Robertson v R

HARRISON CJ at CL: Guy Keith Robertson appeals against his conviction for murder upon the single ground that the trial judge erred in failing to leave the alternative verdict of manslaughter based on “excessive self-defence” to the jury pursuant to s 421 of the Crimes Act 1900 (NSW). That contention arises in the following factual context.

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.

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.

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.

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.

His Honour commenced his judgment with the following introductory paragraph:

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.

At [9] his Honour said this:

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:

His Honour then indicated that he proposed to direct the jury to address the following questions, with respect to each of the assailants:

His Honour’s reasoning for formulating the directions in these terms, without reference to the issue of excessive self-defence, was then explained:

His Honour expressly drew upon the judgment of Simpson AJA in R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246 at [91]-[96], which passages are extracted in his judgment. His Honour then continued in these terms:

It will be immediately apparent that his Honour’s decision was based on two evidentiary conclusions. The first related to the absence, on the Crown case, of evidence from which the jury could conclude that the acts of any one of the assailants had “involved the infliction of death”. The second was, in his Honour’s view, the complete lack of evidence that the assailants tacitly had somehow instantly formed an agreement between or among themselves that they would, together act in self-defence as the result of Mr Symons’ shouted warning that Mr Starkey had a gun, rather than in furtherance of a joint criminal enterprise to assault Mr Starkey.

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]:

The Court in Lane continued at [42] as follows:

In Beavan v The Queen (1954) 92 CLR 660; [1954] HCA 41, the Court (Dixon CJ, McTiernan, Webb, Fullagher and Taylor JJ) said at 662:

The present case is clearly one where counsel were asking for an excessive self-defence direction, in order that a verdict of manslaughter might be considered by the jury, but where his Honour was of the view that “on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder”. In the present circumstances, counsels’ request for the direction was undoubtedly a reflection of the apparent strength of the Crown case having regard to what is depicted in the CCTV footage of the incident, so that manslaughter as a forensic prospect was eminently preferable to a conviction for murder.

His Honour’s view was that there was no evidence to support a verdict of manslaughter by reason of excessive self-defence. That view was implicitly, if not explicitly, that such a case was not viable. That opinion turned upon the accepted nature of the Crown case that there was no evidence that the acts of any single assailant caused the death of Mr Starkey.

It was argued for Mr Robertson in this Court that the test in s 421(1)(a) of the Crimes Act 1900, that the force used need only “involve the infliction of death”, meant that something less than a direct causal connection was all that was required. He argued that even if his acts may not have been, or could not be proved to be, the acts that caused Mr Starkey’s death, they were in the overall scheme of the assault upon him by several assailants nonetheless “involved” in the infliction of death.

Section 421 provides relevantly as follows:

In my opinion, as a matter of statutory construction, there can be no relevant distinction between the use of force that involves the infliction of death and force that causes death. First, the obvious fact is that the provision is dealing with the question of criminal culpability for a death. The obligation upon the Crown on a charge of murder is to establish beyond reasonable doubt that an accused person caused the death of the deceased. It would be a curious result if the so-called defence applied in circumstances where the force that was used did not cause the death in question but was somehow merely involved with it at a level falling short of causation. Indeed, if the use of force could not be proved to have caused the death, the question of the so-called defence in s 421 would not arise. Different considerations of causing or being involved in the death could not possibly make sense in the assessment of whether a defence to a charge of murder had been made out.

Secondly, the chapeau to the section speaks of force that “inflicts” death. An available meaning for inflict is cause. If reference to the chapeau were necessary or permissible, it supports the need to prove a causal connection rather than something less.

Accepting that analysis, his Honour was in my opinion entirely correct to conclude that there was no evidence capable of supporting an alternative verdict of manslaughter. Mr Robertson could not be convicted of murder unless the Crown established that his acts and those of his co-accused were committed as part of a joint criminal enterprise. If they were not, Mr Robertson could have been convicted of neither murder nor manslaughter. Notwithstanding that view, his Honour acceded to a request that self-defence should be left to the jury.

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.

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:

His Honour dealt with the extent of the evidence about this as follows:

The interpretation and evaluation of evidence is quintessentially a matter for the jury to determine. Adapting the formulation in Beavan for application to the facts of the present case, the question to be asked is whether a factual finding, that the assailants reached a putative agreement to defend themselves, was open on any view of the evidence which the jury might reasonably take. The question of whether the CCTV evidence was capable of demonstrating that the assailants might have formed some agreement of the type asserted was a matter for his Honour to determine. His Honour’s opinion about what the CCTV material discloses or establishes, or what it does not disclose or establish, is in my view compelling. The so-called evidence that the assailants instantly came to an agreement to do anything rises no higher than speculation or surmise, and never achieves the level of an available inference, let alone a rational or compelling inference.

