Citation: Regina v H Kalache [1999] NSWSC 556
Court: Supreme Court of New South Wales
Date: 9 June 1999
Judge(s): Sperling J
Background
The accused was charged in connection with the fatal stabbing of a man outside a hotel in New South Wales. There was no evidence that the accused himself inflicted the fatal wounds. The Crown's case rested entirely on the accused's alleged participation in a group confrontation that ended with another member of the group stabbing the deceased.
The prosecution alleged that the accused had been involved in an earlier altercation with the deceased inside the hotel, had then induced the deceased to leave the premises, and had pushed the deceased during the ensuing outdoor confrontation. After the stabbing, the accused picked up the fallen knife and fled the scene with the alleged stabber. When later interviewed by police, he lied about his presence.
Because there was no direct evidence that the accused was the person who stabbed the deceased, the Crown relied on joint criminal enterprise. The accused's counsel applied for a directed verdict of acquittal at the close of the Crown case, on the basis that the evidence was insufficient to sustain a conviction on either available theory of joint liability.
Legal Issues
- Whether the evidence, taken at its highest, was sufficient for a jury to convict the accused on the basis of a "straightforward" joint criminal enterprise to commit murder or manslaughter.
- Whether the evidence was sufficient to establish liability under the extended "common purpose" doctrine, that is, whether the accused contemplated that a stabbing might occur in the course of the common enterprise.
- Whether the use of a knife by another participant fell within or outside the scope of any enterprise the accused could be shown to have joined.
Decision
Sperling J directed the jury to acquit the accused. The threshold for such a direction, drawn from Doney (1990-91) 171 CLR 207, is that the evidence cannot sustain a guilty verdict: there must be no evidence upon which a jury could convict. The Crown case was assessed at its highest in accordance with established authority.
On the "straightforward" joint criminal enterprise theory, the court found no evidence of any agreement, express or implied, between the accused and any other person to injure the deceased with the intent required for murder, or by an unlawful and dangerous act sufficient for manslaughter. The conduct proved against the accused, including his presence, participation in an assault, and flight, did not establish the necessary agreement to commit the charged offence.
On the "common purpose" theory, the court assumed (without deciding) that an agreement to commit a foundational crime of assault could be inferred. However, there was simply no evidence that the accused knew anyone in the group was carrying a knife, or that he would have contemplated that a knife might be produced and used. Without that contemplation, the stabbing fell entirely outside the scope of any common purpose to which the accused could be taken to have been a party.
The court adopted the reasoning from Anderson and Morris [1966] 2 QB 110 and Duong, Lu Do and Tran (1992) 61 A Crim R 140: another member of the group had departed completely from any concerted action, forming a sudden intent to use a weapon in a way no party to the common design could have suspected. That departure broke the chain of liability for the accused.
Orders Made
- A directed verdict of acquittal was entered in favour of the accused.
Key Takeaways
- A directed acquittal is appropriate where, taking the Crown case at its highest, no evidence exists upon which a jury could properly convict.
- Straightforward joint criminal enterprise requires proof of an agreement to commit the specific crime charged. Presence at, and participation in, a group assault does not, by itself, establish such an agreement to murder or cause grievous bodily harm.
- Under the extended common purpose doctrine, an accused is not liable for an "incidental" crime committed by a co-participant unless the accused actually contemplated that crime as a possible incident of the agreed enterprise. The test is subjective.
- Where one participant suddenly produces and uses a weapon that no other participant knew about or could have anticipated, that conduct can fall entirely outside the scope of any common purpose and attract no liability for those other participants.
- The Supreme Court confirmed that these two doctrines serve distinct functions: straightforward joint enterprise applies where the accused is alleged to have agreed to commit the very offence charged; common purpose applies where the offence charged differs from the foundational agreed crime.
Legislation and Cases Referenced
Cases:
- Doney (1990-91) 171 CLR 207
- R (1989) 18 NSWLR 74
- Tangye (1997) 92 A Crim R 545
- McAuliffe v The Queen (1995) 183 CLR 108
- Anderson and Morris [1966] 2 QB 110
- Duong, Lu Do and Tran (1992) 61 A Crim R 140
- Johns v The Queen (1980) 143 CLR 108
- Mills v The Queen (1986) 68 ALR 455
- Regina v Stokes and Difford (1990) 51 A Crim R 25
- Regina v Clough (1992) 28 NSWLR 396
Legislation: No specific legislation cited in the judgment.