Batak v R

[2024] NSWCCA 66

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Batak v R [2024] NSWCCA 66

Hearing dates:

4 December 2023

Date of orders:

10 May 2024

Decision date:

10 May 2024

Before:

Kirk JA, Wilson and Ierace JJ at [1]

Decision:

(1) To the extent necessary grant leave to appeal, other than with respect to ground 3.

(2) Dismiss the appeal with respect to count 2 on the indictment.

(3) Uphold the appeal with respect to count 1 on the indictment.

(4) Quash the applicant’s conviction on count 1.

(5) A retrial is on count 1 is to be had.

(6) The matter is listed in the arraignment list of the Supreme Court on Friday 7 June 2024 to fix a fresh trial date.

(7) Pending any application for release, bail is refused.

Catchwords:

CRIME — Complicity — Differences between accessorial liability, joint criminal enterprise, and extended joint criminal enterprise — Whether and to what extent common law principles of complicity apply to murder under s 18(1)(a) of the Crimes Act 1900 (NSW) — Whether accessorial liability is consistent with charge of constructive murder

CRIME — Constructive murder — History thereof — Decision in R v Sharah (1992) 30 NSWLR 292 explained and distinguished — No generic requirement that a participant in a joint criminal enterprise to commit the foundational offence foresee possibility of the act or omission causing death

JURY DIRECTIONS — Directions as to constructive murder and accessorial liability — Direction as to need for foresight of act causing death erroneous but not establishing a miscarriage of justice — Directions only prejudicial to prosecution case — Necessity of taking directions in context — Directions regarding lack of prior convictions reflected understanding between judge and parties

CRIME — Unreasonable verdict — Unavailability of one chosen pathway to conviction does not render verdict unreasonable — Verdict not unreasonable

CRIMINAL PROCEDURE — Whether to order retrial under s 8(1) of the Criminal Appeal Act 1912 (NSW) — Factorial approach — Seriousness of murder charge — Strong case in joint criminal enterprise — Potential case not significantly different to case made at trial — Legal issues raised difficult — Retrial ordered — Whether sentence for foundational offence should be set aside

Legislation Cited:

Crimes Act 1900 (NSW) ss 4, 18, 52, 97(2), 98, 346, 351, 580E

Crimes and Other Acts (Amendment) Act 1974 (NSW) s 5(a)

Criminal Appeal Act 1912 (NSW) ss 5(1)(a), 6(1), 8(1)

Criminal Law Amendment Act 1883 (NSW) s 9

Criminal Law Consolidation Act 1935 (SA) ss 11 and 12A

Evidence Act 1995 (NSW) s 38

Explosive Substances Act 1883 (UK)

Trade Practices Act 1974 (Cth)

Firearms Act 1996 (NSW) s 4

Statute of Westminster 1275, 3 Edw 1 c 5

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

Beattie v R [2021] NSWCCA 291

Castagna v R [2019] NSWCCA 114

Churchill v Walton [1967] 1 All ER 497

Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439

Coal-Heaver’s Case (1768) 1 Leach 64

Coleman v Power [2004] HCA 39; (2004) 220 CLR 1

Coskun v R [2024] NSWCCA 67

CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1

Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1140

Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Green v The Queen [1971] HCA 55; (1971) 126 CLR 28

Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282

Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609

HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978

Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351

IL v The Queen [2017] HCA 27; (2017) 262 CLR 268

Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108

Johnson v Youden [1950] 1 KB 544

Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; (2017) 94 NSWLR 36

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380

Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494

R v Batcheldor [2014] NSWCCA 252; (2014) 249 A Crim R 461

R v Brown and Brian [1949] VLR 177

R v Coskun (No 5) [2022] NSWSC 1216

R v DJD and Murdoch [2023] NSWSC 222; (2023) 111 NSWLR 193

R v Downs (1985) 3 NSWLR 312

R v Horsey (1862) 176 ER 129

R v IL [2016] NSWCCA 51

R v Jackson (1857) 7 Cox’s CC 357

R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452

R v Jogee [2017] AC 387

R v Johns [1978] 1 NSWLR 282

R v R (1995) 63 SASR 417

R v Radalyski (1899) 24 VLR 687

R v Russell [1933] VLR 59

R v Sharah (1992) 30 NSWLR 292

R v Spathis [2001] NSWCCA 476

R v Surridge (1942) 42 SR (NSW) 278

R v Vandine [1970] 1 NSWLR 252

Reg v Creamer [1966] 1 QB 72

Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205

Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319

The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232

Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313

Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

[Decision Restricted] [2022] NSWCCA 259

Texts Cited:

JW Cecil Turner MC LLD, Russell on Crime (Stevens & Sons London, 12th ed, 1964)

Sir Edward Coke, The Third Part of the Institutes of the Laws of England Concerning High Treason and Other Pleas of the Crown and Criminal Causes (W Clarke & Sons, 1797)

Category:

Principal judgment

Parties:

Cem Batak (Applicant)
Crown (Respondent)

Representation:

Counsel:

Ms G Bashir SC with Mr C Parkin (Applicant)
Ms H Roberts SC with Ms M Millward and Ms A Bonnor (Respondent)

Solicitors:

Fahmy Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2019/00260254

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

New South Wales

Citation:

R v Batak [2022] NSWSC 424 (pre-trial ruling); R v Batak (No 5) [2022] NSWSC 1217 (sentencing)

Date of Decision:

05 April 2022

Before:

R A Hulme J

File Number(s):

2019/260254

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant supplied a loaded Glock pistol and a high visibility (or “high vis”) shirt to a man named Cengiz Coskun, for use in a home invasion attempting to steal drugs and money. Coskun and another unknown man conducted that home invasion shortly afterwards, during which gunshots were fired, killing one of the residents and wounding another.

The applicant was charged with two offences: as count 1, murder (contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)); as count 2, attempted robbery whilst armed with a dangerous weapon (contrary to s 97(2) of the Crimes Act). In relation to count 2, the Crown alleged that the applicant intentionally encouraged and assisted the commission of the s 97(2) offence by provision of the gun or the high vis shirt, knowing that they were to be used for such an offence. As for count 1, initially the Crown had intended to argue three pathways to a murder conviction. However, after objection from the accused and some comments from the trial judge, it decided to pursue only one of those, being that the applicant was an accessory before the fact to constructive murder, where the foundational offence was that charged in count 2.

The trial judge directed the jury that in order to find the applicant guilty of the murder charge it was necessary to conclude that “the discharge of a gun during the attempted armed robbery with a dangerous weapon was a possibility which the accused was aware of when he provided the assistance to Cengiz Coskun”, this being the fifth of five identified elements for that charge. His Honour considered himself bound to provide that direction in light of the decision of the Court of Criminal Appeal in R v Sharah (1992) 30 NSWLR 292.

The applicant was convicted on both counts and sentenced to 14 years imprisonment, with a non-parole period of 10 years and six months, for the constructive murder offence, and two years imprisonment in relation to the attempted robbery offence, to be served concurrently.

The applicant sought leave to appeal in relation to his convictions, raising four grounds:

(1) It was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability.

(2) The trail judge misdirected the jury as to the elements of accessory before the fact to constructive murder and/or the elements of accessory before the fact to aggravated armed robbery.

(3) The trial judge erred in failing to give a direction to the effect that Mr Batak’s lack of prior convictions enabled them to reason that he was less likely to have committed the offences that he was on trial for.

(4) The verdict on the murder charge was unreasonable.

The Court granted leave to appeal save with respect to ground 3, upheld the appeal on ground 1 only with respect to the murder conviction, ordered a retrial of that count, and otherwise dismissed the appeal (per Kirk JA, Ierace and Wilson JJ), concluding as follows:

As to the first and second grounds – general principles

1. The doctrine of accessorial liability is longstanding. In recent decades the law has come to distinguish more clearly between that doctrine and other doctrines of criminal complicity in the form of joint criminal enterprise (JCE) and extended joint criminal enterprise (EJCE). The High Court’s decision in Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 involved consideration of liability pursuant to a JCE, not under the doctrine of accessorial liability: at [50]-[96].

R v Russell [1933] VLR 59; (1899) 5 ALR 51; Johnson v Youden [1950] 1 KB 544; Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1140; R v Johns [1978] 1 NSWLR 282; Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108; Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473; McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108; Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439; Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380; IL v The Queen [2017] HCA 27; (2017) 262 CLR 268, considered.

2. Section 18(1)(a) of the Crimes Act reflects the common law with respect to constructive murder, save in relation to identifying the nature of the foundational offence and removal of reference to “malice aforethought”: at [100]-[101]. Constructive murder involves no mental element in the killer as regards the act or omission causing death.

Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205; IL v The Queen [2017] HCA 27; (2017) 262 CLR 268, followed.

R v DJD and Murdoch [2023] NSWSC 222; (2023) 111 NSWLR 193, not followed.

3. It has long been established that principles of criminal complicity can apply to s 18(1)(a). Participants in a JCE to commit the relevant foundational offence are attributed with the acts of the killer. Leaving aside the applicant’s arguments based on coherence and Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 relating to the particular interaction between constructive murder and liability as an accessory before the fact, there is no necessary reason why principles of accessorial liability cannot work together with a charge under s 18(1)(a): at [102]-[133].

R v Jackson (1857) 7 Cox’s CC 357; R v Radalyski [1899] 24 VLR 687; R v Brown and Brian [1949] VLR 177; R v Surridge (1942) 42 SR (NSW) 278; R v R (1995) 63 SASR 417; R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452; IL v The Queen [2017] HCA 27; (2017) 262 CLR 268; Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299, considered.

4. The statement in R v Sharah (1992) 30 NSWLR 292 suggesting that it was necessary on a charge of constructive murder to establish that a party to a JCE to commit the foundational offence foresaw the act or omission causing death may have reflected the particular facts of the case, and in any event was obiter. It is not generally required to make out such a requirement in order to establish constructive murder pursuant to s 18(1)(a). Specifically, it is not necessary when the doctrine of JCE is relied upon. Any suggestion to the contrary in Sharah should no longer be followed. If the accused is liable for the foundational offence, and death results in the course of that offence by the action of another participant in the JCE, then the accused can be found guilty of constructive murder without establishing any further mental element. Thus the primary judge erred in directing that the fifth element was required. That error does not establish a miscarriage of justice. That the jury was told it needed to find an additional, unnecessary element made the obtaining of a conviction more difficult for the prosecution, not easier: at [104]-[105] and [134]-[156].

R v Sharah (1992) 30 NSWLR 292, distinguished.

R v Spathis [2001] NSWCCA 476; R v Batcheldor [2014] NSWCCA 252; (2014) 249 A Crim R 461; R v IL [2016] NSWCCA 51, considered.

R v Surridge (1942) 42 SR (NSW) 278; IL v The Queen [2017] HCA 27; (2017) 262 CLR 268; Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299, followed.

As to the first and second grounds – whether it is open in law to be an accessory before the fact to constructive murder

5. A charge of constructive murder under s 18(1)(a) of the Crimes Act involves proof not only of the foundational offence but of a distinct element of there being an act or omission causing death. That act or omission may be separate to the foundational offence. The Crown accepted as much, saying that in such cases it was necessary that the accused intentionally assist with the commission of the offence with knowledge of the act causing death as one of the possible ways in which the acts constituting the foundational crime may be carried out. That submission echoed Sharah, which the Crown itself had successfully challenged. The submission conflicts with the principles on the required mental element for accessories before the fact, as definitively set out in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. Under those principles, it is necessary to show that the participation of the accessory was intentionally aimed at the commission of the acts which constitute it, doing so with knowledge of the acts constituting the offence. For constructive murder, that would thus include knowledge of the act or omission causing death. However, to require such knowledge is inconsistent with the very nature of constructive murder. Accessorial liability cannot coherently apply to a charge of constructive murder and is implicitly excluded by s 18(1)(a). That conclusion is reinforced by issues of principle, including in particular that the scope of constructive crime should be confined. Because the law on this issue is unclear – no case directly on point having been cited by either side – it cannot be said that this is an evolution of the law which should be left to Parliament. Ground 1 is thus made out: at [157]-[196].

Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205; Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473; Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661; Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439; Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299, considered.

R v Radalyski (1899) 24 VLR 687; R v Brown and Brian [1949] VLR 177; Reg v Creamer [1966] 1 QB 72, distinguished.

As to other complaints about directions raised on the second ground

6. The applicant’s criticisms of the directions given with respect to the second element of the murder charge do not properly consider the context in which they were given: at [199]-[203].

7. The complaint concerning the fourth element of the murder charge is founded on the contention that any liability attributed to the applicant depended upon it being established that Coskun, and not the unidentified second man, was the shooter. It did not. Under common law principles of complicity, each was responsible for the act of the other as principals to the JCE: at [204]-[205].

As to the third ground

8. As to the directions regarding the applicant’s lack of prior convictions, the direction, as given, reflected the understanding between the trial judge and the parties as to the limited nature of the purpose for which it was being sought, which was consistent with how the defence referenced the applicant’s absence of criminal convictions in his closing and the absence of complaint by defence counsel to the direction. Leave to appeal under r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 (NSW) should be refused: at [215]-[217].

As to the fourth ground

9. The unreasonable verdict ground was put in a very particular way, to the effect that because the Crown had chosen one pathway on the murder charge which (assuming success on ground 1) was not available, that meant the verdict was also unreasonable, such that an acquittal should be entered. However, other pathways were open on the indictment: at [220]-[221]. In any event, when an appeal ground other than unreasonable verdict is upheld that means that the trial has gone wrong in some way, implying that any retrial is to be conducted on a different basis. That fact does not of itself mean that the jury’s verdict was unreasonable or cannot be supported having regard to the evidence: at [223]-[224].

M v The Queen [1994] HCA 63; (1994) 181 CLR 487; The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232; Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282, considered.

As to the proper orders

10. The applicant having succeeded on ground 1, in relation to count 1, the question arises whether a retrial on that count should be ordered in the Court’s discretion pursuant to s 8(1) of the Criminal Appeal Act 1912 (NSW). A range of factors may be relevant to the exercise of that discretion. Here, it is relevant that the charge of murder is serious; there seems to be a strong potential case for JCE; the case would not be significantly different than was originally made against him at trial; the error made by the Crown in not pursuing JCE was not sinister; and the legal issues raised are difficult and fine: at [228]-[234]. A retrial on count 1 should be ordered.

Castagna v R [2019] NSWCCA 114, applied.

Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494; The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232; Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282, considered.

JUDGMENT

1. THE COURT: The central issue in this appeal is whether it is possible to make out a charge of accessory before the fact to constructive murder on the basis of the accused being an accessory before the fact to a foundational offence. The question arises in the following context. At around 3:45am on 2 April 2019 two men broke into an apartment in Five Dock in the inner west of Sydney in order to steal drugs and money. Two people resided in the apartment: Sargon Odisho and John Odisho. Sargon Odisho was a drug dealer. The two men were not directly related despite their common surname. Also present in the apartment that night was John Odisho’s girlfriend, Ms Larissa Mitchell-Wiszniewski. Each intruder was armed with a handgun. Sargon Odisho also had a handgun. A confrontation occurred. Shots were fired by one of the intruders and by Sargon Odisho. John Odisho was shot in the head by a bullet fired by the intruder. He died later that day. Sargon Odisho was struck by two bullets. One of the intruders, Cengiz Coskun, was struck in his lower left flank. The identity of the other intruder remains unknown.

2. The applicant in this matter, Cem Batak, was not present at the robbery. A short time earlier that night he had supplied Coskun with a loaded Glock pistol and a high visibility (or “high vis”) shirt for use in the home invasion. The applicant was charged with two offences: the foundational offence of attempting to rob Sargon Odisho of drugs and money whilst armed with a dangerous weapon (contrary to s 97(2) of the Crimes Act 1900 (NSW) (the Act)) and the constructive murder of John Odisho (contrary to s 18 of the Act). The trial occurred before a jury in April and May 2022, presided over by R A Hulme J. The applicant was convicted on both counts. The trial judge imposed a sentence of 14 years imprisonment, with a non-parole period of 10 years and six months, for the constructive murder offence, and two years imprisonment in relation to the attempted robbery offence, to be served concurrently: see R v Batak (No 5) [2022] NSWSC 1217 (SJ).

1. Coskun was separately tried before a jury and the same trial judge. He was convicted of the same two offences as Batak and sentenced to 34 years imprisonment: R v Coskun (No 5) [2022] NSWSC 1216. An appeal from his conviction and sentence was heard and dismissed by this Court as currently constituted, that decision being handed down on the same day as this one: Coskun v R [2024] NSWCCA 67. The evidence given in the two matters differed somewhat, and each appeal has been determined by reference to the evidence relevant to the matter in question.

2. The applicant appeals his conviction on four grounds:

“(1) It was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability.

(2) In the alternative to (1), the trial judge misdirected the jury as to:

(a) the elements of accessory before the fact to constructive murder; and/or

(b) the elements of accessory before the fact to aggravated armed robbery.

(3) The trial judge erred in failing to give a direction to the effect that Mr Batak’s lack of prior convictions enabled them to reason that he was less likely to have committed the offences that he was on trial for.

(4) The verdict on Count 1 was unreasonable, or cannot be supported, having regard to the evidence.”

5. Ground 1 raises a matter of law and is advanced as a matter of right: s 5(1)(a), Criminal Appeal Act 1912 (NSW). The Crown submitted, and the applicant did not dispute, that leave to appeal was required in relation to grounds 2-4 pursuant to s 5(1)(b) of the Criminal AppealAct. The application raises issues of significance for which leave should be granted, save in relation to ground 3.

6. The issues raised by grounds 1 and 2 overlap and it is convenient to address them together. The appeal should be upheld with respect to the murder conviction (only) on the basis of ground 1. Ground 2 is not made out. Ground 3 raises a distinct issue for which leave to appeal should be refused on the basis of r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 (NSW). Ground 4 was founded upon success on grounds 1 or 2, but sought to turn success on either of those grounds into a complaint of unreasonable verdict – an attempt which should be rejected. For reasons explained at the end of this judgment a retrial on the murder charge should be ordered.

7. Before turning to considering the grounds it is appropriate to explain the factual context of the appeal.

Background

8. The following summary is taken in part from the sentencing judgment of the trial judge and more generally from the evidence that was before the jury.

The events on the night in question

9. The applicant and Coskun had been friends since school but had not been in close contact in the months leading up to the shooting. The applicant’s phone number was given to Coskun by a mutual acquaintance, Abdulsamed Sari, on 16 March 2019. The two were in frequent contact from then on, with phone records showing at least 77 calls between 17 March 2019 and 2 April 2019. There was a significant amount of contact between them on 20 and 22 March and the morning of 23 March 2019. They met on a number of occasions, often in parks and at night.

10. After midnight on 2 April 2019 the two met at the applicant’s unit. Prior to arriving they exchanged WhatsApp and text messages, which included Coskun asking the applicant to bring two high vis work shirts. The messages were as follows:

Time	From	To	Content
12:21:50	Applicant	Coskun	Park on the street don’t come in the drive way
12:27:05	Coskun	Applicant	Gel (translation from Turkish to English: “Come”)
1:00:10	Coskun	Applicant	Bring hi viz
1:00:12	Coskun	Applicant	Work shirts
1:00:13	Coskun	Applicant	Two

11. The applicant had once worked as a sub-contractor for a business called Quantum Transport Solutions and had been provided with yellow high visibility short-sleeved work shirts.