The Crown case was that the assailants were acting in accordance with an agreement at least to cause grievous bodily harm to Mr Starkey. His Honour concluded that there was no evidence of any form of communication between the four assailants in the six seconds from the time at which the warning from Mr Symons might have been shouted until they all joined in the attack. That is to say, his Honour considered that there is no evidence to suggest that the assailants’ original plan changed or, what is the same thing, to suggest that they communicated between or among themselves that there should be some change to that joint enterprise. It was similarly his Honour’s view, to like effect, that there was no evidence of any communication by which they could have signified to each other an agreement to take concerted action. Once again incorporating the words of the High Court in Beavan, his Honour’s decision was that on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder (by reason of excessive self-defence).

As his Honour concluded, 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 Mr Symons. His Honour’s view was that there was no evidence upon which the jury could so find. Viewing and reviewing Exhibit 20 serves only to reinforce that reality. The strength of the contention that the jury should have been asked to decide whether the evidence established that the assailants ever agreed to act in self-defence rises little higher than a forensic flourish.

Despite this view, his Honour left the question of whether the Crown had negatived the fact that Mr Robertson was himself acting in self-defence to the jury. It was his Honour’s view that neither answer to that question involved the possibility of a verdict of manslaughter by reason of excessive self-defence, as he explained.

In this last respect, it is pertinent to observe that on a dispassionate viewing of Exhibit 20 it is difficult to conclude that anything done by Mr Robertson could ever be considered to have been performed in defence of himself. Far from retreating or showing any sign of concern for his own safety, Mr Robertson approached the driver’s side of the vehicle and opened the driver’s door in the instant before the passenger side door is opened by another assailant. Mr Starkey was immediately pulled from the vehicle on the other side. By the time Mr Robertson ran around the vehicle to assault Mr Starkey, the latter was already prone on the ground under a sustained attack from others. It is almost fanciful to suggest that Mr Starkey was posing a threat to anyone, let alone Mr Robertson, at that time or that Mr Robertson could have reasonably considered that he was faced with a threat to which it was necessary to respond.

I have dealt with the way in which his Honour reached his conclusions in some detail, in order that his reasoning may be understood and appreciated. His Honour’s analysis advanced to the stage of apparently accepting that on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder by reason of excessive self-defence. His Honour might well at that stage have declined to direct the jury on manslaughter at all, upon the basis that no viable case existed for the adoption of that course. For example, as noted in Lane at [39]:

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.

It follows that Mr Robertson’s conviction must be quashed and a new trial ordered. I agree with the orders proposed by Dhanji J.

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.

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.

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.

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.

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.

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.

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.

Two of the assailants, Adam Symons and Beau McDonald, gave evidence at the trial. Mr Symons’ evidence was to the effect that when he approached the passenger side of the vehicle in which Mr Starkey was sitting, he saw that Mr Starkey had a gun. He yelled out words to the effect “he has got a gun”. Mr McDonald’s evidence was that he heard that warning. The issue of self-defence was thus raised at the trial.

The expert medical evidence did not permit identification of which of the blows inflicted by the various assailants caused the death of Mr Starkey. The Crown case was that each of the assailants was guilty of murder on the basis of a joint criminal enterprise, or extended joint criminal enterprise, and similarly that Colin and James Crane had a derivative liability for murder. The liability of participants in the joint criminal enterprise or extended joint criminal enterprise (that is the four assailants) is not derivative but primary.

Mr Robertson seeks leave to appeal on one basis only, being that the trial judge erred in failing to leave to the jury the alternative verdict of manslaughter on the basis of excessive self-defence pursuant to s 421 of the Crimes Act 1900 (NSW).

No gun was found after the event but on admission to hospital Mr Starkey was found with ammunition in his pocket. Further, he was known to have a history of violence and, on the Crown case, the impetus and or origin of that which occurred in the service station resulted from statements and threats made by Mr Starkey in respect of Colin Crane and his family.

The decision of the trial judge not to leave manslaughter based on excessive self-defence to the jury was made after the possible alternative verdict had been raised during the trial on a number of occasions including when Mr Robertson pleaded not guilty to murder but guilty to manslaughter in the presence of the jury; during the Crown's opening address; during the opening to the jury on behalf of Mr Robertson; and, during his initial directions to the jury, the trial judge referred to the second “limb” of self-defence, to the effect that Mr Robertson may be guilty of manslaughter depending upon whether the actions that he took to defend himself in relation to a perceived necessity to do so were a reasonable response in the circumstances as he perceived them.

However, towards the end of the trial, his Honour circulated proposed written jury directions. The final form of the directions is set out in MFI 31. His Honour did not include any direction whereby the jury could reason that the applicant (and all the other assailants) were guilty of manslaughter on the basis of self-defence with excessive force.

There followed extensive argument and submissions by the parties on the proposed written directions. The applicant submitted that the directions were deficient because of the absence of directions in relation to self-defence with excessive force.

The Crown submitted, on more than one occasion, that self-defence with excessive force should be left to the jury and that there should be directions in that regard, albeit the Crown maintained throughout the trial that that was not the case the Crown was pursuing.

Although the Crown submitted that self-defence with excessive force should be left to the jury at trial, the Crown did not concede in this Court that there was any error in the trial judge's directions. The Crown supported them.

