Symons v Director of Public Prosecutions (NSW); McDonald v Director of Public Prosecutions (NSW)

[2024] NSWCCA 253

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Symons v Director of Public Prosecutions (NSW); McDonald v Director of Public Prosecutions (NSW) [2024] NSWCCA 253

Hearing dates:

1 November 2024

Date of orders:

1 November 2024

Decision date:

01 November 2024

Before:

Kirk JA at [1]
Dhanji J at [2]
Yehia J at [39]

Decision:

In the matter of Mr Symons - bail granted with conditions.

In the matter of Mr McDonald - bail granted with conditions.

Catchwords:

CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions

Legislation Cited:

Bail Act 2013 (NSW), ss 9(3), 16A(1), 17, 18,19, 49, 67(1)(a)

Cases Cited:

Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47

Crane v R [2024] NSWCCA 112

Robertson v R [2024] NSWCCA 99

Category:

Principal judgment

Parties:

Proceedings 2024/398713:
Adam David Symons (Applicant)
Crown (Respondent)

Proceedings 2024/399190:
Beau Andrew McDonald (Applicant)
Crown (Respondent)

Representation:

Counsel:
J Stratton SC (Applicant in proceedings 2024/398713)
A Francis (Applicant in proceedings 2017/386819)
M Millward (Respondent in both proceedings)

Solicitors:
Jamieson Criminal Law (Applicant in proceedings 2024/399190)
SANS Law (Applicant in proceedings 2017/386819)
Office of the Director of Public Prosecutions (NSW) (Respondent in both proceedings)

File Number(s):

2024/398713; 2024/399190

Publication restriction:

NIL

EXTEMPORE JUDGMENT (REVISED)

1. KIRK JA: I agree with Justice Dhanji.

2. DHANJI J: Beau McDonald and Adam Symons have made applications for release pursuant to s 49 of the Bail Act 2013 (NSW) (“the Act”). The applications are being dealt with together for convenience due to common elements in those applications. The determinations, however, are independent of one another. That is, each is to be decided separately according to the evidence tendered on the particular application.

3. This Court has jurisdiction pursuant to s 67(1)(a) of the Act on the basis that this Court has heard appeals against the convictions of both applicants and ordered a new trial in each case and that new trial has not commenced. Those appeals were heard today and orders were made quashing the applicants’ convictions and ordering a new trial.

4. The applicants were charged with and convicted of the murder of Clinton Starkey. Mr Starkey died on 12 June 2017 as a result of a violent assault upon him on 5 April 2017. The applicants were alleged to be two of four men involved in that assault. They were arrested and charged with Mr Starkey’s murder in late 2017.

5. Mr McDonald was charged on 22 December 2017 and Mr Symons was charged on 1 November 2017. The other two assailants were also charged, along with two persons alleged to be accessories before the fact to the murder, and a further person who was alleged to be responsible for transporting the deceased to the location where the assault took place.

6. The applicants were tried with the five co-accused in a trial commencing in 2022. They were found guilty by the jury of murder on 29 July 2022.

7. Mr McDonald was subsequently sentenced to 17 years and 6 months imprisonment with a non-parole period of 11 years and 6 months. That sentence was ordered to date from 8 September 2018. The sentence was not fully backdated to the date of Mr McDonald’s arrest on the basis that he had been on bail for some of the period between his arrest and the trial. He was arrested, as I have said, on 22 December 2017 and remained in custody until his release to bail on 8 November 2021. He was then at liberty on bail for a period of close to nine months before he returned to custody as a result of the jury’s verdict on 29 July 2022. The result is that he has spent, across those two periods, a total in the order of 6 years and 2 months in custody as at today’s date.

8. Mr Symons was sentenced to a term of 18 years imprisonment with a non‑parole period of 12 years. That sentence was ordered to date from 31 October 2017. That is, the sentence was fully backdated to the date of Mr Symons’s arrest on the basis that he had been continuously in custody in relation to this matter from that time. As is apparent, Mr Symons has now spent some 7 years and 2 days in custody in relation to the offence.

9. It might also be noted that both applicants have now served something in excess of half of the non-parole periods of the sentences imposed on them.

10. Returning to the appeals in this Court, the Crown conceded that it was open to the Court to uphold the appeals. This was on the basis of the successful appeal of a co‑accused: see Robertson v R [2024] NSWCCA 99. In that matter this Court found, by majority, that the trial judge erred in failing to leave to the jury the partial defence of manslaughter based on excessive self‑defence.

11. Their convictions having been quashed, each of the applicants now face a new trial on the charge of murder. It is anticipated that that trial will be heard together with the trial of Mr Robertson, which is listed on 16 June 2025.

