Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Robertson v R [2024] NSWCCA 99 Hearing dates: 18 March 2024 Date of orders: 03 July 2024 Decision date: 03 July 2024 Before: Harrison CJ at CL at [1]; Cavanagh J at [35]; Dhanji J at [116] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the conviction. (4) Order that there be a new trial. (5) Direct that the proceedings be listed for mention in the Supreme Court Arraignment List on 2 August 2024. Catchwords: CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice CRIME – appeals – statutory interpretation – excessive self-defence – meaning of "force that involves the infliction of death" in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death Legislation Cited: Crimes Act 1900 (NSW), ss 418, 421 Cases Cited: Batak v R [2024] NSWCCA 66 Beavan v The Queen (1954) 92 CLR 660; [1954] HCA 41 Clayton v The Queen [2006] HCA 58; 81 ALJR 439 Coskun v R [2024] NSWCCA 67 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Huynh v The Queen [2013] HCA 6; 87 ALJR 434 IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3 Lane v The Queen (2013) 241 A Crim R 321; [2013] NSWCCA 317 McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 McEwan v R (2013) 41 VR 330; [2013] VSCA 329 Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246 R v Crane & Ors (Trial Ruling No 10) [2022] NSWSC 1227 R v King (2004) 59 NSWLR 515; [2004] NSWCCA 20 R v Tangye (1997) 92 A Crim R 545 The King v Rohan (a pseudonym) [2024] HCA 3; 98 ALJR 429 Zecivic v The Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26 Category: Principal judgment Parties: Guy Keith Robertson (Applicant) Crown (Respondent) Representation: Counsel: I McLachlan (Applicant) M England with V Garrity (Respondent) Solicitors: Newtons Law (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2017/387058 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Crane & Ors [2022] NSWSC 1545 Date of Decision: 29/07/2022 (verdict) 11/11/2022 (sentence) Before: Fagan J File Number(s): 2017/00387058 HEADNOTE [This headnote is not to be read as part of the judgment] Guy Keith Robertson was convicted by a jury on 29 July 2022 for the murder of Clint Starkey contrary to s 18(1)(a) Crimes Act 1900 (NSW) '(the Crimes Act'). Mr Robertson had pleaded guilty to manslaughter before the jury, but his plea was not accepted by the Crown. Mr Robertson was sentenced by Fagan J ('the trial judge') on 11 November 2022 to 19 years imprisonment with a non-parole period of 13 years commencing on 21 December 2017 and expiring on 20 December 2030. On the night of 5 April 2017, the deceased was driven by Simon Rodden to a Caltex Service Station at Peats Ridge. CCTV footage showed that Adam Symons, Jake McDonough, Beau McDonald and Mr Robertson ('the assailants') surrounded the vehicle and pulled the deceased from the passenger seat onto the ground. They proceeded to punch, kick, and stomp on his head for approximately 30 seconds. The assault upon Mr Starkey was allegedly procured by Colin Crane and his brother James Crane in retribution for threats made against Colin Crane and his partner at various times between 3 and 5 April 2017. The deceased died from his injuries on 12 June 2017. The Crown case was that each of the assailants was a participant in a joint criminal enterprise to inflict at least grievous bodily harm on the deceased. Alternatively, the Crown contended that each of the assailants was a participant in a joint criminal enterprise to assault the deceased, where each foresaw the possibility that grievous bodily harm may be intentionally inflicted upon him by another participant in the course of executing the agreement to assault. Three of the assailants were convicted of murder, except for Mr McDonough, who was convicted of manslaughter. Colin and James Crane were convicted of murder as accessories before the fact for counselling, procuring, and assisting the principals to commit assault with intent to inflict grievous bodily harm pursuant to s 346 Crimes Act. The single issue arising on the appeal was whether the trial judge erred in failing to leave to the jury the alternative verdict of manslaughter for Mr Robertson on the basis of "excessive self-defence" pursuant to s 421 Crimes Act. The decision not to leave excessive self-defence was the subject of a trial ruling by the trial judge: R v Crane & Ors (Trial Ruling No 10) [2022] NSWSC 1227. Argument about the availability of excessive self-defence arose from, among other things, the evidence of Mr Symons that as he approached the passenger door of the vehicle, he saw the deceased and yelled "[h]e's got a gun" to the other assailants. A key evidentiary issue that informed both the Crown's case and the trial judge's ruling was the absence of expert medical evidence proving which assailant(s) committed the specific blow(s) that caused the death of the deceased. The Court held (Harrison CJ at CL and Dhanji J allowing the appeal but giving separate reasons, Cavanagh J dismissing the appeal): Harrison CJ at CL (1) 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 under s 421(1)(a) Crimes Act. If the use of force could not be proved to have caused the death, the question of the so-called defence in s 421 Crimes Act would not arise: [21] (Harrison CJ at CL); [86] (Cavanagh J dissenting but agreeing with this finding). (2) The so-called evidence that the assailants instantly came to an agreement to defend themselves rises no higher than speculation or surmise, and never achieves the level of an available inference, let alone a rational or compelling inference: [25]-[27] (Harrison CJ at CL); [85] (Cavanagh J dissenting but agreeing with this finding). Beavan v The Queen (1954) 92 CLR 660, considered. (3) Having found that the evidence was not capable of supporting a verdict of manslaughter by excessive self-defence, the trial judge might well have declined to direct the jury on manslaughter at all upon the basis that no viable case existed for the adoption of that course. However, having left the question of whether the Crown had negatived the proposition that Mr Robertson was acting in self-defence to the jury, the trial judge should have directed the jury as to the availability of a verdict of manslaughter by reason of excessive self-defence: [32]. Lane applied. Lane v The Queen (2013) 241 A Crim R 321, considered. Cavanagh J (4) Absent an agreement to defend themselves, s 421 Crimes Act 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 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, there was no viable pathway to manslaughter on this basis: [90]-[93]. Osland v The Queen (1998) 197 CLR 316 considered, R v Basanovic (2018) 100 NSWLR 840, applied. (5) The trial judge was not leaving self-defence in accordance with either ss 418 or 421 of the Crimes Act to the jury and did not give directions consistent with either of those sections. Instead, the trial judge identified 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 the joint criminal enterprise: [112]-[113]. Osland v The Queen (1998) 197 CLR 316, McEwan v R (2013) 41 VR 33, R v Basanovic (2018) 100 NSWLR 840, considered. Dhanji J (6) The trial judge set up a false dichotomy by assuming that the evidence of self-defence raised a question which was anterior to the question of participation in a joint criminal enterprise: [144]. (7) There is no reason why the acts of the other three assailants could not be attributed to Mr Robertson 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 and excessive self-defence pursuant to ss 418 and 421 of the Crimes Act: [148]. Osland v The Queen (1998) 197 CLR 316 applied. (8) The miscarriage of justice lies in the fact that the options available to a jury have the capacity to affect their ultimate decision. When arraigned before the jury, Mr Robertson pleaded not guilty to murder but guilty to manslaughter. That defined the contest he sought to engage in. By the time of his closing address, Mr Robertson's counsel was in an invidious position where he was forced to submit that, despite Mr Robertson's initial acceptance that he was guilty of manslaughter, he was entitled to walk free without any punishment at all. Mr Robertson 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: [153], [157]-[158] (Dhanji J); [33] (Harrison CJ at CL agreeing). Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 applied. JUDGMENT 1. 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. Background 1. 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. 2. 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. 3. 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. 4. 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. The judgment 1. His Honour commenced his judgment with the following introductory paragraph: "[1] There has arisen in this trial a contested issue as to how the jury should be directed with respect to self-defence. This has been raised in the cases of Adam Symons and Beau McDonald. The Crown alleges that the death of the deceased, Clint Starkey, resulted from one or more blows delivered in the course of a collective bashing by four of the accused, namely, Symons, McDonald, Robertson and McDonough. The evidence would not permit the jury to find that blows administered by any individual accused were a substantial cause of death independently of blows delivered by one or more of the others. The only basis upon which the Crown alleges that Symons or McDonald committed acts causative of the death of Clint Starkey, in relation to which self-defence would fall to be considered, is if the blows delivered by all four of the accused can be attributed to each of the others on the basis of joint criminal enterprise or extended common purpose." 1. 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. 2. At [9] his Honour said this: "[9] Clint Starkey never recovered consciousness and died approximately nine weeks after the assault. The Crown has adduced evidence from which it would be open to the jury to conclude that one or more of the blows sustained at the hands of the four assailants on 5 April 2017 was a significant cause of death. It has not adduced evidence from which the jury could be satisfied that any one or more blows delivered by any individual assailant was a substantial cause of death." [emphasis added] 1. 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: "[11] On the evidence summarised above it would be open to Symons and McDonald not to invoke self-defence under ss 418 and 421 of the Crimes Act at all but instead to advance the contention that they responded to a threat of harm from Clint Starkey as a hypothesis consistent with innocence. The Crown case that they were parties to a joint criminal enterprise is wholly circumstantial. A very significant element of the circumstantial case is the CCTV footage of what occurred at the service station. The events recorded by CCTV are open to the interpretation that the actions of the four assailants were unhesitating and coordinated. On that view their acts could be regarded by the jury as indicating that they were carrying out a plan that they had agreed upon before they arrived. The proposition that their acts were, instead, a spontaneous reaction to a shouted warning from Symons is a putative alternative explanation of the circumstances. Defence counsel might endeavour to persuade the jury that it is reasonably possible – and not excluded by the Crown's evidence – that all four acted in response to a perceived need to defend themselves and not in furtherance of a preconcert. [12] If defence counsel were to accept that that is the manner in which they rely upon Symons' and McDonald's evidence of a perceived threat from Clint Starkey, the necessary direction to the jury would be straightforward. It would merely be required that this alternative hypothesis, advanced to explain the accused's [sic] conduct at the service station, be identified in the course of outlining to the jury the competing positions of the Crown and the defence as to whether preconcert has been proved beyond reasonable doubt by circumstantial evidence. However, Symons and McDonald submit that the jury should be directed in terms of ss 418 and 421. I have concluded that s 421 is not engaged and that it cannot be left open to the jury to return a verdict of guilty of manslaughter on the basis of excessive self-defence." 1. His Honour then indicated that he proposed to direct the jury to address the following questions, with respect to each of the assailants: "Joint criminal enterprise – murder 2. Has the Crown proved beyond reasonable doubt that when Clint Starkey received the blow or blows that was or were a significant contributing cause of his death as found in answer to Question 1, Adam SYMONS was party to an agreement with the other alleged assailants that between them they would: (a) inflict grievous bodily harm, intentionally, upon Clint Starkey OR (b) assault Clint Starkey unlawfully, Adam SYMONS foreseeing the possibility that in carrying out the agreement one or more of the parties to it might intentionally cause grievous bodily harm to Clint Starkey? NOTE: 'grievous bodily harm' means really serious injury. 'an assault' may be committed by physical striking and will be unlawful if committed without consent and not in self-defence. • If yes to either (a) or (b), go to Question 3. • If no to both (a) and (b), go to Question 4 concerning joint criminal enterprise to commit manslaughter. 3. Has the Crown proved beyond reasonable doubt that when Clint Starkey was struck the blow or blows that was or were a significant contributing cause of his death as found in answer to Question 1, Adam SYMONS (a) attended at the scene with the other alleged assailants and pulled Clint Starkey from the Ford Territory vehicle and together with the other alleged assailants inflicted blows upon him in furtherance of the agreement found in answer to Question 2 AND (b) did not pull Clint Starkey from the Ford Territory vehicle and inflict blows upon him in response to a belief on Adam SYMONS' part that his conduct was necessary to defend himself or any other person against Clint Starkey? • If yes to both (a) and (b), find Adam SYMONS guilty. • If no to either (a) or (b), find Adam SYMONS not guilty." 