Regina v A M P Helene
[1999] NSWCCA 203
•28 July 1999
CITATION: Regina v A M P Helene [1999] NSWCCA 203 FILE NUMBER(S): CCA 60503/98 HEARING DATE(S): 28 May 1999 JUDGMENT DATE:
28 July 1999PARTIES :
Regina
v
Andrew Mark Phillip HeleneJUDGMENT OF: Ireland J at 1; Kirby J at 2; Carruthers AJ at 66
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/21/3276 LOWER COURT JUDICIAL OFFICER: Nield DCJ
COUNSEL: S J Odgers (App)
L M B Lamprati (Crown)SOLICITORS: Watsons (App)
C K Smith (Crown)CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE; Directions on the elements; Relating the elements to the evidence; Armed robbery; Joint criminal enterprise; Aiding and abetting; Sentence ACTS CITED: Crimes Act 1900 - s61, s97(1) CASES CITED: Yager v The Queen (1977) 13 ALR 247
Zorad v The Queen (1990) 47 A Crim R 211
Tangye v The Queen (1997) 92 A Crim R 545
Osland v The Queen (1998) 159 ALR 170
Alford v McGee (1951-52) 85 CLR 466
Regina v C (CCA, unreported, 23/05/94)
Regina v Blanch (CCA, unreported, 9/08/94)
R v Lowery & King (No 2) [1972] VR 560
Regina v Vester Fernando & Anor ([1999] NSWCCA 66, unreported, 14/04/99)
Regina v Henry & Ors ([1999] NSWCCA 107, unreported, 18/05/99)DECISION: Refer para 132
IN THE COURT OF
CRIMINAL APPEAL
60503/98IRELAND J
Wednesday 28 July, 1999
KIRBY J
CARRUTHERS AJ
1 IRELAND J: I agree with Carruthers, AJ and with the orders proposed by his Honour.REGINA -v- Andrew Mark Phillip HELENE
JUDGMENT
**********
IN THE COURT OF
CRIMINAL APPEAL
60503/98
IRELAND J
KIRBY J
CARRUTHERS AJ
Wednesday 28 July 19992 KIRBY J: The point in this appeal is whether a trial Judge is obliged to include in his summing up the elements of the offence (or so many of them as remain in issue), and to relate the evidence to each element. In a trial for armed robbery, the trial Judge neither identified the elements of armed robbery, nor the evidence capable of supporting each element. Moreover, the jury did not have its attention drawn to a significant discrepancy between the evidence of the two complainants, and its relevance to the terms of the indictment.
REGINA v Andrew Mark Phillip HELENEJUDGMENT
The First Incident
3 On 29 August 1997, shortly after 11.00 pm, two boys (Michael Deaves and James Koski) were at a telephone booth in Macarthur Square, Campbelltown. Michael Deaves was aged sixteen years. His friend, James Koski, was aged fifteen. They were approached by a group of youths, including the appellant (then aged nineteen years).
4 Two incidents occurred, separated by five or ten minutes. The first incident gave rise to two charges of assault (s 61 Crimes Act 1900). The charge involving Michael Deaves was in these terms:
“(That) on 29 August 1997, at Campbelltown, in the State of New South Wales did assault Michael Stephen Deaves.”
5 There was a second charge, in the same terms, substituting the name of James Phillip Koski for that of Michael Deaves.
6 The appellant was a man of distinctive appearance. He had been involved in a car accident some months before, and had sustained a number of injuries. He had teeth missing in the front. He also had a walking stick. He walked with a limp. His skin was dark. On the night of 29 August 1997 he was wearing a bandanna.
7 Each boy described the first incident in similar terms. An “asian man” approached the telephone booth, and asked for cigarettes and money. Others, including the appellant, were standing nearby. The appellant had a machete concealed within the sleeve of his leather jacket. It had a 30 cm curved blade. Whilst the asian man was addressing the boys, Mr Helene was said to have produced the machete. Michael Deaves said that it was pointed towards him, at waist level, approximately four inches in front of him. He felt scared. He thought he was going to be stabbed. At the time the knife was produced, those around him started laughing. Mr Deaves described what occurred in these words: (T 13)8 James Koski gave a similar account. He said the machete was pointed between he and Michael Deaves. The appellant was about one metre away. Mr Koski described what occurred in these words:
“Q. Do you recall if anything else was said after the knife was produced?
A. No I just remembered everyone was standing around laughing, like the other group, and then another guy started walking up, he was a fairly big person and he goes ‘Oh don’t worry about them, they’re only joking’ and then they walked off up to the little bus shelter up a bit just up further.”9 James Koski added the following detail, which is of some significance in the context of the second incident: (T 45)
“A. Yes the guy with the walking stick dropped a machete out from his right arm sleeve into his hand and started laughing.”
10 When cross examined, Mr Koski said this: (T 52/53)
“A. And he dropped out his machete after we said we didn’t have any cigarettes because we don’t smoke and he started laughing and the Tongan guy said to us that they’re only joking and the Tongan started to walk away and he lifted up his walking stick and said ‘You’d better not be lying to us’.
Q. Now when he lifted up his walking stick, is that the man who also had the machete?
A. Yes.
Q. When he lifted it up, how high did he have it?
A. Up to my face.”11 Mr Cross, a member of the group which included the appellant, gave evidence. He said this, referring to the appellant: (T 67)
“Q. And you said that he held the stick up during the first incident?
A. Yes.
Q. And you’re quite certain about that?
A. Yes.”12 The appellant acknowledged that he had the machete. He said that he had been asked to mind it for a friend. He claimed to have returned it shortly after the two incidents which gave rise to the charges. It was not in his possession at the time he was arrested, shortly after midnight. The appellant acknowledged, however, that at the time of the first incident he was playing with the machete. He was twirling it around whilst the asian man was “hassling” the boys for money and cigarettes. He denied having pointed it at the boys. He also denied having held his walking stick up to anyone’s face.
“A. Saw two boys there and Andrew approached them with a few other men and started to talk to them and then that’s when the machete came out and he started pointing towards the boys.”
13 The second incident was an alleged armed robbery (s 97(1) Crimes Act 1900). There were two charges. The charge involving Michael Deaves was in these terms:
The Second Incident
“(That) on 29 August 1997, at Campbelltown, in the State of New South Wales, being then armed with an offensive weapon, namely a machete, did rob Michael Stephen Deaves of a quantity of money the property of Michael Stephen Deaves.”
