Joel Parker Henderson v The Queen
[2016] VSCA 61
•6 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0242
| JOEL PARKER HENDERSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG AP, PRIEST and BEACH JJA |
| WHERE HELD: | BALLARAT |
| DATE OF HEARING: | 5 April 2016 |
| DATE OF JUDGMENT: | 6 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 61 |
| JUDGMENT APPEALED FROM: | The Queen v Henderson [2015] VSC 653 (Bongiorno JA) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Joint criminal enterprise – Participation – Whether trial judge misdirected the jury on participation and presence – Whether verdict is unsafe and unsatisfactory – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr D Trapnell QC and Ms K Argiropoulos | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG AP:
I agree with Priest JA.
PRIEST JA:
Introduction
Timothy O’Brien — referred to throughout the applicant’s trial for murder as ‘Timmy’ — was aged 14 years when he died as a result of being struck multiple times to the head with an axe wielded by Darren Wilson (‘Wilson’). Joel Henderson, the applicant, was present when Wilson struck the deceased with the axe, and had himself earlier assaulted the deceased with it. The prosecution’s case for murder against the applicant was one of joint criminal enterprise.
A jury found the applicant guilty of the murder of Timothy O’Brien on 7 August 2015. He seeks leave to appeal against that conviction on two grounds:
1.The verdict is unreasonable or unable to be supported having regard to the evidence. In particular —
(a)it was not open to the jury to infer that an agreement was formed between the applicant and Wilson in the front yard to kill or cause really serious injury to the deceased;
(b)alternatively, it was not open to the jury to conclude that the applicant participated in the alleged joint criminal enterprise.
2.The learned trial judge erred in directing the jury that the applicant could have participated in the alleged joint criminal enterprise by his:
(a)presence; and/or
(b)failure to intervene to stop Darren Wilson’s attack on the deceased; and/or
(c)supply of the murder weapon.
In my view, neither ground has substance. Leave to appeal against conviction must be refused.
Overview
Timothy O’Brien was an autistic boy, who, as I have mentioned, was aged 14
years when he was killed. Wilson was aged 35 years. The applicant was aged 39 years.
At the time that he died, Timothy O’Brien lived with his mother, Deborah O’Brien, and his stepfather, Peter Williams (‘Williams’), in Smythesdale (which is not far from Scarsdale). Williams and Wilson are cousins. They were not on friendly terms.
The killing took place on Saturday, 5 January, 2013, in the front yard of a house in Scarsdale, occupied by Rachel Curtis (‘Curtis’), Jess Conry-Rasmini (‘Conry-Rasmini‘) and her boyfriend, Dylan Hamilton (‘Hamilton’). Curtis knew Williams because he did ‘odd jobs’ at the house.
In the early hours of that day, the applicant, Wilson and Lisa Trezise (‘Trezise’) — who was accompanied by her two children — met in Ballarat, and then travelled to Scarsdale. They discussed a plan to inflict harm on Williams after luring him from his home in Smythesdale to the Scarsdale house. The plan involved Curtis, and to a lesser extent, Conry-Rasmini and Trezise, going to William’s house and inducing him to go to the Scarsdale house by claiming that they were concerned about prowlers and were in need of his assistance. Timmy insisted on accompanying his stepfather to the Scarsdale house. He brought a baseball bat with him for protection.
Wilson and the applicant were waiting for Williams at the Scarsdale house. The applicant had brought a knife and the axe ultimately used in the killing. Upon arriving at the Scarsdale house, and upon beginning to check its rooms, Williams was ambushed by Wilson and the applicant. Wilson, who was wearing a pillowcase cover over his head as a disguise, punched Williams. In an attempt to defend his stepfather, Timmy struck Wilson — who fell to the floor — and then the applicant, with the baseball bat.
Timmy then fled the house chased by the applicant, who was armed with the axe. The applicant caught Timmy in the front yard, and tackled him to the ground. Whilst he strangled the hapless boy, the applicant shouted, ‘Die, cunt, die’. The applicant also struck Timmy to the head with his fists, and then with the blunt side of the axe. In the course of his attack on the deceased, both Trezise and Conry-Rasmini tried to stop the applicant. He accused Trezise of ‘sticking up for the enemy’. The applicant also told Conry-Rasmini that it had nothing to do with her, and that Timmy should not have hit him in the head with a baseball bat.
Wilson then joined the applicant outside. He picked up the axe — which the applicant had dropped — and, in the applicant’s presence, struck Timmy a number of times to the head with the blade of the axe. The applicant, who was next to Timmy as Wilson attacked him, did nothing to stop Wilson. Indeed, in her statement to police (which in her evidence she adopted as true) Conry-Rasmini described Wilson and the applicant as punching Timmy at the same time.
A short time later, the applicant, Wilson and Trezise, left the scene in Trezise’s car and returned to Ballarat. They took the axe and baseball bat with them.
Police and ambulance arrived to find Timothy O’Brien dead. A pathologist, Dr Woodford, who conducted a post-mortem examination, found that the death was caused by a constellation of head injuries.
The prosecution case was that the applicant and Wilson killed the deceased in the course of, and pursuant to, a joint criminal enterprise. In essence, the prosecution contended that an unspoken agreement arose between the two to engage in a violent assault on the deceased to kill or seriously injure him, and each, by his actions, participated in that agreement. The motive advanced was retaliation for the deceased having intervened to protect his stepfather.
The defence case was that Wilson had murdered Timothy O’Brien independently of the applicant and not pursuant to any agreement.
Ground 1 — Unsafe and unsatisfactory verdict?
The applicant’s submissions
Pointing to the prosecutor’s final address, counsel for the applicant submitted that the prosecution case was that the applicant formed an unspoken agreement to kill or cause really serious injury to the deceased while in the front yard of the Scarsdale house. In his final address, the prosecutor said:[1]
Now the way in which the case has been put by the Crown in this case is a common purpose, a joint criminal enterprise. And the first proposition is that the accused was a party to an understanding amounting to an agreement to carry out a joint criminal enterprise. We say that in the front yard an unspoken agreement arose between these two men to engage in a violent assault on Timmy to kill or seriously injure him. It was not a long standing agreement but a clear meeting of the minds. There’s no need for spoken words or a written document. Each saw what the other was involved in and each joined in what the other was doing. They spelt out their agreement by deeds.
