There has arisen in this trial a contested issue as to how the jury should be directed with respect to self defence. This has been raised in the cases of Adam Symons and Beau McDonald. The Crown alleges that the death of the deceased, Clint Starkey, resulted from one or more blows delivered in the course of a collective bashing by four of the accused, namely, Symons, McDonald, Robertson and McDonough. The evidence would not permit the jury to find that blows administered by any individual accused were a substantial cause of death independently of blows delivered by one or more of the others. The only basis upon which the Crown alleges that Symons or McDonald committed acts causative of the death of Clint Starkey, in relation to which self defence would fall to be considered, is if the blows delivered by all four of the accused can be attributed to each of the others on the basis of joint criminal enterprise or extended common purpose.
Symons and McDonald have both given evidence that when they attended the scene of the attack at the Caltex service station at Peats Ridge shortly after 10:00pm on 5 April 2017, there was no preconcert between them or with Robertson or McDonough to cause grievous bodily harm, or any harm, to Clint Starkey.
CCTV from the service station shows that as Rodden drove the Ford Territory, in which Clint Starkey was the front seat passenger, slowly towards the service station exit, Symons drove a red Commodore, with McDonald as his passenger, toward that vehicle. Symons stopped the red Commodore adjacent to the Ford Territory, with his driver side door closest to the passenger side of the Territory. As the red Commodore came to a stop, Symons and McDonald alighted immediately and almost at the same instant. Symons walked straight to the front passenger door of the Ford Territory. According to Symons' evidence, he did so for the purpose of having a discussion with Starkey.
Simultaneously with Symons' car coming to a stop, Robertson and McDonough ran towards the driver side of the Ford Territory. They ran from where their vehicle was parked, approximately 30m away to the right. They reached the driver door of the Territory as Symons and McDonald stepped out of the red Commodore.
The CCTV shows that Symons went straight to the passenger door of the Ford Territory, opened it, hauled Clint Starkey out and threw him to the ground, all without pause or interruption. McDonald came around the front of the red Commodore and arrived next to Symons within about two seconds of Clint Starkey landing on the ground. At the same time Robertson and McDonough ran around opposite ends of the Ford Territory and arrived at where Clint Starkey lay, near the rear passenger door of the Territory, as McDonald also arrived there. All four men commenced kicking and stomping on Clint Starkey the moment they were close enough to do so; that is, within two seconds of Mr Starkey landing on the ground. The combined assault continued for about 25 seconds, at the end of which Clint Starkey lay motionless and apparently unconscious.
Symons gave evidence that when he was within an arm's length of the front passenger door of the Ford Territory he saw the barrel of a gun in Clint Starkey's hands, in front of his chest. He said that Clint Starkey dropped the gun and that Symons then opened the door and hauled him out onto the ground, at the same time calling out in a loud voice to McDonald, "He's got a gun". Symons said that he kicked, punched and kneed Clint Starkey with the intention of winding him, "to give myself enough time to go". He said that all of his actions toward Clint Starkey were taken because he believed them necessary to defend himself and the others who were present.
McDonald gave evidence that he got out of the red Commodore and walked around the front of it toward the Ford Territory because Symons had, shortly beforehand, pointed out Clint Starkey at the passenger side of the Territory. McDonald said that during the drive up from Woy Woy to Peats Ridge, Symons had told him that Clint Starkey was "a psycho" who had been "threatening people up on the mountain". McDonald said that from this he had concluded that Clint Starkey was dangerous.
McDonald said that he was behind Symons as the latter got close to Clint Starkey's passenger side door. When Symons was "at least an arm's length in front of the door", McDonald heard him say, "He's got a fucking gun". According to McDonald he "proceeded to join in with" Symons in attacking Clint Starkey, "to protect not only myself but I wanted to protect Adam so we did not get shot". The CCTV records that from when Symons as within an arm's length of the passenger door of the Territory to the point where all four men were engaged in kicking and otherwise assaulting Clint Starkey was no more than six seconds.
Clint Starkey never recovered consciousness and died approximately nine weeks after the assault. The Crown has adduced evidence from which it would be open to the jury to conclude that one or more of the blows sustained at the hands of the four assailants on 5 April 2017 was a significant cause of death. It has not adduced evidence from which the jury could be satisfied that any one or more blows delivered by any individual assailant was a substantial cause of death.
The relevant parts of the Crimes Act 1900 (NSW) concerning self defence are as follows:
418 Self-defence - when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary -
(a) to defend himself or herself or another person, […]
and the conduct is a reasonable response in the circumstances as he or she perceives them.
