Ng v The Queen

[2019] NSWCCA 172

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

1. 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.

2. 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: one offence of possessing a prohibited drug and one offence of possessing a prohibited weapon.

3. The applicant has appealed against his conviction only. The notice of appeal contains a single ground of appeal: “The verdict is unreasonable and cannot be supported by the evidence on the basis that the evidence was such that it was not open to the jury to be satisfied of the existence of a joint criminal enterprise, either on the principal or extended basis”.

4. The applicant requires leave to appeal under the Criminal Appeal Act 1912 (NSW), s 5(1)(b) as this ground involves a question of mixed fact and law. The Crown did not object to a grant of leave. Given the significant argument as to whether the verdict is unreasonable, there should be a grant of leave to appeal. It is convenient hereafter to refer to the applicant as the appellant.

Outline of the Crown case

5. The Crown case was that shortly after 11.30 am on Monday, 24 August 2015, Sheng Xiao was assaulted by Kelemete Palenapa-Pili in a laneway off Pine Street in Rydalmere when unloading food products from his van for delivery to a Chinese restaurant. Mr Xiao was struck by Mr Palenapa-Pili with a hammer to the face, upper thigh and knee. He had about $8,000 cash in a bag around his waist at the time, however, nothing was stolen from him. Mr Xiao struggled with Mr Palenapa-Pili who fled the scene leaving behind the hammer and a blue bag. Mr Xiao sustained a laceration to the face which satisfied the common law definition of a “wound” for the purposes of s 33(1)(a) of the Crimes Act.

6. At the time of this assault, the appellant was close by. Having driven Mr Palenapa-Pili to the vicinity of the laneway in a blue Holden Commodore, he waited for him, and then collected him immediately following the assault. The vehicle driven by the appellant had been leased by his mother on 23 June 2015.

7. Mr Palenapa-Pili was arrested on 21 January 2016 and charged with the offence of wounding with intent to cause grievous bodily harm. He pleaded guilty and was convicted and sentenced.

8. The appellant was also arrested and charged with this offence on 21 January 2016. He pleaded not guilty.

9. The Crown alleged that the appellant was a party to a joint criminal enterprise with Mr Palenapa-Pili to wound the victim with intent to cause grievous bodily harm, or alternatively, on the extended basis, a party to an agreement to assault or intimidate the victim in circumstances where the appellant foresaw the possibility that Mr Xiao would be wounded with intent to cause grievous bodily harm.

10. This type of primary criminal liability is to be distinguished from accessorial liability: see the discussion in Blundell v R [2019] NSWCCA 3 at [18] ff (N Adams J, Payne JA and Johnson J agreeing). In McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 (McAuliffe), the High Court pointed out at 113 that the terms “common purpose”, “common design”, “concert”, and “joint criminal enterprise” are used more or less interchangeably to invoke a doctrine by which complicity of a secondary party in the commission of a crime may be established. The High Court said at 113-114:

The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. … But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose. [Citations omitted.]

11. In Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439, and most recently Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 (Miller), the High Court rejected arguments that the doctrine of extended joint criminal enterprise should be abandoned or extensively modified. In Miller, the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) said at [4]:

The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties’ conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence (“extended joint criminal enterprise” liability).

Keane J agreed at [131], whilst Gageler J dissented.

12. Accordingly, proof of the existence of an agreement is essential to proof of an offender’s liability in a joint criminal enterprise to commit a crime, as well as an offender’s liability in an extended joint criminal enterprise where the offender “foresees as a possible incident of the venture” the commission of the incidental crime in the course of carrying out the agreement: Gillard v The Queen at [112] (Hayne J). The existence of an agreement that a crime should be committed, and the time the agreement was reached, may be inferred from all the circumstances, including the commission of the offence itself or the acts of those participating in its commission.

The defence case

13. The appellant did not give evidence or call any evidence at trial.

14. In opening the defence case to the jury, the appellant’s counsel acknowledged that various matters were not in dispute, relevantly: that Mr Xiao was assaulted with a hammer and was wounded, that the appellant was nearby in a car at the time of the assault, that the appellant knew Mr Palenapa-Pili and sent him some text messages, both before and after the assault, and had met with him later that evening.

