Robertson v R

Background

1. Clint Starkey died on 12 June 2017 following a violent assault upon him on the forecourt of a Caltex Service Station at Peats Ridge on 5 April 2017. The entire incident was captured on CCTV, which became an exhibit in the trial. Mr Robertson was one of four assailants who participated in the infliction of injuries to Mr Starkey by punching and kicking him as well as stomping on his head as he lay on the ground. The Crown case was that Mr Robertson was part of a joint criminal enterprise with Adam Symons, Beau McDonald and Jake McDonough, as well as others not present at the scene, who agreed to inflict grievous bodily harm upon Mr Starkey either in retribution for threats made to the partner of one of the co-offenders or as a warning to him for having done so.
2. It is clear from the video, and is not relevantly in dispute, that Mr Starkey was conveyed to the service station in a vehicle driven by Simon Rodden. The assailants arrived a short time later. Mr Symons then approached the driver's door. It is alleged that at that time, Mr Symons called out words such as "[h]e's got a gun", referring to Mr Starkey, who was still in the front passenger's seat. Mr Symons then opened his door and Mr Starkey was dragged out of the vehicle and forced onto the ground beside it at which location he was fatally assaulted.
3. The Crown case was that the joint criminal enterprise was formed some little time before and distant from the service station. The Crown contended that it continued up to and including the time when the assault upon Mr Starkey ceased and the assailants left. It was Mr Robertson's case at trial that he was not guilty of murder but guilty of manslaughter. Indeed, he pleaded guilty to manslaughter, a plea that the Crown did not accept. It is clear that the physical acts constituting the relevant assault upon Mr Starkey by any of the assailants were all committed or performed by them or any of them after Mr Symons is said to have alerted them to the existence of a gun. Mr Robertson's case was that from the point at which he became alerted to the possibility that Mr Starkey had a gun, he was no longer a party to a joint criminal enterprise with the others but was acting in self-defence.
4. It was in these circumstances that Mr Robertson contended at trial that the jury should be directed upon the issue of excessive self-defence which he maintained informed the basis for his plea of guilty to manslaughter. That contention was the subject of considerable debate, which culminated in his Honour's judgment on 5 July 2017: R v Crane & Ors (Trial Ruling No 10). It is convenient to refer to that judgment first.

The judgment

1. His Honour commenced his judgment with the following introductory paragraph: "[1] 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."
2. Although his Honour refers to the issue of self-defence having been raised in the case of Adam Symons and Beau McDonald, the judgment is apt to extend in cognate terms to the case of Mr Robertson.
3. At [9] his Honour said this: "[9] 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." [emphasis added]
4. His Honour included a summary of the events at the service station on 5 April 2017 at paragraphs [2] to [8] of his judgment. His Honour continued at [11] and [12] as follows: "[11] 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. [12] 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 [sic] 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."