[1]Emphasis added.
Relying on six propositions, in the written case the applicant’s counsel contended that there was ‘no evidence (or, alternatively, inadequate evidence) from which such an agreement could safely be inferred’. On the available evidence, so it was submitted, it was not open to the jury to exclude the reasonable possibility that the applicant and Wilson attacked Timothy O’Brien independently (and each for their individual motives), rather than as part of an agreement between them to kill or cause really serious injury to him. Accordingly, it was not open to the jury to conclude beyond reasonable doubt that the alleged agreement was formed. The six propositions were:
·first, Timmy struck both the applicant and Wilson with the baseball bat, so that each had his own motive to harm the deceased;
·secondly, there was no evidence that Wilson was in the vicinity of the applicant when the applicant was attacking the deceased;
·thirdly, on the evidence of Trezise, the applicant had stopped assaulting Timmy, and had commenced to argue with her, prior to Wilson emerging from the house;
·fourthly, there was no evidence of any communication — ‘by words, sounds, signals or looks’ — between Wilson and the applicant after Wilson’s arrival outside in the vicinity of the deceased, and before Wilson’s attack on the deceased (let alone any communication which would suggest an agreement between them to kill the deceased or to cause him really serious injury);
·fifthly, the evidence of the applicant’s conduct after Wilson’s arrival was ‘imprecise’, and did not permit the exclusion of the reasonable possibility that an agreement had not been formed between the two men to kill or cause really serious injury to the deceased; and
·sixthly, the conduct of Wilson and the applicant after the assaults on the deceased does not demonstrate that there had been an agreement between the two men to kill or cause really serious injury to the deceased.
In the alternative, counsel for the applicant submitted that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant participated in the joint criminal enterprise. It was submitted that, before he could be found guilty of murder on the basis of a joint criminal enterprise, the applicant was required to participate in the crime after the formation of the agreement, and to participate in accordance with the agreement. The applicant’s counsel argued that the applicant’s failure to intervene to stop Wilson’s attack could not amount to participation. Further, so it was contended, although presence may amount to participation, such presence must be in furtherance of the joint criminal enterprise. In circumstances where the applicant was already present prior to the formation of the alleged agreement, and there was no evidence as to what he was doing after that point and during Wilson’s attack, it was not open to the jury to conclude beyond reasonable doubt that the applicant remained present at the scene so as to further the joint criminal enterprise.
Reference was again made to the manner in which the prosecution put its case. Immediately following the remarks set out above,[2] the prosecutor said:[3]
The second proposition that has to be established here is that the accused participated in the agreement. You know what the accused did and didn’t do. And his participation in the agreement is standing there with Wilson while Wilson has the axe. There’s only one axe and at no stage does he say, ‘That’ll do, hold it’, where everyone else is saying that and so he participates in it. We know that he’s participated in the injuries to the head and we know that more injuries to the head are being inflicted and we can’t separate those by reason of the pathologist, and whilst one is using the other’s axe to continue the work that the other has begun, he doesn’t interfere with Wilson. And so by deed he participates in the agreement because it agrees with what he has already said, ‘Die, cunt, die’.
[2]At [16].
[3]Emphasis added.
The respondent’s submissions
The respondent’s counsel submitted that the criticisms now made by the applicant regarding the state of the evidence were all matters before the jury, which they must have considered. In particular, the argument that the applicant and Wilson each attacked the deceased at separate times, and for individual reasons, was explored during cross-examination of the various eyewitnesses, dealt with extensively in defence counsel’s closing address and highlighted in the judge’s charge.
Counsel for the respondent submitted that the formation of the necessary agreement could be inferred from eleven aspects:
·first, the applicant’s and Wilson’s conduct earlier in the night, including their plan to lure Williams to the Scarsdale house so as to assault him, and their lying in wait (whilst the applicant was armed with the axe);
·secondly, both the applicant and Wilson had been struck with the bat inside the house, and ‘thus had the same retaliatory motive’;
·thirdly, both the attacks on the deceased by the applicant and Wilson took place during a very short period of time and in the same location, and in circumstances where the initial attack by the applicant — although occurring while Wilson was still inside the house — was loud and occurred in close proximity to the house;
·fourthly, the applicant strangled, punched and hit the deceased with the axe, while saying, ‘Die, cunt, die’;
·fifthly, the applicant refused to permit others to stop Wilson’s attack;
·sixthly, the evidence was that Wilson came out of the house ‘pretty fast’ and commenced his attack on the deceased while the applicant was ‘having a go’ at Trezise for intervening;
·seventhly, Wilson took up the axe that had been dropped by the applicant, and continued using the axe to attack the deceased;
·eighthly, it was open to the jury to accept Conry-Rasmini’s account that the applicant and Wilson were both assaulting the deceased at the same time;
·ninthly, Williams told the ‘000’ operator that, ‘they’re holding him down now’; and Curtis told the 000 operator that, ‘they’ve bashed the friend and they’ve nearly killed him’;
·tenthly, Curtis’ evidence was that the applicant was kneeling close to the deceased — in the same position that the applicant had been when she had seen him punching the deceased — while Wilson was punching the deceased in the head; and
·lastly, the applicant and Wilson left the scene together — taking the axe and baseball bat with them — making no attempt to render assistance to the deceased.
As to the issue of participation, counsel for the respondent pointed to five factors as demonstrating the applicant’s participation:
·first, Wilson’s use of the applicant’s axe;
·secondly, the applicant’s close proximity to the deceased while Wilson continued the attack upon him;
·thirdly, the applicant’s failure to intervene to stop Wilson’s attack;
·fourthly, the applicant’s conduct in preventing others from intervening to stop the attack, thereby ‘facilitating’ Wilson’s continued attack upon the deceased; and
·fifthly, Conry-Rasmini’s evidence that the applicant and Wilson were punching the deceased at the same time, as well as the evidence of the ‘000’ calls made by Williams and Curtis in which both stated ‘they’ were assaulting the deceased.
