NSWCCA Quashes Convictions Due to Flawed Joint Enterprise Instructions

The Court of Criminal Appeal quashed the convictions and ordered new trials due to inadequate jury instructions on joint enterprise. The case involved multiple counts of murder and attempted murder, where the prosecution relied on circumstantial evidence to argue a joint enterprise between the accused.

[ADDRESS] of Criminal Appeal

CITATION : R v [NAME] & [NAME] [2001] NSWCCA 464 FILE NUMBER(S) : CCA 60483/99; 60537/99 HEARING DATE(S) : 21 November 2001 JUDGMENT DATE : 21 November 2001

PARTIES : [NAME] v [NAME] & [NAME] OF : Giles JA at 1; [NAME] at 26; [NAME] at 27

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70038/98; 70069/98 LOWER COURT JUDICIAL Dowd J OFFICER :

[NAME] - [NAME] COUNSEL : [redacted] SOLICITORS : [redacted] CASES CITED: M v The Queen (1994) 181 CLR 487; R v Zorad (1990) 19 NSWLR 91. DECISION : (1) Appeals allowed; (2) Convictions and sentences quashed; (3) Order there be new trials.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60483/99 CCA 60537/99 GILES JA [NAME] 21 November 2001 R v [NAME] R v [NAME] 1 GILES JA: The appellants [NAME] and [NAME] were tried before Dowd J and a [NAME] on three counts of murder and one count of attempted murder. The trial occupied many weeks from 2 June 1999 to 22 August 1999. The appellants were found guilty on all counts. They were sentenced on the counts of murder to imprisonment for 33 years commencing on 3 February 1998 as to [NAME] and 9 November 1997 as to [NAME] with non parole periods of 28 years, and on the count of attempted murder to imprisonment for 10 years commencing on the same dates. 2 The charges against the appellants related to the shooting of three men, [NAME] and [NAME], and the wounding of a fourth man, [NAME], in the basement of the [NAME] in Chippindale in Sydney. As can be seen from the length of the trial, the evidence put before the [NAME] was extensive. It included that two guns were used in the shootings, and in such a way that it was open to the [NAME] to find that two persons must have done the shooting in the basement. There was no direct evidence that the persons were the appellants, and the [NAME] case that they were the appellants was circumstantial. 3 The [NAME] opened to the [NAME] in the following terms – "Now, it is not alleged by the [NAME] that each of the two accused shot each of the deceased. What is alleged by the [NAME] is the [NAME] of these two men in that shooting, which you may well think is an execution style shooting. His Honour will, no doubt, give you directions in relation to [NAME] and the way the [NAME] seeks to establish, by the evidence that it has presented by that time, how each of these accused was involved or engaged in a [NAME]."