The first evidentiary conclusion

1. The first conclusion draws attention to the well-established authorities that oblige a trial judge to direct the jury upon the availability of a verdict of not guilty of murder but guilty of manslaughter by reason of some discernible path of reasoning, such as excessive self-defence. A general discussion of the circumstances touching the forensic considerations of directing juries on alternative verdicts can be found in the judgment of this Court in Lane v The Queen (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [32]-[35]: "[32] During the entire course of the trial there was never any suggestion that an alternative verdict of manslaughter ought to have been left to the jury. Whether an accused person seeks such a direction sometimes hinges upon tactical considerations. It should not be assumed that it is always to the advantage, or perceived to be to the advantage, of a person accused of murder to have the jury given the option of returning an alternative verdict of guilty of manslaughter. That may be seen to be offering the jury a middle path between conviction of murder and acquittal. Such a case was Mraz v The Queen [1955] HCA 59; 93 CLR 493 (see below). A person accused of murder may perceive an advantage in casting upon the jury the responsibility of determining whether he or she is guilty of murder, or is to be acquitted, with no middle course available. Although the tactical considerations had added force in the days when the penalty following a conviction for murder was or could be death, the consideration, while diminished somewhat, still remains valid. In Mraz, in a joint judgment, Williams, Webb and Taylor JJ said: 'As those who are familiar with murder trials well know, if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death ... Whilst, perhaps, the like comment may not now be made with quite the same force it is clear that the appellant was entitled to have the issues decided upon the graver charge and, to us, it seems quite wrong to attempt to justify the verdict of manslaughter, returned in the circumstances of this case, by the observation that the jury, upon an issue of manslaughter which they were invited to consider, must have reached conclusions on issues of fact which would have required them, if properly instructed, to have returned a verdict of murder. It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions.' (italics added) [33] Fullagar J said: 'In many murder trials the question whether the possibility of a verdict of manslaughter should be raised presents a serious problem to counsel for the accused. Probably in most cases it is regarded as disadvantageous to the accused to suggest the possibility of a verdict of manslaughter. A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them. The position is well illustrated by Ross v The King [1922] HCA 4; 30 CLR 246] ... In the same case in the High Court Higgins J. said:- "I thoroughly concur with the view put by the Supreme Court that 'the absence of any express direction as to manslaughter was an omission, as far as it went, entirely in the prisoner's favour'. As those who are familiar with murder trials well know, if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death" ... In the present case the jury may well have hesitated long before convicting the appellant of murder, and it is very far indeed from clear that the misdirection did not operate to his grave disadvantage. In such circumstances it is impossible to say that no substantial miscarriage of justice has occurred. These 'too favourable' directions can only too often be veritable gifts from the Greeks." Mraz was a rare case in which it was held to have been erroneous to leave to the jury an alternative verdict of manslaughter. At trial, Mraz was acquitted of murder but convicted of manslaughter. That verdict was set aside and a verdict of acquittal entered. [34] The italicised passage from the joint judgment was quoted by Gleeson CJ and Gummow J in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [14], with the comment: '17 When, in Mraz, the majority referred to 'ignoring the realities of the matter', one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a "murder-or-nothing" basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.' [35] That it may not be to the advantage of an accused person to have an alternative verdict of manslaughter left was also specifically recognised by Kirby J in Gillard v The Queen [2003] HCA 64; 219 CLR 1. His Honour set out a series of propositions of which the eighth and last was: '83 Eighthly, great care on the part of a trial judge is needed to ensure that, by posing the possibility of a verdict of manslaughter, the judge does not effectively deprive an accused of a verdict of acquittal ...'"

The second evidentiary conclusion

1. The second conclusion, asserted by the accused below and in this Court, as well as the Crown below but not in this Court, can be seen to have been developed and articulated in submissions made to his Honour. The proposition that was advanced for Mr Robertson and the others was that the several assailants were acting together in self-defence pursuant to some agreement formed by them when Mr Symons' reference to the gun transformed their joint criminal enterprise to assault Mr Starkey into a concerted effort to defend themselves. A variation of this proposition is that even if the assailants were not in a joint enterprise to assault Mr Starkey when they arrived at the service station, they were shortly thereafter nonetheless all confronted with the prospect of him having a gun and were accordingly entitled in concert to take steps to defend themselves and tacitly agreed to do so. The need for such a joint response would appear to be an acknowledgement of the accepted reality, inherent in his Honour's first conclusion, that the acts of any single assailant could not be shown to have been involved in the death, in which case his Honour's first conclusion would apply.
2. The real issue seems to me to be whether there was evidence capable of going to the jury that established the existence of some agreement among the assailants to act in concert to defend themselves. The only material in the trial capable of amounting to evidence of the formation of an agreement to act in concerted defence of the perceived threat is the CCTV footage of the incident and the suggestion that Mr Starkey had a gun. In that context, the Crown made the following submission below: "CROWN PROSECUTOR: Your Honour, I think I have made my point. The point that I wanted to make that it may be reasonably open, that it may be a pathway and that having seen the gun that they are now acting in concert in response to it…".
3. His Honour dealt with the extent of the evidence about this as follows: "[21] 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. [22] 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. [23] 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 proviso

1. Dhanji J has dealt with the proviso in terms with which I agree. Excessive self-defence must be taken to have been central to Mr Robertson's plea of guilty to manslaughter. The failure to direct the jury appropriately amounted to a miscarriage of justice.

