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34
Court of Criminal Appeal 28 April 2017

Dickson v R

[2017] NSWCCA 78

Also reported as (2017) 94 NSWLR 476
Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER JURY WAS MISDIRECTED AT TRIAL

Citation: Dickson v R [2017] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 28 April 2017
Judge(s): Bathurst CJ (principal judgment); Johnson J and Fullerton J (agreeing)

Background

The appellant was convicted after a jury trial of five offences arising from a series of residential break-and-enters and thefts at Sylvania Waters in the early hours of 14 August 2013. The offences included three counts of aggravated break, enter and steal, one count of stealing a motor vehicle, and one count of stealing a box trailer. The appellant was tried alone, despite three alleged co-offenders being identified.

The Crown did not call any witness who directly observed the appellant or his co-offenders committing the offences. Instead, the Crown's case rested on a series of intercepted phone calls recorded between 13 August and 29 August 2013, together with mobile phone tower data placing the appellant in the Sylvania Waters area from just before midnight on 13 August until approximately 3:30am on 14 August 2013.

The Crown alleged a joint criminal enterprise: the appellant and three co-offenders agreed to travel to Sylvania Waters, break into houses, steal property, sell the stolen goods, and divide the proceeds. Following conviction, the appellant was sentenced to four years' imprisonment with a non-parole period of two years and three months. He appealed against conviction only.

  • Whether the jury verdicts were unreasonable or unsupportable having regard to the evidence, specifically because: (a) the appellant was not proved to be a party to a specific agreement to commit the offences; and/or (b) the appellant was not proved to be present when each offence was committed.
  • Whether the trial judge erred in directing the jury on joint criminal enterprise by failing to direct that the jury must be satisfied the appellant was present at the scene when each offence was committed before it could find him guilty.

Decision

On the presence requirement. The Court confirmed that mere membership of an agreement is insufficient to ground liability under joint criminal enterprise. A person must also participate in the commission of the offence in some way. However, physical presence at the actual commission of the crime is sufficient but not necessary to establish participation. A person who furthers the execution of the agreed enterprise in some other way can equally be liable, even if absent from the scene.

On the jury directions. The Court held that the trial judge's directions adequately conveyed that the appellant could only be found guilty if, in addition to entering the agreement, he participated in the agreed criminal activity. There was no obligation on the trial judge to direct the jury to acquit unless it was satisfied the appellant was physically present during each offence. The directions were not apt to mislead.

On the reasonableness of the verdicts. The Court found it was open to the jury, on the circumstantial evidence as a whole, to conclude beyond reasonable doubt that the appellant was guilty on each count. The mobile phone data placed him in the area throughout the relevant period, and the intercepted post-offence calls demonstrated his knowledge of and financial interest in the proceeds of the stolen property. The Court considered that his involvement in discussions about selling stolen bicycles, and his apparent awareness of those efforts, supported an inference of participation in the enterprise.

On the specificity of the agreement. The Court rejected the argument that the agreement lacked sufficient specificity to found liability for the particular items stolen. It was open to the jury to conclude that the agreement, although broadly framed, ultimately extended to encompass the specific items the subject of each count. That was sufficient to fix the appellant with liability for those thefts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under joint criminal enterprise principles, a party to an agreement to commit a crime does not incur liability for that crime merely by virtue of having agreed. The person must also participate in furtherance of the enterprise's execution.
  • Physical presence at the scene of the crime is one way to establish participation, but it is not the only way. Participation in furtherance of the enterprise by other means can also satisfy the requirement, even in the absence of the person from the scene at the critical time.
  • In dismissing the appeal, the Court confirmed that a trial judge is not obliged to direct a jury that it must be satisfied an accused was physically present at the commission of each offence before returning a guilty verdict on a joint criminal enterprise basis.
  • Sufficient circumstantial evidence existed, including mobile phone tower data and intercepted communications about the disposal of stolen property, to support the jury's verdicts beyond reasonable doubt.
  • Where an agreement is broadly framed (for example, to break into houses and steal whatever is available), it can still ground liability for the specific items ultimately stolen if the jury is satisfied the agreement encompassed those items.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules (NSW)

Cases
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Huynh v The Queen (2013) 87 ALJR 434; [2013] HCA 6
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 7
- McAuliffe v The Queen (1995) 183 CLR 108
- Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37
- Likiardopoulos v R (2010) 30 VR 654; [2010] VSCA 344
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 608; [2002] HCA 53
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35
- R v Bingley & Ors (1821) Russ. and Ry. 446; 168 ER 890
- R v Morgan [1994] 1 VR 567
- R v Franklin (2001) 3 VR 9
- R v Lowery & King (No 2) (1972) VR 560 (distinguished)
- Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3
- ARS v R [2011] NSWCCA 266
- FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182
- Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131
- R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480
- Picken v R; R v Picken [2007] NSWCCA 319