Tierney v The Queen

[2016] NSWCCA 144

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tierney v R [2016] NSWCCA 144
Hearing dates:	15 July 2016
Date of orders:	15 July 2016
Decision date:	15 July 2016
Before:	Basten JA at [1] R A Hulme J at [2] Adamson J at [3]
Decision:	(1) Grant the applicant leave to appeal against conviction. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against conviction for offence of break enter and steal in company – whether verdict was unreasonable having regard to the evidence at trial – jury entitled not to accept accused’s version of events – whether trial judge erred in directions about withdrawal from joint criminal enterprise – no error established – leave to appeal granted but appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2) Criminal Appeal Act 1912 (NSW), s 5 Criminal Appeal Rules (NSW), r 4
Cases Cited:	M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 R v Sully [2012] SASCFC 9; 112 SASR 157 R v Tietie (1988) 34 A Crim R 438 R v Whitehouse [1941] 1 DLR 683 SKA v The Queen [2011] HCA 13; 243 CLR 400 White v Ridley (1978) 140 CLR 342
Category:	Principal judgment
Parties:	Clayton Tierney (Appellant) Regina (Crown)
Representation:	Counsel: P Lowe (Appellant) E Balodis (Crown) Solicitor: Saba Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2014/72543
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 24 April 2015 Before: Flannery DCJ File Number(s): 2014/72543

Judgment

1. BASTEN JA: I agree with the reasons given by Adamson J.

2. R A HULME J: I agree with Adamson J.

3. ADAMSON J: At the conclusion of the hearing of this appeal on 15 July 2016, the Court ordered that leave be granted to the appellant to appeal from his conviction and that the appeal be dismissed. My reasons for concurring with these orders are as follows.

4. On 29 October 2014, following a trial by jury, the appellant, Clayton Tierney, was convicted of an offence under s 112(2) of the Crimes Act 1900 (NSW). The offence was that on 14 July 2013 he did, while in the company of Jason Tierney, break and enter the dwelling house of Leanne Condon at an address in Roseville and did commit a serious indictable offence there, namely, stealing items of jewellery and $250 in cash, which was the property of Ms Condon.

5. The appellant appealed against his conviction on two grounds: first, that the verdict was unreasonable and could not be supported having regard to the evidence; and secondly, that the trial judge erred in directing the jury on the issue of withdrawal from the joint criminal enterprise. Leave was required in respect of the first ground under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Leave was required in respect of the second ground under r 4 of the Criminal Appeal Rules as no objection was taken by trial counsel for the accused to the direction the subject of the second ground.

The trial

The evidence for the prosecution

6. The issue at trial was whether the appellant had withdrawn from a joint criminal enterprise between himself and his brother, Jason, to break enter and steal items from Ms Condon’s residence at Roseville. The evidence in the Crown case established that her residence was the subject of a break and enter on 14 July 2013 through the glass doors of the dining room at the back of the house which had been forced open.

7. There was evidence that the fingerprints located on the outside and inside surfaces of the backdoor, where the forced entry had occurred, were associated with the appellant. There was evidence of the appellant’s brother’s fingerprints on the handle of the dining room door as well as on the money box in one of the bedrooms from which the cash was taken.

The appellant’s evidence

8. The appellant gave the following evidence at the trial in examination in chief. He was present in the car driven by his brother, Jason, through Roseville which stopped two doors down from Ms Condon’s residence. Jason got out of the car and walked down the driveway after which he returned to the car to seek the appellant’s help. Jason told the appellant that they were breaking in. Jason used a screwdriver which he had brought with him to prise open the door. He asked the appellant to grab the door and hold it, which he did, which accounted for the presence of his fingerprints on both sides of the dining room door. Once the door was open, the appellant realised that what they were doing was no good and told his brother that it was time to “get the fuck out of here”. The appellant grabbed Jason by the right arm above the elbow but his brother shook him off and walked through the dining room door, which by that time was open. The appellant did not enter the premises. He returned to the car and drove away, leaving his brother there.

9. In cross-examination, the appellant agreed that he saw Jason leave the car carrying a screwdriver and knew that he was going to break into the residence in order to take something of value. He agreed that he had helped his brother break into the house by helping him open the door that led into the dining room. It was put to him that his version, that he had left the scene after assisting with the break in, was fanciful. The appellant responded:

“The reality hit when the door opened. It was – I knew that I’m not going in there. I’m still as bad as Jason for helping him break that door open. I admit to that, all day, but, I’m not – I did not go in that house and turn it upside down.”

10. When the appellant was cross-examined about his attempts to stop his brother, he gave evidence that his brother was 25-30kgs heavier than he was, although they were both about the same height. He said that he grabbed his arm for about two seconds and begged him not to do it for about a minute. The appellant said that when his brother brushed him off, he “took off”, thinking that his brother would follow. The appellant agreed that he had not threatened to report the matter to the police or to call someone if Jason did not stop. The appellant said:

“It was going that fast I didn’t know what to do, I tried to get him out of there as well, he didn’t want to come, I left him and worried about me.”

