Symons v R; McDonald v R

1. [1]

   THE COURT: In July 2022 the applicants in these proceedings, Adam David Symons and Beau Andrew McDonald, were found guilty of murder following a trial by a jury in the Supreme Court. The charge related to the death of Clint Starkey. The two applicants were tried together with five other co-accused. The Crown case had been that the applicants, along with Guy Keith Robertson and Jake McDonough, had inflicted blows and kicks upon the deceased on 5 April 2017, leading to his death on 12 June 2017. Another co-accused, Simon Rodden, was present at the scene and the Crown alleged he was a participant in a joint criminal enterprise (JCE) with the four assailants. The Crown alleged that Colin Crane and James Crane were accessories before the fact. Three of the four assailants – McDonald, Robertson and Symons – were found guilty of murder by the jury. The fourth, McDonough, was found not guilty of murder but guilty of manslaughter. Rodden was acquitted. The Crane brothers were found guilty of murder as accessories. Those of the accused found guilty were sentenced to terms of imprisonment by the trial judge, Fagan J, on 11 November 2022.

2. [2]

   Earlier this year Robertson appealed his conviction on the single ground that the trial judge erred in declining to leave the question of whether he acted in “excessive self-defence” (as addressed by s 421 of the Crimes Act 1900 (NSW)) to the jury, thus depriving him of the alternative verdict of manslaughter and occasioning a miscarriage of justice: Robertson v R [2024] NSWCCA 99. A majority of this Court allowed the appeal, with Harrison CJ at CL and Dhanji J giving separate reasons. Cavanagh J dissented.

3. [3]

   Symons and McDonald have now also sought to appeal their convictions, out of time. Both rely on one ground, being the ground on which Robertson’s appeal succeeded. The Crown did not oppose an extension of time for each. As to the merits of the appeal, the Crown accepted that “it would be open to this Court to find that the conclusions reached by Harrison CJ at CL and Dhanji J in Robertson apply with equal force to [each] applicant”. Moreover, importantly, the Crown submitted that this Court’s decision in Robertson “does not constitute an extension of the [identified legal] principles but rather their application to the facts and circumstances of the present case”.

4. [4]

   These appeals were heard together on 1 November 2024. At the conclusion of the hearing the Court made orders in each matter, for reasons to be provided, granting an extension of time in which to seek leave to appeal; granting leave to appeal; allowing the appeal and quashing the conviction of the applicant; and that a new trial be held.

5. [5]

   These are our reasons for making those orders. In what follows we first outline the factual and procedural context of these appeals, then address the necessity for orders extending time, before considering why a miscarriage of justice was made out taking account of this Court’s decision in Robertson. As shall be seen we consider that, given an identical point is raised in this appeal as was determined there, the decision in that matter should be followed in the absence of compelling reason not to do so.

Background

1. [6]

   The Crown case at trial was that the deceased and Colin Crane had an altercation on 3 April 2017 at the Mangrove Mountain General Store, inland from the Central Coast of New South Wales. The next day, 4 April 2017, Colin Crane said to someone that he was going to kill the deceased. On the evening of 5 April 2017 Rodden sent a text message to James Crane saying that he (Rodden) was “going to servo now” with the deceased. Rodden and the deceased arrived at the Caltex service station at Peats Ridge just before 10pm. The four assailants – McDonald, McDonough, Robertson and Symons – arrived there a few minutes later in two cars. When they arrived the deceased was in the front passenger seat of Rodden’s car, with Rodden sitting in the driver’s seat.

2. [7]

   What happened next was captured on CCTV footage. McDonough and Robertson ran towards the driver’s door of Rodden’s car, with Symons and McDonald running to the front passenger door. Symons opened the passenger door and pulled the deceased out of the car. All four assailants then participated in the infliction of injuries to Mr Starkey by punching and kicking him and stomping on his head as he lay on the ground. The four assailants then drove away. Rodden stayed at the service station for some time, during which he had some contact with James Crane. At 10:35pm, with help from two other persons, Rodden lifted the deceased back into his car and took him to hospital.

3. [8]

   The Crown accepted that the evidence would not permit the jury to find that blows administered by any particular one of the four assailants were a substantial cause of death independently of blows delivered by one or more of the others. The Crown alleged that the assailants together with Rodden were parties to a JCE to inflict grievous bodily harm upon the deceased, or alternatively, in the case of each accused, he was a party to an agreement to assault the deceased and foresaw the possibility that one or more of the assailants might intentionally inflict grievous bodily harm (thus relying on the principles of extended joint criminal enterprise (EJCE)).

4. [9]

   McDonough and Robertson had pleaded not guilty to murder but guilty to manslaughter. Those pleas were not accepted by the Crown in satisfaction of the indictment. Symons’ counsel raised self-defence in an opening address delivered at the commencement of the trial. The other assailants’ counsel did not do so. Counsel for McDonald delivered an opening at the start of his case in which self-defence was raised. Symons and McDonald each gave evidence at the trial. The other co-accused did not do so. Both Symons and McDonald gave evidence that there was no agreement between the assailants to cause harm to the deceased. They both also gave evidence potentially relevant to self-defence.

5. [10]

   In that context, an issue arose towards the end of the trial as to what directions should be given by the trial judge with respect to self-defence, taking account of ss 418 and 421 of the Crimes Act. Counsel for the four assailants and counsel for the Crown all submitted that self-defence should be left to the jury, albeit for different reasons. The trial judge’s ruling on the point was given in R v Crane (Trial Ruling No 10) [2022] NSWSC 1227. His Honour summarised the relevant evidence of Symons and McDonald as follows:

6. [11]

   Section 418 provides that:

7. [12]

   Section 418 involves two elements: first, that the person believed the conduct was necessary (relevantly) to defend themselves or another person and, second, that the conduct is a reasonable response in the circumstances as he or she perceives them. If both apply then that is a complete answer to a charge of murder and the accused is entitled to be acquitted. If self-defence is raised (ie the evidential onus is met) then the legal burden is on the Crown to prove beyond reasonable doubt that the person did not carry out the conduct in self-defence: s 419.

8. [13]

   Section 421 addresses the scenario where the first of the s 418 elements is not disproved by the Crown but the second element is disproved in the context of a charge of murder. That is, it addresses where the person did believe that the conduct was necessary to defend themselves or another (relevantly) but the conduct was not a reasonable response in the circumstances as the accused perceived them. In such a case the person is not guilty of murder but is criminally responsible for manslaughter if, but for the operation of s 421, they would have been criminally responsible for murder. Section 421 is sometimes said to address “excessive self-defence”.

9. [14]

   The trial judge considered two variants of self-defence in his ruling. The first, as raised by counsel for Symons and McDonald, was that the jury should be directed as to the availability of both full self-defence, pursuant to s 418, and the partial version of self-defence, pursuant to s 421. The argument was premised on each individual considering that he needed to act in self-defence, without there being any agreement between the four assailants to this effect.

10. [15]

    The trial judge rejected this variant, saying that requiring the jury to consider the relevant accused’s claimed defensive state of mind and the proportionality of his individual acts would be unjustified in circumstances where the Crown had accepted it was unable to establish any co-accused’s individual acts were the cause of the death of the deceased: Trial Ruling No 10 at [15]. His Honour said that “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”: ibid at [16]. If any particular accused was in fact acting in self-defensive response to a threat, then the acts of the other co-accused in assaulting the victim could not be attributed to the accused in question as a matter of principle relating to JCEs. Thus, if the acts of the other co-accused were not attributed to the accused in question (ie the one acting in response to a threat), in circumstances where the Crown’s case depended upon attributing the acts of the co-accused to each other, that accused was entitled to be acquitted. His Honour considered that his conclusion was supported by the decision in R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246.

