How to Get Away with Murder
Determining the correct course of justice… Unsplash
In July 2022, headlines circulated the NSW Supreme Court’s findings of guilt for the killing of Clint Starkey. People were engrossed with the ideology of ‘bikies’, or motorcycle club members, who were once again caught red-handed inflicting violence in an otherwise peaceful suburb. CCTV had captured the events as they unfolded, so how could this not be a clear-cut case of murder?
In early April of 2017, Colin Crane had an ‘altercation’ with Starkey, which resulted in four of his friends dragging Starkey from a car and beating him unconscious.[1] The man who had escorted Starkey to the location, a service station at Peats Ridge, took the victim to the hospital.[2] Unfortunately, Starkey never regained consciousness. The assailants were reportedly members of the Rebels Outlaw Motorcycle Gang. At first instance, Guy Robertson, Beau McDonald, and Adam Symons were found guilty of murder by a jury of their peers.[3] The Crane brothers were also sentenced to imprisonment for murder as accessories before the fact.[4] Then came the ultimate heartbreak for Starkey’s family as Robertson, one of the violent assailants, appealed successfully against his conviction.
Robertson’s appeal was predicated on the ground that the trial judge erred in not allowing the jury to consider that he had acted in ‘excessive self-defence’.[5] However, Muthucumaraswamy Sornarajah argues that this form of defence would only be put to a jury if there were an ‘adequate basis in evidence’.[6] The trial judge in R v Robertson did not believe that there was any evidence to ‘support a verdict of manslaughter by excessive self-defence’.[7] On appeal, the majority subsequently found that the trial judge had erred thus quashing the murder charge.[8] The question that followed in Symons v R; McDonald v R was whether the Court should follow the controversial previous decision of Robertson.
Understanding Self-Defence
The Crown’s case put forward that the accused acted in concert as a joint criminal enterprise (‘JCE’) or an extended joint criminal enterprise (‘EJCE’).[9] In either a JCE or an EJCE, the action of one participant is attributed to the others and acts as an extension of the liability of guilt.[10] EJCE differs from a JCE as one can be held liable if the party merely foresaw that the act would be committed, even if they didn’t agree to the commission of the offence.[11]
The full defence of self-defence, when applied, can reduce a murder charge to manslaughter, which has indeterminate sentencing. It involves two ‘limbs’. Firstly, the person must have ‘believed [that] the conduct was necessary to defend themselves or another person’.[12] Secondly, the conduct must be a ‘reasonable response in the circumstances’ to satisfy the proportionality element.[13] In circumstances where the second limb is not satisfied, section 421 provides the partial defence of ‘excessive self-defence’,[14] reducing the charge to manslaughter. Excessive self-defence arises when a person uses a level of force that is not a ‘reasonable response in the circumstances’, but the individual believed it was necessary to defend themselves or others.[15]
At the commencement of the trials, counsel for both Symons and McDonald raised self-defence, and both gave evidence relating to that defence.[16] Namely, they submitted that Starkey had a gun, and they acted in response to the threat of being shot.[17] Pursuant to section 418 of the Crimes Act 1900 (NSW), the Trial Judge had considered self-defence. However, the Trial Judge did not accept that excessive self-defence could be viable in this case as it was impossible to discern which of the accused inflicted the final blow causing death.[18]
Judgement in Robertson
In the judgment of Robertson’s appeal, each judge gave different reasoning, thus forming the fundamental question in Symons of whether the Court should follow a controversial decision. On the issue of evidence, Cavanaugh J agreed with Harrison CJ that it was ‘insufficient’ to leave to the jury.[19] The point of contention was whether any of the co-accused believed that their violent attacks were in self-defence, and, if so, how this belief interacted with liability for murder based upon the legal principles of a JCE.[20]
Dhanji J stated that the Trial Judge produced a ‘false dichotomy’ wherein the accused either ‘act[ed] in furtherance of a joint enterprise’ or acted in full self-defence.[21] His Honour put forth that circumstances can arise in JCEs where the actions can be ‘partially or wholly justified.’[22] Dhanji J also considered the ‘middle course’ controversy wherein a jury that is hesitant to acquit may accept with ease the alternative option given to them.[23] Additionally, His Honour relied on several authorities positing that there is no miscarriage of justice unless it prejudices the accused, and found that the lack of a middle ground was prejudicial to Robertson, despite the full defence of self-defence being available to the jury.[24]
Comparatively, Cavanagh J, in his dissenting judgement, disagreed with Dhanji J as to the ‘false dichotomy’. Harrison CJ did not comment on that issue, but found an inconsistency in leaving section 418 and not section 421 to the jury. The Court quoted Lane v The Queen, that ‘[i]f there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue…there has been an error of law’.[25] Harrison CJ and Dhanji J formed a majority finding that there had been an error of law.
