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Court of Criminal Appeal 26 February 2014

Hoblos v R

[2014] NSWCCA 20

Homicide
CRMINAL LAW APPEAL AGAINST CONVICTION MURDER

Citation: Hoblos v R [2014] NSWCCA 20
Court: Court of Criminal Appeal
Date: 26 February 2014
Judge(s): Hoeben CJ at CL, Blanch J, R A Hulme J (all agreeing)

Background

The applicant was convicted by a jury of murder following a fatal shooting at a 21st birthday party in Merrylands on 25 April 2009. The victim was shot five times on a crowded dance floor by one of two men who entered the rear of the premises wearing hooded jumpers. The two intruders then fled to a waiting car parked nearby with its engine running, which drove away immediately.

The Crown alleged the applicant was one of the three participants in the killing: either one of the two intruders or the getaway car driver. It did not assign a precise role to him. The applicant's case was that he had been present outside the premises that evening, having been indirectly invited, but that he did not enter and had no involvement in the killing.

Following conviction, the applicant was sentenced to 28 years' imprisonment with a non-parole period of 21 years. He sought leave to appeal against conviction only, pressing two grounds.

  • Whether the verdict of guilty was unreasonable or could not be supported by the evidence
  • Whether the trial judge's directions to the jury on the liability of the primary and secondary participants in the murder (including the getaway driver) were legally erroneous

Decision

On the first ground, the Court applied the established test: whether, upon an independent assessment of the evidence for sufficiency and quality, the court entertained a reasonable doubt as to guilt. It found the evidence was plainly capable of supporting the verdict. Multiple eyewitnesses described the two intruders entering the premises and proceeding directly to the deceased, and one witness followed the men out and observed them entering the waiting car. The Court found the Crown's case was adequately established by the evidence and the verdict was not unreasonable.

On the second ground, the applicant argued the trial judge erred by directing the jury that the getaway driver was guilty of murder as a participant in a joint criminal enterprise. The applicant's position at trial had been quite different: defence counsel had not contested the concession that all three participants, including the driver, were guilty of murder. The sole issue at trial was whether the applicant was one of those three. The Court noted no objection was taken to those directions at trial, and accordingly leave was required under r 4 of the Criminal Appeal Rules before the ground could even be raised.

The Court refused leave on the second ground. It found there was an ample evidentiary basis for concluding the driver was a party to the joint criminal enterprise. The driver had delivered the two intruders to the vicinity of the party, kept the engine running for a swift escape, and was present when they returned moments after the shooting and drove away at speed. The Court described as "fanciful" any suggestion the driver could have been unaware of his companions' purpose.

Both grounds therefore failed. Although leave to appeal was formally granted, the appeal was dismissed.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, when assessing an unreasonable verdict ground, it must independently assess the evidence for sufficiency and quality and determine whether it entertains a reasonable doubt, not merely whether the evidence was legally capable of supporting conviction.
  • Where a concession is made at trial that all identified participants are guilty of murder, and the only issue left for the jury is whether the accused was one of those participants, an appellate ground challenging the underlying liability directions faces a very high threshold, particularly where no objection was raised at trial.
  • Raising a ground of appeal not agitated at trial requires leave under r 4 of the Criminal Appeal Rules, and that leave will not readily be granted where there is an ample evidentiary basis for the impugned direction.
  • Participation in a joint criminal enterprise to commit murder can be inferred from circumstantial evidence. The Court found that a driver who delivered armed intruders to a venue, waited with the engine running, and immediately drove them away after a fatal shooting was properly characterised as a party to such an enterprise.
  • In dismissing the appeal, the Court left undisturbed the principle that the Crown is not required to assign a precise role to an accused provided it can establish beyond reasonable doubt that the accused was one of a group of identified participants.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Appeal Rules, r 4

Cases:
- LP v R [2013] NSWCCA 330
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFI v R [2002] HCA 53; (2002) 213 CLR 606