Citation: R v Ng [2018] NSWDC 145
Court: District Court of New South Wales
Date: 1 March 2018
Judge(s): Wilson SC DCJ
Background
The accused stood trial on an indictment for wounding with intent to cause grievous bodily harm. The Crown case proceeded not on the basis that the accused was the person who carried out the attack, but on the basis that he was criminally liable as a party to a joint criminal enterprise, or an extended joint criminal enterprise, with the principal offender.
The alleged offence occurred in a street in Rydalmere, where the complainant was attacked while making a delivery. The principal offender struck the complainant and then walked quickly from the scene, entering the passenger side of a blue Holden Commodore that had been travelling slowly along the street. The accused was the registered driver of a blue Holden Commodore with a registration plate closely matching that recorded by an eyewitness at the scene.
The Crown case was largely circumstantial. It rested on the proximity of the accused's vehicle to the attack, CCTV footage, SMS messages showing prior contact between the accused and the principal offender, a payment made by the principal offender to the accused later that day, and the accused's lies to police in a subsequent interview.
Legal Issues
- Whether there was a prima facie case sufficient to leave to the jury, applying the "no case to answer" standard from May v O'Sullivan and Doney v R
- Whether the evidence, taken at its highest, permitted a reasonable inference that the accused was party to an agreement with the principal offender to assault or wound the complainant
- Whether the accused's presence in the vehicle a short distance from the scene, combined with the circumstantial evidence, was sufficient to establish his participation in a joint criminal enterprise
Decision
The applicable legal test: On an application for a verdict by direction, the court must determine whether there is evidence capable of proving each element of the offence beyond reasonable doubt, taking the Crown case at its highest (at [18]). Where the Crown case is circumstantial, the court considers the inferences most favourable to the Crown and does not choose between competing inferences or direct acquittal merely because other reasonable inferences are open (at [19]).
The contested element: There was no dispute that the complainant was wounded with the requisite intent. The sole issue was whether the evidence established, directly or by inference, that the accused was party to an agreement with the principal offender to wound or assault the complainant (at [22]). There was no direct evidence of such an agreement (at [23]).
The Crown's circumstantial case: The Crown relied on the totality of the evidence rather than any single express inference, including the accused's vehicle being driven slowly near the scene before and after the attack, the principal offender entering the accused's car immediately after the assault, prior SMS communications, and the subsequent payment (at [29]-[30]). The trial advocate acknowledged there was no specific inference standing alone to establish the case, but submitted the cumulative picture raised a reasonable inference of an agreement to assault or intimidate (at [30]).
Rejection of the application: The court was satisfied that the cumulative evidence gave rise to a reasonable inference of an agreement between the accused and the principal offender to assault or intimidate the complainant (at [31]). The lies told by the accused to police demonstrated consciousness of guilt, which reinforced that conclusion and provided further basis for the case to be left to the jury (at [31]-[32]).
Orders Made
- The application by the accused for a verdict by direction is dismissed.
Key Takeaways
- A no-case application in a circumstantial Crown case does not require the court to select between competing inferences; the court takes the inferences most favourable to the Crown and asks only whether a conviction is reasonably open (at [19]).
- Where joint criminal enterprise is alleged, direct evidence of an agreement is not essential; a reasonable inference of an agreement drawn from the totality of the circumstantial evidence is sufficient to withstand a no-case application (at [23], [31]).
- Consciousness of guilt established through lies told to police formed a distinct and significant component of the Crown's circumstantial case, reinforcing the inference of participation in the enterprise (at [17], [31]).
- The District Court confirmed that physical presence at the precise scene of an attack is not required for joint criminal enterprise liability; proximity in a getaway vehicle was capable of supporting the inference of a shared criminal purpose (at [25], [31]).
- Sufficient evidence existed, when considered cumulatively rather than element by element in isolation, to justify the matter proceeding to jury determination (at [31]-[32]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Doney v R (1990) 171 CLR 207
- May v O’Sullivan (1955) 92 CLR 654
- Osland v The Queen [1998] 197 CLR 316
- R and Tangye (1997) 92A Crim R 545
- R v Bilick (1984) 36 SASR 321
- R v JMR (1991) 57 A Crim R 39
- R v JMR (1991) 57 A Crim R 39