12. At their meeting the applicant supplied Coskun with at least one high vis work shirt and a handgun, which the applicant would later describe in an intercepted phone conversation as a mini Glock with an “extended clip”. Coskun then left the applicant’s apartment. He and the other intruder arrived at Sargon Odisho’s apartment around 3:45am. They entered through the balcony of Unit 103, which they had reached by climbing over fencing and on top of the housing around a fire hydrant which was below the balcony. They were both wearing gloves and face coverings, and Coskun was wearing the high vis shirt supplied by the applicant.

13. John Odisho and Ms Mitchell-Wiszniewski were asleep in the master bedroom and were woken up by noise in the hallway. Ms Mitchell-Wiszniewski then heard Sargon Odisho say something like, “I don’t have” and “I don’t know” in a distressed manner. As John Odisho went to investigate the conflict, someone began pushing on the bedroom door. Ms Mitchell-Wiszniewski saw a gun through the doorway, recalling that it “looked like a black handgun”.

14. John Odisho then left the master bedroom. One of the intruders who was wearing all black – therefore likely not Coskun, who was wearing the high vis shirt – entered the room. He pointed a silver gun at Ms Mitchell-Wiszniewski’s head for a short time. She described it in this way: “Quite large. It wasn’t a small handgun, it was a decent sized handgun”. The intruder then left the bedroom and Ms Mitchell-Wiszniewski said she immediately heard several shots fired.

15. There was disagreement about precisely what occurred at this point. What is clear is that one of the intruders fired 10 rounds from a .40 calibre weapon into Sargon Odisho’s bedroom from the hallway. Two bullets entered the wall adjacent to the door. Other rounds were fired towards the door, when it must have been in a partially open position, while the rest were fired straight into the room. One of those bullets struck John Odisho in the head. Two bullets struck Sargon Odisho.

16. Ballistics reports showed that Sargon Odisho discharged his .38 Smith & Wesson handgun six times from inside the bedroom towards the hallway. Two shots penetrated the wall adjacent to the door in the vicinity of where two of the .40 calibre bullets had entered the wall. Three shots went into the hallway unimpeded and struck the opposite wall. Another shot was the one that struck Coskun in the left flank.

17. Coskun and the unknown man then left the apartment over the balcony and ran down East Street. Coskun returned to his car and made a phone call to Mr Sari, telling him that he had been badly hurt. They agreed that Coskun would drive himself to Auburn Hospital, where Mr Sari would come to meet him.

18. Back in the apartment, after the shooting had stopped Sargon Odisho yelled for Ms Mitchell-Wiszniewski to call an ambulance and told her that John had been shot. Emergency services arrived at the apartment and attempted to keep John Odisho alive. He died later that day.

19. Only one gun had been fired by the intruders, being the .40 calibre handgun. The trial judge found in sentencing that both the intruders were armed and that it was Coskun who carried and fired the .40 calibre handgun.

Subsequent evidence as to the role of the applicant

20. The police obtained warrants allowing them to intercept phone calls made by the applicant and to place listening devices in his home and car. Evidence was tendered of a number of recorded conversations involving the applicant.

21. One notable conversation recorded by a listening device occurred on 28 June 2019 between the applicant and two males named Yalim and Karaman. There was difficulty in distinguishing between the other two males when one of them was speaking, and they were designated just as “Y/K” in the transcript. Some of the conversation was in Turkish but has been translated. The transcript included the following (Exhibit BP; emphasis added):

“Y/K: Did you hear what happened to Cengiz? With Cengiz [ie Coskun].

…

Applicant: Did you know I was going to go with him?

…

Y/K: Are you close with him?

Applicant: Yeah, bro I grew up with him. Cengiz came. Alright, this I’ll tell you exactly what happened. Cengiz came to my house.

…

Applicant: Cuz he came, he called me up. At the time I swear to God, I was dead broke. I need money, and he knew it, so he came, and I had

…

Applicant: I had two at home. Yeah, he asked please can I take one.

Y/K: You know the, got shot? [sic]

Y/K: (Inaudible)

Applicant: I know that cuz. I gave it to him yeah.

Y/K: No, the one he got shot with.

Applicant: You know the one I gave him, extended clip.

…

Applicant: He comes cuz, we’re at my garage, it’s like one in the morning. He’s telling me exactly the scenario, like the scene. He went there, his mate was there.

Y/K: He got good intel my bro.

Applicant: Shit intel, he told me [Over talk]

Y/K: Shit intel, bro? How’d he know that guy was there? Know that guy was there.

Applicant: Cause his mate was there, his mate was there. Yeah, at the house and he goes everyone was smacking out. Like, they’re just crashing. So, there’s two of them explained everything cuz. I go, ‘Alright’. He goes, ‘Let’s go together’ and he goes, ‘It’s easy’. Please explain. He goes, ‘We just go up the balcony, on the ground floor’, and he goes, ‘The doors open we’ll go straight in’, yeah, ‘In and out nice and quick’. I promise to God, I was there for about 10 minutes, in my garage, cause he asked me for fluro’s as well. I gave him my work shirt. He’s wearing my work shirt, huh?

Y/K: What do you mean fluro’s?

Applicant: He’s wearing my work shirt in the fucking camera footage.

Y/K: Names? On the shirt?

Applicant: Quantum Transport. Represent my brother. …

Applicant: Cuz, I’ll tell you exactly what happened. I stood there with him about 10 minutes, just thinking about everything just explained to me, and I’m like brother, if this pulls off, that money, I need that now, yeah. I promise to God I kept thinking and thinking and I was actually persuading to go with him. Last minute, you know what happened, cuz my stomach turned, yeah, I had to chuck a shit. Like, I, bro I could not hold it too, huh. … He goes ‘I have to go now’. I go, ‘Cuz, I gotta go poo, yeah.’ I go, ‘ok you go then’, I full got turned off from it, I go, ‘I’m gonna go upstairs, I’m gonna shit’, yeah. Then and there he was calling someone else and he goes, ‘Don’t worry, I’ve got someone else.’ He goes, ‘I’ll get something out of it and I’ll bring it to ya.’ He left. Next morning cuz, ask me what I hear on the radio. Five Dock shooting. Everything. And he called me in the morning too, cause he got shot.

…

Applicant: I gave him a Glock … [Over talk]

Y/K: Stiff shit.

Applicant: It was a mini Glock too. [Over talk]

…

Applicant: I promise to God, I do, I was gonna go, yeah. I was this close, literally this close. I was getting ready, we were gonna go we loaded it up I got my clothes everything, we were gonna go. … ”

22. The trial judge concluded that the phrase “we loaded it up” referred to loading the gun (SJ [44]).

23. In a subsequent conversation on 18 July 2019 the applicant’s wife asked him, “what about when they find the gun. What happens then?”. He told her that it had been “wiped down completely” on the days preceding the robbery.

24. In another recorded conversation, on 2 August 2019, the applicant was again discussing the events in question with an acquaintance, and said:

“Cuz, I already know what to say. He called me just before he went and done the job. There’s a phone call there. So, they’ve seen that, cause he came, he saw me, I gave him the gun, he took my gun. …

He came. He seen me, we spoke. I was the last person he called. And then he took my gun, I gave him my gun, he took that. And he took, ah, I gave him the shirt. There was five of them, I gave him two …

You know how they can get me? That I gave it? About two three days before I gave it to him, my dad cleaned the shit out of that gun.”

25. The applicant declined to be interviewed by the police. He did not give evidence at his trial, nor call any witnesses.

26. The applicant’s case was that he had not given Coskun one of the applicant’s own guns but rather was storing guns belonging to Coskun in his garage. It was said that on the night in question Coskun had attended and retrieved his own gun. He argued that there was no evidence he had been told the gun was to be used in an attempted robbery. He relied on evidence given by Mr Sari. Mr Sari gave evidence that the applicant had been storing guns for Coskun. Mr Sari’s evidence was challenged by the Crown, which obtained leave to cross-examine him pursuant to s 38 of the Evidence Act 1995 (NSW). The applicant sought to dismiss the contents of the recorded conversations which undercut those arguments as merely him big-noting himself.

27. The jury obviously did not accept either the applicants’ arguments or Mr Sari’s evidence on the issue, taking account of the clear and repeated admissions by the applicant in the recorded conversations that the Glock given to Coskun was “my gun”. The trial judge was satisfied on sentencing that the handgun belonged to the applicant, and that he gave it to Coskun knowing it was for use in the proposed robbery (SJ [35] and [50]).

Grounds 1 and 2 – accessory before the fact to constructive murder

28. By grounds 1 and 2 the applicant challenges the legal basis upon which the case against him for the murder of John Odisho was left to the jury and, alternatively, the correctness of the directions given to the jury as to the elements of the offence, in circumstances where the Crown alleged that he was liable for the crime as an accessory before the fact. The issues raised are complex and overlapping. Our consideration of those issues is structured as follows:

1. the Crown’s pathway to liability for murder (at [29]-[40]);

2. the trial judge’s directions as to the elements of the offences (at [41]-[43]);

3. the applicant’s arguments as to accessorial liability and constructive murder (at [44]-[49]);

4. the evolution of accessorial liability and principles of complicity (at [50]-[96]);

5. the doctrine of constructive murder in this State (at [97]-[133]);

6. the decision in R v Sharah (1992) 30 NSWLR 292 (at [134]-[156]);

7. accessorial liability and constructive murder (at [157]-[193]);

8. summary of conclusions on accessorial liability (at [194]-[196]);

9. other attacks on the directions as to the elements of the offences (at [197]-[206]).

