Crane v Director of Public Prosecutions (NSW)

1. [1]

   Last Thursday 14 October 2021, James Peter Crane made a release application under the provisions of the Bail Act 2013 (NSW). Ierace J refused a previous application, conducted jointly with Mr Crane’s brother Colin Crane, on 12 February 2020. Accordingly, s 74 of the Bail Act created an initial obstacle to the application. The application was heard at the end of a typically busy bail list and the Court sat until about 4:45pm, when I reserved judgment and indicated I would make a decision and provide reasons within the week.

2. [2]

   The applicant was arrested on 30 April 2019 and charged with the murder of Clint David Starkey, an offence in which he allegedly participated with six other men on 5 April 2017. Mr Starkey died of blunt force injuries on 12 June 2017 after a prolonged stay in hospital. A joint trial of the seven accused was scheduled to commence before Fagan J on 12 July 2021 but the date was vacated because of the state-wide lockdown and health orders arising from the COVID-19 pandemic. Fagan J heard pre-trial arguments in July but the jury trial could not proceed. The trial is now listed to commence on 23 May next year. By then the applicant will have been in custody for over three years. Although pre-trial rulings were made in July, and Fagan J was seized of the facts of the case, no release application was made at that time.

3. [3]

   The fact that the applicant is charged with murder means he faces a further obstacle because s 16A of the Bail Act requires him to show cause why his detention is not justified. He bears the onus on that issue and, in a murder case, s 16A represents a substantial hurdle for an applicant seeking release on bail in advance of their trial.

4. [4]

   The Director of Public Prosecutions opposes the grant of bail. The Prosecutor submitted that the applicant had not established anything amounting to an exception to the s 74 prohibition on multiple release applications and that he had not shown cause why his detention was not justified. Further, the Prosecutor submitted that there were unacceptable risks in the release of the applicant to bail (see ss 17 – 19 of the Bail Act).

Section 74 and the prohibition on multiple release and detention applications

1. [5]

   Section 74 relevantly provides:

2. [6]

   Having heard the submissions of counsel for both parties, I indicated that I would not refuse to hear the application. I was satisfied that the requirements of both sub-s 3(b) and (c) were engaged. In particular, I was satisfied that:

   1. (1)

      The conditions of incarceration are more onerous as a result of the of the COVID-19 pandemic and the precautions and protocols introduced by Corrective Services. This is a circumstance relevant to the grant of bail that has changed since bail was refused in February 2020.

   2. (2)

      The additional evidence tendered on the application (witness’ statements, the deceased’s criminal history and a map) constitutes material information that was not presented on the previous application.

   3. (3)

      The vacation of the trial date and the delay of the trial by a further ten months, resulting in a three-year delay between the charge and the trial, is also a relevant change in circumstances. I could not accept the Prosecutor’s submission that Ierace J’s observation at [37] that a possible three year delay was “regrettable” (itself a masterstroke of understatement), which was made in the context of Colin Crane’s release application, denies this substantial additional delay of its quality as a change in circumstances relevant to the application for bail.

3. [7]

   The Prosecutor referred to the judgment of Campbell J in R v Fallon [2017] NSWSC 1796 where his Honour said at [15]:

4. [8]

   In considering that observation, it is important to appreciate the history of Mr Fallon’s bail applications, a matter that Campbell J said was “well to bear in mind”. Campbell J set out the brief history of release and detention applications at [5] – [7]:

5. [9]

   In deciding that the case did not satisfy the requirement in s 74(3)(b), Campbell J traced the history, and findings of relevant courts, by reference to the evidence of Witness X and its impact on the strength of the prosecution case. When Witness X “rolled” and agreed to give evidence against the applicant at trial, Latham J allowed a further application but still refused bail, assessing the prosecution case as strong; a similar finding that had been made by the Court of Criminal Appeal. By the time the matter came before Campbell J for a second time, the applicant relied on the assertion that Witness X failed to come up to proof when he gave evidence at the committal hearing. It seems the prosecution case was in more or less the same state as it was when Campbell J refused the earlier release application and the Court of Criminal Appeal allowed a detention application following the grant of bail by Harrison J.

