Brown v The Queen

[2019] NSWCCA 185

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Brown v R [2019] NSWCCA 185
Hearing dates:	22 July 2019
Date of orders:	12 August 2019
Decision date:	12 August 2019
Before:	Basten JA at [1]; Johnson J at [2]; Price J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – joint criminal enterprise – two counts of firing a firearm in a public place – jury trial – verdict of not guilty on first shooting but verdict of guilty on second shooting – circumstantial case – whether verdicts inconsistent – whether verdict of guilty open to the jury – intermediate fact of knowledge that the co-offender possessed a firearm – an issue in the first shooting but not the second – whether other reasonable possibilities inconsistent with guilt
Legislation Cited:	Crimes Act 1900 (NSW) ss 93G, 154A, 195
Cases Cited:	AH v R [2019] NSWCCA 152 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Libke v R (2007) 230 CLR 559; [2007] HCA 30 Sio v R [2015] NSWCCA 42 The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35
Category:	Principal judgment
Parties:	Tylan Brown (Applicant) Regina (Respondent)
Representation:	Counsel: Mr K Averre (Applicant) Mr D Patch (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/39674
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 February 2018 Before: Haesler SC DCJ File Number(s): 2017/39674

Judgment

1. BASTEN JA: I agree with Price J.

2. JOHNSON J: I agree with the reasons of Price J and his Honour’s proposed orders. Having considered the record of the trial, it was clearly open to the jury to be satisfied of the guilt of the applicant on count 2.

3. PRICE J: The applicant, Tylan Brown, was arraigned on an indictment containing the following four counts:

1. That on 3 February 2017, at or near Dapto, he did allow himself to be carried in a motor vehicle, knowing that it was taken without the consent of the owner, contrary to s 154A(1)(b) of the Crimes Act 1900 (NSW).

2. That on 3 February 2017, he did fire a .22 calibre firearm in a public place, namely Wyndarra Way, Koonawarra, contrary to s 93G(1)(b) of the Crimes Act.

3. That on 3 February 2017, he did fire a .22 calibre firearm in a public place, namely Dale Street, Penrose, contrary to s 93G(1)(b) of the Crimes Act.

4. That on 3 February 2017, at Calderwood, he did intentionally destroy by means of fire, a Toyota Prado, contrary to s 195(1)(b) of the Crimes Act.

4. A jury trial commenced on 20 February 2018 before Haesler SC DCJ (“the trial judge”) in the District Court. On 27 February 2018, the jury returned verdicts of guilty for counts 1 and 2 but acquitted the applicant of counts 3 and 4. On 18 May 2018, the trial judge sentenced the applicant to an aggregate term of imprisonment of 4 years 3 months with a non-parole period of 2 years 9 months.

5. The applicant seeks leave to appeal against his conviction on count 2. The sole ground of appeal is that:

“The verdict of guilty on Count 2 is unreasonable and cannot be supported having regard to the evidence”.

An overview of the trial

6. The charges arose from two “drive by” style shootings from a stolen motor vehicle, namely a Toyota Prado, on the evening of 3 February 2017. The first shooting was alleged to have occurred at Dale Street, Penrose (count 3), and the second shortly thereafter at Wyndarra Way, Koonawarra (count 2). It was not disputed at trial that the two shootings occurred.

7. For counts 2, 3 and 4, the Crown case was that the applicant and Matthew McGarrigle (“the co-offender”) were the participants in a joint criminal enterprise in the shootings that occurred in Dale Street (count 3) and, Wyndarra Way (count 2) and the destruction by fire of the stolen motor vehicle (count 4).

8. The Crown did not contend that the applicant was the person who fired the shots or the one who actually lit the fire that destroyed the vehicle. The Crown case was that there was understanding between the applicant and the co-offender amounting to an arrangement or agreement between them that they would commit the crimes, and that the co-offender fired the shots in accordance with that agreement.

9. The applicant did not give evidence in the trial nor did he call evidence in his case. His trial counsel told the jury in his closing address:

“You cannot take a broad brush approach to the evidence… There is a single issue in this trial, and that is whether [the applicant] knew that somebody in the car was going to commit the offences on the indictment and with that knowledge, joined in a criminal enterprise with someone else.”