11. [16]

    The trial judge went on to address the self-defence variant raised by the Crown. That variant was that the four co-accused, when learning that the victim had or was said to have a gun, “instantaneously formed a tacit agreement to assault Clint Starkey in self defence” (Trial Ruling No 10 at [21]). His Honour declined to leave this issue to the jury because the evidential onus had not been discharged, saying:

12. [17]

    Thus his Honour declined to put before the jury the option of finding the co-accused persons guilty of manslaughter by operation of s 421, as an alternative to murder. However, his Honour did effectively direct the jury to consider self-defence as part of its determination of the charge of murder based on JCE or EJCE. He did so consistently with his conclusion that if any individual accused was acting in self-defence then he would not be acting to give effect to the claimed agreement to harm the deceased, such that the Crown case must fail against that accused.

13. [18]

    In written directions, his Honour set out a Question 2 directing the jury to consider if it found that the Crown had proved beyond reasonable doubt that the particular assailant under consideration was party to an agreement to either inflict grievous bodily harm on Starkey or to assault Starkey with the foresight that other participants might intentionally cause grievous bodily harm (covering the JCE and EJCE paths to liability). Question 3 was then as follows, taking Symons as an example:

14. [19]

    This direction incorporated the first of the two elements of self-defence from s 418 (ie “the person believes the conduct is necessary … to defend himself or herself or another person”), without any need to address the second element (ie “and the conduct is a reasonable response in the circumstances as he or she perceives them”). This direction was, arguably, more beneficial to the accused than if self-defence based upon s 418 had been put to the jury, because the accused would be entitled to an acquittal if just one of the two elements was not disproven.

15. [20]

    The trial judge’s direction was also more beneficial, at least on the face of it, than if the possibility of partial self-defence had been left to the jury pursuant to s 421. That section relevantly involves the same element as the judge’s direction 3(b), namely that the person believed the conduct was necessary to defend himself or another person. Under s 421 if that is not disproven, but the Crown establishes that the force inflicted was not a reasonable response to the circumstances as the person perceived them, and death is inflicted, then the person is guilty of manslaughter. On the trial judge’s approach, the issue as to the second element would not have arisen and the relevant accused would be acquitted.

16. [21]

    As noted above, McDonough was found guilty not of murder, but guilty of manslaughter. That was so in a context where manslaughter had been left to the jury on the basis of unlawful and dangerous act if they were not satisfied that murder had been made out.

17. [22]

    Robertson appealed on the single ground that the trial judge erred in failing to leave the alternative verdict of manslaughter to the jury based on excessive self-defence pursuant to s 421.

18. [23]

    As to the Crown’s variant of self-defence, involving a new tacit agreement, Harrison CJ at CL analysed the evidence and agreed with the conclusion of the trial judge that there was insufficient evidence to leave the point to the jury: Robertson at [24]-[29]. Cavanagh J agreed with the Chief Judge on this issue: at [85]. Dhanji J did not address the sufficiency of evidence as to this issue but noted that there is no evidentiary onus on an accused to establish an agreement to act in self-defence (at [148]).

19. [24]

    The matter of disagreement in the appeal was with respect to the variant of self-defence that had been raised by counsel for the accused at the trial, relating to whether each or any of the accused had, without agreement, been acting because of a belief that inflicting blows was necessary to defend themselves or others. The issue was how any such belief interacted with liability for murder based upon JCE.

20. [25]

    Dhanji J considered that the approach of the trial judge, responding to the arguments raised before him, involved a “false dichotomy” (at [144]). It will be recalled that the trial judge had said that “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”: Trial Ruling No 10 at [16]. Dhanji J reasoned that a person may be participating in a JCE in circumstances where that person has grounds available to say that their actions were wholly or partially justified (at [144]-[148]). Here, in his Honour’s view, if one of the accused was acting consistently with giving effect to a previously-reached agreement to inflict harm on the victim, but in fact was doing so because of a belief that inflicting blows was necessary to defend themselves or others, then they could still be characterised as participating in a joint enterprise such that the actions of that accused could thus be attributed to the other participants in the agreement – but the person would have a ground of exculpation, at least with respect to murder. His Honour thus did not perceive there to be a necessary inconsistency between acting in furtherance of a joint enterprise and acting in self-defence such as the trial judge had perceived. On that basis, the accused were entitled to have both full and partial self-defence put to the jury (under ss 418 and 421 respectively). Dhanji J noted that the conclusion the trial judge had reached “essentially followed from the way in which the matter was argued” (at [148]), namely that the issue of self-defence was “anterior” to that of JCE, which he regarded as incorrect.

