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Court of Criminal Appeal 10 May 2024

Coskun v R

[2024] NSWCCA 67

HomicideTheft & propertyPublic order & justice offences
CRIME M URDER S 18(1)(A) CRIMES ACT 1900 (NSW) S 97(2 ) CRIMES ACT CRIME CONSTRUCTIVE MURDER JOINT CRIMINAL ENTERPRISE

Citation: Coskun v R [2024] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 10 May 2024
Judge(s): Kirk JA, Wilson and Ierace JJ

Background

The applicant and an unknown accomplice carried out a home invasion, intending to steal drugs and money. Shots were fired during the invasion, killing one resident and wounding another. The applicant was charged with murder under s 18(1)(a) of the Crimes Act 1900 (NSW) and attempted robbery whilst armed with a dangerous weapon under s 97(2) of the same Act.

The Crown relied on three pathways to support the murder conviction, with constructive murder as the primary pathway. The foundational offence for that constructive murder count was the attempted armed robbery. A jury found the applicant guilty on both counts.

The trial judge imposed an aggregate sentence of 34 years imprisonment with a non-parole period of 25 years and 6 months. The applicant sought leave to appeal against both the convictions and the sentence.

  • Whether the trial judge misdirected the jury on the elements of constructive murder, specifically whether the act causing death must have been committed by the accused or fall within the scope of the joint criminal enterprise (JCE)
  • Whether self-defence is available as a defence to a constructive murder charge
  • Whether the trial judge erred in admitting tendency evidence that the applicant had previously committed three armed robberies while wearing a high-visibility shirt, and whether the jury directions on that evidence were adequate
  • Whether the aggregate sentence of 34 years was manifestly excessive

Decision

Constructive murder and joint criminal enterprise

The Court confirmed that, for constructive murder under s 18(1)(a), it is not necessary that the act causing death was done by the accused or fell within the scope of the JCE. The acts of all JCE participants are attributed to each other, including the act or omission that causes death. No additional mental element regarding the death is required once an accused is established as a party to the JCE to commit the foundational offence. The Court held that the approach urged by the applicant would impermissibly reduce the distinctiveness and scope of constructive murder as a separate category of murder under the Act.

The trial judge had, in fact, directed the jury that it needed to be satisfied the applicant was aware the gun might be fired. The Court found this was an error, as it imposed an unnecessary additional hurdle on the Crown. However, because the misdirection worked in the applicant's favour rather than against him, it caused no miscarriage of justice. The Court also took the opportunity to clarify that the third element identified in R v Sharah (1992) 30 NSWLR 292 in the context of "felony murder" does not apply generally to constructive murder under a JCE, and any suggestion to the contrary in that decision should no longer be followed.

Self-defence

The Court held that self-defence is not available as a defence to constructive murder where the act causing death is done in the course of carrying out the foundational offence. The enactment of ss 418-421 of the Crimes Act did not displace the earlier authority of R v Burke [1983] 2 NSWLR 93. The constructive murder doctrine renders the mental state of the person who kills irrelevant, and this applies equally to a participant in a JCE to commit the foundational offence.

Tendency evidence

The Court upheld the admission of evidence that the applicant had worn a high-visibility shirt over a long-sleeved top during three previous armed robberies. It found the conduct was unusual enough in that context to link the events together meaningfully. The tendency evidence had significant probative value within s 97(1)(b) of the Evidence Act 1995 (NSW) and its probative value outweighed the danger of unfair prejudice under s 101. The Court also observed that the correct level of generality at which to characterise tendency evidence is a matter for the tendering party to articulate persuasively, and there will commonly be no single correct level of characterisation.

Sentence

The Court dismissed the sentence appeal. It noted that the offences were assessed as above the mid-range of objective seriousness, that multiple aggravating factors were present, and that the applicant showed no remorse or insight into his moral culpability. The applicant's written submissions included lengthy tables of comparable cases but offered no substantive analysis, no identified comparable cases, and no extracted themes. The Court found no basis to conclude the sentence was manifestly excessive.

Orders Made

  • Leave granted to appeal against conviction (except ground 5) and sentence
  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • For constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW), it is not necessary that the death-causing act was done by the accused or fell within the scope of the JCE. Acts of all JCE participants are attributed to each other, and no further mental element regarding death is required.
  • The Court of Criminal Appeal clarified that the third element from R v Sharah does not apply to constructive murder established through a JCE, and departed from any suggestion to the contrary in that decision.
  • Self-defence remains unavailable as a defence to constructive murder. The doctrine renders the mental state of the person causing death irrelevant, and the enactment of the statutory self-defence provisions in ss 418-421 did not change that position.
  • Tendency evidence need not identify the accused's precise reasons for the conduct in question. What matters is whether the conduct, as characterised, has significant probative value going to both the tendency itself and a fact in issue. The appropriate level of generality for characterising such evidence is for the tendering party to articulate and justify.
  • In dismissing the sentence appeal, the Court emphasised that sentence comparisons must be substantively argued. Producing lengthy tables of cases without identifying comparable decisions, extracting themes, or making specific submissions will not establish manifest excess.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 18(1)(a), 97(2), 418-421
- Evidence Act 1995 (NSW) ss 97(1)(b), 101, 137
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Crimes Amendment (Self-defence) Act 2001 (NSW)

Cases
- R v Burke [1983] 2 NSWLR 93
- R v Sharah (1992) 30 NSWLR 292
- Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108
- IL v The Queen [2017] HCA 27; (2017) 262 CLR 268
- Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299
- Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56
- Hudd v R [2013] NSWCCA 57
- Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585
- McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
- House v The King [1936] HCA 40; (1936) 55 CLR 499