14 The second charge was in the same terms, substituting the name James Phillip Koski for that of Michael Stephen Deaves.
15 Michael Deaves gave evidence that he and James Koski decided to catch a taxi home, having missed the bus. The appellant was nearby. They asked him whether he knew the number of the taxi company. Whilst he was giving that number, the asian man rushed up. Michael Deaves described what happened in these words: (T 15)16 The asian man then demanded money. The account of Michael Deaves continued: (T 15)
“A. He grabbed James by the shirt and like lifted and pulled him towards kind of thing and that’s when he was say(ing) ‘Oh you’re calling the cops’ and stuff.
Q. When you say calling the cops and stuff did he say something else?
A. He also said - and then we said ‘No we’re calling a cab’ and that’s when he was saying ‘I thought you had no money with you’ and we just said ‘We know the driver and we pay him when we get home.’”17 Mr Deaves continued his account, describing the demand for his wallet: (T 15)
“A. He kind of let James go and the person that had the knife lifted his walking stick up towards James, I didn’t hear what he said because I was kind of not that close to him at that time and I heard ‘It’s either the money or the fist’ and that’s when like they took James’ wallet off him and took the money and James said ‘Give me back my wallet’ and they threw it across the ground …”
18 He added: (T 15)
” … and then one person, I didn’t know who he was, come down to me and asked for the money, I gave him money and they also stole the phone card I had.”
19 It is clear that the person who demanded Mr Deaves’ wallet was not the appellant. Mr Deaves said this: (T 18)
“Q. At any stage during this period of time up to this stage did you see any knives?
A. No not that I can remember.”20 His evidence continued: (T 18)
“Q. The man who’d had the knife earlier where was he?
A. He was up with that group still.
Q. How far was he from you?
A. Probably two to three metres away.”21 The Tongan man then took Mr Deaves behind the phone booth. He “slammed” his head against the phone box a number of times. He then walked off. The asian man was heard by Mr Deaves to say these words:
“Q. How far were you from the man who had the knife earlier at this point in time when you produced your money?
A. Would have been about two to three metres away.”
“Thanks for the money boys.”
22 The account of Mr Koski was somewhat different. It was the man with the walking stick, the appellant, who asked: “Are you calling the police?”, not the asian man. The asian man came running towards them, and pushed Michael Deaves, saying: “Are you fucking around with us?”
23 The asian man then demanded James Koski’s wallet, holding his shirt as he made that demand. Mr Koski said this: (T 43)24 He handed over his wallet. When asked why, he responded with these words: (T 43)
“Q. The man with the walking stick, did he have anything else with him at that point in time?
A. I wasn’t sure, I was looking at the asian guy.”25 According to this witness, the machete was held by the appellant “beside him”, at an angle to the ground. Mr Koski said that he overheard the appellant later speaking to the asian man. His account of what was said was as follows: (T 63)
“A. Because they threatened me, whether, to kill me or something.
Q. Can you tell us what was said in terms of a threat?
A. Oh they said, the guy with the walking stick brought out the machete and he held it up towards me and he said - the asian guy said ‘It’s either this or wallet and my fists’ so I gave him my wallet.”
“A. The guy, the asian guy, was counting the money and the guy with the walking stick was to his right-hand side and he said ‘At least you got $20 out of it’.”
26 The accused denied taking part in the robbery. Specifically, he denied producing the machete, or holding the walking stick to anyone’s face. As mentioned, he acknowledged having the machete on this evening, for a time, and playing with it, twirling it around. At one point he dropped it, not far from where the boys were standing.
27 The appellant acknowledged that, when interviewed by the police, shortly after the incident, the account he gave was false in a number of respects.
The Notice of Appeal
28 The notice of appeal raised a number of grounds. However, only the following grounds were pressed when the matter proceeded:
· Ground 2: His Honour erred by failing to outline the elements of the armed robbery charges.
· Ground 6: The sentence was too severe.
29 In counsel’s elaboration upon ground 2, leave was sought to add a further ground, should it be thought that the matters which the appellant sought to raise were not covered by ground 2. The additional ground was formulated in these words:
· Ground 7: His Honour erred in his directions as to the basis on which the appellant could be found guilty of the armed robbery offences.
30 No complaint is made in respect of the convictions for assault. The sentence imposed (six months) expired on 12 February 1999.
The Analysis by His Honour of the Facts
31 Counsel for Mr Helene apparently suggested to the jury that the victims, Messrs Deaves and Koski, were not lying, but were mistaken. His Honour, helpfully, identified the issues in respect of which their evidence coincided with that of the accused, and the witness, Mr Cross. Their accounts coincided in many respects.
32 His Honour then dealt with areas of difference. He said this: (S/U 13)33 The summing up continued as follows: (S/U 15)
“So, what were they mistaken about? Which sleeve was it, left or right? When was the cane raised? Michael Deaves said it was raised in the second incident. James Koski said it was raised at the end of the first incident. Both of them say it was raised. Who asked ‘Are you calling the police?’? Michael Deaves said the asian man asked. James Koski said the accused asked. Now somebody asked, there is no doubt that it was asked. Who asked? Well, there is a difference between them. You might think that the difference is explicable. Whether you do or not is a question of fact for you to decide. So, members of the jury, what you are asked to say is that the complainants have made a mistake about what they say the accused did.”
34 His Honour added: (S/U 15)
“… bearing in mind that the complainants say that the accused did things, and you know what they say that he did, and he says that he did not do those things, that it is more than a mistake. And you might think, members of the jury, although it is a question of fact and therefore for you, that somebody is lying.”
35 Instructions were then given concerning the onus and standard of proof. His Honour added: (S/U 21)
“And, as I have said to you, the evidence of the complainants and the accused are almost diametrically opposed about the things that the complainants say that the accused did.”
36 Instructions were given as to the elements of assault. His Honour then dealt with the armed robbery offences. He said this: (S/U 23)
“What the Crown has got to prove in relation to the offences is the essential element of each of them if there is only one essential element or the essential elements of each of them if there are more than one essential element.”
37 A joint criminal enterprise was then described. I will return to these instructions shortly, since they were also the subject of complaint by the appellant. However, having defined the meaning of joint criminal enterprise, his Honour then said this: (S/U 25)
“As to the armed robbery offences. The Crown says that there was a joint criminal enterprise. What the Crown says to you is this, in relation to the armed robbery offences, that, although the accused did not demand money, he was part of the group, and the complainants say that there were three in that particular group, which accosted the two men, the two boys, which threatened them and which took their money. What the Crown has got to prove to you is that there was a joint criminal enterprise. Now, in order for you to make that decision I have got to tell you what is a joint criminal enterprise.”
