Citation: R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 8 October 2010
Judges: Macfarlan JA, James J, McCallum J
Background
Three appellants were convicted by a jury in the District Court of aggravated sexual intercourse without consent with a 15-year-old complainant, relating to events on the night of 30 to 31 August 2006. The identity of the person who actually performed the sexual act was never established. The Crown's case rested on a joint criminal enterprise theory, alleging that all three appellants were participants in a shared agreement to engage in sexual intercourse with the complainant regardless of whether she consented.
The complainant was asleep when the intercourse is alleged to have commenced. The Crown relied on the appellants' presence in the bedroom, evidence of subsequent sexual activity, laughter, and prior sexual interest to support an inference that each appellant had agreed to, and encouraged, the commission of the offence. The jury also acquitted the appellants on a number of other charges arising from events on the same days.
Following conviction, each appellant received a custodial sentence. The Crown separately appealed, contending those sentences were manifestly inadequate. Each appellant appealed against conviction on the principal count, and one appellant (Makasa) faced sentencing issues on additional counts.
Legal Issues
- Whether the jury's verdict on Count 1 was unreasonable and could not be supported by the evidence, having regard to the joint criminal enterprise theory advanced by the Crown
- Whether it was open to the jury to be satisfied beyond reasonable doubt that each appellant was aware the complainant was asleep when sexual intercourse commenced
- Whether the evidence supported an inference that the appellants encouraged the commission of the sexual offence, beyond establishing mere presence at the scene
- Whether the trial judge's directions on participation in a joint criminal enterprise, intentional encouragement, and recklessness as to consent were correct
- Whether the sentences imposed were manifestly inadequate (Crown appeal)
Decision
The majority (Macfarlan JA, with James J agreeing) allowed the appeals against conviction on Count 1 and quashed the convictions. The majority concluded that the evidence did not support a finding, beyond reasonable doubt, that the appellants knew the complainant was asleep when sexual intercourse commenced. That finding was critical, because the entire joint criminal enterprise case depended on the appellants knowing from the outset that the sexual activity was non-consensual.
On the question of encouragement, the majority accepted that mere presence at the scene of an offence is not sufficient to establish participation in a joint criminal enterprise. While presence in certain circumstances can give rise to an inference of encouragement, the majority found the evidence here fell short of what was required to sustain the verdicts. The subsequent sexual activity, laughter, and other conduct relied on by the Crown were insufficient to establish the necessary agreement or intentional encouragement at the time the offence was committed.
On the jury directions, the majority found that, while some of the trial judge's directions gave rise to concern, those grounds would not have succeeded on their own. Grounds 3 and 4, which challenged the directions and had not been the subject of objection at trial, were refused leave under rule 4 of the Criminal Appeal Rules.
McCallum J dissented on the conviction appeal. Her Honour reviewed the full record and concluded it was well open to the jury to be satisfied beyond reasonable doubt of each appellant's guilt on Count 1. Her Honour agreed with Macfarlan JA on all other grounds. The Crown's sentence appeal was dismissed.
Orders Made
- Leave granted to all three appellants to appeal on the grounds in their Notices of Appeal, except Grounds 3 and 4
- Leave refused under rule 4 Criminal Appeal Rules for the appellants to rely on Grounds 3 and 4
- Appeals on Count 1 allowed; convictions of all three appellants on Count 1 quashed
- Verdict and judgment of acquittal entered for each appellant on Count 1
- Sentence for Makasa on Counts 8, 10 and 16 varied, with a non-parole period of 1 year commencing 4 March 2008 and expiring 3 March 2009, with a balance of term of 1 year expiring 3 March 2010
- Crown appeal against sentence dismissed
- All three appellants entitled to immediate release from custody
Key Takeaways
- Participation in a joint criminal enterprise requires more than mere presence at the scene. The inference that presence amounts to encouragement depends heavily on the specific circumstances, including the nature of the space, the conduct of those present, and what they must have known at the relevant time.
- Where a Crown case on joint criminal enterprise depends on the appellants' knowledge that a specific criminal feature existed (here, that the complainant was asleep and therefore non-consenting when intercourse began), the evidence must be capable of sustaining that finding beyond reasonable doubt.
- Subsequent conduct, including later sexual activity and laughter, may be relevant to, but does not automatically establish, an earlier agreement to participate in a criminal act.
- A conviction will be set aside as unreasonable where the Court of Criminal Appeal is satisfied that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of guilt, applying the test in M v R (1994) 181 CLR 487.
- The decision was not unanimous. McCallum J dissented on the conviction issue, finding the jury's verdict was reasonably open on the evidence, which illustrates the degree of evaluative judgment involved in unreasonable verdict appeals.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules, rule 4
Cases:
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- Osland v R [1998] HCA 75; (1998) 197 CLR 316
- Jones v R [1997] HCA 56; (1997) 191 CLR 439
- MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348
- Edwards v R [1993] HCA 63; (1993) 178 CLR 193
- Giorgianni v R [1985] HCA 29; (1984-1985) 156 CLR 473
- Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317
- CTM v R [2008] HCA 25; (2008) 82 ALJR 978
- R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Phan v R [2001] NSWCCA 29; (2001) 123 A Crim R 30
- Tangye v R (1997) 92 A Crim R 545
- Rasic v R [2009] NSWCCA 202
- Sever v R [2010] NSWCCA 135
- R v Coney (1882) 8 QBD 534
- R v Russell [1933] VLR 59