6. [10]

   It is obvious that the chronology in Fallon was far removed from the position that prevails in Mr Crane’s present (second) application. Putting aside the refusal of bail in the Local Court, the applicant has made two applications to this Court and they were dealt with about 20 months apart, by which time circumstances had changed markedly.

7. [11]

   Insofar as the passage quoted at [7] above, read in isolation, might suggest otherwise, I do not accept that for information to be “material” for the purpose of s 74(3)(b), it needs to be established that the information might have changed the mind of the original decision maker. The Prosecutor correctly and properly conceded this in the following exchange:

8. [12]

   The applicant also relied on the unusual circumstance that both Colin Crane and James Crane were represented by the same legal representatives (solicitor and counsel) in the application resolved by Ierace J (James Crane is now represented by new and different lawyers and counsel). Given the availability of arguments on the facts and evidence available to James Crane that are potentially detrimental to Colin Crane’s case, I accept that it is puzzling that both accused men were represented by the same lawyers. However, it is inappropriate that the applicants’ choice of counsel and the ethical and forensic decisions made by their lawyers, be second guessed at this point. Mr Boland, who appeared for the applicant in the present application, was appropriately restrained and circumspect when interrogated on the issue. I am not convinced that this is a relevant change in circumstances for the purpose of s 74(3)(c) of the Bail Act, at least in the circumstances of this case. Further, as the Prosecutor demonstrated by reference to the bail judgment of Ierace J, his Honour treated the two release applications independently, even though they were conducted simultaneously and were disposed of in the same judgment and with the same outcome.

Show cause

1. [13]

   By virtue of ss 16A and 16B(1)(a) of the Bail Act, the applicant is required to show cause why his continued detention is not justified.

2. [14]

   Much has been written by the Court of Appeal, the Court of Criminal Appeal and single judges of this Court, as to the correct approach to be taken to an application in which the “show cause” requirement applies. [2] Successful detention applications in the Court of Criminal Appeal in murder cases demonstrate it is a substantial hurdle in such cases: see, for example, Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185 and Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190.

3. [15]

   While the intermediate appellate courts have emphasised that the two “stages” of the process - showing cause and unacceptable risk - must not be “conflated”, it is clear that many factual matters may be relevant to both questions. The results in past cases also demonstrate that delay, of itself, will not often amount to satisfaction of the show cause test, but it remains a significant matter to be considered in determining that question: see, for example, Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [44] (per RA Hulme J, Hoeben CJ at CL and Wilson J agreeing). In Zaiter, it was emphasised that bail decisions of individual judges of this Court do not generally provide precedent for the outcome in a subsequent case, because each bail decision is a decision on its own facts: see the observations concerning the “doctrine of precedent” at [30] – [33]. As Beech-Jones J (as his Honour then was) later pointed out, the same limitations apply to decisions of the intermediate appellate courts in determining bail applications: see Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [35].

4. [16]

   With those limitations in mind, it is nevertheless worth repeating certain observations about the relevance of delay that have been made in some past cases. In R v Kugor [2015] NSWCCA 14, Hoeben CJ at CL (RA Hulme J and RS Hulme AJ agreeing) said at [35]:

5. [17]

   In Zaiter, to which I have already referred, it was said at [42] – [44]:

6. [18]

   The words of Sperling J in R v David Peter Cain (No.1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9] continue to resonate, even today where delays of two years in the determination of indictable cases have become all too frequent:

7. [19]

   In the present case, the delay in the applicant’s trial resulted from a matter completely outside of his control. It was an example of one of the many impacts on the criminal justice system of the COVID-19 pandemic: see, for example, the cases collected in footnote [21] to my judgment in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [47]. [3] The delay of over two years was, to use the kinds of adjectives often employed by judges in this context, “troubling” and “concerning”. Once the trial date was vacated, and the delay between arrest and trial blew out to three years, the delay became a matter of real concern and a significant factor, albeit perhaps not a determinative one, in considering whether the applicant had shown cause why his ongoing detention is not justified.