38 His Honour added: (S/U 26)
“Members of the jury, I do not propose to tell you the niceties of the offence of being armed with an offensive weapon and robbing somebody.”
“There is not any doubt in this case that the ‘mass murderer’s’ weapon, as the accused referred to it when interviewed, is an offensive weapon, and it is not being suggested to the contrary, so I need not tell you what amounts in law to an offensive weapon, it is not suggested that this 30 centimetre or 40 centimetre machete, described by the accused as a mass murderer’s weapon, is not an offensive weapon.”
39 And that is where the matter was left. At no point did his Honour identify the elements of armed robbery, or relate those elements to the evidence given. The summing up did not include the differences between the accounts given by each victim, insofar as they had a bearing upon the issues which the jury were obliged to determine. Rather, there was an assumption that the accounts given by each complainant were substantially the same, although different from that of the accused.
40 However, there were significant differences between the evidence of Mr Deaves and that of Mr Koski. First, both indictments identified the offensive weapon as the machete. Yet, only Mr Koski said that Mr Helene had produced the machete in the course of the robbery. Mr Deaves said that it had been produced in the course of the first incident, the assault. Secondly, Mr Deaves asserted that the appellant had lifted his walking stick to the face of Mr Koski at the time the demand was being made for money. Mr Koski, in contrast, said that this had occurred at the conclusion of the first incident, shortly before the group moved away. His Honour referred to this difference.
41 However, the jury needed to be told, given the terms of the indictment, that they must be satisfied beyond reasonable doubt that a machete had been produced by the accused in the course of the robbery, or that the accused had at least adverted to his possession of such a weapon. The jury needed to understand, before they could convict the appellant, that they must reject the account of Mr Deaves, and accept that of Mr Koski, and be left with no reasonable doubt. They needed to be told (given the terms of the indictment) that the Crown did not suggest that the offensive weapon was a walking stick.
42 Thirdly, there was a difference between the recollection of the two victims as to what was said at the time that money was demanded. Mr Deaves remembered the words as being the following:43 Mr Koski, on the other hand, had the following recollection:
“It’s either the money or the fist.”
“It’s either this (referring to the machete), or the wallet and my fists.”
44 The difference between these two versions was slight. However, it was important. It was capable of providing insight into the differences between the account given by Mr Deaves, and that of Mr Koski. Both accounts suggested that there had been a reference to the wallet, and fists. According to Mr Deaves, that was all that was said. His account was consistent with there being no weapon at this crucial time, nor advertence to such a weapon. The threat, as recounted by Mr Koski, was somewhat odd. If one had a machete, it would hardly be necessary to refer to “fists”.
45 In certain prosecutions it may not be essential to refer to the elements of the offence. In Yager v The Queen (1977) 13 ALR 247, for instance, there was only one issue, namely, whether the plant which the accused acknowledged she brought into Australia fell within the definition of a prohibited import “cannabis sativa” (there being expert evidence that there were other species of cannabis, namely, “cannabis indica” and “cannabis ruderalis”). That, however, was an unusual case. In the ordinary course, the jury should be told the elements of the offence, or at least those elements in respect of which there remains an issue. Further, the jury should be given assistance in respect of those factual issues which need to be resolved when determining the guilt of the accused.
46 Here, the failure to instruct the jury on the elements of the offence of armed robbery, and the differences between the versions of each victim (and the importance of such differences to each charge) were significant omissions. I believe such instructions should have been given. Accordingly, I believe there was error.
47 In Zorad v The Queen (1990) 47 A Crim R 211, the Court (Hunt, Enderby and Sharpe JJ) said this: (at 227/228)48 It cannot be said, on these facts, that the Crown case was a strong one of armed robbery. I believe the appellant did lose a real chance (or a chance that was fairly open to him) of being acquitted, and that there was, therefore, a miscarriage of justice.
“Every accused is entitled to a fair trial, one in which the relevant law has been correctly explained to the jury and in which the rules of procedure and the laws of evidence have been properly followed. If there has been a failure in any such respect, and if the accused may thereby have lost a real chance (or a chance that was fairly open to him) of being acquitted, there has been a miscarriage of justice. Once an appellant has persuaded this Court that there has been an error made at the trial, the onus lies upon the Crown to persuade this Court that there has been no such miscarriage - that an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct directions of law, would inevitably have convicted the appellant. The proviso may be applied if the Crown case is undoubtedly a strong one, if the effect of the error is in the circumstances an unimportant one and if this Court is satisfied that overall the appellant has not been deprived of a fair trial. If there has been a fundamental error in the trial going to the root of the proceedings, however, there is necessarily a miscarriage: see, generally Mraz (1955) 93CLR 493 at 514-515 and Wilde (1988) 164 CLR 365 at 369, 371-373, 377; 31 A Crim R 331 at 333, 335-337, 339.”
The Instructions on Joint Enterprise
49 Mr Deaves’ account of the armed robbery did not attribute an extensive role to the accused. It was the asian man who took hold of James Koski’s shirt (T 15). The same man made the demand for Mr Koski’s wallet (T 15). It was the asian man who went through the wallet (T 32). It was the same man who retained the proceeds (T 17), a fact corroborated by the conversation which Mr Koski overheard after the event. The only significant contribution by the appellant, according to Mr Deaves, was in raising the walking stick at the time the asian man made his demand. This was an aspect which had its own problems, as I have indicated. Mr Deaves said that, at the time the demand for his wallet was made, the appellant was two to three metres away.
50 Mr Koski’s account gave greater prominence to the appellant. Nonetheless, it was the asian man who took hold of Mr Koski’s shirt, and demanded his wallet (T 42). It was the asian man who made the threat (T 43), although the appellant was nearby, armed with a machete. It was the asian man who removed the money from the wallet, whilst the appellant watched (T 43).
51 Not surprisingly, in these circumstances, the Crown relied upon joint criminal enterprise. Hunt CJ at CL in Tangye v The Queen (1997) 92 A Crim R 545 said this: (at 556)52 The trial Judge, appropriately, directed the jury in these terms: (S/U 23)
“The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged.”
