170; Seltsam at [84]-[88]. If the circumstances are equally consistent with a number of varying hypotheses, “no one can be selected as the one that is true”: Jones at 45.

69. [204]

    In relation to the call between Mr Crane and the applicant, it must be accepted that a number of reasonable possibilities exist about what was said, as is consistent both with the Crown’s concession and the applicant’s argument. Two of those possibilities include that Mr Crane wanted the deceased spoken to, intimidated or assaulted in a manner that did not involve the infliction of really serious injury (given what occurred on 3 April 2017), or that Mr Crane told the applicant no more than that the deceased was at the club and had argued with and upset Ms Tedder.

70. [205]

    In this last respect, it is relevant to note that the extent of Mr Crane’s knowledge as to the detail of what actually transpired at the club between Ms Tedder and the deceased was limited when Mr Crane contacted the applicant – all he knew was that the applicant had been arguing with Ms Tedder and that Ms Tedder was not calm. It follows that he did not know the detail of what had been said by the deceased to Ms Tedder because, by the time Mr Cannon called Mr Crane at 9:25pm on Ms Tedder’s phone, the deceased and Ms Tedder were still arguing and Mr Cannon had not heard the substance of their argument. Further, the Crown acknowledged in its submissions to the jury that Mr Cannon had not spoken with Ms Tedder “about what had been said”. These matters support the existence of this last possibility, as the applicant argued.

71. [206]

    In my view, once it is accepted, as I consider it must be, that these possibilities about what was conveyed during the call between Mr Crane and the applicant remain, there is no sound basis to reliably draw any inferences or to exclude those same possibilities about the content of the applicant’s subsequent call with Mr Rodden. Additionally, as the applicant argued, there is no sound basis to infer that he “separately wanted” the deceased assaulted and really serious injury caused to him (applicant’s submissions at [211]). It must be remembered that: (a) Mr Crane had the altercation with the deceased on 3 April 2017; (b) Mr Crane’s partner had the argument with the deceased on 5 April 2017; (c) it was therefore Mr Crane who had the motivation to want retribution following the altercation and argument; and (d) it was Mr Crane who organised for the group of men to attempt to “confront” the deceased at the Starkey family home.

72. [207]

    Thirdly, I do not accept that the Crown’s reliance upon Mr Rodden’s actions exclusively supports the inference it sought. Although the Crown argued that the message sent by Mr Rodden to the applicant at 9:54pm (“going to the servo now with child”) was consistent only with the inference that the 6-minute call resulted in an “arrangement” being formed in line with the act of procurement particularised, that message is, in my view, equally consistent with each of the other reasonable possibilities identified at [204]-[206], above. As to the first possibility, the message may have conveyed where the “confrontation” would take place. As to the second possibility, it may have conveyed that the deceased was unlikely to persist with his threats to “shoot up” Mr Crane’s house, but was instead going elsewhere.

73. [208]

    The Crown also submitted that Mr Rodden knew that the service station closed at 10:00pm “because he telephoned the attendant to keep it open briefly”, leading to the “strong inference…that he intended to remain there until the [alleged] assailants arrived once it was dark and unattended, an inference supported by his delaying tactics once he arrived” (Crown submissions at [85]). Once it is accepted that other reasonable possibilities remain open, the materiality of these acts of Mr Rodden are, I consider, of limited significance. Even accepting what the Crown submitted, the existence of them would not be inconsistent with the applicant wanting the deceased to be intimidated or spoken to or assaulted in a manner that did not involve the infliction of really serious injury. If that were not so, I remain unable to accept that the matters raised by the Crown uniformly assist in drawing the ultimate inference sought. For example, delaying the closure of the service station may have resulted in Ms Boucher still being present to witness the events that were to unfold once the alleged assailants arrived.

74. [209]

    Fourthly, although the Crown placed emphasis on what occurred at the service station (including the swiftness of the attack upon the deceased by the alleged assailants following their arrival) as supportive of the ultimate inference sought, I do not consider that the matters argued inflexibly admit to such a characterisation. For instance, the alleged assailants were unarmed. The inference sought by the Crown that the attack was to involve the infliction of really serious injury may have had a surer footing had they been armed.