The Crown’s pathway to liability for murder

29. The indictment of the applicant as presented at trial was framed in this way:

“1. On the 2^nd day of April 2019, at Five Dock in the State of New South Wales, [the applicant] did murder John Odisho.

S 18(1)(a) Crimes Act 1900 Law part code 2

S 346 Crimes Act 1900 Law part code 53065

2. On the 2^nd day of April 2019, at Five Dock in the State of New South Wales, [the applicant] did attempt to rob Sargon Odisho of certain property, namely prohibited drugs and an unknown sum of Australian currency, the property of Sargon Odisho, whilst armed with a dangerous weapon, namely a firearm.

S 97(2) Crimes Act 1900 Law part code 479

S 346 Crimes Act 1900 Law part code 53067”

30. With the relevant portions rendered in bold font, s 18(1)(a) of the Crimes Act provides as follows:

18   Murder and manslaughter defined

(1) 

(a)  Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

31. The section identifies two categories of murder, namely (proceeding just on the text) where an act or omission of the accused caused the death charged, and was done:

1. with reckless indifference to human life or with intent to kill or inflict grievous bodily harm; or

2. in an attempt to commit, or during or immediately after the commission, by either the accused, or some accomplice with him or her, of a foundational crime of the identified degree of seriousness.

32. The second category, constructive murder (previously known as “felony murder”), is what is at issue here. A distinctive feature of the second category is that, in contrast to the first, no particular mental state is required as regards causing the death. In that sense constructive murder involves a type of strict liability. If the death of another is caused in connection with the actual or attempted commission of a crime by the accused or an accomplice, being a crime of the requisite seriousness (the “foundational offence”), then the accused is liable for the murder although they may have had no intent to cause, nor recklessness as to causing, death or really serious injury. Here the foundational offence was that charged in count 2, being an offence of attempted robbery whilst armed with a dangerous weapon. That offence carries a maximum penalty of 25 years imprisonment.

33. Whilst the charges were framed as against a principal, the indictment invoked s 346 of the Act relating to liability as an accessory before the fact as regards both counts. The section provides:

346   Accessories before the fact—how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

34. Although there is no definition of an accessory before the fact within s 346 or elsewhere in the Crimes Act, at common law the term encompasses an individual who incited, moved, procured, aided, counselled, hired, or commanded the principal prior to the commission of the crime, with knowledge that it was to be committed.

35. Prior to the empanelment of the jury, the applicant applied to quash the indictment or permanently stay the prosecution. The trial judge refused the application: R v Batak [2022] NSWSC 424 (Stay J). When the application was argued, as his Honour explained in his ruling at [13]-[21], the Crown had proposed to rely on three alternative pathways to the applicant being liable for murder:

1. a joint criminal enterprise (JCE) pathway, namely that the applicant was a participant in a JCE with Coskun to the foundational offence of armed robbery under s 97(2); that the acts of Coskun in committing that offence could be attributed to him pursuant to the doctrine of JCE; and that as such he was guilty of constructive murder just as Coskun was;

2. an extended joint criminal enterprise (EJCE) pathway, namely that the applicant was a participant in a JCE with Coskun to commit another identified offence, and that the applicant foresaw the possible commission of an act involving the intentional infliction of death or grievous bodily harm;

3. an accessory before the fact pathway, whereby the applicant intentionally encouraged and assisted the commission of the foundational s 97(2) offence by provision of a gun (this was later extended to include the high vis shirt), knowing that it was to be used for such an offence, and where the Crown further contended that the applicant contemplated the possibility that the gun could be discharged in the commission of the robbery, resulting in grievous bodily harm or death.

36. One of the arguments made by the applicant on his stay application was that “the three-fold bases of liability for murder, all of which are based on complex principles of complicity, will result in a very complicated series of directions and will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to follow” (quoted in Stay J [22]). His Honour accepted that “[t]he multiple forms of liability proposed by the Crown create a considerable degree of complexity and potential for confusion” (ibid [26]). However, his Honour subsequently announced his ruling rejecting the stay application, giving “a short preview of my observations on this issue” when doing so (ibid [30]). Subsequently, and prior to his Honour delivering his full reasons for the ruling, the Crown indicated that its case on count 1 would be confined to an assertion that the accused was liable as an accessory before the fact, that is, it would only rely on its third pathway.

36. On the stay application the applicant also advanced three bases upon which he said that the case against him for murder was incapable of proof: (1) that he was not present when John Odisho was shot and so the act causing death was not done by him or by some accomplice “with him”; (2) that there was no act of his causing death; and (3) that the Crown could not prove his agreement to commit the foundational offence. Although those contentions were originally put against all three proposed pathways, his Honour noted that since the Crown had proceeded only on the third, his reasons for rejecting the three bases would be confined to that pathway, namely, an accessory before the fact to constructive murder. To some extent these arguments are echoed in the case made by the applicant on appeal.

37. As to the first of the three contentions the trial judge ruled (Stay J [35]) that:

“The argument is based upon a strictly literal construction of the words in s 18(1)(a) of ‘by the accused, or some accomplice with him or her’. That construction cannot be sustained because it pays no heed to principles of complicity.”

39. As to the second and third contentions, his Honour observed that, regardless of whether the applicant changed his mind, the evidence available to the Crown from an intercepted conversation between the applicant and another – in which the applicant was recorded stating that he had agreed to commit the armed robbery with Coskun – was sufficient for the Crown to make out a case that the applicant had agreed with Coskun to carry out an offence of robbery whilst armed with a dangerous weapon (ibid [43]-[44]). His Honour concluded that there was “implicit acquiescence” by the applicant to a joint criminal enterprise being carried out by Coskun and another person. He held that principles of criminal complicity did not exclude inculpation of the applicant in circumstances where the person with whom he was complicit, to the applicant’s knowledge, engaged another person to assist in carrying out the venture he had agreed to, counselled, or procured (ibid [47]-[48]). His Honour was of the view that the identity of the shooter or gun was immaterial, since the discharge of any gun was an act within the realms of the agreement or the contemplated possible acts incidental to the joint criminal enterprise.

40. Consistently with the foreshadowed narrowing, the Crown opened its case against the applicant to the jury as one relying upon constructive murder and accessorial liability. The Crown case was that the applicant, knowing that an armed robbery was to be committed and having initially agreed to participate, supplied a loaded firearm, being a dangerous weapon, together with a high vis shirt, to Coskun for use during the commission of the robbery by Coskun and a second person. Coskun, or perhaps the second unidentified intruder, subsequently shot and killed John Odisho in the course of attempting to rob Sargon Odisho of drugs and cash whilst armed with the loaded firearm.

The trial judge’s directions as to the elements of the offences

41. The jury was directed with respect to what the Crown had to prove if it was to establish its case, prior to the commencement of the closing addresses of counsel, in three written documents, marked respectively as MFI 66, 71 and 72. MFI 66 was the “elements document” and is of most significance for current purposes. His Honour’s oral directions to the jury on the elements were not materially different to the contents of MFI 66. It is useful to extract the document in full (the text in bold font mirrors the original):

“Essential elements of the charges the Crown is required to prove beyond reasonable doubt

1. Cengiz Coskun and the unknown male attempted to commit a robbery while they were armed with a dangerous weapon.

That is:

(a) they attempted to steal property by the threat of force

(b) while one or both of them was armed with a dangerous weapon.

A gun capable of propelling a projectile by means of an explosive is a “dangerous weapon”.

There is no dispute about this element.

2. The accused intentionally assisted Cengiz Coskun in the preparations for the attempt to commit the armed robbery with a dangerous weapon.

The Crown says he did so by providing a high-visibility fluorescent yellow shirt and handgun.

The Crown does not have to prove both forms of assistance. It has to prove intentional assistance was provided by the accused by one means or the other.

3. At the time of intentionally assisting Cengiz Coskun, the accused knew all the essential facts, both of a physical and mental nature, which amounted to the crime of attempting to commit an armed robbery with a dangerous weapon.

That is, the Crown must prove the accused actually knew that Cengiz Coskun intended to steal property from someone by threat of force while armed with a dangerous weapon.

Proof of each of elements 1, 2 and 3 beyond reasonable doubt is required to establish the accused’s guilt of the offence in Count 2, accessory before the fact to the offence of attempted armed robbery with a dangerous weapon.

To prove the accused’s guilt of Count 1, the offence of murder, the Crown is also required to prove beyond reasonable doubt both of the following additional matters.

4. During the attempt to commit the crime of robbery whilst armed with a dangerous weapon, a shot was fired by either Cengiz Coskun or the unknown male which caused the death of John Odisho.

It does not matter whether or not the firing of a gun was intentional.

It does not matter whether or not it was necessary for a gun to be fired for the purpose of carrying out the armed robbery.

It does not matter whether or not the intruders intended to kill or to cause any level of harm to anyone.

There is no dispute about this element.

5. The discharge of a gun during the attempted armed robbery with a dangerous weapon was a possibility which the accused was aware of when he provided the assistance to Cengiz Coskun (providing the shirt and/or gun).

Put another way, the accused realised or contemplated, at the time of assisting Mr Coskun, that it was possible a gun could be discharged during the attempt to commit the armed robbery.”

42. The fifth element is of particular significance in this appeal. It is founded upon the identification of elements of a charge of constructive murder by Carruthers J in Sharah at 297. The trial judge had himself earlier expressed doubt as to that statement of elements: R v Batcheldor [2014] NSWCCA 252; (2014) 249 A Crim R 461 at [128]-[132]. However, his Honour considered himself bound to follow Sharah, as he noted in his stay judgment at [38].

43. In another of the written directions to the jury, MFI 72 (also explained orally), the trial judge directed the jury as to the requirement for unanimity as to the nature of the assistance provided by the applicant to Coskun. The jury was told that its members had to agree that the assistance provided by the applicant to Coskun was to supply the loaded gun, or the high visibility shirts, or both. His Honour explained that it was not open to be satisfied of the element concerning the provision of assistance if some jurors accepted one type of assistance had been given, and others a different type of assistance; there had to be unanimity as to the assistance provided.

The applicant’s arguments as to accessorial liability and constructive murder

44. The applicant argues that the law does not recognise or provide for a person to be liable to a charge of constructive murder, pursuant to s 18(1)(a), on the basis of being an accessory before the fact to a relevant foundational offence. He asserts that the Crown’s chosen pathway to establishing his liability for murder was not one available under the law of this State. He advanced five contentions in support of that overarching claim, as follows:

1. the doctrine of constructive murder applies only to the person who committed the act causing death, and to any participant in a joint criminal enterprise to commit the foundational offence;

2. derivative liability does not operate such that the act of the principal is attributed to the accessory;

3. the knowledge required of the accessory to constructive murder is incapable of formulation;

4. the decision of Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 (Johns HC) is not persuasive or binding authority to establish liability for constructive murder as against an accessory before the fact; and

5. there is no offence of accessory before the fact to a constructive murder.

45. The applicant contends that, for liability for constructive murder to arise under s 18(1)(a), the act causing death must be done by either the accused or an accomplice who was present and part of a joint criminal enterprise to commit the foundational offence. If that construction of s 18(1)(a) is correct, the applicant – who neither discharged the fatal shot nor was present at the scene of the shooting as an accomplice – cannot be liable for constructive murder. He contends that nothing in the law of accessorial liability changes that statutory reality. He relies upon a decision of Wright J in R v DJD and Murdoch [2023] NSWSC 222; (2023) 111 NSWLR 193, at [43]-[47], as authority for that construction of s 18(1)(a), which he submits is consistent with the common law rule as expressed in Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299.

46. The applicant submits that nothing in the doctrine of accessorial liability operates to extend constructive murder such that it is capable of attributing liability for the act of the principal that caused death to the person who was an accessory before the fact to the foundational offence. He argues that to establish an accessory before the fact offence against an accused person, the Crown must prove that the accessory assisted the principal in some way to commit the particular serious indictable offence, in this case, murder. On that basis, s 346 does not render an accessory liable for any serious indictable offence the principal might commit, but only for the particular offence the accessory counselled or aided.

47. To construe s 346 as operating more widely than that – and thus to expose the accessory to liability for any crime the principal might commit in the course of committing or attempting to commit the crime encouraged by the accessory – would be absurd, in the applicant’s submission. One example given by the applicant to illustrate the argument is that of an accessory who encourages the principal to commit an armed robbery with an offensive weapon, where the weapon was an imitation firearm incapable of discharging a projectile by explosive means. He points to the unfairness and absurdity of holding the accessory liable for murder where, in the course of fleeing the scene, the principal ran down and killed a pedestrian. The contention is that accessorial liability cannot extend so far as to render the accessory liable for the death of the pedestrian, because constructive liability must be confined in its operation to ensure that the moral culpability and legal liability of the accessory is proportionate.

48. Further, the applicant submitted that proof of the relevant state of knowledge would be too undemanding if an accessory was made legally liable for an offence that they had no knowledge would or might be committed. In this regard, the correctness of the decision of Sharah, insofar as that decision accepted that it was necessary and sufficient that the accused foresaw the possibility that the firing of a gun may occur, was disputed.

49. The Crown disputes that s 18(1)(a) should be properly construed such as to confine liability for constructive murder to those persons present at the scene. The Crown submits that, consistent with the common law, the conviction of an accessory before the fact to constructive murder is open where the accused has knowledge of the facts and circumstances necessary to constitute the foundational crime, with there being no requirement of foresight or contemplation of the actual outcome. The Crown was also critical of Sharah, seeking relevantly to confine it to its facts.

The evolution of accessorial liability and principles of complicity

50. Before considering the arguments advanced before the Court and determining this ground there is some value in examining the origins of the jurisprudence relating to accessorial liability and constructive murder and the development of these historically vexed doctrines over time. Although both doctrines have been addressed in statute in New South Wales, the common law rules that identify and define accessories before the fact, principals in the first degree and principals in the second degree, and those that delineate the scope of the application of the constructive murder doctrine, remain influential in marking out the substantive limits of liability under these doctrines. An understanding of the operation of the common law rules is the necessary background against which the statutory provisions fall to be construed.

The development of liability as an accessory

51. The concept of an accessory before the fact is an ancient one, and the doctrine of accessorial liability is one of long standing, first glimpsed in Britain under Roman rule. In Russell on Crime1 the author referred to the Roman concept of noxal surrender, which was retained and expanded by English law. The concept was that where the crime involved the death of a man (the male gender only being referred to) not only the perpetrator of a crime was guilty but also those inanimate objects associated with its commission. Thus a cart or piece of timber or other object tainted with guilt for the killing was handed over to the monarch to be dealt with under the sovereign’s direction. In Russell on Crime this rule was said to be the origin of principles of accessorial liability (at p 19):

“In this ancient institution there can be detected the elemental origins of the different canons of criminal liability which emerged in later centuries. … this helped to form the ancient doctrine, which was that a harm must be paid for by any man who had actually taken part in the chain of events which could be traced back from it”.

52. Accessorial liability was referred to in the Statute of Westminster 1275, 3 Edw 1 c 5. It was explained by Sir Edward Coke in The Institutes of the Laws of England of 1797, where he said: [1]

“And forasmuch as it hath been used in some counties to outlaw persons being appealed of commandment, force, aid, or receipt within the same time that he which is appealed for the deed, is outlawed …”.

1. JW Cecil Turner MC LLD, Russell on Crime (Stevens & Sons London, 12th ed, 1964).

53. That formula expressed concepts that continue into the present of commanding or providing aid to the principal. Sir Edward Coke divided accessories into two categories, before the fact and after the fact. An accessory before the fact commanded or aided the principal, that being to “… incite, procure, set on, or stir up any other to doe the fact, and are not present when the fact is done” (ibid). The word “force” was said to “properly signifieth the furnishing of a weapon of force to doe the fact, and by force whereof the fact is committed, and he that furnisheth it is not present when the fact is done” (ibid). The notion of aid as given by Sir Edward Coke (ibid):

“comprehended all persons counselling, abetting, plotting, assenting, consenting and encouraging to doe the act, and are not present when the act is done; for if the party commanding, furnishing with weapon, or aiding, be present when the act is done, then he is a principal”.

54. Despite that distinction Sir Edward observed that “both principalls and accessaries are generally charged alike, without any distinction” (at 1 Inst 183). The “fact” referred to when speaking of an accessory before, at or after the fact is the offence for which the accessory is said to be liable.

55. Section 346 of the Crimes Act is a modern statutory expression of that doctrine, dealing with accessorial liability for a serious indictable offence. It provides for “every accessory before the fact” to be “indicted, convicted, and sentenced, as a principal in the offence”, without distinction. So, too, is s 351 of the Act which addresses accessorial liability for a minor indictable offence. [2]

    2. Sir Edward Coke, The Third Part of the Institutes of the Laws of England Concerning High Treason and Other Pleas of the Crown and Criminal Causes (W Clarke & Sons, 1797), at 1 Inst 181.

56. As examples of the application of the doctrine, consideration of some earlier authorities is instructive. The Victorian decision of R v Russell [1933] VLR 59 is of some significance. It concerned a man who stood by whilst his wife drowned their children. Cussen ACJ explained (at 67):

“A principal in the second degree is sometimes defined as a person present aiding or abetting, but in this context each of these words has, as I have indicated, a wide meaning. A common dictionary meaning of ‘abetting’ is ‘encouraging,’ or ‘countenancing’; and this is to be remembered when the words ‘aiding or abetting’ alone are used. All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission”.

57. The “general idea” of the accessory before the fact being “linked in purpose” with the principal and, by his or her conduct, rendering the offence committed more likely of commission, is found frequently in cases decided after Russell.

58. In Johnson v Youden [1950] 1 KB 544, involving three persons who aided and abetted another to commit a statutory offence, Lord Goddard CJ held (at 546):

“Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence”.

59. That statement has been frequently referred to with approval, including in Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1140. The House of Lords there considered a case arising from “The Troubles” in Northern Ireland. A member of the Ulster Volunteer Force, a loyalist paramilitary group, was convicted of two offences connected with an attempt to bomb a Catholic-owned hotel. Maxwell was indicted as a principal, but the case against him was that he was an accessory before the fact to offences under the Explosive Substances Act 1883 (UK) of having possession of a bomb with intent and placing a bomb with intent. Maxwell’s role in the affair was to drive his car ahead of another car, containing three men, to guide them to the location of the hotel. Once the two cars had reached the location Maxwell continued driving and went home. The second car stopped and one of its occupants ran across the road to the hotel and threw a pipe bomb into its hallway. Maxwell disputed his conviction for the bombing, arguing that in guiding the occupants of the second car to the scene he had had no knowledge of what the men were to do, although he was aware a paramilitary operation was to be carried out. The House of Lords dismissed his appeal, citing what was said by Lord Goddard CJ in Youden with approval: at 1144 per Viscount Dilhorne, 1146 per Lord Hailsham of St Marylebone, and 1150 per Lord Scarman.

