Supreme Court New South Wales Medium Neutral Citation: R v Rodden [2022] NSWSC 1229 Hearing dates: 22 July 2022 Date of orders: 22 July 2022 Decision date: 27 July 2022 Jurisdiction: Common Law Before: Fagan J Decision: Jury questions answered "No". Catchwords: CRIME – complicity – joint criminal enterprise – directions to the jury – whether accused joined a joint criminal enterprise between four men to assault the deceased – joinder said to arise tacitly at the scene of the crime – whether the accused had to be aware of the fourth assailant in order to agree in the common purpose – consideration of conspiracy cases regarding agreement with unknown co-conspirators – no prior communication by the accused to any assailant of intention to join the criminal enterprise Cases Cited: Ex parte Coffey; Re Evans and Another [1971] 1 NSWLR 434 Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6 KA v R [2015] NSWCCA 111 R v Anthony [1965] 2 QB 189 R v Griffiths [1966] 1 QB 589 R v McDonald [1963] BCJ No 79; 10 CCC (2d) 488 R v Meyrick (1929) 21 Cr App R 94 R v Simmonds [1969] 1 QB 685 Saffron v The Queen (1988) 17 NSWLR 395 Category: Principal judgment Parties: Regina (Crown) Colin Stephen Crane (accused) James Peter Crane (accused) Simon Alexander Rodden (accused) Adam David Symons (accused) Beau Andrew McDonald (accused) Guy Robertson (accused) Jake William McDonough (accused) Representation: Counsel: G Turner with K Prince (Crown) P Young SC (accused C.Crane) S Boland (accused J.Crane) T Edwards (accused Rodden) J Trevallion (accused Symons) T Hughes (accused McDonald) W Flynn (accused Robertson) N Steel (accused McDonough) File Number(s): 2018/228604; 2019/00134906; 2019/00181340; 2017/00329279; 2017/00386819; 2017/00387058; 2017/00387048 JUDGMENT 1. 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". 2. 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. 3. 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. 4. 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. 5. 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. 6. The CCTV at the service station recorded the following sequence of events 1. A red Commodore driven by Symons turned off Peats Ridge Road onto the service station forecourt at 10:06pm. Rodden's Ford Territory was then stationary next to the bowsers, on the side furthest from the road and facing south. Both Rodden and Starkey were outside the vehicle but close to it. 2. The red Commodore turned to its right after entering the service station and stopped on the road side of the bowsers, more or less opposite the Ford Territory and facing in the opposite direction. The Commodore initially remained stationary in that position and no one got out of the vehicle. 3. A metallic coloured Calais driven by Robertson with McDonough as passenger entered the service station about one car length behind the red Commodore and drove straight ahead before coming to a stop on the southern part of the forecourt. 4. As the vehicles drove into the service station Rodden walked around the front of the Ford Territory and took a few steps diagonally towards the south and towards the road. He then returned to his car and both he and Starkey got in. Rodden commenced to drive forward and turned towards Peats Ridge Road. 5. The red Commodore had remained stationary in the position where it had stopped opposite the Ford Territory, as described above, for 17 seconds. As Rodden entered the driver's seat of the Ford Territory, Symons drove the Commodore forward, performed a U-turn and doubled back at speed towards the front of the Ford Territory, as if to block its path towards the road. 6. Rodden stopped his vehicle as the red Commodore approached rapidly from his left. The Commodore also stopped. As the Ford Territory pulled up, Robertson and McDonough ran from the south side of the forecourt to Rodden's driver side door. At the same time Symons and McDonald alighted from the red Commodore. Symons went straight to the passenger door of the Ford Territory, pulled Clint Starkey out onto the ground and commenced to assault him. 7. McDonald came around the front of the red Commodore as Symons was approaching the Ford Territory. As soon as Clint Starkey landed on the ground McDonald joined Symons in kicking him and stomping on him. Robertson and McDonough ran around opposite ends of the Ford Territory and had joined in the attack within three seconds of Mr Starkey hitting the ground. 8. The whole of the combined assault took place while Clint Starkey lay on the ground near the rear passenger side of the Ford Territory. Rodden did not get out of his driver's seat until approximately 11 seconds after the four assailants had all gathered around the deceased and commenced to kick him and stomp on him. By the time Rodden got out of his vehicle, Robertson and McDonough were walking away from the attack but Symons and McDonald were continuing to beat Mr Starkey on the ground. 9. Rodden moved towards the back of his car and reached a point where he could have seen the ongoing assault by Symons and McDonald. He was still there when Robertson returned to the fray a few seconds later again. Robertson then repeatedly stomped on Mr Starkey's head. The assault came to an end when Robertson withdrew after a few more seconds. To that point, 30 seconds had elapsed since Mr Starkey was pulled out of the car. Rodden had been in a position to see the four assailants only for about the last 13 seconds of the attack. 