21. [26]

    His Honour then went on to consider whether the proviso should be applied, in circumstances where “the case against the applicant was strong” (at [158]). He noted that “[o]n one view, the directions given by his Honour were unduly favourable to the applicant” (at [153]). That was so for the reasons given above at [19]-[20]. Nevertheless, his Honour held that the proviso could not save the conviction because of High Court authority holding – even after abolition of the death penalty for murder – that “a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them” (at [155], quoting Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [17]). Here, his Honour considered that if the self-defence issue had been put to the jury in terms consistent with s 421 then they may have opted for the “middle course” of finding an accused guilty of manslaughter and not murder. Whilst the interposition of manslaughter as an alternative verdict to murder can be to a defendant’s detriment, in this case it might have been to the applicants’ benefit.

22. [27]

    Having found error (a “wrong decision of any question of law”), Dhanji J addressed the “middle course” point in the context of addressing the proviso. Insofar as miscarriage of justice was relevant, much the same reasoning would have applied. Leaving aside where an error or irregularity involves a failure to observe the requirements of the criminal process in a fundamental respect, there is no miscarriage of justice unless the error or irregularity is “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’… or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”: HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35 at [2] (Gageler CJ, Gleeson and Jagot JJ), quoting Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL); see also Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 at [89] (Dhanji J). All of these notions implicitly involve there being an effect which prejudices, rather than benefits, the accused. There would have been no practical injustice to Robertson, and no realistic chance of affecting the verdict of guilt to his detriment, if directions had been given which were more beneficial to him than those should have been given. However, given that the jury may have taken the middle course if it had been open to them, it was possible to say that he had suffered some practical injustice.

23. [28]

    Cavanagh J, in dissent, disagreed with Dhanji J on the “false dichotomy” issue. His Honour agreed with the trial judge on the point (at [100]-[114]).

24. [29]

    The reasoning of Harrison CJ at CL on the issue was brief. His Honour, at [15] (see also [32]), quoted an earlier statement by this Court that “[i]f there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law”: Lane v The Queen (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [42(4)(a)]. Harrison CJ at CL then said (at [32]):

25. [30]

    His Honour went on to say that he agreed with how Dhanji J had dealt with the proviso (at [32]). Cavanagh J said that he understood the Chief Judge to be saying “that if the issue of self-defence was to be left to the jury at all, fairness to the accused required the possible alternative verdict be left” (at [77]). That is a reasonable characterisation of his Honour’s conclusion. Put another way, the Chief Judge appeared to have perceived an inconsistency in the approach of the trial judge in, on the one hand, effectively putting self-defence to the jury by way of what was contained in Question 3 of the written directions whilst, on the other hand, declining to put self-defence in terms to the jury.

26. [31]

    In the result, a majority of this Court concluded that the jury should have been directed as to the availability of a verdict of manslaughter by reason of excessive self-defence, consistently with s 421, and that the failure to do so constituted a wrong decision on a question of law to which the proviso was no answer. Each of the applicants before the Court rely on this conclusion.

27. [32]

    It can be seen that the matter at issue was finely balanced. On the face of it the directions given by the trial judge were more beneficial to the accused than the ones that they had sought. However, the effect of those directions was that – contrary to what had been sought by the co-accused – the jury were not given the option of taking a middle course of finding the accused guilty of manslaughter, rather than just guilty or not guilty of murder.

Extension of time

1. [33]

   The applicants were sentenced on 11 November 2022. Symons did not file a notice of appeal until 22 April 2024, and McDonald not until 22 July 2024.

2. [34]

   Symons’ solicitors gave reasons for filing his notice of appeal out of time by way of a signed short statement in an annexure to the notice of appeal. Those reasons were not supported by affidavit. It was said that a notice of intention to appeal was filed shortly after sentencing, and on 13 February 2023 senior counsel was briefed following approval of legal aid funding. Yet it was not until over 14 months later that that senior counsel provided finalised grounds and submissions. That very lengthy delay was said to have been caused by reason of that senior counsel being involved in “several lengthy trial matters”.