The trial judge’s directions

11. The only direction relevant to the appeal is the direction given by her Honour on the question of withdrawal from a joint criminal enterprise. In the course of the summing up the trial judge directed the jury as follows:

“Now members of the jury a person who is part of a joint criminal enterprise to commit a particular crime may withdraw from that enterprise. If he does withdraw he ceases to be criminally responsible for that crime if the other member of the enterprise goes on to commit the offence after the withdrawal.

To withdraw from a joint criminal enterprise to commit a crime a person must take such action as he can reasonably perform to undo the effect of his previous encouragement or participation in the joint criminal enterprise and thereby to prevent the commission of the crime. What is reasonable depends upon all the circumstances. Usually this will involve, if it is reasonable and practicable to do so, the person communicating the fact of his withdrawal verbally or otherwise to the other member of the joint enterprise in sufficient time before the crime is completed, trying to persuade the other members not to proceed and perhaps notifying the police or the victim of the intended crime.

Where an accused decides to withdraw at the last minute, that is immediately before the offence is completed, he must take all reasonable and practicable steps to prevent the commission of the crime and to frustrate the joint enterprise of which he had been a member otherwise he may have left it too late to withdraw.

There is no onus placed upon the accused to establish that he withdrew from the joint criminal enterprise. As part of its overall onus of proof the Crown must prove beyond reasonable doubt that the accused did not withdraw. It will do so by proving beyond reasonable doubt that the accused either (1) did not intend to withdraw from the joint enterprise or (2) if he did so intend, the accused did not take such action as he reasonably could to prevent the other from proceeding to commit the crime.

It is sufficient if the Crown has proved one of these alternatives.

Unless the accused did what he reasonably could to prevent commission of the crime the accused remains criminally responsible for that crime even though he took no further part in it.

It is sufficient if the action taken by the accused was capable of being effective even though the action failed to frustrate the commission of the crime.

The accused says he withdrew from the enterprise and did what he reasonably could to undo his previous participation.

The Crown says you would not believe the accused’s account at all and in those circumstances there being no dispute that he was party to the joint criminal enterprise and he participated in that crime in that he helped his brother open the door, you would find him guilty. Alternatively the Crown says the accused left it too late to withdraw from the enterprise and so you would find him guilty.

If you are satisfied beyond reasonable doubt that:

(1)   the accused was party to a joint criminal enterprise to break and enter the dwelling house of Ms Condon and to steal whilst in company;

(2)   each of the elements of that offence have been proved;

(3)   the accused participated in the commission of that crime either by committing the crime itself or simply by being present at the time the crime was committed; and

(4)   you are satisfied beyond reasonable doubt that he did not withdraw from the enterprise or did not take such action as he reasonably could to prevent his brother from proceeding to commit the crime;

then you would find him guilty.

If you are not satisfied beyond reasonable doubt that the Crown has proved each of those elements then you must find the accused not guilty.”

[Emphasis added to indicate the passages which the appellant contended were erroneous.]

The appeal

The first ground: unreasonable verdict

12. The appellant argued that the elements of the offence for which he stood trial were that he broke into and entered a dwelling house; and committed a serious indictable offence, namely stealing, there. He also contended that, although it was not an element of the offence, the Crown was also required to prove the relevant circumstance of aggravation, namely that he was in company. He submitted that, on the evidence adduced at trial, it was not open to the jury to convict; or that the verdict was unreasonable.

13. The appellant submitted that because he withdrew after the breaking but before the entering or stealing, he did not commit the actus reus required for the offence of break enter and steal, which required all three elements. In the alternative, he submitted that even if his withdrawal was not sufficient to negate the actus reus, the jury should, on the basis of his evidence, have entertained a reasonable doubt as to whether he had withdrawn. Further, the appellant contended that, given his evidence that he departed the scene, the jury ought to have entertained a reasonable doubt as to whether the offence was committed in company.

14. The principal difficulty with the first ground is that it fails to take account of the circumstance that it was open to the jury, as the tribunal of fact, to accept or reject, as the case may be, the appellant’s evidence in part or in whole. This Court’s task in considering such a ground remains as stated in M v The Queen (1994) 181 CLR 487, MFA v The Queen [2002] HCA 53; 213 CLR 606 and SKA v The Queen [2011] HCA 13; 243 CLR 400. The question the appellate court must ask itself is whether, after undertaking an independent assessment of the whole of the evidence, it was open to the jury on the whole of the evidence to be satisfied of the appellant’s guilt beyond reasonable doubt. A doubt entertained by the court is usually one which the jury ought to have entertained. However the court must pay full regard to the considerations that “the jury is the body entrusted with the primary responsibility of determining guilt or innocence” and that “the jury has had the benefit of having seen and heard the witnesses”: M v The Queen at 493 per Mason CJ, Deane, Dawson and Toohey JJ.