8. [20]

   Further, the conditions of incarceration are more onerous at this time, a result of the necessary, but highly restrictive measures, implemented by Corrective Services. These measures, and their impact on inmates, are set out in the affidavit of Mr Mahon dated 6 October 2021 and the annexures thereto which was read in the applicant’s case on bail. The personal impact of the restrictions is described by the applicant’s fiancée Kathryn Needham in her affidavit dated 3 September 2021.

9. [21]

   In Mr Crane’s case, there is also a significant medical issue because of his age and a number of medical conditions that are described as “co-morbid” with COVID-19. These include his cardiac condition (paroxysmal atrial ectopics) causing chest pain and palpitations, his obesity and fatty liver, Crohn’s disease, sleep apnoea and, other symptoms which may be associated with the above conditions, including sudden bouts of unconsciousness and shortness of breath. These are conditions which would always have some relevance to a release application but they are even more potent in light of the pandemic. It is true, as the prosecutor points out, that Mr Crane has received two doses of the vaccine and receives medical treatment while in custody, but the fact remains he is more vulnerable as a result of his medical conditions. Neither of the vaccines currently in common use in Australia has a 100% success rate in preventing the disease, and neither provides a fail-safe precaution against sudden death or serious medical complications should a vulnerable person contract the virus.

10. [22]

    I have considered the competing submissions of the parties concerning the strength of the prosecution case. I have considered, but do not have time to reproduce or summarise, the prosecution case statement (part of Exhibit A tendered by the Director) or the statements of Luke Cannon, Nikki Tedder and Erin Roper (part of Exhibit 1 and relied on by the applicant). The prosecutor submits the case against the applicant is “reasonably strong” while Mr Boland submits “the [prosecution] case on ‘murder’ might be assessed as decidedly weak”.

11. [23]

    The case against the applicant is a circumstantial one, but one that has considerable force, at least in giving rise to an inference that the applicant was acting in concert with some, or all, of the co-accused. The applicant was not present when the deceased was brutally bashed to death by four men, with whom both Crane brothers had associations, including through the Rebels Motorcycle Club. However, the evidence demonstrates the applicant was in telephone communication with the (alleged) co-offenders immediately before a number of relevant meetings and, critically, before the assault of Clint Starkey on 5 April 2017. He was also present, or nearby, a meeting that took place at the Mangrove Mountain General Store on 3 April 2017.

12. [24]

    The applicant was in contact with his brother and Simon Rodden, the man who drove the deceased to the murder scene shortly before the incident. The CCTV footage capturing the assault that led to Mr Starkey’s death suggests that those involved had an immediate intention to inflict (at least) grievous bodily harm. The footage, which I reviewed in chambers at the invitation of the Prosecutor, showed that Mr Rodden and Mr Starkey at the service station and in the attached shop for some time before two cars pulled up. Mr Rodden seemed to be aware of the presence of CCTV cameras because he mouthed an obscenity at one of the cameras while he was inside the shop. His actions at that time might lead to the jury to infer that he was stalling to keep Mr Starkey at the scene. After the attendant closed the shop, two cars pulled into the service station and four men quickly approached Rodden’s car and pulled Mr Starkey onto the ground and set upon him. It was a brutal assault. A man I understand to be Guy Robertson stomped on his head while he was lying defenceless on the ground.

13. [25]

    The evidence will also establish contact between the applicant and other participants in the aftermath of the assault and death of Mr Starkey. This includes intercepted calls in which the applicant expressed his displeasure at one offender providing an induced statement to the police.

14. [26]

    The prosecution will invite the jury to infer that during a six minute phone call between the applicant and Simon Rodden (who was at the local Memorial Club at the time), the applicant was seeking Mr Rodden’s assistance to find the deceased and take him to a location where he would be assaulted. The prosecution will rely on a text message sent by Mr Rodden shortly after he left the Club in which he told the applicant he was “going to the servo now”. The assault took place a short while later at the Caltex Service Station at Peats Ridge. Mr Rodden drove the deceased to the location and the group of assailants, with various connections to the Rebels, arrived around five to ten minutes later.

