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Court of Criminal Appeal 1 February 2019

Blundell v R

[2019] NSWCCA 3

HomicidePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION ACCESSORIAL LIABILITY CRIMES ACT 1900 (NSW) S 346 WHETHER RECKLESSNESS SUFFICES “LINKED IN PURPOSE”

Citation: Blundell v R [2019] NSWCCA 3
Court: Court of Criminal Appeal, New South Wales
Date: 1 February 2019
Judge(s): Payne JA, Johnson J, N Adams J (unanimous)

Background

The appellant was convicted by a jury in 2016 as an accessory before the fact to murder, following the killing of the deceased by a third party using a tomahawk. The appellant was not present at the scene. The Crown case rested entirely on words: the appellant had allegedly encouraged and assisted the principal offender through text messages and Facebook messages in the period leading up to the killing. Among the messages relied upon were instructions to the principal offender to "jump on his head" if he saw the deceased, and a message referencing chopping a finger.

The principal offender was separately convicted of the murder after making admissions. The appellant's defence was that the deceased's death resulted from the principal offender's spontaneous acts, and that any encouragement the appellant had provided did not cause or contribute to the killing. The Crown expressly disavowed any reliance on joint criminal enterprise or extended joint criminal enterprise as a basis for liability.

The appellant appealed against his conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW), raising two grounds of appeal relating to errors in the trial judge's directions to the jury.

  • Whether the trial judge erred in directing the jury that it was unnecessary to prove that the appellant's words of encouragement actually encouraged the principal offender
  • Whether the trial judge failed to give adequate directions on causation in an accessory before the fact case
  • Whether the trial judge erred in directing the jury that assisting and encouraging is a continuous act persisting until the principal offence is committed
  • Whether the trial judge erred in failing to direct the jury that recklessness is insufficient to establish the knowledge required for accessory before the fact liability
  • Whether the trial judge impermissibly imported concepts from joint criminal enterprise into directions concerning accessorial liability

Decision

The Court of Criminal Appeal, in reasons delivered by N Adams J (with Payne JA and Johnson J agreeing), allowed all grounds of appeal except Ground 1(a). The court was not satisfied that adequate directions had been given to the jury on the elements of accessory before the fact liability, and concluded that the trial had miscarried.

On Ground 1(a), the court found no error in the trial judge's direction that proof of actual encouragement of the principal offender was not strictly required. The court accepted that a person can be an accessory before the fact by providing assistance or encouragement that renders the commission of the offence more likely, even if the principal offender was not consciously influenced by that assistance.

On Grounds 1(b), 1(c), and 1(d), the court found that the jury had not been properly directed. Directions on causation were insufficient for the particular circumstances of this case. The direction that encouraging and assisting is a continuous act was found to be erroneous in the context of these facts, where the Crown's case was based on words spoken before, not during, the killing. The absence of any direction that recklessness does not suffice for accessory liability, and the failure to adequately direct the jury on the requisite knowledge, were also held to constitute errors.

On Ground 2, the court found that the trial judge had impermissibly introduced concepts drawn from joint criminal enterprise, including the language of "enterprise", "design", and acting "with a view" to a particular result. Since the Crown had expressly disavowed reliance on joint criminal enterprise, introducing that conceptual framework was apt to confuse the jury about the true question: whether the appellant had contributed to the principal offender's crime. The court emphasised that accessorial liability and joint criminal enterprise are distinct doctrines grounded in different principles.

Orders Made

  • Leave granted under Rule 4 of the Criminal Appeal Rules 1952 (NSW) to the extent required
  • Appeal allowed
  • New trial ordered
  • Matter listed for mention in the Supreme Court Arraignments List on 8 February 2019 or such other date as directed by the Criminal List Judge

Key Takeaways

  • Accessory before the fact liability and joint criminal enterprise are distinct doctrines: the former requires proof that the accused contributed to the principal's crime, while the latter concerns mutual embarkation on a crime. Conflating the two in jury directions constitutes a misdirection.

  • A direction that proof of actual encouragement is unnecessary does not itself constitute error, provided the jury is properly directed that liability requires the accused's conduct to have rendered the commission of the offence more likely.

  • Recklessness is not sufficient to establish the mental element required for accessory before the fact liability. The trial judge's failure to direct the jury on this point was a material error in the circumstances.

  • Where a Crown case is brought solely on principles of accessorial liability and expressly disavows any reliance on joint criminal enterprise, directions employing the language of "enterprise" or "design" are inappropriate and risk unfairness.

  • The Court of Criminal Appeal confirmed that, where a trial involves complex secondary liability issues, clear and accurate jury directions tailored to the precise basis on which the Crown puts its case are essential to the integrity of the verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 346, 351
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules 1952 (NSW), r 4
- Accessories and Abettors Act 1861 (UK), s 8

Cases
- Giorgianni v R (1985) 156 CLR 473 (HCA)
- Likiardopoulos v The Queen (2012) 247 CLR 265 (HCA)
- Osland v The Queen (1998) 197 CLR 316 (HCA)
- Miller v The Queen (2016) 259 CLR 380 (HCA)
- McAuliffe v The Queen (1995) 183 CLR 108 (HCA)
- Johns v The Queen (1980) 143 CLR 108 (HCA)
- Clayton v The Queen (2006) 81 ALJR 439 (HCA)
- R v Jogee [2016] UKSC 8
- R v Calhaem [1985] QB 808
- Obeid v R (2017) 96 NSWLR 155 (NSWCCA)
- Hadchiti v R (2016) 93 NSWLR 671 (NSWCCA)
- Greenhalgh v R [2017] NSWCCA 94
- ARS v R [2011] NSWCCA 266
- R v Dookheea (2017) 91 ALJR 960 (HCA)