The evidence bearing on an agreement and the applicant’s participation
In order to evaluate the submissions of the parties, it is necessary to examine in some detail the evidence bearing on the agreement alleged, and the applicant’s participation in it.
Peter Williams gave evidence that in the ‘early hours of the morning’ of 5 January 2013, he was awakened because someone was knocking at the door. When he opened the door, he saw Curtis and ‘some other girl’. Curtis said ‘they had prowlers at the house’. Williams went to their Scarsdale house to see if there ‘were still any prowlers lurking around’. Timmy went with him, and took a baseball bat. While Williams was looking around the house, Wilson, his first cousin, punched him in the nose, causing his nose to bleed. Wilson had a pillowcase over his head, but Williams recognised him by a t-shirt he regularly wore, bearing the words ‘No fear’. Timmy came to Williams’ aid while Wilson was punching him, and hit Wilson with the baseball bat. Wilson fell to the floor. Williams said to Timmy, ‘Let’s go’, and when he turned he saw the applicant near the back door holding an axe. Both he and Timmy tried to run in the same direction. Williams said that he was ‘grabbed by a bloke out the back door’, but he pulled the man’s ‘hoodie’ over his head and broke free. When Williams got to his car, he saw the applicant chasing Timmy.
Williams thought that the applicant had grabbed Timmy, and saw the applicant leaning over Timmy, who was lying on his stomach. It looked like the applicant had his leg over Timmy’s back, trying to hold him down. He then saw Wilson walking towards Timmy and the applicant. Williams called ‘000’. Among other things, he told the operator:
My stepson’s been belted up by a couple of blokes and they’re holding him down on the ground now.
…
There’s Darren Wilson … and there’s a few other blokes … they had an axe with them …
Cross-examined, Williams said that when he told the operator that a ‘couple of blokes’ were belting Timmy and holding him on the ground, that was an assumption that he made; although in re-examination he said he told the operator what he saw.
Lisa Trezise had been in a relationship with the applicant for about a month when, during the evening of Friday, 4 January 2013, she drove the applicant and Wilson to an address in Wendouree West, where the applicant — who was in possession of an axe — and Wilson ‘smashed up’ Belinda Isaacs’ house. (Two of Trezise’s children were also in the car.)
Trezise then drove the applicant and Wilson to a house in Scarsdale. When the applicant got out of the car he had an axe and a ‘Gothic style knife’. At the house, Wilson said something about wanting to bash ‘Peter’ (Williams) and the applicant laughed. Trezise was asked to drive Curtis and Conry-Rasmini to Williams’ house, which she did. She was present when Curtis knocked on the door and told Williams about prowlers. Williams and Timmy agreed to come to the house.
When Trezise again entered the Scarsdale house, she saw Williams and Wilson ‘fighting’ in the hallway. Wilson had a ‘Betty Boop’ pillowcase over his head. Things were ‘chaotic’. Timmy was ‘fighting’ with the applicant. He hit the applicant with a baseball bat ‘over the head’. Timmy also hit Wilson over the head with the baseball bat. The applicant ‘had one arm up trying to cover his head and in the other he had an axe’. Timmy hit Wilson first, before hitting the applicant. Trezise then saw Williams and Hamilton ‘scuffling’ in the vicinity of the back door. She was screaming at everyone ‘to stop it’.
Trezise next saw the applicant was chasing Timmy. The applicant ‘was running with the axe in his hand’. He caught up with Timmy and ‘jumped on him’. The applicant was on Timmy’s back and was ‘strangling Timmy’. While he was strangling Timmy — who was on his ‘tummy’ — the applicant said, ‘Die, cunt, die’. The applicant was also punching Timmy in the head, while wearing big thick chunky rings on his hands. Trezise grabbed the applicant’s hands and arms, screaming at him to stop. Conry-Rasmini was also begging the applicant to stop. The applicant said to Trezise, ‘Keep out of it you stupid fucking bitch’. The applicant stood up with the axe and swung the blunt side of the axe at Timmy’s head ‘a few times’, hitting him ‘with quite a force’. Trezise begged the applicant to stop, saying, ‘He’s only a little boy’. Trezise said that the applicant accused her of ‘sticking up for the enemy’. Wilson then came running out.
Wilson came from the house ‘pretty fast’ and ‘punched Timmy in the temple’. When this occurred, the applicant was ‘standing around having a go’ at Trezise. Wilson picked up the axe — which the applicant had dropped on the ground beside Timmy — and ‘started striking Timmy in the head’. Trezise tried to get Wilson off Timmy, and Wilson struck her to the face ‘using the back of his hand’. Wilson threatened her with the axe in his hand. She ‘just stood there just crying and pleading for him to stop it’. Wilson then told Trezise to get in the car and the applicant asked her to look for his keys. Trezise had a quick look around the house for the applicant’s keys and mobile phone. When she returned outside, Trezise approached Timmy and put her hand on him ‘to see if he was okay’. He was not ‘okay’, and was ‘making like a snoring and a gargling noise’. Wilson told her to get up, and he grabbed the baseball bat and put it in her car. He took the axe back to her house.
Jessica Conry-Rasmini was living at the Scarsdale house. She was present when Trezise, Wilson, the applicant and Curtis were discussing their plan to ‘bash’ Peter (Williams) ‘and stuff like that’. She went to Williams’ house with Trezise and Curtis to convince Williams to come to the Scarsdale house. On arriving back at the Scarsdale house, she walked into the house behind Williams. Wilson — disguised with a pillowcase over his head — ‘jumped out and hit him’ and they started ‘fighting’. Conry-Rasmini then saw Wilson and Williams ‘fighting out in the porch’. Hamilton ‘started fighting Peter as well’. (In cross-examination, Conry-Rasmini agreed that the applicant came inside the house with the axe, and started also fighting with Williams. She said the fight then moved outside and Hamilton got involved with Williams on the porch.)
