Citation: Regina v A M P Helene [1999] NSWCCA 203
Court: Court of Criminal Appeal (NSW)
Date: 28 July 1999
Judges: Ireland J, Kirby J, Carruthers AJ (majority: Carruthers AJ and Ireland J)
Background
The appellant, a nineteen-year-old man with a distinctive physical appearance including a walking stick and concealed machete, was part of a group that approached two teenage boys at a telephone booth in Campbelltown late at night in August 1997. Two separate incidents occurred within minutes of each other: a first encounter in which the machete was produced, and a second in which money and a wallet were taken from the boys.
The appellant was charged with two counts of armed robbery under s 97(1) of the Crimes Act 1900 (alleging the machete as the offensive weapon) and two counts of common assault under s 61. The Crown case on the robbery counts was not that the appellant himself demanded the money, but that he participated in a joint criminal enterprise with at least two other men. The jury convicted on all four counts.
On appeal, the appellant challenged the trial judge's failure to direct the jury on the elements of armed robbery and the adequacy of the joint enterprise directions. He also sought leave to appeal against the sentences of two years minimum term and two years additional term imposed on each robbery conviction.
Legal Issues
- Whether the trial judge erred by failing to identify the elements of armed robbery for the jury
- Whether the trial judge erred in his directions on the basis on which the appellant could be found guilty of armed robbery, including whether the directions impermissibly introduced accessorial (aiding and abetting) liability alongside joint criminal enterprise liability
- Whether the failure to direct the jury on the elements caused a miscarriage of justice
- Whether the sentences imposed were manifestly excessive or otherwise in error
Decision
Ground 2 and Ground 7 (Failure to Direct on Elements and Adequacy of Joint Enterprise Directions): Majority
Carruthers AJ (with Ireland J agreeing) held that the trial judge's omission to direct specifically on all elements of armed robbery caused no miscarriage of justice in the circumstances of this case. The sole live issue at trial was whether the appellant participated in a joint criminal enterprise with the other men while armed with the machete. There was no dispute that a robbery had occurred, and the trial judge had confirmed that the machete was plainly an offensive weapon. The omission was not objected to by defence counsel at trial.
The majority also rejected the submission that the trial judge's directions had improperly introduced accessorial liability. The disputed passage in the summing-up was drawn almost verbatim from the model directions endorsed by this Court in Tangye v The Queen (1997) 92 A Crim R 545. Carruthers AJ held that those directions are directed entirely at joint criminal enterprise and that paragraph (3) of the Tangye model, dealing with presence and encouragement, does not raise accessorial liability as a separate basis of conviction. The Crown case was one of spontaneous joint criminal enterprise in which the appellant's armed presence was, on the evidence, a central contribution.
The majority further observed that the apparent discrepancy between the two victims' accounts (one describing the machete being raised in the robbery, the other not) did not, in the circumstances, undermine the Crown case to a degree that required the jury's specific attention to each element of the offence. The appellant had himself conceded twirling the machete during the second incident, and each victim's fear was informed by what they had witnessed in the first incident.
Ground 2 and Ground 7: Kirby J (Dissenting)
Kirby J reached the opposite conclusion on the conviction grounds. His Honour found two significant errors. First, the trial judge entirely failed to identify the elements of armed robbery or to relate those elements to the evidence, an omission that was material because the indictments specified the machete as the offensive weapon yet only one victim placed the machete in the appellant's hand during the robbery itself. The jury was never told it had to be satisfied beyond reasonable doubt that the machete was produced or referred to during the robbery, which required it to reject one victim's account and accept the other's.
Second, Kirby J considered that the Tangye paragraph (3) direction, read in context, did introduce the possibility of liability as a principal in the second degree (aider and abettor), which carries derivative liability. Where liability is derivative, the jury needed to be satisfied that the principal offender had committed armed robbery, but the person who physically demanded the money was not himself armed, raising the question whether he could be convicted of armed robbery at all. Without directions on the elements, the jury could not properly engage with that question. Kirby J concluded the appellant lost a real chance of acquittal, amounting to a miscarriage of justice, and proposed that the convictions be quashed and a new trial ordered on the robbery counts.
Sentence Appeal
Carruthers AJ (majority) assessed the sentences against the guideline judgments in Regina v Henry & Ors [1999] NSWCCA 107. The trial judge had found special circumstances (youth, prior good character, rehabilitation prospects) and had imposed additional terms equal to the minimum terms. Balancing the objective seriousness of the offences, the public deterrence element in carrying a concealed machete in a group, and the subjective factors including the appellant's serious injuries, youth, and late offer of assistance to authorities, the majority found the sentences were within the available sentencing discretion.
Orders Made
- Leave under rule 4 of the Criminal Appeal Rules refused; appeal against conviction dismissed (Carruthers AJ and Ireland J; Kirby J dissenting)
- Leave to appeal against sentence granted; appeal against sentence dismissed
Key Takeaways
- The majority of the Court of Criminal Appeal confirmed that, where no dispute exists as to whether a robbery occurred and the sole trial issue is participation in a joint criminal enterprise, a failure to direct specifically on every element of armed robbery will not necessarily produce a miscarriage of justice, particularly where no objection was taken at trial.
- A genuine division of judicial opinion emerged on whether the Tangye model directions for joint criminal enterprise impermissibly introduce accessorial liability. Carruthers AJ held that the Tangye directions are self-contained and do not raise accessorial liability; Kirby J disagreed, finding that the language of presence and encouragement in paragraph (3) opens the door to derivative liability and, when it does, the elements of the offence become critical.
- Where the offensive weapon named in an indictment is placed at the scene of the robbery by one victim's account but not the other's, the Kirby J analysis indicates that a summing-up must direct the jury to resolve that evidentiary conflict before convicting on the armed robbery charge as framed.
- Sentencing for armed robbery by joint criminal enterprise must be assessed against the guideline judgments in Henry. Objective seriousness, including the carrying of a concealed weapon in a group in a public place, can outweigh significant subjective mitigating factors such as youth, injury, and offers of assistance to authorities.
- A late offer of assistance to authorities may attract some discount in sentencing, but the weight given to it is reduced by its timing, and it does not necessarily alter a sentence that is otherwise proportionate to the objective gravity of the offending.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated