Citation: Tierney v R [2016] NSWCCA 144
Court: Court of Criminal Appeal, NSW
Date: 15 July 2016
Judges: Basten JA, R A Hulme J, Adamson J
Background
The appellant was convicted by a jury in October 2014 of break, enter and steal in company under s 112(2) of the Crimes Act 1900 (NSW), following an incident at a residential property in Roseville on 14 July 2013. The appellant and his brother drove to the property, where the brother used a screwdriver to force open the back door. Fingerprints placed the appellant on both the inside and outside of that door.
At trial, the appellant admitted helping his brother prise open the door but claimed he did not enter the premises. He said that once the door was open, he grabbed his brother by the arm to try to stop him, his brother shook him off, and he then left the scene. He contended this amounted to a withdrawal from the joint criminal enterprise before the offence was completed.
The Crown argued either that the jury should not accept the appellant's account at all, or alternatively that he had withdrawn too late and had not done enough to prevent the commission of the offence. The jury convicted.
Legal Issues
- Whether the verdict was unreasonable and could not be supported on the evidence at trial
- Whether the trial judge erred in her directions to the jury on the requirements for withdrawal from a joint criminal enterprise
Decision
First ground: unreasonable verdict
The Court granted leave to appeal on the first ground but dismissed it. The question was whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The appellant's own evidence confirmed he knew his brother intended to break in and he helped force open the door. The jury was entitled to reject his account of a genuine attempt to stop his brother, and to conclude the Crown had proved he had not withdrawn from the enterprise.
Second ground: misdirection on withdrawal
The trial judge directed the jury that to establish withdrawal, an accused must take such action as he can reasonably perform to undo the effect of his prior participation and thereby prevent the commission of the crime. She further directed that where withdrawal is attempted at the last minute, the accused must take all reasonable and practicable steps to frustrate the enterprise. The appellant challenged specific passages of this direction.
The Court found no error in the direction. The principles applied by the trial judge were consistent with established authority, including White v Ridley and R v Whitehouse, which require timely and unequivocal communication of withdrawal and reasonable steps to undo prior participation. Her Honour was not required to frame the direction according to the particular illustrative example given in R v Sully, which described only one factual scenario where acquittal might be open. Leave was required for this ground because trial counsel had not objected to the direction at the time, but no error was established in any event.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Withdrawal from a joint criminal enterprise requires more than a change of heart: the withdrawing party must take such action as is reasonably practicable to undo the effect of prior participation and to prevent the commission of the offence.
- Where a person attempts to withdraw at the last moment, immediately before the offence is completed, the steps required to constitute an effective withdrawal are correspondingly more demanding.
- A conviction is not unreasonable merely because the accused gave an exculpatory account at trial; the jury is entitled to reject that account where the evidence as a whole supports guilt beyond reasonable doubt.
- No error was established in a direction that required the Crown to prove either that the accused did not intend to withdraw, or that he failed to take reasonable steps to prevent completion of the crime.
- In dismissing the appeal, the Court confirmed that the legal test for withdrawal does not require a single prescribed form of conduct; what is reasonable and practicable depends on all the circumstances of the particular case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules (NSW), r 4
Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Sully [2012] SASCFC 9; 112 SASR 157
- R v Tietie (1988) 34 A Crim R 438
- R v Whitehouse [1941] 1 DLR 683
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- White v Ridley (1978) 140 CLR 342