Next, Conry-Rasmini saw Timmy on the ground, next to the house. The applicant was on top of him and hitting him with his fist. Conry-Rasmini and Trezise were telling the applicant ‘to get off him and stuff’. Conry-Rasmini thought that she ‘walked away inside to go and call the police’. She went back outside ‘screaming’, and saw Wilson and the applicant both ‘hitting’ Timmy. She said, ‘Well, [Wilson] was kneeling next to him and he was punching him in the chest and stomach area, and I think [the applicant] was just holding him or sitting on him or something’. Conry-Rasmini said that she ‘still kept telling them to get off him’. The applicant replied that it had nothing to do with her and said that ‘Timmy shouldn’t have hit him in the head with a baseball bat’. She thought that she then went inside the house again. Conry-Rasmini later gave evidence: ‘I just seen (sic.) [Wilson] and [the applicant] on top of [Timmy] and hitting him and stuff. And then once we couldn’t do anything about it we all went inside and then we just left and rang the police.’
In cross-examination, Conry-Rasmini agreed that after she called police, she went back outside and saw the applicant with his arm around Timmy’s neck punching him. She thought Wilson was inside at that point. There then followed the following passage of evidence:
You said earlier this morning … that at the point where you see [Wilson] hitting Timmy, you said that you also saw [the applicant] hitting Timmy?---I said [the applicant] was holding or sitting on Timmy while [Wilson] was punching him.
The fact of the matter is that you don’t recall what [the applicant] was doing at that point, do you?---Not exactly.
[The applicant] was in the area but you don’t know what he was doing in the area, do you?---No.
Because your focus was on [Wilson], correct?---Yes. But I still seen (sic.) [the applicant] on top of Timmy.
On top of him?---Ah, he was either on top of him or holding him.
Evidence given by Conry-Rasmini at a previous hearing was put to her, in which she had said the applicant was sitting ‘at the side of Timmy’ while Wilson was punching Timmy. She stated that she ‘don’t (sic.) exactly remember everything’, but added, ‘I know he was still sitting with Timmy’. Conry-Rasmini agreed she was ‘highly terrified’ and ‘panicked’ when making these observations. She also admitted to having consumed alcohol and ice prior to these events, but said that ‘all that stuff was way out of [her] system by then’.
In re-examination, Conry-Rasmini said that the following portion of her statement to police was ‘true and correct’:
[The applicant] had one arm around Timmy’s neck choking him. He was punching him with the other hand. I’m pretty sure he was holding him with his right arm and punching him with his left. He was punching Timmy in the face and head. It looked like he was punching him really, really loud. [Wilson] was punching him too at this stage and the pillowcase was not on his head any more. [Wilson] was punching him around the stomach and chest area. I went over to [the applicant] and said: ‘Get the fuck off him now, he’s only a little boy.’
In further subsequent cross-examination, Conry-Rasmini agreed that when she saw Wilson punching Timmy, the applicant was sitting near Timmy’s feet and ‘was not punching Timmy at that stage’.
Rachel Curtis was also living at the Scarsdale house. She was present when Wilson, the applicant, Hamilton and Conry-Rasmini were discussing their plan to get Williams to come to the house so that Wilson and the applicant could have an ‘argument’ with him. Curtis was told by Wilson to pretend someone had broken into the house, so that Williams would come over. Once back at the Scarsdale house, Williams was looking around when Wilson and the applicant ‘jumped out’. Wilson had a pillowcase over his face and the applicant was holding an axe. She saw ‘someone’s arms up in the air with the axe’ and as it came down ‘blood went everywhere’. Curtis ‘didn’t see anybody hit anybody’ but ‘did see an axe hit somebody’. She ran outside screaming.
Outside, Curtis saw ‘Timmy screaming, laying (sic.) on the ground’. The applicant was ‘kneeling’ down near Timmy’s legs. She walked closer and saw the applicant punching Timmy on the ground. She and Conry-Rasmini and Hamilton ran up and told the applicant that Timmy was ‘just a kid and to leave him alone’. The applicant said to her, ‘Fuck off or you’ll be next.’ While the applicant said this, he was punching Timmy and Curtis was telling him to stop. Curtis then ran inside to call police. Inside, Curtis saw Wilson on the ground. She rang 000 from the bathroom at 4.48am. When she came out of the bathroom, she saw Timmy lying on the ground and Wilson punching him in the head. The applicant was there still kneeling close to Tim. The two 000 calls were played to the jury. Curtis made the second call at 4.51am from a nearby paddock, where she had run shortly after making the first call. In the second call, Curtis told the 000 operator that:
they’ve bashed the friend and they’ve nearly killed him … they’ve fucking — they’ve bashed them and nearly killed a kid.
In cross-examination, Curtis agreed that when she told the 000 operator ‘they’ve bashed the friend and they’ve nearly killed him’, she was referring to the two separate episodes, the first where the applicant was hitting Timmy and the second where Wilson was hitting Timmy.
Dylan Hamilton lived at the Scarsdale address, and was in a relationship with Conry-Rasmini. He was present during the evening of 5 January 2013 when others were talking in the lounge room, but he had his earphones on listening to music and did not hear what was being said. Hamilton was aware of a car leaving and then returning to the house. After the car had returned, he saw a man wearing a pillow case over his head. He saw the autistic boy hit that man over the head with the baseball bat, and saw blood everywhere on the wall. Hamilton then saw a man with an axe. He saw the autistic boy hit the man with the axe on the head with the baseball bat, who then ‘got really angry and really frustrated’. The autistic boy ran outside and the man with the axe chased him ‘like a bully’. Hamilton said he saw ‘the man spear tackle the little boy and he was over him … like a school yard boy belting him up’. The little boy was yelling at him to stop but the man with the axe kept going, telling him to ‘Die, cunt, die’. Hamilton tried to stop the man, but he picked up the axe and hit the boy with the blunt side of the axe. The man was very aggressive and angry, and ‘just went berserk’. There was a lady trying to pull him off the boy. The man said: ‘He’s worth it, I don’t care if I do gaol time’. Hamilton ran into the house and saw the man with the pillow case on his head. He was ‘out of it’ and Hamilton moved past him. Hamilton found Curtis and Conry-Rasmini inside the house and said to them: ‘We’ve got to get out of here. The little boy’s been killed, we can’t do anything. We’ve got to run.’ They then ran out of the house towards the field.
