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Court of Criminal Appeal 16 February 2007

TAUFAHEMA v R

[2007] NSWCCA 33

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Taufahema v R [2007] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 16 February 2007
Judge(s): McClellan CJ at CL; Simpson J; Price J

Background

The appellant was tried alongside a co-accused following the fatal shooting of Senior Constable Glen McEnallay on 27 March 2002 at Hillsdale, Sydney. The deceased was shot by a third person, Penisini, immediately after the stolen vehicle in which all were travelling was stopped by police. Penisini fired five shots at the police car from close range; four struck the officer, who died seven days later.

The appellant was not the shooter. The Crown's case rested on joint criminal enterprise: the prosecution argued the appellant shared responsibility for the murder because the shooting by Penisini was a foreseeable act within a common criminal enterprise. The co-accused, Lagi, was acquitted of murder but convicted of the alternative count of using an offensive weapon in company to avoid lawful apprehension. The appellant was convicted of murder.

The appellant appealed against conviction, challenging the directions the trial judge gave the jury on joint enterprise murder and the failure to leave manslaughter as an alternative verdict.

  • Whether the trial judge's directions to the jury on joint criminal enterprise murder were legally correct, specifically regarding the mental element the appellant must have contemplated
  • Whether later oral directions given by the trial judge could cure errors contained in written directions already provided to the jury
  • Whether the trial judge was required to leave the alternative verdict of manslaughter to the jury, and whether the failure to do so constituted a miscarriage of justice

Decision

The Court found that the directions given to the jury on joint enterprise murder contained legal error. For a conviction on this basis, the jury needed to be satisfied that the appellant contemplated the possibility that a co-offender might act with an intention to kill or inflict grievous bodily harm. The directions as given did not properly convey this requirement.

On the question of whether subsequent oral directions could remedy errors in written directions already given to the jury, the Court concluded they could not. Once written directions are in the jury's hands, a later oral correction is insufficient to undo the potential damage caused by the defective written version.

The Court also held that the trial judge erred in failing to leave manslaughter as an alternative verdict. Applying the High Court's reasoning in Gilbert v R (2000) 201 CLR 414, a defendant charged with murder is entitled to have manslaughter left to the jury where the evidence is capable of supporting that verdict. The evidence here could support a manslaughter finding, and the failure to leave that option to the jury was a miscarriage of justice. The test applied was whether it was clear a properly instructed jury would necessarily have returned a verdict of murder; the Court was not so satisfied.

All three judges agreed the conviction could not stand, and a unanimous court upheld the appeal.

Orders Made

  • Appeal upheld
  • Conviction for murder quashed
  • New trial ordered

Key Takeaways

  • A conviction for murder on the basis of joint criminal enterprise requires the jury to be satisfied that the accused contemplated the possibility that a co-offender might act with an intention to kill or inflict grievous bodily harm; directions that fail to convey this element are erroneous.
  • Where written jury directions contain a legal error, subsequent oral directions from the trial judge do not necessarily cure the defect, particularly once the written directions are already in the jury's possession.
  • Every accused person charged with murder has a right to have manslaughter left to the jury as an alternative verdict if the evidence is capable of supporting it; failure to do so will ordinarily constitute a miscarriage of justice.
  • The Court of Criminal Appeal applied the principle from Gilbert v R that the proviso (which allows an appeal court to dismiss an appeal despite trial error) cannot be invoked unless it is clear a properly directed jury would necessarily have returned the same verdict.
  • The acquittal of a co-accused on the murder charge, in circumstances arising from the same joint enterprise, did not prevent the Court from finding that a properly directed jury could have reached a different verdict on both murder and manslaughter for the appellant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(2)

Cases:
- Gilbert v R (2000) 201 CLR 414
- Gillard v R (2003) 219 CLR 1
- McAuliffe v The Queen (1995) 183 CLR 108
- R v Jackson [1993] 4 SCR 573 (Supreme Court of Canada)
- R v Kanaan [2005] NSWCCA 385
- R v Lagi [2004] NSWCCA 443
- R v Sharah (1992) 30 NSWLR 292
- Taufahema v The Queen (2006) 162 A Crim R 152