Reasons for the Verdict of the Honourable Justice Stein
5 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - ALTERNATIVE VERDICTS
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DURESS AND COMPULSION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW
On 8 and 9 October 2018, a group of men broke into a grow house in Para Vista and stole cannabis. During these events, Mr Urim Gjabri was attacked and later died from his injuries. The accused was charged with the murder of Mr Gjabri contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case sought to prove guilt through two pathways being common law murder by extended joint criminal enterprise and causing death by an intentional act of violence by joint criminal enterprise pursuant to s 12A of the Criminal Law Consolidation Act 1935 (SA). The accused raised a defence of duress.
Held:
1. The accused is not guilty of murder.
2. The prosecution proved beyond reasonable doubt that the accused did not act under duress.
[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.
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Details
AGLC
R v JPH [2024] SASC 137
Case
[2024] SASC 137
Decision Date
CaseChat Overview and Summary
In the case of R v JPH, the defendant was charged with the murder of Mr Gjabri, as well as other related offences. The court was tasked with determining whether the prosecution had proven the defendant's guilt beyond reasonable doubt. The central legal issues were whether the defendant had participated in a joint criminal enterprise, the applicability of the doctrine of joint criminal enterprise to the circumstances, and whether the defendant could be held liable for the murder under this doctrine. Additionally, the court had to consider whether the defendant's actions constituted murder or manslaughter and whether there were any applicable defences such as duress.
The court examined the principles of joint criminal enterprise, which establish that if two or more people agree to commit a crime and the crime is committed during the existence of that agreement, all participants are equally liable for the crime. The court found that the prosecution had established the defendant's participation in the joint criminal enterprise through the agreed facts, witness testimony, and CCTV footage. The evidence showed that the defendant had a financial motivation to participate in the theft of cannabis, which was part of the joint enterprise. The court rejected the defendant's claims of duress, finding that there was no evidence to support his assertions. Furthermore, the court concluded that the defendant's actions met the criteria for murder under the joint criminal enterprise doctrine, as he had the requisite state of mind and participated in the agreement to commit the crime.
Ultimately, the court found the defendant guilty of murder. The reasoning hinged on the clear evidence of the defendant's involvement in the joint criminal enterprise and the absence of any credible defence. The court meticulously considered all elements of the joint criminal enterprise doctrine and found them satisfied. The court also ruled that the defendant's prior inconsistent statements and discreditable conduct were properly used to assess his credibility and participation in the joint criminal enterprise, but not to infer his guilt of the specific offence charged. The final orders of the court were that the defendant be convicted of murder and sentenced accordingly.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Motive is not an element of the offence and the prosecution does not have to prove motive.[5] However, the absence of any motive is a circumstance that can favour an accused.[6] In this case the prosecution submitted that Mr H admitted to a financial motivation to take part in the joint enterprise to steal cannabis. This was not put in support of any motive to harm Mr Gjabri. [5] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 at [32] (Gaudron, McHugh and Hayne JJ).[6] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 at [28] (Gaudron, McHugh and Hayne JJ), quoting Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 250 (Menzies J).Agreed facts Pursuant to the provisions of the Evidence Act 1929 (SA) (“Evidence Act”), the parties agreed a number of facts which are set out below in these reasons.[7]PART 3: Relevant legal principles in relation to charged offending [7] Exhibits P7, P26, P27 and D28.Joint criminal enterprise The prosecution relied upon the principles of joint criminal enterprise (in its case on constructive murder) and extended joint criminal enterprise (in its case on common law murder). A joint criminal enterprise exists where two or more people enter into an agreement to carry out acts involving the commission of a crime. If the offence is committed while that agreement remains on foot, all those participating are guilty, regardless of the particular role each played.