53 His Honour then made a brief reference to the facts. He said: (S/U 24)
“Well, members of the jury, the law is this, where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other, or others, in carrying out that enterprise. And the Crown says here the enterprise was the robbery of the complainants. The Crown must establish the existence of the joint criminal enterprise and the participation in it by the accused. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a criminal offence. The understanding or arrangement need not be express, its existence may be inferred from all the circumstances. The understanding or arrangement need not have been reached at any time before the criminal offence is committed. The circumstances in which two or more persons are participating together in the commission of a particular criminal offence may themselves establish an unspoken understanding or arrangement, amounting to an agreement, formed between them, there and then, to commit that criminal offence.”
54 There followed a passage which provides the foundation for the appellant’s criticism of the summing up. It is said that his Honour introduced a separate and different basis for potential liability: that of an accessory, aiding and abetting the principal offender (a principal in the second degree). His Honour said this: (S/U 24/25)
“See, the Crown does not say to you here that the accused and the Asian man and the Tongan man discussed among themselves, before doing anything, what they would do and agreed that they would do it. What the Crown says to you here is that when you look at the circumstances the only rational and logical inference to draw, that means the only rational and logical conclusion to make, is that the three people who were standing in front of the two boys were engaged in the one thing, the one thing being the robbery of the two boys.”
55 His Honour then referred to the facts. He said this: (S/U 25)
“A person participates in a joint criminal enterprise either by committing the criminal offence itself or by being present at the time when the criminal offence is committed, knowing that the criminal offence is to be or is being committed and intentionally assisting or encouraging another participant in the criminal enterprise to commit that criminal offence. The presence of that person at the time when the criminal offence is committed, and a readiness to give aid, if required, is sufficient to amount to encouragement to the other participant, or participants, in that joint criminal enterprise to commit the criminal offence. If the agreed criminal offence is committed by one or other of the participants in that joint criminal enterprise then all the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”
56 The directions of his Honour appear to have been taken from the judgment of Hunt CJ at CL in Tangye v The Queen (supra), where his Honour said the following: (at 556/557)
“What the Crown says to you here, members of the jury, is that the two boys, Michael Deaves and James Koski, were confronted by a group of three men, the accused, the Asian man and the Tongan man, when the accused was holding the machete, albeit that only one of them saw it, who demanded of them their wallets, or their money. You know that James Koski produced his wallet, which was taken by the Asian man, who went through it when, James Koski said, the accused was looking over his shoulder, so to speak. You know that Michael Deaves handed over his money to someone, and he does not know who, and James Koski said that Michael Deaves handed over money to someone but he does not know who. The Crown says to you that the only rational or logical inference to draw is that, even though they may not have discussed it, and even though they may not have agreed what they would do, the mere fact of them doing it shows that the three of them were involved in a joint criminal enterprise of robbing, with the threat of the machete, the complainants Michael Deaves and James Koski. As to that, the accused says that he did not do the things that Michael Deaves and James Koski said that he did.”
57 The appellant, in submissions, relied heavily upon the analysis of McHugh J in Osland v The Queen (1998) 159 ALR 170 at 189/190, para 70-73. In that case his Honour emphasised the importance of distinguishing between those who are parties to the agreement (principals in the first degree), and those who are not (although they may be aiding and abetting, and therefore principals in the second degree). McHugh J said this: (at p 189 para 71)
“So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”
“Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.”
58 McHugh J quoted with approval part of the passage from the judgment of Hunt CJ at CL in Tangye set out above. Proposition (3) in the judgment of Hunt CJ at CL in Tangye (above) incorporates, in the one paragraph, two bases of liability. The opening words are apt to describe liability arising as principal in the first degree (cf McHugh J at p 188 para 70), whereas the balance of the paragraph (referring to intentionally assisting or encouraging) describes the actions of someone aiding and abetting (principal in the second degree) (cf McHugh J at p 189 para 71)
59 The appellant made the following submissions:60 There is some force in these submissions. In circumstances where A and B are engaged in a robbery, and are not armed, and C encourages or assists that robbery, and is armed, can it be said that C is guilty of armed robbery? If C’s liability is truly derivative, it may be doubted whether C can be guilty of armed robbery. Whatever view is taken on that issue (and I find it unnecessary to determine), the appellant’s submissions underline the need for the trial Judge to identify the elements of the crime charged, and to analyse the factual issues which the jury was obliged to resolve (in the context of joint enterprise) before reaching its verdict. In Alford v McGee (1951-52) 85 CLR 466, the Court (Dixon, Williams, Webb, Fullager and Kitto JJ), said this: (at 466)
“(a) Since liability is derivative, it was necessary for the jury to be satisfied beyond reasonable doubt that the principal offender (or offenders) were committing armed robbery, not just robbery. In this case, it is difficult to see how the principal offender(s) could be convicted of armed robbery (absent agreement with the appellant) since neither was armed at all (‘being armed with’ connotes ‘in the possession of’ and it must be actual possession: R v Yates (1963) 80 WN (NSW) 744: R v Farrar (1983) 78 FLR 10). If the principal offender(s) were committing only robbery, the appellant could not be guilty of armed robbery even if he was himself armed.
(b) It was necessary for the jury to be satisfied beyond reasonable doubt not only that the elements of armed robbery were satisfied in respect of the principal offender(s) but that the appellant knew that the principal offenders were acting in such a way as to satisfy the essential elements of armed robbery. In Giorgianni v R (1985) 156 CLR 473, Wilson, Deane and Dawson JJ required at 505-7 both intention to assist or encourage the principal offender, and knowledge of the essential elements constituting the principal offence. In this case, absent agreement, it was not inevitable that the jury would conclude that the appellant knew (at the time the robbery was being committed) that, for example, the principal offender(s) intended to permanently deprive the complainants of any money they had. As noted above, the first incident ended when one of the later participants (the ‘Tongan man’) had stated that it was only a ‘joke’. Absent an agreement to rob, it was possible that the appellant believed that the later ‘robbery’ was also a ‘joke’ (at least until the ‘Asian man’ walked away with the money). …”
“We are in complete agreement with what was said by Owen J in Commissioner for Road Transport and Tramways v Prerauer ((1950) 50 SR (NSW)271, at 277; 67 WN 228). And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.”
61 That is not to say that the Judge is required to advert specifically to every issue of fact which may arise in the course of a trial. The principle relates to the ultimate issues, and those issues of fact that are so fundamental that a jury’s attention must be drawn to them (Regina v C (CCA, unreported, 23 May 1994); Regina v Blanch (CCA, unreported, 9 August 1994) per Badgery-Parker J at 6).
