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Court of Criminal Appeal 21 March 2016

Proud v R (No 2)

[2016] NSWCCA 44

Homicide
CRIMINAL LAW CONVICTION APPEAL MURDER JOINT CRIMINAL ENTERPRISE ACCUSED ATTEMPTED CLARIFICATION INEFFECTIVE

Citation: Proud v R (No 2) [2016] NSWCCA 44
Court: Court of Criminal Appeal (NSW)
Date: 21 March 2016
Judges: Basten JA, Johnson J, R A Hulme J

Background

The appellant was tried jointly with two co-accused for the murder of a woman at Corrimal in October 2011. The Crown alleged a joint criminal enterprise in which the victim's bedroom was doused in petrol and set alight in the early hours of the morning, killing her. The appellant's alleged role was to act as an intermediary between co-offenders and to assist in arranging payment for their involvement.

The principal evidence against the appellant included a covertly recorded conversation, made seven weeks after the murder, in which she appeared to describe instructions she had given to her partner about what he was to do to the victim. She attempted to explain those statements as a "manner of speech," though her overall credibility was significantly damaged by evidence that she had provided false accounts to police on multiple occasions.

The jury convicted the appellant on 11 April 2014, and she was sentenced to 20 years' imprisonment with a 14-year non-parole period. She appealed against her conviction on four grounds.

  • Whether a miscarriage of justice occurred because the trial judge warned the jury to treat the appellant's own evidence with "considerable caution" on the basis that she might reasonably be supposed to have been criminally concerned in the events, when that evidence was not being used by the Crown against a co-accused.
  • Whether the trial judge erred in failing to direct the jury on the element of "participation" in the joint criminal enterprise.
  • Whether the verdict was unreasonable or unsupported by the evidence.
  • Whether the trial judge erred in directing the jury on extended joint criminal enterprise and the requisite mental state, in light of possible reconsideration of existing High Court authority.

Decision

Ground 1 (unreliability warning): Upheld. The trial judge gave the jury a warning under s 165 of the Evidence Act 1995 (NSW), directing them to treat the appellant's own evidence with "considerable caution" because she might reasonably be supposed to have been criminally concerned in the relevant events. The Court found this warning was erroneous: such a warning is designed to protect co-accused from unreliable evidence given against them by a criminally involved witness. Here, the appellant's evidence was not relied upon by the Crown against any co-accused at the relevant time. Directing the jury to approach her own account of events with heightened suspicion had the capacity to deflect the jury from properly assessing her evidence, and an attempted clarification during summing-up was found to be ineffective.

The Court also declined to apply the proviso (which would have allowed the conviction to stand despite the error if no substantial miscarriage of justice had actually occurred). The misdirection went to the root of the proceedings: it deprived the appellant of her right to have the jury assess her evidence without an unwarranted cloud of suspicion. The Court could not be satisfied that no substantial miscarriage of justice had occurred.

Grounds 2 and 3 (participation directions; unreasonable verdict): Dismissed. The Court found no error in the trial judge's approach to directing the jury on participation in the joint criminal enterprise. The verdict was also found to be neither unreasonable nor unsupported by the evidence. In particular, the recorded conversation with Ms Gallagher provided a cogent basis upon which the jury could be satisfied beyond reasonable doubt of the appellant's encouragement and facilitation of the plan to cause serious harm to the deceased. The appellant's credibility was further undermined by the substantial body of evidence that she had fabricated accounts for police.

Ground 4 (mental state for extended joint criminal enterprise): Dismissed. Senior counsel for the appellant frankly acknowledged that this ground was raised protectively, in anticipation of a possible reconsideration by the High Court of the established authority in McAuliffe v The Queen [1995] HCA 37. The Court noted the recent UK Supreme Court and Privy Council decision in R v Jogee but confirmed that it remained bound by existing High Court authority. The ground was rejected.

Basten JA added a note on accessorial liability directions more generally, cautioning against language that departs from the established principles set out in Part 9 of the Crimes Act 1900 (NSW). His Honour observed that the use of terms such as "joint criminal enterprise," "agreement," and "acts of participation" risks obscuring settled legal concepts and may generate unnecessary complexity for juries.

Orders Made

  • Appeal against conviction upheld.
  • Conviction and sentence for the murder of Katherine Foreman quashed.
  • New trial ordered pursuant to s 8 of the Criminal Appeal Act 1912 (NSW).

Key Takeaways

  • A s 165 Evidence Act 1995 (NSW) unreliability warning directed at a witness who might reasonably be supposed to have been criminally concerned is misapplied when the evidence in question is not being tendered by the Crown against a co-accused; giving such a warning in those circumstances constitutes a misdirection capable of causing a substantial miscarriage of justice.
  • Where a misdirection constitutes a fundamental departure from the essential requirements of a fair criminal trial, the proviso (permitting a conviction to stand despite error) will not be applied, even where other evidence against the appellant was strong.
  • No error was established in the trial judge's failure to give specific directions on "participation" as a discrete element of joint criminal enterprise liability; the Court reaffirmed that accessorial liability is governed by the established principles in Part 9 of the Crimes Act 1900 (NSW).
  • The Court of Criminal Appeal confirmed that it remains bound by McAuliffe v The Queen on the requisite mental state for extended joint criminal enterprise, notwithstanding the UK Supreme Court's departure from equivalent doctrine in R v Jogee [2016] UKSC 8.
  • Basten JA observed that the drift toward using colloquial formulations such as "joint criminal enterprise," "agreement," and "acts of participation" in jury directions risks obscuring well-established legal principles and should be approached with care.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 345, 346, Part 9
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8
- Evidence Act 1995 (NSW), s 165

Cases
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Huynh v The Queen; Duong v The Queen; Sem v The Queen [2013] HCA 6; 87 ALJR 434
- Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- R v Abusafiah (1991) 24 NSWLR 531
- ARS v R [2011] NSWCCA 266
- Proud v R [2016] NSWCCA 41
- R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979
- R v Spicer [2015] NSWSC 519