4 The directions given in relation to [NAME] were prominent in the appellants' grounds of appeal, and were the subject of discrete argument. For the reasons which follow, in my opinion the directions were inadequate and the appeals against conviction must therefore be upheld. 5 The directions should be seen in the light of the [NAME] address. 6 The [NAME] addressed on 9 and 10 August 1999. The [NAME] almost immediately launched into the detail of the evidence. After some thirty pages the [NAME] said that if certain identification and circumstantial evidence were accepted and an alibi of one of the appellants was discounted, then "they both went there on a pre-arranged mission, and that's able to be ascertained from the evidence". In context, this meant going to the [NAME], and some evidence in support of the appellants going to the [NAME] at the material time was then mentioned. 7 A little later in his address the [NAME] said - "So the [NAME] says from the timing, the two accused being there and having, the [NAME] says, in their possession the circumstantial evidence, it would establish to your satisfaction their possession of the pistols, the two of them, because the [NAME] says on the layout of what's down there, although a small room, although a small room, that it would be fatuous to suggest that one person was doing all the shooting , a two gun man, one against [NAME], one into [NAME] and used them both on – no, one, yes – used them one into [NAME], one into [NAME], used them both on [NAME] and then shot at [NAME]. The [NAME] respectfully submits that you would be satisfied that there were two shooters in that basement at that time. So the [NAME] relies on the seven shots fired. So there's two shooters. The fact that two of the accused are able to be there, present, have the opportunity to do what is alleged against them, seen running from the premises a short time after, they arrive shortly before the shootings could have taken place and they leave shortly after the shootings could have taken place and did take place, and then there's the pursuit. So the [NAME] says they went there with a common design, a common purpose, a joint enterprise, to do what they did. And so far as the charge of attempted murder, the [NAME] has to establish firstly so far as the charge of murder is concerned, the [NAME] has to establish it was the act of the accused that caused the death of the deceased and it was done with either an intent to kill or cause grievous bodily harm. And the [NAME] says that you would be satisfied that each of these accused was in the basement at the time with a pistol. Anybody that used the pistol in the fashion that those 9mm pistols was used would have to have an intent to kill or cause grievous bodily harm, that's really serious bodily injury, and then there's the charge against them in relation to [NAME]. The [NAME] says that so far as that shot is concerned, anybody who shoots at anybody and hits them in the vicinity of the back of their neck has got to have an intention to kill. Not like trying to blow his kneecap off or his toe or anything like that. It's shooting at him to either kill him or cause him very serious bodily injury. And the [NAME] says that that is part of the enterprise. You go to commit the murders, you don't – it's an incident of the – or incidental to that arrangement that you are going to want to get away, and if anybody gets in your road or tries to intervene then you will get them out of the way. That's the [NAME]'s case in relation to the joint enterprise of the accused shooting the man [NAME], and obviously only one shot at [NAME], but they were there carrying out a common design and that was something that must, the [NAME] says, you would be satisfied with that, the possibility of that incident arising, that is, somebody intervening, must have been considered by each of the accused and it's on that basis that the [NAME] mounts the attempted murder charge against the two accused." (Emhasis added)

8 This was not entirely clear. It seemed to proffer a case that, quite apart from going to the [NAME] on a pre-arranged mission, both appellants were involved in the shootings of [NAME] and [NAME], but it also referred to going to the [NAME] with a common design and a joint enterprise to do what they did. As to the wounding of [NAME], again there was reference to carrying out a common design, and the wounding appears to have been put to the [NAME] as what has sometimes been referred to as an extended joint enterprise. 9 The summing-up began on 17 August 1999, a week after the [NAME]'s address. At its commencement the [NAME] was reminded that each charge was to be considered separately in respect of each of the appellants. In the course of that there was mention of a [NAME], in the sentence "even if you establish the act of one accused is pursuant to a [NAME], that fact, of itself, does not make from [sic: them] both guilty, and if you find one guilty only you must consider the case against each separately". There was no other explanation at this time of [NAME]. 10 After directions concerning the way the [NAME] should approach its task the judge began at page 13 of the summing-up with "the process of reminding you of the evidence". His Honour went through the evidence of the various witnesses in the order in which they had given evidence, summarising in relation to each what had been said. That occupied until page 184 of the summing-up. 11 On 19 August 1999 his Honour turned to "review the arguments put by counsel in their addresses". He began with the [NAME], and in relation to the way the [NAME] presented its case and in particular joint enterprise said only this - "The [NAME] presents the case to you, is a type of identification called recognition. And the circumstantial evidence available concerning pistols, the murder weapon, having been used a fortnight before, in possession of the accused [NAME], ejection from the Porsche the fact that the both of them are included together, he says if you discount the alibi evidence of [NAME], the [NAME] says they went there on a prearranged mission. They were picked up – [NAME] was picked up by [NAME] and that in fact the [NAME] phone call he said 12.30 and the call recorded at 12.37 that they are in the car, that they are reaching the area, that you should rely on [NAME]'s evidence and the weapons about the guns going off to the back of her, and that [NAME] saw the two leaving the bar area and then of course [NAME]'s evidence and it is about five minutes after she saw [NAME] and [NAME] walk towards the cellar door and asked you to draw the infrence from the picture of the bodies and the [NAME] asks you to remember [NAME] saying she saw a guy run down the stairs. She heard something and then this other man came across and started kicking the door. The [NAME] says they can't prove whether the door was open or not. The [NAME] relies on seven shots fired, says there are two shooters. The opportunity for the two of the accused to be there. They were seen running from the premises. They went there with a common design, a common purpose, a joint enterprise to do what they did. As far as the charge of attempted murder the [NAME] relies on the – the [NAME] says it has to establish it was the act of the accused, that is as part of their common purpose of either of them says if you if you would be satisfied that each of the accused was in the basement at the time with a pistol. Anyone who used that pistol in the fashion that the 9mm medium calibre pistols were sued would have to have an intent to kill or cause grievous bodily harm and that is the charge against [NAME] and you only have to look at the evidence of where he was, shot in the head, and the circumstances as evidenced by the mark on the wall where he was shot in the wrist to know that he is an extraordinarily lucky man. The [NAME] says that the incident in relation to [NAME] arose, something that was intervening and must have been considered by each of the accused and it is on that basis the [NAME] mounts the attempted murder charge against the two accused." (Emphasis added)