60. The leading Australian authority is Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, the judgments in which refer approvingly to R v Russell, Youden and Maxwell. The appellant there had been convicted, as an accessory before the fact, of five counts of culpable driving causing death and one count of culpable driving causing grievous bodily harm. The appellant had owned a truck that was in a defective condition with malfunctioning brakes. He procured an employee of his – the principal – to drive the truck to deliver a load of coal. When descending a steep incline, the driver lost control of the truck and collided with other vehicles, causing the deaths and injury which were the subject of the charges. Giorgianni was charged pursuant to s 52A of the Act (as that section then was) operating together with s 351 of the Act, a provision that is the equivalent of s 346 relevant to the commission of misdemeanours (as then called). The section then provided:

351   Trial and punishment of abettors of misdemeanours

Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is an offence at Common Law or by any statute, may be indicted, convicted and punished as a principal offender.

61. Mason J stated that “[i]t has been recognized that provisions such as s. 351 do not themselves create substantive offences but are declaratory of the common law and procedural in nature” (at 490, citations omitted; see also Gibbs CJ at 480; Wilson, Deane and Dawson JJ at 500).

62. Two principal issues were raised before the High Court, both of which are of potential relevance to the current matter. The first was whether Giorgianni could be charged with the driving offences under s 52A when he had not been driving the vehicle but was charged as an accessory before the fact, pursuant to s 351 of the Act. The Court held that he could. Gibbs CJ indicated that the question was whether the provision “reveals any intention to exclude the ordinary rules governing the liability of a secondary party, as a person who has aided, abetted, counselled or procured the commission of a crime is now called” (at 477). The Court found that there was no such intention: Gibbs CJ at 478-479, Mason J at 492 and Wilson, Deane and Dawson JJ at 501-503. Gibbs CJ explained (at 478):

“Many statutory provisions which create misdemeanours refer only to the person who directly engages in the forbidden conduct, yet the ordinary rule which makes any person who aided, abetted, counselled or procured the commission of the misdemeanour liable to be convicted and punished as a principal offender nevertheless applies.”

63. Mason J explained how a contrary intention might be manifest (at 491, citations largely omitted):

“In Mallan v. Lee [(1949) 8 CLR 198 at 216], Dixon J. observed that ‘the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created’. A similar approach must be taken to apply to the exclusion of the doctrine of secondary participation at common law. It may, therefore, be inapplicable to a person of a class whom the substantive offence is designed to protect or in respect of whose participation some lesser punishment is imposed. It may also be inapplicable where the substantive offence itself involves some element of secondary participation.”

64. The second principal issue was “whether a person may be convicted of an offence against s. 52A … on the footing that he aided, abetted, counselled or procured the commission of that offence, if it is not proved that he knew all the circumstances which made what was done an offence” (quoting Gibbs CJ at 479). The trial judge in the case had directed the jury that it was sufficient that Giorgianni knew that the brakes were defective and could fail or was reckless to whether or not that was so (see at 477). The High Court held that recklessness did not suffice and upheld the appeal on that basis.

65. Gibbs CJ summarised his view as follows (at 488-489):

“No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.”

66. Similarly, Wilson, Deane and Dawson JJ said (at 504-505):

“Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent.

…

Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence.”

67. As that quotation illustrates – and as is implicit in the very notion of being an accessory before the fact – the required knowledge of the essential facts which make what was done a crime may be knowledge in advance of the offence being carried out, being knowledge by the accessory of the intention of the principal to carry out the offence.

68. A sub-issue considered by the High Court was whether or not the requisite actual knowledge extended to Giorgianni foreseeing the harm caused, that is death or grievous bodily harm. The Court held that knowledge of the consequence was not required. We return to this issue below.

69. More generally, Mason J explained the nature of accessorial liability in terms which are instructive (at 493, citations omitted):

“In felony at common law the terms ‘aid’ and ‘abet’ are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms ‘counsel’ or ‘procure’ are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence. In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen ACJ in R v. Russell, as being applicable to secondary participation in misdemeanour. Having listed various words, including ‘aiding’ and ‘abetting’ which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed:

‘All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.’

As R v. Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender.”

70. Gibbs CJ similarly stated that “the person charged as a secondary party should in some way be ‘linked in purpose with the person actually committing the crime’” (at 480, quoting R v Russell). Thus for accessorial liability to arise on the basis of being an accessory before or at the fact it is not necessary that there be any agreement between the parties that the crime will be carried out – in contrast to what is required for the doctrines of JCE or EJCE to apply (as to which, see below). However, in circumstances where the accessory can only be liable if they actually know of the intent to carry out the offence and then intentionally assist the principal, even if there is no agreement between them they are still linked in purpose. The distinction between there being an agreement and being linked in purpose is a fine one. To some extent that point is illustrated by consideration of Johns HC.

Johns v The Queen

71. This case was a particular focus of the submissions in this matter. It is a case that is very similar in some respects to the present appeal, although the applicant disputes its applicability to the questions raised by him. Johns had agreed to drive another man, Watson, to Kings Cross, where Watson planned to meet an associate, Dodge, and rob another individual, Morriss, of a substantial sum of cash and jewellery. Johns was to hold the property after the robbery until such time as Watson could get away. Johns had been aware at the time that he drove Watson to Kings Cross that Watson went habitually armed with a pistol that was, on the particular occasion, likely to be loaded. During the course of the drive, Watson told Johns that the target of the robbery, Morriss, was himself always armed, and that he, Watson, would not stand for any “mucking around if it came to a showdown”. Johns was aware that Watson was quick-tempered and capable of violence.

72. Johns drove Watson to Kings Cross where Watson joined Dodge. Dodge had a car and he and Watson drove off to another location to confront Morriss. Johns waited for Watson’s return. When he did return, Watson told Johns that he had not gotten the property and “it had gone bad”. Johns discovered the following day that Morriss had had neither valuables nor a gun, but there had been a struggle with the would-be robbers, during which Morriss was shot dead. Johns, who was alleged by the Crown to have been an accessory before the fact, was indicted as a principal pursuant to ss 18(1)(a) and 346 of the Act, and convicted of murder and assault with intent to rob whilst armed. His appeal to this Court against conviction and, separately, sentence, was dismissed: R v Johns [1978] 1 NSWLR 282 (Johns CCA).

73. The Crown had put its case in terms relying on both categories of murder addressed in s 18(1) of the Act. As to the first category, the Crown case was that (Johns CCA at 294):

“the shot was fired by Watson with intent to kill in pursuance of a common design to attack, rob and escape, unrecognised and undetected, and that that contingency or possibility was in the contemplation of all three who engaged upon the common design to effect that purpose.”

74. As to the second pathway, relying on constructive murder, the trial judge summarised the Crown case as follows (ibid at 294-295):

“there was a design to which Dodge and Johns gave their assent and encouragement by which Watson, armed with an offensive weapon, would assault Morriss with intent to rob him; that it must have been within their contemplation that Watson might, during the assault with intent to rob Morriss, produce that pistol, or immediately after the assault he might produce it, whether or not in pursuance of the common design and whether of not intentionally it might be discharged by him. The very fact that he was armed with an offensive weapon when he went to the robbery must, the Crown contends, have meant for them the possibility that in the course of it all somebody might get killed by the discharge of that pistol whether or not it was necessary for the purpose and done for the purpose and whether or not it was intentional or otherwise. If they were engaged in such a purpose of armed robbery, armed assault with intent to rob, and in the course of it Watson fired the pistol, whether or not accidentally and whether or not in furtherance of the common design, so long as it was a contingency which they had in mind, then the discharge of that weapon killing Morriss was murder in the first degree in Watson and to that murder Dodge was an accessory at the fact, or as it is now called a principal in the second degree, and Johns was an accessory before the fact. It is upon the Crown to prove each of these elements if it is to visit Dodge and Johns with complicity in murder by Watson under the second part of the definition.”

75. Both pathways relied on JCE – the first pathway involving a JCE encompassing the possible use of a weapon with an intent to kill, and the second involving a joint enterprise to carry out the foundational offence, but where the Crown contended that the parties together foresaw the possibility of the weapon being discharged. Thus the trial judge gave the jury the following direction (quoted in Johns CCA at 292):

“Where two or more persons thus embark on some joint enterprise, each is liable for the acts done in pursuance of that joint enterprise. So you see there may be a design common to them to achieve the same purpose and so long as the act which is charged as the principal offence is within the ambit of that common design to achieve that common purpose, so long as it is within the scope of the conduct envisaged for the achieving of that common purpose, each party to that common design is responsible for the act that is done by any one of them.”

76. The directions and convictions were upheld by a majority of this Court. Johns then sought leave to appeal to the High Court on both conviction and sentence. Leave was granted but the appeal refused. Two key questions arose as to the convictions concerning the doctrine of common purpose (ie JCE). Those questions, and the Court’s resolution of them, were summarised in the subsequent decision of McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 as follows (at 114-115, citations omitted):

“The first was whether the doctrine extended to an accessory before the fact. The Court held that it did and so held that it was not necessary for a party to be present at the scene of a crime to be acting in pursuit of a common purpose with others who were present.

The second question was whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences. The Court held that the scope of the common purpose did extend to the possible consequences of the criminal venture, but, accepting that the test was a subjective one, held that the possible consequences which could be taken into account were those which were within the contemplation of the parties to the understanding or arrangement. Thus Mason, Murphy and Wilson JJ, after referring to a number of authorities, said:

‘In our opinion these decisions support the conclusion reached by Street CJ, [in the court below] namely, ‘that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention–- an act contemplated as a possible incident of the originally planned particular venture’. Such an act is one which falls within the parties’ own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.’”

77. The Court went on to explain in McAuliffe (at 115) that Johns HC had applied JCE and not EJCE:

“In Johns the Court confined its attention to the scope of the common purpose arising from the understanding or arrangement between the parties. … The Court did not consider the situation in which the commission of an offence which lay outside the scope of the common purpose was nevertheless contemplated as a possibility in the carrying out of the enterprise by a party who continued to participate in the venture with that knowledge.”