3. [35]

   The solicitor acting for McDonald, Ms Sara Black, did provide an affidavit explaining the delay in filing his appeal. For reasons not explained, no notice of intention to appeal was filed. McDonald did instruct his solicitors to obtain advice as to the merits of an appeal which it was said “took some time” given the length of the trial and the extent of relevant material. McDonald was unsuccessful in obtaining a legal aid grant for the purpose of pursuing a conviction appeal after that advice was provided. Subsequently, Ms Black was advised by Robertson’s solicitor that his counsel had found merit in Robertson’s appeal and had prepared an outline of submissions. Having reviewed those submissions Ms Black sought a further grant of legal aid for a second advice on the merits of an appeal. Funding was approved on 8 February 2024, about one and a half months before the appeal in Robertson was heard. Judgment in that case was handed down on 3 July 2024. A little over 2 weeks later counsel finalised written submissions for McDonald, and the appeal was lodged shortly thereafter.

4. [36]

   The explanation of delay given on behalf of McDonald is understandable. It is unsurprising that no appeal was brought given an absence of legal aid funding following, it may be inferred, adverse advice from counsel. The explanation given on behalf of Symons is thin, unsupported by evidence and rather unsatisfactory. The senior counsel in question had not appeared for Symons at the trial. If, as appears, he was too busy to attend to the matter for over a year then another counsel should have been retained. It plainly would have been preferable for these appeals to have been heard together with that of Robertson. As it is, two benches have had to consider the same issue rather than one. That use of limited judicial resources necessarily causes delay to other litigants.

5. [37]

   In the circumstances, however, these delays should not be held against the applicants. The Crown did not suggest otherwise. Thus time was extended to permit the application for leave to appeal to be brought in both proceedings, pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW).

The claimed miscarriage of justice

1. [38]

   The Crown made the following submissions:

2. [39]

   The Crown did not seek to rely on the proviso.

3. [40]

   The question that arises is how this Court should go about assessing whether there has been a miscarriage of justice given the earlier decision by a bench, differently constituted, in Robertson. The same ground of appeal is raised as in that case by each of two co-offenders, with respect to the same offence, addressed in the same trial. The Crown’s position was that the decision in Robertson turned on the application of established legal principles to the facts of the case. The Crown did not seek to argue that the majority had erred in its understanding of relevant principles.

4. [41]

   A difficulty that arises in this case is that three different approaches were taken in Robertson. Arguably, this Court should consider for itself which of the approaches (if any) was correct. The Crown, however, whilst accepting it was open to the Court to allow the appeal did not make submissions as to which of the bases for allowing the appeal was correct. This Court should be slow to determine the matter in these circumstances.

5. [42]

   Further, were a different result to be reached in this case to that reached in Robertson then that might well be thought to be inconsistent with the fundamental principle of equality before the law: note eg Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (emphasis in the original):

6. [43]

   These two appeals are relevantly identical to the appeal in Robertson. This Court has recently addressed just such a situation in Kwu v R [2024] NSWCCA 199. As explained there at [34]-[38], whilst the observations about equal justice in Green and Wong were stated in a sentencing context they are of no lesser significance in the present circumstances. The Court held in Kwu that where the court is determining an appeal which is materially indistinguishable from an earlier appeal decision from the same trial, raising the same point, then the court should follow the earlier decision unless there is compelling reason to depart from it (at [42]).

7. [44]

   Here the Crown has not sought to argue there is any such compelling reason. Rather, it has conceded that given the earlier decision in Robertson it is open to this Court to find that there has been a miscarriage of justice which affected the convictions of the two applicants.

8. [45]

   On that basis, and applying the principle in Kwu, it should be accepted that each applicant has indeed suffered a miscarriage of justice by reason of the decision of the trial judge not to direct the jury as to the option of finding manslaughter by “excessive self-defence” pursuant to s 421 of the Crimes Act. That miscarriage is sufficient to warrant an extension of time, a grant of leave to appeal, and orders that each conviction be quashed. The applicants did not oppose the making of an order that a retrial be held. It is for these reasons that we made such orders on 1 November 2024.