62 In Tangye Hunt CJ at CL said this: (at 557/558)63 In that case, his Honour identified a number of serious defects in the summing up. One such defect was described in these words: (at 559)
“It should only be after the directions of law have been given that the judge should refer to the facts of the particular case upon which the Crown relies, and that the application of the law to those facts should be explained.”
“(4) Moreover, the judge never explained to the jury what the possible incident was for which the Crown contended … Nor did the judge give any explanation as to how either of these two concepts (referring to the concept of a ‘straight forward joint criminal enterprise’, and one relying upon the extended definition, based upon common purpose) arose on the facts of the case.” (parenthesis added)
64 Here some explanation was given, referring to the facts. However, in my view, it did not go far enough. It was necessary to identify those actions of the appellant from which the jury might have inferred that the appellant had either participated in, or had assisted the joint criminal enterprise. Had the appellant’s actions been isolated in this way, the differences between the role attributed to the accused by the two complainants would have been apparent. The jury could then have addressed those factual issues before reaching its verdict.
65 I am, as a consequence of these omissions, reinforced in my view that there was error, and the loss of the chance of acquittal. Hence, I believe there was a miscarriage of justice.
OrdersThe orders I propose are as follows:
(1) That the appellant should be given leave to amend the Notice of Appeal to add Ground 7.
(2) That the appeal should be allowed.
(3) That the conviction should be quashed, and the sentence set aside.
(4) That, in respect of counts 1 and 2, there should be a new trial.
**********IN THE COURT OF
CRIMINAL APPEAL
60503/98IRELAND J
Wednesday 28 July 1999
KIRBY J
CARRUTHERS AJ
Regina v Andrew Mark Phillip HELENEJUDGMENT
66 CARRUTHERS AJ Andrew Mark Phillip Helene stood trial before Judge Nield and a jury of twelve at the District Court, Penrith on 7 April 1998 upon an indictment containing four counts.
67 The first count was that on 29 August 1997 at Campbelltown, he being armed with an offensive weapon, namely a machete, did rob Michael Steven Deaves of a quantity of money. This was a count of armed robbery under s 97(1) of the Crimes Act, 1900 as amended (‘the Act’).
68 The second count was also a count of armed robbery on the same date, the offence there alleged being that armed with an offensive weapon, namely a machete, the appellant robbed James Philip Koski of a quantity of money.
69 The third count was that on the same day he assaulted Michael Steven Deaves. This was a count under s 61 of the Crimes Act - common assault. The fourth count was also a count of common assault on the same date of James Philip Koski.
70 To each count the appellant pleaded not guilty.
71 On 9 April 1998 the appellant was convicted by the jury on all counts.
72 On 12 August 1998 the appellant was sentenced in relation to each of the two robbery convictions to a minimum term of two years penal servitude to commence on 12 August 1998 and to expire on 11 August 2000 with an additional term of two years to commence on 12 August 2000 and to expire on 11 August 2002. On each of the assault convictions the appellant was sentenced to a fixed term of six months imprisonment to commence on 12 August 1998 and to expire on 11 February 1999. The appellant has been in continuous custody since 12 August 1998.
73 Essentially in relation to all counts, the Crown relied upon the doctrine of common purpose.
74 The appellant was born in Sydney on 21 December 1977 and was accordingly 19 years of age at the date of the alleged offences. In 1997 he was, unfortunately, involved in a serious motor vehicle accident occasioning multiple serious injuries. At the time of the alleged offences he required a cane to assist him to walk. I shall refer to certain aspects of the evidence in order to explain the nature of the Crown case. The two complainants Michael Deaves and James Koski were on 29 August 1997 two school boys aged about 16 years. On that Friday evening they had been amusing themselves at Campbelltown and about 10.30 pm walked up to the bus stop at Macarthur Square anticipating that they would be able to get the bus home to Narellan. However the bus which they were expecting did not arrive so they went to a nearby telephone booth hoping that they could ring a taxi. This created difficulties because they were unaware of the number of any taxi service. According to Deaves a number of 17 or 18 year olds approached them and one of them (whom he described as an Asian) asked for cigarettes, they replied that they did not have any and he then asked for money and they replied that they did not have any of that either. Thereupon, the man standing next to him pulled out of his sleeve what Deaves first described as a knife, and held it next to Deaves’ waist. Deaves feared that he was about to be stabbed. He described the knife as being about 30 centimetres long with a curved blade.
75 He described the person who “pulled the knife on him” as wearing a blue bandanna and carrying a walking stick. His skin was black, he had teeth missing and he had a limp on the right side. It was common ground at the trial that this was a reference to the appellant. The group started laughing and one of them said:
“Hey don’t worry about them, they are only joking”
76 and then the group walked off to the bus shelter which was a few metres away. He said that the appellant’s knife just went back into the appellant’s sleeve. Deaves said they were too scared to walk off and they rang Telstra hoping that they could obtain a taxi number from that source but they were unsuccessful. At this stage the appellant walked back towards them and they asked him for a cab number. The appellant was in the process of giving them a number (whether it was in fact the number of a taxi service the evidence does not disclose) when the Asian male ran down and asked whether they were “calling the cops”. The remainder of the group then came down to the telephone booth.
77 The Asian man grabbed Koski by the shirt, lifted him and pulled him towards him. The boys responded: “no we’re calling a cab.” The Asian said: “I thought you had no money with you.” The boys replied: “We know the driver and we pay when we get home.”
78 The Asian kept saying: “Give us the money.”
79 In evidence Deaves then said:80 Deaves was asked by the Crown Prosecutor:
“He kind of let James go and the person that had the knife lifted his walking stick up towards James, I didn’t hear what he said because I was kind of not that close to him at that time and I heard:
“ It’s either the money or the fist”
and that’s when like they took James’s wallet off him and took the money and James said:
“ Give me back my wallet ”
and they threw it across the ground and then one person, I didn’t know who he was, come down to me and asked for the money, I gave him money and they also stole the phone card I had.”
81 Deaves said with reference to the appellant:
“Q. At any stage during this period of time up to this stage did you see any knives?
A. No not that I can remember.”
82 Deaves then heard someone say:
“He lifted his walking stick up towards James’s face so the bit that was on the ground was up near his face.”