15. [27]

    The evidence also demonstrates that the deceased was expressing, in strong language, his intention to harm or kill Colin Crane. It was submitted that he had a reputation in the area for the use of guns and his criminal history was relied on in support of that contention. However, that submission fell away to a degree when it was pointed out by the Prosecutor that few of the charges on the deceased’s criminal history resulted in convictions. There is also a limited amount of evidence, as I understand it, supporting the submission that the deceased’s reputation was well-known. On the other hand, there seems to be clear evidence of threats by the deceased directed to Colin Crane at about the relevant time. These included a direct threat to kill him by “sniper” fire from the top of the hill. There is also evidence that a number of people, including Colin Crane’s partner, the manager of the local club and an employee of that club, took those threats seriously. This evidence cuts both ways. On the one hand, it may provide Colin Crane and the applicant with a motive to engage their associates from the Rebels to do harm to Mr Starkey. On the other hand, it might give rise to innocent explanations for the flurry of communications around the relevant time. As Mr Boland said in his submissions on the bail application, in light of those threats it is hardly surprising that Colin Crane, his brothers and others were keen to know exactly where Mr Starkey was and that he was not in a location where it was possible for him to carry out the threats he was making at the club. It was in this last regard that the map tendered on the application had some relevance.

16. [28]

    The inferences to be drawn will be a matter for the jury and it will be for the prosecution to exclude all inferences inconsistent with the applicant’s guilt.

17. [29]

    My assessment, on the limited material available is that the case against the applicant is tenable if not strong. I do not accept Mr Boland’s submission that it is a weak prosecution case. However, in relation to the murder charge, it is far from overwhelming. When Mr Rodden was first spoken to, he told the police “it was supposed to be a touch up but that was way more than a fucking touch up”. One possible outcome at the trial, and one that would be consistent with that statement by Mr Rodden, is that the jury could return a verdict of manslaughter on the basis that the applicant was party to an agreement to assault but did not foresee the possibility that the assailant(s), or any one of them, would act with a murderous and specific intention. It is also possible that the jury will not be satisfied to the criminal standard that the applicant was a party to the joint criminal enterprise.

18. [30]

    The Prosecutor will also rely on derivative liability, asserting that the applicant was an accessory before the fact. However the same issues arise as the above with the case if framed or conducted in that alternative matter.

19. [31]

    I have considered the applicant’s criminal history, ties to criminal organisations (that is the Rebels) and his family and community ties. These matters, while also relevant to an assessment of risk, must also be taken into account in determining whether the applicant has shown cause why his detention is not justified.

20. [32]

    I am satisfied on the balance of probabilities that Mr Crane has shown cause why his detention is not justified. This finding is largely based on (i) the extensive delay resulting from the vacation of his trial date, (ii) the conditions of incarceration, (iii) his age, medical conditions and his particular vulnerability to the COVID-19 virus, and (iv) his alleged role in the enterprise and the potential flaws in the prosecution’s circumstantial case against him. In that last regard, he is in a very different position to his brother (Colin) and to those alleged to have been present at the scene at the time of the assault that led to Mr Starkey’s death.

Bail concerns and an assessment of risk

1. [33]

   That is not the end of the matter as the judgment of Beech Jones in Mawad [4] demonstrates. It is necessary to undertake an assessment of risk for the purposes of ss 17- 19 of the Bail Act.

2. [34]

   The Prosecutor pointed to a number of bail concerns and I am satisfied that the following bail concerns exist under s 17 of the Bail Act:

3. [35]

   The question is whether, in light of the catalogue of matters to be considered under s 18 of the Bail Act, those concerns constitute unacceptable risks.

4. [36]

   I am not satisfied there is an unacceptable risk that the applicant will fail to appear. He has extensive community ties and his criminal history does not support the proposition that he is a flight risk. He is also in a position to offer substantial security should he fail to appear. This includes the deposit of $2,500 in cash by his fiancée Kathryn Needham, and a secured promise by Ms Needham’s father to forfeit $150,000 should the applicant fail to appear.