Orders

1. It follows that Mr Robertson's conviction must be quashed and a new trial ordered. I agree with the orders proposed by Dhanji J.
2. CAVANAGH J: Harrison CJ at CL and Dhanji J have both prepared extensive judgments setting out the facts and issues arising on this appeal. They take slightly different approaches but come to the same conclusion. Whilst I agree with much of what their Honours say, I have come to a different conclusion for the reasons set out herein.
3. This appeal raises an issue as to the intersection between a conviction sought on the basis of a joint criminal enterprise and the accused seeking to rely on self-defence, in circumstances in which it has not been established that any physical act of the accused person/applicant caused the death of the victim.
4. At 10:06pm on 5 April 2017, four men ("the assailants"), including Mr Robertson, arrived at the Peats Ridge Caltex Service Station in two separate cars. Shortly prior to that time, the deceased, Mr Starkey, had travelled to the same service station in the car of his friend, Simon Rodden.
5. When the assailants arrived at the service station, Mr Rodden and Mr Starkey were still there, although they were in the driver and passenger seats of Mr Rodden's vehicle adjacent to a petrol bowser.
6. After moving one of the vehicles close to or in front of Mr Rodden's vehicle (so as to stop Mr Rodden leaving), the assailants alighted from their vehicles. One of the assailants, Mr Symons, approached the passenger side door of Mr Rodden's vehicle, opened it and pulled the deceased from the vehicle.
7. Over the next 30 seconds, that is between 10:07pm and 10:08pm, Mr Starkey was viciously and savagely assaulted as he lay on the ground. He was subjected to blows of various force, including punching, kneeing and kicking to the torso, kicking to his head and neck and stomping on his head. One of the final blows was inflicted by Mr Robertson who stomped on his head and neck.
8. Each of the assailants were convicted of murder. Further, two other persons, Colin Crane and James Crane, were convicted of murder on the basis that they were accessories before the fact. The Crown asserted, and the jury must have accepted, that they had procured one or more of the assailants to inflict grievous bodily harm on the deceased. An appeal by Colin Crane was heard at the same time as Mr Robertson's appeal.

The trial judge's decision

1. The decision of the trial judge regarding the availability of excessive self-defence is set out in trial ruling number 10 (R v Crane & Ors (Trial Ruling No 10) [2022] NSWSC 1227). His Honour's comments and directions apply equally to each of the assailants, such that reference to one by name could apply to the others.
2. After summarising the evidence, that is the evidence relating to the attack on Mr Starkey and the events leading to that attack, his Honour said it would be open to Mr Symons and Mr McDonald (two of the assailants) not to invoke self-defence under ss 418 and 421 of the Crimes Act, but instead to advance the contention that they responded to a threat of harm from the deceased as a hypothesis consistent with innocence.
3. His Honour pointed out that the Crown case that they were parties to a joint criminal enterprise was wholly circumstantial and a significant element of the circumstantial case was the CCTV footage.
4. After referring to the contentions of the parties and considering Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 ("Osland") and R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246 ("Basanovic"), his Honour concluded at [19] and [20]: "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 [sic] 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."

Determination

1. The Crown case was that each of the assailants was either a participant in a joint criminal enterprise with each other to, at least, inflict grievous bodily harm on the deceased or a participant in a joint criminal enterprise with the others to assault the deceased, whereby each assailant foresaw the possibility that grievous bodily harm may be intentionally inflicted upon the deceased by a participant in the course of executing the agreement to assault.
2. In this case, the Crown was unable to establish which of the individual acts of each of the assailants caused the death of the deceased or whether that might have been caused by a combination of the blows. As such, the only basis on which Mr Robertson was said to be guilty of murder was in accordance with the principles relating to a joint criminal enterprise or extended joint criminal enterprise.
3. In order to establish the elements of the offence, it was thus necessary for the Crown to establish that the crime, in this case the infliction of grievous bodily harm which led to Mr Starkey's death, took place whilst the agreement which Mr Robertson had entered into with the other assailants remained on foot; that is the infliction of the blows was all part of their agreed and common purpose arising from their agreement.
4. The agreement was said by the Crown to be an agreement to inflict grievous bodily harm on Mr Starkey. On the Crown case, that agreement was entered into prior to the assailants' arrival at the service station. That is, they went there in furtherance of their agreement to inflict grievous bodily harm on the deceased. On the Crown case, each individual act of each assailant was undertaken in furtherance of that agreement. This is not a case in which the assailants agreed in advance, that is prior to arriving at the service station, that they would in some way jointly defend themselves against Mr Starkey.
5. As is well-known, guilt based on joint criminal enterprise necessarily requires the Crown to establish that the person so liable shared a common purpose (see Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 ("Gillard") at [109]). As explained by Hayne J in Gillard at [110]: "In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission." (Emphasis in original).

Joint criminal enterprise and extended joint criminal enterprise

1. In Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 five members of the High Court (French CJ, Kiefel, Bell, Nettle and Gordon JJ) explained the concepts of joint criminal enterprise and extended joint criminal enterprise as follows (at [4]): "The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ("extended joint criminal enterprise" liability)." (Footnote omitted)
2. As can be seen, their Honours, in the context of explaining a straightforward (as opposed to extended) joint criminal enterprise, included an "incidental offence … within the scope of the agreement to commit the first-mentioned crime". This form of liability has, in the past, at least on occasions, at intermediate appellate level and below, been referred to as a form of extended joint criminal enterprise. [1] The formulation in Miller v The Queen set out above is, however, consistent with the seminal judgment of the High Court in McAuliffe v The Queen (1995) 183 CLR 108 at 117; [1995] HCA 37. The Court there, in describing a (straightforward, or non-extended) joint criminal enterprise, referred to the Court's earlier decision in Johns v The Queen (1980) 143 CLR 108 at 117; [1980] HCA 3 and said: "In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement."

