Citation: Jacobs and Mehajer v R [2004] NSWCCA 462
Court: NSW Court of Criminal Appeal
Date: 20 December 2004
Judge(s): Wood CJ at CL, Sperling J, Kirby J
Background
Two appellants, referred to here as Jacobs and Mehajer, were convicted following a jury trial before Studdert J in the Supreme Court of three offences arising from events on 3 March 2000 at a cafe in Leumeah, NSW. The offences were the murder of the cafe's owner, robbery in company with infliction of grievous bodily harm upon that owner, and robbery in company with wounding of a second victim.
The Crown case was that Jacobs and Mehajer, together with an indemnified witness, had attended the vicinity of the cafe during the afternoon of the offences. Witness evidence placed two men resembling the appellants in the area prior to the attack, and telephone records and the appellants' own evidence placed them together in the area that day.
Both appellants were convicted of all three counts and sentenced to substantial terms of imprisonment. Mehajer received an effective sentence of 18 years and 6 months with a non-parole period of 14 years. Jacobs received an effective sentence of 17 years with a non-parole period of 13 years. Each appealed against both conviction and sentence.
Legal Issues
- Whether the convictions for murder, and for robbery in company causing grievous bodily harm and wounding, were sustainable in law and on the evidence
- Whether the trial judge erred in directions to the jury on joint criminal enterprise, common purpose, and constructive murder
- Whether the trial judge erred in admitting or in directing the jury regarding the evidence of the indemnified witness (Christian Painter, who received a conditional indemnity in exchange for giving evidence)
- Whether the jury should have received a formal "accomplice warning" in relation to a co-accused who gave evidence incriminating the other appellant
- Whether evidence of consciousness of guilt was properly admitted and explained to the jury
- Whether the sentences imposed were manifestly excessive or otherwise erroneous under the Crimes (Sentencing Procedure) Act 1999, including under ss 3A and 21A
Decision
The Court of Criminal Appeal dismissed all grounds of appeal against conviction for both appellants. Wood CJ at CL delivered the principal judgment, with Sperling J and Kirby J agreeing, subject to one qualification from Sperling J on the accomplice warning issue.
On the joint criminal enterprise and constructive murder grounds, the Court found that the trial judge's directions adequately explained the relevant principles. The jury was properly instructed on what needed to be established for the appellants to be liable for the murder as participants in a common criminal purpose, consistent with the High Court's approach in cases such as McAuliffe v The Queen and Osland v The Queen.
On the indemnified witness ground, the Court was satisfied that the trial judge gave adequate directions to the jury about the circumstances in which Painter's evidence was obtained, and the caution with which it should be approached. Sections 164 and 165 of the Evidence Act 1995 were considered in this context.
On the accomplice warning issue, Sperling J clarified that where s 165 of the Evidence Act had no application (because no request for a warning had been made), the common law applied by virtue of s 165(5). Under the common law, as confirmed in Webb v R and the NSWCCA's earlier decision in R v Johnston, there is no inflexible rule requiring an accomplice warning when one co-accused gives evidence incriminating another in a joint trial. The matter is discretionary, and no error was established in the trial judge's approach. Leave to appeal against sentence was granted to both appellants, but the sentence appeals were also dismissed, with the Court finding no error in the differentiation between the two offenders' sentences.
Orders Made
Appeal by Mehajer:
- Appeal against convictions dismissed
- Leave to appeal against sentence granted
- Appeals against sentence dismissed
Appeal by Jacobs:
- Appeal against convictions dismissed
- Leave to appeal against sentence granted
- Appeals against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that directions on joint criminal enterprise and constructive murder must be assessed in the context of the trial as a whole, and that no error arises merely because directions are not expressed in a particular form.
- Where s 165 of the Evidence Act 1995 has no application (because no request for a warning was made at trial), the common law on accomplice warnings is preserved by s 165(5) and continues to govern the trial judge's obligations.
- Under the preserved common law, there is no mandatory rule requiring a trial judge to give an accomplice warning when one co-accused gives evidence incriminating another in a joint trial. The decision whether to warn is discretionary and depends on the circumstances of the particular case.
- A conditional indemnity given to a witness in exchange for evidence does not automatically render that evidence inadmissible or fatally flawed. Proper directions to the jury on the circumstances and weight of such evidence can satisfy the requirements of fairness.
- In dismissing the sentence appeals, the Court accepted that differentiation between co-offenders' sentences can be justified by differences in their individual circumstances, and such differentiation does not constitute error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Evidence Act 1995 (NSW), ss 164, 165
Key Cases:
- McAuliffe v The Queen (1995) 183 CLR 108
- Osland v The Queen (1998) 197 CLR 316
- Webb & Hay v R (1994) 181 CLR 41
- Gillard v The Queen (2003) 78 ALJR 64
- Gilbert v The Queen (2000) 201 CLR 64
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen [2004] HCA 15
- Hui Chi-Ming v The Queen [1992] 1 AC 34
- Longman v The Queen (1989) 168 CLR 79
- Tripodi v The Queen (1961) 104 CLR 1
- R v Johnston [2004] NSWCCA 58
- R v Button; R v Griffen (2002) 54 NSWLR 455
- R v Tangye (1997) 92 A Crim R 545
- R v Crowley [2004] NSWCCA 256
- R v Randell and McAlister [2004] NSWCCA 337