75. [210]

    By further example, the alleged assailants also went to a location that was not secluded (it being a service station on a public road), and that was likely to be well lit and covered by CCTV cameras. That the service station had those features tends to suggest that the alleged assailants had no particular concern about being observed participating in the events that they expected would unfold there. Even if it were accepted that the alleged assailants were prepared to inflict violence (notwithstanding they had not been personally wronged), I do not consider, as the applicant argued, that their states of mind can be attributed to, or be demonstrative of, his.

76. [211]

    For those reasons, I do not consider that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant committed this act of procurement.

77. [212]

    By this act of procurement, the Crown alleged that the applicant informed Mr Crane between 9:39pm and 9:40pm that “he had made arrangements” with Mr Rodden for the deceased “to be taken to a location in order that [the deceased] could be assaulted and really serious injury caused to him”.

78. [213]

    The Crown accepted that the alleged act covered by this particular was contingent upon acceptance of the alleged act covered by procurement particular (a) (see [178]ff, above). The Crown’s submission was that if the Court was satisfied that it were open for the jury to find that procurement particular (a) was proven (and thus for this Court to do likewise), “it would logically follow that the applicant then told” Mr Crane about the arrangements that he had made with Mr Rodden (Crown submissions at [88]). The Crown, in submissions in this Court, confirmed that particular (b) “stands or falls” on particular (a).

79. [214]

    Given the finding that I have made about procurement particular (a) and the position adopted by the Crown concerning particular (b), it follows, in my view, that it was not open for the jury to find that this particular had been established beyond reasonable doubt.

80. [215]

    By this act of procurement, the Crown alleged that the applicant “informed” the alleged assailants, either directly or indirectly through others, that the deceased was at Mangrove Mountain and that he “was to be assaulted and really serious injury caused to him”.

81. [216]

    Although the alleged particulars factually and chronologically overlapped with procurement particulars (a) and (b), the Crown submitted that this particular was “capable of being” established independently from them. That submission, which should be accepted, is consistent with the question trail, which identified each of the acts as being legally independent alternatives.

82. [217]

    Given there was no direct evidence that the applicant met or contacted any of the alleged assailants whilst at the KFC, nor any direct evidence about what was alleged to have been conveyed or discussed assuming they did, the Crown case depended, as it did with the other particulars of procurement, upon several inferences being drawn from its circumstantial case.

83. [218]

    The applicant submitted that the evidence was incapable of establishing the alleged “act” beyond reasonable doubt. The applicant’s essential submission was that any interactions he had with Mr Robertson and/or Mr McDonough “involved numerous reasonable possibilities as to what [he] could have said to them” (applicant’s submissions at [214]ff).

84. [219]

    The Crown submitted to the contrary and argued that there was evidence from which the two overlapping inferences could be drawn, being: first, whilst at the KFC, the applicant met with Mr Robertson and Mr McDonough (who subsequently “at least met with Symons and McDonald” thereafter); and, secondly, instructed them that the deceased was to be assaulted and really serious injury caused to him. The Crown described the applicant as having “deployed” the alleged assailants in its submissions in this Court. The Crown thus argued that there was, based upon the availability of these inferences, an evidentiary basis for the jury to draw the further inference that the applicant procured the assault.

85. [220]

    The evidence about what occurred at the KFC is limited (see [71], above). It is essentially confined to: (a) the applicant being present at KFC to purchase food for Ms Blackett (this was not demonstrated by direct evidence such as CCTV footage, but by the applicant calling Ms Blackett at 9:43pm to confirm her meal selection and by reason of the fact that the applicant’s phone connected to particular communication towers that placed it (and him) in that approximate location); (b) a KFC receipt for 9:34pm that was located by police in Mr Robertson’s vehicle; (c) CCTV footage at 9:40pm that shows the Calais depart the KFC drive-thru and turn into the KFC carpark; and (d) call charge records.

86. [221]

    Relevantly, the call charge records in the period alleged by this particular (between 9:27pm and 9:54pm), establish that:

    1. (1)

       the telephone contact that the applicant had was only with Mr Crane, Mr Rodden, Ms Blackett and Arlen Crane (the applicant’s other son) and not with any of the alleged assailants;

    2. (2)

       whilst the applicant was speaking with Mr Rodden during the 6-minute call, Mr McDonough called Mr Berry-Wright at 9:34pm. This time is also when Mr Robertson placed an order at the KFC drive-thru;

    3. (3)

       the applicant contacted Mr Crane at 9:40pm and Ms Blackett at 9:43pm. The latter call with Ms Blackett was when he asked her to confirm her choice of burger;

    4. (4)