1. His Honour's reasoning for formulating the directions in these terms, without reference to the issue of excessive self-defence, was then explained: "[14] Questions 2 and 3 are directed, respectively, to whether the Crown has proved a joint criminal enterprise and, if so, whether Symons participated in carrying out the enterprise by playing his part in the combined assault. The evidence of Symons and McDonald regarding their claimed need to defend themselves against Colin Starkey's potential use of a gun only requires that within Question 2 the jury be specifically directed to decide whether the Crown has proved that that was not the reason or purpose for which Symons wrenched the deceased from the car and struck him. [15] Counsel for Symons submits that the jury should be directed to consider, first and as a matter anterior to whether Symons' individual acts were in furtherance of the joint criminal enterprise, the question whether he believed it was necessary to defend himself by the commission of his own acts and whether those acts were a reasonable response. That would lead to the jury considering both Symons' claimed defensive state of mind with respect to his individual acts and the proportionality of his individual acts, in circumstances where there is no evidence that those individual acts were a cause of death. There is no Crown case and no evidence that Symons' individual acts, divorced from their character as acts in furtherance of the joint criminal enterprise alleged by the Crown, were causative of Clint Starkey's death so as to give rise to criminal liability for the death. [16] Disregarding, for the moment, the burden of proof, the threshold question is whether Symons took part in assaulting Clint Starkey in furtherance of a pre-concert or in self-defensive response to a threat. If it is the latter and not the former, then the acts of the other three assailants are not attributable to him. As the only acts for which he could in that case be liable, namely, his individual blows, are not alleged or proved to have been independently a substantial cause of death, Symons would be entitled to acquittal. There would be no occasion for the jury to consider whether Symons' individual response to the threat that he claims to have perceived was reasonable. Section 421 would not be engaged. The force used by Symons individually is not alleged, let alone proved, to have '[involved] the infliction of death': see s 421(1)(a)." [emphasis added] 1. 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: "[19] In cases where the accused claims that a joint criminal enterprise was entered into for self-defence purposes from the outset, such as Osland v The Queen [1998] HCA 75; (1998) 259 CLR 380 and the aspect of the facts in R v Basanovic that Simpson AJA considered in the passage quoted above, there will be different considerations from those presented where, as here, the joint criminal enterprise is alleged to have been formed before the events that the accused relies upon to ground self-defence. However, in every case where joint criminal enterprise is the sole basis for holding an accused criminally liable for acts of others that cause death, Simpson AJA's point remains: there is no 'conduct [of the accused] constituting the offence' of murder, against which self-defence may be invoked and left to the jury, unless the essential elements of liability pursuant to joint criminal enterprise are established. Those essential elements, so far as they are in contest in the present case, are an agreement to inflict grievous bodily harm (or an agreement to assault with contemplation of intentional infliction of grievous bodily harm) and acts in furtherance of that agreement. [20] The jury must be directed to determine first the contested basis of Symons' criminal liability for his co-accused's fatal blows. In view of Symons' evidence about having reacted to the sight of a gun, resolution of whether the Crown has proved that his part in the attack was in furtherance of the alleged agreement with the other assailants will require simultaneous consideration of whether the Crown has disproved that he responded defensively. These alternatives are the obverse of each other on the evidence in this case. The Crown must prove the first and disprove the second. Logically, proof of the first encompasses disproof of the second but, for abundant caution, Question 3 will be framed as set out above, incorporating both parts. If the jury should find that the Crown's burden of proof has not been discharged in this respect, Symons could have no criminal responsibility for the blows struck by the co-accused, amongst which, indistinguishably, lay the cause of death. He would be entitled to acquittal. The question of 'reasonable response' under s 421(1)(b) would in that case not arise. A verdict of guilty of manslaughter could not be returned because the jury could not find that Symons' individual acts caused Clint Starkey's death. … [24] The above reasons are expressed by reference to the position of Symons but they apply equally to McDonald. They also apply to the two other assailants, Robertson and McDonough, whose counsel will submit to the jury that they would have heard Symons' warning and acted in self-defence, rather than in furtherance of a joint criminal enterprise formed prior to their arrival at Peats Ridge." [emphasis added] 1. 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 evidentiary conclusion 1. 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]: "[32] During the entire course of the trial there was never any suggestion that an alternative verdict of manslaughter ought to have been left to the jury. Whether an accused person seeks such a direction sometimes hinges upon tactical considerations. It should not be assumed that it is always to the advantage, or perceived to be to the advantage, of a person accused of murder to have the jury given the option of returning an alternative verdict of guilty of manslaughter. That may be seen to be offering the jury a middle path between conviction of murder and acquittal. Such a case was Mraz v The Queen [1955] HCA 59; 93 CLR 493 (see below). A person accused of murder may perceive an advantage in casting upon the jury the responsibility of determining whether he or she is guilty of murder, or is to be acquitted, with no middle course available. Although the tactical considerations had added force in the days when the penalty following a conviction for murder was or could be death, the consideration, while diminished somewhat, still remains valid. In Mraz, in a joint judgment, Williams, Webb and Taylor JJ said: 'As those who are familiar with murder trials well know, if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death ... Whilst, perhaps, the like comment may not now be made with quite the same force it is clear that the appellant was entitled to have the issues decided upon the graver charge and, to us, it seems quite wrong to attempt to justify the verdict of manslaughter, returned in the circumstances of this case, by the observation that the jury, upon an issue of manslaughter which they were invited to consider, must have reached conclusions on issues of fact which would have required them, if properly instructed, to have returned a verdict of murder. It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions.' (italics added) [33] Fullagar J said: 'In many