Mr Robertson raised a concern about the Crown's position on this appeal, having regard to the position it had taken at trial. It does not seem to me that the Crown is precluded from submitting that there was no error in this Court, merely because it had adopted a certain position in the Court below.

This Court is a court of error. The complaint on this appeal is that the trial judge erred in the directions provided to the jury and, in particular, by not leaving the alternative verdict of manslaughter based on self-defence with excessive force to the jury. Regard must be had to the position of the parties and the arguments advanced in the Court below having regard to the way the trial was run, as well as the obligation to ensure fairness to the accused, but it was ultimately a matter for the trial judge to determine what directions he gave to the jury.

This Court must consider whether the trial judge erred in the context in which the trial was run, but error is not established by merely identifying that the trial judge made a decision contrary to the wishes of the parties. The trial must be run fairly and fairness to the accused requires that any alternative verdict be left to the jury when there is a viable pathway to it or, expressed another way, where there is material which might support it.

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.

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.

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.

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]:

The point made by his Honour is that the situation will be different where a joint criminal enterprise was entered into for self-defence purposes from the outset, rather than here, where the joint criminal enterprise is alleged to have been formed before the events that the accused relies upon to maintain self-defence occurred.

The question for the jury, according to his Honour, was thus whether the Crown had proved that his part in the attack was in furtherance of the alleged agreement or whether the Crown had disproved that he responded defensively.

In his Honour's view, proof of the first encompassed disproof of the second. As his Honour said, if the jury finds that the Crown's burden of proof has not been discharged in respect of self-defence, then Mr Symons could have no criminal responsibility for the blows struck by the co-accused and would be entitled to acquittal.

His Honour then dealt with the Crown submission that self-defence with excessive force should be left to the jury on the basis that, after Mr Symons saw a gun, he then shouted a warning and that he and the other three men perceived a need to defend themselves and they instantly formed a tacit agreement to assault the deceased in self-defence.

His Honour rejected that submission on the basis that there was simply no evidence which would allow the jury to find that the conduct of the assailants arose from a tacit agreement to inflict blows in self-defence after a shouted warning from Mr Symons. As his Honour said, the conduct of each assailant in punching, kicking and stomping the deceased was not capable on its own as constituting evidence that an understanding to inflict these blows in self-defence had been reached.

Mr Robertson’s central submission is that having regard to the way in which the trial had been conducted, including the Crown opening address, and the opening address on behalf of the assailants, the applicant had conducted the trial on the basis that the jury should accept that he had engaged in self-defence, which he believed was necessary but was in fact disproportionate in the circumstances as he perceived them, in which event the jury should return a verdict of manslaughter on the basis of excessive self-defence. The trial judge erred in deciding at the end of the case not to leave that to the jury.

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.

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.

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.

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.

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]:

The Crown could only establish the guilt of any of the assailants based on joint criminal enterprise or extended joint criminal enterprise. That necessarily required the Crown to establish not only the agreement (that is the common purpose to inflict grievous bodily harm on the deceased when they found him at the service station), but also that, when the assailants were perpetrating violence on the deceased, they were doing so in furtherance of that agreement. As Hayne J said in the passage to which I have just referred, what they do between them in the commission of the crime must be done in accordance with their continuing understanding or agreement.

To put it more simply, the onus was on the Crown to establish that when Mr Starkey was being attacked and the acts which killed him were being perpetrated by one or other of the assailants, he was being attacked pursuant to or in furtherance of the continuing agreement between the assailants to inflict grievous bodily harm upon him.

On that basis, it does not matter which of the assailants inflicted the blow which caused his death. They were all responsible for the crime, being the crime of murder, irrespective of which assailant landed the fatal blow, or even irrespective of comparisons between assailants in terms of the individual acts. The actus reus of the offence is attributed to each of them, irrespective of who hit Mr Starkey and when and with what force. Dhanji J has explained this principle in some detail.

Of course, each assailant was entitled to have his case considered individually. Mr Robertson does not dispute what is shown on the CCTV footage. He does not dispute the specific acts which he is demonstrated as committing, which include stomping on the deceased’s head. He says he was acting in self-defence. He offered a plea to manslaughter in the presence of the jury, which means he must be taken to have accepted that his conduct was not reasonable but he believed that it was necessary to defend himself or others.

It is the duty of the trial judge to direct the jury in respect of any available defence or alternative verdict, even in circumstances in which the parties may not have raised it (see Pemble v The Queen (1971) 124 CLR 107 at 117–118 per Barwick CJ; [1971] HCA 20 (“Pemble”); Basanovic at [78] per Simpson AJA).

Various formulations have been used to describe the circumstances in which, to ensure fairness to the accused, that duty must be discharged. In James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [31], the High Court (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) observed that the trial judge's role in ensuring fairness to the accused required that the jury receive instruction on any defence or partial defence provided that there is material raising it, regardless of the tactical decisions of counsel.

