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Court of Criminal Appeal 3 July 2024

Robertson v R

[2024] NSWCCA 99

Assault & violenceHomicide
CRIME APPEALS DEFENCE IN S 421 CRIMES ACT 1900 (NSW) DEFENCE WHETHER FAILURE TO LEAVE EXCESSIVE SELF APPEALS

Citation: Robertson v R [2024] NSWCCA 99
Court: Court of Criminal Appeal, New South Wales
Date: 3 July 2024
Judges: Harrison CJ at CL; Cavanagh J (dissenting); Dhanji J

Background

On the night of 5 April 2017, the deceased was driven to a service station at Peats Ridge, where four assailants surrounded the vehicle and pulled him to the ground. They punched, kicked, and stomped on his head for approximately 30 seconds. The assault was allegedly arranged by two others as retribution for threats made against one of their partners. The deceased died from his injuries on 12 June 2017.

The appellant was one of the four assailants. The Crown alleged that each was a participant in a joint criminal enterprise to inflict at least grievous bodily harm on the deceased. Three of the assailants were convicted of murder; the fourth was convicted of manslaughter.

Before the jury was empanelled, the appellant pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea. The appellant was ultimately convicted of murder. He appealed on the single ground that the trial judge erred in failing to leave the alternative verdict of manslaughter by excessive self-defence (under s 421 of the Crimes Act 1900 (NSW)) to the jury. A key factual complication throughout was the absence of expert medical evidence identifying which of the assailants delivered the blow or blows that caused the deceased's death.

  • Whether the trial judge erred in failing to leave to the jury an alternative verdict of manslaughter based on excessive self-defence under s 421 of the Crimes Act 1900 (NSW).
  • What "force that involves the infliction of death" in s 421(1)(a) means as a matter of statutory construction, and whether it requires direct causal connection.
  • Whether the evidence was capable of supporting an alternative verdict of manslaughter based on excessive self-defence, given that no expert evidence established which assailant caused the death.
  • Whether the evidence was capable of supporting the formation of a tacit agreement among the assailants to act in concerted self-defence.
  • If an error was established, whether it caused a substantial miscarriage of justice.

Decision

The Court allowed the appeal by majority (Harrison CJ at CL and Dhanji J), with Cavanagh J dissenting. The majority reached the same conclusion through different reasoning.

On statutory construction: All three judges agreed that there is no meaningful distinction between "force that involves the infliction of death" in s 421 and force that causes death. If the use of force could not be proved to have caused the death, the partial defence in s 421 would not arise at all.

On tacit agreement to act in self-defence: Harrison CJ at CL and Cavanagh J both found that the evidence was not capable of supporting the inference that the assailants had instantly formed a tacit agreement to defend themselves upon hearing the warning about a gun. Both characterised that suggestion as speculation rather than an available inference. Cavanagh J held that, absent such an agreement, s 421 could not apply to the appellant because it was unknown whose blow caused the death, and therefore the required analysis of the appellant's belief and perception could not be conducted.

On how self-defence operates in a joint criminal enterprise: Dhanji J took a different path. His Honour reasoned that the trial judge constructed a false dichotomy by treating self-defence as a question logically anterior to participation in a joint criminal enterprise. Dhanji J held that the acts of the other participants could be attributed to the appellant, and if the appellant was acting out of a genuine but excessive belief in the need for self-defence, those attributed acts could found a verdict of manslaughter rather than murder. On this analysis, the appellant was entitled to have the partial defence left to the jury.

On substantial miscarriage of justice: The majority held that the failure to leave excessive self-defence caused a substantial miscarriage of justice. The appellant had, from the outset, framed the trial as a contest about whether he was guilty of murder or manslaughter. When the trial judge declined to direct the jury on excessive self-defence, the appellant's counsel was left in the untenable position of having to argue for a complete acquittal, despite the appellant's own acceptance of guilt for manslaughter. The appellant was denied a trial on the issue he sought to contest, and the proviso (which would allow a verdict to stand despite an error) was not applied.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered.
  • Proceedings listed for mention in the Supreme Court Arraignment List on 2 August 2024.

Key Takeaways

  • A trial judge who leaves self-defence to the jury must also leave the partial defence of excessive self-defence under s 421 of the Crimes Act 1900 (NSW) where the evidence warrants it. Failing to do so can constitute a substantial miscarriage of justice, even where the evidence supporting the partial defence is weak.

  • Under s 421, "force that involves the infliction of death" carries no wider meaning than force that causes death. The partial defence does not arise unless the relevant use of force can be shown to have caused the death.

  • The Court of Criminal Appeal confirmed that a tacit agreement to act in collective self-defence must be capable of genuine inference from the evidence; mere speculation or surmise is insufficient to enliven the provision.

  • Where a joint criminal enterprise is alleged, the relationship between self-defence and criminal liability is not straightforwardly anterior. Dhanji J's reasoning in this case identifies that acts attributed to a secondary participant through a joint enterprise may, in that participant's hands, be justifiable (or partially justifiable) if the participant was acting from a genuine belief in the need for self-defence.

  • Applying Gilbert v The Queen (2000) 201 CLR 414, a substantial miscarriage of justice can arise even where leaving the alternative verdict would not, on a purely logical analysis, necessarily have changed the outcome. The structure of the contest at trial, including the appellant's own plea before the jury, was a material consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 346, 418, 421

Cases
- Batak v R [2024] NSWCCA 66
- Beavan v The Queen (1954) 92 CLR 660
- Clayton v The Queen [2006] HCA 58
- Coskun v R [2024] NSWCCA 67
- Gilbert v The Queen (2000) 201 CLR 414
- Gillard v The Queen (2003) 219 CLR 1
- Huynh v The Queen [2013] HCA 6
- IL v The Queen (2017) 262 CLR 268
- James v The Queen (2014) 253 CLR 475
- Johns v The Queen (1980) 143 CLR 108
- Lane v The Queen (2013) 241 A Crim R 321
- McAuliffe v The Queen (1995) 183 CLR 108
- McEwan v R (2013) 41 VR 330
- Miller v The Queen (2016) 259 CLR 380
- Mitchell v The King (2023) 276 CLR 299
- Osland v The Queen (1998) 197 CLR 316
- Pemble v The Queen (1971) 124 CLR 107
- R v Basanovic (2018) 100 NSWLR 840
- R v Crane & Ors (Trial Ruling No 10) [2022] NSWSC 1227
- R v King (2004) 59 NSWLR 515