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Court of Criminal Appeal 30 June 2023

Cavanagh v R; McIvor v R; O’Keefe v R

[2023] NSWCCA 164

Homicide
CRIME APPEALS AGAINST CONVICTION UNREASONABLE VERDICT MURDER EXTENDED JOINT CRIMINAL ENTERPRISE CONVICTION QUASHED

Citation: Cavanagh v R; McIvor v R; O'Keefe v R [2023] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 30 June 2023
Judges: Rothman J; Fagan J; R A Hulme AJ

Background

In October 2018, a man's body was discovered at Rosemeadow in south-western Sydney. He had died from a stab wound to the chest and also sustained blunt force injuries to the head and neck. Three men were tried together in the Supreme Court and each convicted by a jury of murder.

The Crown's case rested on joint criminal enterprise and extended joint criminal enterprise. In short, the Crown alleged that the three accused either agreed to cause the deceased grievous bodily harm, or agreed to assault him while contemplating that one of them might intentionally inflict grievous bodily harm. A key Crown witness was a woman at whose home the killing occurred; she gave evidence in exchange for a sentencing discount on her own accessory-after-the-fact charge. One of the three accused gave evidence at trial claiming he acted in self-defence and that the others were not present when the stabbing occurred.

All three men appealed their murder convictions. The central ground for each was that the verdict was unreasonable and unsupported by the evidence. Two of the three also raised additional grounds relating to jury directions, and one separately challenged his sentence.

  • Whether the murder convictions were unreasonable or unsupported by the evidence, specifically whether the Crown proved the mental element required for joint criminal enterprise or extended joint criminal enterprise.
  • Whether the trial judge should have directed the jury on the use of a recorded conversation as an alleged admission of guilt of murder.
  • Whether the trial judge should have directed the jury about the use of post-offence conduct (body disposal and destruction of clothing) as evidence of consciousness of guilt.
  • Whether O'Keefe's post-offence conduct (assisting with body disposal) required careful jury directions, given the Crown used it to rebut a self-defence claim.
  • Whether the trial judge erred in excluding two items of tendency evidence that the deceased acted violently and irrationally when drug-affected.
  • What remedy was appropriate following the quashing of the murder convictions: substitution of a manslaughter verdict, retrial for manslaughter, or retrial for murder.

Decision

Unreasonable verdict (all three applicants)

The majority (Rothman J and R A Hulme AJ) held that the murder convictions were unreasonable. On the evidence as a whole, a reasonable doubt existed as to whether the three men had agreed to inflict grievous bodily harm on the deceased, or whether each had contemplated that one of the others might intentionally do so. The Crown therefore failed to prove, beyond reasonable doubt, either a joint criminal enterprise or an extended joint criminal enterprise sufficient to sustain a murder conviction. Fagan J dissented strongly, concluding that the evidence was insufficient even to establish a joint enterprise to commit any assault at all, let alone one rising to manslaughter, and that remitting the matter for a manslaughter retrial was therefore inappropriate.

McIvor's additional grounds (directions on admissions and consciousness of guilt)

The Court unanimously rejected all four additional grounds brought by McIvor. On the alleged admission (a recorded statement by McIvor to his girlfriend that he was "goneski"), the Crown had never put that statement to the jury as proof of guilt of murder, so no direction was needed. On the post-offence conduct (body disposal and clothing destruction), the Crown did not use that evidence in the trial to prove consciousness of guilt of murder. The Court found that giving consciousness-of-guilt directions in those circumstances would have been confusing and potentially unhelpful.

O'Keefe's additional grounds (directions on body disposal and tendency evidence)

The Court also unanimously rejected O'Keefe's additional grounds. The evidence of his role in disposing of the body was used by the Crown only to rebut his self-defence claim, not to prove guilt of murder, so no consciousness-of-guilt direction was required. On the excluded tendency evidence, the trial judge was entitled to question whether the person described in two of the tendered items was actually the deceased. O'Keefe had the opportunity to obtain further identifying evidence and did not do so; accordingly, no miscarriage of justice arose.

Appropriate remedy

The majority (Rothman J and R A Hulme AJ) ordered that all three cases be remitted for retrial on a charge of manslaughter. The jury's findings, insofar as they could be discerned, were consistent with the accused having participated in a joint criminal enterprise to commit an unlawful and dangerous assault, which could form the basis of a manslaughter charge. Fagan J dissented from this course, finding on his analysis that the evidence was insufficient to support even a manslaughter joint enterprise, and would have acquitted all three.

Orders Made

  • Time extended for one applicant to file his notice of appeal (to 30 September 2022).
  • Leave to appeal granted to each applicant on Ground 1 (unreasonable verdict).
  • Appeals allowed and convictions for murder quashed in each case.
  • Each case remitted for retrial on a charge of manslaughter.

Key Takeaways

  • The Court of Criminal Appeal confirmed that to sustain a murder conviction on extended joint criminal enterprise, the Crown must prove beyond reasonable doubt that each participant either agreed to inflict grievous bodily harm or contemplated that one of their number might intentionally do so. Reasonable doubt on those mental elements is fatal to such a conviction.
  • A significant divergence arose between the majority and Fagan J on both the unreasonable verdict ground and the appropriate remedy, illustrating that "unreasonable verdict" appeals in multi-accused joint enterprise cases require careful, granular analysis of what the evidence actually supports for each accused.
  • No obligation to give jury directions about alleged admissions arises unless the Crown actually relies on the relevant evidence as proof of guilt of the charged offence. Evidence used for a different purpose does not automatically attract a direction.
  • Similarly, consciousness-of-guilt directions on post-offence conduct are not required as a matter of course. The necessity for such directions depends on how the Crown actually deployed the evidence at trial.
  • In quashing a murder conviction as unreasonable, the Court retains a discretion to order a retrial on a lesser offence (here, manslaughter) rather than simply acquitting, where the jury's findings are consistent with guilt of that lesser offence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(2), 7(2), 8
- Criminal Procedure Act 1986 (NSW), s 128
- Evidence Act 1995 (NSW), s 165
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Huynh v The Queen (2013) 214 CLR 1; [2013] HCA 6
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5
- Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Gall v R; Gall v R [2015] NSWCCA 69
- Fantakis v R [2023] NSWCCA 3
- R v Bryce (No 2) [2014] NSWSC 498
- Christian v The Queen [2012] NSWCCA 34; (2012) 223 A Crim R 340