15. What was put in dispute, according to the appellant’s counsel, was whether the appellant entered into an agreement with the Mr Palenapa-Pili to commit the principal offence of wounding with intent to cause grievous bodily harm, or a lesser offence of assault or intimidation, foreseeing the possibility of a hammer being used to wound the victim. That remained the appellant’s position in his counsel’s closing address.

The evidence at trial

Text messages before the assault

16. The appellant sent text messages on 7 August 2015 and 16 August 2015 to Mr Palenapa-Pili acknowledging he was short of money. The Crown relied upon this material as providing a motive for the appellant’s involvement in the offence, given the evidence that he subsequently received payment of $250 from Mr Palenapa-Pili.

17. The appellant’s text messages with Mr Palenapa-Pili sent and received between 16 August 2015 and 23 August 2015 were also in evidence. The Crown relied upon the text messages as demonstrating a close relationship between them and as evidence of preliminary arrangements leading up to the offence, including Mr Palenapa-Pili referring the night before the offence to what he would be wearing the following morning – “my construction shit” – consistently with him wearing a fluorescent top at the time of the offence.

18. There was also evidence of text messages exchanged between the appellant and Mr Palenapa-Pili on the morning of the offence on 24 August 2015, which the Crown again relied upon as demonstrating the close relationship between them. These messages included the appellant’s text at 7.59 am with Mr Palenapa-Pili, “Yo m awake already. I’ll leave mind at about 8.45 so be at yours by 9.30 you still sleeping?”, and a later text at 8.23 am, “Yo bro, wake up im gonna head over soon polo”, referring to Mr Palenapa-Pili by the nickname “Polo”. The appellant sent a text to Mr Palenapa-Pili at 10.31 am, “Come out bro 2 mins away”.

Map of the area

19. Two maps of the scene of the incident were in evidence (Exs D1 and D2). Pine Street, Rydalmere runs east to west, one street to the north of Victoria Road, a main thoroughfare. The unmarked laneway off Pine Street, between Pine Lane and Park Road provides access to a number of shops and restaurants, including a Chinese restaurant. To the west of the laneway, Pine Street intersects with Park Road which runs north to south and intersects with Victoria Road. There is a roundabout at Pine Street and Park Road. To the east of the laneway, Pine Street meets Hillman Avenue at a dogleg and there is another roundabout.

CCTV footage

20. Evidence of CCTV footage from two cameras depicted the events preceding and immediately following the assault on Mr Xiao. One camera was positioned overlooking the laneway off Pine Street (CAM 3) and the other was positioned in a carpark on the southern side of Pine Street to the west of the roundabout at Park Road and Pine Street (C17 Carpark). The time stamps on CAM 3 recorded the time as one hour ahead of real time.

21. The blue Holden Commodore, which the appellant accepts he was driving, arrived at the roundabout at Park Road and Pine Street from the south (Victoria Road), turned east into Pine Street at 10.55 am and drove past the laneway shortly thereafter, the blue car made two consecutive loops back past the laneway and around the roundabout, before it continued east on Pine Street past the laneway and out of sight. The blue car next appeared and parked on the southern side of Pine Street to the east of the laneway and behind another car. A white van (not the victim’s) travelled along Pine Street in an easterly direction and turned into the laneway at about 11.05 am. A bearded male wearing a fluorescent top, cap, glasses and carrying a bag emerged from behind the trees to the far right of the screen and walked across to the laneway in a westerly direction; next, he disappeared into the laneway at 11.06 am. Counsel for the appellant did not dispute that this person was Mr Palenapa-Pili. This was referred to by the Crown at trial as the “false start” because Mr Xiao was not the driver of this white van.

22. At 11.46 am, a HiAce van, driven by Mr Xiao, travelled along Pine Street in an easterly direction and turned into the laneway and drove off-screen to the left. At the same time, Mr Palenapa-Pili re-emerged from the top right of the screen (where he was last seen) and walked across into the laneway following the direction of the HiAce van.

23. At 11.47 am, Mr Palenapa-Pili walked back on-screen in the laneway heading in an easterly direction. The Crown case was that this is consistent with the evidence of the victim that he made a phone call whilst still in his van before getting out.

24. At 11.48 am, Mr Palenapa-Pili returned on screen from the right walking in a westerly direction into the laneway in the same direction that the HiAce van had travelled and went off-screen to the left. Next, Mr Palenapa-Pili reappeared on-screen, pulled his left arm back, turned and ran in an easterly direction followed by the victim who was holding his face and pointing in the direction of Mr Palenapa-Pili. The victim was soon joined by two other male persons, and then shortly after by a woman.

