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Court of Criminal Appeal 11 March 2016

Proud v R

[2016] NSWCCA 41

Homicide
PRACTICE AND PROCEDURE CRIMINAL APPEAL

Citation: Proud v R [2016] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 11 March 2016
Judge(s): Basten JA; Johnson J; R A Hulme J

Background

The appellant was convicted by jury of murder following the death of a woman whose bedroom was set alight while she slept. The appellant was not present at the scene but was connected by evidence to plans made with others to cause harm to the victim. She was sentenced to 20 years imprisonment with a non-parole period of 14 years.

The case was left to the jury on two bases: standard joint criminal enterprise (shared intention to kill or cause grievous bodily harm) and extended joint criminal enterprise (where the appellant did not share that intention but foresaw the possibility that death or grievous injury might occur). The original grounds of appeal included a challenge to the adequacy of directions on the extended joint enterprise limb.

Shortly before the scheduled hearing, the appellant sought to add a new ground challenging the underlying legal principles governing extended joint criminal enterprise, and to vacate the hearing entirely pending the outcome of a related High Court application in the South Australian cases of Smith v The Queen and Presley v DPP (SA). Those proceedings, which raised the same principles, had been referred to the Full High Court for hearing in May 2016.

  • Whether the appellant should be granted leave to amend her grounds of appeal to challenge the mental element required for a conviction based on extended joint criminal enterprise, in light of the UK Supreme Court's decision in R v Jogee
  • Whether the scheduled appeal hearing should be vacated pending the High Court's determination in Smith v The Queen, where the same principles were to be reconsidered

Decision

On the amendment application, the Court granted leave to add the new ground. The Court accepted that the jury directions conformed to established Australian authority, including McAuliffe v The Queen, Gillard v The Queen, and Clayton v The Queen, but recognised that the UK Supreme Court's decision in R v Jogee represented a reconsideration of those principles. The appellant was entitled to have that challenge properly before the Court.

On the adjournment application, the Court refused to vacate the hearing. A central factor was that if the appellant succeeded on any of her other grounds, a retrial would likely follow regardless. Proceeding to a retrial under the current law, only to await a potential change in principle, was itself a source of prejudice that weighed against delay.

The Court also assessed the likelihood that the High Court in Smith would actually revisit the McAuliffe principles. That outcome was uncertain for at least three reasons: special leave had not yet been granted; Smith's case involved circumstances where the jury may not have needed to rely on extended joint enterprise at all; and the Full Court might decline to treat that case as an appropriate vehicle for reconsidering the doctrine.

Finally, the Court noted that the appellant would not be without recourse even if her appeal proceeded and failed on the current law. She could seek special leave to appeal to the High Court in the wake of any favourable judgment in Smith, or alternatively pursue relief under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) if those avenues were exhausted.

Orders Made

  • Leave granted to the appellant to amend her grounds of appeal to include a challenge to the jury directions on the mental element of extended joint criminal enterprise
  • Application to vacate the hearing date refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that, as the law stood in March 2016, the standard directions on extended joint criminal enterprise (requiring only foresight of the possibility of death or grievous bodily harm) remained binding on intermediate appellate courts in Australia, following McAuliffe, Gillard, and Clayton.
  • A pending High Court application raising the same legal principles does not automatically justify vacating a listed appeal. The court weighed the practical consequences of delay, including the prospect of a retrial on existing law, against the possibility that the High Court proceeding might not resolve the contested issue.
  • Where an appellant challenges an established legal principle, leave to amend grounds to raise that challenge may still be granted even where success is bound to fail under current authority, provided the issue is live and properly formulated.
  • The availability of a subsequent special leave application to the High Court, or a petition under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), is a relevant consideration when assessing prejudice to an applicant whose appeal proceeds before a potentially significant High Court judgment is handed down.
  • R v Jogee [2016] UKSC 8, in which the UK Supreme Court substantially revised the doctrine of extended joint criminal enterprise as applied in England and Wales, was acknowledged as the catalyst for the proposed ground of appeal, though its persuasive weight in Australian law remained an open question.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7

Cases:
- McAuliffe v The Queen (1995) 183 CLR 108
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- Clayton v The Queen [2006] HCA 58; 81 ALJR 439
- R v Jogee [2016] UKSC 8
- R v Presley (2015) 122 SASR 476; [2015] SASCFC 53
- Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44
- Aston v The Queen S157/1994 [1995] HCATrans 278
- Grierson v The King (1938) 60 CLR 431