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Youkhana v The Queen

Youkhana v The Queen

Case [2015] NSWCCA 41 27 March 2015

Criminal Liability

Joint Criminal Enterprise

Conviction Appeal

Criminal Law

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Youkhana v R
Medium Neutral Citation:	[2015] NSWCCA 41
Hearing Date(s):	09 March 2015
Decision Date:	27 March 2015
Before:	Meagher JA at [1]; Schmidt J at [36]; Bellew J at [37]
Decision:	Application for leave to appeal dismissed
Catchwords:	CRIMINAL LAW – conviction appeal – robbery – Crimes Act 1900 (NSW), s 97 – joint criminal enterprise – whether primary judge erred in direction on joint criminal enterprise – ‘participation’ required of member of joint enterprise present but not actively involved in the commission of agreed crime – whether jury ought to be directed that ‘participation’ requires more than proof that the accused was a party to an agreement and was present when agreed crime was committed
Legislation Cited:	Crimes Act 1900 (NSW), s 97(1) Criminal Appeal Rules, r 4
Cases Cited:	Huynh v The Queen [2013] HCA 6; 87 ALJR 434 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 MFA v The Queen [2002] HCA 53; 213 CLR 606 Osland v the Queen [1998] HCA 75; 197 CLR 316 R v Chai [2002] HCA 12; 76 ALJR 628 R v Hillier [2007] HCA 13; 228 CLR 618 R v Tangye (1997) 92 A Crim R 545 SKA v The Queen [2011] HCA 13; 243 CLR 400
Category:	Principal judgment
Parties:	Youbert Youkhana (Applicant) Regina (Crown)
Representation:	Counsel: S Pararajasingham (Applicant) J Pickering SC (Crown) Solicitors: Kiki Kyriacou Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	CCA2012/379377
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal Jurisdiction
Date of Decision:	11 December 2013
Before:	Quirk DCJ
File Number(s):	DC2012/379377

JUDGMENT

MEAGHER JA: The applicant, Youbert Youkhana, seeks leave to appeal from his conviction, following a trial before Quirk DCJ, that on 26 September 2012 at Clyde in New South Wales, while in company, he robbed Anthony Joseph of his Apple iPad 2, contrary to s 97(1) of the Crimes Act 1900 (NSW).
He does so on two grounds. They are:
1. Her Honour erred in her direction to the jury concerning what constituted a joint criminal enterprise.
2. The verdict of guilty was unreasonable and cannot be supported having regard to the nature and quality of the evidence.
The applicant’s counsel did not take any objection to her Honour’s directions as to what had to be proved to establish his liability as a participant in a joint criminal enterprise to commit the robbery. Therefore, r 4 of the Criminal Appeal Rules applies and the applicant requires leave to be allowed to rely upon the first of these grounds.
It is convenient at the outset to summarise the evidence at trial which was within a narrow compass.

The evidence at trial

On 26 September 2012 at around 4.30pm Mr Joseph was…

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 Youkhana v The Queen

Details

AGLC: Youkhana v The Queen [2015] NSWCCA 41
Case: [2015] NSWCCA 41
Decision Date: 27 March 2015

CaseChat Overview and Summary

In the High Court of Australia, Youkhana appealed against his conviction for robbery under section 97 of the Crimes Act 1900 (NSW). The primary issue was whether the trial judge erred in directing the jury on the concept of joint criminal enterprise, particularly regarding the requirement of 'participation' for a member of the joint enterprise who was present but not actively involved in the commission of the agreed crime. The court was required to determine if the jury should have been directed that 'participation' required more than proof that the accused was a party to the agreement and was present when the crime was committed.

The court examined the trial judge's directions to the jury, focusing on whether they correctly conveyed the legal principles applicable to joint criminal enterprises. The key legal issue was whether the trial judge correctly articulated the threshold for establishing 'participation' in a joint criminal enterprise, where the accused was not directly involved in the crime but was present at the scene. The court assessed whether the jury was adequately informed that mere presence and agreement to commit a crime were insufficient to establish 'participation' without further evidence of active involvement. The court concluded that the trial judge did not err in the direction given to the jury. The jury was properly informed that presence and agreement alone were insufficient to establish 'participation', and additional evidence of active involvement was required.

The High Court held that the trial judge's directions to the jury were appropriate and did not misdirect them on the legal principles governing joint criminal enterprises. The court confirmed that 'participation' in a joint criminal enterprise required more than mere presence and agreement; it necessitated evidence of active involvement in the commission of the crime. The appeal was dismissed, and Youkhana's conviction was upheld. The court did not find any error in the trial judge's direction to the jury regarding the legal standards for 'participation' in a joint criminal enterprise.

Orders