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Court of Criminal Appeal 5 March 2008

Mohamed v R

[2008] NSWCCA 45

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION JOINT INDICTMENT OF THREE CO ACCUSED ACCUSED FOUND NOT GUILTY WHETHER VERDICTS INCONSISTENT

Citation: Mohamed v R [2008] NSWCCA 45
Court: New South Wales Court of Criminal Appeal
Date: 5 March 2008
Judge(s): McClellan CJ at CL; Grove J; Simpson J

Background

The appellant was jointly indicted with two co-accused following an incident in the early hours of 14 November 2004 in which a stranger, Wayne Wardle, was lured into a vehicle in Campbelltown under the pretence of being driven home. During the journey, Wardle was threatened with a knife and a firearm, his mobile phone was taken, and he was later robbed of $400 in cash before managing to escape at Liverpool.

The three counts on the indictment were aggravated kidnapping in company, robbery in company of a mobile telephone, and robbery in company of $400 cash. The appellant and co-accused Pritchard were convicted of the kidnapping count and the cash robbery count, but acquitted of the phone robbery. The third co-accused, Ailua, who had driven the vehicle, was acquitted on all counts against him.

The appellant appealed his conviction, challenging the consistency of the verdicts, the reasonableness of the robbery conviction, the trial judge's failure to direct the jury on a lesser alternative count, and the adequacy of the summing-up.

  • Whether the appellant's conviction for aggravated kidnapping was logically inconsistent with Ailua's acquittal on the same count, given that all three were charged as participants in a joint criminal enterprise
  • Whether the verdict on the robbery in company charge (count 3) was unreasonable or unsupported by the evidence
  • Whether the trial judge was required to direct the jury on any alternative, non-aggravated count
  • Whether the trial judge's summing-up was inadequate because it did not summarise all of the evidence

Decision

On the inconsistency ground, the Court applied the test from McKenzie v The Queen: verdicts will stand if there is a proper and logical way to reconcile them. The Court found that reconciliation was straightforward here. The evidence against the appellant and Pritchard showed direct, active participation in threatening Wardle with weapons and demanding his property. The evidence against Ailua was limited to his role as driver, and the jury was entitled to conclude that the Crown had not proved beyond reasonable doubt that Ailua was aware of what was occurring in the back seat. Significantly different evidentiary positions among co-accused can support different verdicts.

On the reasonableness of the robbery conviction, the Court was satisfied that the jury's finding was open on the evidence. The fundamental question at trial was whether the jury accepted the complainant Wardle as a truthful and reliable witness, and the verdict indicated they did.

On the direction ground regarding alternative counts, the Court noted that no complaint had been raised at trial. Leave to argue this ground on appeal was therefore required, and the Court refused leave. The Court was satisfied that the trial judge's directions on the elements of each count were accurate and fair. As for the adequacy of the summing-up, the Court found that the issues in the trial were not complex and that the trial judge's references to the evidence constituted a fair summary. Again, no complaint had been made at trial, and leave to raise the ground on appeal was refused.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • Where co-accused played significantly different roles in an alleged joint criminal enterprise, a jury is entitled to reach different verdicts on each of them without those verdicts being logically inconsistent.
  • The applicable test for alleged verdict inconsistency is whether the verdicts can be reconciled on a proper and logical basis, as confirmed in McKenzie v The Queen (1996) 190 CLR 348.
  • A conviction for robbery in company may be upheld on appeal where the jury's acceptance of the complainant's evidence was a rational basis for the finding, and nothing in the record renders that finding unreasonable.
  • Failing to raise a complaint about jury directions or the adequacy of a summing-up at trial means leave is required to argue those grounds on appeal, and such leave may be refused where no error is apparent.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge is not required to summarise all evidence in a summing-up, provided the directions given offer a fair account of the issues and the relevant evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW)

Cases
- McKenzie v The Queen (1996) 190 CLR 348
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Domican v The Queen (1992) 173 CLR 555
- Pemble v The Queen (1971) 124 CLR 107
- R v King (2004) 59 NSWLR 515
- R v Zorad (1990) 19 NSWLR 91
- R v Davis [1999] NSWCCA 15
- R v BJB [2005] NSWCCA 441
- R v Tubou [2001] NSWCCA 243
- R v Williams (1999) 104 A Crim R 260