25. At 11.49 am, a blue car pulled out from where it was parked near trees in the far right of the screen and drove in a westerly direction along Pine Street, passing the victim and the three other persons. The blue car entered the roundabout at the intersection of Park Road and Pine Street and returned in an easterly direction along Pine Street past the victim and the other persons towards the intersection of Hillman Avenue.

Victim’s evidence

26. Mr Xiao gave evidence that after he parked his van in the laneway off Pine Street at about 11.30 am, he made a phone call whilst inside the van. He then exited the van and removed a trolley for the purpose of loading meat when he was attacked by a man in a yellow top who used a hammer to hit him on the face (left cheek) and then the upper left leg. The two men scuffled and the attacker ran away. Mr Xiao tried to follow, but could not catch him. He saw the man enter a blue car on Pine Street about 100 metres east of the laneway.

27. Mr Xiao said that no words were exchanged, either before, during or after he was attacked. The money in the bag around his waist was not taken, nor was his phone or any other property.

Evidence of taxi passenger

28. Mr Anson Tinirau was a passenger in a taxi travelling along Pine Street in a westerly direction towards Park Road on the day of the incident. He gave evidence that as the taxi approached that intersection he saw three people, two on the footpath and one standing in the middle of the road who was holding his face with one hand and his other hand was pointing towards a male who was walking quickly in the opposite direction to which the taxi was travelling. Mr Tinirau described the male as being of “Islander appearance, wore a hat, glasses and a fluoro-sort of jumper … big build”. When the taxi passed the man standing in the middle of the road about three metres away, Mr Tinirau observed “a lot of blood, pouring” from the man’s face.

29. Mr Tinirau also noticed a blue Holden Commodore travelling quite slow in the opposite direction on Pine Street which passed the man who was still in the middle of the road, also about three metres’ distance from the man. The blue car travelled slowly towards Hillman Avenue, then stopped just before the roundabout at Pine Street and Hillman Avenue, where the man in a fluoro top crossed the road and entered the passenger side of the blue car. The blue car then drove away. Mr Tinirau then made a triple-0 telephone call on his mobile phone.

30. The CCTV footage does not include the taxi passing Mr Xiao on Pine Street.

31. In cross-examination, Mr Tinirau agreed that he gave a statement to police on 24 August 2015 in which he said (par 7), “[t]he Asian man was holding his face with his left hand and his right hand was pointing towards the footpath of Pine Street towards Eddie and I”. “Eddie” was a reference to the taxi driver. Mr Tinirau agreed that the man standing in the middle of the road was looking east as the blue car passed in the direction of Hillman Avenue. He agreed that he did not see the blue car stop in a sudden way further down Pine Street, when it picked up the male person wearing the fluoro top.

32. In seeking to establish that the appellant and Mr Palenapa-Pili were party to a joint criminal enterprise, the Crown relied upon this evidence for the inference that the appellant would have observed the wound and injuries suffered by Mr Xiao when he drove past him, yet he made no attempt to distance himself from Mr Palenapa-Pili, suggesting the reason was that none of this was a surprise to the appellant; it was all part of the plan with Mr Palenapa-Pili.

Text messages after the assault

33. The appellant’s text messages with Mr Palenapa-Pili later on that evening were in evidence. Those messages included the appellant texting at 7.03 pm asking “Hey bro, what are the chances of us getting paid tonight bro? …”. Mr Palenapa-Pili responded at 10.46 pm that he would withdraw $250 from his account for the appellant. The appellant replied at 10.48 pm, “Yeah, sweet bro, so long as you get covered for it im just around the corner actually lol. … Be there in a min or 2 …”.

CCTV footage outside K1 Nightclub

34. CCTV footage taken from a camera on Dixon Street, Haymarket outside the K1 Karaoke Lounge where Mr Palenapa-Pili worked as a security guard showed the appellant meeting Mr Palenapa-Pili on the evening of the offence at about 10.51 pm, consistently with his text message sent at 10.48 pm. The Crown case was that this was when the appellant received his payment for his part in the offending.