10. His trial counsel quoted what the applicant said to the police after his arrest:

“You know I can't be a dog. It's fucked that I'm locked up because he won't own it. I was in the backseat of the car. He drove to a house in Penrose, pulled a gun out, and just started shooting. Then we drove to a house in Kanahooka and he started shooting again. I have no idea why. I didn't know he was going to shoot the gun.”

11. Immediately thereafter, his trial counsel pointed to the applicant’s phrasing and addressed the jury:

“The key words there, ladies and gentlemen, are ‘just started shooting’, ‘I have no idea why’. He has no knowledge that [the co-offender] was going to do what he did. Picking up on the words ‘just started shooting’ are the words of a man who is surprised...”

12. The applicant’s trial counsel went on to contend that the Crown had not proved beyond reasonable doubt that the applicant was a party to the alleged joint criminal enterprise and nor had the Crown proved beyond reasonable doubt that the applicant knew that the co-offender was in possession of the gun:

“This is clearly a case, ladies and gentlemen, where he had no knowledge that the crime was, or is to be, committed. What you have here is no evidence that [the applicant] intentionally assisted or encouraged another participant in the joint criminal enterprise to commit the crime.

There is no evidence [the applicant] sought to encourage others to participate in the joint criminal enterprise. The Crown case fails in those circumstances where you cannot disprove the alternative reasonable hypothesis that is put forward by [the applicant]. One might think that if he was part of an agreement, that he would play some role in that enterprise. There is no role here to play for a rear passenger.

There is no evidence that the person in the rear passenger [sic] plays any role during this incident. It's submitted that being a mere passenger with no knowledge of what was going to happen is simply not enough. Remember the firearm used in the offence was a very small calibre. You got that evidence yesterday from Officer Wilson. In fact he said it was one of the smallest available, and below that was an air rifle.”

13. Immediately thereafter, the applicant’s trial counsel referred to the evidence of Detective Sergeant Wilson about the gun:

“He also gave evidence that the calibre could be inserted into a small ladies gun. A small ladies gun that, you might think, [the co-offender] had secreted on him during the course of the night, you might think [the applicant] had no knowledge that he had the gun on him that evening…”

14. His trial counsel put to the jury that an alternative hypothesis was that the applicant was being taken home by the co-offender who took a detour without notice to him, that he was surprised by what happened that night. He was a rear seat passenger in the vehicle without knowledge or control. Trial counsel submitted that the Crown had established no more than the applicant was hanging out with friends and that he was being taken along for a ride but was not a participant in the shootings.

15. During the lunch adjournment of the closing address by trial counsel for the applicant, a jury note was received which asked:

“Why did the police not chase up Carly Horn? She seemed to be a key witness and could also have been the shooter. She could also have confirmed whether they knew about the gun prior to Penrose.”

16. In relation to the jury note, his Honour instructed the jury:

“… [DS Wilson] tried to find her and couldn’t’, she was of no fixed address, he checked the police computer, she was last heard of in Queensland, but he didn’t think she was there. The only evidence we have is that the police were aware of her and they looked for her but didn’t find her. Whether you accept that explanation or not is a matter for you.”

17. In his Honour’s summing up, the jury was instructed that there were four charges which needed to be separately considered and different verdicts could be returned on different counts.

18. The trial judge’s careful directions on joint criminal enterprise to the jury included as to counts 2, 3 and 4 that they must be satisfied beyond reasonable doubt that the applicant knew what the co-offender was doing and he agreed to and did participate as part of a joint criminal enterprise in the co-offender’s criminal activity.

19. The Crown relied on circumstantial evidence. The trial judge instructed the jury that they could not find the applicant guilty on a count unless they were satisfied beyond reasonable doubt there was no reasonable explanation of the evidence other than the applicant’s guilt.

20. As the issue on appeal is narrowly confined, I do not propose to detail all of the evidence in the trial but will provide a chronological summary of the evidence in the Crown case.

Prior to the shootings

21. On 3 February 2017, the co-offender stole a blue Toyota Prado from the home of Robert Kennedy in Dapto and picked up the applicant from the applicant’s house in Koonawarra. The verdict of guilty in respect of Count 1 has not been challenged and the jury was satisfied beyond reasonable doubt that the applicant knew the vehicle had been stolen when he was being conveyed in it.