Analysis
The principles governing appellate intervention when a complaint is made that a verdict is unsafe and unsatisfactory are familiar. In SKA,[4] the High Court considered it to be wrong for an appellate court to concern itself with ‘whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence’.[5] The court is required to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged.[6]
[4]SKA v The Queen (2011) 243 CLR 400 (‘SKA’). See also M v The Queen (1994) 181 CLR 487, 492-3; AE v R [2011] VSCA 168, [39]; Libke v The Queen (2007) 230 CLR 559, 596–7 [113]; R v Klamo (2008) 18 VR 644, 653–4 [38]–[40]; Greensill v R (2012) 37 VR 257, 276–7 [81]–[83].
[5]SKA, 408 [20].
[6]Ibid 408 [21] (French CJ, Gummow and Kiefel JJ).
Ground 1 claims that it was not open to the jury to infer that an agreement was formed between the applicant and Wilson in the front yard to kill or cause really serious injury to the deceased; or, alternatively, that it was not open to the jury to conclude that the applicant participated in the alleged joint criminal enterprise. Making my own independent assessment of the evidence, however, in my view there was ample evidence justifying the conclusion that the applicant was part of a joint criminal enterprise to murder Timothy O’Brien.
Timothy O’Brien had fled the house with the applicant in hot pursuit. The applicant was armed with the axe. Once the applicant caught the deceased and tackled him to the ground, he choked him, and struck his victim repeatedly with fists and with the axe. The applicant yelled, ‘Die, cunt, die’, and remonstrated with Trezise and Conry-Rasmini when they tried to intercede to stop his attack. In my opinion, it could not sensibly have been contended that the jury were incapable of finding that at this point in time the applicant had murderous intent. Of critical importance, however, is whether the evidence of what next happened would have justified the jury in finding that the applicant and Wilson then engaged in a joint criminal enterprise to murder Timothy O’Brien. In my view, it did.
The evidence suggests that, whilst the applicant was still kneeling on or beside the deceased, Wilson emerged from the house and immediately took up the applicant’s axe. On any view of the evidence, Wilson commenced his attack close in time and place to where the applicant had viciously assaulted Timothy O’Brien, in circumstances where the applicant did nothing to discourage or prevent Wilson from striking the prostrate and helpless boy over and over with the axe. In my opinion, these factors were ample justification for a finding that the applicant was part of, and participated in, a joint criminal enterprise to murder Timothy O’Brien.
Moreover, although there were some potential frailties in Conry-Rasmini’s evidence — a matter which must have been obvious to the jury — in my view it was open to the jury to accept the essential account that, at the same time that the applicant was choking Timothy O’Brien and punching him in the face and head, Wilson was also punching the boy around the stomach and chest area. That evidence offered abundant support for the inference that the applicant and Wilson were involved in a joint criminal enterprise to murder the deceased. And although it might be acknowledged that no other witness gave an account of seeing the applicant and Wilson both striking Timmy at the same time, it is clear that the scene was chaotic, and that the various witnesses were engaged in a variety of activities — both separately and together — in different parts of the premises (inside and outside). It is thus not surprising that their accounts of what they observed differed in some respects.
It was open to the jury to be satisfied beyond reasonable doubt that the applicant entered into, and participated in, a joint criminal enterprise with Wilson to murder Timothy O’Brien.
Ground 1 cannot succeed.
Ground 2 — Misdirections on complicity?
The applicant’s alleged complicity in Wilson’s crime was governed by the common law.[7]
[7]A statutory codification of the law of complicity now applies to offences committed after 1 November 2014. See Crimes Act 1958, ss 323 to 324C.
Counsel for the applicant submitted that the trial judge directed the jury that the applicant’s presence, and his failure to intervene in Wilson’s attack, could amount to participation in the joint criminal enterprise alleged. Exception was taken by the applicant’s counsel at trial, both before and after the direction was given, but the judge declined to re-direct. Further, despite defence counsel having asked the judge not to so direct, when summarising the prosecution’s case the judge also effectively told the jury that the applicant’s supply of the murder weapon to Wilson could amount to participation. It was submitted that these directions were erroneous.
It was submitted that although an accused’s presence may amount to participation, the presence must be in furtherance of the joint criminal enterprise. Counsel relied on Huynh,[8] and contended that, in circumstances where the applicant was already present prior to the formation of the alleged agreement — there being no evidence as to what he was doing during Wilson’s attack — it was not open to conclude beyond reasonable doubt that the applicant remained present at the scene so as to further the joint criminal enterprise, and that he did so. The judge erred in directing the jury that they were entitled to so reason.
[8]Huynh v The Queen (2013) 295 ALR 624 (‘Huynh’).
Further (and in the alternative), it was submitted that the applicant’s failure to intervene to try to stop Wilson’s attack on the deceased could not amount to the applicant’s ‘participating’ in the joint criminal enterprise, since, first, an omission to act cannot amount to participation; and, secondly, the applicant’s failure to do something did not ‘further’ the joint criminal enterprise.
Further again (and in the alternative), counsel submitted that the fact that the applicant had brought the axe to the scene could not amount to participation. The applicant had dropped the axe next to the deceased before Wilson’s arrival. There was no evidence that the applicant said or did anything in relation to the axe after the formation of the alleged agreement. The fact that applicant had brought the axe to the scene could not, in those circumstances, amount to participation in the alleged joint criminal enterprise.
