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Taufahema v The Queen

Taufahema v The Queen

Case [2006] NSWCCA 152 8 May 2006

Joint Criminal Enterprise

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Court of Criminal Appeal Supreme Court
New South Wales

Case Name:	TAUFAHEMA v THE QUEEN
Medium Neutral Citation:	[2006] NSWCCA 152
Hearing Date(s):	28/02/06
Date of Decision:	8 May 2006
Before:	Beazley JA at 1; Adams J at 2; Howie J at 41
Decision:	Conviction quashed; verdict of acquittal entered
Catchwords:	Conviction appeal - murder - joint criminal enterprise - mere knowledge of other's intention insufficient if no agreement - nature of enterprise - necessity for underlying criminal offence - whether evading police "hindering" - manslaughter - necessary to foresee possibility that accomplice might murder the victim - mere advertance to possibility of death or grievious bodily harm insufficient
Legislation Cited:	Crimes Act 1900 ss 546C, 33B, 58
Cases Cited:	Gillard v The Queen (2003) 219 CLR 1 Leonard v Morris (1975) 10 SASR 528 McAuliffe v The Queen (1995) 183 CLR 108 R v Chekeri [2001] NSWCCA 221 R v Kanaan [2005] NSWCCA 385 Tangye (1997) 92 A Crim R 545 Worsley v Aitken & Anor (1990) 9 Petty Sessions Review 4074
Parties:	Motekiai ‘Oscar’ TAUFAHEMA (Appellant) v The Queen (Respondent)
Representation:	Counsel: Appellant: T. Game SC Crown: J. Bennett SC Solicitors: Appellant: S.O'Connor Crown: S. Kavanagh
File Number(s):	CCA 2005/2120

Decision under appeal

Court or Tribunal:	Supreme Court
Date of Decision:	22/03/2004
Before:	Sully J
File Number(s):	2002/107

JUDGMENT

1 BEAZLEY JA:: I agree with Adams J.

ADAMS J: Introduction

2 On 27 March 2002 the appellant, his brother John, Meli Lagi and Sione Penisini were in a Commodore that had been reported stolen. Each of the occupants was on parole. In the car were four loaded firearms, each of which was stolen. The appellant was driving. He was unlicensed. The car came to the notice of highway patrol officer Senior Constable Glen McEnallay and, in Denison Street Hillsdale he activated his siren and lights, announcing his pursuit. The appellant accelerated to avoid apprehension and, seconds later, made a right hand turn at speed into Grace Campbell Crescent. The Commodore struck the gutter or a traffic island and damaged a wheel. It was immobilised. Penisini got out of the Commodore armed with a .38 revolver and immediately fired five shots in quick succession at the officer. Four of the bullets struck him and he died as a result of gunshot wounds to the chest and head. It is not clear when the other three men alighted from the Commodore but it seems that the appellant was the last.All four men then fled the scene in different directions, each with a gun. The entire episode was over in a minute or so.
3 The Crown case was that the appellant was guilty of Senior Constable McEnallay’s murder by reason of his participation in a criminal enterprise to evade lawful apprehension by police, foreseeing that, in the course of that unlawful enterprise, the death or grievous bodily harm of Senior Constable McEnallay was possible.
4 John Taufahema and Meli Lagi were tried before Wood CJ at CL and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taufahema v The Queen

Details

AGLC: Taufahema v The Queen [2006] NSWCCA 152
Case: [2006] NSWCCA 152
Decision Date: 8 May 2006

CaseChat Overview and Summary

The appeal heard in the High Court involved Taufahema, the appellant, against The Queen, the respondent. The appellant was convicted of murder in the Supreme Court of Queensland, following his involvement in the death of a police officer. The appeal centred on the sufficiency of the evidence to establish a joint criminal enterprise that included the offence of murder, as well as the related charge of manslaughter. The appellant argued that his knowledge of his co-offender's intention to kill was not sufficient to constitute a joint criminal enterprise and that evading police did not amount to hindering their duty. The central legal issues before the court were whether the evidence supported a finding that the appellant was part of a joint criminal enterprise that included the offence of murder and whether evading police constituted hindering their duty. The court examined the nature of a joint criminal enterprise, the necessity for an underlying criminal offence, and the foreseeability of the outcome of the enterprise, including the possibility of murder.

The court held that for a joint criminal enterprise to be established, there must be an agreement between the parties to commit a criminal offence. Mere knowledge of another's intention was insufficient if there was no agreement. In the present case, the court found that the evidence did not establish an agreement between the appellant and his co-offender to commit murder. The court further found that evading police did not amount to hindering their duty. The court emphasised the necessity for an underlying criminal offence in establishing a joint criminal enterprise and the need for the foreseeability of the outcome of the enterprise, including the possibility of murder. The court found that the appellant's mere advertence to the possibility of death or grievous bodily harm was insufficient to constitute a joint criminal enterprise that included murder. The court found that the evidence did not support a finding of manslaughter as the appellant had not foreseen the possibility that his accomplice might murder the victim.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld. The court found that the evidence did not support a finding of a joint criminal enterprise that included the offence of murder, and the appellant's conviction for manslaughter was also not supported by the evidence. The court's decision highlights the importance of establishing an agreement between parties in a joint criminal enterprise and the necessity for an underlying criminal offence. The court's findings also emphasise the need for the foreseeability of the outcome of the enterprise, including the possibility of murder, to establish a joint criminal enterprise that includes murder.

Orders