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Supreme Court 25 July 2025

R v Stephen; R v Tadrosse (No 4)

[2025] NSWSC 824

Assault & violenceHomicideTheft & property
EVIDENCE PRE TRIAL RULING JOINT TRIAL

Citation: [2025] NSWSC 824
Court: Supreme Court of New South Wales
Date: 25 July 2025
Judge(s): N Adams J

Background

Two accused, related to the victims by family ties, were jointly charged with the murder of an 86-year-old man and the assault with intent to rob (with wounding, while armed) of the man's 83-year-old wife. The Crown alleged that both accused planned and carried out a home invasion in Cherrybrook in April 2020, during which one of them beat the elderly couple with a weapon while demanding money. The husband died; the wife was rendered unconscious.

The Crown's circumstantial case relied on phone records, CCTV footage, financial transactions, family connections, and lies to police to place both accused at the scene. However, the Crown accepted it could not prove beyond reasonable doubt which of the two accused physically attacked the victims. The Crown therefore brought its case on the basis of extended joint criminal enterprise: the agreed plan was to assault the occupants with intent to rob them, and each accused foresaw the possibility that the other might intentionally cause death, grievous bodily harm, or wounding in carrying out that plan.

Both accused applied for a pre-trial ruling that the Crown should not be permitted to bring its case on this basis. They argued that a passage in the joint judgment of Gordon, Edelman and Steward JJ in Mitchell v The Queen (2023) 276 CLR 299, which described extended joint criminal enterprise as a form of "derivative" liability, made it legally impermissible for the Crown to rely on extended joint criminal enterprise without first proving who was the principal offender.

  • Whether the Crown can advance a case of extended joint criminal enterprise when it cannot identify which of the two participants physically committed the offence(s) falling outside the scope of the agreed criminal plan.
  • Whether the description of extended joint criminal enterprise as "derivative" liability by three High Court justices in Mitchell v The Queen fundamentally changed the law so as to require the Crown to identify the principal offender before derivative liability can attach.
  • Whether the pre-Mitchell position (which permitted the Crown to run such a case) survived the Mitchell decision.

Decision

Adams J ruled against the accused and held that it was open to the Crown to bring its case on the basis of extended joint criminal enterprise, even though it could not prove which of the two accused was the physical assailant.

Her Honour's reasoning proceeded through a detailed analysis of the High Court's treatment of joint criminal enterprise across decisions from Johns (1980) through to Mitchell (2023) and Batak (2025). Before Mitchell, the High Court consistently described both straightforward and extended joint criminal enterprise as forms of "principal" rather than "derivative" liability. In Mitchell, three of seven justices (Gordon, Edelman and Steward JJ) characterised extended joint criminal enterprise as "derivative" for the first time, but the remaining four justices did not adopt this description.

Adams J found that the passage at paragraph [61] of the joint judgment in Mitchell did not constitute a binding statement of new principle that would preclude the Crown from running a case where the identity of the principal is unknown. The passage was not directed at the question raised in this application, and it did not expressly hold that the Crown must identify the principal offender in an extended joint criminal enterprise case. It was also the view of only three of seven justices; the other four were silent on the characterisation.

Her Honour also considered the practical consequences of the accused's argument, noting that accepting it would create a perverse incentive: two co-offenders who plan a crime together could immunise themselves from liability for foreseeable escalations simply by ensuring neither could be individually identified as the physical perpetrator. Adams J concluded that the settled pre-Mitchell principles remained good law and that the Crown could properly invite the jury to find both accused liable on the extended joint criminal enterprise theory as set out in its case statement.

The possibility of an unknown third participant did not alter this analysis. The Crown's case was that the two accused were parties to the agreement and that one of them committed the physical acts. Even if a third person was present, this did not undermine the doctrinal basis for the Crown's case.

Orders Made

  • The pre-trial application by both accused was dismissed.
  • The Crown was permitted to advance its case on the basis of extended joint criminal enterprise as set out in paragraph [6] of the Crown Case Statement.

Key Takeaways

  • The Supreme Court confirmed that the Crown may rely on extended joint criminal enterprise even where it cannot prove which co-venturer was the principal offender, holding that the pre-Mitchell position has not been displaced. However, the ruling was made at first instance on a point of law that no intermediate appellate court has yet considered, and the question remains open for appellate determination.
  • Extended joint criminal enterprise's characterisation as "derivative" liability, introduced by three of seven justices in Mitchell and not adopted by the remaining four, has created genuine doctrinal uncertainty. Until the High Court or the Court of Criminal Appeal directly addresses this characterisation, the foundations of extended joint criminal enterprise remain unsettled.
  • Adams J was not persuaded that the Mitchell plurality's use of "derivative" terminology foreclosed the Crown's approach, noting it was common ground that no appellate court has ruled on this specific question since Mitchell was decided.
  • Where identification of the physical assailant cannot be established beyond reasonable doubt, extended joint criminal enterprise remains a viable prosecution pathway in New South Wales under the ruling. The unresolved doctrinal tension, however, leaves open the possibility that appellate courts could reach a different conclusion.
  • By resolving the novel legal argument at the pre-trial stage, both parties benefited from having the point determined before empanelment, and the structured reasoning provided by Adams J offered a framework for how the issue might develop on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 98
- Criminal Code 1899 (Qld), s 7(1)(a), (d)
- Criminal Law Consolidation Act 1935 (SA), ss 11, 12A

Key cases:
- Mitchell v The Queen (2023) 276 CLR 299; [2023] HCA 5
- R v Batak [2025] HCA 18; 99 ALJR 820
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Clayton v The Queen [2006] HCA 58; 168 A Crim R 174
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3
- Mohan v The Queen [1967] 2 AC 187
- Batak v The King [2024] NSWCCA 66
- Fan v The King [2024] NSWCCA 114