Citation: Raad v R [2012] NSWCCA 268
Court: Court of Criminal Appeal, NSW
Date: 12 December 2012
Judge(s): Basten JA; Adams J; RA Hulme J
Background
In the early hours of 31 May 2009, an armed robbery took place at the Lakes Hotel in Rosebery, Sydney. The principal offender, armed with a Ruger pistol, forced three men back into the hotel at gunpoint. When police arrived, a shootout occurred in which both a police sergeant and the gunman were wounded.
The applicant, Emad Raad, was not inside the hotel and did not fire any weapon. The prosecution's case against him rested on his participation in a joint criminal enterprise: he was alleged to have waited nearby in a vehicle as a lookout. Critical evidence against him came from the gunman's girlfriend, who had herself been involved in related offending.
Raad was tried alongside three co-accused. He was convicted of armed robbery (count 1), shooting at a police officer with intent to murder (count 4), and wounding the officer with intent to prevent lawful apprehension (count 7). He applied to the Court of Criminal Appeal for leave to appeal against those convictions.
Legal Issues
- Whether leave should be granted to raise a ground of appeal at the hearing that had not been included in the original grounds
- Whether the trial judge's directions to the jury under s 165 of the Evidence Act 1995 (NSW), concerning the potential unreliability of the key prosecution witness, were adequate
- Whether the verdicts against the applicant were inconsistent with the jury's failure to convict his co-accused, who faced charges arising from substantially the same facts
- Whether the conviction on count 4 (shooting with intent to murder) was unreasonable, given that the applicant's liability depended on proof that he had actually contemplated a substantial risk that the gunman would shoot with intent to murder
Decision
Count 4: Unreasonable verdict
The central issue on count 4 was whether the applicant, as a joint criminal enterprise participant who was not present at the shooting, had actually contemplated a substantial risk that the gunman would fire at police with intent to murder. The applicable test, drawn from McAuliffe v The Queen (1995) and Johns v The Queen (1980), requires genuine subjective contemplation of that possibility, not merely a conclusion drawn from what in fact occurred.
Basten JA found a real danger that the jury may have reasoned backwards from the events to infer the necessary mental element, rather than assessing independently whether the applicant truly contemplated that risk before the robbery began. The trial directions did not sufficiently guard against that reasoning process. Accordingly, the conviction on count 4 was found to be unreasonable and was set aside, with an acquittal entered in its place.
Counts 1 and 7: Verdicts upheld
Adams J and RA Hulme J each confirmed, on their own independent assessments of the whole of the evidence (as required by SKA v The Queen [2011] HCA 13), that the convictions on counts 1 and 7 were neither unreasonable nor unsupported by the evidence.
Inconsistency of verdicts and witness reliability
The court considered whether the jury's failure to convict co-accused Lopeti and Faraj undermined the verdicts against Raad. It concluded they did not, because the evidence against each accused was not identical in significance: the key prosecution witness's testimony carried different weight depending on the accused's particular role and what other evidence corroborated or qualified it. The court also declined to grant leave to raise the ground relating to the s 165 reliability direction for the first time on appeal, finding no relevant objection had been taken at trial and no substantial miscarriage of justice had resulted.
Orders Made
- Leave to appeal against conviction granted
- Conviction on count 4 (shooting with intent to murder) set aside; acquittal entered in its place
- Appeal otherwise dismissed
- Parties directed to file further submissions on sentence (applicant by 16 January 2013; Director's reply by 30 January 2013)
Key Takeaways
- A conviction based on joint criminal enterprise liability for an offence requiring a specific intent, such as shooting with intent to murder, requires proof that the participant actually contemplated a substantial risk of that crime occurring. Inference drawn backwards from the events themselves does not satisfy that requirement.
- The Court of Criminal Appeal confirmed that, under SKA v The Queen, it must undertake its own independent assessment of the whole of the evidence when reviewing a verdict for unreasonableness, rather than simply deferring to the jury's finding.
- Inconsistent verdicts across co-accused do not automatically undermine a conviction where the prosecution evidence did not carry the same weight or significance against each accused.
- Refusing leave to raise a new ground of appeal concerning jury directions, where no objection was taken at trial, reflects the operation of procedural rules governing late grounds: the absence of a timely complaint is a significant factor in the Court's assessment of whether leave is appropriate.
- Setting aside one count in a multi-count sentencing structure does not automatically trigger a resentencing of the remaining counts, particularly where the overall criminality is unchanged.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), s 165
Cases
- Johns v The Queen [1980] HCA 3; 143 CLR 108
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- R v Koloamatangi [2011] NSWCA 288
- R v TJF [2001] NSWCCA 127; 120 A Crim R 209
- SKA v The Queen [2011] HCA 13; 243 CLR 400