AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 12 July 2023

Jaghbir v R

[2023] NSWCCA 175

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL ACCESSORY BEFORE THE FACT TO MURDER CIRCUMSTANTIAL CASE

Citation: Jaghbir v R [2023] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 12 July 2023
Judges: Button J (primary judgment); McNaughton J; R A Hulme AJ

Background

The deceased was fatally shot by unknown intruders in the early hours of 10 March 2017 at his Mortlake apartment. The intruders gained entry by unlocking the front door using a copied key, in circumstances where the original lock had been installed just days earlier following police damage to the door during a search warrant execution.

The appellant was convicted after an 11-day judge-alone trial of being an accessory before the fact to murder. The Crown's case was that he had procured a duplicate of the key and provided it to the perpetrators, knowing that at least grievous bodily harm was to be intentionally inflicted on the deceased. The trial judge was satisfied of this on the strength of a circumstantial case, and sentenced the appellant to 11 years' imprisonment with a non-parole period of six years and six months.

The appellant sought leave to appeal his conviction on two grounds: that the verdict was unreasonable, and that the trial judge erred in holding that the Crown was not required to prove beyond reasonable doubt that a named individual had been one of the principal offenders.

  • Whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence, specifically in relation to findings about the key, the lock, and the appellant's alleged admissions.
  • Whether the Crown was legally obliged to prove beyond reasonable doubt that a particular named person was one of the principal offenders in the murder, as a precondition to a conviction for accessory before the fact.

Decision

Ground 1: Unreasonable verdict

The Court confirmed that the correct approach on an unreasonable verdict ground is not to scrutinise the trial judge's reasons for error, but to conduct an independent analysis of the evidence and determine whether a guilty verdict was open. Applying that standard, the Court found the conviction was well open to the trial judge.

The Court accepted that the replacement lock fitted by a man named Mr Bidewell was still in place at the time of the murder, and that the appellant had possession of the corresponding key during two intervals in early March 2017. Those intervals were sufficient to allow a duplicate to be made, and the Court rejected the submission that overnight key duplication would have been difficult to arrange in Sydney. Beyond the key evidence, a strong circumstantial case existed, drawing on an unguarded conversation by the appellant in a vehicle after the murder, evidence of financial motive, CCTV footage showing unusual behaviour, and a conversation with his brother suggesting he possessed information capable of harming a named individual.

Ground 2: Identity of the principal offender

The Court held that the criminal law does not require the identity of a principal offender to be proved beyond reasonable doubt before an accessory before the fact can be convicted. Section 346 of the Crimes Act 1900 (NSW) expressly provides that an accessory before the fact may be convicted whether or not the principal has been convicted or even personally identified. Requiring proof of the principal's identity would, the Court noted, produce an incongruous result: a person who knowingly facilitated a grave offence could escape liability simply because the precise identity of the perpetrator was not established.

The Court further observed that the probative force of the appellant's alleged admissions depended only on establishing that he had believed a named individual was to be, and had been, involved. That belief falls well short of proof that the named individual actually participated, and the law does not demand that further step.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that on an unreasonable verdict ground, the appellate court conducts its own assessment of the evidence rather than reviewing the trial judge's reasoning for error, applying the principles in M v The Queen and Dansie v The Queen.
  • A conviction for accessory before the fact to murder does not require proof beyond reasonable doubt of the personal identity of the principal offender. Under s 346 of the Crimes Act 1900 (NSW), it is sufficient that an unidentified person committed the principal offence.
  • Where an accessory's alleged admissions are relied upon to connect a named individual to the crime, it is sufficient to establish that the accessory believed that person to be involved. Proof of that belief does not require proof that the belief was factually correct.
  • In dismissing both grounds, the Court left intact the established principle that an accessory before the fact must know the physical and mental elements of the offence to be committed, but this does not extend to knowing the specific identity of the perpetrator.
  • McNaughton J and R A Hulme AJ agreed generally with Button J's reasoning but expressly reserved their positions on paragraphs [189] to [194] of his Honour's judgment, concerning indispensable intermediate facts in circumstantial cases, noting that issue was not argued on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 346

Cases
- Burrell v The Queen [2009] NSWCCA 163
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Dansie v The Queen [2022] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
- Humphries v R [2015] NSWCCA 319
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Botrus (No 4) [2020] NSWSC 1449
- R v Davidson [2009] NSWCCA 150
- R v Jaghbir (No 3) [2020] NSWSC 1383
- R v Merritt (1999) NSWCCA 29
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Slattery v R [2023] NSWCCA 117
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Jury Directions Act 2015 (Vic) s 62 (cited in argument)