R v Rodden

These are my reasons for a supplemental direction given on the afternoon of 22 July 2022 in response to questions from the jury concerning the case against Simon Rodden on the charge of murder. Rodden and six co-accused are on trial for the murder of Clint Starkey in June 2017. The factual background is recounted in a pre-trial judgment: R v Crane, James [2021] NSWSC 693. Four of the co-accused, Adam Symons, Beau McDonald, Guy Robertson and Jake McDonough, jointly assaulted the deceased on 5 April 2017, causing his death nine weeks later. They have been referred to throughout the trial as “the assailants”.

The jury commenced deliberations on 19 July. The questions submitted on 22 July concerned the Crown’s allegation that at the scene of the crime Rodden joined an existing agreement between the assailants to attack Mr Starkey. The jury sought direction as to whether it would be possible for Rodden to have become party to an agreement with each of the assailants if he was not aware of the presence of one of them, namely, McDonald. I answered, “No”, with further explanation as set out below.

In order to give context to the issue it is necessary to outline some of the evidence and the structure of the Crown case against Rodden. The Crown adduced evidence from which the jury could be satisfied that the assailants agreed with each other, by about 9:40pm on 5 April 2017 at Woy Woy, that they would travel from there in two cars to the vicinity of Mangrove Mountain and Peats Ridge and that there they would between them carry out an assault upon Clint Starkey by which grievous bodily harm would be inflicted upon him, or in the course of which, as foreseen by each of the assailants, it was possible that one or more of them would intentionally inflict grievous bodily harm. The jury have been left the alternative of finding that the agreement was for an assault upon Clint Starkey that would constitute an unlawful and dangerous act, or that one or more of the assailants foresaw that as a possible outcome. As the case has been run, the jury could not find any of the assailants guilty of either murder or manslaughter unless they should find that there was an agreement between all four of them to assault the deceased to some level of severity.

Evidence was adduced from which the jury could be satisfied that the assailants departed Woy Woy in two cars at about 9:40pm and arrived at the Caltex service station on Peats Ridge Road at 10:06pm, after the station had closed for the day. The minimum achievable travel time is approximately 26 minutes. There is evidence that Rodden arrived at the service station in a Ford Territory vehicle with Clint Starkey as his passenger at 9:58pm. The Crown submitted to the jury they should conclude from circumstantial evidence, the detail of which is not presently relevant, that when Rodden drove to and arrived at the service station he knew that some person or persons would attend there and assault Clint Starkey. There is no evidence from which it could be found that Rodden knew how many assailants would arrive or that he was acquainted with or had communicated with any of the four who actually attended.

The Crown put its case against Rodden to the jury on the sole basis that, when the four assailants arrived at the Caltex, Rodden joined the joint criminal enterprise to assault Clint Starkey that was already on foot between them. The alleged foreknowledge on Rodden’s part that an attack would take place was relied upon by the Crown as supporting a conclusion that he became a party to the enterprise as soon as the assailants arrived. That contention was otherwise based upon Rodden’s conduct at the service station in the presence of the assailants from 10:06pm. Neither Rodden’s conduct in driving Clint Starkey to the service station with knowledge of the impending attack, nor any other conduct on his part, was relied upon as encouraging or assisting the crime as an accessory before the fact. The Crown did not go to the jury with a case against Rodden as an accessory.

The CCTV at the service station recorded the following sequence of events

Uncontested medical evidence would satisfy the jury that a substantial cause of Clint Starkey’s death was blunt force trauma to his head from multiple blows. The evidence would not permit the jury to determine which of the assailants delivered the blow or blows that was or were causative of the fatal head injuries. The Crown sought to hold Rodden liable, either for murder or manslaughter, on the basis that he became a party to a joint criminal enterprise with the four assailants to assault the deceased to some extent. Under that doctrine the acts of all parties in carrying out the offence that was the object of the agreement would be attributed to all others who, when the agreed-upon offence was committed, participated, at least by being present. The offence that was the object of the enterprise must be shown to have been committed pursuant to the agreement by one of the parties to it: Osland v The Queen (1988) 197 CLR 316; [1988] HCA 75 at [65] (McHugh J). For the very serious step to be taken of attributing the criminal acts of the principal to an accused who has joined in the enterprise, the law requires that the accused must have been in agreement with that principal.

The inability to isolate the principal offender on the evidence in this case is similar to the position in Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6. It is essential to Rodden’s liability that he should have been party to an enterprise with each of the four who took part in the assault so that he would be criminally responsible for the acts of which ever one of them inflicted the blow(s) that proved fatal. The focus of the issue under consideration in these reasons is the possibility, for which the jury must allow, that McDonald may have been that one. The Crown must satisfy the jury that Rodden became party to an agreement with, inter-alia, McDonald, for an assault to be perpetrated on Clint Starkey.