22. DS Wilson read onto the record a statement made by the mother of the applicant, Marchialee Brown, dated 13 September 2017. Her statement indicated that the applicant had told her he was “going out with [the co-offender]” who was his “best friend”, and further:

“I heard a car horn sound at the front of the house. I got up and looked out the door. I saw a large blue four-wheel wagon parked at the front of the house. The bottom panels of the car were silver and the top of the car was bright blue. The car had accessories and it looked like it was set up for four-wheel driving. There was a Rhino-type roof rack. I had not seen the car before. The car was facing north. I saw that [the co-offender] was driving the car.

I came back inside and yelled out to [the applicant], ‘[the co-offender] is here.’ [The applicant] came back out to the lounge room and said, ‘Tell [the co-offender] I’ll be a couple of minutes. I’m trying to find my sunglasses.’ [The applicant] went back into his room. I went back to the front verandah. [The co-offender] wound the front passenger window down. I held two fingers up and said, ‘[the applicant] will be two minutes.’

…

[The applicant] then went out to the front to the blue four-wheel drive. I went to the door and watched him. [The applicant] went to the front passenger door of the car and opened. He then closed the door without getting in and opened the back passenger door.”

23. It was conceded that at about 8.30pm, the applicant was seen at the Advance Fuel service station, located on Lakeside Drive in Kanahooka, refuelling a blue four-wheel drive. CCTV footage depicted him wearing a grey jumper at that time.

24. Shannon Hinton told the court that when she saw the applicant at the service station, there was a “guy in the car with sunglasses on” sitting in the driver’s seat or front passenger seat, and a girl with “long, blonde hair” sitting in the back behind the driver.

25. Kiara Richardson, the applicant’s partner, gave evidence that at around 10.30pm to 11.00pm she received a Snapchat video from the applicant, which showed the co-offender driving, Carly Thompson (later identified by police as Carly Horn) in the front passenger seat, and the applicant in the back seat behind the co-offender. Written across the screen were the words “I got my mate’s back #R4W”. After refreshing her memory from her statement to police on 7 February 2017, Ms Richardson told the jury that she understood “R4W” to mean “ready for war”.

26. A selection of communications from Ms Richardson’s mobile phone was tendered as exhibit 2, including a text message at 11.05pm referencing the contents of the Snapchat video.

27. In cross-examination, Ms Richardson agreed that she might have gotten the words on the screen of the Snapchat video incorrect because she was focussed on who was in the car with the applicant. She said that the applicant had “R4W” tattooed on his neck and that she had not heard the applicant say it before, but had seen the expression “R4W” in writing. She said that she did not know “R4W” meant “ready for war”, agreed that she had guessed its meaning and agreed it could also mean “ready for whatever”.

The first shooting (count 3)

28. The first shooting occurred at 4 Dale Street, Penrose on 3 February 2017.

29. The first phone call to police after the shooting was made by Hayley Townsend at 11.25pm.

30. DS Wilson had obtained a statement from Ms Townsend, which was read onto the record, describing a “dark coloured 4WD-wagon” and stating that she “saw three people in the car… at least, one person in the back”.

31. Jacqueline Roberts’ statement was partially read onto the record by DS Wilson as follows:

“…It was late. I can’t remember the exact time.

Kala and Adam were going home. I had just put the baby to bed. I went out and had a drink and a smoke with Hayley who lives in the unit next door. I could see down the driveway from where I was sitting. I heard a car drive past the front of the units. It was rolling slowly…

…The car which I had seen cruise down the street pulled up at the letterbox. It was a large blue or black four-wheel drive wagon. I saw the window of the four-wheel drive wind down. I’m not sure if it was the front or the back. I think it was the front passenger window. I could see two or three others in the back. I could only see figures and not faces.

I saw a hand come out of the window of the four-wheel drive. The hand had something in it which was about 9 to 10 inches long. It was enough to hold in the hand with a bit of poking out the front. I heard about three bangs which I thought were firecrackers. I heard one bang and then I heard another two in quick succession. I walked out the front to see what was happening. I saw the four-wheel drive speed away…”

32. Peter Carter Senior lived at the location of the first shooting. He told the jury he was present during the shooting with his partner Jacqueline Roberts, his daughter, Kala Carter, and her partner, Adam Dowley.

33. He said that Ms Roberts had yelled out his name and told him that she had heard “gun fire” and that she heard “the windows cracking in the car”.

