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Court of Criminal Appeal 12 July 2024

Fan v R

[2024] NSWCCA 114

Assault & violenceHomicide
CRIME APPEALS APPEAL AGAINST CONVICTION MURDER JOINT CRIMINAL ENTERPRISE BASIC AND EXTENDED RELIED UPON BY CROWN

Citation: Fan v R [2024] NSWCCA 114
Court: Court of Criminal Appeal, NSW
Date: 12 July 2024
Judges: Bell CJ; Button J; McNaughton J

Background

The applicant was convicted in November 2020 of two offences following a joint trial in the Supreme Court of NSW. The charges arose from events on the evening of 1 February 2017 at a premises in Guildford, Sydney. The Crown alleged that a co-offender had accepted a contract to murder a specific individual, Mr Jia, who owed a debt to drug dealers, and that the applicant travelled to the premises with two confederates as part of that plan.

The applicant did not enter the premises or fire any shots. Inside, one co-offender discharged multiple rounds at Mr Jia. However, Mr Jia escaped unharmed, while another person present, Mr Wu, was shot and killed. The shooter had not intended to kill Mr Wu.

The applicant was convicted of murdering Mr Wu (count 4) and shooting Mr Jia with intent to murder him (count 5). The Crown's case on both counts rested on the doctrine of joint criminal enterprise (JCE), in both its basic and extended forms. The applicant sought leave to appeal against conviction on two grounds.

  • Whether the trial judge's directions on joint criminal enterprise liability for the murder of Mr Wu were erroneous, given that Mr Wu was not the intended target, and whether any such error occasioned a miscarriage of justice
  • Whether the doctrines of transferred malice and joint criminal enterprise (basic and extended) applied so as to make the applicant liable for the death of an unintended victim
  • Whether the verdicts of guilty on both counts were unreasonable or unsupported by the evidence

Decision

Ground 1: Directions on joint criminal enterprise and transferred malice

The applicant argued that the mental element required for murder could not be satisfied in circumstances where the person killed was not the intended target. The Court rejected this contention. It confirmed that the longstanding doctrine of transferred malice, under which the intent to kill one person transfers to liability for killing another, applies not only to the principal offender (the shooter) but also to non-actors involved in a joint criminal enterprise, including the applicant.

In the context of basic JCE, the Court observed that the applicant bore primary liability and found it very difficult to envisage a situation in which anything more would be required to be proven against the applicant beyond what had to be established against the shooter. In the context of extended JCE, where the applicant's liability is derivative, the Court found it difficult to see how the doctrine of transferred malice could not equally apply to the applicant, particularly when the same jury had already found the shooter guilty. The Court concluded that an unintended victim being killed does not entitle a participant in a joint criminal enterprise to acquittal simply because the enterprise contemplated a different target. No miscarriage of justice arose from the directions given.

Ground 2: Unreasonable verdicts

The Court acknowledged that credibility difficulties affected most, if not all, of the civilian witnesses. Despite this, the Court found the guilty verdicts were well open to the jury. Key circumstances included: the applicant's close association with his co-offenders; his travelling with them to the location on the night; his attendance at the rear door of the premises while armed, shortly after the shooting; the steps he took to conceal his involvement, including arranging for at least one firearm to be destroyed; and multiple witnesses who gave evidence of admissions made by the applicant. The Court was satisfied that the applicant was armed at the back door shortly after the shooting, and found that this established circumstantial fact, viewed in the context of all the evidence, ruled out any rational hypothesis consistent with innocence.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the doctrine of transferred malice applies to participants in a joint criminal enterprise, not only to the person who physically carried out the act. A participant's liability for the killing of an unintended victim does not depend on the identity of the actual victim matching the agreed target.

  • In the context of basic JCE, a participant's mental element for murder is assessed on the same footing as the principal offender's. The Court found nothing further needed to be established beyond the orthodox elements of murder and the requirements of basic JCE.

  • Under extended JCE, where liability is derivative, transferred malice remains applicable. The Court reasoned that it would be inconsistent to deny its application to a non-actor when the jury had already accepted the doctrine in convicting the shooter.

  • A guilty verdict is not unreasonable simply because civilian witnesses carry significant credibility issues. The Court of Criminal Appeal applied established principles and found that multiple strands of circumstantial and direct evidence, assessed cumulatively, were sufficient to support both convictions.

  • In dismissing the appeal, the Court confirmed that the jury's advantage in directly assessing witness credibility during a lengthy trial is a significant consideration when an appellate court reviews a claimed unreasonable verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 18
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases:
- Batak v R [2024] NSWCCA 66
- Carbone v R (No 2) [2024] NSWCCA 7
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Dawson v R [2024] NSWCCA 98
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Wilio [2022] VSC 86
- Royall v R (1991) 172 CLR 378; [1991] HCA 27
- Russell v R [2023] NSWCCA 196
- Shepherd v R (1990) 170 CLR 573; [1990] HCA 56
- The Queen v Saunders & Archer at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473