       Mr McDonald called Mr Robertson at 9:41pm, at which time Mr Robertson’s phone was connected to the Koolewong tower and Mr McDonald’s phone was connected to the Umina tower. The Crown alleged that this contact was “between the two cars as they were about to commence going up the mountain” or had just commenced doing so;

    5. (5)

       Mr Berry-Wright called Mr McDonough at 9:43pm, who the Crown submitted to the jury was in the car with Mr Robertson at that time. Both phones in that call were connected to the Koolewong tower; and,

    6. (6)

       Mr Berry-Wright called Mr Symons at 9:45pm, who was then driving. The call charge records indicate that the call went for 72 seconds. Mr Berry-Wright’s phone connected to the Koolewong tower and Mr Symons’ phone to the tower at Blackwall.

87. [222]

    The Crown made a number of submissions to the jury about what the evidence – including the call charge records – disclosed and what inferences could be drawn from them, as follows.

88. [223]

    The Crown case was that:

    1. (1)

       Mr Berry-Wright was in contact with both cars “because he was a conduit of information between them”. That argument reflects the particular that the applicant, “indirectly through others”, effectively conveyed the location of the deceased and “that he was to be seriously assaulted”.

    2. (2)

       Mr Berry-Wright “was a member of these group of mates” and was “ready to support [Mr] Crane” in relation to Mr Crane’s anger towards the deceased.

    3. (3)

       Mr Robertson and Mr McDonough “were all at the KFC on that night and they met there or nearby there”.

    4. (4)

       at that “meeting”, the applicant updated both Mr Robertson and Mr McDonough “on the situation” with the deceased and communicated to them his location and “that he was to be seriously assaulted”.

89. [224]

    The Crown emphasised that two contextual matters were important in supporting an inference that a meeting occurred between the applicant, Mr Robertson and/or Mr McDonough, and that the direction was given by the applicant to one or both of them about what was to occur to the deceased in the terms alleged (Crown submissions at [91]).

90. [225]

    The first matter of context relied upon by the Crown was that the applicant knew that the deceased was at the club and had “escalated hostilities” towards Mr Crane and his family. That submission may be accepted – to a degree.

91. [226]

    As I have earlier noted, when Mr Crane initially spoke with the applicant, Mr Crane had a limited understanding about what had occurred between the deceased and Ms Tedder. In my view, the evidence does not support an inference that the applicant became aware of the “escalated hostilities”. The Crown did not identify any evidence that supported the drawing of an inference in those terms. The only limited inference that is, in my view, available from the evidence of the phone calls (see [54]-[60], [204], above) is that the applicant knew that the deceased and Mr Tedder had argued at the club.

92. [227]

    The second matter of “context” relied upon by the Crown was that, given the alleged “assailants and other associates” of the applicant and Mr Crane had “been looking for the deceased for at least two days, and the applicant had become aware of his location, an available inference is that he told the [alleged] assailants of the deceased’s location” (Crown submissions at [91]) directly or indirectly, once he became aware of it. I do not accept aspects of this submission.

93. [228]

    Whilst the evidence establishes that the applicant, Mr Crane and others went looking for the deceased on the afternoon of 3 April 2017, I am unable to accept that the evidence demonstrates (or, more specifically, permits an inference to be drawn) that the applicant had been looking for the deceased “for at least two days”, as the Crown argued: see [186]ff, above. The Crown did not identify the evidence upon which this submission rests beyond that which I have earlier referred to. Upon my review of the trial record, there is no such evidence. Thus, for those reasons, I consider that the matters of context relied upon by the Crown only provide somewhat limited support for the inferences underpinning the act alleged.

94. [229]

    The critical question is whether there is other evidence available to support the ultimate inference sought by the Crown. The Crown raised three matters which were argued to permit the jury to be satisfied beyond reasonable doubt that, whilst at the KFC, the applicant told one or more of the alleged assailants (presumably, given how the matter was put to the jury, Mr Robertson and/or Mr McDonough) that the deceased was to be assaulted and really serious injury caused to him, as follows.

95. [230]

    First, the Crown relied upon the circumstances identified in paragraph 87 of its written submissions (Crown submissions at [92]). Paragraph 87 of the written submissions provides:

96. [231]

    The first sentence of paragraph 87 of the Crown’s written submissions may be accepted, so far as it goes – there was no real dispute about the presence of the applicant, Mr Robertson and Mr McDonough “at or near” the KFC. It is the next step that is critical: whether they met there.