34. Kala Carter had been leaving Mr Carter Senior’s home at the time of the shooting. She gave evidence that she saw a dark coloured four-wheel drive, containing three people all wearing hoodies. She recalled telling police that she was looking in her rear-vision mirror, and just after the four-wheel drive stopped at the entrance to Mr Carter Senior’s driveway, she saw someone lean out the front of the passenger window before she heard the bangs.

35. Mr Carter Senior then went outside to look at his car. He saw that there were two holes in the back tailgate and “no windows through the canopy into the actual car”.

36. He gave evidence that he then telephoned Mr Dowley and was told by him that it was a blue or black four-wheel drive that was involved in the shooting.

37. Mr Carter Senior hung up and telephoned his son, Peter Carter Junior. Mr Carter Junior was babysitting Stacey Roberts’ children at her home, located at 20 Wyndarra Way, Koonawarra. Mr Carter Senior told his son that their car had just been shot and that a blue or black four-wheel drive was involved. Mr Carter Senior told the jury that his son said he had seen a blue four-wheel drive just go past, that he would turn out all the lights and put the kids in the back rooms.

The second shooting (count 2)

38. The second shooting occurred at 20 Wyndarra Way, Koonawarra.

39. Maps of the region were tendered and the evidence of Mr Carter Senior was that the distance by car from 4 Dale Street to 20 Wyndarra Way was “about 5km”.

40. DS Wilson read onto the record the statement of Senior Constable Tacko dated 10 February 2017. SC Tacko’s statement recorded that at about 11.33pm a “blue Mitsubishi Pajero” was driving up and down the area of 20 Wyndarra Way. At about 11.42pm, SC Tacko heard over the police radio that a shot had been fired.

41. Mr Carter Junior was on the veranda of Ms Roberts’ premises at 20 Wyndarra Way, which is a “u-shaped street”. He told the jury whilst he was speaking to his father on the telephone he saw a blue four-wheel drive pull-up across the road. He said the vehicle “sat there for about a minute”. He gave evidence that the vehicle then went around the block, returned and parked out the front of the letterbox. The second shooting occurred and the vehicle drove off.

42. At about 11.40pm Mr Carter Junior called the police. A recording of his triple-0 call was played to the jury, in which he stated that he heard a single gunshot, fired from either a “Commodore” or “Prado”.

The stolen vehicle is found alight

43. SC Tacko recorded in his statement that at 12.41am (on 4 February 2017) he heard a message over police radio about a vehicle being on fire outside 503 Calderwood Road. At 12.51am, he and another police officer found the blue Toyota Prado at that address totally engulfed by flames. He noted the number plate, and DS Wilson confirmed in evidence that the car belonged to Robert Kennedy.

44. Mr Kennedy gave evidence that he was notified by police on 4 February 2017 that his Toyota Prado had been stolen, and that it had been found burnt out at Calderwood.

After the events

45. Ms Richardson gave evidence that at 2.11am, on 4 February 2017, she received a text message from the applicant which said:

“Got to go. Got to snap my SIM card…”

46. She told the jury that the applicant came to her house around midday on 4 February 2017 and that he “seemed really tired”. At 11.00pm, the co-offender arrived at her home. The applicant left with him at that time and returned at around 2.00am.

47. Senior Constable Atkins gave evidence that on 7 February 2017 he spoke to the applicant in the custody area of the Lake Illawarra Police Station. SC Atkins, said that he said to the applicant:

“…we have information you and [the co-offender] were involved in the shootings. Do you want to talk about it?”

48. To which the applicant responded:

“You know I can’t be a dog. It’s fucked. I’m locked up because he – he won’t own it. I was in the back seat of the car. He drove to a house in Penrose, pulled a gun out and just started shooting. We then drove to a house in Kanahooka and he started shooting again. I’ve no idea why. I didn’t know he was going to shoot the gun. I don’t think it’s fair that I get in trouble when I didn’t do the shooting…”

49. DS Wilson confirmed that a crime scene officer, Senior Constable Walker, had collected two .22 calibre cartridges at 4 Dale Street and one .22 calibre cartridge at 20 Wyndarra Way. DS Wilson told the jury that .22 was generally the smallest calibre that could be bought commercially and agreed that it could be used in a “lady’s pistol or handgun”.