35. The Crown relied upon this evidence for the inference that the appellant was comfortable with meeting Mr Palenapa-Pili at his workplace and having nothing to fear from him, even though he had seen the consequences of the assault on the victim earlier that day.

DNA evidence

36. Forensic evidence showed a swab from a water bottle found inside the blue Holden Commodore when it was seized by police on 25 August 2015 had a DNA profile matching that of Mr Palenapa-Pili. This was relied upon as providing an association between Mr Palenapa-Pili and the vehicle.

Lies told by the appellant

37. The Crown also relied upon lies subsequently told by the appellant to the police as evidence of consciousness of guilt. When issued with a form of demand on 15 December 2015 under s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), the appellant told police that he did not know his passenger on 24 August 2015. He said he was driving looking for a fortune teller for his mother, that he became lost and a person wearing a fluoro shirt or jacket, with dark skin and a beard, had waved him down and offered to pay him $100 to drive him up the road. He said he did this, was paid the $100, and then drove off. He said he did not have this person’s phone number and had not spoken to the male since.

38. The Crown case was that the appellant was aware at the time of the police interview that the police suspected someone from his rented car was involved in an assault on 24 August 2015 because the police had informed his mother of this on 25 August 2015 when they inspected the vehicle at her home.

Trial judge’s summing up

39. In his summing up to the jury, the trial judge directed the jury that the Crown put its case on the two bases identified by the Crown in its opening – “joint criminal enterprise” liability and “extended joint criminal enterprise” liability. Directions were given in conventional terms with respect to the onus of proof and the drawing of inferences. Specific directions were given with respect to the matters required to be established by the Crown for its circumstantial case against the appellant.

40. An Edwards direction was given as to the use of lies to prove a consciousness of guilt: Edwards v The Queen (1993) 178 CLR 193 at 210; [1993] HCA 63. Specifically, the trial judge drew attention to the closing submission of counsel for the appellant that people do not always act rationally and may have a reason to lie apart from trying to conceal their guilt, giving as an example that a person may lie out of panic, or to avoid a consequence unrelated to the offence.

41. No complaint is made of the summing up.

Unreasonable verdict

42. The task of an appellate court dealing with an unreasonable verdict ground of appeal is well-established: the court is to ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The applicable principles were summarised by Bathurst CJ (Johnson and Fullerton JJ agreeing) in Dickson v R[2017] NSWCCA 78 at [84]-[86] as follows:

[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own ‘independent assessment of the evidence’. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 608; [2002] HCA 53 at [59].

[85] As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

[86] In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48].

43. The passage by Hayne J (at [113]), with which Gleeson CJ (at [1]) and Heydon J (at [117]) agreed in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, included the following remarks:

It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt [citation omitted]. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [Emphasis in the original].

44. Accepting that the Court must make its own independent assessment as to the sufficiency and quality of the evidence, which includes weighing the competing evidence, the relevant question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.

45. That question is to be considered in the context that the Crown case against the appellant was circumstantial. As explained in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [46], citing Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42:

When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [(1911) 13 CLR 619 at 634; [1911] HCA 66]. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [(1963) 110 CLR 234 at 252; [1963] HCA 44]; see also Thomas v The Queen [(1960) 102 CLR 584 at 605‑606; [1960] HCA 2].

Nature and quality of the evidence

46. The Crown submitted in the present case, both at trial and on appeal, that when the jury had regard to the whole of the evidence it was entitled to infer that the applicant and Mr Palenapa-Pili knew each other and had made, at least, an implicit agreement to wound, or alternatively, to assault or intimidate Mr Xiao. The appellant’s principal submission was that it was not open to the jury to be satisfied of the existence of any such agreement. Senior counsel for the appellant also submitted that the Crown had not excluded a reasonable hypothesis consistent with innocence that the appellant was driving Mr Palenapa-Pili to meet someone, such as to deliver money to pay a debt. It was emphasised that Mr Palenapa-Pili was a security guard and submitted that such persons are used for such tasks given their physical presence.

47. Having reviewed the whole of the evidence, including viewing the CCTV footage, I have concluded that it was not open to the jury to be satisfied beyond reasonable doubt that an agreement existed either to wound, or alternatively, to assault or intimidate Mr Xiao. For this reason, the evidence leaves me with a reasonable doubt as to the appellant’s guilt. Since the Crown case is circumstantial and depends on the inferences to be drawn from essentially uncontested evidence, this is not a case in which the jury’s advantage over this Court in seeing and hearing the evidence can provide an answer to the challenge to the sufficiency of the evidence to support the verdict.