In Basanovic, Simpson AJA at [81] summarised the test as follows:

The trial judge did not consider that there was any viable pathway to manslaughter based on self-defence with excessive force. Hence it was not left to the jury to determine.

Harrison CJ at CL considers the two possible evidentiary pathways and accepts that neither provided a viable pathway. However, his Honour goes on to find that the effect of the directions was really to leave self-defence to the jury and, in those circumstances, the alternative verdict based on excessive force should have been left. I understand his Honour 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.

I understand Dhanji J to come to the same conclusion having regard to his Honour’s view that the force which involved the infliction of death in a case involving joint criminal enterprise is the force that is attributed to Mr Robertson (being the force that involved the infliction of death), even though it is not known which of the assailants actually committed the acts which caused the death.

There can be no doubt that for the purposes of a criminal liability based on joint criminal enterprise or extended joint criminal enterprise, the action of the person who committed the act constituting the crime is attributed to the other participants such that even though only one person might have, for example fired the gun, that conduct is attributed to the other participants. In this way, although there might only be one actus reus, they are all equally liable. However, the issue on this appeal relates to the circumstances in which the conduct of one participant might be attributed to another participant for the purposes of the statutory defence arising under s 421 of the Crimes Act.

Two things need to be said at this point, being:

In my view, both Osland and Basanovic offer support for the proposition that a party to a joint criminal enterprise may rely on self-defence whether under ss 418 or 421 based on an agreement or understanding with each other that they needed to defend themselves.

In Osland, a case dealing with inconsistent verdicts, the High Court was satisfied that self-defence could arise in response to an action based on joint criminal enterprise in circumstances in which, as McHugh J observed at [128], the whole basis of the defence was that the agreement to kill was defensive in nature. That is, on the defence case, from the outset the agreement to take action against the victim was based on their belief that they needed to defend themselves.

In Basanovic, this Court per Simpson AJA (Bellew and Wilson JJ agreeing), considered that manslaughter based on excessive self-defence should have been left to the jury in a case again involving joint criminal enterprise, because there was evidence that the participants may have entered into a new or fresh agreement to defend themselves at a time subsequent to the agreement said to constitute the original joint criminal enterprise. Her Honour held at [97]:

As observed by the trial judge, this case is different. It is different because the evidence does not permit a finding as to which of the accused committed the act which caused the death and, if there was a subsequent agreement or understanding, it could only have been entered into at some time after the gun was said to have been observed.

The trial judge rejected the submission that this type of defensive agreement (in this case entered into at some stage after the entry into the original agreement) provided a viable pathway to manslaughter based on self-defence with excessive force. His Honour did so not because of any disagreement as to principle but because his Honour concluded that there was no evidence which could possibly support such a finding. I agree with Harrison CJ at CL that his Honour was correct in that view for the reasons set out by the Chief Judge.

Further, I agree with Harrison CJ at CL that Mr Robertson’s proposed construction of s 421 should be rejected.

That only leaves the possible application of s 421, not based on any agreement or understanding between the assailants that they needed to defend themselves but based on the conduct of the others being attributed to Mr Robertson.

It is necessary to consider how s 421 could be satisfied (leaving aside the onus of proof issue for the moment), in a case where the participant did not commit the act which constituted the crime (the act which caused death) and it is not known which of the co-accused did.

The force (as referred to in s 421) may be the force which is attributed to him. However, it remains Mr Robertson’s perception and belief which is relevant. Someone else’s perceptions are not capable of being attributed to him.

In my view, absent an agreement to defend themselves, s 421 could not apply to Mr Robertson in circumstances in which it is not known what blow killed Mr Starkey. That is because there can be no consideration of Mr Robertson’s belief and perception as to “the conduct” without knowing what the conduct was that caused the death.

As Simpson AJA held in Basanovic, the conduct in s 421 is the conduct which represents the commission of the crime. Even assuming that all of the blows that were inflicted by the four assailants are attributed to Mr Robertson, it is still necessary to identify the conduct which constituted the commission of the crime. As it was not established that anything Mr Robertson did killed Mr Starkey, then for the purposes of s 421 (if it applies), Mr Robertson’s perception and belief must be in respect of someone else’s conduct, whatever that might be.

It is not clear to me how the attribution of another person’s force (who remains unidentified) could then permit the raising of s 421.

As Mr Robertson’s conduct did not cause Mr Starkey’s death and the person whose conduct did (and what it might have been) has not been established, I do not consider that there was any viable pathway to manslaughter on this basis.

The trial judge was required to grapple with this complex issue.

The question which then arises relates to how his Honour dealt with self-defence in the directions.

The trial judge provided oral and written directions to the jury, including providing to the jury in respect of each assailant questions to be answered to arrive at a verdict. Questions 2 and 3 are particularly relevant to the issues arising on this appeal and are as follows:

The jury must be taken to have understood that they were required to work through the questions sequentially. It follows that, after determining question one, the jury moved to question two which required the formation of a view as to whether the applicant was a party to an agreement with each of the other assailants that between them they would inflict grievous bodily harm intentionally or assault the deceased unlawfully. The jury must be taken to have answered question 2 in the affirmative.