murder trials the question whether the possibility of a verdict of manslaughter should be raised presents a serious problem to counsel for the accused. Probably in most cases it is regarded as disadvantageous to the accused to suggest the possibility of a verdict of manslaughter. A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them. The position is well illustrated by Ross v The King [1922] HCA 4; 30 CLR 246] ... In the same case in the High Court Higgins J. said:- "I thoroughly concur with the view put by the Supreme Court that 'the absence of any express direction as to manslaughter was an omission, as far as it went, entirely in the prisoner's favour'. As those who are familiar with murder trials well know, if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death" ... In the present case the jury may well have hesitated long before convicting the appellant of murder, and it is very far indeed from clear that the misdirection did not operate to his grave disadvantage. In such circumstances it is impossible to say that no substantial miscarriage of justice has occurred. These 'too favourable' directions can only too often be veritable gifts from the Greeks." Mraz was a rare case in which it was held to have been erroneous to leave to the jury an alternative verdict of manslaughter. At trial, Mraz was acquitted of murder but convicted of manslaughter. That verdict was set aside and a verdict of acquittal entered. [34] The italicised passage from the joint judgment was quoted by Gleeson CJ and Gummow J in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [14], with the comment: '17 When, in Mraz, the majority referred to 'ignoring the realities of the matter', one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a "murder-or-nothing" basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.' [35] That it may not be to the advantage of an accused person to have an alternative verdict of manslaughter left was also specifically recognised by Kirby J in Gillard v The Queen [2003] HCA 64; 219 CLR 1. His Honour set out a series of propositions of which the eighth and last was: '83 Eighthly, great care on the part of a trial judge is needed to ensure that, by posing the possibility of a verdict of manslaughter, the judge does not effectively deprive an accused of a verdict of acquittal ...'" 1. The Court in Lane continued at [42] as follows: "[42] This Court has concisely stated the current position, in four propositions, as follows: '(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is 'viable'). (2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict, the judge must accept it. (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (4)(a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. (b) Subject to the provisions of the Criminal Appeal Rules 1952 (NSW), r 4 (see [99]-[100]), the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial.' (italics added) R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 per Hunt AJA, Buddin and Hoeben JJ." 1. 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: "Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder, and counsel for the prisoner has not suggested to the jury the possibility of their returning a verdict of manslaughter, the judge is under no duty to inform the jury that it is within their power to find a verdict of manslaughter, unless the jury ask a question upon the subject. In that case it will usually be incumbent upon the judge to inform them that upon an indictment for murder it is within the province of a jury to find a verdict of manslaughter; but it is proper for him to add an expression of his opinion that in no view of the evidence which the jury might reasonably take are findings of fact open that fall short of murder but amount to manslaughter." 1. 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. 2. 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. 3. 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. 4. Section 421 provides relevantly as follows: 421 Self-defence—excessive force that inflicts death (1) This section applies if— (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary— (c) to defend himself or herself or another person […] (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. 1. 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. 2. 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. 3. 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 evidentiary conclusion 1. 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. 2. 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: "CROWN PROSECUTOR: Your Honour, I think I have made my point. The point that I wanted to make that it may be reasonably open, that it may be a pathway and that having seen the gun that they are now acting in concert in response to it…". 1. His Honour dealt with the extent of the evidence about this as follows: "[21] It was submitted by the Crown that there should be left to the jury the possibility of finding that Symons saw a gun or thought he did, that he shouted a warning, that he and the other three then all perceived need to defend themselves and that they thereupon instantaneously formed a tacit agreement to assault Clint Starkey in self-defence. It was submitted that under such an instantly formed understanding each would be criminally responsible for the blows delivered by each other, pursuant to the doctrine of joint criminal enterprise. It was then submitted that if the force used was not a reasonable response in the circumstances as the assailants perceived them, each would be guilty of manslaughter by operation of s 421. [22] The whole reason for the Crown advancing this scenario is to establish a basis upon which all blows that were inflicted after a warning about a gun could be attributed to each of the four assailants. To support a verdict of manslaughter by excessive self-defence on this basis, 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 Symons. In my view there is no evidence upon which the jury could so find. As recounted earlier, McDonald said that Symons gave the warning when he was within an arm's-length of the passenger door of the Ford Territory. The CCTV shows that it could not have been any earlier than that because Symons could not have seen a firearm in Clint Starkey's hands until he reached that position. From then, only three seconds elapsed until Symons had hurled Clint Starkey to the ground and only a further three seconds until all four assailants were physically attacking him. [23] There is no evidence of any form of communication between the four assailants in the six seconds from the time at which the warning might have been shouted until they all joined in the attack; that is, no evidence of any communication by which they could have signified to each other agreement to take concerted action. During those few seconds between the putative catalyst for forming such an agreement and the joint implementation of the supposed agreement by acts of violence, Symons had his back to McDonald and those two were separated from Robertson and McDonough by the Ford Territory. The participation of each assailant in punching, kicking and stomping upon Mr Starkey is not capable, on its own, of constituting evidence that an understanding to inflict these blows had been reached within the preceding six seconds. In that respect, the scenario propounded by the Crown in its endeavour to engage s 421 is in sharp contrast with its main case. According to that case, the concerted nature of the attack upon Clint Starkey is powerful circumstantial evidence of preconcert when taken together with other evidence that the four men had travelled from Woy Woy in a convoy of two vehicles, to a service station in a fairly remote location that had closed for the evening, they being in communication with the Crane brothers who knew that Clint Starkey was there, and upon arrival had proceeded without hesitation to launch their attack." 