On the other hand, the respondent submitted that the trial judge’s directions regarding the applicant’s participation in the joint criminal enterprise were correct. It was submitted that the directions were consistent with the model charge in the Criminal Charge Book,[9] and were in accordance with Huynh. Contrary to the submissions made by the applicant, the respondent contended that the judge correctly directed the jury that it was for them to determine whether or not they regarded the conduct of the applicant as sufficient to prove his participation in the joint criminal enterprise. It was submitted that, when considered as a whole, the directions on joint criminal enterprise comprehensively summarised the various factors relied on by the prosecution as demonstrating participation (and the defence contention that none of the alleged acts or omissions by the applicant were sufficient to prove participation by him). The prosecution had relied on various matters to demonstrate the applicant’s participation,[10] and the judge appropriately directed the jury with respect to the use of these factors in their consideration of whether they could be satisfied to the requisite standard that the applicant had participated in the joint criminal enterprise in some way.
[9]Criminal Charge Book, Judicial College of Victoria, [5.3.2].
[10]See [22] above.
In the charge, the judge gave the following directions:[11]
[11]Emphasis added.
I turn then to the question of what it is that you are being called upon to determine. The crime with which [the applicant] is charged is murder. But it’s murder in a particular form. It’s murder by a joint enterprise. That is to say, it is murder committed by two people at the same time in the sense that one of them acts or one or more of them, one or both of them acts in a way that was contemplated to commit that crime as a – jointly (sic.).
There are four parts to what we call joint criminal enterprise, which is what was the technical name for what this case is about. And to reach a verdict of guilty you must be satisfied beyond reasonable doubt of four things. … The first one is that [the applicant] entered into an agreement with Darren Wilson to kill or inflict really serious injury on Timmy O'Brien. That’s the joint criminal enterprise. An agreement to kill or inflict really serious injury on Timmy O'Brien and that the agreement remained in existence when the offence was completed. So the agreement was still there between them, right up to the time that the acts causing death occurred.
The second point is, the second matter that you’ve got to be satisfied of is that [the applicant] participated in the joint criminal enterprise.
The third point is, the third question is that in accordance with the agreement one or other or both of them performed all the acts necessary to carry the joint criminal enterprise out. Now, the Crown case in this case is that the, all of the activity that occurred as a result of the joint criminal enterprise was conducted by Wilson but that [the applicant] was involved in it because he was a party to the joint criminal enterprise. ...
And the fourth one is that [the applicant] had the state of mind necessary to carry out the joint criminal enterprise at the time he entered the agreement. That is to say in this case, that he intended that there be really serious injury or death of Timmy O’Brien. That’s the state of mind that he must have had, that he intended that the enterprise, that the joint enterprise would kill or inflict really serious injury on Timmy O'Brien. …
Now, the prosecution alleges that [the applicant] committed the offence of murder together with Darren Wilson. So I’ve got to now give you some directions about joint criminal enterprise. The law says that if two or more people are part of a joint criminal enterprise to commit an offence, then they are all equally guilty of that offence regardless of the role they played. This is one of the situations in which the law holds a person responsible for the actions of other people.
In order to find [the applicant] guilty you must find the four things … that he entered into an agreement with Wilson to kill or inflict really serious injury on O’Brien; that he participated in it; that in accordance with the agreement it was performed by one or other of them, in this case the Crown says it was performed by Wilson; and that at the material time when the agreement was entered into [the applicant] intended to inflict really serious injury or death on the deceased.
The prosecution must prove that [the applicant] made an agreement with Wilson to pursue this joint criminal enterprise and that the agreement remained in existence when the offence of murder was committed. You must be satisfied that [the applicant] came to an understanding or arrangement amounting to an agreement to engage in this activity. There doesn’t have to be words, there doesn’t have to be nods or winks or looks for someone to enter into an understanding or agreement with somebody else. We do it in our everyday lives. …
In this case the prosecution allege that … that by being at the scene where this event ultimately occurred [the applicant] entered into an understanding or arrangement with Wilson at the time Wilson, before the time Wilson picked up the axe and began administering these assaults on the deceased. That it occurred because of his being there, because of, the Crown argues because he didn’t do anything, and it had occurred in the context of his having earlier engaged in an assault on the deceased himself. So it’s all of those things taken into account the Crown says constitutes the creating of an arrangement amounting to an agreement to inflict really serious injury or death on the deceased.
The prosecution must prove that agreement. You must be satisfied beyond reasonable doubt that it existed, that it was reached between these two men at that time. If you have a doubt about that, this element of the case, which is really the main element in this case, you might think, the question of whether the agreement was entered into because the defence denies there was any such agreement. It says that if, in effect that if [the applicant] was there, he wasn’t taking any part at all in the killing of the little boy, the young lad.
So that matter is in issue, very much in issue. In due course I’ll bring you to some of the evidence which goes to that and we'll talk about the evidence, but at this point I’m just telling you what the case is and what the defence case is and reminding you that you must be satisfied of the existence of that agreement beyond reasonable doubt. And if you have a doubt, well then in this instance if you have a doubt about that, that would result in an acquittal because the other elements wouldn’t matter if you had a doubt about the first element. …
The second part of this element requires the prosecution to prove that the agreement remained in existence when the offence was committed. If there is a possibility that the agreement had been called off prior to that time or that [the applicant] had withdrawn from the agreement, then the first, this first element won’t be proved. Now, the defence case here is that he was never a part of the agreement. So there’s no real case that he ever withdrew from the agreement because the defence says that he was never a part of the agreement, so if he wasn’t a part of it he couldn’t withdraw from it and so there's a real issue about that here if there was in fact an agreement.
It’s only if you are satisfied beyond reasonable doubt that [the applicant] made the agreement with Wilson, and that the agreement remained in existence when the offence was committed, that this first element will be met.
The second element is participation. The prosecution must prove that [the applicant] participated in the joint criminal enterprise in some way. Now, the Crown here says, well he was present, he didn’t do anything, he didn’t try to stop Wilson from doing what he was doing, stop Wilson picking up the axe, stop Wilson using the axe. He didn’t make any objection to what Wilson was doing and that can constitute in the circumstances participation in the event. He may well have still been participating if he’d left the scene, but assuming that he remained at the scene, those things are sufficient, but then you may not regard them as sufficient, it’s a matter ultimately for you because you have to find positively, beyond reasonable doubt, that he participated in the joint criminal enterprise. If you have a doubt about that, well then he's entitled to be acquitted. So that’s the second element.