The jury was then required to move to question 3. Importantly, the jury was directed that, if the answer was “no” to either 3(a) or (b) the jury must acquit. That is, 3(a), if the jury was not satisfied that the Crown had proved beyond reasonable doubt that when the deceased was struck the blows which caused his death, the applicant attended the scene with the other assailants and together inflicted blows in furtherance of the agreement, then the applicant must be found not guilty.

In the alternative, (3b), if the jury was not satisfied beyond a reasonable doubt that the Crown had proved that when the deceased was struck the blows that caused his death, the applicant did not believe that his conduct was necessary to defend himself or any other person, then the jury must find the applicant not guilty.

Dhanji J describes this approach as setting up a false dichotomy.

It is on this point that I disagree with His Honour.

In my view, the trial judge’s approach was consistent with the observations of Gaudron and Gummow JJ in Osland at [34] as follows:

Their Honours were saying that a person cannot be giving effect to a prior agreement or understanding whilst also acting in response to conduct of the deceased, whether the accused is acting in response to provocation or in self-defence. In both instances the conduct of the accused is responsive to the acts of the deceased rather than giving effect to the prior agreement.

Their Honours were in the minority in Osland but, as McHugh J observed at [65] and again at [113]–[114], when considering the issue of inconsistency and with direct reference to the observations to which I have just referred, the principle relied upon by their Honours is not in dispute.

As McHugh J said at [66], if there is any possibility in a joint trial that the accused whose acts caused the death was not at the relevant time acting pursuant to the understanding with the co-accused, it is necessary to direct the jury accordingly. McHugh J went on to find that the principle (referred to by Gaudron and Gummow JJ) had no application in the circumstances of that case having regard to the way the issues were left to the jury, but did not take issue with the principle identified.

His Honour summarised the position as follows at [93]:

This was further explained by the Victorian Court of Appeal in McEwan, a case somewhat similar to this one. Three persons were charged with murder based on joint criminal enterprise following a brutal assault on the victim by all three. The incident followed the victim attacking their car with a machete. The three accused alighted their vehicle, chased him and attacked the deceased. One of the applicants was convicted of murder, the other found guilty of defensive homicide and the other guilty of manslaughter.

The Court (per Redlich, Coghlan JJA and Dixon AJA), held that complicity under a joint criminal enterprise will arise if the prosecution establishes that:

After considering Osland, the Court held at [38]:

The point is that it is the state of mind of each individual accused at the time of the commission of the offence which is relevant and must be assessed. When the acts which killed Mr Starkey happened was Mr Robertson participating (passively or actively) pursuant to the original common purpose or was it his belief that it was necessary to defend himself or others?

That is how the trial judge framed the directions, that is with reference to the state of mind of each of the assailants.

In doing so, the trial judge was not leaving self-defence in accordance with either ss 418 or 421 to the jury. He did not give directions consistent with either ss 418 or 421. He was, in my view, identifying that, if the state of mind of any particular accused was that he needed to defend himself or others at the time of the commission of the offence, then the acts which caused the death would not be part of their common purpose.

In my view, the approach of the trial judge was not in error. Having considered that there was no viable pathway to manslaughter based on self-defence with excessive force, his Honour gave directions consistently with the principles set out in in all of Osland, Basanovic and McEwan.

If, at the time that Mr Robertson participated in the attack on Mr Starkey he believed that it was necessary to defend himself or others then he was not at the time of the attack engaged in the criminal conduct asserted by the Crown. He could not be guilty of the crime of murder. He was entitled to be acquitted. This is how the trial judge directed the jury. He did not err in doing so.

In those circumstances, I would dismiss the appeal.

DHANJI J: The background to this appeal has been set out by Harrison CJ at CL. As his Honour explains, there were four assailants, Mr Symons, Mr McDonald, Mr McDonough and the applicant. The Crown was unable to establish which, or what combination, of the four was responsible for the blow or blows which caused (or more correctly, substantially caused) the death of Mr Starkey. The Crown alleged that each of the assailants was liable for murder on the basis of his participation in a joint criminal enterprise, or an extended joint criminal enterprise.

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]):

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:

Their Honours went on to consider the distinct situation of the potential liability of a participant in joint criminal enterprise for a crime which was foreseen but not agreed to. Their Honours said (at 115) that “the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose”. That is, such a person is liable for an offence committed by another participant falling outside the scope of the agreement (in circumstances where the first participant foresaw the possibility the other participant would do the relevant acts with the requisite state of mind). The High Court thereby established as part of the common law of Australia, the separate category of extended joint criminal enterprise. Extended joint criminal enterprise, so understood, was maintained in the face of direct challenge in Miller v The Queen. The demarcation between straightforward joint criminal enterprise and extended joint criminal enterprise discussed above was again confirmed in Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5, at [13]-[14], per Kiefel CJ; at [54] and [56] per Gordon, Edelman, and Steward JJ. The reasons of Gageler, Gleeson and Jagot JJ in Mitchell v The King (at [33]) also explain extended joint criminal enterprise in a manner consistent with the other members of the Court.