1. 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. 2. 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). 3. 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. 4. 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. 5. 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. 6. 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]: "…it is now well established that, where a person is on trial for murder, and where the evidence in the trial is capable of supporting a verdict of guilty of the lesser offence of manslaughter, it is the duty of the trial judge to direct the jury of its entitlement to acquit the accused of murder and return a verdict of guilty of manslaughter. That is so even if the accused person does not seek such a direction, and even where the accused person actively opposes the direction." (emphasis added) However, once having left the question of whether the Crown had negatived the fact that Mr Robertson was himself acting in self-defence to the jury, it seems to me to be inescapable that his Honour should, in accordance with authority, also have directed the jury on the question of the availability of a verdict of manslaughter by reason of excessive self-defence. Mr Robertson's plea of guilty to manslaughter in front of the jury at the start of the trial was presumably offered on that basis. In those circumstances, his Honour's failure to deal with excessive self-defence amounted to an error. The proviso 1. 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. Orders 1. It follows that Mr Robertson's conviction must be quashed and a new trial ordered. I agree with the orders proposed by Dhanji J. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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). 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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 trial judge's decision 1. 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. 2. 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. 3. 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. 4. 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]: "In cases where the accused claims that a joint criminal enterprise was entered into for self defence purposes from the outset, such as Osland v The Queen [1998] HCA 75; (1998) 259 CLR 380 [sic] and the aspect of the facts in R v Basanovic that Simpson AJA considered in the passage quoted above, there will be different considerations from those presented where, as here, the joint criminal enterprise is alleged to have been formed before the events that the accused relies upon to ground self defence. However, in every case where joint criminal enterprise is the sole basis for holding an accused criminally liable for acts of others that cause death, Simpson AJA's point remains: there is no "conduct [of the accused] constituting the offence" of murder, against which self defence may be invoked and left to the jury, unless the essential elements of liability pursuant to joint criminal enterprise are established. Those essential elements, so far as they are in contest in the present case, are an agreement to inflict grievous bodily harm (or an agreement to assault with contemplation of intentional infliction of grievous bodily harm) and acts in furtherance of that agreement. The jury must be directed to determine first the contested basis of Symons' criminal liability for his co-accused's fatal blows. In view of Symons' evidence about having reacted to the sight of a gun, resolution of whether the Crown has proved that his part in the attack was in furtherance of the alleged agreement with the other assailants will require simultaneous consideration of whether the Crown has disproved that he responded defensively. These alternatives are the obverse of each other on the evidence in this case. The Crown must prove the first and disprove the second. Logically, proof of the first encompasses disproof of the second but, for abundant caution, Question 3 will be framed as set out above, incorporating both parts. If the jury should find that the Crown's burden of proof has not been discharged in this respect, Symons could have no criminal responsibility for the blows struck by the co-accused, amongst which, indistinguishably, lay the cause of death. He would be entitled to acquittal. The question of "reasonable response" under s 421(1)(b) would in that case not arise. A verdict of guilty of manslaughter could not be returned because the jury could not find that Symons' individual acts caused Clint Starkey's death." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. Determination 1. 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. 2. 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. 3. 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. 4. 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. 5. 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]: "In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission." (Emphasis in original). 1. 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. 2. 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. 3. 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. 4. 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. 5. 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). 6. 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. 7. In Basanovic, Simpson AJA at [81] summarised the test as follows: "As stated in various of the decisions, the test is whether there is evidence that could support the defence or alternative verdict; that is, whether a case for an alternative verdict based on the evidence is viable." 1. 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. 2. 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. 3. 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. 4. 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. 5. Two things need to be said at this point, being: 1. Two or more persons tried on the basis of a joint criminal enterprise may be guilty of different offences because one has a defence such as self-defence or provocation that is not available to the other (McEwan v R (2013) 41 VR 330; [2013] VSCA 329 at [38] per Redlich, Coghlan JJA and Dixon AJA ("McEwan")). There may even be circumstances in which the active participant (i.e. the person who commits the act constituting the crime) may be entitled to rely on a defence, such as self-defence or provocation, when the passive participant is not (Osland at [93] per McHugh J). 