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Court of Criminal Appeal 31 July 2019

Ng v R

[2019] NSWCCA 172

Assault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT ACCUSED TO COMMIT A CRIME WHERE CROWN CASE WAS CIRCUMSTANTIAL

Citation: Ng v R [2019] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 31 July 2019
Judges: Gleeson JA; Harrison J; N Adams J

Background

The appellant was charged with one count of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The Crown alleged he drove a co-accused, Mr Palenapa-Pili, to a laneway in Rydalmere, waited nearby, and collected him immediately after Mr Palenapa-Pili struck a food delivery worker with a hammer, causing facial lacerations. Nothing was stolen from the victim, who had approximately $8,000 in cash on his person at the time.

The Crown did not allege the appellant physically participated in the assault. Instead, it alleged he was a party to either a joint criminal enterprise to wound the victim with intent to cause grievous bodily harm, or, on an extended basis, an agreement to assault or intimidate the victim while foreseeing the possibility that Mr Palenapa-Pili would wound him with that intent. Mr Palenapa-Pili had separately pleaded guilty to the same offence and was convicted and sentenced.

The appellant did not give or call any evidence at trial. His counsel accepted that he was present nearby in a vehicle, knew the co-accused, exchanged text messages with him, and collected him after the assault. The sole issue at trial was whether the evidence established the necessary agreement to commit the specific offences charged.

  • Whether the jury's guilty verdict was unreasonable and could not be supported by the evidence.
  • Whether, on a circumstantial Crown case, the evidence was sufficient to satisfy the jury beyond reasonable doubt that the appellant had entered into a joint criminal enterprise or extended joint criminal enterprise with the co-accused.
  • Whether the inference of a specific criminal agreement was the only rational inference available from the evidence, or whether other rational inferences remained open.

Decision

The Court of Criminal Appeal unanimously allowed the appeal, finding the verdict was unreasonable. Gleeson JA delivered the leading judgment, with Harrison J and N Adams J agreeing, N Adams J noting she had independently examined the trial evidence before reaching the same conclusion.

The central requirement for both joint criminal enterprise liability and extended joint criminal enterprise liability is proof of an agreement to commit a crime. The agreement need not be express and may be inferred from all the circumstances, including the acts of the participants. However, where the Crown case is entirely circumstantial, the Crown must establish that a specific criminal agreement is the only rational inference open on the evidence.

The Court accepted that the Crown's six principal factors, examined by Gleeson JA, established that the appellant drove the co-accused to a specific destination for $250 and lied to police about it. Those facts were not in dispute. What the evidence did not exclude, however, was the possibility that the appellant was no more than an accessory after the fact to an assault committed by Mr Palenapa-Pili acting alone, without any prior agreement as to the nature or intent of the attack.

Because the evidence was equally consistent with an innocent or less culpable explanation, the jury ought to have entertained a reasonable doubt. The verdict could not be supported, and a judgment of acquittal was directed rather than an order for retrial.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction of the appellant quashed.
  • Judgment and verdict of acquittal directed for the appellant.

Key Takeaways

  • Proof of an agreement to commit a specific crime is an essential element of both joint criminal enterprise and extended joint criminal enterprise liability; driving a co-accused to a location and collecting him afterwards does not, without more, establish such an agreement.
  • Where the Crown case is circumstantial, a conviction requires that the specific criminal agreement be the only rational inference available from the evidence; evidence equally consistent with accessorial liability after the fact will not suffice.
  • The Court of Criminal Appeal confirmed the established principle from McAuliffe v The Queen (1995) and Miller v The Queen (2016) that the existence and scope of a criminal agreement may be inferred from conduct, but the inference must be the only rational one open.
  • A verdict is unreasonable where the evidence leaves open a rational alternative inference consistent with innocence or lesser culpability, and in those circumstances the court will direct an acquittal rather than order a retrial.
  • Extended joint criminal enterprise liability requires not only that the accused foresaw the possibility of the incidental crime, but that this foresight arose within the context of a pre-existing agreement to commit a lesser crime; the absence of evidence for that underlying agreement was fatal to the Crown's case here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 347
- Criminal Appeal Act 1912 (NSW), ss 5, 8
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14

Cases:
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Blundell v R [2019] NSWCCA 3
- Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
- Dickson v R [2017] NSWCCA 78
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
- R v Cook [2004] NSWCCA 52
- R v Taufahema (2007) 228 CLR 232; [2007] HCA 11