48. The deficiency in the Crown case is that the facts as proved leave open the real possibility that the appellant agreed to drive Mr Palenapa-Pili to meet someone at Rydalmere, unaware of Mr Palenapa-Pili’s intentions to wound or assault or intimidate such person.

49. The text messages before the incident only established that the appellant and Mr Palenapa-Pili knew each other, that there had been discussions about the appellant being “short of money” and that arrangements were made for the appellant to drive Mr Palenapa-Pili to meet someone on the day of the incident. There is an absence of material in the text messages referable to the offence Mr Palenapa-Pili in fact committed, or his intentions prior to the incident.

50. There is no evidence that Mr Palenapa-Pili knew his intended victim, Mr Xiao, or of any hostility between Mr Palenapa-Pili and Mr Xiao. Nor is there any evidence of any discussion between the appellant and Mr Palenapa-Pili about Mr Xiao at any stage, other than that the appellant was to drive Mr Palenapa-Pili to meet someone. There is no evidence that the appellant knew that Mr Palenapa-Pili was in possession of a hammer or any other weapon when he left the car, or that the appellant knew Mr Palenapa-Pili would resort to violence upon approaching the person in the white van, Mr Xiao.

51. The Crown accepted that up to the point of time when the appellant dropped off Mr Palenapa-Pili in Pine Street, there is no direct evidence pointing to an agreement of the kind alleged by the Crown to wound or to assault or intimidate Mr Xiao, as opposed to an agreement to drive Mr Palenapa-Pili to meet someone. The Crown relied upon six matters in support of an inference that there was more than just an agreement to drive Mr Palenapa-Pili to meet someone.

52. The first matter relied upon was the combination of the “false start” and the immediacy of the assault on Mr Xiao with the hammer. It was submitted that the victim was the subject of a targeted assault that was the planned enterprise.

53. The “false start” at about 11.06 am is neutral; it demonstrates no more than that Mr Palenapa-Pili intended to meet a person in a white van. As to the immediacy of the attack on Mr Xiao after he arrived at the laneway at 11.46 am, whilst this is consistent with a targeted assault by Mr Palenapa-Pili, it does not necessarily point to the appellant being a party to an agreement with Mr Palenapa-Pili to wound or assault or intimidate Mr Xiao.

54. The second matter was the CCTV footage showing the blue car from 10.55 am driving up and down Pine Street in the vicinity of the laneway. The Crown submitted that this evidence permits the inference that the appellant and Mr Palenapa-Pili were together assessing the scene. Whilst this is a circumstance that fairly attracts suspicion, there is a subsequent period of about 45 minutes when the appellant seems to be parked on the southern side of Pine Street, to the east of the laneway, behind another car which can be seen on the CCTV footage near trees some distance from the laneway. The Crown has not excluded a reasonably rational inference that the appellant was waiting for Mr Palenapa-Pili to deliver something to the person he was to meet.

55. The third matter is the close proximity of the appellant to the incident in the laneway. This is relatively neutral, as the Crown did not put its case at trial, or on appeal, on the basis that the appellant was in a position to observe the assault on Mr Xiao. It is not possible to infer from the CCTV footage that the appellant could have observed the assault from his location parked on the southern side of Pine Street, to the east of the laneway.

56. The fourth matter is the very visible bag worn by Mr Palenapa-Pili over his shoulder when he left the appellant’s car. The Crown submitted that this evidence permits the inference that the appellant must have known what Mr Palenapa-Pili had in his possession as part of their agreement because the appellant had spent time with Mr Palenapa-Pili in the car travelling to Pine Street, after the appellant collected him from his home shortly after 10.31 am.

57. Whilst it may be inferred that the appellant observed Mr Palenapa-Pili carrying a blue bag when he left the car, it is mere conjecture that Mr Palenapa-Pili told the appellant of its contents or of his actual plans for the person he was to meet. There is no direct evidence that the appellant knew that the bag contained a hammer or any other weapon: cf Miller where there was evidence that each co-accused was angry and aggressive prior to the offending with knowledge of each other’s weapons.

