Citation: R v Rodden [2022] NSWSC 1229
Court: Supreme Court of New South Wales
Date: 27 July 2022
Judge: Fagan J
Background
Seven co-accused stood trial for the murder of Clint Starkey, who died in June 2017 from blunt force head trauma sustained during an assault on 5 April 2017 at a service station near Peats Ridge. Four of the co-accused, referred to throughout the trial as "the assailants," physically carried out the attack. They arrived at the service station in two cars and beat the deceased to death over approximately 30 seconds.
The accused Simon Rodden was already present at the service station when the assailants arrived, having driven the deceased there. The Crown did not allege that Rodden participated in the physical assault, nor did it run a case against him as an accessory before the fact. Instead, the Crown relied solely on the proposition that Rodden joined an already-existing joint criminal enterprise between the four assailants at the scene, through his conduct in their presence once they arrived.
During jury deliberations, the jury raised a question about the Crown's case against Rodden. Specifically, the jury asked whether Rodden could be found to have joined an agreement with all four assailants if he was unaware of the presence of one of them, a man named McDonald. Fagan J delivered supplemental directions in response.
Legal Issues
- Whether an accused can become a party to a joint criminal enterprise with a group of co-participants without being aware of each individual member of that group
- Whether a tacit agreement to join a criminal enterprise, formed at the scene by conduct rather than prior communication, requires the accused to have known of the presence of every person whose criminal acts are to be attributed to him
- Whether the Crown's evidence was capable of establishing Rodden's joinder to an enterprise with McDonald in particular, absent proof that Rodden knew McDonald was present
Decision
Fagan J answered the jury's question with a clear "No": Rodden could not be found to have joined a joint criminal enterprise with McDonald unless the jury was satisfied that Rodden was actually aware of McDonald's presence at the scene.
The reasoning drew on the foundational principle that joint criminal enterprise liability depends on genuine agreement between the accused and each principal whose acts are to be attributed to him. For criminal acts to be attributed to a person who joins an enterprise, the law requires that person to have been in agreement with the principal who committed those acts. It is not enough to have joined an agreement with some but not all of the participants.
Fagan J drew an analogy with conspiracy cases, where the authorities recognise that a conspirator need not know the identity of every co-conspirator, provided the conspirator is aware that others are involved and agrees to a common design with them. However, the Crown's case against Rodden was not one of prior agreement or prior communication with anyone. The Crown relied entirely on tacit agreement formed at the scene through conduct. In that context, forming an agreement by conduct requires that each party's conduct be directed toward, and perceptible to, the other. Rodden could not have communicated agreement with McDonald through conduct if he did not know McDonald was there.
Fagan J contrasted the present facts with those in Huynh v The Queen and KA v R, where tacit agreement was inferred from multiple alleged parties carrying out the object of the enterprise together, in close proximity and within sight of one another. The case against the four assailants inter se was of that kind. The case against Rodden was materially weaker, and if the jury were not satisfied he was aware of McDonald's presence, the circumstantial case of his having joined an enterprise with McDonald was, in the judge's words, non-existent.
Orders Made
No orders were made in this decision.
Key Takeaways
- Joinder in a joint criminal enterprise formed tacitly at the scene, through conduct rather than prior communication, requires that the accused was aware of each co-participant whose criminal acts are to be attributed to him.
- A person cannot agree, even by conduct, with someone whose presence is unknown to them. The requirement of mutual communication of agreement is incompatible with unawareness of the other party.
- While conspiracy authorities permit agreement with unknown co-conspirators in some circumstances, those principles do not assist where, as here, the accused had no prior communication with any assailant and the entire case rests on conduct at the scene.
- Huynh v The Queen (2013) 214 CLR 1 and KA v R [2015] NSWCCA 111 illustrate that tacit agreement is most readily inferred when all alleged parties carry out the agreed offence together, in close proximity and within sight of each other. That inference is unavailable where the accused's awareness of a particular co-participant is in doubt.
- The decision is a supplemental jury direction rather than a final verdict, and its significance lies in its articulation of the knowledge requirement for scene-based joinder to an existing joint criminal enterprise.
Legislation and Cases Referenced
Cases:
- Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6
- KA v R [2015] NSWCCA 111
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
- Saffron v The Queen (1988) 17 NSWLR 395
- Ex parte Coffey; Re Evans and Another [1971] 1 NSWLR 434
- R v Meyrick (1929) 21 Cr App R 94
- R v Griffiths [1966] 1 QB 589
- R v Simmonds [1969] 1 QB 685
- R v Anthony [1965] 2 QB 189
- R v McDonald [1963] BCJ No 79; 10 CCC (2d) 488
- R v Crane, James [2021] NSWSC 693 (pre-trial judgment containing factual background)
Legislation: No specific legislation cited in the judgment text.