Citation: Brown v R [2019] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 12 August 2019
Judges: Basten JA, Johnson J, Price J (reasons delivered by Price J)
Background
The appellant was convicted by a jury of two offences following a series of events on the evening of 3 February 2017: being carried in a stolen motor vehicle (count 1) and firing a .22 calibre firearm in a public place at Wyndarra Way, Koonawarra (count 2). The jury acquitted him of a first drive-by shooting at Dale Street, Penrose (count 3) and of destruction of property by fire (count 4).
The Crown case rested on joint criminal enterprise. The Crown did not allege that the appellant personally fired any shots. Rather, the Crown alleged that the appellant and a co-offender had reached an understanding or agreement to commit the offences, and that the co-offender carried out the shootings in accordance with that arrangement.
The appellant was a rear-seat passenger throughout the relevant events. His position at trial was that he had no prior knowledge the co-offender possessed a firearm, that the first shooting came as a complete surprise, and that he was nothing more than an unwitting passenger. He did not give evidence at trial.
Legal Issues
- Whether the guilty verdict on count 2 (the second shooting at Wyndarra Way) was unreasonable or unsupported by the evidence.
- Whether the jury's acquittal on count 3 (the first shooting at Dale Street) rendered the guilty verdict on count 2 inconsistent or logically incompatible.
- Whether it was open to the jury to find, on the circumstantial evidence, that the appellant was a party to a joint criminal enterprise in respect of the second shooting, even if reasonable doubt existed as to his knowledge before the first shooting.
Decision
Price J (with whom Basten JA and Johnson J agreed) dismissed the appeal, holding that the guilty verdict on count 2 was clearly open to the jury on the evidence. The court conducted its own independent assessment of the evidence and concluded there was ample basis for the jury to be satisfied beyond reasonable doubt that the appellant had reached an understanding or arrangement with the co-offender that the co-offender would fire the firearm at Wyndarra Way, and that the co-offender did so in accordance with that continuing arrangement.
The court accepted that the acquittal on count 3 was rationally explicable. The first shooting raised a distinct intermediate factual question: whether the appellant knew, before it occurred, that the co-offender possessed a firearm. The jury was entitled to give the appellant the benefit of the doubt on that question in respect of the first shooting. However, once the first shooting had occurred, the co-offender's possession and willingness to use a firearm was no longer a matter of inference. By the time of the second shooting, the appellant had direct knowledge of both facts. The jury could therefore rationally conclude that participation in a continuing joint enterprise was established for count 2 but not count 3.
The court also rejected the argument that the acquittal on count 4 (destruction of the vehicle) created any inconsistency. The evidence suggested the stolen vehicle was found burning in a location close to where the co-offender was living but further from the appellant's home, raising the reasonable possibility that the appellant had already been dropped off before the vehicle was destroyed. The court quoted Simpson JA in AH v R [2019] NSWCCA 152 for the proposition that differential verdicts can actually demonstrate the jury carefully discharged its obligation to consider each count separately, rather than indicating any failure in its reasoning.
The court further held that the jury was entitled to reject the appellant's alternative hypotheses: that he remained in the vehicle out of shock or fear following the first shooting, or that everything that occurred that evening came as a complete surprise to him. Those were not, on the whole of the evidence, reasonable possibilities that the jury was bound to accept.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A jury acquittal on one count in a joint criminal enterprise case does not automatically render a guilty verdict on a closely related count inconsistent or unreasonable, provided there is a rational basis for distinguishing between the counts on the evidence.
- Where knowledge of an intermediate fact (such as a co-offender's possession of a firearm) is genuinely uncertain before a first incident, that same uncertainty cannot persist after the incident has occurred and been directly witnessed by the accused. The Court of Criminal Appeal confirmed that the jury was entitled to treat the two shootings differently on this basis.
- Differential verdicts can reflect careful jury reasoning rather than error. Citing AH v R, the court affirmed that returning different verdicts across counts can demonstrate the jury applied separate scrutiny to the evidence relevant to each charge.
- In a circumstantial case, the prosecution must exclude reasonable hypotheses consistent with innocence. However, the jury is not obliged to accept every alternative explanation offered by a defendant, particularly where the overall evidence supports guilt beyond reasonable doubt.
- Sufficient evidence existed for the jury to find joint criminal enterprise established for the second shooting, even though the Crown did not allege the appellant personally fired any shots or played an active physical role in the events.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93G (firing firearm in public place), 154A (taking conveyance without consent), 195 (destroying property by fire)
Cases:
- AH v R [2019] NSWCCA 152
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- Sio v R [2015] NSWCCA 42
- The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35