The Crown submitted to the jury that they should find Rodden reached an agreement with each of the assailants before they commenced their assault, by inference from conduct on Rodden’s part that preceded Symons wrenching Clint Starkey to the ground. The same conduct was relied upon, together with Rodden’s presence at the service station throughout the assault, as his participation in furtherance of the enterprise. It is open to the Crown to rely upon acts of an accused both as evidence of a common understanding or agreement and as proof of acts in furtherance of the joint criminal enterprise: Huynh v The Queen, especially at [39]; KA v R [2015] NSWCCA 111 at [104].

The jury were instructed as to the element of Rodden’s joinder in the enterprise by posing to them the following question:

The jury were instructed that if they were unanimous that murder had not been proved, then in considering the alternative of manslaughter they would have to address the following question:

The Crown submitted to the jury that the following conduct of Rodden amounted to both evidence from which his agreement with each of the assailants could be inferred and evidence of acts in furtherance of the agreed object of assaulting Clint Starkey:

The Crown’s proof of a joint criminal enterprise between the four assailants included evidence from which the jury could conclude that they had all reached agreement with each other to assault Clint Starkey before they arrived at the service station. However, the jury might consider the strongest evidence of such an agreement to be the CCTV footage showing all four joining in the assault within three seconds of Clint Starkey hitting the ground. The footage shows the four gathered around Mr Starkey in close proximity. The jury could conclude that each was aware of and agreed in the participation of each of the others.

In contrast, the Crown has not adduced any evidence that Rodden agreed upon an assault of Clint Starkey with any of the others prior to their arrival at the service station and the CCTV shows that he took no part whatever in the assault. The Crown case against Rodden necessarily and expressly depends upon the jury drawing an inference as to his agreement with all four assailants from particulars (a), (b) and (c) quoted at [12] above. The mere presence referred to in particular (d) could not, alone, support an inference of agreement that the assault should be perpetrated because Rodden only moved to a position where he could see the assailants making the attack when it had been substantially carried out, with only 13 seconds or so to run.

In order to answer either Question 2 or Question 5 in the affirmative, the jury would have to conclude that such of particulars (a), (b) and (c) as they should find proved would support, as the only reasonable inference, that Rodden thereby intentionally demonstrated to each of the four assailants, in advance of the commencement of an assault upon Clint Starkey, his purpose that there should be such an assault and that he received from each of them an implicit intimation that they shared that purpose. Proof of common purpose and that the accused persons have communicated their purpose to each other is essential to proof of an understanding. An understanding regarding a criminal objective is, in turn, of the essence of a joint criminal enterprise.

In his closing address Mr Edwards submitted that the jury would not be satisfied that Rodden had reached agreement with McDonald for Clint Starkey to be assaulted, at any time up to when the assault got underway, because they would not be satisfied that by that time Rodden even knew that McDonald was at the scene (T 2040-2042). At T 2086-2088, during a break in the delivery of one of the other defence addresses, the Crown submitted that in summing up I should negate Mr Edwards submission. The Crown sought a direction to the jury that, in order to prove that Rodden became a party to an existing joint criminal enterprise, in which he agreed with all of the assailants upon the common objective of assaulting Clint Starkey, it was not necessary that he should have known of the presence and adherence to the enterprise of all of the other parties. There was further argument about this at T 2224-2228.

The Crown cited R v Anthony [1965] 2 QB 189; R v Griffiths [1966] 1 QB 589 and Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8. The following was submitted with respect to those cases:

The authorities relied upon by the Crown were all concerned with the crime of conspiracy. Those decisions and others have established that a conspiracy between several people may come into existence if one of them at the centre communicates with each of the others individually, thereby establishing consensus with respect to the criminal objective of all, without those who have been separately contacted by the central figure ever having communicated directly with each other. In R v Meyrick (1929) 21 Cr App R 94 Mrs Meyrick, Mr Ribuffi and Sergeant Goddard were charged that they conspired with each other and others to contravene certain provisions of liquor licensing legislation. The Court of Criminal Appeal dismissed appeals against conviction. Hewart LCJ at said this at 101-102:

Further, if a conspiracy to commit a crime is formed in this or in any other manner, an additional person may subsequently agree with the existing parties that he or she, also, will pursue the criminal objective. In R v Simmonds [1969] 1 QB 685 the Court of Appeal said this at 696:

In a case involving a central conspirator, there is no reason why subsequent adherence of an additional party would be insufficient to constitute the expanded conspiracy if the new party’s agreement should be communicated only to that one central person. These aspects of the formation of a conspiracy are summed up in the following extract from the judgment of the Court of Criminal Appeal in R v Griffiths at 597 (emphasis added):

The Crown cited a passage from another conspiracy case, Ex parte Coffey; Re Evans and Another [1971] 1 NSWLR 434 at 445-446, in which the above propositions were confirmed. Herron CJ and Holmes JA emphasised that the actus reus of the crime of conspiracy consists in being a party to the agreement (emphasis added):

Statements in the Crown’s authorities, such as the one quoted at [20] above from R v Griffiths, cannot be treated as having completely general application regardless of the facts of a particular case. In the law of criminal conspiracy I can find no authority for any basis upon which, or mechanism by which, people who do not know of each other’s existence and have not communicated with each other may yet be found to have conspired together, except that they each convey to a common intermediary their agreement that the object of the conspiracy be pursued, including by concert with others un-named – sight unseen and number unknown – with whom the intermediary may engage for the purpose. In cases where a wide conspiracy is charged and several individual adherents are not shown to have been aware of each other or to have communicated amongst themselves, proof of the conspiracy resolves into identifying one or more intermediaries and fitting the facts to either the metaphor of a cartwheel or that of a chain: see for example R v McDonald [1963] BCJ No 79; 10 CCC (2d) 488.