12. The offence with which the applicants are charged is what is described under the Act as a show cause offence. That is, s 16A(1) of the Act requires the applicant to show cause as to why his detention is not justified. The show cause test is separate to the unacceptable risk test. Satisfaction of the show cause test will not automatically establish satisfaction of the unacceptable risk test. So much is made plain by s 19(3) of the Act.

13. The Act does not, at least in express terms, provide the content of the show cause test. Some propositions emerge from the cases. It has been observed that the word “justified”, as used in s 16A(1), is “conspicuously open textured”: see Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 per Leeming JA at [85]. His Honour went on to observe that some content can be given to the expression by considering how the legislature anticipated it would be applied. That is, by persons and ultimately, if bail is initially refused, by courts familiar with the basic principles of the Australian legal system. The presumption of innocence and the right to be at liberty remain fundamental common law principles.

14. It is relevant to say something of the allegations against the applicants. The seriousness of the allegations and the strength of the respective cases are relevant to the determination, both as to the show cause test and, should I come to it, the unacceptable risk test.

15. A strong Crown case, as I find it to be in these matters, is evidence that the applicants have in fact engaged in an act of significant violence. The Crown case was summarised by Harrison CJ at CL in Robertson. I do not propose to repeat what has already been said in that matter and additionally in the associated matter of Crane v R [2024] NSWCCA 112. It is sufficient for present purposes to note that the event was captured on closed-circuit television footage. That footage revealed the applicants’ involvement in a brutal assault.

16. We were, on this application, invited by the Crown to watch that footage. I have previously, for the purposes of the matters of Crane and Robertson, watched the footage. I do not, however, regard it as necessary to watch the footage for the purposes of this application. That is because it is sufficient, in my view, to have regard to the assessment plainly expressed by me in the determination in Robertson that the footage establishes a strong case. In particular I have regard to the fact that that strong case is based on the display of significant violence depicted in the footage.

17. It is relevant to note that the jury was, at the trial of the applicant, directed on self‑defence and clearly rejected the proposition that the applicants were acting in self-defence. The appeal was successful, as I have said, due to the failure to leave excessive self-defence to the jury. That is, self-defence was left to the jury, but only as a complete defence to the charge. Further, it was left as being a complete defence to the charge on satisfaction of what is generally described as the first limb of self-defence. That is, on satisfaction as to the accused’s belief that his actions were necessary in the circumstances as he perceived them to be, or, more accurately, on the Crown’s need to disprove the accused’s belief in that regard. The directions were, consequently, unduly favourable to the applicant, at least on a purely logical approach.

18. However, in accordance with what was said in Robertson by me and the authorities to which I refer, the choice made by the jury may have been affected by the options with which they were presented. That is, the jury may have been reluctant to acquit the applicants outright with the result that manslaughter by excessive self-defence may have been an attractive option to the jury had it been left.

19. The result of those matters is that, while in theory leaving manslaughter on the basis of excessive self-defence to the jury may have affected the result of the trial, the case must be assessed as a very strong one. Despite my assessment of the case against each applicant as being a very strong one, I am nonetheless of the view that cause has been shown. That is a result of the combination of three matters, which I regard as significant.

20. The first of those is the length of time that each applicant has now been in custody. As I have indicated, each has now served in excess of half the non-parole period that was imposed when sentenced for the offence of murder. The matter has been sent for retrial on the basis that there is at least a viable case of manslaughter by excessive self-defence, such that it ought to go the jury.

21. Despite what I have said as to the strength of the Crown case, it remains at least a possibility that the applicants will be convicted of no more than the offence of manslaughter. In that event there is, in the case of each applicant, a real issue as to whether the non-parole period that might be imposed for the offence of manslaughter will exceed the period of time during which the applicant has been in custody prior to trial.

22. Secondly and relatedly, any trial in the matter will be some eight years after the events in question, with the result that there is some significant distance between those events and the trial. The immediacy of the concerns which arise when persons are charged with violent crimes are somewhat attenuated.

23. The third matter, significant to my conclusion that cause has been shown, is the availability of strict conditions with respect to each applicant, which will, if bail is granted, curtail their liberty to a significant extent.

24. Cause having been shown, it remains necessary to apply the unacceptable risk test. That is to say, pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of relevant bail concerns that the applicant presents an unacceptable risk, then bail must be refused. Conversely, if there are no unacceptable risks an order should be made which would allow the applicant to be released.

25. The bail concerns are those matters set out in s 17 of the Act. Those matters are to be assessed having regard only to the matters set out in s 18 of the Act. Section 18 includes, amongst those considerations, the conditions available to mitigate any concerns.