419 Self-defence - onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
421 Self-defence - excessive force that inflicts death
(1) This section applies if -
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary -
(c) to defend himself or herself or another person […]
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
On the evidence summarised above it would be open to Symons and McDonald not to invoke self defence under ss 418 and 421 of the Crimes Act at all but instead to advance the contention that they responded to a threat of harm from Clint Starkey as a hypothesis consistent with innocence. The Crown case that they were parties to a joint criminal enterprise is wholly circumstantial. A very significant element of the circumstantial case is the CCTV footage of what occurred at the service station. The events recorded by CCTV are open to the interpretation that the actions of the four assailants were unhesitating and coordinated. On that view their acts could be regarded by the jury as indicating that they were carrying out a plan that they had agreed upon before they arrived. The proposition that their acts were, instead, a spontaneous reaction to a shouted warning from Symons is a putative alternative explanation of the circumstances. Defence counsel might endeavour to persuade the jury that it is reasonably possible - and not excluded by the Crown's evidence - that all four acted in response to a perceived need to defend themselves and not in furtherance of a preconcert.
If defence counsel were to accept that that is the manner in which they rely upon Symons' and McDonald's evidence of a perceived threat from Clint Starkey, the necessary direction to the jury would be straightforward. It would merely be required that this alternative hypothesis, advanced to explain the accused's conduct at the service station, be identified in the course of outlining to the jury the competing positions of the Crown and the defence as to whether preconcert has been proved beyond reasonable doubt by circumstantial evidence. However, Symons and McDonald submit that the jury should be directed in terms of ss 418 and 421. I have concluded that s 421 is not engaged and that it cannot be left open to the jury to return a verdict of guilty of manslaughter on the basis of excessive self defence.
I will direct the jury to address the following questions, taking the case of Adam Symons as an example:
Joint criminal enterprise - murder
2. Has the Crown proved beyond reasonable doubt that when Clint Starkey received the blow or blows that was or were a significant contributing cause of his death as found in answer to Question 1, Adam SYMONS was party to an agreement with the other alleged assailants that between them they would:
(a) inflict grievous bodily harm, intentionally, upon Clint Starkey
OR
(b) assault Clint Starkey unlawfully, Adam SYMONS foreseeing the possibility that in carrying out the agreement one or more of the parties to it might intentionally cause grievous bodily harm to Clint Starkey?
NOTE: "grievous bodily harm" means really serious injury.
"an assault" may be committed by physical striking and will be unlawful if committed without consent and not in self defence.
• If yes to either (a) or (b), go to Question 3.
• If no to both (a) and (b), go to Question 4 concerning joint criminal enterprise to commit manslaughter.
3. Has the Crown proved beyond reasonable doubt that when Clint Starkey was struck the blow or blows that was or were a significant contributing cause of his death as found in answer to Question 1, Adam SYMONS
(a) attended at the scene with the other alleged assailants and pulled Clint Starkey from the Ford Territory vehicle and together with the other alleged assailants inflicted blows upon him in furtherance of the agreement found in answer to Question 2
AND
(b) did not pull Clint Starkey from the Ford Territory vehicle and inflict blows upon him in response to a belief on Adam SYMONS' part that his conduct was necessary to defend himself or any other person against Clint Starkey?
• If yes to both (a) and (b), find Adam SYMONS guilty.
• If no to either (a) or (b), find Adam SYMONS not guilty.
Questions 2 and 3 are directed, respectively, to whether the Crown has proved a joint criminal enterprise and, if so, whether Symons participated in carrying out the enterprise by playing his part in the combined assault. The evidence of Symons and McDonald regarding their claimed need to defend themselves against Colin Starkey's potential use of a gun only requires that within Question 2 the jury be specifically directed to decide whether the Crown has proved that that was not the reason or purpose for which Symons wrenched the deceased from the car and struck him.
Counsel for Symons submits that the jury should be directed to consider, first and as a matter anterior to whether Symons' individual acts were in furtherance of the joint criminal enterprise, the question whether he believed it was necessary to defend himself by the commission of his own acts and whether those acts were a reasonable response. That would lead to the jury considering both Symons' claimed defensive state of mind with respect to his individual acts and the proportionality of his individual acts, in circumstances where there is no evidence that those individual acts were a cause of death. There is no Crown case and no evidence that Symons' individual acts, divorced from their character as acts in furtherance of the joint criminal enterprise alleged by the Crown, were causative of Clint Starkey's death so as to give rise to criminal liability for the death.
