Citation: Carlyle-Watson v R [2019] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 27 September 2019
Judge(s): Payne JA; Garling J; Wright J
Background
The appellant was one of several men present during incidents of aggravated sexual assault on a 16-year-old complainant at a social gathering in May 2015. The events were partly recorded on a GoPro camera. The complainant's intoxication was the basis upon which the Crown alleged she had not consented.
The appellant was tried alongside two co-accused in the District Court. He was convicted on one count of aggravated sexual intercourse without consent, in company, contrary to s 61J of the Crimes Act 1900 (NSW). The Crown case was that he was present in the room while another man (Mr Waters) had penile-vaginal intercourse with the complainant, and that the appellant encouraged or assisted that conduct.
The appellant was not the principal offender on the count for which he was convicted. His liability turned entirely on whether he was guilty as an accessory present at the scene or as a party to a joint criminal enterprise. That distinction, and how it was communicated to the jury, formed the heart of the appeal.
Legal Issues
- Whether the trial miscarried because the basis of the Crown case (accessorial liability versus joint criminal enterprise) was never clearly identified for the jury
- Whether the trial judge impermissibly conflated the concept of "in company" with "common purpose," confusing two distinct legal doctrines
- Whether the written and oral jury directions failed to distinguish between the elements required for a principal offender and those required for an accessory
- Whether the jury was incorrectly left with the impression that recklessness as to the complainant's consent was sufficient for accessorial liability, when the law requires actual knowledge
Decision
The Court of Criminal Appeal, with Garling and Wright JJ agreeing with Payne JA, allowed the appeal on all four grounds.
On the first three grounds, the Court found that the Crown opened its case to the jury on the basis of a joint criminal enterprise, requiring proof of an agreement that the principal offender would have sexual intercourse with the complainant without her consent. However, the jury was never told that this case theory had been abandoned or modified. References to joint criminal enterprise elements appeared throughout the Crown's opening and the trial judge's written and oral directions, without any clear signal that the applicable theory had changed. Applying Blundell v R [2019] NSWCCA 3, which detailed the critical differences between accessorial liability and joint criminal enterprise, the Court found it was not possible to conclude the appellant had been properly tried as an accessory.
On the fourth ground, the Court held that the jury was left with the clear impression that recklessness about whether the complainant was consenting was a sufficient mental state for a guilty verdict. This was a misdirection. Applying the High Court's decision in Giorgianni v The Queen (1985) 156 CLR 473, the Court confirmed that an accessory can only be convicted if, knowing all the essential facts that make the act a crime, the person intentionally aided, abetted, counselled, or procured the principal offender. Neither negligence nor recklessness satisfies that requirement.
The Court declined to apply the proviso under s 6 of the Criminal Appeal Act 1912 (NSW), which would have allowed the conviction to stand despite the errors if no substantial miscarriage of justice had occurred. It could not be excluded that, had the correct directions been given, the jury might have acquitted the appellant. The conviction was set aside and the matter remitted to the District Court.
Orders Made
- Leave to appeal against conviction granted
- Leave to appeal against sentence refused
- Appeal against conviction allowed
- Conviction set aside
- Matter remitted to the District Court arraignment list on 4 October 2019
Key Takeaways
- Accessorial liability and joint criminal enterprise are legally distinct doctrines, and jury directions must clearly identify which basis of liability the Crown relies upon; conflating the two can constitute a miscarriage of justice.
- Under Giorgianni v The Queen, an accessory present at the scene of a crime must have actual knowledge of all the essential facts that make the principal's act a criminal offence; recklessness as to those facts is not sufficient.
- Where a Crown case is opened to a jury on the basis of joint criminal enterprise but that theory is subsequently modified or abandoned, the jury must be told clearly and explicitly of that change.
- The Court of Criminal Appeal refused to apply the proviso to preserve the conviction, finding it could not conclude that a properly directed jury would inevitably have convicted the appellant, notwithstanding the existence of GoPro footage.
- Proof that a principal offender committed a non-consensual act, and proof that a person present knew that act was non-consensual, is not the same as proof that those present agreed to participate in a non-consensual act; agreement and awareness are not coextensive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
Cases:
- Blundell v R [2019] NSWCCA 3
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
- Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
- KA v R [2015] NSWCCA 111
- Kalbasi v Western Australia [2018] HCA 7; 92 ALJR 305
- Kupferberg (1919) 13 Cr App R 166
- OKS v Western Australia [2019] HCA 10; 93 ALJR 438
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Button (2002) 54 NSWLR 455; [2002] NSWCCA 159
- R v Clarkson [1971] 1 WLR 1402; [1971] 3 All ER 344
- R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29
- United States v Peoni 100 F 2d 401 (1938)