78. The applicant in this matter submitted that Johns HC “is not authority for the proposition that accessorial liability principles for an accessory before the fact can be relied upon to prove constructive murder”. He submitted that Johns HC was “a case where an accessory before the fact was properly convicted in circumstances where EJCE principles were applied”. Save for the fact that the decision is best understood as based upon JCE rather than EJCE (as the High Court explained in the passage just quoted from McAuliffe – cf Batcheldor at [128]), the applicant’s submission is correct. That does not mean the case is of no significance for current purposes.

79. Johns had been charged in reliance on s 346 of the Act and was described throughout the judgments in both Johns CCA and Johns HC as an accessory before the fact. Further, a key part of his argument was that JCE principles could not found liability for a person whose role was being an accessory before the fact. The references to him being an accessory before the fact are best understood as describing his role and not the legal basis of his liability. That basis was JCE – ie the doctrine of common purpose – on either of the two Crown pathways. The point was made in the joint judgment of Mason, Murphy and Wilson JJ (at 125, emphasis added):

“The argument does not reveal any reason why as a matter of legal principle or legal conception there should be such a difference. True it is that the common law distinguishes for the purposes of classification between the accessory before the fact and the principal in the second degree, but this classification is quite unrelated to the doctrine of common purpose. The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability. There is nothing in this to suggest that the criterion of complicity and liability should differ as between accessory and principal in the second degree. If they are both parties to the same purpose or design and that purpose or design is the only basis of complicity relied upon against each of them, there is no evident reason why one should he held liable and the other not. In each case liability must depend on the scope of the common purpose. Did it extend to the commission of the act constituting the offence charged? This is the critical question. It would make nonsense to say that the common purpose included the commission of the act in the case of the principal in the second degree but that the same common purpose did not include the commission of the same act in the case of the accessory before the fact.”

80. At the time Johns HC was decided the more careful delineation in the language of present jurisprudence was not undertaken, and terms such as common design, joint enterprise, accessory, or acting in concert were sometimes used more or less interchangeably. It is important not to be misled by the language of the earlier decided cases – it is often the factual scenarios and principles stated which are most informative when considering the bases of criminal liability. In Johns a person who was in fact an accessory before the fact was held liable for murder where one of the two pathways to that verdict was put as constructive murder. That fact tends to undermine an argument that such persons cannot be liable for constructive murder, whilst noting that the legal basis of liability there was different to the pathway articulated in the current case.

81. In one respect Johns HC might be thought to support a requirement – consistently with what was said in Sharah, as addressed below – that for such persons to be liable they must at least foresee the possibility of the use of the weapon and/or of death. That is so because that is how the jury was directed in the case as regards the constructive pathway murder (see above at [74]). However, whether or not such a direction was required was not at issue in either this Court or the High Court. Further, as shall also be explained below, that part of the direction requiring foresight of the possibility of death on the constructive murder pathway was not consistent with R v Surridge (1942) 42 SR (NSW) 278.

Subsequent High Court authority relating to criminal complicity

82. Johns HC was affirmed and built upon in McAuliffe in 1995. There a unanimous bench of the High Court gave what is generally regarded as one of the classic statements of the law of criminal complicity with respect to issues of joint criminal enterprise and extended joint criminal enterprise, stating (at 113–114, citations omitted):

“The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

205. Ground 2 is not made out.

Ground 3 – complaint about directions relating to lack of past convictions

207. The trial judge directed the jury as to the applicant’s absence of a criminal record:

“The next subject is the accused’s lack of a criminal record. You have heard [the officer in charge of the investigation] answer a question in cross-examination to the effect that the accused has no prior convictions. In other words, he has got no criminal record. There is no dispute about this so there is no reason why you would not accept it. Counsel for the accused has submitted, in effect, that this is something you can take into account in the accused's favour, and I can tell you that that is a submission that you are entitled to consider.”

208. The applicant submits that the direction concerned his good character and that it was inadequate for that purpose, since evidence of his good character was “eminently relevant to the question of whether he would have aided and abetted an armed robbery with a dangerous weapon or, worse, murder”.

209. The alleged inadequacy was not the subject of objection and therefore leave to raise the point is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

210. The issue of a good character direction was first raised by the parties in the pre-trial phase, in the context of a contested application by the Crown to admit evidence of a tendency by the applicant to engage in the business of committing drug rips for profit. Counsel for the defence informed the Court that a good character direction would not be sought. On day 15 of the trial, in a different context, the Crown informed the Court:

“the Crown has previously articulated that, if [the applicant] was trying to adduce evidence that would otherwise suggest he was a person of good character that went beyond the issue of his lack of criminal record, the Crown would be raising matters that relate to his bad character, and they relate to the fact that, around this time, he is dealing in drugs, he is threatening to shoot people and, on the surveillance device log … the Crown would draw your Honour's attention to a recording of [the applicant] where he is threatening to go and shoot the new partner of his ex-wife.”

211. The issue arose again on the last day of the Crown case, by which time it appears that the applicant’s counsel had foreshadowed that he would seek a direction of that nature. The trial judge engaged with counsel for the applicant:

“HIS HONOUR: Another matter we might talk about while we are waiting, that direction on character, what am I supposed to say? There is evidence that [the applicant] has no criminal record. What can the jury do about that? Infer that he is a person of good character and therefore is unlikely to have done what the Crown alleges? The jury might think, well, hang on, we’ve heard evidence of his involvement in other activities and it is not conceded, as you have told us, that he has been involved in drug supply.

HUGHES: Your Honour, the Crown wishes to refer to the drug rips conversation and assert that that is evidence that goes against the proposition that the man is a person of good character. My only submission in relation to it, your Honour, is he was 28 years old, he was 26 years old at the time of the offence and he'd never been convicted of a criminal offence. You will listen to the material and make your own mind up about whether he might have had some involvement in minor criminal activity but that is what I will be submitting.

HIS HONOUR: Am I supposed to say you can therefore take into account that he is of good character or just take into account those features--

HUGHES: No criminal conviction. It is a limited--

HIS HONOUR: --that you have mentioned and they are matters that can be taken into account?

HUGHES: That's right. In that sense it is a limited character direction. Mr Hughes relies upon the fact that he had no criminal convictions at the time but, beyond that, I am not going to say anything beyond that, your Honour.

CROWN PROSECUTOR: Mr Hughes wouldn’t be able to say anything beyond that because, in my submission, he would be precluded from saying anything about his activities being limited to the small time dealing because if good character had been relied upon in full, the Crown would have led other evidence of significant drug--

HIS HONOUR: I accept that, but there is evidence as to his lack of conviction.

CROWN PROSECUTOR: Yes.

HIS HONOUR: And that, Mr Hughes would say, is a relevant matter for them to take into account.

CROWN PROSECUTOR: Yes, only that, yes.”

212. The respondent submits that defence counsel, in his closing address, did not ultimately raise good character, even in this limited sense. Rather, the absence of criminal convictions was applied by the defence only to counter the effect of the intercepted phone calls that were relied upon by the Crown as tendency evidence, as is apparent from the following excerpts, which are the only references in the defence closing address to the applicant’s absence of criminal convictions or good character:

“In any event, my submission is … that he was all talk, no walk; all show, no go, it might even be supported by the fact that he hasn’t got a criminal record and there is nothing beyond these conversations that would indicate he actually participated in a drug rip, or drug rips, and there is nothing beyond his talking about matters and being talked to a lot of the time by Mr Khan.

…

What I want to submit to you is that, in relation to those recordings, that it is important that you don't allow them to cloud your mind and distract you from what we submit are the real issues in this trial … None of this tendency really went anywhere, in terms of the content of it. When one has regard to the evidence of Mr Phillips, no-one was ever charged in relation to it. There was some referral off to another branch of the police force. Apparently nothing came back; certainly nothing is in evidence about the results of that. But [the applicant] wasn’t charged, Mr Khan wasn’t charged with any offence arising out of this.

As I said to you yesterday, these are experienced police people who were listening to these calls, well enough seized, you might think, of whether material like that is capable of leading to any kind of charge, whether conspiracy, attempt, actual participation in a robbery … . At the end of the day, nothing came from these calls which were some long time ago now. There has been no follow-up, no charging. No further significant matter has happened in relation to these calls. No-one has been convicted.”

213. Evidence of good character can be relied upon by the jury to determine whether they are satisfied of the guilt of the accused. When given, the standard direction on good character informs the jury that it is available for that purpose: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 per Hayne J at [151] and [156]. However, there is no rule of law that in every case in which evidence of good character is given, the trial judge must give a direction as to how it is to be used: Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 per the Court at 333; Melbourne per Hayne J at [157]; [Decision Restricted] [2022] NSWCCA 259 per Beech-Jones CJ at CL at [36].

214. It is apparent from the exchanges between defence counsel and the trial judge that the direction sought was, at its highest, one of limited good character, based on the simple fact that the applicant had no prior convictions.

215. To the extent that the direction given could be characterised as one involving the applicant’s good character, this was not a case where it was appropriate to direct the jury that, if they were satisfied that the accused was a person of good character, it was open to them to reason that he was less likely to have committed the offences. Had counsel for the applicant sought such a direction, the Crown foreshadowed that it would call further evidence of the applicant’s bad character. The jury then would have received a direction concerning contested good character.

216. The direction, as given, reflected the understanding between the trial judge and the parties as to the limited nature of the purpose for which it was being sought, which was consistent with how the defence referenced the applicant’s absence of criminal convictions in his closing address and the absence of complaint by defence counsel to the direction.