Liability based on a straight-forward joint criminal enterprise is primary (as opposed to derivative) liability. That is because the acts of the other parties to the agreement are attributed to the accused. An accused who, with respect to a particular criminal offence, acts with the requisite mens rea, and performs the actus reus, or has the actus reus attributed to them, is guilty of the offence: see Mitchell v The King at [55].

In Mitchell v The King, Gordon, Edelman and Steward JJ (at [61]) expressed the view that, in contrast to the position which pertains in the case of a straight-forward joint criminal enterprise, liability for a crime on the basis of extended joint criminal enterprise is derivative. That is, the liability of the accused is derived from (and dependent on) the liability of the principal whose crime was foreseen as a possibility by the accused, even though the accused did not agree that the crime should be committed. Their Honours said that “in extended joint criminal enterprise there is no attribution of the acts in respect of the incidental crime because the secondary participant did not authorise or agree to the commission of the incidental crime”: Mitchell v The King at [61]. Following this approach, where it is sought to attach liability to an accused on the basis of an extended joint criminal enterprise it will be necessary for the Crown to prove the guilt of the principal (or at least the commission of the elements of the offence by the principal). This is consistent with the expression of six members of the High Court in Clayton v The Queen [2006] HCA 58; 81 ALJR 439 at [26]. It can also be understood as consistent with the basal principle that it is the agreement that operates to make the acts of the other participants to the joint criminal enterprise attributable to the accused. In the circumstances of the present case, this would require the Crown to prove the principal not only acted with the requisite intent but also that he did not believe his actions were necessary to protect himself or another.

Whatever be the case with respect to an extended joint criminal enterprise, for a simple joint criminal enterprise the guilt of an accused is not dependent on the guilt of other parties to the agreement. As observed above, that is because in the case of a simple, or straight forward, joint criminal enterprise the guilt of a participant in the agreement is based on the attribution of the acts of the other participants to them. This fundamental principle has been clear since, at least, the High Court’s decision in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75. Thus, in IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 Kiefel CJ, Keane and Edelman JJ said (at [2]):

See also The King v Rohan (a pseudonym) [2024] HCA 3; 98 ALJR 429 at [41], [64].

A helpful discussion of joint criminal enterprise and extended joint criminal enterprise was also undertaken by Kirk JA, Wilson and Ierace JJ in Batak v R [2024] NSWCCA 66 and the related case of Coskun v R [2024] NSWCCA 67.

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:

As can be seen, question 2 required the jury to be satisfied of an agreement. The content of that agreement was that the applicant and the other assailants would intentionally inflict grievous bodily harm (2(a)) or would assault Mr Starkey in circumstances where the applicant foresaw the possibility that in carrying out the agreement to assault, one or more of the parties “might intentionally cause grievous bodily harm” to Mr Starkey (2(b)). In other words, liability was extended to the situation where the contemplation was personal to the applicant, and thus not within the scope of the agreement. That is, it included a case of extended joint criminal enterprise.

No issue was raised at trial or on appeal as to the, potentially, different nature of liability (that is by the attribution of acts, or by way of derivative liability) and how that might affect the directions. If extended joint criminal enterprise is, in fact, derivative liability, in the circumstances of this case, the direction in 2(b) would additionally require the jury to be satisfied of the guilt (of murder) of the principal or principals upon whom the particular accused’s guilt was to be based. [2] That is, that the principal intentionally inflicted at least grievous bodily harm, causing the death of Mr Starkey and in doing so, he was not acting in self-defence (excessive or otherwise). Factually, this may raise some complexity given that it was not possible to isolate an offender who could be said to have been responsible for the fatal blows (and noting Mr McDonough was convicted of manslaughter). That complexity was not necessarily insurmountable given that derivative liability could be based on the liability of a principal offender responsible for his own acts and those attributed to him by his participation in a joint criminal enterprise. Ultimately, however, the issue raised on this appeal can be resolved without further consideration of the implications of the applicant’s liability being derivative in the event that it was based on the principle of extended joint criminal enterprise. For the reasons discussed below, self-defence, if it operated, excused (or partially excused) the applicant’s participation in the joint criminal enterprise. That would be sufficient to impact his liability irrespective of whether it was based on principles of straightforward joint criminal enterprise or extended joint criminal enterprise.

To explain the conclusion I have reached it is convenient to start with the basis on which self-defence was said to arise. The evidence relied on by the applicant was submitted by him, and accepted by the Crown, to satisfy the evidentiary onus on all four assailants to raise the issue of self-defence. Where an accused satisfies that evidentiary onus, the Crown must exclude the reasonable possibility the accused was acting in self-defence. The Crown’s acceptance that an accused’s evidentiary onus was discharged is not, of course, binding on the trial judge.

