Citation: R v Stephen; R v Tadrosse (No 5) [2025] NSWSC 944
Court: Supreme Court of New South Wales
Date: 20 August 2025
Judge: N Adams J
Background
In the early hours of 29 April 2020, an intruder broke into a Cherrybrook home and attacked two elderly occupants with a blunt weapon. The male victim, aged 86, died from head injuries caused by blunt force trauma. His 83-year-old wife survived and was the only eyewitness to the assault on them both.
The Crown charged two accused, described by the court as the victims' great-nephew and nephew respectively, with murder under s 18(1)(a) of the Crimes Act 1900 (NSW) and assault with intent to rob with wounding while armed under s 98 of the same Act. The Crown's case was entirely circumstantial: it alleged two men were involved, one entering the house and one waiting with a getaway car approximately 250 metres away, but it was unable to identify which of the two accused was the intruder.
Because the evidence could not establish which man was the intruder and which the driver, the Crown proceeded on the basis of extended joint criminal enterprise. The joint trial commenced on 28 July 2025, and at the close of the Crown case both accused applied for directed verdicts of not guilty on all counts.
Legal Issues
- Whether there was sufficient evidence upon which a jury, properly instructed, could convict either accused of murder and armed assault under the doctrine of extended joint criminal enterprise.
- Whether the Crown's circumstantial case established, or permitted a jury to infer, that the two accused had entered an agreement to commit the predicate offence (armed breaking and entering with intent to rob) while being armed with an offensive weapon or instrument.
- Whether the Crown's case could survive the "no case to answer" threshold, as stated in Doney v The Queen (1990) 171 CLR 207, in circumstances where the evidence could not identify the intruder as either accused and could not establish the existence of an armed agreement between them.
Decision
Adams J granted directed verdicts of not guilty on all counts in favour of both accused. The central reason was the Crown's inability to prove beyond reasonable doubt, even inferentially, the foundational element of the extended joint criminal enterprise theory: that the two accused had entered an agreement to be armed with an offensive weapon or instrument when carrying out the break-in.
The Crown's case depended on establishing that both accused had agreed to commit an armed robbery. However, the evidence showed only that one person entered the premises. The court found there was insufficient evidence from which a jury could properly infer that the person who waited with the car had agreed to participate in an armed confrontation, as opposed to some other kind of offence. Without proof of that agreed armed element, the extended joint criminal enterprise necessary to ground the murder charge could not be established.
On the murder count specifically, the court had previously articulated the elements the Crown needed to prove (in R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824). Those elements required, among other things, that each accused had entered an agreement to assault the occupants while being armed, and that each participated in that agreed crime. The court concluded the Crown evidence fell short of permitting a jury to draw those inferences beyond reasonable doubt.
The court was equally satisfied that the evidence could not sustain the count of assault with intent to rob with wounding while armed, for the same foundational reasons. Because no sufficient evidentiary basis existed to support conviction on either count, directed verdicts were the appropriate outcome.
Orders Made
No orders were made in this decision.
Key Takeaways
- Where the Crown cannot identify which of two accused was the principal offender, extended joint criminal enterprise may be the only available charging theory, but it carries its own strict evidentiary requirements that must be met at trial.
- A directed verdict is appropriate not only where there is no evidence of guilt, but where the evidence, taken at its highest, is insufficient to allow a jury properly instructed to return a guilty verdict: Doney v The Queen (1990) 171 CLR 207.
- Under extended joint criminal enterprise as applied in this case, the Crown was required to prove beyond reasonable doubt that both accused had agreed to be armed with an offensive weapon when committing the predicate offence; an inability to establish that agreed armed element was fatal to both the murder and armed assault charges.
- A purely circumstantial case can, in principle, establish that one or the other of two accused must have been the intruder; however, that finding alone is insufficient if the evidence cannot establish the terms of the agreement between them, including whether weapons were part of the plan.
- The decision illustrates the limits of proceeding on joint criminal enterprise theories when the underlying agreement itself cannot be proved to the required standard, regardless of the strength of other circumstantial evidence connecting the accused to the scene.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 98, 112(2)
Cases
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- McNamara v The King (2023) 280 CLR 201; [2023] HCA 36
- Shepherd v R (1990) 170 CLR 573; [1990] HCA 56
- The Queen v A2, Magennis & Vaziri (2019) 269 CLR 507; [2019] HCA 35
- R v Stephen; R v Tadrosse (No 4) [2025] NSWSC 824
- R v Cage; R v Lowcock; R v Stamp (No 2) [2024] NSWSC 221
- R v Davis and Quinn (No 4) [2020] NSWSC 1800
- R v PL [2012] NSWCCA 31
- R v XHR [2012] NSWCCA 247
- R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539
- R v Nikolovski (No 2) [2017] NSWSC 1451
- JMR v R (1991) 57 A Crim R 39
- R v R (1989) 18 NSWLR 74
- Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- R v Bilick and Starke (1984) 36 SASR 321
- Regina v H Kalache [1999] NSWSC 556