12 After dealing with the addresses by counsel for each of the appellants, at page 250 of the summing-up his Honour said he would take the [NAME] through "some of the directions of law that you must take into account". A few pages later he said that he wished to direct the [NAME] about [NAME] "because this is the contention of the [NAME] that both accused were involved in a [NAME]". 13 Over the following six pages of the summing-up his Honour gave general directions about the responsibility for the acts of each other of persons carrying out a [NAME], including that the [NAME] must establish both the existence of the [NAME] and the participation in it by the accused and that a [NAME] exists where two or more persons reach an understanding amounting to an agreement between them that they will commit a crime. His Honour said that the understanding or arrangement need not be express, its existence may be inferred from all the circumstances, and it need not have been reached at any particular time before the crime is committed, and that 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. His Honour moved on to refer, still in general terms, to the situation where a crime other than the agreed crime was committed by a party to the [NAME]. He then returned to deal with participation in a [NAME] either by committing the crime itself or by intentionally assisting or encouraging another party to the [NAME] to commit the crime. A number of examples were give, each quite disparate from the charges before the [NAME]. 14 A little later his Honour came to directions "in relation to the crime of murder", in the course of which he said that the [NAME] must establish beyond a reasonable doubt, amongst other things, that in relation to the three charges of murder "it was the accused, as part of their joint enterprise or either of them, who did the act which caused the death of the deceased, [NAME] and [NAME]". 15 The summing-up ended soon thereafter. His Honour was asked by counsel for the appellant [NAME] to direct the [NAME] that, if the [NAME] were not satisfied beyond a reasonable doubt that the [NAME] had established that there was an understanding or agreement between the appellants to kill or inflict grievous bodily harm, then they must acquit. It was said that this was "fundamental to the whole idea of a common purpose". The [NAME] agreed. There was then the further direction - "Now, the only other direction subject to the final directions that I want to give you is that you, when looking at the offence of murder, and looking at the offence of attempted murder, because the [NAME] relies on a [NAME] and that is a common purpose between the two. It is an essential ingredient because of that joint enterprise, in addition to the specific ingredient, if it were just an allegation of murder against one person, that you must find that common purpose and all the ingredients that go with common purpose, you must find that element beyond a reasonable doubt. You must find, in addition to the other matters that I directed you to attempted murder and murder, that it is beyond reasonable doubt that there was a [NAME] and that the acts were done pursuant to that or acts incidental to that."