“It’s the money or the fist.”
but was unaware who made the statement .
83 Deaves said that he “was feeling scared that they’ve come back down and I was just feeling threatened about what was happening”. He said that the appellant was standing in front of James, about half a metre in front of him. There were about fifteen persons in the group at this stage. They were standing around laughing.
84 Then the man who had earlier said:85 Prior to this Deaves had given one of the men the money in his wallet but not the wallet.
“Don’t worry, they’re only joking”
came up to Deaves and took him behind the phone box and pushed hishead hard against it.
86 Deaves gave the following evidence:
“Q. Why did you hand over your money?
A. Because I was scared if I didn’t I was going to get hurt.
Q. How did you think you were going to get hurt?
A. I thought well I’d either get beaten up or he’d come back down with the knife.
Q. How far were you from the man who had the knife earlier at this point in time when you produced your money?
A. Would have been about two to three metres away.
Q. In terms of that man did you see anything in his possession?
A. No I didn’t, I wasn’t really - I kind of glimpsed up there and saw where they were standing but didn’t take any notice, I was too worried about what this other person was doing.”
87 Deaves said the Group walked off after he’d been assaulted and he heard the appellant say to the Asian male, “At least you got $20 out of it.”
89 Koski referred in evidence to the request (or more correctly ‘demand’) for “smokes” and money and after stating that the boys refused, he was asked: “ Was anything done?”. He replied:
88 Koski gave evidence that on the first occasion three of the group came up to the boys. He described one as a Tongan who was pretty big, another as a little Asian guy with a jacket, and the third as the man with the walking stick, who was (it being common ground) the appellant, wearing a big leather jacket.90 The Tongan then said:
“Yes the guy with the walking stick dropped the machete out of his right arm sleeve into his hand and started laughing.”
“Don’t worry about it boys, they’re only joking.”
91 Koski said he was very scared because at this stage the appellant was only about a metre away and the machete was pointed towards them. The group then walked away.
92 With regard to the occasion upon when the group returned, it is only necessary to refer for present purposes to the following passage from the evidence of Koski. He was asked:93 The Crown called Anthony Raymond Cross, then aged seventeen, who at one stage on this evening was one of the group of which the appellant was a member. At about 9.00 pm that evening he had seen the appellant dressed in a black leather jacket and wearing a bandanna. He was carrying his cane and he was holding a machete partly in his jacket sleeve. Cross was a member of the group when they approached the boys on the first occasion. He said that they saw two boys and the appellant approached them with a few other men and started to talk to them:
Q. “When you handed over your wallet why did you hand over your wallet?
A. Because they threatened me whether, to kill me or something.
Q. Can you tell us what was said in terms of a threat?
A. Oh they said, the guy with the walking stick brought out the machete and he held it up towards me and he said - the Asian guy said:
“ It’s either this or wallet and my fists ”. (sic)
So I gave him my wallet.”
Q. When you say ‘this’ what did you understand him to be referring to?
A. I’d get cut with the machete.”
Koski then handed over his wallet.
“And then that’s when the machete came out and he started pointing towards the boys.”
Cross then left the group.
94 The Crown called evidence from investigating police officers of a record of interview with the appellant in which he denied threatening the boys with the machete or ever asking them for money.
95 When the appellant gave evidence at the trial he conceded that he deliberately told a false story to the police officers about what had occurred during the incident that evening and that he had deliberately lied to the police about his asserted lack of knowledge of the names of the other people in the group.
96 The appellant agreed that he was part of the relevant group on the evening in question. He said that as the group was heading in the direction of the bus stop where the boys were located, another member of the group named “Olson” asked him if he could hide his machete in the appellant’s jacket. The appellant agreed and put the machete inside the left sleeve of his jacket, continuing to hold the cane in his right hand. He said that when he was near the telephone box, the machete “unhooked” and fell to the ground. He picked it up and “hooked it” back up his sleeve. At this time he saw that one of the group “Ricko” was hassling the boys at the telephone box. Ricko is an Asian man and he was asking the boys for money.
97 He said that on the second occasion he gave a telephone number of a taxi company to the boys. At the trial he could not remember the telephone number. Although nothing really turns on this aspect of the case, one could not be satisfied that the appellant in fact provided the boys with the number of a taxi company in the light of the evidence. He said that on the second occasion he took the machete out from his sleeve to give it back to Olson. He said he twirled the machete around. In cross-examination he was asked:
“Q. It’s the situation that at the period of time when people were asking money off the boys there was no swinging around of this particular item was there? The machete?
A. I couldn’t be precise, no I can’t, I don’t know if the money was, if what was happening. I was, they could have been still hassling when I twirled the knife around. They could have been still asking him for money.”
98 He denied pointing the machete at the boys or holding the walking stick up to anyone’s face. He denied any intention of robbing the boys or participating in their robbing. He denied saying anything to “Ricko” about obtaining $20 from the boys. (Transcript page 54).
99 It is convenient now to refer to the following passages from his Honour’s summing up. Specifically, with regard to the alleged joint criminal enterprise, his Honour said:100 Shortly thereafter his Honour said:
“As to the armed robbery offences. The Crown says that there was a joint criminal enterprise. What the Crown says to you is this, in relation to the armed robbery offences, that, although the accused did not demand money, he was part of the group, and the complainants say that there were three in that particular group, which accosted the two men, the two boys, which threatened them and which took their money. What the Crown has got to prove to you is that there was a joint criminal enterprise. Now, in order for you to make that decision I have got to tell you what is a joint criminal enterprise. Well, members of the jury, the law is this, where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other, or others, in carrying out that enterprise. And the Crown says here the enterprise was the robbery of the complainants. The Crown must establish the existence of the joint criminal enterprise and the participation in it by the accused. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a criminal offence. The understanding or arrangement need not be express, its existence may be inferred from all the circumstances. The understanding or arrangement need not have been reached at any time before the criminal offence is committed. The circumstances in which two or more persons are participating together in the commission of a particular criminal offence may themselves establish an unspoken understanding or arrangement, amounting to an agreement, formed between them, there and then, to commit that criminal offence. See, the Crown does not say to you here that the accused and the Asian man and the Tongan man discussed among themselves, before doing anything, what they would do and agreed that they would do it. What the Crown says to you here is that when you look at the circumstances the only rational and logical inference to draw, that means the only rational and logical conclusion to make, is that the three people who were standing in front of the two boys were engaged in the one thing, the one thing being the robbery of the two boys. A person participates in a joint criminal enterprise either by committing the criminal offence itself or by being present at the time when the criminal offence is committed, knowing that the criminal offence is to be or is being committed and intentionally assisting or encouraging another participant in the criminal enterprise to commit that criminal offence. The presence of that person at the time when the criminal offence is committed, and a readiness to give aid, if required, is sufficient to amount to encouragement to the other participant, or participants, in that joint criminal enterprise to commit the criminal offence . (My emphasis) If the agreed criminal offence is committed by one or other of the participants in that joint criminal enterprise then all the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.