The relevant evidence was that of Mr Symons, supported by Mr McDonald that, based on what Mr Symons had seen, he yelled “[h]e’s got a gun”. It is convenient to consider this evidence in the context of two possible permutations of the facts: firstly, that the words were uttered in the absence of an agreement, the scope of which included an assault involving the intentional infliction of grievous bodily harm, and the alternative, that they were said in the context of such an agreement.

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.

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.

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.

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:

Relevant for present purposes is Hunt CJ at CL’s observation that the circumstances of joint participation may themselves “establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there” to engage in the assault on the deceased (my emphasis). The possibility of a spontaneously formed plan was not left to the jury. From the Crown’s perspective it was inconsistent with their case against Colin and James Crane. However, understanding the potential for an agreement to be formed spontaneously, and without verbal agreement, has some relevance for the purposes of what follows below.

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.

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.

What then of the situation where the applicant:

What is contemplated above is a scenario in which the applicant continued to act jointly with others in assaulting the deceased but that continuing participation was, as a result of supervening events, based on his belief that the it was necessary to so act in his own defence or in defence of another. In posing this question it should be noted that there is, in principle, no bar to an original aggressor relying on self-defence. In such a case the fact an accused was the original aggressor “rais[es] only evidentiary matters to be considered in arriving at an answer to the ultimate question”: Zecivic v The Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 663; [1987] HCA 26. While that statement was made in the context of the common law it applies with at least the same force in the present context having regard to terms of the statutory provisions. Thus, while it can be acknowledged that, given the original agreement, the jury would be entitled to view any suggestion of self-defence with some scepticism, what needs to be considered is whether the jury should have had that opportunity, (including as to the question of excessive self-defence).

His Honour’s ruling was to the effect that (putting the burden of proof to one side), if the applicant was acting in self-defence (or defence of another) pursuant to a belief as to the presence of a gun, the Crown would fail to prove he was participating in the agreement which the Crown alleged had been formed prior to his arrival at the service station. Given this, on his Honour’s view, it followed that the Crown case would necessarily fail as the acts of the others could not be attributed to him. While his Honour used the expression “self-defence”, directing the jury to acquit if not satisfied the applicant did not believe his conduct was necessary to defend himself or another against the deceased, this was done, essentially, as a practical way to direct the jury in accordance with his Honour’s view of how such a view of the facts would affect liability. It reflected his Honour’s view that if the Crown could not exclude the possibility the applicant acted as he did because he believed it necessary to do so in self-defence, the jury could not be satisfied he was acting pursuant to the alleged joint criminal enterprise. Because of his Honour’s view that self-defence was not truly raised, no issue of excessive self-defence could arise. The correctness of this conclusion is in issue on this appeal. This raises a question of the application of self-defence (and excessive self-defence) in the context of a joint crime.

It is convenient to consider the terms of s 418 of the Crimes Act 1900 (NSW):

The “conduct” spoken of in s 418(1) and (2) is the conduct which makes the person otherwise criminally responsible for the offence. That is, it necessarily refers to acts of the accused and acts attributed to the accused. If that were not so, a person whose liability is alleged to be based on a joint criminal enterprise could never rely on self-defence. That has never been the case: see, for example, Osland v The Queen.

The same conclusion applies with respect to s 421 of the Crimes Act which provides:

In the present case, his Honour’s ruling dealt with the argument put by counsel for Mr Symons (which was equally applicable to the applicant) as follows (R v Crane & Ors (Trial Ruling No 10) at [15]):

His Honour’s response to the submission, that if an accused was not acting pursuant to a joint criminal enterprise he was entitled to an acquittal, was clearly correct. The way in which the matter was argued, as set out above, however, set up a false dichotomy. It did so by assuming that the evidence of self-defence raised a question which was anterior to the question of participation in a joint criminal enterprise. In other words, if the applicant was acting in self-defence this was inconsistent with his participation in the joint criminal enterprise. That, however, was not the case. Part of the confusion perhaps lies in the use of the expression “joint criminal enterprise” itself. Obviously, from the Crown’s perspective, an agreement on which liability is said to rest is necessarily criminal. However, from an individual accused’s perspective, that is not necessarily so. The facts in Osland v The Queen demonstrate this.

In Osland v The Queen the appellant was tried, together with her son, David Osland, for the alleged murder of her husband (the father of the co-accused). The case against them was based on a joint criminal enterprise by which pursuant to their plan Mrs Osland laced her husband’s dinner with sedatives allowing David Osland, in the presence of Mrs Osland, to strike him with an iron pipe while he slept, resulting in his death. Thus, while both participated in the plan, it was David Osland who was solely responsible for physical acts which resulted in death. Both Mrs Osland and David Osland relied on self-defence in the context of evidence of an abusive domestic relationship spanning many years. Mrs Osland was convicted while the jury was unable to reach a verdict with respect to her son. At a later trial, David Osland was acquitted, succeeding on the basis the Crown had not excluded self-defence. On her appeal, Mrs Osland submitted that her conviction for murder was inconsistent with the jury’s failure to agree on a verdict with respect to her son at her trial and his ultimate acquittal at a later trial. The High Court rejected the contention that there was any inconsistency, and the appeal was dismissed. This result is sufficient to demonstrate that, at least, a straight-forward joint criminal enterprise will operate to attribute the acts of one participant to another, irrespective of whether that first participant is guilty of any crime. That is, the presence of, for example, a justification which makes the acts of one participant non-criminal, does not impact the liability of another participant.

