AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 21 October 2016

MG v R;; AE v R

[2016] NSWCCA 228

Assault & violenceHomicide
CRIMINAL LAW CONVICTION APPEALS OFFENCE OF MURDER EXTENDED JOINT CRIMINAL ENTERPRISE APPLICATION BY AE DIFFICULTIES IN IDENTIFICATION EVIDENCE

Citation: MG v R; AE v R [2016] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 21 October 2016
Judge(s): Hoeben CJ at CL; Davies J; Bellew J

Background

A group of young men attended an uninvited Halloween party at Bossley Park in October 2010, ostensibly looking for a rival group called the "Campbelltown Boys". A confrontation occurred at the front of the house, during which the victim was punched, fell to the ground, and had a glass bottle smashed over his head. The attack lasted approximately five to ten seconds. The victim was found unconscious about an hour and a half later and died on 5 November 2010.

Two applicants, referred to as MG and AE, were convicted of murder at trial. Three co-offenders were separately convicted of manslaughter. The Crown's case rested on the doctrine of extended joint criminal enterprise, meaning that the applicants did not need to have personally struck the fatal blow, but rather participated in a joint attack in which they foresaw the possibility that a co-offender might use a weapon to cause grievous bodily harm or death.

MG was convicted by majority verdict after the jury initially indicated it could not reach a unanimous decision. AE was convicted unanimously. Both sought leave to appeal their convictions to the Court of Criminal Appeal.

  • Whether the verdicts against MG and AE were unreasonable and could not be supported having regard to the evidence (under s 6(1) of the Criminal Appeal Act 1912)
  • Whether the trial judge gave adequate directions on identification evidence in respect of AE
  • Whether the trial judge gave adequate directions on extended joint criminal enterprise
  • In MG's case, whether the directions on circumstantial evidence adequately identified the indispensable intermediate facts the jury needed to find before returning a guilty verdict

Decision

AE's appeal dismissed. The case against AE involved eyewitness identification placing him at the assault, supported by fingerprint evidence, evidence of his close association with known participants, lies told to police, and telephone intercepts. The Court acknowledged that individual identification witnesses had weaknesses and uncertainties in their accounts, but held that the cumulative weight of all the evidence, assessed as a whole rather than piece by piece, was sufficient to support the jury's verdict. Davies J emphasised that circumstantial evidence must be evaluated in its totality, not dissected witness by witness. The Court was also satisfied that the trial judge's directions on both identification and extended joint criminal enterprise were appropriate and comprehensive.

MG's appeal allowed. Unlike the case against AE, no witness identified MG as a participant in the attack. The Crown case rested entirely on circumstantial evidence, principally that MG was seen wearing a distinctive Lonsdale jumper earlier in the evening and that a person in a similar jumper was present during the assault. The Court found that the jury was in no better position than the appellate court to assess this purely paper-based circumstantial case, and that reasonable scenarios consistent with MG's innocence remained available on the evidence. The conviction could not be sustained.

The majority verdict procedure had already signalled the jury's difficulty in reaching agreement on MG. The Court concluded that Ground 1 (unreasonable verdict) succeeded and disposed of the appeal on that basis, rendering it unnecessary to determine the remaining grounds concerning jury directions.

Orders Made

MG:
- Leave to appeal granted
- Appeal allowed
- Conviction quashed and verdict of acquittal entered

AE:
- Conviction appeal dismissed (all grounds)

Key Takeaways

  • A conviction appeal on the ground that a verdict is unreasonable requires the appellate court to assess whether it was open to the jury, acting rationally, to be satisfied of guilt beyond reasonable doubt, but where the case is entirely circumstantial and involves no credibility assessments of live witnesses, the appellate court is in no inferior position to the jury in making that evaluation.

  • Where the Crown case against one accused depends entirely on circumstantial evidence and reasonable scenarios consistent with innocence remain available, the Court of Criminal Appeal may quash the conviction and enter an acquittal without remitting the matter for retrial.

  • In dismissing AE's appeal, the Court confirmed that weaknesses in individual pieces of circumstantial evidence, including imperfect identification evidence, do not individually undermine a verdict if the totality of the evidence provides a sufficient basis for the jury's conclusion.

  • Extended joint criminal enterprise requires the Crown to establish that a participant in a joint criminal enterprise foresaw the possibility that a co-offender might commit the more serious offence; comprehensive directions on this doctrine, when given with proper authority, will not ordinarily ground a successful appeal.

  • The contrast between the two outcomes in this case illustrates that even co-accused tried together on the same Crown case can face materially different evidentiary positions on appeal, and each conviction must be assessed on its own evidentiary foundation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18 (definition of murder)
- Criminal Appeal Act 1912 (NSW), s 6(1) (appeal against conviction)
- Jury Act 1977 (NSW), s 55F (majority verdicts)

Cases:
- Domican v R [1992] HCA 13; 173 CLR 555
- Elwood v R [2016] NSWCCA 18
- Gillard v The Queen [2003] HCA 64; 219 CLR 1
- Hawi v R [2014] NSWCCA 83; 244 A Crim R 169
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- Miller v The Queen; Smith v The Queen; Presley v DPP (SA) [2016] HCA 30
- Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
- Plomp v The Queen [1953] HCA 44; 110 CLR 234
- R v Jogee; Ruddock v The Queen [2016] UKSC 8
- R v Phan [2001] NSWCCA 29; 53 NSWLR 480
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Shamoun v R [2015] NSWCCA 246
- The Queen v Hillier [2007] HCA 13; 228 CLR 618
- The Queen v Keenan [2009] HCA 1; 236 CLR 397