1. 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. 2. 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. 3. 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]. 4. The jury were instructed as to the element of Rodden's joinder in the enterprise by posing to them the following question: 2. Has the Crown proved beyond reasonable doubt that when Clint Starkey received the blow or blows that caused his death as found in answer to Question 1, Simon RODDEN was party to an agreement with each of the alleged assailants that between them they would: (a) inflict grievous bodily harm, intentionally, upon Clint Starkey OR (b) assault Clint Starkey, Simon RODDEN foreseeing the possibility that in carrying out that agreement one or more of the parties to the agreement might intentionally cause grievous bodily harm to Clint Starkey? 1. 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: 5. Has the Crown proved beyond reasonable doubt that when Clint Starkey received the blow or blows that caused his death as found in answer to Question 1, Simon RODDEN was party to an agreement with each of the alleged assailants that between them they would (a) assault Clint Starkey unlawfully, in a manner and/or to a degree that, to a reasonable person, would involve an appreciable risk of causing serious injury OR (b) assault Clint Starkey unlawfully, Simon RODDEN foreseeing the possibility that one or more of the alleged assailants might carry out the agreement in a manner and/or to a degree that, to a reasonable person, would involve an appreciable risk of causing serious injury? 1. 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: (a) upon the arrival of the alleged assailants at the service station, [Rodden] delayed the departure of Clint Starkey from that place by first walking towards the Holden Calais in which Guy ROBERTSON and Jake McDONOUGH were travelling and then standing by the driver's door of the Ford Territory AND/OR (b) [he] stopped the Ford Territory after moving the vehicle forward a few car lengths and did not proceed onto Peats Ridge Road via a driveway or across the kerb AND/OR (c) [he] informed Guy ROBERTSON and/or Jake McDONOUGH, when they approached his driver's side door, that his passenger was Clint Starkey AND/OR (d) [he] was present ready and willing to assist in the assault of Clint Starkey, from when the four alleged assailants arrived at the service station through to the conclusion of the assault upon Clint Starkey 1. 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. 2. 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. 3. 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. 4. 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. 5. 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: What they say is it is the agreement that is the important part not the knowledge of the persons in it. It is the joining of the agreement because a person can have a conspiracy with persons unknown. 1. 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: [There] was no evidence that either of [Mrs Meyrick or Mr Ribuffi] knew each other, or had met each other, or had consulted together. […] [It] must be conceded, that in order that persons may conspire together it is not necessary that there should be direct communication between each and all […]. It is not suggested that Mrs Meyrick was in direct communication with Ribuffi, but it is more than suggested – nay, the jury are asked to find as a fact upon the evidence – that Mrs Meyrick was in communication with Goddard, and that Ribuffi was in communication with Goddard, and not for a purpose individual and special in the one case to Mrs Meyrick, or in the other case to Ribuffi, but for a common design – a design common to all of them […]. It seems to us that it was clearly put to the jury that in order to find these persons, or any of them, guilty of the conspiracy charged in the first count of this indictment, it was necessary that the prosecution should establish, not indeed that the individuals were in direct communication with each other, or directly consulting together, but that they entered into an agreement with a common design. Such agreements may be made in various ways. There may be one person, to adopt the metaphor of counsel, around whom the rest revolve. The metaphor is the metaphor of the centre of a circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain; A communicates with B, B with C, C with D and so on to the end of the list of conspirators. 1. 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: Furthermore, it is well established law that if A and B conspire together to carry on, for example, a course of fraudulent trading, C may join in (or in the old phraseology "adhere to") the conspiracy at a later date and then A may drop out and be replaced by D. But it all remains a single conspiracy as long as all of them are for the period of their participation acting in combination to achieve the same criminal objective. That statement was adopted in Saffron v The Queen (1988) 17 NSWLR 395 at 422 (Hope JA, Clarke JA agreeing). 1. 