AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 8 March 2024

Ardestani v R

[2024] NSWCCA 31

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST CONVICTION THREE PARTICULARS CONCEPTS ABLE TO STAND TOGETHER CONSIDERATION OF MARKOU V R

Citation: Ardestani v R [2024] NSWCCA 31
Court: Court of Criminal Appeal
Date: 08 March 2024
Judge(s): Harrison CJ at CL; Button J; Weinstein J

Background

The applicant was convicted after a jury trial in the District Court of New South Wales of specially aggravated break, enter, and commit assault occasioning actual bodily harm, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offending occurred on the night of 15 January 2019 at a granny flat in Merrylands, Sydney. The applicant, a co-offender, and an unknown third person broke into the home of a victim they knew, armed with imitation pistols and with knowledge that the victim held a significant sum of cash.

The plan was to assault the victim and steal the cash. Once inside, the co-offender woke the victim, sat on his stomach, pressed an imitation pistol to his face, and demanded money before repeatedly punching him and throwing him around the room. The applicant, armed with a second imitation pistol, positioned himself at the other end of the flat to prevent the victim's flatmate from intervening. The victim suffered significant facial injuries constituting actual bodily harm.

The applicant was sentenced to five years' imprisonment with a non-parole period of three years and three months. He applied for leave to appeal against his conviction on two grounds: that the jury's verdict was unreasonable or unsupported by the evidence, and that the trial judge's failure to provide written directions on joint criminal enterprise and extended joint criminal enterprise caused a miscarriage of justice.

  • Whether the evidence was sufficient to support a finding, beyond reasonable doubt, that the applicant agreed to assault the victim before the break and enter occurred.
  • Whether the evidence was sufficient to support a finding that the applicant foresaw the possibility of actual bodily harm being inflicted on the victim.
  • Whether the legal doctrine of extended joint criminal enterprise and the aggravating circumstance of committing the offence "in company" can be applied together to the same accused.
  • Whether the trial judge's failure to supplement oral directions on complicity with written directions caused a miscarriage of justice.

Decision

Ground Two: Unreasonable verdict

Button J (with Harrison CJ at CL and Weinstein J agreeing) found that ample evidence supported the jury's conclusion that there was a pre-existing agreement to assault the victim. The assault was the opening act of the offending, and the applicant moved immediately to block the flatmate's intervention. There was no evidence that the offenders attempted to search the premises for the cash before resorting to force, which strongly supported the inference that force had been planned from the outset.

On the question of foresight of actual bodily harm, the Court found that the applicant's conduct throughout the incident provided ample evidence that, at the very latest from the point at which the co-offender began assaulting the victim, the applicant foresaw the possibility that actual bodily harm would be inflicted. The verdict was well open to the jury.

On the "in company" point, the Court rejected the submission that extended joint criminal enterprise and the aggravating circumstance of acting "in company" cannot coexist. The Court held that an offender need not have been directed toward every element of the offence, including its consequences, in order to have acted in company. It is sufficient that the offender acted in company with respect to the base elements of the alleged offence. The Court drew on Markou v R, confirming that only the assault itself (not the consequence of actual bodily harm) needed to have been committed in company. Ford v R was distinguished on its facts.

Ground Three: Written directions on complicity

The trial judge gave oral and written directions on the elements of the offence, but oral directions only on the doctrines of complicity. Defence counsel raised no objection to that course at trial, and the jury made no enquiry during its retirement that suggested any difficulty with complicity. The applicant's counsel in the appeal also accepted that the oral directions on complicity were correct in law. The Court acknowledged that reasonable judicial minds could differ on whether oral directions on significant legal matters ought to be supplemented in writing, but found that the absence of written complicity directions did not cause a miscarriage of justice in the particular circumstances of this trial.

Orders Made

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

Key Takeaways

  • Extended joint criminal enterprise and the aggravating circumstance of committing an offence "in company" are not mutually exclusive doctrines and may operate together in the same case.
  • Where "in company" aggravation is alleged alongside extended joint criminal enterprise, the requirement to act in company attaches to the base elements of the offence, not to the extended consequences that an accused merely foresaw as possible.
  • Sufficient evidence of a pre-planned agreement to assault can be inferred from circumstantial conduct, including the sequence of events at the scene and the absence of any attempt to search for property before force was applied.
  • In dismissing the third ground, the Court of Criminal Appeal confirmed that oral directions on complicity can be adequate, particularly where they are accepted as correct and the jury demonstrates no difficulty in understanding them, though the Court noted a modern trend toward greater written assistance to juries.
  • No miscarriage of justice arose from the absence of written directions where defence counsel consented to the approach taken and nothing in the jury's conduct indicated confusion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(3)

Cases
- Bromley v The King (2023) 98 ALJR 84; [2023] HCA 42
- Ford v R [2020] NSWCCA 99
- Johns v the Queen (1980) 143 CLR 108; [1980] HCA 3
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Markou v R (2012) 221 A Crim R 48; [2012] NSWCCA 64
- Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5
- R v Button [2002] NSWCCA 159
- Zheng v The Queen [2021] NSWCCA 78