Dickson v R

[2017] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Dickson v R [2017] NSWCCA 78
Hearing dates:	6 February 2017
Date of orders:	28 April 2017
Decision date:	28 April 2017
Before:	Bathurst CJ at [1]; Johnson J at [99]; Fullerton J at [100]
Decision:	1. Grant the applicant leave to appeal.  2. Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against conviction – whether verdict unreasonable or unsupportable having regard to the evidence – whether proof of presence is an essential part of liability of an accused who is prosecuted under principle of joint criminal enterprise – whether jury was misdirected at trial – whether the trial judge’s directions were apt to lead the jury into error in indicating that participation in joint criminal enterprise could be established by the act of joining into the agreement – whether trial judge was obliged to direct jury that it should acquit offender of each count if not satisfied he was present when crimes committed
Legislation Cited:	Criminal Appeal Rules (NSW)
Cases Cited:	ARS v R [2011] NSWCCA 266 FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182 Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 7 Huynh v The Queen (2013) 87 ALJR 434; [2013] HCA 6 Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Likiardopoulos v R (2010) 30 VR 654; [2010] VSCA 344 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McAuliffe v The Queen (1995) 183 CLR 108 MFA v The Queen (2002) 213 CLR 608; [2002] HCA 53 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Picken v R; R v Picken [2007] NSWCCA 319 R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 R v Bingley & Ors (1821) Russ. And Ry. 446; 168 ER 890 R v Franklin (2001) 3 VR 9 R v Lowery & King (No 2) (1972) VR 560 R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480 R v Morgan [1994] 1 VR 567 R v Prochilo [2003] NSWCCA 265 R v Tangye (1997) 92 A Crim R 545 Sever v R [2010] NSWCCA 135 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 TWL v R [2012] NSWCCA 57 White v Ridley (1978) 140 CLR 342; [1978] HCA 38
Category:	Principal judgment
Parties:	Athol Allan Howard Dickson (Applicant) Crown (Respondent)
Representation:	Counsel: Simon Healy (Applicant) Eric Balodis (Respondent)   Solicitors: O’Brien Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/00280742
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 03 December 2015 Before: Lakatos SC DCJ File Number(s): 2013/00280742

HEADNOTE

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

The applicant was found guilty, following a trial before a jury, of five offences relating to a number of thefts which occurred in Sylvania Waters on the morning of the 14 August 2013. Although there were three alleged co-offenders, the applicant was tried alone. It was not in issue that there were break and enters, or that the property the subject of each of the counts was stolen.

However, the Crown did not have any witnesses who observed the applicant or any of his alleged co-offenders break and enter into any of the houses nor steal any of the property. Rather, the Crown case was that there was a joint criminal enterprise between the applicant and three co-offenders to travel to Sylvania Waters, break into houses, steal property, sell that stolen property, and divide the proceeds.

The Crown case largely rested upon a series of intercepted phone calls taking place from the afternoon of the 13 August 2013 and concluding on 29 August 2013 between the alleged co-offenders. The Crown also relied on expert evidence in respect of mobile phone tower data tending to show that the applicant travelled to Sylvania Waters on the night of the 13 August 2013 and remained in that area until the early morning of 14 August 2013.

The jury returned a verdict of guilty to all charges on 17 August 2015. The applicant was sentenced on 3 December 2015 to a custodial sentence of 4 years, with a non-parole period of 2 years and 3 months. The applicant appealed against his conviction only.

The issues on appeal were:

1.    Whether the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence because:

a.   the applicant was not a party to a specific agreement to commit the offences; and/or

b.   because the applicant was not proved to be present when each offence was committed.

2.    Whether the trial judge erred in his directions to the jury regarding joint criminal enterprise, by not directing the jury that the applicant must be proved to be present when the agreed crime was committed.

The Court held (Bathurst CJ, Johnson J and Fullerton J agreeing), dismissing the appeal:

Presence

(i)    It is well-established that a person will not be liable for a crime committed by another as a result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement. To be liable the person concerned must participate in the commission of the offence: [41]-[44] (Bathurst CJ); [99] (Johnson J); [100] (Fullerton J).

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75; Huynh v The Queen (2013) 87 ALJR 434; [2013] HCA 6; Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 7; McAuliffe v The Queen (1995) 183 CLR 108 applied.

(ii)   A person can be liable under the principle of joint criminal enterprise if it can be shown that he or she entered into an agreement or understanding to commit a crime and participated in some way in furthering its execution. Presence at the actual commission of the crime is sufficient, but not necessary, to prove participation. It is not necessary to prove presence if the person sought to be made liable participated in some other way in the furtherance of the enterprise: [46]-[47] (Bathurst CJ); [99] (Johnson J); [100] (Fullerton J).

Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75; R v Bingley & Ors (1821) Russ. and Ry. 446; 168 ER 890; R v Morgan [1994] 1 VR 567; R v Franklin (2001) 3 VR 9; Likiardopoulos v R (2010) 30 VR 654; [2010] VSCA 344; Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37; R v Prochilo [2003] NSWCCA 265; Sever v R [2010] NSWCCA 135 applied.

R v Lowery & King (No 2) (1972) VR 560; R v Tangye (1997) 92 A Crim R 545 distinguished.

(iii)   The trial judge’s directions to the jury made it sufficiently clear that the applicant could only be liable if in addition to entering into the agreement he participated in the agreed criminal activity: [57] (Bathurst CJ); [99] (Johnson J); [100] (Fullerton J).

Unreasonable verdict

(iv)    It was open to the jury to conclude that the circumstantial evidence established beyond reasonable doubt the guilt of the applicant on each count: [87]-[95] (Bathurst CJ); [99] (Johnson J); [100] (Fullerton J).

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 608; [2002] HCA 53; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 applied.

(v)    It was open to the jury to conclude that the agreement between the co-offenders ultimately embodied the theft of the particular items the subject of each of the counts. This was sufficient to affix the applicant with liability for the theft of the particular items which were stolen: [96] (Bathurst CJ); [99] (Johnson J); [100] (Fullerton J).

Judgment

1. BATHURST CJ: The applicant, Athol Allan Howard Dickson, was charged on indictment with five offences relating to a number of thefts which occurred in Sylvania Waters on the morning of the 14 August 2013. Although there were a number of other individuals said to be co-offenders of the applicant, he was tried alone. The counts on the indictment for the applicant were as follows:

1. Count 1: Aggravated break, enter and steal at XXX Belgrave Esplanade, Sylvania Waters (aggravated by knowing there were persons present) on 14 August 2013,

2. Count 2: Stealing a motor vehicle (Ford Ranger) at Sylvania Waters on 14 August 2013,

3. Count 3: Stealing a box trailer at Sylvania Waters on 14 August 2013,

4. Count 4: Aggravated break, enter and steal at XXX Belgrave Esplanade, Sylvania Waters (aggravated by knowing there were persons present) on 14 August 2013,

5. Count 5: Aggravated break, enter and steal at XX Belgrave Esplanade, Sylvania Waters (aggravated by knowing there were persons present) on 14 August 2013.