The third element is the prosecution must prove that in accordance with the agreement one of them performed all of the acts necessary to commit the offence. Well that’s not difficult in this case. It’s not a difficult matter in this case. There is no doubt that one or other of them, and indeed the defence case is that this was all done by Wilson and on his own. The defence case is that the fact that [the applicant] had earlier assaulted the deceased and Wilson’s assault on the deceased were two quite separate incidents which were not connected either in time or otherwise and there was no acts which let me get that absolutely right. That the acts performed by Wilson were acts which he performed on his own without any participation or encouragement or anything else, or not pursuant to any agreement that he had with [the applicant].
So you’ve got to be satisfied again here that the acts which were performed were performed pursuant to the agreement and that they resulted in the really serious injury and/or death of the victim.
The second part of this element again is not a matter that gives you much trouble because the offence must be within the scope of the agreement; in other words, it must have been contemplated by the agreement. Well, if it was an agreement to do really serious injury or death, or to kill the victim, well then if that agreement, if that was the agreement you found, well then the question of that having been carried out is not in issue, not in issue at all, it certainly occurred.
The third, the final part of the four things that you have on this piece of paper[12] is that at the time he entered the agreement [the applicant] had the necessary state of mind and the state of mind he had to have for this crime, which is murder, was an intention to kill or inflict really serious injury. Murder is the killing of someone by somebody else with the intention of killing or doing really serious injury. So the mental state that he must have at the time is that he intends that the boy be killed or really seriously injured. And that’s entirely again a matter for you and it’s a matter which you consider from the evidence. What did he do? What sort of things did he engage in? What did he say? Et cetera. And you have to analyse that evidence and come to a conclusion: are you satisfied beyond reasonable doubt that at the time he entered this agreement he intended that there be really serious injury or death inflicted on Timmy O'Brien?
[12]In the course of his charge, the judge gave the jury a written checklist to aid comprehension of the oral directions.
In McEwan,[13] the relevant principles concerning joint criminal enterprise were spelled out:[14]
[13]McEwan v The Queen (2013) 41 VR 330 (Redlich and Coghlan JJA, and Dixon AJA).
[14]Ibid 326–7 [32]–[33].
… It is now settled that complicity under a joint criminal enterprise will arise if the prosecution establishes the following:[15]
[15]The principles are helpfully set out in the Victorian Criminal Charge Book, Bench Notes, [5.3.1].
(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.[16]
(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[17] the accused had the state of mind required for the commission of the relevant offence.[18]
[16]Likiardopoulos v R (2012) 247 CLR 265; McAuliffe v R (1995) 183 CLR 108. See also R v Morgan [1994] 1 VR 567; R v Franklin (2001) 3 VR 9; R v Lao & Nguyen (2002) 5 VR 129; R v Tangye (1997) 92 A Crim R 545; R v Cavkic (2005) 12 VR 136; Johns v R (1980) 143 CLR 108. Cf Likiardopoulos v R (2010) 30 VR 654; Smith, Garcia & Andreevski v R [2012] VSCA 5; Croxford v R (2011) 34 VR 277.
[17]Osland v R (1998) 197 CLR 316; Hui Chi-Ming v R [1992] 1 AC 34; R v O’Flaherty, Ryan & Toussaint [2004] 2 Cr App R 20.
[18]R v Clarke & Johnstone [1986] VR 643; Johns v R (1980) 143 CLR 108; McAuliffe v R (1995) 183 CLR 108; R v Taufahema (2007) 228 CLR 232; Likiardopoulos v R (2010) 30 VR 654; Arafan v R (2010) 31 VR 82.
The High Court also considered the relevant principles in Huynh.[19] In that case, the deceased was attending a birthday party when he was stabbed in the course of an assault carried out by a number of persons. There was some evidence that one of the accused, Duong, had stabbed the deceased. The prosecution did not, however, limit its case to proof that Duong was the principal offender, and put the case against each accused alternatively in ways that did not depend upon proving the identity of the person who physically stabbed the deceased. One of these ways required the prosecution to prove that the appellant was a party to an agreement with others, including the individual who actually stabbed the deceased, to kill or to inflict really serious bodily injury on a person or persons at the premises where the party was held; and that, while that agreement was on foot, a party to the agreement stabbed the deceased intending thereby to kill or to do really serious bodily harm to him. The High Court said that liability depended on the doctrine variously described as ‘common purpose’, ‘concert’ or ‘joint criminal enterprise’,[20] and observed:
The appellants submitted that proof of their participation in any joint criminal enterprise had been an issue at the trial. Their submissions were apt to suggest that it had been incumbent on the prosecution to prove an act of ‘participation’ beyond presence at the scene pursuant to the agreement. The submissions in this respect require consideration of proof of participation in a joint criminal enterprise of the kind alleged here. So, too, does one submission made by the respondent.
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.[21] 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.[22] 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.[23] Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.
A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement.[24] …
[19]Huynh v The Queen (2013) 295 ALR 624 (French CJ, Crennan, Kiefel, Bell and Gageler JJ).
[20]Ibid 626 [3].
[21]Gerakiteys v R (1984) 153 CLR 317 at 327 and 330; 51 ALR 417 at 425–6 and 427–8; [1984] HCA 8 per Brennan J, at CLR 334; ALR 431 per Deane J; Truong v R (2004) 223 CLR 122; 205 ALR 72; [2004] HCA 10 at [35] per Gleeson CJ, McHugh and Heydon JJ.
[22]McAuliffe [McAuliffe v R (1995) 183 CLR 108; 130 ALR 26; [1995] HCA 37] at CLR 114; ALR 30; Gillard v R (2003) 219 CLR 1; 202 ALR 202; [2003] HCA 64 at [110] per Hayne J.
[23](1998) 197 CLR 316; 159 ALR 170; [1998] HCA 75 at [72]–[94] (Osland). See also Simester, ‘The Mental Element in Complicity’ (2006) 122 LQR 578, pp 598–600.
[24]Osland at [27] per Gaudron and Gummow JJ, 343 [73] per McHugh J citing R v Tangye (1997) 92 A Crim R 545 at 556–7; Hui Chi-Ming v R [1992] 1 AC 34 at 45 and 53; [1991] 3 All ER 897 at 904–5 and 910–11.
Earlier, in Handlen,[25] the High Court had said:[26]
At common law, two or more persons may be jointly criminally responsible for the commission of an offence which, tacitly or otherwise, they have agreed to commit and which is committed while the agreement is on foot.[27] As McHugh J explained in Osland v The Queen, the criminal responsibility of each participant in such an enterprise is direct, each being equally responsible for the acts constituting the actus reus of the crime.[28] …
[25]Handlen v The Queen (2011) 245 CLR 282.
[26]Ibid 287 [4] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[27]R v Lowery [No 2] [1972] VR 560; Glanville Williams, Criminal Law: The General Part, 2nd ed (1961), p 349.
[28](1998) 197 CLR 316 at 343 [73].
It was recognised in both Handlen and Huynh that the relevant principles were as set out by McHugh J in Osland.[29] His Honour there observed:[30]
[29]Osland v The Queen (1998) 197 CLR 316.
[30]Ibid 342–3 [72]–[73].
However, there is[31] a 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.[32] 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 concert[33] is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2][34] by Smith J who directed the jury in the following terms:
[31]I say ‘is’ because it may be that this third category is a late development of the common law which owes its impetus to the enactment of the Accessories and Abettors Act 1861 (UK) and its counterparts in other jurisdictions, such as s 323 of the Crimes Act 1958 (Vic), and the abolition of the distinction between felonies and misdemeanours.
[32]R v Lowery and King [No 2J [1972] VR 560.
[33]R v Hurse (1841) 2 M & Rob 360 at 361 [174 ER 316 at 317], which was a case of misdemeanour, Erskine J directed the jury ‘that if two persons, having jointly prepared counterfeit coin, plan the uttering, and go on a joint expedition and utter in concert and by previous arrangement the different pieces of coin, then the act of one would be the act of both, though they might not be proved to be actually together at each uttering.’
[34][I972] VR 560 at 560.
‘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.’
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:[35]
[35](1997), p 465.
‘[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.[36] The Court said:[37]
‘(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.)
[36]R v Tangye (1997) 92 A Crim R 545.
[37]R v Tangye (1997) 92 A Crim R 545 at 556-557.
So far as the applicant’s participation in the alleged joint criminal enterprise was concerned, as has been seen, the trial judge in effect directed the jury that participation might be constituted by the applicant’s presence, in circumstances where he did nothing to intervene to ‘try to stop Wilson from … picking up the axe [or from] using the axe’, and did not ‘make any objection to what Wilson was doing’.
Too narrow a focus on what Hawkins J said in Coney is apt to cause confusion in the current area of discourse.[38] Hawkins J said:[39]
It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime.
[38]R v Coney (1882) 8 QBD 534.
[39]Ibid 557–558. Coney was, however, concerned with aiding and abetting, rather than joint criminal enterprise. In that case, two men who formed part of the crowd at an illegal prize-fight were convicted of assault, as being principals in the second degree (as aiders and abettors). See also R v Jogee [2016] UKSC 8, [11], [77] (Lord Hughes and Lord Toulson, with Lord Neuberger, Lady Hale and Lord Thomas agreeing).
Although, however, a person is not exposed to criminal liability by being a mere passive spectator to a crime, or (generally speaking) by failing to interfere to prevent a crime,[40] it is not correct to say that presence at the scene of a crime during its commission cannot ever be sufficient to establish joint participation in that crime. To the contrary, deliberate presence at the scene of a crime may be cogent evidence of participation in the crime (for example, if a person is present in order to give moral support, or to show a willingness to assist if the need arises).
[40]Cf R v Russell [1933] VLR 59; R v Taktak (1988) 14 NSWLR 226; R v Lawford (1993) 61 SASR 542; Burns v The Queen (2012) 246 CLR 334.
Of course, the applicant’s actions in this case cannot be viewed in a factual vacuum. By the time Wilson came outside to where the applicant was still engaged with the deceased, Timothy O’Brien had fled the house with the applicant — armed with the axe — in pursuit. He was caught in the front yard, where the applicant took him to the ground. After the applicant caught the unfortunate boy, he struck him with his fists and with the blunt side of the axe, shouting, ‘Die, cunt, die’. When Trezise and Conry-Rasmini tried to stop him, the applicant accused Trezise of ‘sticking up for the enemy’ and told Conry-Rasmini that it had nothing to do with her. The applicant asserted that Timmy should not have hit him with a baseball bat. It was only then that Wilson joined the applicant outside. After doing so, Wilson picked up the applicant’s axe and, with no demur being forthcoming from the applicant, struck Timmy a number of times to the head with the blade of the axe. The applicant did nothing to stop Wilson.
In my view, the applicant’s permitting Wilson to use his axe, and making no move by words or conduct to prevent Wilson from so doing — given the close temporal proximity of his own attack on the deceased vis-à-vis Wilson’s, and further given his close physical proximity to Wilson at the time that Wilson struck the boy repeatedly with the axe — were matters that the jury were justified in taking into account in determining whether the applicant relevantly had participated in a joint criminal enterprise with Wilson to murder the deceased. Thus, the directions impugned under cover of ground 2 were, in context, correct.
Ground 2 cannot be upheld.
Conclusion
For the foregoing reasons, the application for leave to appeal against conviction must be refused.
BEACH JA
I have had the advantage of reading the judgment of Priest JA. As his Honour explains, ground one requires this court to make its own independent assessment of the evidence to determine whether it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of the offence with which he was charged. Having made my own independent assessment of the evidence, I agree with Priest JA, for the reasons given by him, that there was ample evidence justifying the conclusion that the applicant was part of a joint criminal enterprise to murder Timothy O’Brien. Accordingly, ground one cannot succeed.
Similarly, I agree with Priest JA, and again for the reasons given by his Honour, that ground two cannot succeed. It follows that I also agree that the application for leave to appeal against conviction must be refused.
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