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24
Court of Criminal Appeal 23 July 1999

Regina v Adam

[1999] NSWCCA 189

Also reported as (1999) 47 NSWLR 267 (1999) 106 A Crim R 510
Assault & violenceHomicide
CRIMINAL LAW AND PROCEDURE EVIDENCE OF CONSCIOUSNESS OF GUILT LIES ACCESSORIAL LIABILITY

Citation: Regina v Adam [1999] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 23 July 1999
Judge(s): Spigelman CJ, James J, Bell J

Background

The appellant stood trial in the Supreme Court alongside his brother for offences arising from a fatal attack on an off-duty police officer outside a Fairfield tavern in April 1997. The officer died from a deep stab wound suffered during an initial confrontation in the car park. A second phase of the attack followed, during which a group of men kicked and punched the victim while he lay on the ground.

The Crown alleged the appellant participated in the second phase of the attack, either by personally assaulting the victim or by acting in concert with those who did. No witness identified the appellant actually striking or kicking the victim. The Crown relied instead on circumstantial evidence placing the appellant near the victim during the second phase, together with evidence said to demonstrate consciousness of guilt, including alleged lies, flight, attempts to discourage witnesses, blood stains on his shoes, and scratches on his neck.

The jury acquitted the appellant of murder, murder as manslaughter, and the more serious grievous bodily harm charge, but convicted him of maliciously inflicting grievous bodily harm. The appellant appealed against conviction, and the Crown separately appealed against sentence.

  • Whether the verdict was unreasonable and could not be supported having regard to the evidence
  • Whether the consciousness of guilt evidence (lies, flight, witness discouragement, physical traces) was properly relied upon and whether it could sustain the conviction
  • Whether the evidence was sufficient to establish direct liability for the assault during the second phase of the attack
  • Whether the evidence was sufficient to establish accessorial liability, that is, whether the appellant was intentionally assisting or encouraging others who were assaulting the victim, rather than merely being present

Decision

The Court of Criminal Appeal conducted its own independent examination of the nature and quality of the evidence. It found that no witness directly identified the appellant as kicking or striking the victim. The Crown's case depended on combining evidence of the appellant's presence in a group around the victim with evidence that all members of that group were involved in the assault.

On direct liability, the Court concluded that the evidence fell short of proof beyond reasonable doubt. The consciousness of guilt evidence, including the blood on the appellant's shoes and scratches on his neck, along with the alleged lies and conduct toward potential witnesses, did not, in the Court's assessment, cure the insufficiency of the evidence identifying the appellant as a participant in the assault itself.

On accessorial liability, the Court reached the same conclusion. Even accepting the appellant was present while others were kicking the victim, the Crown could not clearly identify conduct by the appellant that amounted to intentional assistance or encouragement, as distinct from mere presence and failure to intervene. Passive presence, without more, did not establish the accessorial basis of liability.

The Court noted that the crimes against the victim were serious, but emphasised that a conviction requires proof of guilt beyond reasonable doubt. Finding that reasonable doubt ought to have existed on both bases of liability, the Court upheld the conviction appeal. Because the conviction was quashed, both sentence appeals became unnecessary to resolve.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • Judgment and verdict of acquittal entered
  • Appeals against sentence not determined (rendered unnecessary by the acquittal)

Key Takeaways

  • A conviction cannot rest on evidence of presence near an assault, even combined with consciousness of guilt material, where no witness identifies the accused as personally participating in the relevant conduct and the circumstantial evidence does not exclude reasonable doubt.
  • Accessorial liability (acting in concert) requires proof that the accused was intentionally assisting or encouraging the principal offenders; mere presence at the scene, even alongside others who are committing an offence, is not sufficient.
  • Consciousness of guilt evidence, such as lies, flight, and attempts to discourage witnesses, may be relevant but cannot substitute for proof of the underlying participation in the offence.
  • The Court of Criminal Appeal confirmed its obligation to conduct an independent examination of the evidence when an appellant argues the verdict was unreasonable, rather than simply deferring to the jury's assessment.
  • Where co-accused are tried together, a possible reason for an accused not giving evidence, such as the risk of incriminating a co-accused, is a relevant consideration in assessing the weight to be given to that silence.

Legislation and Cases Referenced

Cases:
- O'Leary v The King (referenced in catchwords as establishing principles governing similar fact or contextual evidence relied upon by the Crown)

No specific legislation was identified in the provided judgment text.