AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 30 September 2022

R v Fernando & Ors

[2022] NSWSC 1332

Assault & violenceHomicide
CRIMINAL LAW MURDER TRIAL BY JUDGE ALONE JOINT TRIAL OF SEVEN CO ACCUSED EXTENDED JOINT CRIMINAL ENTERPRISE

Citation: R v Fernando & Ors [2022] NSWSC 1332
Court: Supreme Court of New South Wales
Date: 30 September 2022
Judge: Fullerton J

Background

Seven accused were charged with the murder of a man who was fatally assaulted in a carpark at a residential unit block at Girraween on 30 December 2019. The Crown alleged that five of the accused physically participated in the assault, while two others were present and encouraged the assault by their presence. The deceased suffered catastrophic blunt force head injuries and died in hospital the following day.

The trial commenced as a jury trial but, following pre-trial evidentiary rulings that excluded significant Crown evidence against five of the accused, all parties agreed to convert the proceedings to a judge-alone trial under the Criminal Procedure Act 1986 (NSW). Each accused pleaded not guilty and none gave evidence at trial.

The Crown's case was entirely circumstantial. There were no eyewitnesses to the assault, and the available evidence consisted primarily of CCTV footage, telephone and text message records, electronically recorded interviews given by three accused, and forensic and pathology evidence.

  • Whether the Crown had established, beyond reasonable doubt, a joint criminal enterprise among the accused to assault the deceased and cause him harm.
  • Whether, on the basis of extended joint criminal enterprise, each accused foresaw the possibility that one or more co-offenders would inflict grievous bodily harm with the intention of causing harm of that kind.
  • Whether the circumstantial evidence was sufficient to exclude all reasonable hypotheses consistent with innocence.
  • Whether the Crown's particularised case regarding the formation and nature of the agreement had been proven to the requisite standard.

Decision

The Crown abandoned its initial alternative basis of liability, namely a joint criminal enterprise to inflict grievous bodily harm without more (known as a "joint criminal enterprise simpliciter"), at the close of its own evidence. The case against all seven accused then rested solely on extended joint criminal enterprise. Under this doctrine, a party to a joint criminal enterprise to do an unlawful act can be liable for a further offence committed by a co-party if that party foresaw the possibility that the further offence might be committed in the course of the enterprise.

Fullerton J found that the Crown had failed to establish the joint criminal enterprise agreement as particularised. The Crown case required proof, beyond reasonable doubt, of a pre-existing agreement among the accused to assault the deceased, formed before 30 December 2019 and motivated by alleged retribution for a sexual assault said to have been committed against one of the accused. The circumstantial evidence was insufficient to exclude reasonable hypotheses inconsistent with the existence of such an agreement in the terms alleged.

Even accepting that a group of people arrived at the deceased's home and that some physical altercation occurred, the Court found the evidence did not compel the conclusion that each accused was party to an agreement of the character and scope the Crown had particularised. In a case without eyewitnesses, with limited forensic evidence, and where the accused's presence and movements were largely the only evidence of involvement, the Crown's case fell short of the standard required for a criminal conviction.

All seven accused were acquitted of murder.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In a wholly circumstantial case, the Crown must exclude all reasonable hypotheses consistent with innocence; it is not enough to show that guilt is a rational inference if other rational inferences remain open (following the principle stated in Barca v The Queen (1975) 133 CLR 82).
  • Extended joint criminal enterprise requires proof of both a shared agreement to commit an unlawful act and that the accused foresaw the possibility that a co-party would commit the additional, more serious act with the requisite intention; the doctrine does not extend liability simply because harm in fact occurred.
  • Where the Crown particularises the nature and terms of a criminal agreement, it is bound to prove that specific agreement; a finding that accused persons were present at or near a scene of violence does not, without more, establish the existence or terms of a pre-formed agreement.
  • The conversion of a jury trial to a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW) is available mid-trial on the application of all accused with the Crown's consent, including after pre-trial evidentiary rulings have reduced the evidence available against some accused.
  • Abandonment of one basis of liability at the close of the Crown case does not cure deficiencies in proof of the remaining basis; the surviving theory must itself be established to the criminal standard on the evidence actually admitted.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), including s 132 (election for judge-alone trial)
- Evidence Act 1995 (NSW)

Cases
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35