Gaol calls

50. A recording of a conversation between the applicant and Ms Richardson on 17 February 2017 was tendered. That call, which was admissible on the basis it was relevant to the applicant’s knowledge of the co-offender’s motive prior to the shootings, included an exchange as follows:

“Applicant: You know, I reckon who it is.

Ms Richardson: Who.

Applicant: I reckon its gunna be Brittany and Les.

Ms Richardson: You reckon.

Applicant: Yeh because Les is Peter’s cousin.

Ms Richardson: Oooh.

Applicant: That’s when that’s when Peter offered Matt out, when Matt was at Brittany’s. That’s when I was in Queensland. Matt, Baker and Scott [were] there apparently. Peter offered him out and he shit himself.

Ms Richardson: Ooh yeh Brittany, Brit was telling me about that.

Applicant: Yeh and Matt shit himself and goes I’m gunna get him blah blah blah… That’s the reason why he done it.

Ms Richardson: Yeh she’s tellin me about that.

Applicant: Yeh, You know what I mean. And then here it… Yeh … Fucked up huh…

Ms Richardson: He’s an idiot…”

51. Another recorded gaol call between the applicant and Ms Richardson on 18 February 2017, was admitted. The transcript of that call includes the following:

“Applicant: [speaking to a male in the background] Yeh it was a drive by.

Male in background: You were in the car?

Applicant: Yeh I was in the back, I was smashed [though] and he pulls up and my ears are ringing and he just started peppering the house.”

52. A recording of a gaol call between the applicant and Brody Dennet made on 1.19pm on 13 March 2017 was tendered and included the following:

“…

Applicant: That’s it bro. That’s what I said. I said to Matt you believe it. You talking shit on the truck. He said aww aww aww nah I didn’t say that. I said well I fucking rang Caitlyn and saying that she got told that you told her that you know what I mean. I said. Like at the end of the day you do the crime you do the time. When I was trying to drill him saying you’re going to go to gaol he was like aw it is what it is you know trying to be… When I was at Wollongong cells I said to him do the crime do the time. Put your hand up … because I’m not, you’re not sinking me. You know like, you know what I mean.

Caller: Hmmm.

Applicant: I was just. I was just. Yeah bro. I didn’t even do nothing. I wasn’t fucking driving. I wasn’t doing a fucking thing. End of the day put your fucking hand up. You’re not sinking me.

Caller: Yeah.

Applicant: Do you know what I mean. That’s what he needs to get. Like fuck bro.”

Argument

53. The applicant accepted that leave to appeal was required. The applicant pointed out that notwithstanding the numbering of the counts on the indictment, count 2 was the first shooting in time. The applicant did not dispute that two shootings occurred at Dale Street, Penrose and Wyndarra Way, Koonawarra on 3 February 2017 and that he was in the vehicle from which the shots were fired. Furthermore, it was not disputed that the applicant’s presence in the vehicle was sufficient to support a finding by the jury that the applicant participated in a joint criminal enterprise. The only element in dispute was whether there was sufficient evidence to establish beyond reasonable doubt that the applicant had agreed to commit the offence the subject of count 2.

54. The applicant argued that this was a case where the Crown relied upon a joint criminal enterprise and was required to prove beyond reasonable doubt that there was an agreement. The applicant contended that the evidence of the agreement in the Crown case was found in the lead up to the commission of the first shooting.

55. The applicant contended that on the available evidence and in light of the not guilty verdict on count 3, the guilty verdict on count 2 was unreasonable and could not be supported. The nub of the appeal, the applicant argued, was the evidence between the two shootings. The only additional evidence between the two shootings was submitted to be that the applicant was now aware of the gun; he was still in the vehicle at the time of the shooting and the distance between 4 Dale Street, Penrose and 20 Wyndarra Way, Koonawarra was about 3.1km.

56. The applicant submitted that the knowledge of the weapon, following his presence at the first shooting did not permit an inference that he knew there would be a second shooting nor that he agreed to it, that there was an absence of evidence as to what occurred in the vehicle between the two shootings and that his remaining in the vehicle was not sufficient to prove any agreement in relation to the second shooting. The applicant asked that even with the knowledge of the first shooting, what evidence was there to support the assertion that he must have known that the shooter was likely to fire a second time? It was put that there may well be a number of possibilities as to why he would remain in the vehicle after the first shooting. A reasonable possibility was that after the first shooting, the applicant did not know the co-offender was going to fire the firearm at another location. He remained in the vehicle out of shock and/or because he feared repercussions from the co-offender whom he now knew had the firearm.