2. Following a trial before a jury, the applicant was convicted of all five counts and was sentenced by Judge Lakatos to 4 years imprisonment, with a non-parole period of 2 years and 3 months. He has appealed against conviction on each of those counts on two grounds. The first ground is that in relation to each count, the jury verdict is unreasonable or cannot be supported having regard to the evidence. The second ground is that the trial judge erred in not directing the jury that in order to find the applicant guilty under the principles of joint criminal enterprise, it must be satisfied that the applicant was present when each offence was committed.

The case at trial

3. It was not in issue at the trial that there were break and enters or that the property the subject of each of the counts was in fact stolen. Nor was it in issue that there were people present in the houses at the time the relevant offences took place. However, the Crown did not have any witnesses who observed the applicant or any of his alleged co-offenders break and enter into any of the houses nor steal any of the property the subject of the offences. Rather, the Crown case largely rested upon a series of intercepted phone calls taking place from the afternoon of the 13 August 2013 and concluding on 29 August 2013. The Crown also relied on expert evidence in respect of mobile phone tower data tending to show that the applicant travelled to Sylvania Waters on the night of the 13 August 2013 and remained in that area until the early morning of 14 August 2013.

4. The Crown case was that there was a joint criminal enterprise between the applicant, persons named Jamie Nagle and QF (who was a juvenile at the time) and a further unidentified male. The nature of the enterprise was described as being to travel to the Sylvania Waters area, break into houses and steal property and to sell the stolen property and divide the proceeds.

5. The Crown’s position at trial was that for the purpose of showing a joint criminal enterprise existed, the agreement between the co-offenders did not have to relate to stealing particular items of property. Rather, it was claimed that the agreement could be as broad as to break into a house and steal whatever is available. To that extent, the Crown stated in its closing address at trial that it did not have to prove there was an agreement to steal the particular items the subject of Counts 1 to 5.

6. The Crown relied on expert evidence showing the location of various telephone services registered to the co-offenders in different areas. In general terms, the evidence showed that Mr Nagle, QF and the applicant left the north-western suburbs of Sydney on the evening of the 13 August 2013 and travelled to Sylvania Waters. It showed that the group remained in or around Sylvania Waters from just before midnight on 13 August 2013 until approximately 3:30am on 14 August 2013.

7. The Crown’s case was that there was only one possible explanation for the applicant and co-offenders making this journey, being to commit the offences. The Crown referred to evidence of a phone call taking place later between Mr Nagle and a Baden Bell. In this phone call Mr Nagle discusses taking Mr Bell to “have a look at it” and Mr Bell seeks assurances that “it” is not from “around here”. The Crown suggested the inference to be drawn was that “it” was a stolen motorcycle and that this was a plausible explanation as to why the group travelled to Sylvania Waters to steal property.

8. The Crown relied on telephone intercepts between Mr Nagle, QF and the applicant regarding arrangements made to meet on the evening of the 13 August 2013 in order to show the participants to the agreement. A call made from QF to Mr Hastings just before midnight on the 13 August 2013 discussing a “green one” and a “13 250” was suggested to relate to the 2013 KX250 Kawasaki motorcycle the subject of Count 5 on the indictment. QF further stated that he was “just walking around, walking around on the waters, bro, trying to find some tools”. The Crown’s submission was that this established that QF was a party to the criminal enterprise.

9. A phone call was made one minute later by QF to a young woman called “Kayla” who appeared to be his girlfriend. It was submitted that the applicant could be heard in the background stating “once we get a van, bra, we’ll just (unintelligible) all the bikes” and “[m]others, we will get a full weapon hottie”. Detective Bartle gave evidence in the trial that in his opinion, “hottie” is a term used for a stolen vehicle and that “weapon” is often used to describe something that’s powerful or really good, of quality. The Crown suggested that if the jury accepted the voice was that of the applicant, it placed him with QF at a time when part of the stolen property was located by the group. Another call was placed at 2:41am from the applicant’s phone to QF. The only word spoken was “[y]eah”, however the expert evidence suggested that at the time the call was made, the applicant’s phone service was within the pickup area of the Sylvania Waters South cell tower. The Crown suggested this was enough to show that the applicant was present in Sylvania Waters until at least this time.

10. A further call was made at 3:29am where the applicant discusses a trailer, stating “the fuckin’ trailer’s got a lock on it. Told you, bro, we should have just grabbed the one up the road, man. Fuck.” The applicant later states ‘Let’s just go. I’m cuttin’ – mothers, I’m just cuttin’ now’. The Crown submitted that the call demonstrated something needed to be carried that wasn’t brought with them from north-western Sydney, but rather was something they acquired in the vicinity of Sylvania Waters.

11. A further call was made at 4:48am from Mr Nagle to an unidentified male who answered the applicant’s phone. The unidentified male says that he doesn’t know where the applicant is, but tells Mr Nagle to “listen out for the bike”. The inference suggested by the Crown was that the applicant wasn’t with the male who answered his phone and that was because he was riding one of the bikes.

12. The remainder of the calls were predominantly conversations in somewhat coded terms that the Crown suggested involved the making of arrangements for the disposal of two of the motorcycles. These involved a conversation in which the applicant states “I need cash, you know what I mean?” and “[y]ou want to work it out, boy, I’m telling you” which the Crown suggested related to the selling of one of the motorcycles. It was suggested that the discussions about the money from the bikes were in terms of a “demand” rather than a request and indicated the applicant was intent on receiving his share of the proceeds.

13. The Crown also pointed to the agreed facts which were that the trailer the subject of Count 3 and the motor vehicle the subject of Count 2 were recovered in Blacktown at 5.00am on the 14 August 2013, and one of the motorbikes the subject of Count 5 was recovered in a park across the road from where the car and trailer were found. It pointed to the cell tower evidence which suggested QF was in the vicinity of South Blacktown at approximately 4:30am on 14 August 2013.

14. The applicant’s case was that the Crown had not proved his guilt beyond reasonable doubt. He pointed to the fact that the cell tower data did not establish specifically where he was relative to where the crimes on the indictment were committed. He submitted that the content of the phone calls did not establish that the co-offenders were planning to commit the relevant offences but merely that they met for dinner. Although it was conceded that some calls implicated the applicant in sharing in the profits of the stolen bikes when sold, it was contended that the calls did not implicate the applicant in their theft. He further pointed to the call at 3:29am in which the applicant stated “I’m cuttin’" as suggesting that he was about to leave the relevant area, and submitted that the fact of this phone call demonstrated the applicant was separated from the rest of the group at that time.

15. An application was made on behalf of the applicant at the conclusion of the evidence for a directed verdict of acquittal on Counts 1, 2, 4 and 5 (that is, all of the counts except that relating to the theft of the trailer). In his written submissions in relation to the directed verdict, the applicant submitted that the Crown could not prove who committed the acts nor could it prove whether the person committed the acts by themselves or jointly with others.

