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MG v R;; AE v R

MG v R;; AE v R

Case [2016] NSWCCA 228 21 October 2016

Conviction Appeal

Identification Evidence

Extended Joint Criminal Enterprise

Circumstantial Evidence

Reasonableness of Verdict

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: MG v R;; AE v R [2016] NSWCCA 228
Hearing dates: 22 August 2016
Date of orders: 21 October 2016
Decision date: 21 October 2016
Before: Hoeben CJ at CL at [1]
Davies J at [255]
Bellew J at [260]
Decision:
In the application by AE:
(1) Leave to appeal granted.
(2) Appeal dismissed.
In the application by MG:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   The conviction is quashed and a verdict of
acquittal entered.
Catchwords: CRIMINAL LAW – conviction appeals – offence of murder – extended joint criminal enterprise – group of young males assault victim at party who subsequently dies – APPLICATION BY AE – whether jury’s verdict was unreasonable and cannot be supported by the evidence – AE identified by two witnesses as part of offending group – difficulties in identification evidence – advantage of jury in assessing witnesses – whether appropriate directions given by judge concerning identification evidence – comprehensive directions given with the authority of the court – whether appropriate directions given concerning extended joint criminal enterprise – conviction appeal dismissed – APPLICATION BY MG – whether verdict was unreasonable and could not be supported having regard to the evidence – no evidence of identification – Crown case based entirely on circumstantial evidence – jury in no better position than appellate court in assessing evidence – reasonable scenarios consistent with innocence available to applicant – conviction appeal allowed.
Legislation Cited: Crimes Act 1900 – s 18
Criminal Appeal Act 1912 – s 6(1)
Jury Act 1977 – s 55F
Cases Cited: Domican v R [1992] HCA 13; 173 CLR 555
Elwood v R [2016] NSWCCA 18
Gillard v The Queen [2003] HCA 64; 219 CLR 1
Hawi v R [2014] NSWCCA 83; 244 A Crim R 169
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30
Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
Plomp v The Queen [1953] HCA 44; 110 CLR 234
R v Jogee; Ruddock v The Queen [2016] UKSC 8; 2 All ER 1
R v Phan [2001] NSWCCA 29; 53 NSWLR 480
SKA v The Queen [2011] HCA 13; 243 CLR 400
Shamoun v R [2015] NSWCCA 246
The Queen v Hillier [2007] HCA 13; 228 CLR 618
The Queen v Keenan [2009] HCA 1; 236 CLR 397
Category: Principal judgment
Parties: MG – Applicant
AE – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr P Strickland SC – Applicant MG
Mr G Brady SC/Mr S Howell - Applicant AE
Ms M Cinque SC – Respondent Crown
Solicitors:
Mark Klees & Associates – Applicant MG
Nyman Gibson Miralis – Applicant AE
Solicitor for ODPP – Respondent Crown

File Number(s): 2011/333570;2011/333563
Decision under appeal

Court or tribunal:

Supreme…

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 MG v R;; AE v R

Details

AGLC: Mg v The Queen; AE v The Queen [2016] NSWCCA 228
Case: [2016] NSWCCA 228
Decision Date: 21 October 2016

CaseChat Overview and Summary

The Court of Appeal heard appeals by two defendants, MG and AE, against their convictions for the murder of a young man, who died following an assault at a party attended by a large group of young males. The victim was attacked by a group, which included the appellants. Both appellants challenged the verdicts on the basis that they were unreasonable and not supported by the evidence. The case hinged on the reliability of the identification evidence and the legal principles governing extended joint criminal enterprises.

The legal issues before the court were the adequacy of the trial judge's directions to the jury concerning the identification evidence and the extended joint criminal enterprise. The appellants argued that the identification evidence was unreliable, and the jury's verdict was unreasonable. Additionally, the appellants contended that the trial judge did not adequately direct the jury concerning the extended joint criminal enterprise. The Crown maintained that the evidence was sufficient, and the directions given were appropriate.

The court found that the trial judge had given comprehensive directions to the jury concerning both the identification evidence and the extended joint criminal enterprise. The court accepted that the identification evidence presented difficulties, but the jury was in the best position to assess the credibility of the witnesses. The court concluded that the jury's verdict was not unreasonable and was supported by the evidence. The court dismissed AE's appeal. In contrast, the court found that the Crown's case against MG was based entirely on circumstantial evidence, and there was no direct evidence of identification. The court concluded that the jury was not in a better position than the appellate court to assess the evidence and found that reasonable scenarios consistent with MG's innocence were available. The court allowed MG's appeal and quashed the conviction.

The final orders of the court were the dismissal of AE's appeal and the allowance of MG's appeal, resulting in the quashing of MG's conviction for murder.

Orders