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Court of Criminal Appeal 2 April 2025

AW v R

[2025] NSWCCA 47

Homicide
CRIME AP PEALS A PPEAL AGAINST CONVICTION APPLICATION OF PROVISO JOINT CRIMINAL ENTERPRISE MISCARRIAGE OF JUSTICE ESTABLISHED

Citation: AW v R [2025] NSWCCA 47
Court: Court of Criminal Appeal
Date: 2 April 2025
Judge(s): Stern JA; Fagan J; Ierace J

Background

The applicant (AW) was convicted of the murder of a three-year-old child (referred to as Joseph) following a joint trial with the child's mother (LN). Joseph died on 6 August 2014 after at least four weeks of sustained abuse. LN was his mother; AW was her partner.

The Crown case against AW rested on extended joint criminal enterprise. The Crown alleged that from 13 June 2014, LN and AW jointly participated in a scheme to assault, beat, and ill-treat Joseph. The Crown further alleged that AW must have foreseen the possibility that LN would carry out a deliberate act with the intent to cause grievous bodily harm, and that LN did in fact commit such an act, killing Joseph.

Both accused were convicted on 18 April 2017. AW was sentenced to 40 years' imprisonment with a non-parole period of 30 years. He sought leave to appeal out of time, filing his notice of appeal in July 2024.

  • Whether the trial judge erred in directing the jury on how to use evidence in the separate trials of LN and AW, specifically whether the jury was improperly permitted to consider evidence admissible only against LN when deciding whether LN had killed Joseph with the requisite intent for murder (Ground 1)
  • Whether the trial judge erred in leaving murder to the jury on the basis of extended joint criminal enterprise rather than ordinary joint criminal enterprise (Ground 2)
  • Whether the conviction was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW) (Ground 3)
  • Whether, even if an error was established, the proviso in s 6(1) applied because no substantial miscarriage of justice actually occurred

Decision

Ground 1: Misdirection on evidence. All three judges agreed that the trial judge erred by implicitly permitting the jury to consider evidence admissible only against LN (including her police interviews and tendency evidence) when determining, in AW's trial, whether LN had killed Joseph with the requisite intent for murder. The Crown conceded this error. The Court also rejected AW's further contention that the misdirection would have contaminated the jury's reasoning on element 9(e), that is, whether AW foresaw the possibility that LN would act with the requisite intent. The jury had been clearly directed to use only evidence admissible against AW for that element, and there was no basis to assume the jury failed to follow that direction.

Application of the proviso. The central question became whether the error caused a substantial miscarriage of justice. Although evidence inadmissible against AW, including LN's expressed thoughts of killing Joseph and admissions about jamming his head in a door, had the capacity to affect the verdict, the Court was satisfied that element 9(d) (that LN committed the fatal assault with the requisite intent) was proved by an overwhelming body of evidence properly admissible against AW. That evidence included LN's admissions to AW about shaking Joseph, evidence of other serious assaults by LN, AW's own account that he had slept through the relevant night, and LN's later statements accepting responsibility for Joseph's death. The proviso was applied and the appeal dismissed on this ground.

Grounds 2 and 3. Leave to appeal on Ground 2 was refused because AW suffered no demonstrable prejudice from the alleged error in how the joint criminal enterprise was characterised in the jury directions. On Ground 3, the Court found the evidence before the jury amply supported the conclusion, beyond reasonable doubt, that AW foresaw at least the possibility that LN's assaults on Joseph would culminate in violence accompanied by an intent to cause grievous bodily harm, resulting in death. The unreasonable verdict ground was not established.

Orders Made

  • Leave to appeal granted on Grounds 1 and 3
  • Leave to appeal on Ground 2 refused
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a misdirection permitting a jury to use evidence admissible only against a co-accused, in a joint but separate trial, constitutes a legal error and a miscarriage of justice, but that error will not be fatal to a conviction where the proviso applies.
  • Application of the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) requires the appellate court to assess whether, on the whole of the evidence properly admissible against the appellant, the prosecution case was proved beyond reasonable doubt, and whether a substantial miscarriage of justice actually occurred.
  • Where an erroneous direction is confined to one element of the offence and a separate element carries its own clear and correct direction, courts will generally presume that the jury followed the correct direction for that separate element, absent any reason to conclude otherwise.
  • In dismissing the unreasonable verdict ground, the Court reaffirmed that the relevant inquiry is whether the evidence before the jury was capable of supporting the verdict beyond reasonable doubt, not merely whether some evidence pointed toward a different outcome.
  • Sufficient evidence existed, admissible against AW independently of anything admissible only against LN, to establish beyond reasonable doubt each of the elements required for a murder conviction under extended joint criminal enterprise principles.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 66A

Cases:
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
- Huynh v The Queen (2013) 87 ALJR 434; [2013] HCA 6
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- Likiardopoulos v The Queen [2012] HCA 37
- R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26
- Xu v R [2023] NSWCCA 93
- R v LN; R v AW (No 10) [2017] NSWSC 1387
- R v LN; R v AW (No 11) [2017] NSWSC 1430