16. It was submitted on that application that the calls evidencing a meeting of the group, termed “Group 1 calls”, did not evidence what the group may have been planning or forming an agreement to do. The calls alleged to have been made around the time of the commission of the crimes, termed “Group 2 calls”, were said to not evidence the nature of any pre-agreement between the four alleged co-offenders. It was accepted that at a prima facie level the intentions of the four appeared criminal in nature, but it was submitted that was not sufficient. Rather, it was submitted that it was necessary for there to be evidence that the applicant was aware that at least one of the group intended to commit the specific offences on the indictment and that he agreed to commit those specific offences with a co-offender. Finally, the calls forming “Group 3 calls”, being those after the alleged offending were accepted to allow an inference that the applicant was aware of the proceeds of the crime and perhaps that crimes had been committed. However, it was submitted that the applicant’s knowledge at the time of the Group 3 calls could not be transported retrospectively to the time of the offending as evidence of a joint criminal enterprise to commit those offences.

17. The applicant further submitted on that application that there was no evidence pointing to where each alleged offender was relative to the offence as it was committed. While the applicant’s phone connected to a Sylvania Waters cell tower, this was said to be incapable of itself proving beyond reasonable doubt that the applicant was in Belgrave Esplanade.

18. The trial judge gave reasons for refusing the application on 14 August 2015, holding that on the material adduced by the Crown there were primary facts which, if accepted by the jury, could reasonably ground an inference that there was an agreement to break and enter the houses, that the bikes were stolen and that the applicant was party to such an agreement.

The directions given by the trial judge

19. In summing up, the trial judge directed the jury on the issue of joint criminal enterprise. He stated:

“Perhaps of greater difficulty are issues concerning joint criminal enterprise. The law is that where two or more people carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out their enterprise or activity.

So a joint enterprise, we all agree to steal Easter eggs. If there is an agreement for us to carry that out and I end up sending one of my friends into the next residence to take the Easter egg we know is there, we are all responsible for what he has done, as if I had done it, as if the third person in the agreement has done it.

The joint responsibility is so regardless of a particular role played in the enterprise by the particular participant. The Crown must establish both the existence of a joint criminal enterprise - that is a long way of saying agreement to commit an offence - and the participation in such an enterprise by, in this case, the accused. So there has to be an agreement to do something which is criminal, and you have to be satisfied beyond reasonable doubt that, in this particular case, the accused was a member of that agreement or a participant.

A joint criminal enterprise exists where two or more people reach an understanding or an arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found to be proved on the evidence.”

20. He later noted:

“It does not matter whether the agreed crime is committed by only one of them or some of them in the joint enterprise, or whether they all played an active part in committing the crime. All the participants in the enterprise are equally guilty of committing the crime regardless of the actual part that they played in its commission.

The Crown must prove beyond a reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients which make up the crime was committed regardless of who it was that actually committed the relevant parts of those offences.

As I say, I have spoken to you about the elements of the offence. In circumstances such as this, and I am putting this hypothetically because there is no evidence one way or another, if there was an agreement between some or all of the persons named in this indictment that in fact [QF] should take the bikes, or Mr Nagle should take the box trailer, or the unknown fourth person, if you find there was such a person, should take the Ford Ranger, provided there is an agreement between the four of them, it does not matter who actually did that, but there must be an agreement to hold the person who did not do it liable for that offence.

It therefore must be proved beyond a reasonable doubt that each of the legal elements which make up the crime was committed, regardless of who committed them, in respect of a particular accused. In this case we are dealing with Mr Dickson. The Crown must prove beyond reasonable doubt that he was a participant in the commission of that crime as part of a joint enterprise with one or more of the other persons named, Mr Nagle, [QF] and the unknown person.”

21. The applicant’s trial counsel applied for a further direction that the participants must agree to do all the acts with the relevant intention necessary to establish the offence. The trial judge gave the requested direction as follows:

“In terms of the joint criminal enterprise direction which I have given you at some length, it is necessary for me to emphasise that for you to consider the issue of joint criminal enterprise in the context of this case, you need to be satisfied beyond a reasonable doubt that all of the participants agreed to do all of the acts which are the elements/charges that I have set out for you, they agreed to do the breaking, they agreed to do the entering, they agreed to steal, and they did so in the aggravating circumstances. You need to be satisfied that all the participants have agreed to do all of those things and to have the relevant intention to commit the offences, so all of those things have to coincide.

Again, to repeat it, for you to be satisfied of the existence of the joint criminal enterprise sufficient to warrant a verdict of guilty in relation to some or all of those three counts, you need to be satisfied that all the participants agreed to do each of the elements relevant to the two groups of offences with the intention to permanently deprive the owners of the property involved.”

22. Prior to the summing up, the trial judge discussed with the applicant’s trial counsel a problematic point in his address. Counsel had suggested that the Crown could not prove that when the crimes occurred, the applicant was with Mr Nagle and QF. The trial judge asked counsel whether it was necessary that the evidence establish that the co-offenders were with each other. Counsel accepted that people can participate in a joint criminal enterprise without necessarily needing to be together.

23. In summing up, the trial judge noted that he perhaps needed to correct that incorrect impression, stating:

“He said to you words to this effect, ‘How can the Crown say that when the crimes occurred, this accused was with the other gentlemen, Messrs Nagle and [QF]?’ To the extent that that is done literally, I need to perhaps correct an incorrect impression, which I am sure Mr Fraser did not intend. He was directing that argument to say, ‘How can you say that this accused was party to any agreement?’

You will remember, when I gave you the directions about joint criminal enterprise, to be party to a joint criminal enterprise did not necessarily mean that everybody had to be doing everything together. Remember the car and the people breaking into the houses. However, I am sure that Mr Fraser meant to say that the fact that he was not together is a further matter that you should take into account to say there is no proper evidence that he was party to an agreement of this kind.”

24. In dealing with the addresses made by the Crown and counsel for the applicant, the trial judge made the following remarks:

“In this case, the Crown relies on circumstantial evidence to establish the fact that there was a joint enterprise and to establish the fact that the accused was party to that joint enterprise. He of course has indicated to you, and I will move to the arguments shortly, that the Crown contends there was a joint enterprise between this accused, two other known individuals, [QF] and Mr Nagle, and one unknown individual, to go from where they resided to Sylvania Waters to do the break, enter and steals which apparently were done by somebody, if I can put it that way, to steal property. The Crown relies upon circumstantial evidence because, as I have said, and Mr Fraser pointed out, there is no direct evidence of an agreement in the usual sense of that term.

…

Similarly too, if one looks at the Crown evidence in this case, we have evidence in relation to cell towers and call charge records. You heard Mr Chang giving evidence about that, and I will speak about his evidence shortly. In those circumstances, the Crown says that you would conclude from that material that indeed this accused was present in Sylvania Waters, but more than that, that he was present in the location of these offences, and that it is part of the material from which you would conclude he was participating in the joint criminal enterprise.”

He made the following remarks in respect of the applicant’s case:

“Mr Fraser, on behalf of his client, says that in any event, say, for example, in relation to those two broad categories of evidence, and I will go into this in a little bit more detail shortly, that all you could draw from the cell tower material was that the phone, which was subscribed to the accused, was in that general area and operating. But he says you could not take the next step that the Crown asks you to do which is to conclude from that that his client was party to these criminal agreements.