2. The defence of self-defence, whether complete or partial, is governed by statute in NSW (see ss 418 and 421 of the Crimes Act). 1. 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. 2. 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. 3. 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]: "Further, although the Crown case appears to have been that the agreement was made at some time well in advance of the excursion to Dynamic Transport, that is not the only available hypothesis. The "nod" given by Michael Basanovic to Wade Basanovic (although disputed by both appellants) on which the Crown relied is capable of constituting an original, or a fresh, agreement, upon which Wade Basanovic acted out of a belief that, by that time, shooting was a necessary response to the aggression and threats of Mr Mitrovic. It is also capable of the interpretation that Michael Basanovic believed that it was, by that time, necessary to take drastic action to circumvent the aggression. On that basis, it was consistent with the belief that it was necessary to shoot at Mr Mitrovic. Such a belief is supportable by the detailed and consistent evidence of Mr Mitrovic's violent conduct, and threats made to Michael Basanovic." 1. 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. 2. 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. 3. Further, I agree with Harrison CJ at CL that Mr Robertson's proposed construction of s 421 should be rejected. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. The trial judge was required to grapple with this complex issue. 12. The question which then arises relates to how his Honour dealt with self-defence in the directions. 13. 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: "Joint criminal enterprise – murder 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, Guy ROBERTSON was party to an agreement with each of the other alleged assailants that between them they would: (a) inflict grievous bodily harm, intentionally, upon Clint Starkey OR (b) assault Clint Starkey unlawfully, Guy ROBERTSON foreseeing the possibility that in carrying out the agreement one or more of the parties to it might intentionally cause grievous bodily harm to Clint Starkey? NOTE: 'grievous bodily harm' means really serious injury; 'an assault' may be committed by physical striking and will be unlawful if committed without consent and not in self defence. • If yes to either (a) or (b), go to Question 3. • If no to both (a) and (b) go to Question 5 concerning joint criminal enterprise to commit manslaughter. 3. Has the Crown proved beyond reasonable doubt that when Clint Starkey was struck the blow or blows that caused his death as found in answer to Question 1, Guy ROBERTSON (a) attended at the scene with the other alleged assailants and together with them inflicted blows upon Clint Starkey in furtherance of the agreement found in answer to Question 2 AND (b) did not believe that his conduct in inflicting blows upon Clint Starkey was necessary to defend himself or any other person against Clint Starkey? • If yes to both (a) and (b), got to Question 4. • If no to either (a) or (b), find Guy ROBERTSON not guilty." 1. 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. 2. 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. 3. 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. 4. Dhanji J describes this approach as setting up a false dichotomy. 5. It is on this point that I disagree with His Honour. 6. In my view, the trial judge's approach was consistent with the observations of Gaudron and Gummow JJ in Osland at [34] as follows: "A person cannot act pursuant to an understanding or arrangement with another that, together, they will kill a third person and, at the same time, act under provocation. That is because provocation only arises where there is some act of the deceased which results in the loss of self-control to the point of committing the act which caused death. In that situation, the accused cannot also be taken to have acted so as to give effect to some prior understanding or arrangement with respect to the victim's death. A fortiori, if he or she is acting in self-defence in response to some threat or attack by the deceased." 1. 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. 2. 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. 3. 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. 4. His Honour summarised the position as follows at [93]: "Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime." 1. 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. 2. The Court (per Redlich, Coghlan JJA and Dixon AJA), held that complicity under a joint criminal enterprise will arise if the prosecution establishes that: "(1) That the accused has reached an agreement or understanding with one or more other persons to pursue a joint criminal enterprise that remained in existence at the time the offence was committed. (2) That the accused participated in that joint enterprise in some way. (3) That in accordance with the agreement, one or more parties to the agreement performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence. (4) That at the time of entering into the agreement the accused had the state of mind required for the commission of the relevant offence." 1. After considering Osland, the Court held at [38]: "There is no obstacle to a jury finding that two persons who are party to a joint criminal enterprise are guilty of different offences because one of them has a defence that is not available to the other or has a different mens rea or intent. The other party may be guilty of the principal offence if that person has the relevant mens rea, the actus reus being attributed to him by reason of the agreement. It will not matter that another party cannot be convicted of that crime because he has a defence for some reason special to himself or lacks the necessary intent. It is the acts, not the crime, committed by another who was party to the joint enterprise, or the mens rea of that party, which is attributed to the other persons participating in the joint enterprise. The jury must therefore separately assess the state of mind of each accused who is party to the joint criminal enterprise. The jury may find that parties to the joint enterprise are guilty of different offences because they have a defence special to themselves or have a different intent." 1. 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? 2. That is how the trial judge framed the directions, that is with reference to the state of mind of each of the assailants. 3. 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. 4. 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. 5. 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. 6. In those circumstances, I would dismiss the appeal. 7. 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. Joint criminal enterprise and extended joint criminal enterprise 1. 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]): "The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ("extended joint criminal enterprise" liability)." (Footnote omitted) 1. 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: "In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement." 