The result in Symon
Whilst the Court of Criminal Appeal (‘CCA’) is not compelled to follow its previous decisions, the Court only departs from previous judgements if justice requires.[26] [27] In the case of AC v R, the CCA stated that a previous decision in this court should only be departed from if it is considered ‘plainly wrong’ and there are ‘compelling reasons’ for departure.[28] In Symons, the Court applied the recent decision of Kwu that held ‘where the court is determining an appeal which is materially indistinguishable from an earlier appeal decision from the same point, then the court should follow the earlier decision unless there is compelling reason to depart from it’.[29] The Crown did not submit any compelling reason for departure. The Justices in Symons found that, in the circumstances, to uphold the rule of law and fundamental principle of equality before the law, the identical appeals must generate the same outcome.
Conclusion
There are gaps in the law where courts must exercise their discretion to impartially determine the correct course for the administration of justice. The convictions of three of the four assailants have been quashed, but they remain subject to a retrial as ordered in each appeal. There is a duty bestowed upon those in the legal field to educate the wider public of the paramount principles underlying the court’s processes, for there to be the appearance of justice, as well as justice itself, as it is not always apparent to the untrained eye.
Edited by Peta Walton
[1] Symons v R, McDonald v R [2024] NSWCCA 212 [6] (‘Symons’).
[2] Ibid [7].
[3] Ibid [1].
[4] Ibid.
[5] Robertson v R [2024] NSWCCA 99 [1] (‘Robertson’).
[6] Muthucumaraswamy Sornarajah, ‘Excessive Self-Defence Under the Australian Criminal Codes’ (1982) 7(2) University of Tasmania Law Review 156, 162.
[7] R v Crane (Trial Ruling No 10) [2022] NSWSC 1227 [22].
[8] Symons (n 1) [2].
[9] Ibid [1].
[10] Robertson (n 5) [79].
[11] Miller v R (2016) 259 CLR 380 at 388 [4].
[12] Crimes Act 1900 (NSW) s 418(2).
[13] Ibid; Symons (n 1) [12].
[14] Crimes Act (n 12) s 421.
[15] Symons (n 1) [13]; Heather Douglas and Alan Reed, ‘The Role of Loss of Self-Control in Defences to Homicide: A Critical Analysis of Anglo-Australian Developments’ (2021) 72(2) Northern Ireland Legal Quarterly 271.
[16] Symons (n 1) [9].
[17] R v Crane (n 8) [8].
[18] Symons (n 1) [15].
[19] Ibid [23].
[20] Ibid [24].
[21] Robertson (n 5) [143].
[22] Ibid [149].
[23] Symons (n 1) [26] quoting Robertson (n 5) [155].
[24] Robertson (n 5) [154]-[156].
[25] (2013) 241 A Crim R 321.
[26] R v Johns [1978] 2 NSWLR 259.
[27] R v Mai (1992) 26 NSWLR 371; Moran v R (1991) 52 A Crim R 440; R v Arnold 30 NSWLR 73.
[28] [2023] NSWCCA 133.
[29] Symons (n 1) [43] quoting Kwu v R [2024] NSWCCA 199 [42] (‘Kwu’).