McHugh J explained this in Osland v The Queen as follows (at [131]):

Returning to the present matter, based on the above, the presence of a lawful justification (or partial justification) on the part of the applicant, was not inconsistent with his continued participation in a joint enterprise. In my view, it was not correct for his Honour to find (at R v Crane & Ors (Trial Ruling No 10) at [16]) [expressed in terms applying to the co-accused Symons, but equally applicable to the applicant]:

In fairness to his Honour, as I have sought to make clear above, the conclusion essentially followed from the way in which the matter was argued. Nonetheless, based on the principles discussed above, there is no reason why the acts of the other three assailants could not be attributed to an accused who was himself acting pursuant to a belief that his participation in the joint enterprise was necessary to defend himself or another. In the case of a secondary participant, while the acts are attributed to them, if that secondary participant was acting in self-defence, the relevant acts are, in their case, justified (or partially justified) and acquittal (or conviction for manslaughter) will follow. This being the case the applicant was entitled to rely on self-defence pursuant to s 418, and excessive self-defence pursuant to s 421 of the Crimes Act. To be clear, it is the individual accused who seeks to rely on s 418 (and s 421). It is not necessary for that accused to satisfy any evidentiary onus that there was an agreement of some sort to act in self-defence. This is to confuse an agreement to participate in a joint enterprise with the motive for participating in that enterprise. It is to be recalled there was no “defensive agreement” in Osland. Mrs Osland was guilty of murder. Her son was not.

The result may appear somewhat fortuitous for the applicant. On the scenario postulated above, the applicant attended the location pursuant to a plan agreed with, at least, the other three assailants to assault the deceased, and having, at least, contemplated that one of those others would intentionally inflict grievous bodily harm on the deceased, leading to the death of Mr Starkey. Yet, despite the presence of these preconditions which would ordinarily be sufficient to prove murder, on the view I have taken, he was entitled to have the jury consider questions of self-defence and excessive self-defence. In this regard it should be noted that there is, arguably, some incongruity between the position I take and the unavailability of self-defence as a lawful justification in the context of constructive murder and the policy reasons why that is so: see Coskun v R at [68], [72]-[73]. There is, however, no legal basis to exclude the operation of self-defence in cases based on joint criminal enterprise or extended joint criminal enterprise. As a matter of principal a joint criminal enterprise is dependent on both the formation of an agreement and participation in it. If the applicant’s participation was based on a lawful justification, or partial justification, he was not liable, or wholly liable for his participation. It is not possible to attach criminal liability on the basis that an accused “would have done it anyway”.

It is, in this context, apposite to recall the following observation of Kirby J in Clayton v The Queen. While his Honour was in dissent that does not alter the resonance of his Honour’s remarks (at [66]):

Quite apart from the response above, a more practical response to the concerns raised above is that, if as the applicant claims, he was acting in the context of a belief his actions were necessary to defend himself or another, that belief may have impacted the nature and ferocity of his actions. As disturbing as it may be, that includes the grotesque assault by this applicant on the deceased’s head after the deceased had been rendered helpless and was lying on the ground motionless. Without venturing into the merits, it was open to the applicant to argue that those acts (which could not be proved to have resulted in the death of Mr Starkey) were at least in part a reaction to the deceased having threatened the applicant and his fellow assailants with a gun.

It follows from the above that error has been established. That is, the possibility that the applicant, having attended pursuant to a joint criminal enterprise, had a lawful justification, or at least partial justification, for his continued participation was a matter which should have been left to the jury.

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.

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]):

Subsequently, their Honours said (at [14]-[17]):

Gilbert v The Queen was followed in Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64. It has been followed on numerous occasions in this Court. See, for example, R v King (2004) 59 NSWLR 515; [2004] NSWCCA 20.

The principle in Gilbert v The Queen does not preclude the application of the proviso. It merely establishes that the fact that, on a purely logical analysis, leaving the alternative of manslaughter would have made no difference, does not mean that there has been no substantial miscarriage of justice.

Here the case against the applicant was strong. However, whether or not the evidence led at trial satisfies me that the applicant is guilty of murder, I would not apply the proviso. That is because the applicant’s case was based, from the outset, on acceptance of his guilt of manslaughter based on excessive self-defence. When arraigned before the jury he pleaded not guilty to murder but guilty to manslaughter. That defined the contest he sought to engage in. His counsel, however, by the time of his closing address, was in an invidious position. He was forced to submit that, despite his initial acceptance that he was guilty of manslaughter, the applicant was entitled to walk free without any punishment at all. The applicant was denied a trial on the issue he sought to contest. In these circumstances it cannot be said that there was no substantial miscarriage of justice.

I propose the following orders: