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Fan v The King

Fan v The King

Case [2024] NSWCCA 114 12 July 2024

Appeal

Joint Criminal Enterprise

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Fan v R [2024] NSWCCA 114
Hearing dates: 16 February 2024
Decision date: 12 July 2024
Before: Bell CJ at [1];
Button J at [2];
McNaughton J at [202]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – murder – joint criminal enterprise – basic and extended relied upon by Crown – directions to jury – where Crown case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where jury directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct jury that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and joint criminal enterprise – no miscarriage of justice occasioned
CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to jury to return verdicts of guilty on both counts – appeal dismissed

Legislation Cited:
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Crimes Act 1900 (NSW) s 18

Cases Cited:
Batak v R [2024] NSWCCA 66
Carbone v R (No 2) [2024] NSWCCA 7
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Dawson v R [2024] NSWCCA 98
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Wilio [2022] VSC 86
Royall v R (1991) 172 CLR 378; [1991] HCA 27
Russell v R [2023] NSWCCA 196
Shepherd v R (1990) 170 CLR 573; [1990] HCA 56
The Queen v Saunders & Archer at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473

Category: Principal judgment
Parties: Ian Fan (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Buchen SC with C McGorey (Applicant)
M England (Respondent)
Solicitors:
Ting Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/168582
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 November 2020

Before:

Hamill J

File Number(s):

2017/168582

HEADNOTE

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

On 24 November 2020, Mr Ian Fan…

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 Fan v The King

Details

AGLC: Fan v The King [2024] NSWCCA 114
Case: [2024] NSWCCA 114
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the matter of Fan v The King, the High Court of Australia heard an appeal against a conviction for murder. The applicant, Fan, had been found guilty of participating in a joint criminal enterprise which resulted in the death of a person, albeit not the intended target. The case hinged on the legal principles of joint criminal enterprise and transferred malice. The court was tasked with determining whether the trial judge's direction to the jury was correct, particularly concerning the necessary mental element for murder when the deceased was not the intended target. The Crown argued that the applicant's involvement in the joint criminal enterprise, coupled with the acceptance of the risk of serious harm or death to the victim, sufficed for a conviction of murder. The key issue was whether the jury needed to be directed that the applicant had to foresee or agree to the killing or serious injury of the deceased to be found guilty of murder under a joint criminal enterprise.

The High Court found that the trial judge's direction to the jury was appropriate. The court held that the orthodox elements of murder and joint criminal enterprise were sufficient for a conviction, without the need for additional proof of foresight or agreement to the killing or serious injury of the specific victim. The court also found that the verdicts of the jury were not unreasonable, as there was sufficient circumstantial evidence to support the conclusion that the applicant was involved in the criminal enterprise, including admissions and actions taken to conceal his involvement. The court held that the applicant's appeal against conviction and against the unreasonableness of the verdicts should be dismissed.

The High Court found no miscarriage of justice in the verdicts and upheld the applicant's conviction for murder and for the separate count of shooting with intent to murder. The court confirmed that the jury was entitled to find the applicant guilty based on the evidence presented, including the credibility of the civilian witnesses and the applicant's own admissions. The appeal was dismissed, and the conviction stood.

Orders