1. 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. 2. 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]. 3. 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. 4. 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]): "Since we conclude that murder in s 18 does not apply to circumstances involving self-killing, it is not strictly necessary for us to consider the operation of the rules of attribution when co-offenders act in concert. It suffices to observe that we agree with the assumption upon which this case was conducted by the parties, namely, that when two or more persons act in concert to effect a common criminal purpose, it is the acts of each person to effect their common purpose which are attributed to the others. The decision of this Court in Osland v The Queen establishes that it is the acts which are attributed in this scenario, it is not the liability. Nor is it the actus reus of a notional offence." (Footnotes omitted). And at [29]: "The important point is that it is the acts which are attributed from one person (the actor) to another who shares the common purpose and, by attribution, becomes personally responsible for the acts. It is not the liability of the actor which is attributed. Nor is it the actus reus of some notional crime without a mental element that might be committed by the actor. These points were established in the decision of the majority of this Court in Osland." 1. See also The King v Rohan (a pseudonym) [2024] HCA 3; 98 ALJR 429 at [41], [64]. 2. 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. The manner in which the case was put to the jury 1. 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: "Causation of death 1. Has the Crown proved beyond reasonable doubt that one or more of Adam SYMONS, Beau McDONALD, Guy ROBERTSON and Jake McDONOUGH ("the alleged assailants") inflicted upon Clint Starkey at Peats Ridge soon after 10:00 pm on 5 April 2017 a blow or blows that was or were a significant contributing cause of Clint Starkey's death? • If yes, go to Question 2. • If no, find Guy ROBERTSON not guilty. Joint criminal enterprise - murder 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, Guy ROBERTSON was party to an agreement with each of the other alleged assailants that between them they would: (a) inflict grievous bodily harm, intentionally, upon Clint Starkey OR (b) assault Clint Starkey unlawfully, Guy ROBERTSON foreseeing the possibility that in carrying out the agreement one or more of the parties to it might intentionally cause grievous bodily harm to Clint Starkey? NOTE: "grievous bodily harm" means really serious injury; "an assault" may be committed by physical striking and will be unlawful if committed without consent and not in self defence. • If yes to either (a) or (b), go to Question 3. • If no to both (a) and (b), go to Question 5 concerning joint criminal enterprise to commit manslaughter. 3. Has the Crown proved beyond reasonable doubt that when Clint Starkey was struck the blow or blows that caused his death as found in answer to Question 1, Guy ROBERTSON (a) attended at the scene with the other alleged assailants and pulled Clint Starkey from the Ford Territory vehicle and together with the other alleged assailants inflicted blows upon him in furtherance of the agreement found in answer to Question 2 AND (b) did not believe that his conduct in pulling Clint Starkey from the Ford Territory vehicle and inflicting blows upon him was necessary to defend himself or any other person against Clint Starkey? • If yes to both (a) and (b), go to Question 4. • If no to either (a) or (b), find Guy ROBERTSON not guilty. 4. Has the Crown proved beyond reasonable doubt that one or more of the blows that caused death as found in answer to Question 1 was or were delivered with intent to cause grievous bodily harm to Clint Starkey? • If yes, find Guy ROBERTSON guilty. • If no, go to Question 5." 1. 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. 2. 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. 3. 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. 4. 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. "He's got a gun" – the foundation for an alternative hypothesis 1. 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. 2. 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. 3. 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. 4. 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: "(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed. (Emphasis added.)" 1. 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. "He's got a gun" – prior planning followed by an intervening event? 1. 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. 2. 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. 3. What then of the situation where the applicant: 1. attended the scene pursuant to an earlier agreement to assault the deceased and in doing so intentionally inflict grievous bodily harm on him, or contemplating that in carrying out the agreement one of the other participants might intentionally cause grievous bodily harm to the deceased; and 2. when at the scene, formed a belief that the deceased had a gun, and consequently participated in the assault in the belief that the conduct was necessary to defend himself or another? 1. 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). 2. 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. 3. It is convenient to consider the terms of s 418 of the Crimes Act 1900 (NSW): 418 Self-defence—when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary— (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 1. 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. 2. The same conclusion applies with respect to s 421 of the Crimes Act which provides: 421 Self-defence—excessive force that inflicts death (1) This section applies if— (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary— (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. 1. 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]): "Counsel for Symons submits that the jury should be directed to consider, first and as a matter anterior to whether Symons' individual acts were in furtherance of the joint criminal enterprise, the question whether he believed it was necessary to defend himself by the commission of his own acts and whether those acts were a reasonable response. That would lead to the jury considering both Symons' claimed defensive state of mind with respect to his individual acts and the proportionality of his individual acts, in circumstances where there is no evidence that those individual acts were a cause of death. There is no Crown case and no evidence that Symons' individual acts, divorced from their character as acts in furtherance of the joint criminal enterprise alleged by the Crown, were causative of Clint Starkey's death so as to give rise to criminal liability for the death." 1. 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. 2. 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. 