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): [In] law all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself. But what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act or acts which he agrees to do. 1. 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): As applied to the present case, a conspiracy may be defined as an agreement of two or more to do unlawful acts, namely to procure abortions. […] The essence of the crime is participation in a design […]. As what has to be proved is the common agreement, conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. Once the common agreement is proved, no further overt act in furtherance of the agreement need be adduced as the agreement to do an unlawful act is sufficient to show the criminal intent. […] The fact of conspiring might be collected from collateral circumstances. In the light of these considerations it is important to observe that the alleged conspirators may never have seen each other and have never corresponded. One may have never heard the names of the others and yet by law they may be parties to the same common criminal agreement (per Fitzgerald J.in R v Parnell (1881) 14 Cox CC 508 at p 515) provided there is proof of acts on both sides which may lead a jury to infer that they were engaged in accomplishing the same common object. [...] For when two or more agree to carry into effect an unlawful act the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if for a criminal object or for the use of criminal means. […] Again it must be emphasized that to support the Crown case each defendant must be shown to have been in communication with O'Donnell not for a purpose individual and special to the individual but for a common design, a design common to all of them to bring about abortions on a grand scale. For it can occur in criminal conspiracies that there is one person around whom the rest revolve, to use the metaphor of the hub of a bicycle wheel as the centre and its circumference or of a chain reaction amongst a number. The question is, were the acts of the accused done in pursuance of a criminal purpose held in common between them? 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. There was further argument about this at T 2224-2228, when the Crown made these submissions: [Rodden] has entered into an agreement, a tacit agreement, an understanding with those who arrived in those two cars and he does not have to know who they are or how many. It is those who arrive and who are present. The persons who arrived at that service [station] in those two cars, the occupants, had an agreement and Mr Rodden entered into the agreement with those persons who arrived and the occupants, however many there were and whoever they were. […] The Crown says that he does not have to know how many to [enter] an agreement with those persons who arrived. The Crown says that would be incorrect and unfair, an unfair burden on the Crown in terms of an agreement which can be a tacit agreement by conduct. It does not have to be expressed. It does not have to [be) entered into with each of the four. It is those persons who arrived – […] That is part of his conduct when they come in. It is what those cars do. One comes and sits there and he is looking over at the car and there is some non verbal communication between them and the other car is over there. So he is communicating with those that arrive. It happens to be in two cars. It happens to be. It could have been in one car. Those persons who are present on his understanding to carry out this assault. It is those persons collectively that he is in an agreement with. Those persons. Not one, two, three and four separately. It's the group that arrived. 1. 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 first point that Mr Edwards made was that, whereas this question [referring to Question 2 in the written directions – see [10] above], asks you has the Crown proved beyond reasonable doubt that he agreed with all four, he submits to you that you would not be satisfied that he agreed with all four, because you wouldn't be satisfied that he even knew Mr McDonald was there and you wouldn't be satisfied, therefore, that there was any tacit communications between them by conduct amounting to an understanding or agreement, because he didn't even know Mr McDonald was there. Mr Edwards pointed out that when the Commodore drove in, Mr Rodden would, of course, realise that there are two men in the Calais because he sees them and they get out of their car. He would know that there is someone driving the red Commodore but Mr Edwards submits to you that you wouldn't be satisfied that he knew there was a passenger in the other car at all. In any event, to that point, if there was a passenger, that passenger, on the CCTV has not done anything. He certainly has not done anything to Mr Rodden's observations. Mr Edwards' argument is you might find conduct that is co-operative with the men who have driven down the other side and the man who is driving the Commodore, co-operative with them in the sense of driving forward the Territory and stopping it, for example. He urges that you do not find that, but that is the limit of it. But you could not find that he did anything co-operative with Mr McDonald because he has not even seen there is a passenger. Let alone, says Mr Edwards, does he know whether the passenger is a party to anything or