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DPP v Gebregiorgis

DPP v Gebregiorgis

Case [2023] VSCA 166 14 July 2023

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0092

DIRECTOR OF PUBLIC PROSECUTIONS

ARON GEBREGIORGIS

and

TEAMRAT GEBREGIORGIS KASSA

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JUDGES:	EMERTON P, PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2023
DATE OF JUDGMENT:	14 July 2023
DATE OF REASONS:	14 July 2023
ORIGINATING PROCESS:	Case stated, Hollingworth J, Supreme Court of Victoria, 29 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 166

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CRIMINAL LAW – Case stated – Questions of law reserved for determination by Court of Appeal – Murder – Joint commission – Intention of secondary party – Whether secondary party must encourage primary offender to kill victim – Whether secondary party must agree with primary offender that victim be killed – Not necessary for prosecution to prove that secondary party encouraged primary offender to kill victim or agreed that victim would be killed – Crimes Act 1958 (Vic) ss 323(1)(a) and (c) – Questions answered accordingly.

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Counsel
DPP:	Ms E Ruddle KC with Mr N Hutton and Mr G Buchhorn
For A Gebregiorgis:	Mr C Carr SC
For T Gebregiorgis Kassa:	Ms G Morgan
Solicitors
DPP:	Ms A Hogan, Solicitor for Public Prosecutions
For A Gebregiorgis:	Stary Norton Halphen
For T Gebregiorgis Kassa:	Robinson Gill

EMERTON P:

I have had the considerable advantage of reading a draft of the judgment of Priest and Kaye JJA. I am grateful for their Honours’ clear exposition of the facts, the relevant provisions of the Crimes Act 1958 (‘Act’) and the submissions of the parties.
I agree with their Honours that both questions in the case stated must be answered ‘no’.
Hence, it is not necessary for the prosecution to prove that Aron Gebregiorgis (‘Gebregiorgis’) intentionally encouraged Teamrat Gebregiorgis Kassa (‘Kassa’) to kill the deceased (or vice versa); nor is it necessary for the prosecution to prove that Gebregiorgis entered into an agreement with Kassa that they (whether through the actions of one or the other, or both of them) would kill the deceased. It is sufficient that the encouragement by Gebregiorgis or Kassa and/or the agreement between Gebregiorgis and Kassa was to cause really serious injury to the deceased.
This flows from the language of the relevant provisions of the Act. I agree with and respectfully adopt the textual analysis in [64]–[67] in the judgment of Priest and Kaye JJA.
Nonetheless, I accept the submission made by counsel for Gebregiorgis and Kassa that the enactment of div 1 pt II of the Act in 2014[1] (ss 323–324C) effected fundamental changes to the law of complicity. In line with the recommendations of the Simplification of Jury Directions Project report authored by Weinberg JA in 2012 (‘Weinberg report’), the doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) have been expressly abolished, as has the common law of complicity in relation to aiding, abetting, counselling or procuring.[2]
[1]By the Crimes Amendment (Abolition of Defensive Homicide) Act 2014.
[2]Act, s 324C.
In my view,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Gebregiorgis

Details

AGLC: DPP v Gebregiorgis [2023] VSCA 166
Case: [2023] VSCA 166
Decision Date: 14 July 2023

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Gebregiorgis arose in the County Court of Victoria, where the defendant was charged with murder as a secondary party under the Crimes Act 1958 (Vic). The defendant was alleged to have participated in the joint commission of a murder with another individual. The central issue was whether the prosecution needed to prove that the secondary party encouraged the primary offender to kill the victim or agreed that the victim would be killed. The defendant argued that these elements were necessary for a conviction, whereas the prosecution contended that they were not.

The court was tasked with determining the legal requirements for establishing the role of a secondary party in a murder committed jointly with a primary offender. Specifically, the court had to examine whether the prosecution needed to prove that the secondary party encouraged the primary offender to kill the victim or agreed that the victim would be killed. This involved an interpretation of sections 323(1)(a) and (c) of the Crimes Act 1958 (Vic). The court considered the established legal principles regarding joint criminal enterprise and the role of secondary parties in such scenarios.

In resolving these issues, the court found that it was not necessary for the prosecution to prove that the secondary party encouraged the primary offender to kill the victim or agreed that the victim would be killed. The court held that the relevant statutory provisions did not require these elements for a conviction of murder as a secondary party. The court emphasised that the critical factor was the secondary party's intention to assist, encourage, or aid the primary offender in committing the crime, which was sufficient to establish the defendant's guilt. Consequently, the court answered the reserved questions in favour of the prosecution, clarifying the legal standards applicable to secondary parties in joint criminal enterprises.

Orders