What the Crown says to you here, members of the jury, is that the two boys, Michael Deaves and James Koski, were confronted by a group of three men, the accused, the Asian man and the Tongan man, when the accused was holding the machete, albeit that only one of them saw it, who demanded of them their wallets, or their money. You know that James Koski produced his wallet, which was taken by the Asian man, who went through it when, James Koski said, the accused was looking over his shoulder, so to speak. You know that Michael Deaves handed over his money to someone, and he does not know who, and James Koski said that Michael Deaves handed over money to someone but he does not know who. The Crown says to you that the only rational or logical inference to draw is that, even though they may not have discussed it, and even though they may not have agreed what they would do, the mere fact of them doing it shows that the three of them were involved in a joint criminal enterprise of robbing, with the threat of the machete, the complainants Michael Deaves and James Koski. As to that, the accused says that he did not do the things that Michael Deaves and James Koski said that he did.”
101 Originally the Notice of Appeal contained five grounds relating to conviction with regard to both the armed robbery and assault counts. However shortly before the hearing the appellant withdrew all grounds of appeal other than Ground 2 which is in the following terms:
“Members of the jury, I do not propose to tell you the niceties of the offence of being armed with an offensive weapon and robbing somebody. There is not any doubt in this case that the “mass murderer’s” weapon, as the accused referred to it when interviewed, is an offensive weapon, and it is not being suggested to the contrary, so I need not tell you what amounts in law to an offensive weapon, it is not suggested that this 30 centimetre or 40 centimetre machete, described by the accused as a mass murderer’s weapon, is not an offensive weapon.”
102 At the hearing counsel for the appellant sought leave to argue another ground of appeal in the following terms:
“His Honour erred by failing to outline the elements of the armed robbery charges (Counts 1 and 2)”.
“Ground 7. His Honour erred in his directions as to the basis on which the appellant could be found guilty of the armed robbery offences.”
103 There is no dispute that his Honour, without objection from defence counsel, refrained from specifying to the jury the elements of armed robbery. At the hearing counsel for the appellant identified those elements as firstly, unlawful taking and carrying away of property; secondly from the person of another; thirdly against his or her will; fourthly either by force or putting him or her in fear; and fifthly with the intention of depriving the person of such property and that at the time of the commission of the robbery the robber was armed with an offensive weapon.
105 Reference may now be conveniently made to the following passage from the judgment of McHugh J in Osland v R (1998) 159 ALR 170 and 188-189 which is in the following terms:
104 Counsel argued that the direction of these elements had become essential in this trial because his Honour had not only directed the jury on the principles of law relating to common purpose but he had added a direction on a separate and different basis for potential liability namely that of an accessory aiding and abetting the principal offender. That is to say a principal in the second degree. That direction, counsel contends, is to be found in the paragraph of the section of his Honour’s summing up which I have emphasised above.
“Much of the argument for Mrs Osland in this court was characterised by a failure to distinguish between, on the one hand, the criminal liability of a person who is present at the scene of a crime and is acting in concert with another and, on the other, the criminal liability of one who is present but not acting in concert with that person. Much of the criticism - express and implied - of the trial judge’s directions, and most of the argument that was relied on to urge that the conviction and the failure to agree were inconsistent, resulted from the failure to accept the existence of that distinction. Because that is so, it is first necessary to refer briefly to the principles of criminal liability applicable when a crime is committed by persons acting in concert.
At common law, a person who commits the acts which form the whole or part of the actus reus of the crime is known as a “principal in the first degree”. There can be more than one principal in the first degree. However, a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. In earlier times, when it was alleged that a person should be held criminally liable for the acts of another, it mattered whether the crime was a felony or a misdemeanour. In Victoria, the distinction between felonies and misdemeanours has been abolished. There is no longer any need to draw a distinction between the two categories of crime.
Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative. (My emphasis).
However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others.”
106 I have not reproduced the authorities cited by his Honour which are contained in the footnotes in the published report.
107 It is contended that the emphasised portion of the direction was directed to the possibility of the present appellant being categorised as a principal in the second degree, described by McHugh J as being “merely present, encouraging but not participating physically,…”. Thus it was argued his Honour having moved into the realm of accessorial liability, it was essential that he direct the jury as to the elements of armed robbery and relate the evidence in the case to those particular elements otherwise the jury would not have understood clearly the basis upon which it was or was not open to them to convict the appellant as a principal in the second degree. The specific point was made that the basis of accessorial liability is quite distinct from the joint criminal enterprise basis of liability, which turns on agreement. Rather, liability is derivative and is dependent upon the guilt of the person who has been aided and abetted in committing the crime. In the instant case it was argued the principal in the first degree, namely the person who actually took and demanded the money from the boys was not armed. Therefore he could not be convicted of armed robbery and ex hypothesi the appellant could not be convicted of the same offence.
108 The appellant’s submission that the impugned passage in the summing up was directed to the position of principal in the second degree as explained by McHugh J in the passage emphasised above is in my view misconceived.
109 The instant case in my view falls within the third category identified by McHugh J in the final paragraph of the passage quoted above, of which his Honour cites R v Loweryand King (No. 2) [1972] VR 560 as an example.
110 Indeed, McHugh J quoted (at pages 189-190) the following passage from the direction to the jury by Smith J in Lowery and King (No. 2):
“The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.”
111 McHugh J pointed out that although Smith directed the jury that “they are all equally guilty of that crime”, subsequent cases show that the correct statement is that “they are all equally liable for the acts that constitute the actus reus of the crime”.
112 His Honour then quoted with approval, the following passage from the 8th Edition of Criminal Law by Brett, Waller and Williams (at p. 465)113 Finally, for present purposes, his Honour referred, again with approval, to the principles involved in the carrying out of a joint criminal enterprise as set out by this Court in Tangye (1997) 92 A Crim R 545 at 556-557:
“[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert [emphasis added].
