Director of Public Prosecutions v Roberts (Ruling No 12)
[2022] VSC 292
•2 June 2022
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0324
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JASON JOSEPH ROBERTS | Accused |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 June 2022 |
DATE OF RULING: | 2 June 2022 |
CASE MAY BE CITED AS: | DPP v Roberts (Ruling No 12) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 292 |
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CRIMINAL LAW — Murder — Joint criminal enterprise — Requisite participation by accused – Taufahema v The Queen [2007] NSWCCA 33 considered, R v Tangye (1997) 92 A Crim R 545 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Ihle QC with Mr G Hayward | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Hallowes SC with Mr M McGrath | Stary Norton Halphen |
HIS HONOUR:
The accused man, Jason Roberts, is charged with the murder of Sergeant Gary Silk (charge 11) and Senior Constable Rodney Miller (charge 12) on 16 August 1998 at Moorabbin.
The prosecution case is that the accused man was a passenger in a Hyundai Excel vehicle driven by Bandali Debs when it was intercepted by Sergeant Silk and Senior Constable Miller in Cochranes Road, Moorabbin shortly after midnight on 16 August. The prosecution alleges that after the interception, Debs shot and fatally wounded Senior Constable Miller in the chest with a .357 Magnum calibre handgun, that the accused man shot Sergeant Silk in the chest with a .38 calibre Smith & Wesson revolver, and that subsequently Debs shot Sergeant Silk in the hip and in the head with his .357 Magnum revolver. The accused man denies that he was present in the Hyundai vehicle when it was intercepted by the police and accordingly he denies that he was criminally involved in the murder of the two police members.
There are thus two principal issues which the jury must determine in the present case. First, in order to convict the accused, the jury must be satisfied, beyond reasonable doubt, that he was present at the time at which Sergeant Silk (charge 11) and Senior Constable Miller (charge 12) were shot and killed. Secondly, if the jury is satisfied beyond reasonable doubt that the accused was present at the scene at that time, the prosecution must establish that he was relevantly criminally involved in and responsible for the murder of each of the two police members.
On each of the two charges, the prosecution relies on alternative bases, one of which is that the accused man was complicit in the murder that is the subject of the charge because he was a party to and participated in a joint criminal enterprise pursuant to which the offence was committed. A question has arisen as to how I should direct the jury in respect of one aspect of the manner in which the prosecution puts its case in that way, namely, the requisite participation by the accused man in the agreed joint criminal enterprise.
On charge 11 (the murder of Sergeant Silk), the prosecution seeks to put its case against the accused man on two alternative bases. First, the prosecution contends that the accused man himself fired the shot which caused the death of Sergeant Silk. Alternatively, the prosecution case is that if the jury is not satisfied beyond reasonable doubt that the accused man fired the shot which resulted in the death of Sergeant Silk, he is guilty of the murder of Sergeant Silk on the grounds that he was criminally complicit in it.
In that respect, the prosecution case is that the accused was criminally complicit in the death of Sergeant Silk on two alternative bases. First, it is put that the accused aided and abetted Debs in the murder of Sergeant Silk. Alternatively, complicity is put on the basis of the accused’s participation in a joint criminal enterprise. In that respect, it is alleged that the accused was a party to, and participated in, an agreement or understanding with Debs that they would use their firearms to prevent their apprehension or detention, including by killing or causing really serious injury to any person who tried to apprehend or detain them; and, pursuant to that agreement or understanding, Debs shot and killed Sergeant Silk.
In respect of both of those two forms of criminal complicity, the prosecution case on charge 11 is that the accused man aided and abetted the murder by Debs of Sergeant Silk, or participated in a joint criminal enterprise with Debs to murder Sergeant Silk, by himself shooting Sergeant Silk.
On charge 12, the prosecution does not put that the accused man himself fired the shot which caused the death of Senior Constable Miller. The prosecution case is that Debs fired the shot which resulted in Senior Constable Miller’s death.
The prosecution case on charge 12 is that the accused man was criminally complicit in the murder of Senior Constable Miller on two alternative bases. First, it is put that the accused man aided and abetted Debs in the murder of Senior Constable Miller. Alternatively, the case of criminal complicity is put on the basis of a joint criminal enterprise. The prosecution alleges again that the accused man was a party to, and participated in, an agreement or understanding with Debs that they would use their firearms to prevent their detention or arrest, by killing or causing really serious injury to any person who tried to apprehend or detain them; and, pursuant to that agreement or understanding, Debs shot and killed Senior Constable Miller.
As with charge 11, the prosecution case on charge 12 will be that the accused man aided and abetted the murder by Debs of Senior Constable Miller, or participated in a joint criminal enterprise with Debs to murder Senior Constable Miller, by himself shooting Sergeant Silk.
Before the commencement of the trial, the prosecution filed a document entitled ‘Basis of Complicity’ in which it outlined each of those bases upon which it would allege that the accused man was guilty of each charge. In respect of charge 11, the prosecution specified that the basis, upon which it would contend that the accused man should be found guilty of the murder of Sergeant Silk, was by his participation in a joint criminal enterprise. Relevantly, the prosecution specified that the act of participation by the accused, in the murder of Sergeant Silk, was that ‘by shooting Silk, the accused participated in the joint criminal enterprise’. In respect of charge 12, the prosecution similarly specified the act of participation by the accused in the murder of Senior Constable Miller as being constituted by his shooting of Sergeant Silk (with the .38 Smith & Wesson revolver).
Before the commencement of the trial, I formulated and provided to counsel a draft summary of the elements of the two charges which I intend to provide to the jury in my charge at the conclusion of the trial. The document was provided to counsel to ensure that there be a common understanding as to the manner in which the elements of the two charges would be explained to the jury.
In accordance with the manner in which the prosecution had stated that it intended to put its case, on each charge, on the basis of joint criminal enterprise, the draft document specified that the prosecution must prove beyond reasonable doubt the following four elements:
(1) The accused was a party to an agreement or arrangement or understanding with Debs that they would use their firearms to prevent their lawful apprehension or detention, by killing or causing really serious injury to any person who tried to apprehend or detain them.
(2) In accordance with that agreement, arrangement or understanding, Debs shot and killed (in the case of charge 11) Sergeant Silk and (in the case of charge 12) Senior Constable Miller.
(3) The accused participated in the joint criminal enterprise (in the case of charge 11) ‘by doing an act in furtherance of the commission by Debs of the murder of Sergeant Silk’, and (in the case of charge 12) ‘by doing an act in furtherance of the commission by Debs of the murder of Senior Constable Miller’.
(4) At the time at which the accused became a party to the agreement, arrangement or understanding, and at the time at which he participated in the killing of the particular police member, the accused intended that Debs and he would use their firearms to kill or cause really serious injury to any person who tried to apprehend or detain them.
That formulation, of the prosecution case based on joint criminal enterprise, was accepted and agreed by the parties before the empanelment of the jury.
Consistently with the document which the prosecution had filed before the commencement of the trial, senior counsel for the prosecution opened the case on the basis that the requisite act of participation by the accused, in the joint criminal enterprise in respect of each charge, was his action of discharging his .38 calibre revolver at Sergeant Silk.[1]
[1]Transcript of Proceedings (24 March 2022) 167–168.
In the preliminary instructions that I gave to the jury, after the completion of openings in the case, I directed the jury that, in order that the accused be guilty of either offence on the grounds of criminal complicity, either on the basis of aiding and abetting, or on the basis of joint criminal enterprise, he must first have shot Sergeant Silk (in the case of charge 11) before Debs fired the shot which caused the death of Sergeant Silk (charge 11), and (in the case of charge 12) before Debs fired the shot which caused the death of Senior Constable Miller. In particular, I directed the jury that in order to be satisfied of the accused’s guilt on the basis that he participated in the joint criminal enterprise that is sought to be established by the prosecution, the jury must be satisfied, beyond reasonable doubt, (in the case of charge 11) that the accused shot Sergeant Silk before Debs fired the shot which caused Sergeant Silk’s death, and (in the case of charge 12), that the accused shot Sergeant Silk before Debs fired the shot which struck Senior Constable Miller and which resulted in his death.