The manner in which the case was put to the jury

1. With the above principles in mind, it is convenient to consider how the case against the applicant was put to the jury. With respect to the applicant, the written directions provided to the jury (MFI 31) posed the following four questions: "Causation of death 1. Has the Crown proved beyond reasonable doubt that one or more of Adam SYMONS, Beau McDONALD, Guy ROBERTSON and Jake McDONOUGH ("the alleged assailants") inflicted upon Clint Starkey at Peats Ridge soon after 10:00 pm on 5 April 2017 a blow or blows that was or were a significant contributing cause of Clint Starkey's death? • If yes, go to Question 2. • If no, find Guy ROBERTSON not guilty. Joint criminal enterprise - murder 2. Has the Crown proved beyond reasonable doubt that when Clint Starkey received the blow or blows that caused his death as found in answer to Question 1, Guy ROBERTSON was party to an agreement with each of the other alleged assailants that between them they would: (a) inflict grievous bodily harm, intentionally, upon Clint Starkey OR (b) assault Clint Starkey unlawfully, Guy ROBERTSON 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 5 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 caused his death as found in answer to Question 1, Guy ROBERTSON (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 believe that his conduct in pulling Clint Starkey from the Ford Territory vehicle and inflicting blows upon him was necessary to defend himself or any other person against Clint Starkey? • If yes to both (a) and (b), go to Question 4. • If no to either (a) or (b), find Guy ROBERTSON not guilty. 4. Has the Crown proved beyond reasonable doubt that one or more of the blows that caused death as found in answer to Question 1 was or were delivered with intent to cause grievous bodily harm to Clint Starkey? • If yes, find Guy ROBERTSON guilty. • If no, go to Question 5."

"He's got a gun" - the foundation for an alternative hypothesis

1. As explained by the trial judge in his ruling (R v Crane & Ors (Trial Ruling No 10) [2022] NSWSC 1227 at [11]), the Crown case was that the assailants had agreed on their plan prior to arriving at the service station. His Honour described the footage as "open to the interpretation that the actions of the four assailants were unhesitating and coordinated". This supported the Crown case that the inference to be drawn from events recorded by the CCTV camera was that the parties were acting in accordance with an earlier agreement.
2. As noted above, the applicant (and the other assailants) relied on the evidence of Mr Symons, to the effect that when he first approached the deceased he saw a gun, and consequently called out "[h]e's got gun". As explained by his Honour, this provided an alternative explanation for the immediate assault on the deceased. That is, it could be relied upon as an alternative possibility inconsistent with the inference on which the Crown relied, such that the jury could not be satisfied beyond reasonable doubt that the actions of the applicant and other assailants demonstrated the earlier agreement contended for by the Crown.
3. His Honour's directions allowed for this alternative possibility. Specifically, by question 3(a) the jury was required to find the applicant attended the scene pursuant to the agreement before convicting him. If the Crown failed to prove this, the jury was required to acquit him. Thus, by its verdict the jury found the applicant attended the scene pursuant to the agreement set out in question 2 of the directions.
4. Before leaving the consideration of the scenario in which the possibility that there was no agreement to intentionally inflict grievous bodily harm prior to the assailants' arrival at the service station, it should be noted that the absence of a prior agreement is not necessarily inconsistent with such an assault being committed by several participants in a joint criminal enterprise. As the cases stress, joint criminal enterprise is based on an "agreement or understanding". The agreement may be tacit rather than express: Huynh v The Queen [2013] HCA 6; 87 ALJR 434. In Osland v The Queen, McHugh J, at [73], referred with approval to Hunt CJ at CL's statement of the law in R v Tangye (1997) 92 A Crim R 545 at 556-7: "(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed. (Emphasis added.)"

"He's got a gun" - prior planning followed by an intervening event?