3. McHugh J explained this in Osland v The Queen as follows (at [131]): "Even if it were permissible to examine the question of inconsistency by reference to the principle of causation referred to by Gaudron and Gummow JJ, notwithstanding that the jury were not asked to apply it, the conviction of Mrs Osland would not necessarily be inconsistent with the failure to agree in respect of her son. Because this was a case of presence at the scene and acting in concert, the jury were entitled to convict Mrs Osland and fail to reach an agreement in respect of David Albion whose criminal responsibility was independent of his mother's. The case was conducted from beginning to end on the basis of joint concert and that both accused were responsible for each other's acts. Whether those acts resulted in criminal liability depended on the individual reasons of each accused for joining in the killing. There was no suggestion at the trial that the conviction of Mrs Osland would be inconsistent with any result other than David Albion's conviction for the same offence. Having regard to the trial judge's directions, it was open to the jury to convict Mrs Osland while not convicting her son. The conviction and the failure to agree show no "flaw in reasoning." 1. 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]: "Disregarding, for the moment, the burden of proof, the threshold question is whether Symons took part in assaulting Clint Starkey in furtherance of a preconcert or in self-defensive response to a threat. If it is the latter and not the former, then the acts of the other three assailants are not attributable to him. As the only acts for which he could in that case be liable, namely, his individual blows, are not alleged or proved to have been independently a substantial cause of death, Symons would be entitled to acquittal. There would be no occasion for the jury to consider whether Symons' individual response to the threat that he claims to have perceived was reasonable. Section 421 would not be engaged. The force used by Symons individually is not alleged, let alone proved, to have "[involved] the infliction of death": see s 421(1)(a)." 1. 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. 2. 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". 3. 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]): "… It is understandable that [the applicant's] appeals to legal principle and to the correct legal doctrine might occasion a degree of impatience and an intuitive feeling that the applicants deserve little sympathy. However, that is not the way the criminal law functions in Australia. Often, important principles are established in cases involving unattractive individuals and confronting facts. It is when the law deals with such cases and such individuals that it is tested for its adherence to basic principle." 1. 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. 2. 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. The proviso 1. 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. 2. 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]): "[5] In summing up the facts, and the competing arguments, to the jury, the trial judge directed their attention to the matters relied upon by the defence in support of a conclusion, or at least an acceptance as a reasonable possibility, that the lesser state of knowledge existed. It is common ground, however, that he did this in the context of an erroneous direction of law, informing the jury that the legal consequence of that argument was that the appellant was not guilty of either murder or manslaughter. [6] From one point of view it might appear that such a direction was unduly favourable to the appellant. Such an appearance, however, may be deceptive. Sometimes, when there is a misdirection of law, it is risky to seek to assign the advantage of the misdirection exclusively to one party and the disadvantage exclusively to another. The reason for that in the present case will be considered below." 1. Subsequently, their Honours said (at [14]-[17]): "[14] In the days when murder attracted the death penalty, appellate courts were well aware, and took account, of the possibility that juries may be influenced in their deliberations by the presence or absence of manslaughter as a possible verdict. Mraz v R, a leading case on the proviso, concerned a misdirection to a jury in relation to manslaughter. The Court of Criminal Appeal of New South Wales, relying upon Ross, held that there had been no miscarriage of justice, the inevitable inference from the verdict of the jury being that the jury were satisfied of the elements of unlawful homicide, and that it was not a reasonable possibility that, properly directed, they might have acquitted the appellant. That case was one in which manslaughter had been erroneously left to the jury. The majority in this court, allowing the appeal, took into account the practical significance of the misdirection. Williams, Webb and Taylor JJ referred to a passage in the judgment of Higgins J in Ross which observed that "if the only alternatives before a jury are acquittal and sentence of death, there is a strong tendency to shrink from pronouncing a verdict which leads to death". Referring to the case before them they said: It is, of course, quite possible to say that the same conclusions on these issues of fact must have led the jury to find the appellant guilty of murder if they had been properly instructed. But it would be ignoring the realities of the matter to assume that if they had been required to consider whether they should convict the appellant of murder or acquit him they would have reached the same conclusions. [15] Fullagar J said: A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them. [16] These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences. [17] When, in Mraz, the majority referred to "ignoring the realities of the matter", one of the contemporary realities to which they were referring was the death penalty. That was why, tactically, defence counsel might prefer to conduct a homicide case on a "murder-or-nothing" basis. The death penalty has gone, but there are other, perhaps equally influential, realities. This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them." 1. 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. 2. 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. 3. 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. 4. I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the conviction. 4. Order that there be a new trial. 5. Direct that the proceedings be listed for mention in the Supreme Court Arraignment List on 2 August 2024. ********** Endnotes 1. It is also noted that the Criminal Trials Bench book, in order to make jury directions more comprehensible effectively combines straight-forward joint criminal enterprise where the crime committed is contemplated as a possible incident of carrying out the agreement, and extended joint criminal enterprise. 2. Or at least that the elements of murder were established against the principal offender: see The King v Anna Rowan (a pseudonym) [2024] HCA 9; 98 ALJR 508 at [77]. 3. This potentiality is on the assumption that, once acting in self-defence the particular accused was no longer participating in the joint criminal enterprise. Amendments 21 August 2024 - Restriction removed 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: 21 August 2024