Symons v R; McDonald v R [2024] NSWCCA 212

Symons v R; McDonald v R [2024] NSWCCA 212

Given the Court’s decision in Robertson v R [2024] NSWCCA 99, and the materially indistinguishable facts and grounds, the failure of the trial judge to direct the jury as to the possibility of manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW) constituted a miscarriage of justice warranting that the convictions be quashed and new trials ordered.

Parties
Applicant: Adam David Symons; Applicant: Beau Andrew McDonald; Respondent: Crown
Jurisdiction
Australia
Judgment Date
29 November 2024
Procedural Posture
Criminal Appeal / Appeal Against Conviction (post Trial, Post Sentence, Out of Time)
Outcome
Appeals allowed; convictions quashed; new trials ordered
Legal Topics
Appeal Procedure, Miscarriage of Justice, Self Defence, Excessive Self Defence, Directions to Jury, Equality Before the Law, Joint Criminal Enterprise
Criminal Law Appeal Procedure Miscarriage of Justice Self Defence Excessive Self Defence Directions to Jury Equality Before the Law Joint Criminal Enterprise

Case Brief

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Parties

Adam David Symons

Applicant

Beau Andrew McDonald

Applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction (post Trial, Post Sentence, Out of Time)

Legal Issues

  1. 1 Whether failure to direct jury on manslaughter alternative verdict by reason of excessive self-defence (s 421 Crimes Act 1900 (NSW)) constitutes a miscarriage of justice
  2. 2 Whether appeals should be allowed in light of co-accused’s successful appeal on materially identical ground
  3. 3 Whether delay in filing appeals precludes grant of extension of time

Ratio Decidendi

Given the Court’s decision in Robertson v R [2024] NSWCCA 99, and the materially indistinguishable facts and grounds, the failure of the trial judge to direct the jury as to the possibility of manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW) constituted a miscarriage of justice warranting that the convictions be quashed and new trials ordered.

Court Disposition

Appeals allowed; convictions quashed; new trials ordered

Orders

  • Time to seek leave to appeal extended until 22 April 2024 (Symons) and 22 July 2024 (McDonald)
  • Leave to appeal granted