In addition, he says that in terms of the telephone intercept material, generally speaking, they may show that his client was part of some inappropriate criminal conduct of some sort or another, but not that he was party to the conduct which the Crown says is involved in these charges. In other words, he may have known what Mr Fraser said about the bikes having been stolen, he may have had some part, you might think, or not, in the disposal of the bikes, but that is not to say that he was party to an agreement to steal and to break into the houses and so on.”

Turning to the Crown case he continued:

“However, he said, looking at the materials generally as well as the call charge records and the cell tower records, you would safely conclude that between about midnight on 13 or 14 August and about 3.30am, at least the three known parties to this enterprise, as the Crown would put it to you, were in the Sylvania Waters area, that is to say at the time the Crown alleges these offences occurred.

He put it to you as a rhetorical question, ‘Why were they there if you agree that this evidence means that they were?’ ‘Was it a sheer coincidence?’ he asks. ‘Do you travel halfway across Sydney from the northwest to the southwest in the early hours of the morning?’ ‘Do you find yourself in the same location at the same time as two other people involved in this alleged agreement?’ ‘Did the offences occur by sheer coincidence?’ His argument to you is no.

Those circumstances paint a picture, a picture of an agreed set of actions involving Mr Nagle, Mr Fraser [sic: QF] and this accused, directed towards breaking and entering into the relevant properties and/or stealing the relevant vehicles.

He says to you that if you look at various of these calls, there is a clear evidence or conclusion that there was an agreement. He drew attention to, amongst others, tab 26 – and I will not go to these except to remind you perhaps of the numbers – and acknowledged that the Crown was required to prove that this accused was a participant in the relevant joint criminal enterprise.”

Referring to the applicant’s case, the trial judge stated:

“He says you may perhaps be satisfied, looking at these telephone intercept materials, that somebody who was in the Sylvania Waters area, perhaps QF, Mr Nagle, perhaps his client, perhaps they were up to no good, doing some form of mischief or another. But he correctly says if that is the highest that your satisfaction can get beyond a reasonable doubt, then that is not enough because it is necessary for you to be satisfied that he was there, party to an agreement, to commit these very offences. All the elements of these offences must be present, he argued, and so much is correct in law. He said there is simply no evidence at all of his client’s knowledge at the time these offences were committed.”

These remarks indicate in my view that the question of the applicant’s participation in the enterprise was put to the jury as a matter for their consideration.

The appeal

25. The applicant relied on the following two grounds of appeal:

Ground 1 – verdicts unreasonable and cannot be supported because applicant not a party to specific agreement to commit offence, and/or applicant not present when each offence committed

Ground 2 – The trial judge erred in his directions to the jury regarding joint criminal enterprise, by not directing the jury that the applicant must be proved to be present when the agreed crime was committed

26. It is convenient to deal with Ground 2 before dealing with Ground 1.

The applicant’s submissions on Ground 2

27. The applicant submitted, referring in particular to the judgment of McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 and the Full High Court in Huynh v The Queen (2013) 87 ALJR 434; [2013] HCA 6, that for liability based on joint criminal enterprise to arise, it is necessary in addition to an agreement for a crime to be committed that the accused must be present when the offence is committed. He submitted this was also supported by what was said by this Court in R v Tangye (1997) 92 A Crim R 545 at 556-557.

28. The applicant submitted that in the present case the question of participation was plainly in issue. He submitted, referring to Huynh supra, that the direction must be tailored to the real issues at trial. He submitted that one element of the offence was presence at the commission of the crime and said it was enough for the appeal to be upheld if the judge failed to direct the jury that this element was essential.

29. The applicant also submitted that the totality of the directions were apt to lead the jury into the error that participation and liability could be satisfied by the fact of joining into the agreement without more. He pointed in particular to that part of the direction to which I have referred at [19] above, stating that that had the effect of conveying to the jury on the facts of the present case, entry into the agreement would be enough to ground liability provided that one of the parties to it subsequently committed the crime.

30. The applicant accepted that as no objection was taken to this aspect of the direction at trial, leave was required to argue ground 2 pursuant to r 4 of the Criminal Appeal Rules (NSW). However, it was submitted that if the contentions as to presence were accepted, the misdirection was to an element of the offence and on the principles explained in TWL v R [2012] NSWCCA 57, this was a potentially decisive consideration in favour of granting leave.

The Crown’s submissions on Ground 2

31. The Crown submitted that while participation of an accused in a joint criminal enterprise may be proved by his or her presence at the crime, the presence of a member of a joint criminal enterprise at the crime is not necessary.

32. The Crown relied on a number of cases dating back to R v Bingley & Ors (1821) Russ. And Ry. 446; 168 ER 890, in which several persons by agreement forged part of an instrument. Mr Batkin participated in the process of forging the note on his own and was not with the other forgers when the instrument was completed but was nevertheless guilty as a principal.

33. The Crown also pointed to the dicta of Barwick CJ in Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3 at 112 and that of Mason, Murphy and Wilson JJ as suggesting that the ambit of a joint criminal enterprise was not restricted to those who were present at the scene of the crime. Although that case related to the principles to be applied in cases involving an accessory before the fact and principal in the second degree, it was described by the Victorian Court of Appeal in R v Morgan [1994] 1 VR 567 as concerning the criminal liability of persons alleged to have jointly engaged in the commission of a crime (at 571).

34. The Crown pointed to cases including R v Prochilo [2003] NSWCCA 265 and Sever v R [2010] NSWCCA 135 as indicating that presence at the scene was not necessary to proving participation in a joint criminal enterprise. The Crown also relied on the statements of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37. In that case the Court had been informed that an accessorial case was advanced out of the concern that the principal case, namely liability on the basis of joint criminal enterprise, might founder on the inability to establish that the appellant had been present throughout the whole of the period in which violence leading to death was inflicted on the deceased. The plurality stated at [21]:

“Counsel for the Crown submitted that this concern stemmed from a mistaken belief as to the essentiality of presence, arising out of Smith J’s charge to the jury in R v Lowery and King (No 2). Be that as it may, the trial judge entertained no such misapprehension. Her Honour directed the jury that it was not necessary to prove that the appellant had been present throughout the whole of the time during which the assaults took place in order to establish his guilt as a party to the joint criminal enterprise. The Court of Appeal correctly rejected the appellant’s challenge to that direction.”

35. In relation to the applicant’s reliance on Huynh supra, the Crown submitted that the appellants in that case were all present when the deceased was killed, and that participation was therefore not at issue: Huynh supra at [41]. The Crown similarly submitted that Osland supra did not assist the applicant because it was not in issue that the appellant was present, and pointed to the later statement of McHugh J (at [93]) where his Honour stated “[w]here the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together.”

36. The Crown also pointed to the dicta of Gaudron and Gummow JJ in Osland supra at [27] where their Honours stated:

“More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in McAuliffe v The Queen. Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied. The appellant's submissions on this aspect of the case proceeded upon a false basis [Footnotes omitted].”

It should be noted that their Honours were in dissent in this case.

37. It was submitted in response to the applicant’s contention that this dicta was not followed in Huynh supra, that neither participation nor presence was in issue in Huynh. The Crown submitted that it is the law that presence is sufficient but not necessary for participation in a joint criminal enterprise.

38. At the hearing the Crown prosecutor accepted that liability as a principal in the first degree through joint criminal enterprise requires participation beyond mere agreement, contrasting it to the case of conspiracy where a conspirator is someone who merely agrees. However, he submitted that while there had to be some level of participation, there was no test of sufficiency and it could be as much as joining the planning, standing in the background and saying “we’ll need to load these bikes” and also “we will get a full weapon hottie”. The Crown submitted that the participation was evidenced in the telephone conversations as well as the inferences that were open to be drawn by the jury as to the applicant’s movements in and around the various locations at the relevant times.

39. In relation to r 4 of the Criminal Appeal Rules, the Crown submitted that its requirements were not mere technicalities, citing ARS v R [2011] NSWCCA 266 at [148]. It submitted that the critical issue to establish is that there has been a miscarriage of justice in that the appellant has lost a real chance or a chance fairly open of being acquitted: Picken v R; R v Picken [2007] NSWCCA 319 at [21]; FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182 at [73].

40. The Crown pointed to statements made in the trial counsel’s closing submissions which suggested that he was concerned with presence only in so far as it affected whether the applicant was party to any agreement, and noted that counsel did not submit that the presence of the applicant had to be proved as a matter of law, nor was a redirection sought to that effect. It was submitted that r 4 therefore applied, and that because of its submissions to the effect that presence was not required, the applicant had not lost a real chance of acquittal. To that extent the Crown’s submissions on r 4 depend on the conclusions made by this Court in relation to Ground 2.

Ground 2 consideration

41. It is well-established that a person will not be liable for a crime committed by another as a result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement. To be liable the person concerned must participate in the commission of the offence.

41. In Osland v The Queen supra, McHugh J explained the operation of the principle in the following terms:

“[72]   However, there isa third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concertis equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2] by Smith J who directed the jury in the following terms:

‘The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.’

[73]   In that case, his Honour directed the jury that ‘they are all equally guilty of that crime’. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law:

‘[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.’ (Emphasis added.)

So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R v Tangye. The Court said:

‘(1)   The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2)   A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3)   A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.’ (Emphasis added.)

…

[79]   The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence.

…

[93]   Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime [Footnotes omitted].”

43. His Honour’s explanation of the principle was approved by the High Court in Huynh v The Queen supra. The Court made the following remarks:

“[37]   The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that ‘one plays a part at its most simple by joining into the agreement’. That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.

[38]   A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. The unchallenged evidence was that each appellant was one of a larger number of persons who had travelled from Duong's house to the Vartue Street premises. No nice question arises in these appeals of the sufficiency of the evidence to prove participation in the enterprise. If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement.”

44. In Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Hayne J described the principle in the following terms (referring to McAuliffe v The Queen (1995) 183 CLR 108 at 113-114):

“[109]   As was pointed out in McAuliffe, the terms ‘common purpose’, ‘common design’, ‘concert’, ‘joint criminal enterprise’ are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others.

[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.

…

[112]   As McAuliffe reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe, ‘the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind’. To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that ‘a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it’. The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.”

Gleeson CJ and Callinan J agreed with his Honour’s remarks ((2003) 219 CLR 1 at [10]).

45. Each of the authorities to which I have referred emphasised the need for the party to the joint criminal enterprise to participate in the enterprise whilst stating that presence at the time the crime was committed is sufficient to demonstrate such participation: Osland supra at [72]-[73]; Huynh supra at [38]. The issue is whether presence at the time of the commission of the offence is necessary for a person to be liable under the doctrine.

46. Although on one reading the judgment of McHugh J in Osland supra and the passages from R v Lowery & King (No 2) (1972) VR 560 and R v Tangye supra cited by his Honour with approval, would tend to suggest this is the case, I do not think the principle is so confined. Indeed, [93] of the judgment of McHugh J in Osland supra and the statement in Huynh supra at [37] that liability attaches to persons who participate in some way in furtherance of its execution, tends to the contrary.

47. In my opinion a person can be liable under the principle if it can be shown that he or she entered into an agreement or understanding to commit a crime and (to adopt the words in Huynh supra at [37]) participated in some way in furthering its execution. Whilst presence at the actual commission of the crime is sufficient, it is not necessary if the person sought to be made liable participated in some other way in the furtherance of the enterprise.

48. A number of relatively simple examples can be given which show that this is so. A person who agrees with another to murder a victim by poisoning him and who in furtherance of that agreement supplied the poison to the other party who in fact administered it to the victim, will be liable under the principle although that person was not present when the poison was administered. Similarly, a person who created a fraudulent instrument pursuant to an agreement to defraud a victim will be liable for the fraud even if he is not present when the other party to the agreement made use of the instrument to defraud the victim: see, for example, R v Bingley & Ors supra.

49. What I have written is not in my opinion inconsistent with authority. In R v Morgan [1994] 1 VR 567, the Court of Appeal of Victoria stated (at 570) that Smith J in Lowery & King supra was not purporting to make an exhaustive statement of the law governing liability of persons engaged in a joint criminal enterprise and held (at 572) that the test of liability does not depend on the physical presence of a person at the scene of the crime but rather his or her participation in the fulfilment of the common purpose by the commission of the crime.

50. In R v Franklin (2001) 3 VR 9, a case involving what one member of the bench described as murder by prolonged torture, it was argued that the applicant could not be convicted under the principle as he was not present during the whole of the period in which the assault which led to the death took place. Ormiston JA (at [135]) stated that that ignored the existence of authority suggesting continual presence was not essential.

51. In Likiardopoulos v R (2010) 30 VR 654; [2010] VSCA 344 it was argued that the trial judge erred in directing the jury that liability by way of joint criminal enterprise did not require proof of presence and on that basis, joint criminal enterprise should not have been left to the jury when it was not possible to exclude the possibility that the accused was absent when the acts causing death were performed. The appeal was dismissed. The Court (at [59]) referred to authorities which had not required presence of all offenders at the time of the commission of the offences but rather required participation in the criminal enterprise. The Court stated (at [63]) that the Crown needed to prove the accused’s continuing agreement to engage in particular conduct, participation by the accused, performance of all of the conduct necessary to commit the offence by one or more of the parties to the agreement, and that the accused had the requisite mens rea.

52. An appeal from that decision was dismissed by the High Court (Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37) the plurality making the remarks to which I have referred at [34] above.

53. In R v Prochilo [2003] NSWCCA 265, a case involving the unlawful supply of drugs, Smart AJ without reference to authority stated (at [59]) that presence at the scene of the supply was one way of proving participation in the joint criminal enterprise but not the only way. Beazley JA (as her Honour then was) and Greg James J agreed.