5. [37]

   In relation to the other bail concerns, I have considered the applicant’s criminal history closely. I do not accept that it is a “minor” criminal history but it is far from the worst I have encountered. The most recent offences involving actual violence (an assault occasioning actual bodily harm) took place ten years ago and was dealt with by way of a fine and a bond. There was a stalking/intimidation offence in 2016 which again, was dealt with by a bond. The only really serious cases of violence involved a series of offences dealt with in the Sydney District Court in 1987 and resulted in a relatively short gaol sentence. That was more than thirty years ago. The applicant is now in his mid-fifties with a variety of health conditions. His record does not suggest that he has breached conditional liberty in the past or that, in spite of his associations with the Rebels, he has demonstrated a consistent pattern of disobedience to the law.

6. [38]

   It is also to be observed that the current incident, whatever involvement the applicant had, took place in the very peculiar circumstance of the deceased man making serious threats against a member of the applicant’s family. That situation seems very unlikely to arise again during the period of remand.

7. [39]

   While the concern identified by the prosecutor (and investigating police) that the applicant may interfere with witnesses is a real one, there is no evidence that he attempted to do so from the time others began to be arrested for their involvement in (or cover up of) the murder, which was in October 2017, and the time the applicant went into custody, which was 30 April 2019. . There is nothing to suggest he has used his Rebels’ connections to attempt to interfere with the investigation since he was taken into custody.

8. [40]

   The bail conditions proposed are strict and include a curfew and various other conditions calculated to mitigate the risks and concerns identified. I would impose more stringent conditions and, if requested, allow enforcement of those conditions if sought by the prosecutor.

9. [41]

   Having considered the various relevant matters under s 18, I am satisfied that, with the imposition of such stringent conditions, there are no unacceptable risks for the purposes of s 19 of the Bail Act.

10. [42]

    For those reasons, the release application is allowed and bail will be granted on the following conditions:

    1. (1)

       The applicant is to appear at his trial in the Supreme Court at Sydney on 23 May 2022 and at such other time and place as required.

    2. (2)

       He is to be of good behaviour.

    3. (3)

       He is to reside at 24 Lakala Avenue, Springfield NSW 2250 (“the bail residence”)

    4. (4)

       He must report to the Gosford Police Station daily between the hours of 8:00am and 6:00pm.

    5. (5)

       He is not to leave the bail residence between the hours of 7:00pm and 7:00am, except in the case of a medical emergency.

    6. (6)

       He is not to enter the suburb of Mangrove Mountain NSW 2250.

    7. (7)

       He is not to leave the state of New South Wales.

    8. (8)

       He is not to apply for any new passport or travel document.

    9. (9)

       He is not to go within 500 metres of any international points of departure.

    10. (10)

        He is not to make contact in any way, directly or indirectly, except through his lawyers, with any person he knows is or may be a prosecution witness at his trial or in any associated criminal proceedings.

    11. (11)

        He is not to contact in any way, directly or indirectly, except through his lawyers, any co-accused or any person who has been charged with any offence arising out of the death of Clint David Starkey.

    12. (12)

        He is not to have any contact, apart from through his lawyers, with any person he knows to be a member of the Rebels Outlaw Motor Cycle Club or any other Outlaw Motor Cycle Club.

    13. (13)

        He is to use and possess one (and one only) mobile telephone and is to provide details of this device (including telephone number, subscriber details and handset IMEI number) to the police officer in charge of the investigation within 24 hours of his release.

    14. (14)

        He is to use only one laptop or tablet and is to provide details of this device to the officer in charge within 24 hours of his release.

    15. (15)

        The applicant is to consent to the police inspecting his mobile telephone, laptop or tablet and provide necessary passcodes etc to allow such inspection, provided always the police have reasonable grounds to suspect that the applicant has used such devices to breach these bail conditions.

    16. (16)

        One acceptable person is to deposit the sum of $2,500 in cash and enter an agreement to forfeit that sum if the applicant fails to appear in accordance with his bail undertaking.

    17. (17)

        One acceptable person is to enter an agreement to forfeit the sum of $150,000.00 if the applicant fails to appear in accordance with his bail undertaking and is to deposit acceptable security in that sum.

11. [43]

    The applicant is to present himself/ herself at the front door of his residential premises at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.