It is that aspect of the directions that I gave to the jury to which the prosecution takes exception. In particular, it is submitted that it is not necessary that the jury be satisfied beyond reasonable doubt that, in order that the accused man had participated in the joint criminal enterprise, he must have shot Sergeant Silk (on charge 11) before Debs shot and killed Sergeant Silk, and (on charge 12) before Debs shot and killed Senior Constable Miller.
Submissions
The prosecution provided a written outline of its position, and made oral submissions, in support of that contention.
In the written outline, the prosecution submitted that there are two aspects of the preliminary directions, that I gave to the jury, which require reconsideration. First, it is submitted that the third element of joint criminal enterprise, which the prosecution must prove, is participation by the accused in the joint criminal enterprise, which is not necessarily, in the present case, the same as the accused man doing an act in furtherance of the particular charged offence. Thus, it was submitted, the jury should be directed that the prosecution must prove that the accused man participated in the joint criminal enterprise of using a firearm to avoid lawful apprehension. In particular, it was submitted that the requisite participation need not necessarily be an act in furtherance of the charged offences, so long as it contributed to the use of firearms to avoid lawful apprehension.
The second, related, submission in the outline, is that liability, on the basis of a joint criminal enterprise, does not require that the act of participation by the accused occur at any particular point in the execution of the enterprise. More particularly, it was submitted, the law does not require that participation must precede the criminal actions of another party to the agreement. In support of that submission, the prosecution relied on the decision of the New South Wales Court of Criminal Appeal in Taufahema v The Queen.[2]
[2][2007] NSWCCA 33 (‘Taufahema v The Queen’).
In the written submissions, the prosecution noted that a person may participate in a joint criminal enterprise ‘simply by being present when the crime is committed pursuant to the agreement’.
That proposition does not, of itself, accurately reflect the principles established by the authorities cited in the outline in support of it. Ordinarily, mere presence alone is not, of itself, sufficient to constitute the requisite participation by an accused in a joint enterprise to commit a criminal offence. As Hunt CJ at CL stated in R v Tangye, presence may be sufficient if the accused in that way manifests a readiness to give aid if required so as to encourage the principal offender to commit the crime that is the subject of the joint criminal enterprise.[3] That proposition is illustrated by the circumstances of the two cases to which the prosecution referred in the outline.[4]
[3]R v Tangye (1997) 92 A Crim R 545, 557 (‘Tangye’).
[4]Hui Chi-ming v The Queen [1992] 1 AC 34, 45, 53 (Lord Lowry for the Court) (Privy Council) (‘Hui Chi-ming’); Huynh v The Queen (2013) 228 A Crim R 306, 312 [22], 315 [35], 316 [38] (French CJ, Crennan, Kiefel, Bell and Gageler JJ) (‘Huynh’).
However, in any event, in his oral submissions, senior counsel for the prosecution expressly disavowed reliance on mere presence as being sufficient to constitute the requisite participation by the accused in the alleged joint criminal enterprise. Consistently with the way in which he opened the case to the jury, senior counsel submitted (correctly) that presence at the scene of the crime, in the present case, would be necessary, but not sufficient, to constitute the necessary participation by the accused man in the murder of Sergeant Silk and the murder of Senior Constable Miller. Senior counsel confirmed that the prosecution relies solely on the alleged conduct of the accused man in firing two shots at Sergeant Silk (one of which struck him in the chest) as the act of participation by him in the alleged joint criminal enterprise in respect of the murder of Sergeant Silk (charge 11) and the murder of Senior Constable Miller (charge 12).
The principal submission by senior counsel for the prosecution was that, in effect, there are two categories of liability by reason of an accused person’s participation in a joint criminal enterprise as defined by the High Court in Johns v The Queen[5] and in McAuliffe v The Queen.[6] The first category involves criminal liability where the accused participates in a joint enterprise to commit a specific criminal offence. The second category involves criminal liability where the accused participates in a joint criminal enterprise to commit a criminal offence, and in the course of which another crime, that falls within the common purpose, is committed in carrying out that common purpose. Counsel submitted that, in a case involving the second category of joint criminal enterprise, an accused’s participation need not be in respect of, or precede, the commission of the crime that is charged against the accused.
[5](1980) 143 CLR 108 (‘Johns’).
[6](1995) 183 CLR 108, 114–15 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ) (‘McAuliffe’).
Counsel submitted that in the present case, the two crimes of murder, with which the accused man is charged, fall within the second, and not first, such category. He contended that in such a category, the timing of the participation needs to be in relation to the execution of the primary criminal intention of the joint enterprise, and not in relation to any specific crime committed pursuant to that enterprise. He contended that in the present case the ‘primary criminal intention’ of the joint enterprise had not been executed until both police, Sergeant Silk and Senior Constable Miller, had been rendered incapable of apprehending or arresting the accused man and Debs.
Legal principles
The essential ingredients of criminal liability, pursuant to the principles of joint criminal enterprise, are well established. In McEwan v The Queen[7] they were outlined by the Court of Appeal in the following terms:
[7](2013) 41 VR 330 (‘McEwan’).
It is now settled that complicity under a joint criminal enterprise will arise if the prosecution establishes the following:
(1)That the accused has reached an agreement or understanding with one or more other persons to pursue a joint criminal enterprise that remained in existence at the time the offence was committed.
(2)That the accused participated in that joint enterprise in some way.
(3)That in accordance with the agreement, one or more parties to the agreement performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence.
(4)That at the time of entering into the agreement the accused had the state of mind required for the commission of the relevant offence.[8]
[8]Ibid 336–7 [32] (Redlich and Coghlan JJA and Dixon AJA) (citations omitted).
In a case in which each of those four prescribed elements of complicity under a joint criminal enterprise are established, the actions of the parties to the joint criminal enterprise will be attributed to all other parties to that enterprise, so that each party participating in the joint criminal enterprise will be liable for the criminal acts of the others.[9]
[9]Ibid 337 [33].
In order to establish the existence of a joint criminal enterprise, the prosecution must first prove an agreement between the relevant parties to commit a criminal offence.[10] The offence, with which the accused person is charged, must be an offence that was within the contemplation of the parties to the agreement.[11]
[10]R v Taufahema (2007) 228 CLR 232, 246–7 [31] (Gleeson CJ and Callinan J), 255 [51] (Gummow, Hayne, Heydon and Crennan JJ), 276 [120] (Kirby J).
[11]McAuliffe (1995) 183 CLR 108, 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).
In the present case, the prosecution alleges that Debs and the accused were, in effect, parties to an agreement to commit an offence under s 29 of the Crimes Act 1958, namely, to use their firearms with the intention of resisting or preventing their lawful apprehension or detention, including by killing someone or causing really serious injury to that person.
It is, of course, no offence to attempt to evade apprehension by a police officer.[12] The criminal offence, that is the subject of the joint criminal enterprise contended for by the prosecution, is the agreed use of firearms with the specific purpose of resisting or preventing their lawful apprehension. The prosecution case, on each charge, insofar as it is based on joint criminal enterprise, is that Debs, in accordance with the common agreement to commit that crime, shot and killed Sergeant Silk (charge 11) and shot and killed Senior Constable Miller (charge 12). It was those actions of Debs that the prosecution contends fall within the scope of the joint criminal enterprise to which the accused man was a party.
[12]R v Taufahema (2007) 228 CLR 232, 243 [21] (Gleeson CJ and Callinan J); DPP v Hamilton (2011) 33 VR 505, 515 [40] (Kaye J).
In order that the accused man be guilty of the commission of either offence on the basis of his involvement in the joint criminal enterprise that is alleged, the prosecution must establish that the accused man participated in — that is, acted in furtherance of — the particular criminal activity that was committed within the scope of the joint criminal enterprise.[13] It is that participation by the accused man that would make him a party to, and thus guilty of, the commission of the particular offence in question, namely, (in the case of charge 11) the murder of Sergeant Silk, and (in the case of charge 12) the murder of Senior Constable Miller.
[13]R v Clarke [1986] VR 643, 653 (Crockett, McGarvie and Southwell JJ) (‘Clarke’); Likiardopoulos v The Queen (2010) 30 VR 654, 668–9 [61]–[63] (Buchanan, Ashley and Tate JJA); Huynh (2013) 228 A Crim R 306, 308 [5], 312 [22] (French CJ, Crennan, Kiefel, Bell and Gageler JJ); Dickson v The Queen (2017) 94 NSWLR 476, 486 [41], 491–2 [60] (Bathurst CJ, Johnson and Fullerton JJ agreeing at 499); Falzon v The Queen [2019] VSCA 294, [50] (T Forrest JA, Maxwell P agreeing at [1], Priest JA agreeing at [2]).
In Tangye Hunt CJ at CL (with whom McInerney and Sully JJ agreed) stated the relevant principles in the following terms:
So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(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, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4)If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.[14]
[14]Tangye (1997) 92 A Crim R 545, 556–7 (emphasis added) (citation omitted). See also Osland v The Queen (1998) 197 CLR 316, 343 [73] (McHugh J) (‘Osland’); Sever v The Queen [2010] NSWCCA 135, [144] (Latham J); R v Chishimba & Ors [2010] NSWCCA 228, [29] (Macfarlan JA, James and McCallum JJ agreeing).
Relevantly, for present purposes, in that passage Hunt CJ defined the requisite participation as an act in furtherance of the particular crime committed within the scope of the joint criminal enterprise.[15]
[15]Tangye (1997) 92 A Crim R 545, 557.
More specifically, it is evident that the participation must be some conduct by the accused which was in furtherance of the commission of the criminal act which was the subject of the joint enterprise. That proposition is a necessary corollary of the principle that the liability of parties to a joint criminal enterprise may be different depending on their respective mental intentions or circumstances.
In Osland v The Queen (‘Osland’) the accused and her son were both charged on indictment with the murder of the accused’s husband and the son’s step-father. The prosecution case was that the accused and the son together planned to murder the deceased. In furtherance of that plan, the accused mixed sedatives in the deceased’s dinner, and, while he was asleep, the son struck and killed him with an iron pipe in the presence of the accused. The accused and her son were jointly tried. At their trial they both gave evidence, in which they relied on the defences of provocation and self-defence. Those defences were based on evidence of violent behaviour by the deceased. The son gave evidence that on the evening in which he killed the deceased, the latter had threatened to kill him.
At the trial the accused was convicted of murder, but the jury was unable to reach a verdict with respect to the son. At a subsequent trial, the son was acquitted. On appeal, the High Court held that the conviction of the accused was not inconsistent with the jury’s failure to reach a verdict in respect of her son.
McHugh J (with whom Kirby J agreed on this point), referring to the statement of principles in Tangye, noted that the liability of each participant in a joint criminal enterprise is for the acts that constitute the actus reus of the offence.[16] His Honour stated:
[I]t is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, defence, provocation, duress or insanity.[17]
[16]Osland (1998) 107 CLR 316, 343 [73].
[17]Ibid 344 [75].
It is a necessary consequence of those principles that, in order that an accused person be liable for the criminal act or acts of a principal offender, the accused must have participated in the performance by the principal offender of that act or those acts. In other words, the accused must have done something in furtherance of the performance by the principal offender of that act or those acts.
The principle, that the relevant act of participation must be an act in furtherance of the commission of the particular criminal act that is the subject of the charge against the accused, is illustrated by the decision of the Court of Appeal in Arafan v The Queen.[18]
[18](2010) 31 VR 82.
In that case, the applicant and one Baini were jointly presented on an indictment containing 68 charges of blackmail. The prosecution case was that, pursuant to a joint criminal enterprise of which the applicant was a party, Baini made particular threats to harm the victim, one Rifat, or his family or business, unless his demands for money were met. As a consequence, the victim sent money to Baini on a number of occasions. He also sent money to the applicant on some thirteen occasions. The applicant did not at any stage threaten Rifat or demand money from him. It was the receipt of those monies, by the applicant, that ultimately, was relied on by the prosecution as an act in furtherance of the alleged joint criminal enterprise between Baini and the applicant. The Court of Appeal held that, as the offence of blackmail is complete upon the making of an unwarranted demand with menaces, the receipt by the applicant of the monies from the victim could not constitute the requisite acts of participation by him in the joint criminal enterprise with Baini.[19]
[19]Ibid 98 [73]–[74] (Maxwell P and Weinberg JA).
In reaching that conclusion, Maxwell P and Weinberg JA in their joint judgment stated:
As the Crown fairly conceded, ‘participation’ in the relevant sense requires the doing of some act which can properly be described as being ‘in furtherance’ of the particular offence charged, in this case, blackmail. […]
Rifat’s payments of significant sums, on a regular basis, into the applicant’s account might be seen as providing support for the contention that he was a participant in an arrangement or understanding with Baini to blackmail Rifat. It is questionable, however, whether the mere receipt of such monies is capable of constituting ‘participation’ in the commission of that offence.
In that regard, it must be remembered that blackmail consists of making an unwarranted demand with menaces, with a view to gain. The offence is complete at the moment the demand is made. There is no requirement that any money actually be paid.
The applicant’s receipt of various sums, even if the timing of the payments be generally in accord with the date of the alleged demands, cannot logically be viewed as acts done ‘in furtherance’ of the commission of each of the offences charged. That was effectively conceded by the Crown in oral submissions before this Court, and correctly so.[20]
[20]Ibid 98 [71]–[74]. See also Clarke [1986] VR 643, 653 (Crockett, McGarvie and Southwell JJ).
The foregoing propositions are further supported by the principles that relate to the concept of extended common purpose. In such a case, a participant in a joint criminal enterprise may be liable, not only for criminal acts which fall within the scope of the agreed joint enterprise, but also for any crime committed by a party to the enterprise, which the accused person foresaw might be committed in the course of their conduct of the joint enterprise.[21] In such a case, the essence of the criminal liability lies in the participation by an accused person in the joint enterprise with the requisite foresight that the particular crime might be committed. Axiomatically, the participation of the accused, with the prescribed foresight, must precede the commission by the co-offender of the criminal act or acts that constitute the charged offence.
[21]McAuliffe (1995) 183 CLR 108, 117–18 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Gillard v The Queen (2003) 219 CLR 1, 12 [21], 13 [24] (Gleeson CJ and Callinan J), 36 [112] (Hayne J); Clayton v The Queen (2006) 231 ALR 500, 504–5 [17] (Gleeson CJ, Gummow, Hayne, Heydon, Callinan and Crennan JJ).
In McAuliffe, Brennan CJ, Deane, Dawson, Toohey and Gummow JJ, in their joint judgment, stated:
the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.[22]
[22]McAuliffe (1995) 183 CLR 108, 118.
In a number of cases, including in the passage from McEwan which I have quoted above, the requisite participation is expressed as participation by the accused ‘in the joint enterprise’.
In McEwan, the joint enterprise in question was an agreement by the three accused to assault a particular victim (Shaw) with the intention to kill him or cause him really serious injury. In Tangye, the joint enterprise comprised the participation by the accused and others in an impromptu street altercation near a nightclub in which two victims, of the group which was attacked, were seriously injured.[23] In Osland, the enterprise in question involved the intentional killing of the husband of the accused. In Likiardopoulos v The Queen,[24] the relevant enterprise consisted of a savage and prolonged beating of the victim by a number of assailants, including the appellant, over a period of two days in the appellant’s house.
[23]Tangye (1997) 92 A Crim R 545, 558.
[24](2012) 247 CLR 265.
In each of those cases, the requisite participation by the particular accused was constituted by conduct by that accused in furtherance of the joint enterprise before the principal offender performed the acts, which constituted the actus reus of the offence with which the accused was charged. Relevantly, in none of those cases is it suggested that the necessary participation by the accused in the joint criminal enterprise could be an act performed by the accused after the commission of the act or acts that constituted the actus reus of the offence charged against the accused.[25]
[25]See also Hui Chi-ming [1992] 1 AC 34, 45, 53 (Lord Lowry for the Court) (Privy Council); Huynh (2013) 228 A Crim R 306, 312 [22], 315 [35], 316 [38] (French CJ, Crennan, Kiefel, Bell and Gageler JJ).
As I have noted, senior counsel for the prosecution has sought to distinguish those cases, because, he submitted, they fall within the ‘first category’ of the joint criminal enterprise principles discussed in Johns and McAuliffe. He submitted that in respect of the ‘second category’, comprising offences which fall within the scope of the enterprise, but which are not the specific purpose of the enterprise, it is not necessary that the act of participation precede the actual offence charged, provided that the accused relevantly participated in furtherance of the enterprise.
There are a number of difficulties involved in that submission. First, I am not persuaded that in McAuliffe the High Court delineated two ‘categories’ of joint criminal enterprise as submitted by senior counsel for the prosecution. Rather, it defined the ambit of the agreement or understanding that must be established in order to prove the complicity of the secondary offender. In the passage in question, the court commenced by stating that the complicity of the secondary party may be established by reason of an understanding or agreement between that person and another or others to commit a crime. The Court then stated:
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. … the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.[26]
[26]McAuliffe (1995) 183 CLR 108, 114 (citation omitted).
Relevantly, in McAuliffe, one of the bases upon which the prosecution put its case on the charge of murder against the accused was an agreement between the three offenders that they would bash and rob one or more of a group of people at a park.[27] That basis would fall within the ‘second category’ described by senior counsel for the prosecution. The High Court did not identify any different principles which would apply in that respect, that is, where the offence charged against the accused was not an offence specifically agreed between the parties, but one falling within the scope of the agreed common purpose as contemplated by the offenders.
[27]Ibid 112.
Further, in the present case, it would seem that the joint criminal enterprise, relied on by the prosecution, would in fact come within the first, and not second, ‘category’ of such an enterprise contended for by the prosecution. As I have mentioned, the joint criminal enterprise alleged in the present case consisted of an agreement between the accused and Debs that they would ‘use’ firearms to resist or prevent lawful apprehension or detention, including by causing really serious injury to, or killing, another person. The action by Debs in shooting Senior Constable Miller — the discharge by him of his firearm — would plainly be a relevant ‘use’ of the firearm, and thus would come within the terms of the joint enterprise. As such, the prosecution would not need to rely on the second ‘category,’ namely, any ‘other crime falling within the scope of the common purpose which is committed in carrying out that purpose … the scope of the common purpose [being] determined by what was contemplated by the parties sharing that purpose’.[28]
[28]Ibid 114 (citation omitted).
In essence, the prosecution argument is based on the premise that the joint criminal enterprise, that it alleges — an agreement between Debs and the accused to use their firearms, if necessary, to prevent their lawful apprehension or detention — was not complete until the accused shot Silk. Thus, it is submitted, the accused participated in that enterprise, by shooting Sergeant Silk, irrespective of whether he did so before or after Debs fatally wounded Senior Constable Miller.
As I have discussed, the criminal offence, which was the subject of the joint criminal enterprise relied on by the prosecution, was not the prevention by Debs and the accused of their detention or apprehension. Rather, the criminal aspect of the joint enterprise comprised the use by Debs and the accused of their firearms to avoid apprehension and detention. If, after Debs shot Senior Constable Miller, the accused man subsequently shot Sergeant Silk, that action by the accused man was not, and could not be, an action by him in participation in the joint criminal enterprise by which Senior Constable Miller was shot and killed.
The proposition contended for by the prosecution would, if accepted, produce a result which would be inconsistent the basic principles of criminal justice. In the present case, at the time that Debs discharged the shot which struck Miller, and resulted in his death, the criminal action constituting the charge of murder was complete (albeit that Miller did not die until later that morning). If, on the facts found by the jury, Debs shot Miller and the accused man then shot Silk, it would follow that, at the point in time at which Debs shot Miller, the accused man could not have participated in, and thus been implicated in, that criminal offence. It would be contrary to fundamental principle for the accused man to be retrospectively implicated in the completed offence by conduct performed by him after that point in time, whether by shooting Sergeant Silk or by any other such conduct.
It follows, from the foregoing discussion, that an accused person could not be guilty of an offence committed by another party to a joint criminal enterprise, unless the accused person participated in that enterprise before the other party (or parties) performed the criminal act which constituted the charged offence. Otherwise, an act, subsequently performed by the accused, could not have been performed in furtherance of the joint enterprise by which that offence was committed.
Apart from referring to the decision of the New South Wales Court of Criminal Appeal in Taufahema v The Queen, counsel did not refer to or cite any case in which the required act of participation was performed by the accused after the principal offender had committed the act or acts that constituted the charged offence.
On analysis, Taufahemav The Queen does not assist the position contended for by the prosecution. In that case, a police officer gave chase to a vehicle, in which the appellant and three other associates were travelling, which the police officer had observed driving at an excessive speed in western Sydney. Each of the occupants of the vehicle, including the appellant, was carrying a loaded firearm. After the vehicle struck a gutter and stopped, the four men exited it. One of them, Penisini, fired five shots at the police officer, four of which struck him, and resulted in his death. After a short pursuit, the appellant and his associates were each captured by other police.
At the appellant’s trial, the prosecution put the case of murder on two alternative bases, one of which alleged his guilt on the basis of his involvement in a joint criminal enterprise. The prosecution case was that the appellant and his three associates were parties to a joint criminal enterprise to use their firearms by brandishing or pointing them at the police officer, and that they contemplated the possibility of injury or death arising from the use of the firearms to avoid lawful apprehension. On the appellant’s appeal against conviction, it was held that, in instructing the jury on that aspect of the prosecution case, the trial judge erred in failing to specify that the accused could only be convicted on that basis, if the prosecution could establish that the accused understood that Penisini might use his firearm with the intention of either killing or causing serious injury to another.[29]
[29]Taufahema v The Queen [2007] NSWCCA 33, [27]–[33] (McClellan CJ at CL).
The prosecution in this case seeks to rely on Taufahema v The Queen because, although a retrial was ordered due to the misdirections by the trial judge regarding the requisite mental element in the offence, there was ‘no complaint’ that the accused’s participation in the joint criminal enterprise, which occurred after the fatal shot had been inflicted by the co-offender, was insufficient for a finding of guilt.
The circumstance that the accused, in Taufahema v The Queen, might not have relied on such a point on appeal, cannot render the decision of the Court of Criminal Appeal authority for the proposition that an act of participation by an accused, after the criminal offence has been committed, is sufficient for the purposes of the implication of the accused in the crime alleged pursuant to the principles relating to liability by involvement in a joint criminal enterprise.
In any event, it is not evident that in Taufahema the prosecution relied on any action or conduct by the accused after Penisini shot and killed the police officer. Rather it would seem that the prosecution relied on the accused’s conduct, in embarking on the alleged criminal enterprise that involved the parties brandishing or pointing their firearms at the police officer with the intention of enabling them to escape apprehension by him,[30] which conduct necessarily preceded the action by Penisini of fatally shooting the police officer.
[30]Ibid [9].
Accordingly, the decision of the New South Wales Court of Criminal Appeal in Taufahema v The Queen does not provide support for the proposition that, in a case such as the present, the necessary act of participation by the accused may be constituted by an act performed by him after the commission by the principal offender of the criminal offence with which the accused is charged.
As I have noted, I have not been referred to any other authority which provides any support for that proposition. On the contrary, the proposition would, if accepted, be inconsistent with the principles discussed in the authorities to which I have referred.
It follows that, based on the accused man’s involvement in the joint criminal enterprise relied on by the prosecution, the accused man could not be convicted of either offence charged against him (in charges 11 and 12), unless he participated in that enterprise before Debs performed the criminal act which constituted the charged offence. Otherwise, an act, subsequently performed by the accused, could not have been performed by him in furtherance of the joint enterprise, alleged by the prosecution, pursuant to which that offence was committed.
As noted, on charge 11 and on charge 12, the prosecution has relied solely on the alleged conduct by the accused in shooting Sergeant Silk in the chest with the .38 calibre Smith & Wesson round, as the relevant act of participation by him in the joint criminal enterprise by which the prosecution contends that the accused man is guilty of that particular charge.
Accordingly, in order to convict the accused man, on the basis of his involvement in that joint criminal enterprise, the jury must be satisfied, beyond reasonable doubt, on charge 11, that the accused man shot Sergeant Silk before Debs fired the shot or shots which caused the death of Sergeant Silk, and, on charge 12, the jury must be satisfied, beyond reasonable doubt that the accused man shot Sergeant Silk before Debs fired the shot which resulted in the death of Senior Constable Miller.
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