AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 8 May 2006

TAUFAHEMA v THE QUEEN

[2006] NSWCCA 152

Also reported as (2006) 162 A Crim R 152
HomicideFirearms & weaponsPublic order & justice offences
CONVICTION APPEAL MURDER JOINT CRIMINAL ENTERPRISE NATURE OF ENTERPRISE WHETHER EVADING POLICE "HINDERING" MANSLAUGHTER

Citation: Taufahema v The Queen [2006] NSWCCA 152
Court: New South Wales Court of Criminal Appeal
Date: 8 May 2006
Judge(s): Beazley JA, Adams J, Howie J

Background

The appellant was the driver of a stolen-plated Commodore in which four men travelled, all on parole and each in possession of a loaded firearm. When a highway patrol officer activated his siren and lights in pursuit, the appellant accelerated to evade him. The car struck a gutter and became immobilised. One of the passengers, Penisini, immediately exited and fired five shots at the officer, killing him.

The Crown argued the appellant was guilty of murder on the basis of joint criminal enterprise. The prosecution case was that the four men had agreed to evade lawful police apprehension, and that in doing so the appellant foresaw that one of them might use a weapon and cause death or grievous bodily harm to the officer.

The appellant was tried separately before Sully J and convicted of murder, receiving an effective sentence of 23 years with a non-parole period of 16 years. He appealed against that conviction.

  • Whether the appellant was party to a joint criminal enterprise to evade police, and whether such an enterprise was grounded in a recognisable underlying criminal offence
  • Whether merely knowing that another person intends to act unlawfully, as distinct from agreeing to a common purpose, is sufficient to establish participation in a joint criminal enterprise
  • Whether evading police, or running away from them, constitutes "hindering" a police officer within the meaning of section 546C of the Crimes Act 1900
  • Whether a manslaughter conviction arising from extended joint criminal enterprise required proof that the appellant foresaw the possibility that an accomplice might murder the victim, rather than merely adverting to a possibility of death or grievous bodily harm

Decision

Adams J (with Beazley JA and Howie J agreeing) found that the Crown's case at trial could not support a murder conviction. The trial direction from Sully J, properly analysed, described a situation where the appellant knew there were loaded weapons in the car and recognised a "real risk" that one might be fired. That is the mental element for manslaughter, not murder. The Crown itself conceded in the Court of Criminal Appeal that the trial directions could only have supported a manslaughter verdict.

The court held that a joint criminal enterprise requires an actual agreement, not merely knowledge that others intend to act in a certain way. On the evidence, the appellant had decided to evade police himself and knew the others would do the same. That fell short of the agreement necessary to establish a shared criminal enterprise.

On the question of the foundational offence, the Court of Criminal Appeal rejected the Crown's submission (raised for the first time on appeal) that the enterprise was one to "hinder" the officer under section 546C of the Crimes Act 1900. The court held that running away from police does not constitute hindering an officer in the execution of duty within the meaning of that provision. Without a foundational criminal offence underlying the enterprise, the framework for extended joint criminal enterprise liability could not operate.

Because neither the murder nor the manslaughter case was properly established on the formulations advanced by the Crown at trial and on appeal, the court declined to order a new trial. Doing so would have permitted a substantially different Crown case to be run, which was impermissible in the circumstances.

Orders Made

  • Conviction for murder quashed
  • Verdict of acquittal entered

Key Takeaways

  • A joint criminal enterprise requires proof of an actual agreement between participants to pursue a common unlawful purpose. Mere knowledge that another person intends to act unlawfully, without any agreement, is insufficient to establish participation in such an enterprise.

  • For an extended joint criminal enterprise to ground a manslaughter conviction, it is necessary to prove that the accused foresaw the possibility that an accomplice might murder the victim. Simply adverting to a possibility of death or grievous bodily harm, without that specific foresight, does not suffice.

  • Under section 546C of the Crimes Act 1900, "hindering" a police officer in the execution of duty does not extend to the act of running away from police. A foundational criminal offence is necessary to anchor a joint criminal enterprise, and running away did not satisfy that requirement.

  • The Court of Criminal Appeal confirmed that a new trial will not be ordered where doing so would enable the Crown to run a materially different case from the one presented at trial, following the principle in R v Chekeri [2001] NSWCCA 221.

  • Where neither the murder nor the manslaughter charge can be sustained on the cases as formulated by the Crown, a verdict of acquittal is the appropriate remedy rather than remittal for a new trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B, 58, 546C

Cases:
- Gillard v The Queen (2003) 219 CLR 1
- Leonard v Morris (1975) 10 SASR 528
- McAuliffe v The Queen (1995) 183 CLR 108
- R v Chekeri [2001] NSWCCA 221
- R v Kanaan [2005] NSWCCA 385
- Tangye (1997) 92 A Crim R 545
- Worsley v Aitken & Anor (1990) 9 Petty Sessions Review 4074