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Court of Criminal Appeal 4 August 2005

REGINA v MRK

[2005] NSWCCA 271

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION S61JA OF THE CRIMES ACT 1900 AGGRAVATED SEXUAL ASSAULT IN COMPANY JOINT CRIMINAL ENTERPRISE

Citation: REGINA v MRK [2005] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 4 August 2005
Judges: Spigelman CJ, Grove J, Hall J

Background

The appellant was convicted on nine counts of aggravated sexual assault in company under s 61JA of the Crimes Act 1900 (NSW), arising from a series of assaults on two complainants committed on the night of 27 to 28 July 2002. The Crown did not allege that the appellant personally committed any sexual act. Instead, the prosecution case was that he participated in a joint criminal enterprise with four co-offenders, three of whom were his brothers.

The aggravating circumstances alleged across the counts were: threats to inflict actual bodily harm by means of a knife (s 61JA(1)(c)(ii)), and deprivation of the complainants' liberty immediately before the offences (s 61JA(1)(c)(iii)). The Crown accepted at trial that there was no evidence the appellant personally saw any of the knives being produced or used, and the trial judge directed the jury accordingly.

The appellant gave evidence that he was affected by alcohol and was unaware of any plan to sexually assault the complainants or that a knife had been used to threaten them. He appealed his convictions on grounds that included insufficiency of evidence, erroneous or inadequate jury directions, and that the verdicts were unreasonable.

  • Whether there was sufficient evidence for the jury to find that the appellant was a party to a joint criminal enterprise that extended to the use of a knife as a threatening weapon.
  • Whether the jury directions on joint criminal enterprise were erroneous, inadequate, or failed to properly state the onus of proof.
  • Whether the convictions on the aggravated assault counts (involving the knife element) were reasonably open to the jury, given that the appellant had not been shown to have personally seen the knife.
  • Whether the verdicts were unreasonable in all the circumstances.

Decision

The Court of Criminal Appeal dismissed the appeal and upheld all convictions. Spigelman CJ delivered the leading judgment, with Grove J and Hall J agreeing. The court examined the appellant's conduct throughout the evening, which included physically restraining one complainant, directing her to a bedroom on instruction from a co-offender, and responding to a complainant's plea for help by saying he could not intervene and telling her to comply with the offender's demands.

On the knife element, the court held that the jury was entitled to infer the use of a knife fell within the scope of the joint criminal enterprise, even without the appellant having personally observed the weapon. The evidence established that the appellant was within close physical range when a co-offender threatened to kill one complainant and was present when that threat was made. The layout of the house placed all participants in very close proximity throughout the relevant events.

Hall J (in a separate but concurring judgment) set out the accumulated circumstances that supported the jury's conclusion: the appellant's active physical restraint of one complainant, his warning that a co-offender "hits girls", his escorting of a complainant to a bedroom under compulsion, and his presence in a bedroom where a co-offender made further knife threats. These matters, taken together, entitled the jury to conclude that the use of a knife to enforce compliance was within the actual contemplation of the appellant and within the common design of the group.

The court found no error in the trial judge's directions on joint criminal enterprise, the onus of proof, or any other challenged aspect of the summing-up, and concluded the verdicts were reasonably open on the evidence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A conviction for aggravated sexual assault in company under s 61JA of the Crimes Act 1900 does not require proof that a co-offender personally witnessed or directly wielded the offensive weapon, provided the use of such a weapon was within the scope of the joint criminal enterprise.
  • The Court of Criminal Appeal confirmed that where an accused is a party to a common plan, the jury may infer that a co-offender's use of a knife was within the accused's actual contemplation if the surrounding circumstances make that a reasonable inference.
  • Proximity to threatening acts, active participation in restraining victims, and conduct consistent with facilitating the group's purpose were among the factors the court identified as capable of supporting the inference that weapon use was within the joint design.
  • In dismissing the appeal, the court found no error in the trial judge's jury directions on joint criminal enterprise, the allocation of the onus of proof, or the reasonableness of the verdicts.
  • Under s 61JA, the legislature has placed gang rape offences at the apex of sexual assault offending, reflecting the particular seriousness with which the law treats sexual violence carried out in company with aggravating circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61JA
- Criminal Appeal Act 1912 (NSW), s 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21

Cases:
- R v Duong (1992) 61 A Crim R 140
- Varley v The Queen (1977) 51 LJR 243