Citation: R v Cage; R v Lowcock; R v Stamp (No 2) [2024] NSWSC 221
Court: Supreme Court of New South Wales
Date: 7 March 2024
Judge: Yehia J
Background
Three accused persons were charged with the murder of David King at Salt Ash on 29 August 2021. The Crown alleged that the three men had arranged a drug transaction through an intermediary (referred to as AB) as a pretext to rob the deceased. During the confrontation, the deceased was shot and killed.
The Crown charged all three accused with murder on the basis of extended joint criminal enterprise. On this theory, each accused was party to an agreement to commit an armed robbery, and murder liability attached to any participant who foresaw the possibility that a firearm might be discharged with at least an intention to inflict grievous bodily harm.
After the Crown closed its case at trial, one of the accused, Stamp, applied for a directed verdict on the murder count. A directed verdict is a ruling by the trial judge that the evidence is legally insufficient to support a conviction, requiring the jury to return a verdict of not guilty without further deliberation.
Legal Issues
- Whether, on the whole of the Crown's evidence taken at its highest, there was evidence upon which a jury could properly convict Stamp of murder on the basis of extended joint criminal enterprise.
- Specifically, whether it was open on the evidence to infer that Stamp was aware of the existence of a loaded firearm and that he contemplated the possibility of its discharge with an intention to inflict grievous bodily harm.
- Whether the inferences contended for by the Crown arose from a rational process of reasoning, as opposed to speculation or conjecture.
Decision
The court applied the well-established directed verdict standard: the application would succeed only if no reasonable jury, properly instructed, could convict on the evidence. In assessing the application, Yehia J emphasised that the Crown case had to be taken at its highest, and that the court was not concerned with the credibility or reliability of witnesses, including the primary Crown witness AB.
The Crown's circumstantial case against Stamp rested on a series of inferences: that he had hired the vehicle used by the group, that he was in the company of his co-accused and in the same vehicle as a large firearm, and that by reason of that proximity and association he must have known of the firearm and foreseen its use. The evidence directly implicating Stamp in the planning or execution of an armed robbery was limited. Critically, the evidence about Cage's earlier reference to having "the piece" and his conversation about robbing the deceased was admitted only against Cage, not Stamp.
Yehia J had expressed concern about the sufficiency of the murder case against Stamp as early as a case management listing in December 2023. After hearing the full Crown case, those concerns remained. The court concluded that, even taking the evidence at its highest, it was not open to infer on a rational basis that Stamp was aware of the loaded firearm or that he contemplated the possibility of it being discharged. The inference the Crown sought required a leap beyond what the evidence could rationally support.
Accordingly, the court granted the directed verdict application and directed the jury to return a verdict of not guilty on the murder count against Stamp. The remaining charges against Stamp, including the kidnapping count and the arson count to which he had already pleaded guilty, were unaffected by this ruling.
Orders Made
- The directed verdict application by Stamp was granted.
- The jury was directed to return a verdict of not guilty on count 1 (murder) in the case of Stamp.
Key Takeaways
- A directed verdict of not guilty is appropriate where, even taking the Crown's circumstantial case at its highest, the inferences it relies upon are not available through a rational process of reasoning and amount to speculation or conjecture.
- Extended joint criminal enterprise liability for murder requires evidence capable of supporting an inference that the accused actually foresaw the possibility that a co-offender might discharge a firearm with the requisite intent; mere presence in a vehicle containing a firearm, without more, may be insufficient to establish that foresight.
- Where evidence is admitted against one accused only (such as statements about possessing a weapon), it cannot be used to fill evidentiary gaps in the case against a co-accused on the same count.
- The Supreme Court here reinforced that inferential reasoning in circumstantial cases must be grounded in the evidence and cannot proceed by way of conjecture to fit a prosecutorial theory.
- Yehia J noted the concern about sufficiency of the murder case against Stamp at an early case management stage, demonstrating that trial judges may signal evidential insufficiency well before a directed verdict application formally arises.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 38
Cases
- Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- Doney v R (1990) 171 CLR 207; [1990] HCA 51
- JMR v R (1991) 57 A Crim R 39
- R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452
- R v Davis and Quinn (No 4) [2020] NSWSC 1800
- R v Kalache [1999] NSWSC 556
- R v PL [2012] NSWCCA 31
- R v R (1989) 18 NSWLR 74
- R v XHR [2012] NSWCCA 247