57. The Crown made reference to Libke v The Queen [1] and pointed out that the question is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The Crown argued that the mere availability of an alternative hypothesis does not mean that the jury must have accepted it and contended that the jury were entitled to differentiate between the first and second shooting.

    1. (2007) 230 CLR 559; [2007] HCA 30.

58. The Crown submitted that the logical explanation for the acquittal on count 3 was that when the applicant spoke to police he had denied any knowledge of the fact the co-offender had a gun and that the jury were entitled to have a doubt on that issue. The Crown submitted however, once the gun had been fired in the presence of the applicant in the first shooting (count 3), the jury were entitled to take that extra evidence and regard it as sufficient to dispel any reasonable doubt they did have in respect of the first shooting and convict the applicant on the second shooting (count 2), which was alleged to have occurred about 15 minutes later.

Consideration

59. In considering the applicant’s appeal against conviction, the Court is required to examine all of the evidence in determining whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. In Sio v R,[2] Leeming JA summarised the legal principles applicable to deal with a ground of appeal that a verdict was unreasonable. His Honour said at [40]:

“This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether ‘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; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13].”

2. [2015] NSWCCA 42.

60. In Libke v R,[3] Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised (at 596-597) that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the applicant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

    3. (2007) 230 CLR 559; [2007] HCA 30.

61. The High Court emphasised in The Queen v Baden-Clay [4] that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step “…not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”. [5] The Court said at [66]:

“With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court 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.’” (Footnotes omitted.)

4. (2016) 258 CLR 208; [2016] HCA 35.

5. The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35 at [65].

62. The doctrine of joint criminal enterprise was explained in Gillard v The Queen [6] by Hayne J at [110]:

“In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the 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, all are equally guilty of the crime regardless of the part played by each in its commission.”

6. (2003) 219 CLR 1; [2003] HCA 64.

63. The members of the jury were instructed to consider each count separately.

64. Before the applicant could be found guilty of the shooting in Dale Street (count 3), the Crown bore the onus of establishing beyond reasonable doubt that the applicant had reached an understanding or arrangement with the co-offender that the co-offender would fire the firearm in Dale Street and the co-offender fired the firearm in accordance with that continuing understanding or arrangement.

65. An intermediate fact that the Crown was obliged to prove beyond reasonable doubt was that the applicant knew the co-offender possessed a firearm.

66. The applicant told SC Atkins that the co-offender “pulled a gun out and just started shooting” and he “didn’t know [the co-offender] was going to shoot the gun” (see [48] above). In his closing address, the applicant’s trial counsel focussed on the applicant’s lack of knowledge of the firearm and that a crime was to be committed during which counsel referred to the very small calibre of the firearm and to a “small ladies gun” (see [12]-[13] above).

67. The note (see [15] above) that was sent by the jury to the trial judge which included “[Carly Horn] could also have confirmed whether they knew about the gun prior to Penrose” makes plain that the members of the jury were alive to the issue of the applicant’s knowledge of the firearm and were separately considering counts 3 and 2.

68. As there is no dispute that at the time of the first and second shootings the applicant was a passenger in the vehicle, the most likely explanation for the acquittal on count 3 is the jury had a reasonable doubt that the applicant knew that the co-offender had a firearm and intended to fire it. Accordingly, the jury could not be satisfied that the applicant was a participant in a joint criminal enterprise in the Dale Street shooting.

69. The question for this Court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant had reached an understanding or arrangement with the co-offender amounting to an agreement that the co-offender would fire the firearm in Wyndarra Way and that the co-offender fired the firearm in accordance with that continuing understanding or arrangement.

70. When considering count 2, the applicant’s knowledge of the firearm was no longer an issue for the jury as he had been in the vehicle when the first shots were fired. The principal issue was whether the applicant had agreed to be part of a joint criminal enterprise to fire the firearm in Wyndarra Way.

71. The first phone call to police after the Dale Street shooting was made at 11.25pm. Mr Carter Junior called the police after the Wyndarra Way shooting at about 11.40pm. SC Tacko heard over the police radio at about 11.42pm that a shot had been fired in Wyndarra Way.