Disregarding, for the moment, the burden of proof, the threshold question is whether Symons took part in assaulting Clint Starkey in furtherance of a preconcert or in self-defensive response to a threat. If it is the latter and not the former, then the acts of the other three assailants are not attributable to him. As the only acts for which he could in that case be liable, namely, his individual blows, are not alleged or proved to have been independently a substantial cause of death, Symons would be entitled to acquittal. There would be no occasion for the jury to consider whether Symons' individual response to the threat that he claims to have perceived was reasonable. Section 421 would not be engaged. The force used by Symons individually is not alleged, let alone proved, to have "[involved] the infliction of death": see s 421(1)(a).
I find support for these conclusions in the judgment of Simpson AJA (Bellew and Wilson JJ agreeing) in R v Basanovic [2018] NSWCCA 246. In that case the Crown alleged that Michael and Wade Basanovic agreed to kill or cause grievous bodily harm to the deceased, M. Wade went to the yard of M's business and armed himself with a pistol. Wade and Michael shortly afterwards attended M's office where a heated argument took place. Both Wade and Michael gave evidence that at the end of this meeting M threatened that they would be killed. Wade then shot M five times with the pistol. Both Wade and Michael said that they had feared M as a violent and dangerous person for a considerable period before the meeting. The Crown charged both men with M's murder. Michael had not committed any act causative of death. The Crown sought to hold him criminally liability for the shooting of M by Wade, solely on the basis of the alleged joint criminal enterprise to kill or cause grievous bodily harm.
Simpson AJA's judgment included the following:
[91] It is then necessary to consider the position in relation to Michael Basanovic. For either self-defence or excessive self-defence to be left to the jury there would need to be an evidentiary basis to establish (notwithstanding that he gave no evidence of any relevant belief) that Michael Basanovic believed that his conduct that constituted the offence was necessary to defend himself […].
[92] That raises squarely the question of what is the conduct (of Michael Basanovic) "constituting the offence" [within the meaning of s 418(1) of the Crimes Act]? As in the case of Wade Basanovic, the "conduct constituting the offence" was the firing of the pistol. But that was not conduct carried out by Michael Basanovic: it was conduct for which he became criminally liable only by the application of the doctrine of joint criminal enterprise.
[93] In the case of Michael Basanovic the jury could not get to the point of considering self-defence (or excessive self-defence) unless it first accepted the Crown case that he was party to a joint criminal enterprise with the stated object - killing or causing serious injury to Mr Mitrovic. As the trial judge correctly directed the jury, unless they were satisfied to the requisite standard of that fact, Michael Basanovic was entitled to be acquitted. Self-defence would not arise.
[94] Joint criminal enterprise is, essentially, an agreement. Although it does not appear ever to have been spelled out with clarity, it seems that, on the Crown case, the agreement was made at some time prior to the excursion to [M's business premises]. The trial judge directed the jury that the Crown alleged that the agreement was made no later than at the time Wade Basanovic telephoned Michael Basanovic from [the] yard. That of itself does not preclude a defence of self-defence in conjunction with joint criminal enterprise, although it may be supposed that, the further removed in time the agreement from the actual conduct constituting the offence, the more difficult it will be to persuade a jury that the conduct was a reasonable response (or, more accurately, the easier it will be for the Crown to disprove that).
[95] The judgment of McHugh J in Osland v The Queen throws some light on these difficult issues. In that case, a mother and son (David Albion) were alleged to have entered into an agreement to kill the mother's husband, the son's step father (Mr Osland). The son beat Mr Osland with an iron bar, causing his death. Mother and son were jointly tried for murder. Both pleaded self-defence, alleging years of violence and brutality by Mr Osland. That defence on the part of the mother was rejected by the jury and she was convicted of murder. The jury was unable to agree on a verdict for the son. He was subsequently tried by another jury and acquitted. The mother appealed to the High Court, claiming that the verdicts were inconsistent.
[96] As indicated above, three of the five members of the court rejected that contention, expressing their reasons differently. McHugh J said:
[128] […] neither as a matter of law or logic is there any inconsistency in finding that David Albion was acting in self-defence or under provocation and at the same time acting pursuant to an understanding or arrangement. After all, the whole basis of their case was that they agreed to kill Frank Osland because that was the only way that they could defend themselves from the attack that they feared would kill one or both of them. […]
[129] Nor is there any inconsistency in the jury failing to agree on whether David Albion was acting in self-defence while convicting Mrs Osland. His act or acts are consistent with him acting in self-defence and in accordance with the agreement or understanding even though Mrs Osland was not acting in self-defence when she entered into the understanding and was present at the scene while David Albion struck the fatal blow or blows.