58. The fifth matter is that the appellant had the opportunity to observe Mr Xiao’s injuries when he drove past him on his way to the roundabout at Park Road and Pine Street, but did not take the opportunity to leave by another route and instead did a U-turn at the roundabout and came back past the victim and his companions in order to pick up Mr Palenapa-Pili. In addition, that night the appellant chased up payment from Mr Palenapa-Pili for his part, which the Crown relied upon to support the inference that this was a planned enterprise.

59. The CCTV footage shows that at 11.49 am, shortly after the incident, the blue car drove past Mr Xiao on two occasions. On the first occasion, the blue car drove in a westerly direction on Pine Street. Mr Xiao was standing on the road on Pine Street about one metre from the lane entrance, holding it appears the right side of his face with his left hand and pointing to the east where Mr Palenapa-Pili had fled; two other two male persons are near the kerb. On the second occasion, the blue car returned in an easterly direction on Pine Street. Mr Xiao was standing on the road, again holding the left side of his face and pointing to the east, this time with his back towards the blue car, now facing three persons standing near the entrance to the laneway.

60. It was open to the jury to be satisfied with respect to the first occasion, that as the driver of the blue car, keeping a proper lookout, the appellant would likely have looked to his left in the direction of the three people near the laneway as he drove past, particularly as one of those persons, Mr Xiao, was standing on the road about one metre from the lane entrance holding his face with one hand and pointing with his other hand. Given the evidence of Mr Tinirau, it was also open to the jury to be satisfied that the appellant would likely have observed some bleeding to the left side of Mr Xiao’s face, although his right hand was holding his face where he was bleeding. However, the jury could not have been satisfied, without more, that the appellant would necessarily have known that Mr Palenapa-Pili had caused those injuries. With respect to the second occasion, the jury could not have been satisfied that the appellant saw the injuries to the victim’s face given that he was facing away from the blue car.

61. The sixth matter concerns the lies told by the appellant to the police. As mentioned, the Judge gave an Edwards direction as to the use of lies. The direction was in conventional terms. At trial, counsel for the appellant frankly accepted in his closing address that the appellant had lied to the police. Counsel described the lie as “a bit ridiculous” and submitted before the jury that people lie for all sorts of reasons, particularly in “panic and nervous situations and caught on the hop situations”. In this Court, senior counsel for the appellant submitted that the appellant lied out of panic to protect Mr Palenapa-Pili.

62. Lies may only be used as evidence of consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct: R v Cook [2004] NSWCCA 52 at [50] (Simpson J, Ipp JA and Adams J agreeing).

63. At least some of the appellant’s lies to the police are explicable on the basis that he lied out of panic to protect Mr Palenapa-Pili. That may be seen in the following answers given by the appellant on 15 December 2015, pursuant to a demand by the police that he supply information under s 14 of the LEPRA:

Q54:   Well, you said you picked him up.

A:   Yeah, I was driving around, yeah, I got lost, and he, he waved me to stop, you know.

Q55:   Do you know what, anything else that he was wearing?

A:   I just remember the fluoro.

Q56:   The fluoro?

A:   Yeah, I just remembered the fluoro, ‘cause it was bright. That’s how I, that’s how I saw him on the side of the road.

Q57:   But you haven’t, you haven’t got his phone number or ---

A:   No, I don’t have ---

Q58:   Haven’t spoken to him since?

A:   No, I haven’t. I don’t know the guy.

Q59:   All right, fair enough, no worries. Do you real, do you understand that the, ah ---

A:   Yeah.

Q60:   [05.32] --- that there was an assault that day?

A:   No.

Q61:   And that’s why we’re here to ---

A:   Oh, after my mum told me, I was like, What the?

Q62:   OK.

A:   So, what, the guy I picked up actually assaulted someone?

Q63:   Yeah, I believe he did.

A:   What the hell?

Q64:   Do you ---

A:   I dunno, he just looked, he just seemed like he was in a real hurry, that’s all.

64. The other lies which the appellant told the police fall into a different category. They all relate to the appellant’s own conduct, namely: that he was driving in Rydalmere looking for a fortune teller for his mother, that he became lost and he was waved down by a male person who agreed to pay him $100 to drive him “up the road”, and that he had not spoken to that person again. As the appellant aptly submitted at trial, and again on appeal, such lies border on the ridiculous.

