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Ng v The Queen

Ng v The Queen

Case [2019] NSWCCA 172 31 July 2019

Criminal Liability

Joint Criminal Enterprise

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ng v R [2019] NSWCCA 172
Hearing dates: 26 June 2019
Decision date: 31 July 2019
Before: Gleeson JA at [1]
Harrison J at [70]
N Adams J at [71]
Decision:
(1)   Grant leave to appeal.

(2)   Appeal allowed.

(3)   Quash the conviction of the appellant.
(4)   Direct a judgment and verdict of acquittal for the appellant.
Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict – wounding with intent to cause grievous bodily harm – where jury found guilt based on joint criminal enterprise or extended joint criminal enterprise – whether it was open to the jury to be satisfied beyond reasonable doubt that an agreement existed between the appellant and the co-accused to commit a crime – where Crown case was circumstantial
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 347
Criminal Appeal Act 1912 (NSW), ss 5, 8
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14
Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Blundell v R [2019] NSWCCA 3
Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
Dickson v R [2017] NSWCCA 78
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
R v Cook [2004] NSWCCA 52
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
Category: Principal judgment
Parties: Trevor Ng (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
Mr I S Lloyd QC (Applicant)
Ms K Ratcliffe (Respondent)
Solicitors:
George Sten & Co (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/20870
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 441

Date of Decision:

28 June 2018

Before:

Wilson SC DCJ

File Number(s):

2016/20870

Judgment

GLEESON JA: After a five-day trial in the District Court at Parramatta in February/March 2018 on an indictment which charged the applicant with one count of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), the jury returned a verdict of guilty on 2 March 2018.
On 28 June 2018, the applicant was sentenced to a term of imprisonment of 4 years, with a non-parole period of 2 years and 9 months commencing 2 March 2018 and expiring 1 December 2020. That sentence took into account the applicant’s guilty plea in respect of two offences on a s 166 Certificate:…

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 Ng v The Queen

Details

AGLC: Ng v The Queen [2019] NSWCCA 172
Case: [2019] NSWCCA 172
Decision Date: 31 July 2019

CaseChat Overview and Summary

In the case of Ng v The Queen, the appellant was convicted by a jury in the Supreme Court of New South Wales of wounding with intent to cause grievous bodily harm, contrary to s 339 of the Crimes Act 1900 (NSW). The appellant and two co-accused were charged with a number of offences, including wounding with intent, in relation to an incident where a person was stabbed with a knife. The appellant appealed against his conviction, arguing that it was unreasonable for the jury to find him guilty on the basis of a joint criminal enterprise or extended joint criminal enterprise, as there was insufficient evidence to prove that an agreement existed between him and his co-accused to commit the crime.

The legal issues the court had to decide were whether it was open to the jury to be satisfied beyond reasonable doubt that an agreement existed between the appellant and the co-accused to commit the crime of wounding with intent, and whether the Crown's case was circumstantial. The court had to consider whether the evidence was sufficient to prove the existence of an agreement, and whether the jury could reasonably have found that the appellant was guilty based on the evidence presented.

The court held that it was open to the jury to be satisfied beyond reasonable doubt that an agreement existed between the appellant and the co-accused to commit the crime of wounding with intent. The court found that the evidence presented was sufficient to prove the existence of an agreement, and that the jury could reasonably have found that the appellant was guilty based on the evidence presented. The court held that the Crown's case was not entirely circumstantial, as there was some direct evidence of the appellant's involvement in the crime.

The appeal was dismissed, and the appellant's conviction was upheld. The court found that the jury's verdict was not unreasonable, and that the evidence presented was sufficient to prove the appellant's guilt beyond reasonable doubt.

Orders