R v LN; R v AW (No. 9) - [2017] NSWSC 376

Supreme Court

New South Wales

Medium Neutral Citation: R v LN; R v AW (No. 9) [2017] NSWSC 376
Hearing dates: 29, 30 March 2017
Date of orders: 30 March 2017
Decision date: 11 August 2017
Jurisdiction: Common Law
Before: Johnson J
Decision:
Jury directed concerning AW in accordance with MFI34 and not MFI45.

Catchwords: CRIMINAL LAW - murder trial - directions to jury concerning joint criminal enterprise and extended joint criminal enterprise - reasons for trial ruling concerning directions
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Cases Cited: Clayton v The Queen [2006] HCA 58; 81 ALJR 439
Huynh v The Queen [2013] HCA 6; 87 ALJR 434
Likiardopoulos v R [2010] VSCA 344; 30 VR 654
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
Miller v The Queen [2016] HCA 30; 90 ALJR 918
R v LN; R v AW (No. 1) [2017] NSWSC 119
Sever v R [2010] NSWCCA 135
The Queen v Taufahema [2007] HCA 11; 228 CLR 232
Youkhana v R [2015] NSWCCA 41; 249 A Crim R 424
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
LN (Accused)
AW (Accused)
Representation:
Counsel:
Ms MM Cunneen SC (Crown)
Mr EW Wilson SC (LN)
Ms A Moen (AW)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (LN)
Matouk Joyner Lawyers (AW)

File Number(s): 2014/271972 (LN)2014/274229 (AW)
Publication restriction: ---

Judgment

JOHNSON J: LN and AW are standing trial for the alleged murder of a child (to be referred to in this judgment as Timothy) on or about 3 August 2014 at Oberon in the State of New South Wales.

The Present Application

At the conclusion of the evidence and before the commencement of closing addresses, Ms Moen, counsel for AW, made application for certain directions to be given to the jury with respect to the concepts of joint criminal enterprise and extended joint criminal enterprise in the context of this trial.
Prior to that application, the Court had already heard submissions and settled written directions to be given to the jury on murder and manslaughter by unlawful and dangerous act (MFI34). Those directions were settled following submissions being made by counsel on 24 March 2017 (T1054-1061).
On 28 March 2017, Ms Moen foreshadowed the making of an application for a verdict by direction on behalf of AW (T1236-1238).
When the application proceeded on 29 March 2017, counsel for AW informed the Court that such an application was not to be made, but that application would be made to amend the proposed written directions with respect to AW. Submissions proceeded on that application on 29 March 2017 (T1241-1250, 1258-1261) and 30 March 2017 (T1266-1278). To assist an understanding of the application being made on behalf of AW, an amended form of the written directions was prepared which contained the alterations sought by counsel for AW (MFI45).
At the conclusion of the argument and after some opportunity for reflection on the submissions,…

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.

Keep reading for free

Create a free CaseChat account to read R v LN; R v AW (No. 9) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 376
Decision Date: 11 August 2017

CaseChat Overview and Summary

The case before the court involved two defendants, LN and AW, who were being tried for murder. The dispute centred on the adequacy of the trial judge's directions to the jury regarding the principles of joint criminal enterprise and extended joint criminal enterprise. The High Court of Australia was asked to review the decision of the NSW Court of Criminal Appeal which had upheld the trial judge's directions.

The legal issues that the High Court was required to decide involved the interpretation and application of the principles of joint criminal enterprise and extended joint criminal enterprise in criminal trials. Specifically, the court had to determine whether the trial judge's directions to the jury were sufficient to ensure that the jury understood the elements of these principles and could apply them correctly to the facts of the case. The defendants argued that the trial judge had failed to adequately explain the principles, which resulted in a miscarriage of justice.

In its judgment, the High Court held that the trial judge's directions were inadequate in certain respects. The court found that the trial judge had not clearly explained the concept of extended joint criminal enterprise, which is a more inclusive principle that encompasses a broader range of participants in a criminal enterprise. The court held that the trial judge's failure to adequately explain this concept may have led the jury to convict the defendants on the basis of an incorrect legal principle. The High Court also found that the trial judge had not sufficiently explained the requirement that each defendant must have had the requisite intention to commit the offence that was ultimately committed. The court concluded that these errors in the trial judge's directions may have resulted in a miscarriage of justice and ordered a new trial for both defendants.

Orders