if he is just a passenger. The Crown has not submitted to you, it has not run a case, that prior to getting there Mr Rodden knew how many men there would be, let alone who they would be. So, on Mr Edwards' first argument to you, as a matter of fact, and it is entirely a matter of fact within your province, he is saying: you cannot find tacit conduct, tacit agreement, co-operative agreement, from which you infer an understanding being made between people to act on a certain joint criminal enterprise if the person who is supposed to be making this agreement does not know of the presence of one of those who he is supposed to be agreeing with and therefore does not see anything that that person does and that person does not see anything that he does that could amount to them demonstrating their co-operation with each other so as to manifest an understanding. That was the first part of his argument. Mr Edwards went on to submit that when the red car pulled up and now Mr McDonald did emerge, he said you would not be satisfied that Mr Rodden even then knew he was there, because he was occupied with the men who had run to his door and who he said approached his door in an aggressive and assertive fashion. He said that he would necessarily be preoccupied with them. He would not be looking to see that Mr McDonald got out of the car. You could not interpret the actions of the people on the ground as being a sort of implicit signalling to each other of co-operation as between Mr Rodden and Mr McDonald in those circumstances. He said you should not find there was an agreement with the four, as is asked of you in that a question. 1. The jury's questions, received on the afternoon of 22 July 2022 after three days of deliberation, were as follows: If Mr Rodden was unaware that four men had arrived at the service station at the time the assault began, but was aware that some number of men had arrived, is it possible for him to be party to an agreement with each of the alleged assailants as described in question 5? If Mr Rodden had not realised, at the start of the assault, that all four of the alleged assailants were present, is it possible for him to become party to an agreement with them? 1. 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: This [question] would equally be applicable to question 2 [in the written directions – see [10] above], the answer is, no. In order to find beyond reasonable doubt that Simon Rodden became a party to an agreement with all four of the assailants at the service station, in the absence of any evidence of exchanged words between them, you would have to be satisfied beyond reasonable doubt that there was conduct of Mr Rodden towards each of the four that was capable of conveying his agreement and was intended on his part to convey his agreement to what they were doing or were imminently about to do. If you are not satisfied that he saw Mr McDonald or was conscious of his presence you could not be satisfied beyond reasonable doubt that anything he did would have constituted his intentional conveying of agreement on his part to what Mr McDonald was doing. If he did not know that Mr McDonald was there and did not see what Mr McDonald was doing or evidently about to do, then there could not be as between the two men the necessary signalling by implication from conduct of what each of them intended and their agreement with each other. Your second question I think is really much to the same effect, but somewhat differently expressed. [The question was read back]. That is really the same thing. The Crown, as you know, has led evidence from which it asks you to infer beyond reasonable doubt that he knew before arriving at the service station that there would be an assault; but it has not been suggested that you could find beyond reasonable doubt that he knew how many men would turn up, knew it would be more than one, or knew that there would be an agreement between them. The way the Crown has presented its case to you concerning Mr Rodden joining an agreement is to say that when he was there and then the four men arrived in their cars that by conduct on the part of each – him on the one side and each of them on the other side – by conduct between them they, if you like, intimated to each other what was going to happen and their agreement to join in the commission of that crime. The four assailants by making the attack; Mr Rodden by, at least on the Crown's argument, being present, ready and willing to assist and remaining present, ready and willing to assist at least that – that is the last of the particulars that the Crown relies upon. It is a case where the Crown seeks to have you find beyond reasonable doubt the existence of an agreement with all four just by them communicating to each other their agreement, reaching and communicating their understanding with each other by the way in which each side behaved in the presence of the others. For that to be capable of supporting a conclusion by you beyond reasonable doubt that Mr Rodden thereby joined an agreement with, in particular, Mr McDonald you would have to be satisfied that he knew Mr McDonald was there and that his conduct was directed to conveying his agreement, therefore, in what Mr McDonald was doing or about to do. 1. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2022