Citation: R v Youkhana [2004] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 6 April 2004
Judge(s): Studdert J (primary judgment); James J; Dunford J (both agreeing)
Background
The appellant was one of five men involved in a disturbance at Central railway station in September 2001. The group blocked access to a train carriage, threatened a passenger, and after being asked to leave, the appellant struck the passenger in the face causing serious dental injuries. An off-duty police officer who witnessed the assault grabbed the appellant from behind, identified himself as police, and told the appellant he was under arrest.
During the ensuing struggle, the officer was struck in the face by someone other than the appellant and fell to the ground semi-conscious. Witness evidence established that the other four men then returned and kicked the officer while he lay on the ground. The officer suffered a fractured maxillary sinus, a severed nerve in his cheek, a lacerated lip, and other injuries.
The appellant was convicted by a District Court jury on five counts, including maliciously inflicting grievous bodily harm on a police officer in the execution of his duty (count 4). He appealed that conviction only, on the basis that he did not deliver the blow that caused the officer's injuries and was not properly held responsible for it.
Legal Issues
- Whether there was sufficient evidence to support a no-case submission being dismissed in respect of count 4, given that the blow causing the officer's injury was struck by another person.
- Whether the verdict on count 4 was unreasonable or could not be supported by the evidence.
- Whether the trial judge's directions to the jury on joint criminal enterprise, and specifically on extended joint criminal enterprise, were adequate and correct.
- Whether the proviso under section 6 of the Criminal Appeal Act applied so as to preserve the conviction despite any misdirection.
Decision
The Court accepted that it was open in principle for the jury to find the appellant guilty on count 4 on the basis of a straightforward joint criminal enterprise, namely that a common purpose to resist the officer's arrest arose at the moment the officer sought to apprehend the appellant. On that basis, Studdert J considered the no-case submission had been correctly dismissed and the first ground of appeal failed.
However, the critical problem lay in how the trial judge directed the jury. The directions on count 4 focused primarily on the doctrine of extended joint criminal enterprise. Under that doctrine, a participant in a criminal enterprise can be liable for acts committed by a co-participant that were within the participant's contemplation as a possible incident of the original enterprise. The trial judge directed the jury, in the context of count 4, to consider whether the harm to the officer was within the appellant's contemplation as a possible incident of the affray on the train, rather than as a possible incident of the resistance to arrest.
Studdert J concluded that the jury could not reasonably have found, beyond reasonable doubt, that the initial punch causing the officer's facial injury was not responsible for his injuries, even if further harm followed from the kicking. More significantly, it was not reasonably open on the evidence for the jury to find that the blow to the officer was within the appellant's contemplation as a possible incident of the original train affray. The extended joint criminal enterprise direction, as given, was therefore flawed. The Court declined to apply the proviso under section 6 of the Criminal Appeal Act, finding that the jury had not been directed on the straightforward joint criminal enterprise basis upon which a conviction might have been sustainable, and the appellant could not be said to have had no chance of acquittal.
Orders Made
- Appeal against conviction on count 4 upheld.
- Conviction and sentence relating to count 4 quashed.
- New trial ordered in relation to count 4.
Key Takeaways
- A joint criminal enterprise can arise almost instantaneously, including at the moment a police officer seeks to arrest a person and that person resists, potentially bringing companions into shared criminal liability for what follows.
- Under the extended joint criminal enterprise doctrine, a co-participant's liability depends on whether the relevant act was within the accused's contemplation as a possible incident of the particular enterprise. Identifying the correct enterprise is critical: the Court of Criminal Appeal held it was the resistance to arrest, not the earlier affray on the train, that mattered for count 4.
- Where a jury is not directed on a basis upon which a conviction could properly have been sustained, the proviso under section 6 of the Criminal Appeal Act will not be applied if there remains a real possibility the jury might have acquitted.
- A no-case submission may properly be dismissed even where the accused did not personally deliver the injurious blow, provided there is sufficient evidence of joint criminal enterprise to go to the jury.
- Erroneous or inadequate directions on extended joint criminal enterprise, even in a case where a straightforward joint enterprise direction might have sufficed, can be sufficient to vitiate a conviction and warrant a new trial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), section 6 (the proviso)
Cases:
- R v Tangye (1997) 92 A Crim R 545