65. The jury seems to have accepted that the lies demonstrated a consciousness of guilt, and inferred that this were corroborative of the existence of an agreement that a crime should be committed either to wound Mr Xiao with intent to cause grievous bodily harm, or alternatively, to assault or intimidate Mr Xiao, such that the appellant foresaw the possibility of an incidental crime of wounding with such intent. The difficulty with such reasoning is that it ignores the real possibility that the appellant was seeking to avoid a consequence unrelated to the offence with which he was charged. That is, the appellant sought to avoid making an admission to a different offence – that he was an accessory after the fact. Such an offence might have been charged on the basis that the appellant committed a positive act of assistance by collecting Mr Palenapa-Pili in his car, thereby assisting him to flee the scene: Crimes Act, s 347; see R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at [53] (Heydon JA, Dowd and Bell JJ agreeing). The Crown did not suggest in this Court that such a charge was not available.

64. Even assuming that it was open to the jury to be satisfied that at least some of the appellant’s lies to the police were inculpatory, the jury was required to weigh the use of such lies to prove a consciousness of guilt against all of the circumstances including that there was otherwise an absence of evidence pointing to the existence of an agreement that a crime should be committed as the Crown alleged. In my view, there is a deficiency in the evidence relied upon by the Crown for the inference that there was more than just an agreement to drive Mr Palenapa-Pili to meet someone.

65. For these reasons, I do not consider that there was evidence on which the jury could properly convict the appellant. The jury ought to have had a doubt as to the appellant’s guilt on the basis that there was a real possibility that the appellant and Mr Palenapa-Pili did not make any agreement either to wound Mr Xiao, or alternatively, to assault or intimidate him. Accordingly, it was not open to the jury to be satisfied that the appellant was guilty of the offence charged either on the basis of joint criminal enterprise liability, or on the basis of extended joint criminal enterprise liability. The appellant’s conviction should be quashed.

66. For completeness, it should be noted that the Crown did not submit that the Court should order a new trial pursuant to s 8(1) of the Criminal Appeal Act. That may be accepted. Here, a new trial would involve a change “in the nature of the charge”, such as a charge of being an accessory after the fact, which would necessitate an amendment to the indictment. That would involve “a substantial amendment to the indictment” (see Parker v The Queen (1997) 186 CLR 494 at 520; [1997] HCA 15) and not merely seek “to characterise the facts … in a different way”: R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [68].

Orders

69. I propose the following orders:

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.

70. HARRISON J: I agree with Gleeson JA.

71. N ADAMS J: I have had the advantage of reading in draft the judgment of Gleeson JA. I agree, for the reasons set out by his Honour that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt. My agreement with his Honour on this ground was reached after an independent examination of the trial evidence.

72. The Crown sought to establish beyond reasonable doubt that the appellant and Mr Palenapa-Pili formed an agreement, not simply to commit a crime but, rather, a specific crime being either to inflict grievous bodily harm on Mr Xiao (joint criminal enterprise) or to assault or intimidate him in circumstances where the appellant foresaw the possibility that Mr Palenapa-Pili would wound Mr Xiao with the intention to cause grievous bodily harm to him (extended joint criminal enterprise). The Crown accepted that up until the time that Mr Palenapa-Pili left the appellant’s vehicle there was no evidence of any agreement to commit any of these specific offences.

73. I am satisfied that the six factors relied upon by the Crown to establish both this specific agreement and the appellant’s participation in it (considered by Gleeson JA at [52]–[64]) establish that the appellant agreed to drive Mr Palenapa-Pili to a specific destination for the payment of $250 and that he lied about it when spoken to by police. The Crown case was circumstantial. That meant that in order to succeed the Crown had to establish the only rational inference to be drawn from the evidence must have been that the appellant and Mr Palenapa-Pili formed an agreement either to inflict grievous bodily harm on Mr Xiao or to assault or intimidate him whilst foreseeing the possibility that Mr Palenapa-Pili would wound Mr Xiao with the intention to cause grievous bodily harm to him. The difficulty or the Crown case is that these were not the only rational inferences to be drawn. The evidence that the appellant had the opportunity to see Mr Xiao’s injuries after he was assaulted is equally consistent with the appellant being an accessory after the fact to the assault of Mr Xiao committed by Mr Palenapa-Pili alone.

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Decision last updated: 31 July 2019