Citation: R v Le; R v Loeung [2019] NSWSC 632
Court: Supreme Court of New South Wales
Date: 31 May 2019
Judge(s): N Adams J
Background
In the early hours of 12 February 2016, nine men arrived at a residential address in Bonnyrigg, armed with beer bottles, acting on false information that the two accused had assaulted one of their group. In fact, the two accused had earlier intervened to stop that man from assaulting his own girlfriend. The group commenced a serious assault on one of the accused as soon as they arrived.
CCTV footage captured the ensuing melee. One accused was filmed using a large knife to assault several of the attackers, and four men were stabbed. One later died. As the attackers retreated to their cars, both accused briefly re-entered the house and emerged approximately 26 seconds later: one now carrying two knives instead of one, and the other (previously unarmed) now carrying a knife. They ran together toward a car that had remained stationary across the street. The driver of that car was stabbed in the leg.
The two accused were jointly charged on count 7 of the indictment with being armed with a weapon (three knives in total) with intent to commit an indictable offence, namely assault, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW). The charge was framed on the basis of joint criminal enterprise. At the close of the Crown case, counsel for both accused applied for directed verdicts of not guilty on that count.
Legal Issues
- Whether the Crown evidence on count 7 was capable, if accepted, of supporting a guilty verdict, applying the test in Doney v R (1990) 171 CLR 207.
- Whether the only rational inference available on the evidence was that each accused acted independently, rather than pursuant to a joint criminal enterprise.
- Whether the existence of a competing inference (that the two men made separate decisions to re-arm) meant the Crown case was fatally deficient.
Decision
Adams J applied the established principle from Doney v R: a trial judge must direct a verdict of not guilty only where, taking the evidence at its highest, a jury could not properly convict. The question is not whether the evidence will probably lead to conviction, but whether it is capable of supporting one.
The court identified several pieces of evidence capable of supporting the joint enterprise inference. The CCTV footage showed the two men running into the house together and re-emerging together, with each now armed. Both men admitted in their electronically recorded interviews (ERISPs) to carrying knives and approaching the car. Witnesses in the car described more than one person approaching. One accused's ERISP used the language "we" when describing the actions at the car, including "we rushed back out" and "what we did."
Adams J acknowledged a competing inference existed: that each man independently decided to re-arm and run outside, without any agreement between them. However, the court confirmed that the existence of a competing inference does not, by itself, require a directed verdict. The question at the directed verdict stage is whether the inference of joint enterprise could rationally be drawn, not whether it is the only or most compelling inference available.
The court also expressed reservations about the prosecutorial decision to charge count 7 as joint criminal enterprise at all, noting that both men had effectively admitted their own possession and presence, and that joint enterprise is typically used where it is impossible to identify which participant committed which act. That observation did not, however, affect the legal conclusion: the evidence was capable of supporting the charge, and the applications were dismissed.
Orders Made
- Applications for directed verdicts on count 7 dismissed.
Key Takeaways
- A directed verdict of not guilty is required only where, taking Crown evidence at its highest, no jury could properly convict. The threshold is capability, not probability, of supporting a conviction.
- The existence of a competing inference does not automatically defeat a Crown case at the directed verdict stage. A jury is entitled to choose between competing rational inferences, and this is a function reserved for the jury, not the trial judge.
- Under the joint criminal enterprise doctrine, the Crown must establish a common agreement or spontaneous joint understanding. Here, the court found that circumstantial evidence (co-location, timing, simultaneous re-arming, admissions using first-person plural language) was collectively capable of supporting that inference.
- Adams J noted, without deciding the charging question, that joint criminal enterprise is ordinarily engaged where it cannot be determined which co-offender performed a particular act. Where each accused's individual acts are independently established, the doctrinal need for joint enterprise may be less apparent.
- Both accused were ultimately convicted by the jury on count 7 following the dismissal of the directed verdict applications, confirming the jury's role as the tribunal of fact on contested inferences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 114(1)(a)
Cases
- Doney v R (1990) 171 CLR 207; [1990] HCA 51
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Blundell v R [2019] NSWCCA 3
- Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397
- R v Bilick and Starke (1984) 36 SASR 322
- R v JMR (1991) 57 A Crim R 39