Citation: Penza and Di Maria v Regina [2013] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 15 February 2013
Judges: Hoeben JA, S Campbell J, Button J
Background
The two appellants were convicted of murder following a jury trial in the Supreme Court in July 2009. The deceased was a known drug dealer who kept cash and drugs concealed in a wall cavity at his home. One appellant was the deceased's stepson and was aware of this arrangement.
The Crown alleged that the appellants attended the deceased's home intending to steal those drugs and money, and that they arrived armed with a firearm. A fatal gunshot wound to the deceased's head occurred during a confrontation at the property. The Crown accepted that the evidence did not establish which of the two appellants had fired the fatal shot.
The Crown ran its case on two alternative bases: extended joint criminal enterprise (both appellants contemplated that a firearm would be discharged with intent to kill or cause grievous bodily harm), and constructive murder under the felony murder rule (the shooting occurred in the course of an armed robbery or aggravated break, enter and steal). A critical element of both theories was that at least one appellant arrived at the scene armed with a firearm, to the knowledge of the other. The appellants accepted they were present and had intended to steal, but denied being armed.
Legal Issues
- Whether the guilty verdicts were unreasonable and unsupported by the evidence, given that the Crown's case rested on circumstantial evidence that the appellants arrived armed
- Whether the trial judge erred by failing to direct the jury that, for the purposes of felony murder, the act causing death had to be voluntary
- Whether the trial judge erred by failing to leave manslaughter by unlawful and dangerous act for the jury's consideration
- Whether the evidence relied upon to establish consciousness of guilt was admissible under s 137 of the Evidence Act 1995
- Whether the trial judge erred in directing the jury that consciousness of guilt reasoning was available
Decision
The Court of Criminal Appeal upheld the first ground of appeal, finding that the verdicts were unreasonable and could not be supported having regard to the evidence. Each judge separately reviewed the whole of the Crown's circumstantial case and concluded that the prosecution had not established beyond reasonable doubt that the appellants arrived at the scene armed with a firearm.
The Court emphasised that proof of armed attendance was an indispensable intermediate fact underpinning both the extended joint criminal enterprise and the felony murder theories. Because the Crown case was conducted and presented at trial on the premise that this fact had to be proved, it could not be reformulated on appeal. The Crown was bound by the way its case was put at trial.
Button J identified a reasonably possible hypothesis that the Court could not exclude: the deceased may himself have been armed when he confronted the appellants, and the firearm could have been his. On such a scenario, the Crown's essential intermediate fact remained unproven. His Honour noted that he could not say he had no reasonable doubt as to the correctness of the convictions, and that the jury should have shared that doubt.
Given the first ground succeeded and resulted in acquittals, the Court did not need to determine the remaining grounds conclusively. However, the judgment canvassed the other issues in detail, including the directions on felony murder voluntariness, the failure to leave manslaughter, and the consciousness of guilt evidence and directions.
Orders Made
- Guilty verdicts for murder against each appellant quashed
- Verdicts of acquittal entered in respect of each appellant
Key Takeaways
- Where a Crown case in a murder trial is built on an essential intermediate fact proved only by circumstantial evidence, a verdict is unreasonable if that fact cannot be established beyond reasonable doubt and a competing hypothesis remains open on the whole of the evidence.
- The Court of Criminal Appeal confirmed that the Crown is bound on appeal by the way its case was presented at trial and cannot reframe its theory of liability to avoid a successful unreasonableness challenge.
- Under the felony murder rule as applied in NSW, proof that the accused arrived armed was held to be a necessary element of both the extended joint criminal enterprise and constructive murder theories where those theories were expressly founded on armed offences as the underlying criminal acts.
- A reasonable doubt experienced by appellate judges who have reviewed the same evidence as the jury can support a finding that the verdict was unreasonable, particularly where the disputed issues turned primarily on the interpretation of undisputed evidence rather than on direct credibility assessments of witnesses.
- Entering a verdict of acquittal, rather than ordering a retrial, was the appropriate remedy once the Court was satisfied the Crown's case as put could not be made out on the evidence adduced.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1)
- Crimes Act 1900 (NSW), ss 97(2), 105A, 112(2), 257C(1)(a), 300(2), 307B
- Evidence Act 1995 (NSW), s 137
Cases
- Blackwell v Regina [2011] NSWCCA 93
- Carney v R; Cambey v R [2011] NSWCCA 223
- Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
- Crampton v The Queen [2000] HCA 60; 206 CLR 161
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- FDP v R [2008] NSWCCA 317; 74 NSWLR 645
- Fingleton v The Queen (2005) 227 CLR 166
- Gillard v R [2003] HCA 64; 219 CLR 1
- Griffiths v R [1994] HCA 55; 69 ALJR 77
- Knight v R [1992] HCA 56; 175 CLR 495
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Murray v R [2002] HCA 26; 211 CLR 193
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- Plomp v The Queen [1963] HCA 44; 110 CLR 234
- R v Abusafiah [1991] NSWCCA 542; 21 NSWLR 531