97. [232]

    In my view, it is open to infer that they did have some contact at the KFC, particularly given the events that precede it, and the fact that sheer coincidence or chance could reasonably be excluded as a possible explanation for them being there at the same time. The applicant did not (at least strongly) dispute the availability of a limited inference to that effect but did, however, significantly contest the availability of the further, and ultimate, inference sought by the Crown – viz., that the applicant essentially advised Mr Robertson and/or Mr McDonough (and indirectly Mr McDonald and Mr Symons) of the deceased’s location and that he was to be assaulted and really serious harm caused to him.

98. [233]

    Returning to the argument directed to paragraph 87 of the Crown’s written submissions, the second sentence of that paragraph, however, does not influence whether the inference can be drawn. The submission merely restates the ultimate inference sought by the Crown and not the evidence that might support the drawing of it.

99. [234]

    Secondly, the Crown submitted that the “applicant had an important role in what occurred, both in his dealings with Mr Rodden and [that] what can be inferred was a meeting between him and two of the assailants at Woy Woy before the two cars travelled in convoy up the mountain”. These matters were argued to support “an inference of him giving directions that were swiftly followed” (Crown submissions at [92]). I am unable to accept this submission. In part, that is because, in my view, it is self-fulfilling – because the applicant had an important role and because the applicant met two of the alleged assailants given the role he had, it necessarily followed and thus should be inferred that he told those two alleged assailants that the deceased was to be assaulted and really serious injury caused him. The applicant’s role was significantly in issue and was substantively part of the ultimate issue to be determined. In my view, therefore, it is simply not open to assume that fact as a step towards drawing the ultimate inference.

100. [235]

     Thirdly, the Crown submitted that “the circumstances immediately preceding and during the assault itself support this inference in the particular circumstances of the applicant’s case” (Crown submissions at [92]). In advancing this submission, the Crown acknowledged that a similar argument was rejected by the Court in Crane but nevertheless submitted that “the relevant facts on this point in relation to the applicant are distinguishable from those related to [Mr] Crane given the applicant’s role” (Crown submissions at [93]). I have, earlier, addressed and rejected a similar argument in the context of particular (a): see [209], above. In my view that reasoning equally applies here.

101. [236]

     As the applicant argued, the fundamental issue remains – namely, whether the circumstantial evidence marshalled in the Crown case suffices to support the inference that the applicant gave Mr Robertson and/or Mr McDonough direction that the deceased was to be seriously assaulted to the required degree and that such inference is the only rational inference in the circumstances able to be drawn. In my view, the circumstances (and in particular those emphasised by the Crown said to give context and colour to what occurred at the KFC), do not enable that inference to be drawn given, at a minimum, that a number of reasonable possibilities remain, including that whatever was discussed only extended to seeking to have the deceased confronted and spoken to, intimidated or assaulted in a manner that did not involve the infliction of really serious injury: see [204]-[209], above.

102. [237]

     For those reasons, I do not consider that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant committed this act of procurement.

103. [238]

     By this act of procurement, the Crown alleged that the applicant informed Mr Crane, between 9:56pm and 10:01pm, that the deceased was being taken to the service station by Mr Rodden and that Mr Symons, and others, were “on their way to Mangrove Mountain to assault [the deceased] and cause him really serious injury”.

104. [239]

     The Crown did not seek to sustain this particular independently of acceptance of particular (c) or, by implication, particular (a). Given the conclusions that I have reached in relation to those particulars, and the reasons for them, this particular necessarily falls away.

105. [240]

     For the applicant to have accessorial liability, the Crown was required to demonstrate that he knew that the alleged assailants (or one of them) intended to inflict grievous bodily harm on the deceased: Stokes v The Queen (1990) 51 A Crim R 25, 37-38 (‘Stokes’) citing Giorgianni v The Queen (1985) 156 CLR 473, 487-488, 494, 500, 504-505, 506-507; [1985] HCA 29. The intention of the accessory, therefore, to assist or encourage the principal offender “must be based upon that knowledge”: Stokes at 37-38.

106. [241]

     Here, the Crown was required to establish that the applicant knew or believed that the principal (or principals) would commit an assault upon the deceased with the intention of causing him really serious injury and, with that knowledge, intentionally assisted or encouraged the principal (or principals) to commit that act. The requirement for the Crown to establish this element was reflected in the question trail as question four.

107. [242]

     The applicant submitted that this aspect of the Crown’s case was fatally deficient because, put simply, there was “no basis to infer to the criminal standard knowledge on the part of the applicant that any of the alleged assailants intended, upon locating the deceased, to inflict grievous bodily harm upon him” (applicant’s submissions at [220]). The applicant’s essential submission was that there was a fundamental “problem of identification of a relevant mental state of a principal, of which the applicant can be shown beyond reasonable doubt to be knowledgeable” (applicant’s submissions at [223]).

108. [243]

     The Crown contested that there was any deficiency in its case in relation to this element, arguing that the intent of the alleged assailants and the applicant could be inferred based upon the arguments raised relating to “the Robertson judgment” (that being a reference to those arguments contained in paragraph 97 of its written submissions; Crown submissions at [107]). The submission made was that “the speed, focus and coordinated savagery of the assault occurred pursuant to an agreement to inflict grievous bodily harm on the deceased, formed before the assailants arrived at the service station and maintained on arrival” (Crown submissions at [97]).

109. [244]

     The Crown also submitted that the intent of the alleged assailants and the applicant could be inferred based upon the CCTV footage of the attack. The Crown’s submission (made in connection with the CCTV footage) was substantially the same as “the Robertson judgment” submission – in effect, that it was open to infer and find that at least three of the alleged assailants intended to inflict really serious harm upon the deceased (Crown submissions at [108]).

110. [245]

     The Crown’s submission can, largely, be accepted. That is because the act of a person ordinarily provides the most cogent or convincing evidence of that person’s intent. Thus, relevantly here, an intention to cause really serious injury might be inferred from the nature of the act done, particularly where the consequence of that act is obvious: Stokes at 30.

111. [246]

     That said, the issues left unresolved by the Crown's argument are whether one or more of the alleged assailants (presumably Mr Robertson and/or Mr McDonough) intended to inflict grievous bodily harm during the assault at the time they interacted with the applicant at the KFC, and that the applicant knew as much and intended to encourage or assist with that knowledge.

112. [247]

     The Crown, however, submitted that there was a “compelling” or “strong” inference that the applicant “instructed the [alleged] assailants that the deceased was to be assaulted and really serious injury caused to him; and that he knew that one or more of the assailants would follow that instruction and intentionally do so” (Crown submissions at [107] and [109]).

113. [248]

     Given the evidence does not permit an inference to be drawn that the applicant gave a direction that the deceased was to be “assaulted and really serious injury caused to him”, the inference that Mr Robertson and Mr McDonough followed that direction likewise cannot be inferred.

114. [249]

     There is a further difficulty. As the applicant emphasised, if, say, Mr Robertson intended to inflict grievous bodily harm during the course of the assault, there was “no evidence [that] he had that intention at the time the applicant spoke to him at [the KFC], far less that the applicant knew Mr Robertson had such intention, and intended to encourage or assist its implementation” (applicant’s submissions at [223]). That submission should be accepted. There is, I consider, no basis to draw the inference that Mr Robertson or Mr McDonough had the requisite state of mind and that that was known to the applicant.

115. [250]

     In my view, it was not open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the applicant had the requisite knowledge for accessorial liability to arise.

Orders

1. [251]

   The applicant submitted that his conviction should be quashed, and a verdict of acquittal entered.

2. [252]

   The Crown argued that if this Court was satisfied that it was open for the jury to find beyond reasonable doubt that the applicant committed one or more of the particularised acts but was not satisfied that the Crown had proven beyond reasonable doubt that the applicant had the requisite knowledge (in the sense discussed at [240]ff, above), it would be open to this Court to quash the jury’s guilty verdict in respect of murder and enter a guilty verdict in respect of manslaughter, pursuant to s 7(2) of the Criminal Appeal Act. This argument was footed on the basis that this offence “is wholly within the facts on which the [applicant] has been convicted”. Alternatively, the Crown argued that the Court could order a new trial, pursuant to s 8 of the Criminal Appeal Act (Crown submissions at [108]-[109]).

3. [253]

   Given the conclusions I have reached, there is no basis for the entry of a substitute verdict or an order for a new trial, as the Crown argued.

4. [254]

   For the above reasons, I propose the following orders:

   1. (1)

      Extend the time for the filing of the notice of appeal to 7 January 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Quash the verdict of guilty of murder with respect to the indictment dated 23 May 2022.

   4. (4)

      Enter a verdict of acquittal on that charge.