Citation: Kong v R [2024] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 13 December 2024
Judge(s): Hamill J (leading judgment); N Adams J; Coleman J
Background
In June 2020, two armed men entered a private residence in Wolli Creek and robbed or assaulted six men playing a private Texas Hold'em poker game for money. The applicant was one of the card players, but the prosecution alleged he was not a victim. Rather, the prosecution case was that he served as the "inside man" in a joint criminal enterprise with the two robbers, providing information about the game and facilitating the robbers' entry into the otherwise secure building.
The prosecution's case was entirely circumstantial. Key pieces of evidence included CCTV footage showing the applicant waiting outside the building for around fifteen to twenty minutes despite arriving late, walking toward the premises with one of the robbers, entering the building together with that man, and then both exiting the lift on the relevant floor and walking away from the apartment toward the fire stairs. The robbers escaped via the fire stairs, and a P-plate bearing one robber's DNA was found near the fire escape exit.
A jury convicted the applicant on all six counts of armed robbery in company under s 97(2) of the Crimes Act 1900 (NSW). He sought leave to appeal against conviction on three grounds.
Legal Issues
- Whether the jury's guilty verdicts on all six counts were unreasonable, unsafe, and unsatisfactory given the circumstantial nature of the prosecution's case
- Whether the trial judge misdirected the jury on the meaning of "in company" as an element of the offences
- Whether the trial judge failed to adequately explain the law, the elements of the offences, and the respective cases of the parties in the summing-up
Decision
Ground 1: Unreasonable verdict. Hamill J (with whom N Adams and Coleman JJ agreed) granted leave and dismissed this ground. Applying the correct appellate approach to a circumstantial case, his Honour concluded that the evidence allowed for no other reasonable inference than that the applicant informed the robbers of the game and facilitated their entry into the building. His Honour was satisfied beyond reasonable doubt that the applicant's participation in the card game was a ruse, and that his true purpose was to play a role in the joint criminal enterprise. The verdicts were not unreasonable, unsafe, or unsatisfactory.
His Honour expressly noted the trial judge had expressed a "weak" view of the prosecution case during argument. However, the Court of Criminal Appeal gave that observation little weight, conducting its own independent review of the evidence. The applicant's previous good character and the absence of electronic communications between him and the other participants did not displace the compelling inferences drawn from the CCTV footage and the timing of events.
Ground 2: "In company" direction. Leave was granted but the ground was not sustained. The Court found no misdirection on the "in company" element of the offences. The trial judge's directions were fashioned to the issues actually litigated, the jury was given a clear understanding of what the prosecution had to prove, and the sole real issue at trial was whether the applicant had joined and participated in the joint criminal enterprise. No objection had been raised at trial.
Ground 3: Adequacy of summing-up. Leave to argue this ground was refused. Because no complaint or application for redirection was made at trial, the applicant required leave under the Criminal Appeal Act 1912 (NSW). Having reviewed the summing-up as a whole, Hamill J described the trial judge's explanation of legal principles, elements of the offences, and application of those principles to the evidence as "impeccable." There was no substance in the ground.
Orders Made
- Leave to appeal granted on grounds 1 and 2
- Leave to argue ground 3 refused
- Appeal against conviction dismissed
Key Takeaways
- In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that a circumstantial case must be assessed as a whole rather than by examining individual pieces of evidence in isolation; a piecemeal approach to circumstantial evidence is an error.
- The absence of electronic communications between alleged co-offenders, and evidence of an accused's good character, do not automatically undermine a circumstantial prosecution case where the totality of the evidence permits only one reasonable inference.
- Where a trial judge expresses an inclination during argument that the prosecution case is "weak," that observation does not bind the Court of Criminal Appeal, which conducts its own independent review of whether a verdict is unreasonable.
- No error in a "in company" direction arises where the directions were tailored to the issues actually litigated at trial and the jury was given a clear understanding of the prosecution's task, particularly where no objection was raised during the trial.
- A failure to object to a summing-up or seek redirection at trial requires leave to raise the complaint on appeal; where the directions were, when viewed as a whole, legally sound, leave will be refused.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Appeal Act 1912 (NSW), ss 5A(2), 6(1)
- Evidence Act 1995 (NSW), s 191
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases:
- Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
- Lang v The Queen [2023] HCA 29; (2023) 413 ALR 389
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- R v Wisher (1896) 7 QLJ 52
- Zheng v R; Li v R; Pan v R; Ram v R (2021) 104 NSWLR 668; [2021] NSWCCA 78