26. I turn then to the unacceptable risk test in the case of the applicant Mr McDonald. With respect to Mr McDonald, I am of the view that there is a risk of the commission of a serious offence and a related risk that he will otherwise endanger the safety of the community. The presence of that risk is plain, given the allegation, and, as I have said, my view that the case against the applicant is a strong one.

27. As submitted by the Crown, the risk is also informed by evidence of the applicant’s associations, the Crown pointing specifically to the applicant’s membership of the Rebels Outlaw Motorcycle Gang in 2017. Against those matters, whilst the applicant was apparently a member of that organisation in 2017, there is no evidence of any continuing association in 2024.

28. Further, whilst the applicant’s involvement in the alleged offence is necessarily concerning, and indeed my primary concern in this matter, the applicant has very little in the way of prior criminal record, and certainly no record for any offences of violence, subject to an offence of resisting police in 1998 for which he received a fine. The only other matter on his record is a matter in 2012 for which he received a fine for the possession of housebreaking implements.

29. It is relevant to note in this context, that the sentencing judge found the applicant’s prospects of rehabilitation to be excellent. In this regard the applicant’s performance in custody, both prior to and subsequent to his sentencing, is consistent with the sentencing judge’s assessment. Further, the applicant has family support and an offer of employment which will see him engaged in the community in a prosocial manner.

30. Having regard to those matters and the conditions which are proposed, I am of the view that the risk of the commission of a serious offence and the risk that the applicant will otherwise endanger the safety of the community, is mitigated such that it does not rise to the point that it is unacceptable.

31. I turn then to the risk that the applicant will fail to appear at his trial. That is a risk relevant to anyone facing a term of imprisonment, as is the case here. However, the applicant was on bail prior to his trial and attended as required. I am of the view, having regard to that fact and the proposed conditions, that any risk that the applicant will fail to appear is mitigated such that it is not unacceptable. Nor do I regard there to be a risk of him interfering with witnesses or evidence that could be described as unacceptable. Given those conclusions, I propose that bail be granted in the case of the applicant Mr McDonald, subject to conditions, to which I will return.

32. I turn then to the application of the unacceptable risk test to the applicant, Mr Symons. Again, as was the case with Mr McDonald, there is necessarily a concern with respect to the commission of a serious offence or that the applicant will endanger the safety of the community generally. As with Mr McDonald, that concern is informed primarily by the allegation and the strength of the case against him. It is also, though to a significantly lesser extent, informed by the applicant’s membership of the Rebels Outlaw Motorcycle Gang in 2017. As was the case with Mr McDonald, there is no evidence of the applicant’s continuing association with that organisation.

33. The manner in which the present allegation informs the concern as to the commission of a serious offence is to be understood in the context of the applicant’s broader history. He does have a criminal record which contains a number of entries. Those entries are, however, primarily in relation to what might be described as driving matters. There is one matter of resisting arrest dating from 1998, for which the applicant received a fine. He otherwise does not have anything on his record that might be described as an offence of violence.

34. The applicant has support in the community and the prospect of employment. As such, if released to bail it can be anticipated he will be positively engaged in a manner which will mitigate the risk of the commission of any offence. My view in this regard is additionally informed by the assessment of the sentencing judge in passing sentence in that this applicant, like Mr McDonald, was found to have excellent prospects of rehabilitation. Ultimately, I am of the view that while the risks exist, in light of the factors I have mentioned and the conditions that I propose, the risks are mitigated so as not to be unacceptable.

35. I turn then to the risk that the applicant Mr Symons will fail to appear. Again, that is necessarily a risk given the potential consequences for him should he be convicted of murder. That consequence is significantly mitigated by the length of time Mr Symons has already served. That is a period of 7 years in the context of a 12 year non-parole period. Having regard to that fact and the conditions which I propose, I am of the view that the risk of the applicant failing to appear is sufficiently mitigated such that it is not unacceptable. Nor do I regard there to be a risk of him interfering with witnesses or evidence that could be described as unacceptable.

36. As with Mr McDonald, I propose that bail be granted, subject to conditions.

37. With respect to the applicant Mr McDonald I propose the following order:

1. Bail be granted, subject to conditions, those conditions being in the form provided on the application by the Crown.

38. In the case of the applicant Mr Symons, I propose the following order:

1. Bail be granted subject to the conditions set out in the document provided by the Crown on the application, subject to the following: condition 11 is to be amended to read, “within 24 hours of taking or resuming possession of any such service”. For the purposes of condition 16, I note that Mr David Campbell is an acceptable person.

39. YEHIA J: I agree with the orders made in each case by Justice Dhanji and with his Honour’s reasons.

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Amendments

30 June 2025 - Publication restriction lifted

Decision last updated: 30 June 2025