54. In Sever v R [2010] NSWCCA 135, in upholding an appeal against a conviction for arson, Latham J with whom Schmidt J agreed, made the following remarks:

“[146]    It is, of course, possible for the Crown to mount a case based on joint criminal enterprise where the accused is not present at the commission of the offence ; Osland v The Queen [1998] HCA 75 at [27], [93] ; (1998) 197 CLR 316 at 329-330, 350; R v Prochilo [2003] NSWCCA 265. However, the existence of the agreement or enterprise, and the participation in it by the accused in such a case cannot be inferred from the circumstances in which the offence is committed, because (to state the obvious) there is no evidence of what the accused said and/or did during the commission of the offence. The jury must look to evidence of events, other than those pertaining to the offence itself, for proof beyond reasonable doubt of the existence and scope of the agreement, and the accused’s participation in it.

[147]   In the instant case, there was a complete absence of evidence of that character. There was no evidence of the identity of a potential co-offender. There was no evidence of conversations between the accused and others that were capable of amounting to an agreement to commit an offence. There was no evidence of acts on the part of the accused, such as the transfer of a large amount of money to another or the purchase of material linked to the fire, that suggested an intention to carry out such an agreement.”

55. The question remains whether the directions were adequate to convey to the jury that it was necessary for them to be satisfied beyond reasonable doubt that the applicant participated in the enterprise. The directions must be considered in the context of both the Crown case and that of the applicant. The trial judge summarised their respective cases in the manner I have set out at [24] above.

56. That summary shows that the Crown case was that the applicant and the alleged co-offenders had entered into an agreement to travel to Sylvania Waters, to break and enter into houses, to steal property, to take the property and dispose of it amongst the four alleged partners to the agreement; and/or to steal the motor vehicles from the road and that the applicant participated in this agreement and its execution. The case for the applicant put each of those matters in issue.

57. I have set out the relevant directions above. With some hesitation I think the directions made it sufficiently clear to the jury that the applicant could only be liable if in addition to entering into the agreement he participated in the agreed criminal activity.

58. I do not think that the early part of the direction, which I have set out at [19] above, made it clear that it was necessary for the jury to be satisfied that the applicant in fact participated in the alleged criminal activity. Taken alone, the first paragraph does not state that to be necessary. Further the Easter egg example in the second paragraph does not make the requirement of participation clear, or that anything more than the agreement and the subsequent commission of the crime is necessary for liability to arise. The same may be said of the next paragraph where the trial judge instructed the jury they had to be satisfied beyond reasonable doubt that the applicant was “a member” of that agreement or a participant (emphasis added).

59. If the direction had been left at that point it would seem to me that it was inadequate to convey to the jury the need for them to be satisfied beyond reasonable doubt that the applicant participated in the criminal enterprise as distinct from simply entering into an agreement that it be undertaken. However, a subsequent part of the direction to which I have referred (at [20]), in particular the remarks that “[t]he Crown must prove beyond reasonable doubt that he was a participant in the commission of that crime as part of a joint enterprise with one or more of the other persons named” adequately conveyed that participation in the agreed enterprise was necessary for liability to arise.

60. I should indicate that if I had been of the opinion that the need to prove participation in the enterprise was not conveyed to the jury, I would have granted leave to rely on the ground pursuant to r 4 of the Criminal Appeal Rules. Such a failure in the particular circumstances of the case would have deprived the applicant of a real chance of acquittal.

61. In these circumstances, this ground of appeal has not been made out.

Ground 1 – verdicts unreasonable and cannot be supported because applicant not a party to specific agreement to commit offence, and/or applicant not present when each offence committed

The applicant’s submissions

Particularisation of the agreement

62. This ground of appeal involved two main contentions. The first related to the particularisation of the agreement between the co-offenders. The applicant submitted that a “broad-brush” agreement to break in anywhere and steal anything was not sufficiently specific to be relied upon for the purpose of the law of joint criminal enterprise. He submitted that above a certain breadth, the agreement is no more than a mutual intention to explore the possibility of committing an offence or offences, submitting that was not an “agreement” for the purpose of attracting criminal liability. Rather, greater specificity was said to be needed before criminal liability for particular offences could be imputed to the applicant.

62. In the circumstances of the Crown having run a “broad-brush” agreement case, the applicant submitted the evidence of conversations and conduct prior to 3:29am on 14 August 2013 did not allow any conclusion to be safely drawn about the details or nature of the purpose for which the applicant travelled to Sylvania Waters, other than it was likely illegal. He noted that the Crown case was not that he had gone to Sylvania Waters to fulfil a pre-existing plan of motorbike theft. In that context, the applicant’s reference to “bikes” in the phone call made by QF to Kayla at 11:53pm was said to hold less significance. This was because the agreed facts were that the garage containing the 3 motorbikes stolen was not broken into until after midnight on 14 August 2013. He submitted this meant that the bikes in this phone call could not have been the stolen motorbikes the subject of Count 5.

63. In addressing the fact that a call occurred between Mr Nagle and Mr Hastings at 11:52pm which included discussions about a “green one”, a “450” and a “KX”, counsel for the applicant submitted that while it was “tempting” to “join the dots” and conclude this conversation must have been about the green and black 2013 Kawasaki which was stolen (Count 5), there was no evidence before the jury of earlier reconnaissance, or of the garage having a window. On this basis he submitted that there was nothing from which a finder of fact could rationally conclude that the conversation was about the particular Kawasaki that was stolen, because of the agreed fact that this motorcycle was not stolen until after midnight, at least 8 minutes after the call had concluded.

64. The applicant accepted that joint criminal enterprises can be formed “on the spot” and in an “informal way”, submitting that it is likely that the decisions to break into the relevant places, steal the things stolen and take them away the subjects of counts 1-5 were formed in an ad hoc manner by those at the scene participating in it. However, he submitted that the Crown did not put its case on the basis that all 4 co-offenders were together at the relevant times in Sylvania Waters, a position from which it would have been possible to suggest that there was communication between them to the effect that the offences the subject of Counts 1-5 should be committed, and that plainly they were not in fact together at the relevant times.

65. The applicant submitted that the Crown alleged a “free-floating arrangement” that could not found liability for the decision of one or more of those roaming the streets of Sylvania Waters to actually break into a property and steal things, in the absence of any evidence that the applicant had assented to each of those specific plans. It submitted that the evidence in fact indicated that the applicant had failed to make the jump from an agreement to explore with an eye to theft to an agreement to commit a specific offence. It submitted that there must rationally have remained doubt that the offences were committed before 3:29am, after which time the applicant stated he was “cuttin’”. The generalised intent to investigate targets for theft only became a concrete plan caught by the principles of joint criminal enterprise, he submitted, when the agreement was reached between the parties present and able to assist.