16 The deficiencies in this, regrettably not overcome by more ample applications by counsel for the appellants or intervention by the [NAME], were in my view quite stark. 17 The [NAME] put the matter to the [NAME] at least in part, if not largely, on the basis that there was pre-concert between the appellants in that they went to the [NAME] with the understanding or arrangement that the three victims would there be murdered, and that the wounding of the fourth victim came about as an incident of that joint enterprise for which they were also criminally responsible. No doubt this course was taken because it might have been that the evidence did not establish to the [NAME]'s satisfaction which of the appellants shot which of the victims or, possibly, that each of the appellants shot one or more of the victims. It was therefore important, as the request for a re-direction acknowledged, that the [NAME] be satisfied as to the pre-concert and that the murders were the subject of the understanding or arrangement. But more was needed. The [NAME] had weeks of evidence before it. General directions about [NAME], at the end of some days of summation of the evidence, were inadequate. It was necessary that the [NAME] be assisted as to how the notion of a [NAME] could apply on the evidence led before it, and on what evidence might be available on which it could find that there had been the necessary understanding or arrangement. It was also necessary that the [NAME] be assisted as to how the notion of [NAME] was material to their finding of guilt or innocence in a way better than general directions above. 18 In R v Zorad (1990) 19 NSWLR 91 at 105 this Court said - "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the [NAME] has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resumé of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 at 522-523; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323; 57 WN (NSW) 20 at 24 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the [NAME] and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the [NAME] the issues of fact which they have to determine." 19 What happened in this case, at best, was equivalent to the non-compliance to which the Court there referred. The evidence was gone through chronologically, and a general direction as to [NAME] was given. The relationship between the two, and the relationship between the evidence and the notion of [NAME] central to the [NAME] case as presented, were not dealt with. On the contrary, the directions as to [NAME] and the examples given may well have served to confuse the [NAME], leaving it to say that it was all very well to have an example concerning, for example, a bank robbery, but what was meant to be the [NAME] in its case, what was the evidence material to finding it , and in particular what did it mean for finding one of the appellants guilty but not the other or finding them both guilty. 20 The [NAME] submitted on appeal that the [NAME] case had been that the joint enterprise need only have commenced at or immediately prior to the shootings, and that it was not necessary to have evidence of a prior understanding or arrangement. It submitted that if the [NAME] was satisfied that the appellants were in the basement together then they must have been acting to achieve the same purpose, namely to kill or inflict grievous bodily harm on the victims. Perhaps the case could have been put to the [NAME] in that way, and there was at least a hint of it in the [NAME]'s address. But that made it all the more important to explain the relevance and application of the notion of [NAME]. To the extent that the [NAME] case was left to the [NAME] in the manner for which the [NAME] contended on appeal, there can only have been greater prospect of confusion in that the [NAME] would not know what it was meant to do with that notion. 21 The deficiency in the summing-up is such that in my opinion the convictions can not stand, because the appellants did not have a trial according to law. It is unnecessary to deal with the other grounds of appeal. 22 Counsel for the appellant [NAME] properly acknowledged that he could not submit that there should be a verdict of acquittal, and that there should be a new trial. Counsel for the appellant [NAME], to whose position there were other relevant considerations, submitted that there should be a verdict of acquittal. 23 The charges are serious, and in these cases a new trial should be ordered unless the evidence was insufficient to support a conviction or any conviction would inevitably be set aside as unreasonable or unsupportable. The contrary was not submitted. On behalf of [NAME] it was submitted that there was effectively no independent evidence of a prior understanding or arrangement, and that so far as one might have been found from the presence of the two appellants in the basement there was insufficient evidence to establish beyond reasonable doubt that [NAME] was in the basement at the time of the shootings. The most direct evidence suggesting that [NAME] was in the basement, that of [NAME], was said to be unreliable for a number of reasons, but it was said that even if it were accepted it could not lead beyond reasonable doubt to the conclusion that [NAME] was in the basement. 24 I do not think that pays sufficient regard either to the evidence of [NAME] or to the evidence as a whole. There was evidence of prior possession by [NAME] of the two guns used in the shootings. There was sound evidence that [NAME] had been in the basement, particularly through DNA from one of the victims and a gunshot wound which [NAME] had incurred, and the evidence of [NAME] had [NAME] and [NAME] running from the direction of the door to the basement out of the [NAME] with [NAME] holding a gun and apparently covering the back of [NAME]. There were descriptions of two men who then drove away at high speed in [NAME]'s car. One was undoubtedly [NAME], because he was later found in the car. From the descriptions, it could be found that the other was [NAME]. The two guns, recalling that they were guns shown to have been in the prior possession of [NAME], were thrown from the car as it drove away. There was evidence concerning telephone calls which assisted to place [NAME] in the vicinity of the [NAME] at the time of the shootings. There was evidence of flight by [NAME] capable of affording evidence of consciousness of guilt. 25 Approaching the matter on the basis outlined by the High Court in M v The Queen (1994) 181 CLR 487, in my view it was open for the [NAME] to be satisfied beyond reasonable doubt that [NAME] was guilty. 26 I propose the following orders in each of the appeals – (1) Appeal allowed. (2) Conviction and sentence quashed. (3) Order that there be a new trial. 27 [NAME]: I entirely agree. 28 [NAME]: As I do also. _____________

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.