1. As discussed above, one possible use of the evidence claiming the presence of a gun was to explain the coordinated assault in a way other than the existence of an agreement formed prior to the arrival of the assailants at the petrol station. Of course, responding to a belief that the deceased possessed a gun, was not inconsistent with the existence of an earlier agreement to assault the deceased.
2. Further, that the immediate actions of the assailants upon first encountering the deceased were coordinated did not necessarily speak to whether any preconcert involved an agreement to merely assault or to inflict grievous bodily harm. That is, it was open for the various accused to argue that the jury might be satisfied of an earlier agreement to assault which did not encompass the intentional infliction of actual bodily harm (or the contemplation on the part of a particular accused that another would intentionally inflict grievous bodily harm), with the severity of the assault then explained by the presence of the gun. On this scenario it was possible that any joint criminal enterprise or extended joint criminal enterprise involving the intentional infliction of grievous bodily harm was spontaneously formed (the earlier agreement not involving that level of harm). Liability on this basis would provide a potential path to exculpation based on self-defence [3] or manslaughter based on excessive self-defence. That is, the assault involving the intentional infliction of grievous bodily harm would be at least partially excused on the basis of excessive self-defence. The directions to the jury, however, precluded conviction in the absence of an agreement as set out at (2) of the written directions set out above (that is, pre-agreement encompassing grievous bodily harm). This explains the absence of any submission on the appeal that a miscarriage arose as a result of a failure to leave manslaughter by excessive self-defence on this basis.
3. What then of the situation where the applicant: 1. attended the scene pursuant to an earlier agreement to assault the deceased and in doing so intentionally inflict grievous bodily harm on him, or contemplating that in carrying out the agreement one of the other participants might intentionally cause grievous bodily harm to the deceased; and 2. when at the scene, formed a belief that the deceased had a gun, and consequently participated in the assault in the belief that the conduct was necessary to defend himself or another?

The proviso

1. On one view, the directions given by his Honour were unduly favourable to the applicant. They had the result that, if the Crown did not exclude the possibility the accused believed his actions were necessary to defend himself or another he was entitled to an outright acquittal. Any question of the reasonableness of the accused's response was not left to the jury. Clearly, the jury rejected the contention that the accused believed his actions were necessary in the relevant sense. Logically, given this, no question could arise of excessive self-defence. Where then is the miscarriage? It is in the fact that the law accepts that logic does not always apply. The options available have the capacity to affect the decision that is made.
2. In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 the trial judge directed the jury on a charge of murder and, wrongly, did not leave manslaughter as available verdict. Gleeson CJ and Gummow J (who formed, with Callinan J, the majority) said (at [5]-[6]): "[5] In summing up the facts, and the competing arguments, to the jury, the trial judge directed their attention to the matters relied upon by the defence in support of a conclusion, or at least an acceptance as a reasonable possibility, that the lesser state of knowledge existed. It is common ground, however, that he did this in the context of an erroneous direction of law, informing the jury that the legal consequence of that argument was that the appellant was not guilty of either murder or manslaughter. [6] From one point of view it might appear that such a direction was unduly favourable to the appellant. Such an appearance, however, may be deceptive. Sometimes, when there is a misdirection of law, it is risky to seek to assign the advantage of the misdirection exclusively to one party and the disadvantage exclusively to another. The reason for that in the present case will be considered below."
3. Subsequently, their Honours said (at [14]-[17]): "[14] In the days when murder attracted the death penalty, appellate courts were well aware, and took account, of the possibility that juries may be influenced in their deliberations by the presence or absence of manslaughter as a possible verdict. Mraz v R, a leading case on the proviso, concerned a misdirection to a jury in relation to manslaughter. The Court of Criminal Appeal of New South Wales, relying upon Ross, held that there had been no miscarriage of justice, the inevitable inference from the verdict of the jury being that the jury were satisfied of the elements of unlawful homicide, and that it was not a reasonable possibility that, properly directed, they might have acquitted the appellant. That case was one in which manslaughter had been erroneously left to the jury. The majority in this court, allowing the appeal, took into account the practical significance of the misdirection. Williams, Webb and Taylor JJ referred to a passage in the judgment of Higgins J in Ross which observed that "if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death". Referring to the case before them they said: It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions. [15] Fullagar J said: A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them. [16] These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences. [17] When, in Mraz, the majority referred to "ignoring the realities of the matter", one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a "murder-or-nothing" basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them."

Endnotes

1. It is also noted that the Criminal Trials Bench book, in order to make jury directions more comprehensible effectively combines straight-forward joint criminal enterprise where the crime committed is contemplated as a possible incident of carrying out the agreement, and extended joint criminal enterprise.
2. Or at least that the elements of murder were established against the principal offender: see The King v Anna Rowan (a pseudonym) [2024] HCA 9; 98 ALJR 508 at [77].
3. This potentiality is on the assumption that, once acting in self-defence the particular accused was no longer participating in the joint criminal enterprise.

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