66. The applicant conceded that the evidence could lead to the inference that the applicant was in a joint criminal enterprise to steal a trailer, but submitted that the fact of the “trailer” phone call at 3:29am meant that the applicant was physically separated from QF at the time he made the phone call stating that the trailer had a lock on it, and the applicant decided to go, stating “I’m cuttin’”. The applicant submitted that this had to be read with the fact that by 4:49am the applicant was back in Rooty Hill, the trailer actually stolen was unsecured so it could not have been the one in that conversation and that by 4:48am Mr Nagle and the unidentified male did not know where the applicant was. He also pointed to a phone call between Mr Nagle and the applicant at 1:04pm on 14 August 2013 where the applicant asked “how’d you go with the ikebay [bike] and that?” as leading to the inference that the applicant had no knowledge of what occurred in relation to a bike stolen on the night until that point.

67. The applicant submitted that any enterprise to steal a trailer expired on the applicant’s decision to depart, without having borne fruit when he stated “I’m cuttin’”. He submitted that it was not open to the jury acting rationally to infer that the theft which occurred, which was of an unlocked trailer, was pursuant to an agreement involving the applicant.

68. The applicant submitted he was not relying on the evidence to establish withdrawal from a criminal enterprise, but rather the position was that the particular enterprise which the jury could infer he was a part of ended without bearing fruit.

69. At the hearing, counsel for the applicant conceded that if an agreement existed between three people to go to Sylvania Waters to steal unidentified property from an unidentified location and two went ahead and stole particular items, the third could be liable for the theft of those particular items if that third person had done some identifiable act of active participation. However, counsel maintained the difference in this case was that the generalised agreement was over before bearing fruit.

70. Counsel agreed that it would come down to whether the intention to “cut” made by the applicant was something the Crown was not able to adequately deal with such that there remained a doubt about the applicant’s continuing participation. He submitted that there was nothing about the applicant’s stated intention to leave that prevented other persons from making an agreement to do what they had originally intended, and carry that enterprise into effect.

71. Counsel for the applicant also submitted that the conversation in which the applicant stated “I’m cuttin’” strongly suggested that the enterprise was not complete at that point, such that the possibility that all of counts 1, 2, 3, 4 and 5 were committed after the applicant made that comment, that is, after 3:29am, could not be excluded. He submitted that on the evidence it was therefore not open to a jury acting rationally to conclude that the joint criminal enterprise involved in the commission of the specific offences the subject of counts 1-5 was one to which the appellant was a part.

Presence

73. The second contention contained within this ground was that even if the above argument was rejected, the Crown case on each count fails if the applicant’s presence is not proved. I have dealt with this in dealing with Ground 2 above. However, the question remains whether it was unreasonable for the jury to have concluded that the applicant participated in the criminal enterprise the subject of the charges. The submissions relating to presence are relevant to that issue.

74. The applicant submitted that he could not have been present at the time of the offences, based on a “common sense approach” to the facts. The relevant facts included: the length of the journey between Sylvania Waters and Rooty Hill, his stated intention to be “cuttin’ now”, the inference to be drawn that no trailer had been stolen by 3:29am, the fact that the co-offenders had lost the applicant some time before 4:48am, the alleged ignorance of the applicant at 1:04pm on 14 August 2013 as to how a co-offender went with the “ikebay [bike]” and the fact that the telephone tracking records did not show the applicant remained in Sylvania Waters after 3:29am.

75. The applicant also pointed to the fact that by 3:29am he had apparently abandoned an attempt to steal a trailer and stated his decision to leave, and that if the Crown case were accepted and the trailer was used to transport stolen motorbikes, the applicant would have had no need to ask “how’d you go with the ikebay [bike]”. He further submitted that the fact of telephone contact indicated that the 4 co-offenders were not together at all times and the tracking evidence was incapable of proving that the applicant was ever at any of the scenes of Counts 1-5.

The Crown’s submissions

76. The Crown correctly submitted that the Court was required to make an independent assessment as to the sufficiency and quality of the evidence in accordance with the principles set out in Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [465]-[466].

77. The Crown submitted that in line with its position on Ground 2, the participation of the applicant, not his presence, was at issue.

78. The Crown pointed to the cell tower evidence showing the movements of the applicant to and from Sylvania Waters at the relevant times. In relation to the applicant’s argument referred to at [63] above that the 11:53pm phone call in which the applicant referred to “bikes” could not have related to the stolen property, the Crown pointed to the conversation at 11:52pm between QF and Mr Hastings. In that phone call QF indicated that he had located a “13 250” and was “trying to find tools”, and had stated “we’re going to go to the other ones, get them, then put them in here and come back do this one”. The Crown submitted that this evidence allowed for the conclusion that the motorcycles were seen before they were stolen, which the Crown submitted dispensed with the applicant’s argument that he was speaking about bikes that were not the motorcycles the subject of Count 5. It further submitted that the process of reasoning advanced by the applicant was to explain away every individual circumstance as being consistent with innocence, which was warned against by the court in R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480.

79. In relation to the applicant’s submission that the evidence only disclosed a mutual intention to explore the possibility of committing an offence, the Crown pointed to the fact that a car fitting the description of “full weapon hottie” was located burnt out in Blacktown with a trailer attached to it. It further noted that QF stated he was looking for tools just before the applicant was heard speaking in his presence, noting that Count 4 related to the theft of tools, and that the later calls supported a conclusion that the applicant had a financial interest in the proceeds of the offences. The Crown submitted that this all evidenced the agreement and the participation of the applicant in the offences for which he was charged.

80. The Crown referred to the applicant’s submission that any joint criminal enterprise expired without being finalised (see [68]-[69] above) after the applicant had stated “I’m cuttin’”. It was submitted that this contention did not sit well with the conversations in which QF stated he was walking around the waters trying to find tools, and the conversation a minute later where the applicant could be heard in the background of QF’s phone call discussing “all the bikes” and a “full weapon hottie”. The Crown also emphasised that in the 3:29am “trailer conversation” the applicant said ‘Let’s just go’, i.e. ‘Let us go’, submitting this did not lend support to a contention that the applicant was off on a frolic of his own rather than acting pursuant to a joint criminal enterprise.

81. The Crown further pointed to the fact that the unidentified male answered the applicant’s phone at 4:48am and stated to “listen out for the bike” when questioned about the applicant’s whereabouts. It also noted a phone call on 14 August at 7:03pm which in its submission evidenced that Mr Nagle collected one of the bikes from the applicant’s house. The Crown submitted that the conclusion to be drawn was that the applicant became tired of seeking to obtain a trailer to take the bike (the 2008 Wr250 Yamaha) away and instead rode it from Sylvania Waters to his house. At the hearing, the Crown prosecutor submitted that the jury could infer from the conversation where the applicant indicated an intention to be “cuttin’" not an intention to withdraw from the enterprise, but rather that he was leaving the area on his own steam, namely, aboard the stolen motorcycle.

82. In relation to the conversation at 1:04pm on 14 August where the applicant asked QF about the ‘ikebay’, it was submitted that the applicant was referring to QF’s efforts to sell the 2013 Kawasaki 250 and revealed his interest in the stolen property, not a lack of knowledge of the motorcycles.

83. The Crown concluded that all of the evidence disclosed that the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the applicant.

