(1) To the extent necessary grant leave to appeal in relation to the applicant’s convictions, other than with respect to ground 5. (2) Dismiss the appeal with respect to the convictions. (3) Grant leave to appeal in relation to the applicant’s sentence. (4) Dismiss the appeal with respect to sentence.
Catchwords:
CRIME – Murder – s 18(1)(a) Crimes Act 1900 (NSW) – Attempted robbery whilst armed with a dangerous weapon – s 97(2) Crimes Act
CRIME – Constructive murder – Joint criminal enterprise – Extended joint criminal enterprise – Elements of constructive murder – Whether trial judge erred in directing jury – Not necessary that the act causing death must be done by the accused, or be within the scope of a joint criminal enterprise – Acts of those involved in the JCE are attributed to each other – No further mental element required as regards death
EVIDENCE – Tendency evidence – Test for admitting tendency evidence – Significant probative value within the meaning of s 97(1)(b) Evidence Act 1995 (NSW) – Balancing with unfair prejudice under s 101 Evidence Act – Unnecessary to identify specific reasons behind tendency – Importance of framing tendency – Levels of generality – Danger in framing tendency evidence in too wide or narrow a manner – Evidence has significant probative value – Evidence unlikely to unfairly prejudice applicant – Applicant did not seek further directions on the point at trial
SENTENCE – Whether sentence was manifestly excessive – Need to tailor sentence for constructive murder to circumstances of the case – Serious offence – Multiple aggravating factors – Lack of remorse or insight into moral culpability – Sentence not manifestly excessive
[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.
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AGLC
Coskun v The King [2024] NSWCCA 67
Case
[2024] NSWCCA 67
Decision Date
CaseChat Overview and Summary
In Coskun v The King, the defendant was convicted of murder under s 18(1)(a) Crimes Act 1900 (NSW) for his involvement in an attempted robbery where a dangerous weapon was used. The case revolved around the defendant's participation in a joint criminal enterprise and the subsequent death of a victim during the course of the crime. The defendant argued that the trial judge erred in directing the jury on the elements of constructive murder, particularly regarding the act causing death. The court was required to determine whether the act causing death needed to be performed by the accused or within the scope of the joint criminal enterprise and if further mental elements were required in relation to the death.
The court clarified that in the context of constructive murder within a joint criminal enterprise, the acts of all participants are attributed to each other. It was not necessary for the act causing death to be performed by the accused, nor did it need to be within the scope of the joint criminal enterprise. The court found that no additional mental element was required in relation to the death. Additionally, the court addressed the issue of self-defence, ruling that it was not available as a defence to constructive murder in such circumstances. The court also considered the admissibility of tendency evidence under s 97(1)(b) Evidence Act 1995 (NSW), determining that the evidence had significant probative value and was unlikely to unfairly prejudice the applicant.
The reasoning of the court led to the conclusion that the defendant's sentence was not manifestly excessive. The court emphasised the need to tailor the sentence for constructive murder to the specific circumstances of the case, considering the seriousness of the offence and multiple aggravating factors, including the defendant's lack of remorse or insight into moral culpability. The sentence was deemed appropriate given the nature and circumstances of the crime.