72. Mr Carter Senior gave evidence that the distance by car from 4 Dale Street to 20 Wyndarra Way was “about 5km”. Although maps of the region were tendered, it appears that the police witnesses did not give evidence of the distance between the two shootings. In this Court, the Crown accepted that Mr Carter Senior may have overestimated the distance and the applicant’s submission was that it was about 3.1km although the basis of that calculation was not provided to the Court. In any event, I do not think that this uncertainty is of significance.

73. Mr Carter Junior’s evidence included his observations of the vehicle in Wyndarra Way which he described as a “u-shaped street”. He saw the vehicle pull up across the road and sit there for about a minute. The vehicle then went around the block, returned and parked out in front of the letterbox. The second shooting occurred and the vehicle drove off.

74. Throughout this time, the applicant was a passenger in the vehicle.

75. The Crown case on the applicant’s participation in a joint criminal enterprise was a circumstantial one. It was to be evaluated upon the whole of the evidence by the jury and not in a piecemeal way. The jury was entitled to have regard in combination to the following circumstances:

1. Mrs Brown’s evidence that the co-offender was the applicant’s best friend.

2. Mrs Brown’s evidence that when told the co-offender had arrived, the applicant went back to his room to find his sunglasses. The applicant was seen a short time later at the Advance Fuel service centre wearing a grey hoodie. This was at about 8.30pm.

3. Ms Carter testified that all three persons in the vehicle at the time of the first shooting were wearing hoodies.

4. The applicant knew that the vehicle was stolen.

5. The Snapchat video that Ms Richardson received from the applicant whilst he was in the vehicle. Written across the screen were the words “I got my mates back #R4W”. Ms Richardson told the jury in her evidence in chief that she understood “R4W” meant “Ready for War”. It was open to the jury as judges of the facts to accept this evidence and reject what was said in cross-examination.

The Snapchat video showed the co-offender driving, Carly Horn in the front passenger seat and the applicant in the back seat behind the co-offender. Ms Richardson said that she received the video at around 10.30pm to 11.00pm. Her mobile phone included a text message at 11.05pm referencing the contents of the video. The Dale Street shooting took place at about 11.25pm.

6. The applicant was present in the vehicle at the time of the first shooting when at least two shots were fired from the vehicle.

7. The vehicle was driven from Mr Carter Senior’s home in Dale Street to 20 Wyndarra Way, a distance of at least 3.1km.

8. The vehicle sat there for about a minute before going around the block, ending up in front of the house when the second shooting occurred.

9. The time between the two shootings was about 15 minutes.

10. The applicant remained at the car at all times after the first shooting, including during and after the second shooting.

11. The text message that the applicant sent to Ms Richardson at 2.11am on 4 February 2017 that said “...Got to snap my SIM card…”

12. The day after the shooting, the co-offender attended Ms Richardson’s home and left with the applicant at about 11.00pm. The applicant returned to Ms Richardson’s home at about 2.00am.

76. In making my own independent assessment of the evidence I have concluded that there was ample evidence upon which it was open to the jury to find that the applicant had reached an understanding or arrangement amounting to an agreement with the co-offender, that the co-offender would fire the firearm in Wyndarra Way and that the co-offender fired the firearm in accordance with that continuing understanding or arrangement.

77. It was open to the jury to reject as reasonable possibilities that the applicant remained in the vehicle out of shock or fear after the first shooting or that the co-offender took a detour without notice to him and all that happened was a surprise.

78. There is no inconsistency in the verdicts. The jury was entitled to give the applicant the benefit of the doubt in count 3 but to find him guilty of count 2.

79. Although the applicant does not rely on the verdict of not guilty on count 4 in this appeal it should be stated that there is a rational reason for that not guilty verdict. The vehicle was found engulfed by flames outside 503 Calderwood Road by police at 12.51am. There was evidence before the jury that this place was within easy walking distance of where the co-offender was living, but further away from where the applicant was living. This evidence raised the reasonable possibility that the applicant had been dropped off near his home before the stolen vehicle had been driven to where it was found. As Simpson JA observed in AH v R [7] at [62]:

“In fact, in my opinion, differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.”

7. [2019] NSWCCA 152.

80. The ground of appeal is not made out.

Orders

81. Accordingly, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Amendments

10 October 2019 - par [59] typographical error Line 5.

Decision last updated: 10 October 2019