Consideration

84. The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own “independent assessment of the evidence”. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred”: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

85. As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

86. In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48].

87. In my opinion it was open to the jury in the sense described in SKA supra and Libke supra to conclude that the circumstantial evidence established beyond reasonable doubt the guilt of the applicant on each count.

88. I have set out below the reasons I have reached this conclusion. It is convenient to deal with the charges in a somewhat different order to that which appeared on the indictment.

Count 4: Tools

89. The transcript of the phone calls showed that QF spoke to Mr Hastings at 11:52pm from Mr Nagle’s phone, stating they had been “just … walking around on the waters, bro, trying to find some tools”, discussed a “13 250” and that they were “going to go to the other ones, get them, then put them in there and come back do this one”. One minute later, at 11:53pm, QF called Kayla and the applicant was heard in the background of that call. The applicant stated that “once we get a van bra we’ll just [intelligible] all the bikes [unintelligible]” and “[m]others we will get a full weapon hottie”. It was open to the jury to conclude that the applicant was present with QF and Mr Nagle at 11:52pm and included in the “we” who were walking around “the waters” trying to find tools. The jury could also have concluded that these tools were those which were in fact stolen at some point after midnight on 14 August 2013, the subject of Count 4 and that the applicant participated in walking around and trying to find those tools. This participation was sufficient to found liability under the principles of joint criminal enterprise for Count 4.

Count 5: Motorbikes

90. It was also open to the jury to conclude on the evidence of these phone calls that the motorbikes the subject of Count 5 were viewed before the point at which they were stolen, which according to the agreed facts, was after midnight on 14 August 2013. Contrary to the applicant’s submission, it was open for a jury to conclude that the references to motorbikes in the 11:52pm phone call matching the description of the motorbikes which were in fact stolen were the same “bikes” the applicant referred to in the 11:53pm phone call. While the agreed facts were that the offences were not committed until after midnight, this does not preclude the drawing of the inference that the co-offenders identified the bikes prior to carrying out the theft. Further this evidence must be considered in the context of the later communication between the applicant and QF and Mr Nagle which tended to suggest the applicant had a financial interest in the proceeds of the sale of the bikes.

Count 3: Trailer

91. As the applicant conceded, the applicant’s 3:29am phone call expressing his frustration to QF that the trailer in front of him was locked is sufficient to evidence that the applicant was a party to a joint criminal enterprise to steal a trailer. The fact that he stated at the end of that phone call “I’m cuttin’” does not preclude his participation in the enterprise which resulted in the theft of the unlocked trailer the subject of Count 3.

92. This is because the phone call evidence must be considered in the context of the fact that a trailer and a car matching the description of a “full weapon hottie” were found burnt out in Blacktown and the phone cell tower evidence suggesting that QF was in the vicinity of Blacktown South at approximately 4:30am on 14 August 2013. If the applicant’s argument that the unlocked trailer the subject of Count 3 must have been stolen after 3:29am is accepted, it does not preclude the conclusion that the applicant was nevertheless participating in an enterprise to steal a trailer, albeit that the particular trailer was not stolen until after 3.29am.

93. The fact that the applicant may not have been present when the unlocked trailer was in fact stolen does not preclude liability for its theft. His participation in identifying a suitable trailer “up the road” and in fact attempting to steal the locked trailer is sufficient to found liability. Contrary to the applicant’s submission, the agreement to steal a trailer did not end at the point that the locked trailer was abandoned and the applicant announced his intention to “cut”. Rather, it was open to the jury to find that the co-offenders proceeded to unlawfully acquire the trailer the subject of Count 3 pursuant to their subsisting agreement, being the trailer found with the Ford Ranger in Blacktown. Further, the remark by the applicant “I’m cuttin” did not signal withdrawal from that enterprise. This is for two reasons. First, it was open to the jury to conclude from the telephone calls I have referred to at [11] and [12] above, that the applicant rode off on one of the stolen bikes and was involved in arrangements for their disposal, thus evidencing continuing participation in the enterprise. Second, withdrawal from a joint criminal enterprise generally requires more than a mere change of mental intent and a quitting of the scene of the crime immediately prior to its actual commission. It is necessary that the person concerned at least attempts to take steps to undo the effect of his or her prior participation: White v Ridley (1978) 140 CLR 342; [1978] HCA 38 at 347-351, 354.

Counts 1 & 2: Wallet, keys to Ford Ranger, mobile phone and Ford Ranger

94. The phone call at 11.53pm considered in the context of all the evidence, meant it was open to a jury to conclude that the applicant was part of an agreement to steal a vehicle in order to transport the bikes. It was the prosecution case at trial that in the following statement “[o]nce we get a van bra we’ll just [intelligible] all the bikes”, the unintelligible word was “load”. The original recordings of the intercepted calls were provided to the jury for their consideration. It was open to a jury to accept that this was “load”, evidencing the participation of the applicant in an agreement to transport “bikes” using “a van”, or as is later discussed, “a full weapon hottie” and a trailer. It must also be noted that the cell tower data evidenced that the applicant was located in the Sylvania Waters area at that time and then at 2:41am and it was put to the jury, and in my opinion it was open for them to conclude beyond reasonable doubt that the applicant remained in that area throughout this time participating in the joint criminal enterprise.

95. In addition, the fact that this was a circumstantial case means that all of the evidence must be considered as a whole. Phone calls occurring in the days following 13 August 2013 evidence that the applicant was involved in various discussions about the sale of the bikes and had a financial interest in the proceeds of the sale. In one conversation on the 14 August 2013 the applicant stated “I need cash, you know what I mean” in a conversation that it can be inferred relates to the sale of one of the stolen bikes. I do not accept the applicant’s contention that he was ignorant of what happened to the bike at 1:04pm on 14 August 2013 because he asked QF how he went with the “ikebay”. I accept the Crown’s submission that it was open to conclude the applicant was referring to QF’s effort to sell the bike and that it revealed his financial interest in the stolen property. The question suggested he did have knowledge of the theft of the bikes, not the contrary.

96. What I have written above is also sufficient to dispose of the applicant’s argument based on the fact that the agreement lacks sufficient specificity to be relied upon. It was open to the jury to conclude that the agreement ultimately embodied the theft of particular items the subject of Counts 1, 2, 4 and 5 and of a trailer to carry the bikes. This was sufficient to affix the applicant with liability for the theft of the particular items which were stolen for that purpose including the trailer.

97. It follows that this ground of appeal has not been made out.

Conclusion

98. In the result, I would make the following orders:

1. Grant the applicant leave to appeal.

2. Dismiss the appeal.

99. JOHNSON J: I have had the advantage of considering, in draft, the judgment of the Chief Justice.  I agree with the reasons and proposed orders of the Chief Justice.

100. FULLERTON J: I agree with Bathurst CJ.

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Amendments

15 December 2017 - [34] add "Kiefel"

[38] change "we need a" to "we will get a"

[44] change [2003] HCA 7 to [2003] HCA 64

[84] Change (2002) 213 CLR 608 to (2002) 213 CLR 606

[89] change "13250" to "13 250"

Decision last updated: 15 December 2017