217. Accordingly, we would refuse the leave to raise this ground that is required by r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 4 – unreasonable verdict

218. Ground 4 asserts that the verdict on count 1 was unreasonable, or cannot be supported, having regard to the evidence. In this case the unreasonable verdict ground was put in a very particular way, being relevantly as follows:

“If the Court is of the view that accessory before the fact cannot be combined with constructive murder, the verdict was unreasonable because:

(1) The offence charged was murder, which is an offence known to the law.

(2) The basis of the derivative liability coupled with constructive murder relied upon by the Crown was not properly available to prove murder as a matter of law.

(3) The Crown did not contend for conviction on any other basis.

(4) A conviction for murder would not be open on the evidence on any other basis (including extended JCE which it is argued is not available where the offence prosecuted is constructive murder: see Mitchell v The King and R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202).”

219. As senior counsel for the applicant accepted in oral submissions, the significance of ground 4 being raised in this case was that it was “another way of saying if we win on ground 1 there should be an acquittal, because it also means that guilt wasn’t established beyond reasonable doubt”.

220. One issue with the applicant’s argument is that the charge in count 1 of the indictment presented to the jury was murder contrary to ss 18(1)(a) and 346 of the Crimes Act (see above at [29]). True it is that the latter provision refers to the liability of an accessory before the fact. But the same provision was invoked in Johns where, as explained above, liability was made out based on the doctrine of JCE where Johns was in fact an accessory before the fact but that was not the basis of his liability. Thus the invocation of s 346 in this indictment should not be regarded as having limited the Crown to relying just on accessorial liability. Moreover, the applicant was charged with murder, not constructive murder. Different pathways to a conviction were and are open under the indictment as framed at trial. The applicant did not contend to the contrary.

221. It was thus open to the Crown to have relied on at least a JCE pathway, as it initially proposed to do. It is neither necessary nor appropriate to consider whether an EJCE pathway would be open to the Crown on a retrial in light of Mitchell – that is a matter of some complexity and was not the subject of any significant argument in this Court. As we discuss below, a strong potential case can be made against the applicant based on at least on the doctrine of JCE. Indeed, the difference between that case and the case actually made to the jury is slight. Although the applicant submitted that a conviction “for murder would not be open on the evidence on any other basis”, the applicant did not argue that on all of the evidence it could not have been open to the jury to be satisfied of his guilt of murder beyond reasonable doubt in terms of JCE, if that pathway had been raised and the subject of appropriate directions.

222. In substance, the applicant is seeking to turn a legal argument about the unavailability of the one chosen pathway into a conclusion that the jury verdict was unreasonable. The relevant appeal ground under s 6(1) of the Criminal Appeal Act is that the verdict was “unreasonable, or cannot be supported, having regard to the evidence”. The question that an appellate court must ask itself as regards that ground is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. The applicant’s argument in effect is that because the conviction cannot be upheld, based on the trial as it was run, that necessarily means the verdict was unreasonable and there must be an acquittal.

223. The reference to being guilty in M means guilt of the offence charged. When another type of appeal ground is upheld it means that the trial has gone wrong in some way, implying that any retrial is to be conducted on a different basis. The fact that the trial has gone wrong does not of itself mean that the jury’s verdict was unreasonable or cannot be supported having regard to the evidence. Were it otherwise, the first limb of s 6(1) would tend to swallow the other two, and would undermine the power of the appellate court to order a retrial pursuant to s 8(1) of the Criminal Appeal Act. Exercise of that power depends on the court being persuaded that “having regard to all the circumstances, such miscarriage of justice [as has occurred] can be more adequately remedied by an order for a retrial than by any other order which the court is empowered to make”.

224. The problem here is that the Crown pursued one pathway to guilt which, upon analysis, was not open. Not dissimilarly, in The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 an appeal had been upheld on various grounds which included that a foundational offence was not known to the law (see at [48]). Yet a majority of the High Court ordered a retrial. Even closer to the case at hand is Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282. In that case – conversely to the current matter – the Crown pursued a JCE pathway that was not available, where it could have asserted accessorial liability (see at [4]-[6] and [42]). The High Court held that the proviso could not be relied upon but ordered a retrial. Whilst the argument put here was not advanced there, we do not consider that cases such as that one and this must automatically result in an acquittal based upon characterising the result as unreasonable because a wrong legal pathway was advanced by the prosecution. Rather, such issues are to be assessed in considering whether or not the Court should exercise its discretion under s 8 to order a retrial. That issue is addressed below.

225. Ground 4 is rejected.

Conclusion and orders

226. The applicant has made out ground 1, alone. As a consequence the conviction on count 1 for murder cannot stand. The conviction on count 2, for the foundational offence, is unaffected.

227. The question then is whether a retrial on count 1 should be ordered in the Court’s discretion having regard to s 8(1) of the Criminal Appeal Act. A range of factors may be relevant to the exercise of that discretion: see eg Castagna v R [2019] NSWCCA 114 at [190]-[204].

228. The charge of murder – even for someone not present at the scene – is a very serious one. There is a substantial public interest in a person charged with such an offence being tried before a properly directed jury: note Taufahema at [49]-[51].

229. There appears to be a strong potential case against the applicant for murder based on JCE. The core facts of the matter are outlined above at [8]-[25], and the facts found by the trial judge for sentencing were set out at more length in his Honour’s sentencing judgment. The key additional requirement for a JCE pathway would be establishing an agreement between the applicant and Coskun that the foundational offence would be committed. There was strong evidence indicating such an agreement. Notably, the conversation involving the applicant recorded on 28 June 2019, and set out at length above at [21], is evidence of the following: that on the night in question Coskun had explained the planned break-in and theft to the applicant; the applicant supplied Coskun with a loaded Glock “extended clip” handgun and a high vis shirt; that the applicant was himself going to participate in the robbery but pulled out at the last minute; the applicant supplied the gun and shirt because he needed money; and that even after the applicant pulled out of participating himself, Coskun said “I’ll get something out of it and I’ll bring it to ya”.

230. This is not a case where the applicant “would be called upon to meet a quite different case to that presented against him at trial”: cf Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 519; see also Taufahema at [67]-[68]. As already noted, there is only a fine difference between the pathway advocated below and a JCE route. As the Crown submitted, such a case would not require a substantial amendment to the indictment: cf Parker at 520. As noted, the situation here is the converse of that considered in Handlen, in which a retrial was ordered.

231. It is true that the Crown made a deliberate decision to confine its case to accessorial liability, disavowing reliance on JCE. But here, as in Taufahema, what “has happened may be regrettable and undesirable, but it is not sinister” (see at [68]). The Crown’s decision was made after it had proposed to pursue three different pathways, one of which was JCE (see above at [35]). The applicant himself had sought a stay in part on that basis, arguing that such an approach “will result in a very complicated series of directions and will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to follow”, and would “jeopardise the safety of any verdict” (quoted in Stay J [22]). In his ruling on the stay application, the trial judge indicated that “[t]he multiple forms of liability proposed by the Crown create a considerable degree of complexity and potential for confusion” (ibid [26]). The Crown’s choice was thus made taking account of submissions made by the applicant and with the benefit of a large hint from the trial judge (which had been given prior to his Honour delivering reasons).

232. Moreover, it is also relevant that the legal issues raised in this case are difficult and fine ones. This is not a case where it can be said that the Crown should be fixed with the result of some forensic decision made with full knowledge of the consequences. Incidentally, if the Crown had persisted with maintaining three pathways, where one was unavailable, the verdict would still have had to be overturned, just as it was in Mitchell (where one of two pathways was not available at law). A retrial was ordered in Mitchell.

233. The applicant has been in custody since 21 August 2019. The sentence imposed on him was 14 years, with a non-parole period of 10 years and six months. He has over nine years left to serve of his head sentence. It cannot be said then a retrial could lead to no further punishment. Further, two years of that detention were served concurrently for both counts on the indictment. A trial some five years after the events in question is not an inordinate delay.

234. In all the circumstances a retrial on count 1 should be ordered.

235. A question then arguably arises as to whether the sentence for count 2 should also be set aside, in light of the fact that the trial judge said the following in sentencing the applicant for that offence (SJ [128])

“In applying the principle in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49] (as reviewed recently by Beech-Jones CJ at CL in Darcy v R [2022] NSWCCA 54 at [9]) and to avoid double punishment for the attempted robbery which was also the foundational offence for the murder, I propose to assess a sentence for the attempted robbery offence that is nowhere near what would normally be appropriate if sentencing for that offence alone. It will be a fixed term of imprisonment because there is no utility in nominating part of it as a non-parole period.”

236. As that paragraph illustrates, sentencing for the foundational offence could not have been, and was not, separated from sentencing for the murder charge. In a further supplementary submission the Crown indicated that in the event that the conviction on count 1 was quashed it did not seek that the sentence on count 2 also be quashed, taking account of the following matters in particular: the two counts concern different victims; the sentence on count 2 was made wholly concurrent with that for count 1; and the sentence on count 1 expired more than two years ago. Given the Crown’s position the issue need not be considered further.

236. A conceivable issue arises as to whether it is necessary or appropriate to address issues of bail in circumstances where the applicant’s conviction is quashed, a retrial is ordered, and he is no longer imprisoned under sentence: cf Bail Act 2013 (NSW), s 12(2). For the avoidance of doubt an order will be made refusing bail, doing so without prejudice to any future bail application in the Supreme Court.

237. The orders of the Court will be as follows:

1. To the extent necessary grant leave to appeal, other than with respect to ground 3.

2. Dismiss the appeal with respect to count 2 on the indictment.

3. Uphold the appeal with respect to count 1 on the indictment.

4. Quash the applicant’s conviction on count 1.

5. A retrial is on count 1 is to be had.

6. The matter is listed in the arraignment list of the Supreme Court on Friday 7 June 2024 to fix a fresh trial date.

7. Pending any application for release, bail is refused.

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Endnotes

Decision last updated: 10 May 2024