Analogy with the law of conspiracy is of limited use in applying the doctrine of joint criminal enterprise. In any case where formation of a joint enterprise, or joinder to an existing enterprise, is said to occur only tacitly by conduct at the scene of the crime, I do not see how any of the extended concepts of agreement between people who are unaware of each other’s existence – as discussed above – could be engaged.

For the purpose of determining how the jury should be directed in response to their questions set out at [29] below, I assume that where a joint criminal enterprise is formed expressly, agreement may be reached by communications passed through an intermediary as may occur in the establishment of a conspiracy. Likewise, I assume that the doctrine of joint criminal enterprise may operate where parties have joined by express communication through a middleman, notwithstanding that they do not know how many others are also in agreement or who those others are. That might occur if party A conveys to a leader his agreement to take part in a crime with whomever the leader is able to recruit. If several recruits are contacted by the leader and express the same position, there might come into existence an understanding or agreement between all, through the medium of the leader, without A knowing how many recruits have been enlisted or who they may be. If all should then be present at the commission of the crime and participate in furtherance of the enterprise, the doctrine might well operate.

The case against Rodden is far removed from that hypothetical situation. The issue reflected in the jury’s questions is not one of principle as to whether there are any circumstances in which an agreement, sufficient for the doctrine of joint criminal enterprise, may be reached between people who are not specifically aware of each other’s involvement. The jury’s issue arises because on the evidence before them there is no suggestion that, prior to attendance at the service station, agreement was made between Rodden and one of the other assailants, who might in turn have drawn in the others. The only proof offered that Rodden joined the existing criminal enterprise of the four assailants is the circumstantial evidence of what they did in each other’s presence at the scene during less than one minute before the assault commenced. That is a circumstantial case from which it might be inferred that an understanding was reached between, on the one hand, Rodden and, on the other hand, those to whom his actions must have signified his purpose that Mr Starkey be assaulted and whose own actions must have signified the same purpose to him.

On the evidence in this case, if the jury are not satisfied that Rodden knew there was a fourth man present, towards whom his own conduct could have conveyed tacit agreement that Mr Starkey be assaulted, then they could not find that he became a party to a joint criminal enterprise with that fourth man to carry out such an assault. Further, so long as McDonald just sat in the front passenger seat, allowing himself to be driven around the forecourt by Symons, the jury could not find that he did anything to manifest to Rodden that he was any more than a passive passenger. The manoeuvring of the red Commodore was not undertaken by McDonald. Until he alighted there was no action on his part by which he could be taken to have conveyed to Rodden his intent or purpose with respect to Clint Starkey, with which Rodden might tacitly agree by conduct of his own.

There was further argument about this at T 2224-2228, when the Crown made these submissions:

I did not accept the Crown’s arguments and on 18 July summed up to the jury on the basis that it was for them to determine as a matter of fact whether Rodden had become aware of McDonald’s presence so that Rodden’s conduct prior to the commencement of the assault could be taken as tacit agreement being made with McDonald that he, Rodden, joined in the common enterprise to assault Clint Starkey. The summing up at 150-152 included the following:

The jury’s questions, received on the afternoon of 22 July 2022 after three days of deliberation, were as follows:

I commenced to respond to these questions by referring the jury to the passage of the summing up quoted at [28] above. At their request, the jury had been provided with the entire transcript of the proceedings, including closing addresses and summing up. After reading back the first of the jury questions I answered it as follows:

As a case of forming or joining a criminal enterprise at the scene, doing so tacitly by conduct rather than by express words, the Crown’s evidence against Rodden is in stark contrast with the evidence adduced in Huynh v The Queen and in KA v R. In both of those cases the conduct from which the existence of an agreement could be inferred was the doing of acts in performance of the object of the agreement, carried out by all of the alleged parties to the enterprise within sight of each other and in close proximity, it being a strong inference that each was aware of what each of the others was doing and, therefore, that that they were acting in concert. In the present trial only the case against the four assailants, as between themselves, is of that type. The case based on Rodden’s conduct in particulars (a), (b) and (c) at [12] above may be viewed by the jury as less compelling towards a conclusion that Rodden joined in an enterprise with any of the four assailants. If they should not be satisfied that Rodden knew of McDonald’s presence, the circumstantial case of Rodden having joined in an enterprise with him would be non-existent.