“(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken undertaking or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”
114 (It is convenient to note that McHugh J pointed out (at p190) that the phrase ‘joint criminal enterprise’ is equivalent in principle to the phrase ‘acting in concert’).
115 It can be seen that the directions which the trial judge gave in the instant case are clearly taken virtually word for word from the above principles.
116 The suggested directions in Tangye were intended to provide for trial judges a comprehensive, harmonious and self-contained set of directions for use in joint criminal enterprise cases. They may now be considered as an authorative statement of this branch of the law. Not surprisingly then, the trial judge in the instant case thought it appropriate to direct the jury precisely in terms of these principles
117 Abadee J did likewise in Regina v Vester Fernando & Anor (17 June 1997). This was not the subject of criticism in this Court ([1999] NSWCCA 66, unreported, 14.4.99) where they were referred to (at paragraph 160) as “model directions”.
118 Inter alia, Tangye establishes (shortly stated) that in the case of a joint criminal enterprise it is enough that a participant is merely present at the time when the crime is committed with the requisite knowledge, and intentionally assisting or encouraging another participant or participants in the criminal enterprise to commit the relevant criminal offence. Further, that the readiness to give aid if required, is sufficient to amount to encouragement to the other participant or participants in the criminal enterprise. See paragraph (3) at pp 556-557.
119 Paragraph (3) of the Tangye model directions is not concerned at all with accessorial liability and it is quite misconceived to suggest that by giving the jury that direction in the context of this case, the trial judge raised the principle of accessorial liability, which is a completely different concept to a joint criminal enterprise.
120 The Crown case was effectively one of a spontaneous joint criminal enterprise involving the appellant and the two persons described as the Tongan and the Asian respectively. It is sometimes difficult for juries to grasp the concept of a joint criminal enterprise and it was most prudent, in my view, for the trial judge to have given the jury the benefit of the Tangye directions in full to assist them in their understanding of this concept.
121 The second ground upon which counsel for the appellant submitted that the trial judge should have directed the jury upon the elements of the offence is that the evidence did not inevitably establish an agreement between the appellant and his two alleged co-offenders to commit armed robbery. It was submitted that the evidence “strongly suggested that there was no agreement to rob and the robbery was initiated by the Asian in a spontaneous and opportunistic way.”
122 It is perfectly true that the judge did not specifically direct the jury upon (to use his Honour’s words) “the niceties of the offence of being armed with an offensive weapon and robbing somebody.” Nor was he asked to do so. He did however direct the jury there was no doubt that the machete (described by the appellant in his record of interview as a “mass murderer’s weapon”) was in law an offensive weapon.
123 This omission was obviously because there was no dispute that the boys had been robbed. The sole issue in the trial was whether the appellant had been a participant in a joint criminal enterprise with the Asian and the Tongan, whilst armed with his machete to rob the boys.
124 The Crown case here was from beginning to end based upon a joint criminal enterprise in which the appellant was armed with the machete. In this regard evidence was specifically led from the boys that they feared injury from the machete. It is appropriate to mention at this stage that in assessing the Crown case against the appellant it is inappropriate to look upon what were referred to as the first and second incidents as being totally independent of each other. The attitude of the boys on the later occasion was unquestionably influenced by impressions that they had received on the first occasion. There was in my view ample evidence before the jury upon which they could be satisfied beyond reasonable doubt that the appellant was a principal in the first degree in a joint criminal enterprise and that his contribution was a vital one in that he was armed, to the knowledge of the boys, with the machete.
125 At the trial and in this Court, much was made of the fact that on the second occasion Koski observed the walking stick being raised by the appellant but not the machete. Deaves on the other hand observed the machete but not the walking stick. In the circumstances of this case I do not think that that apparent discrepancy would have in the minds of the jurors undermined the strength of the Crown case. The fact is that the appellant was armed with a machete at the relevant time and in view of the circumstances in which the robbery occurred and the state of fear in which the boys found themselves it is not surprising that their observations may not have coincided. It could well be that the machete was raised on the second occasion without it being observed by Deaves. In any event Deaves was fully aware from the earlier occasion that the appellant was armed with the machete. Of course one can add to this that the accused conceded in his evidence that he had twirled the machete on the second occasion.
126 In my view the fact that his Honour, in the circumstances of this case, (without objection) did not direct the jury specifically upon all the elements of robbery occasioned no possible miscarriage of justice. I would refuse leave to the appellant under Rule 4 and dismiss the appeal against conviction.
127 The appellant also seeks leave to appeal against the sentences imposed upon him by Judge Nield.
128 The sentences which were imposed upon the appellant must now be assessed in the light of the guideline judgments in Regina v Henry & Ors ([1999] NSWCCA 107, unreported, 18 May 1999).
129 His Honour found that there were special circumstances consisting of the appellant’s youth, his prior good character, albeit with some blemishes and his likely prospects of rehabilitation. Thus allowing for a period from 9 to 17 April 1998 when the appellant was in prison, (bail having been refused), his Honour imposed additional terms which were equivalent to the minimum terms.
130 Certain subjective matters justify special comment. The appellant was aged almost 20 at the time of the offences. He had suffered an extremely serious motor vehicle accident on 15 May 1997 leaving him with considerable orthopaedic disabilities. He has made an offer of assistance to the Authorities, although the evidence does not indicate whether such offer has been of any value. His Honour thought that these offers demonstrated a measure of contrition for his conduct towards the complainants. His Honour allowed a discount for the offers of assistance albeit as his Honour pointed out they came at a late stage. His Honour specifically expressed the view that he did not expect the appellant to re-offend.
131 The difficulty which the appellant faces is the objective seriousness of the offences. His Honour suspected that the appellant did not realise or appreciate the seriousness of what he had done. However his Honour expressed grave concern that the appellant was wandering aimlessly about the streets of a suburb with a machete concealed under the sleeve of the jacket which he was wearing. His Honour identified the public concern with young persons consorting in groups whilst armed with dangerous weapons. Thus a significant public deterrence element was involved in the offences.
132 When one considers the sentences that were imposed by his Honour and the ratio between the minimum terms and the additional terms in the light of the guideline judgments, and balances the objective and the subjective circumstances, I find it quite impossible to conclude that the sentences were outside the sentencing discretion available to his Honour. I would, in the circumstances, grant leave to appeal against sentence but dismiss the appeal.
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