15. In the present case, the Crown case, which was relevantly based on admissions, uncontroverted facts (such as that the residence was a dwelling house) and objective evidence of the damage to the dining room door and the presence of the appellant’s fingerprints on the inside and outside surfaces, was sufficient to prove the offence beyond reasonable doubt. What might have led to a reasonable doubt was the appellant’s own evidence, if it was accepted by the jury. Whether or not the jury was satisfied that the Crown had proved that the appellant had not withdrawn from the joint criminal enterprise (of breaking, entering and stealing from the residence) was a question of fact which was determined by the jury’s assessment of the appellant’s evidence. This determination affected each of the ways in which the appellant contended that the ground was made out (whether the appellant was present when the stealing occurred; whether he was “in company” with his brother; and whether he had withdrawn). That evidence did not demand acceptance. The jury did not act unreasonably in rejecting it, as their verdict indicated it did.

16. Accordingly, this ground has not been made out.

The second ground: the direction as to withdrawal from a joint criminal enterprise

17. The appellant submitted that the trial judge’s direction was erroneous in that it overstated the requirement for withdrawal by saying that the accused “must take all reasonable and practical steps to prevent the commission of the crime and to frustrate the joint enterprise of which he had been a member”. The appellant relied on R v Sully [2012] SASCFC 9; 112 SASR 157 and in particular what Vanstone J (Sulan and Anderson JJ agreeing) said at [75]:

In some cases, particularly where the participation or aiding and abetting is spontaneous, withdrawal by leaving the scene, especially when coupled with advice or other indication to those who remain of the abandonment, or with the effluxion of time, might be sufficient.

18. The appellant submitted that what he had done was to beg his brother to stop before leaving the scene himself. He argued that because the trial judge had not directed the jury in the terms of the passage set out above, the jury had been misdirected. He submitted that the appeal ought accordingly be allowed and the conviction quashed.

19. The question whether a co-accused has withdrawn from a joint criminal enterprise is a question of fact to be decided by the jury. Thus, what is required to satisfy a jury that an accused has not withdrawn from a joint criminal enterprise (it being for the Crown to prove the negative) depends on the facts and circumstances of any given case. The extracts from the authorities are generally to be understood as illustrative of the principle that if someone has withdrawn from a common enterprise he or she is no longer criminally responsible, rather than as prescribing what is required in any given case. Indeed, Vanstone J made that point immediately preceding the extract from R v Sully set out above on which the appellant relied at [75]:

What will suffice in terms of withdrawal from a joint enterprise or from a situation which a defendant has counselled and procured or aided and abetted a crime will vary markedly from case to case. It will involve an assessment of what was reasonable and practical in the circumstances. The more the defendant has done by way of planning or providing information or items to enable completion of the crime, the more is likely to be required of him by way of withdrawal or countermand, if he is to avoid criminal responsibility. In some cases, particularly where the participation or aiding and abetting is spontaneous, withdrawal by leaving the scene, especially when coupled with advice or other indication to those who remain of the abandonment, or with the effluxion of time, might be sufficient.

[Emphasis added to indicate where the passage relied on by the appellant appears in the context of the paragraph.]

20. The High Court considered the question of withdrawal from a common enterprise in White v Ridley (1978) 140 CLR 342, which was applied in R v Tietie (1988) 34 A Crim R 438 at 446-447 per Lee J (Matthews and Loveday JJ agreeing). At 349, Gibbs J set out the following passage from R v Whitehouse [1941] 1 DLR 683 at 685:

Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions' change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is “timely communication” must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.

21. In White v Ridley Gibbs J addressed the question whether a person, who has previously participated in a joint criminal enterprise and raises the possibility that he has withdrawn, is required to do anything to prevent the other persons to the criminal enterprise from carrying it to completion. After considering the authorities and texts, Gibbs J said at 350-351:

It seems entirely reasonable to insist that a person who has counselled or procured another to commit a crime, or has conspired with others to commit a crime, should accompany his countermand or withdrawal with such action as he can reasonably take to undo the effect of his previous encouragement or participation.

22. In the present case the trial judge directed the jury that they must be satisfied either that the accused did not intend to withdraw or that he did not take reasonable steps to prevent his brother from committing the crime (of breaking entering and stealing). Her Honour’s direction was consistent with principle. No error has been shown. Her Honour was not obliged to direct the jury in terms of the example given by Vanstone J in R v Sully, since this was merely an illustration of a circumstance where it would be open to a jury in a particular case to acquit an accused on the basis that the Crown had not proved that he had not withdrawn from the common enterprise.

22. The second ground has not been made out.

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Decision last updated: 25 July 2016