Citation: R v Scott Owen Brown [2009] NSWDC 112
Court: District Court of New South Wales
Date: 13 May 2009
Judge(s): Murrell SC DCJ
Background
The accused was charged with three offences arising from events in the early hours of 2 September 2008 at Lavington. He had attended a neighbouring complainant's residence alongside two other men, P and M. The complainant was woken at approximately 4 a.m. and confronted by P and M, who demanded drugs and ransacked her home. The accused was present in the adjoining lounge room and was observed carrying a bottle of Malibu and an object resembling a set of lights. He pleaded guilty separately to stealing that bottle of alcohol.
The three contested charges were: breaking and entering a dwelling house and committing larceny in company with P and M; intentionally damaging property belonging to the complainant; and intimidating the complainant with intent to cause fear of physical or mental harm. The trial proceeded before a judge alone, with the accused's consent and after he had received legal advice.
The central factual question was not whether P and M had committed the offences, which was uncontested. The dispute was whether the accused had been part of a joint criminal enterprise with them to commit those offences, given that the Crown's case rested entirely on circumstantial evidence.
Legal Issues
- Whether the only available rational inference from the circumstantial evidence was that the accused was a party to a joint criminal enterprise to break, enter and steal from the complainant's premises.
- Whether the accused's presence at the scene, combined with his conduct, was sufficient to establish participation in that joint enterprise.
- Whether, if a joint criminal enterprise for break, enter and steal were established, the incidental offences of intentional damage and intimidation fell within the scope of the common purpose (under the doctrine of extended joint criminal enterprise).
Decision
The court applied the principles from R v Tangye and McAuliffe v The Queen, noting that a joint criminal enterprise requires an understanding or arrangement to commit a crime, which may be inferred from circumstances. Mere presence at the scene is insufficient; the accused must be present and ready to give aid if required. The scope of any extended common purpose is assessed subjectively, requiring that the incidental offence was within the accused's contemplation as a possible incident of the agreed enterprise.
On the break, enter and steal charge, the court found that the Crown had not excluded an available rational inference consistent with innocence. Evidence from two Crown witnesses, the female partygoer and the complainant herself, supported the accused's account that he had gone to the premises intending to trade lights for drugs with a person called "Ben", rather than to participate in a break-in. The complainant confirmed that the accused's behaviour differed markedly from that of P and M, and that he held an object consistent with the lights. Intoxication was identified as a factor explaining his otherwise unusual conduct.
On the charges of intentional damage and intimidation, the court found separately that, even if a joint enterprise had been established, the evidence was insufficient to show those incidental offences fell within any common purpose. The damage was caused by the gratuitous acts of agitated individuals and was not connected to any theft. The intimidation occurred largely after the accused had left the premises and was not an ordinary or necessary incident of break, enter and steal.
The court returned a verdict of not guilty on each of the three contested charges.
Orders Made
• Verdict of not guilty on each of the three offences
Key Takeaways
- A joint criminal enterprise requires more than physical presence at the scene; the accused must be present and ready to render assistance if required, with that readiness grounded in an actual agreement or understanding, express or implied.
- Where the Crown relies on circumstantial evidence to establish joint criminal enterprise, a verdict of not guilty is required if there is an available rational inference consistent with the accused's innocence, even where guilt is suspected or thought probable.
- Under the extended joint criminal enterprise doctrine, each incidental offence must separately be shown, by subjective assessment, to have been within the accused's contemplation as a possible incident of the agreed common purpose; a general involvement in a break-in does not automatically extend to damage or intimidation.
- Corroboration of a defendant's account by Crown witnesses can be decisive in a judge-alone trial: here, the evidence of the complainant and a partygoer supported the accused's alternative explanation sufficiently to raise a reasonable doubt.
- The District Court's analysis confirms that the prosecution bears the burden of excluding innocent inferences in circumstantial cases, and that each charge in a joint trial must be assessed independently on its own elements.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases
- McAuliffe v The Queen (1995) 183 CLR 108
- R v Tangye (1997) 92 A Crim R 545
- Taufahema v The Queen [2006] NSWCCA 152
- Director of Public Prosecutions v Fraser [2008] NSWSC 244
- R v Jacobs and Mehajer [2004] NSWCCA 462
- R v Brougham (1986) 43 SASR 187