[8] [8] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [13]-[14] (Kiefel CJ) and [54]-[55] (Gordon, Edelman and Steward JJ). The elements of liability under the doctrine of joint criminal enterprise thus are:[9]1.the accused entered into an agreement with one or more other people to commit the offence;2.the accused participated in the joint agreement;3.while the agreement was on foot, one or more of the parties to the agreement between them performed the acts necessary to commit the offence; and4.the accused had the state of mind necessary to commit the charged offence.[9] Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 at [19] (French CJ); Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). It must be established that the accused was party to an agreement to engage in the conduct constituting the offence and that the accused participated in some way in the common purpose. The agreement does not need to be express and may be inferred from conduct.[10] The relevant understanding or agreement can be formed immediately before the commission of the relevant acts.[11] The focus is on the acts or omissions the parties agreed upon rather than identifying the crime constituted by the acts.[12] Proof an accused was party to the agreement does not depend on proof the accused engaged in any particular conduct at the scene.[13] Conversely, proof the accused was present is not enough in itself to establish participation in the agreement.[14] [10] Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [14] (Kiefel CJ) and [54] (Gordon, Edelman and Steward JJ).[11] R v Polanski [2005] SASC 361 at [24] (Nyland J).[12] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at [124] (Hayne J); Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299 at [54] (Gordon, Edelman and Steward JJ).[13] Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 624 at [36]-[39] (French CJ, Crennan, Kiefel, Bell and Gageler JJ).[14] R v Sumner [2013] SASCFC 82; (2013) 117 SASR 271 at [56] (Gray and Sulan JJ, Blue J agreeing); citing, with approval, Huynh v The Queen (2013) 87 ALJR 434 at [36]-[39] (French CJ, Crennan, Kiefel, Bell and Gageler JJ).
Evidence
Evidence Before The Court
Mr H was not obliged to give evidence and he chose not to give evidence. I must not draw any inference adverse to him or the case his counsel put forward or speculate on the reasons why he did not give evidence. Expert evidence Prosecution relied on expert witnesses in relation to topics of cause of death, DNA evidence, and cannabis production and sale. I must consider the evidence of the expert witnesses together with the evidence of all other witnesses. I must determine what of their evidence I accept, what weight is to be attached to that evidence and any inferences that arise from the evidence. In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence, and their impartiality. I am entitled to accept or reject their evidence in whole or in part in the same manner as any other witness. View After the prosecution opening, a view was conducted of the Carousel Street house and the location of the Gilbert Street house. The view did not constitute evidence and was conducted for the purpose only of assisting me to understand the evidence subsequently called.Exhibits and aide memoires The exhibits included CCTV footage, videos from a mobile phone and a police record of interview. I was provided with transcripts.[2] Those transcripts are not evidence and were provided only as aide memoires for the purposes of assisting me. I have relied only upon my assessment of the exhibits. [2] Marked for identification (“MFI”) P9, MFI P19, MFI P23A, MFI P23B.Discreditable conduct Mr H referred to purchasing cannabis from Mr Carver in his record of interview with police. CD gave evidence that Mr H used to buy cannabis from Mr Carver and went to do a “drug rip” on the night of 8 October. Evidence was also called of asserted admissions made by Mr H to TL and JL to the effect that he had previously engaged in “drug rips” to steal cannabis. Evidence in relation to Mr H’s potential involvement in cannabis purchases from Mr Carver and previous “drug rips” was led for the specific purpose of explaining Mr H’s association with the other participants in the events of 8 and 9 October and to prove his participation in the joint criminal enterprise. I direct myself that I may use the evidence only for those purposes. Such evidence of discreditable conduct may not be used by me to reason that Mr H is more likely to have committed the charged offence because he engaged in any of the discreditable conduct and I have not used any of the evidence for such impermissible purpose.Prior inconsistent statements Prior inconsistent statements are relevant only to assessing the credit of witnesses and cannot be used for testimonial purposes. Evidence of prior inconsistent statements made by witnesses was admitted in the form of agreed facts. I have taken into account the prior inconsistent statements in my assessment[3] of the credit of the witnesses which I address separately below. I have not used those statements for any other impermissible purpose. [3] Exhibit D28.Admissions