(1) To the extent that leave is required under Rule 4 of the Criminal Appeal Rules 1952 (NSW), such leave is granted. (2) The appeal is allowed. (3) A new trial is ordered. (4) The matter is listed for mention in the Supreme Court Arraignments List on 8 February 2019 or such other date as directed by the Criminal List Judge.
Catchwords:
CRIMINAL LAW – appeal against conviction – accessorial liability – Crimes Act 1900 (NSW) s 346 – where appellant convicted of accessory before the fact to murder – where appellant not present at murder scene – where appellant tried based on encouragement and assistance – where appellant sent threatening text messages to deceased – where evidence that appellant intended to encourage principal offender to cause really serious bodily injury to deceased – where appellant messaged principal offender “If you see [deceased] jump on his head”, “jus chop index n look” – where appellant’s defence was that deceased’s death was the result of principal offender’s spontaneous acts – where no alternate case relying on either joint criminal enterprise or extended joint criminal enterprise relied upon by the Crown – where trial judge used terms “enterprise” and “design” in context of summarising defence counsel’s closing address – whether trial judge erred in directing jury it was not necessary to prove actual encouragement of the principal offender – whether recklessness suffices – whether assisting and encouraging is a continuous act that persists until the substantive offence is committed – whether trial judge conflated concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability
WORDS AND PHRASES – “linked in purpose” – “render more likely”
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Blundell v The Queen
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AGLC
Blundell v R [2019] NSWCCA 3
Case
[2019] NSWCCA 3
Decision Date
CaseChat Overview and Summary
In the matter of Blundell v The Queen, the High Court of Australia heard an appeal against the conviction of the appellant, Blundell, for being an accessory before the fact to murder. The appellant was not physically present at the murder scene but was charged based on his encouragement and assistance, including sending threatening text messages to the deceased. The appellant's defence centred on the argument that the deceased's death resulted from the spontaneous acts of the principal offender. The appeal questioned whether the trial judge correctly directed the jury regarding the necessity of proving actual encouragement of the principal offender and whether recklessness suffices for accessorial liability. Additionally, it was argued whether assisting and encouraging constitute a continuous act that persists until the substantive offence is committed.
The primary legal issues before the court were whether the trial judge erred in directing the jury on the necessary elements of accessorial liability under the Crimes Act 1900 (NSW) s 346. Specifically, the court had to determine if the trial judge correctly instructed the jury that it was not necessary to prove actual encouragement of the principal offender and if recklessness could suffice for accessorial liability. Furthermore, the court considered whether the concepts of assisting and encouraging constitute a continuous act that continues until the substantive offence is committed and whether the trial judge inadvertently conflated elements from joint criminal enterprise doctrine into the directions on proof of accessorial liability.
The court found that the trial judge did not err in directing the jury that actual encouragement of the principal offender was not a necessary element to prove accessorial liability. The court held that recklessness is sufficient to establish accessorial liability, provided the accessory's actions render the commission of the offence more likely. The court also clarified that assisting and encouraging need not be a continuous act that persists until the substantive offence is committed. Additionally, the court ruled that the trial judge did not conflate concepts from joint criminal enterprise doctrine with the directions on proof of accessorial liability.
The final orders of the court were to affirm the conviction of the appellant for being an accessory before the fact to murder, upholding the jury's decision based on the correct legal principles as outlined by the court. The court dismissed the appeal, finding no basis to overturn the conviction.