In cases where the accused claims that a joint criminal enterprise was entered into for self defence purposes from the outset, such as Osland v The Queen [1998] HCA 75; (1998) 259 CLR 380 and the aspect of the facts in R v Basanovic that Simpson AJA considered in the passage quoted above, there will be different considerations from those presented where, as here, the joint criminal enterprise is alleged to have been formed before the events that the accused relies upon to ground self defence. However, in every case where joint criminal enterprise is the sole basis for holding an accused criminally liable for acts of others that cause death, Simpson AJA's point remains: there is no "conduct [of the accused] constituting the offence" of murder, against which self defence may be invoked and left to the jury, unless the essential elements of liability pursuant to joint criminal enterprise are established. Those essential elements, so far as they are in contest in the present case, are an agreement to inflict grievous bodily harm (or an agreement to assault with contemplation of intentional infliction of grievous bodily harm) and acts in furtherance of that agreement.
The jury must be directed to determine first the contested basis of Symons' criminal liability for his co-accused's fatal blows. In view of Symons' evidence about having reacted to the sight of a gun, resolution of whether the Crown has proved that his part in the attack was in furtherance of the alleged agreement with the other assailants will require simultaneous consideration of whether the Crown has disproved that he responded defensively. These alternatives are the obverse of each other on the evidence in this case. The Crown must prove the first and disprove the second. Logically, proof of the first encompasses disproof of the second but, for abundant caution, Question 3 will be framed as set out above, incorporating both parts. If the jury should find that the Crown's burden of proof has not been discharged in this respect, Symons could have no criminal responsibility for the blows struck by the co-accused, amongst which, indistinguishably, lay the cause of death. He would be entitled to acquittal. The question of "reasonable response" under s 421(1)(b) would in that case not arise. A verdict of guilty of manslaughter could not be returned because the jury could not find that Symons' individual acts caused Clint Starkey's death.
It was submitted by the Crown that there should be left to the jury the possibility of finding that Symons saw a gun or thought he did, that he shouted a warning, that he and the other three then all perceived need to defend themselves and that they thereupon instantaneously formed a tacit agreement to assault Clint Starkey in self defence. It was submitted that under such an instantly formed understanding each would be criminally responsible for the blows delivered by each other, pursuant to the doctrine of joint criminal enterprise. It was then submitted that if the force used was not a reasonable response in the circumstances as the assailants perceived them, each would be guilty of manslaughter by operation of s 421.
The whole reason for the Crown advancing this scenario is to establish a basis upon which all blows that were inflicted after a warning about a gun could be attributed to each of the four assailants. To support a verdict of manslaughter by excessive self defence on this basis, the burden would rest upon the Crown to satisfy the jury beyond reasonable doubt that a tacit agreement to inflict blows was formed after a shouted warning from Symons. In my view there is no evidence upon which the jury could so find. As recounted earlier, McDonald said that Symons gave the warning when he was within an arm's-length of the passenger door of the Ford Territory. The CCTV shows that it could not have been any earlier than that because Symons could not have seen a firearm in Clint Starkey's hands until he reached that position. From then, only three seconds elapsed until Symons had hurled Clint Starkey to the ground and only a further three seconds until all four assailants were physically attacking him.
There is no evidence of any form of communication between the four assailants in the six seconds from the time at which the warning might have been shouted until they all joined in the attack; that is, no evidence of any communication by which they could have signified to each other agreement to take concerted action. During those few seconds between the putative catalyst for forming such an agreement and the joint implementation of the supposed agreement by acts of violence, Symons had his back to McDonald and those two were separated from Robertson and McDonough by the Ford Territory. The participation of each assailant in punching, kicking and stomping upon Mr Starkey is not capable, on its own, of constituting evidence that an understanding to inflict these blows had been reached within the preceding six seconds. In that respect, the scenario propounded by the Crown in its endeavour to engage s 421 is in sharp contrast with its main case. According to that case, the concerted nature of the attack upon Clint Starkey is powerful circumstantial evidence of preconcert when taken together with other evidence that the four men had travelled from Woy Woy in a convoy of two vehicles, to a service station in a fairly remote location that had closed for the evening, they being in communication with the Crane brothers who knew that Clint Starkey was there, and upon arrival had proceeded without hesitation to launch their attack.
The above reasons are expressed by reference to the position of Symons but they apply equally to McDonald. They also apply to the two other assailants, Robertson and McDonough, whose counsel will submit to the jury that they would have heard Symons' warning and acted in self defence, rather than in furtherance of a joint criminal enterprise formed prior to their arrival at Peats Ridge.
[2]
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Decision last updated: 13 September 2022