Court of Appeal (Vic)|2010-11-30|Before: MAXWELL P AND WEINBERG JA

Arafan v The Queen [2010] VSCA 356 (22 December 2010)

R v Arafan (Unreported, County Court of Victoria, Judge Wood, 16 July 2010)

1 On 30 November 2010, the Court heard and determined an application for leave to appeal against conviction by the applicant, Bader Arafan. The Court ordered that leave to appeal be granted, and that the appeal be allowed. It also ordered that there be judgment and verdicts of acquittal entered on all counts. The Court indicated that it would publish its reasons in due course. These are those reasons.

2 The applicant was jointly presented in the County Court at Melbourne, together with Michel Baini, on an indictment containing some 68 counts of blackmail in all. The applicant stood trial on 51 of those counts. After a trial lasting some 19 days, the applicant was convicted on 13 counts, acquitted by direction on 21 counts, and acquitted by the jury on 17 counts. Baini was convicted on 36 counts, acquitted by direction on three counts, and acquitted by the jury on nine counts.

3 In late 2003 and early 2004, the victim of this offending, Hassan Rifat, found himself being subjected to threats and violence at the hands of a business competitor, one Tony Hakim. According to Rifat, the level of violence directed towards him and his family was both significant and escalating. He claimed that, on one occasion, he was menaced by one of Hakim's operatives with a pistol.

4 A mutual friend of both Baini and the applicant, Mustafa Unver, suggested to Rifat that he could introduce him to someone who would protect him from Hakim. At that time, Rifat was especially vulnerable as he had gone to the police in early 2004 to seek their assistance, and had been told that the police would do nothing.

5 The trial judge, in his sentencing remarks, described what then happened. Baini travelled to Sydney on a number of occasions throughout 2004 in an effort to persuade Hakim to leave Rifat alone. At that time, Rifat owned and operated a business called Telkom, which was described as a 'second-tier telecommunications business', and was said to have been a highly successful enterprise.

6 According to Rifat, Baini told him that Hakim had offered him (Baini) $1,000 a month to take Hakim's side in the dispute between Hakim and Rifat. Baini told Rifat that, unless he met certain demands, Baini would join forces with Hakim. Rifat said that this led to his having provided Baini with a leased Mercedes Benz motor vehicle (count 1). That was a count upon which Baini was charged alone, and acquitted.

7 Rifat said that, thereafter, Baini made regular threats to harm Rifat's family and/or business. He also threatened to kill Rifat's horses unless his demands for money were met. As a consequence, Rifat sent money to Baini on some 35 separate occasions between 4 April 2005 and 15 March 2007. He also sent money to the applicant (either directly or through Baini) on some 13 occasions between 4 April 2005 and 24 November 2005.

8 The applicant received a total of about $10,000 in relation to the counts upon which he was convicted. Baini, on the other hand, received $143,581 in respect of the offences for which he was convicted.

9 By the time the jury came to deliberate, the Crown case was essentially that the applicant and Baini had entered into what was described as a 'joint criminal enterprise' to blackmail Rifat. Each count reflected a separate demand, followed by a separate payment. Of particular importance, so far as the appeal to this Court was concerned, was the fact that the applicant was not said to have personally made any threat, or issued any demand, to Rifat. Every such threat or demand was made by Baini, and always without the applicant having been present.

10 It was Baini's contention, in his record of interview, that the relationship between himself and Rifat was of an entirely legitimate nature, whereby he (Baini) would render services by dissuading Hakim from further attempts at harm to Rifat. Baini also contended that he had, on two separate occasions, brought valuable business (worth some $35,000 and $18,000) to Telkom. The Crown case, based on Rifat's evidence, was that the payments he (Rifat) made were the product of extortion, those payments having been made solely in response to Baini's threats.

11 The case against the applicant had to be, and was, based solely on inference. Given that he never, at any stage, threatened Rifat, or demanded money from him, his liability could only be that of a secondary party who was complicit in the acts carried out by Baini.

12 The prosecutor, in his opening, indicated to the jury that he would put the case against the applicant on the basis that he was an aider and abettor. Despite that unequivocal intimation, counsel for the applicant, in his opening, indicated to the jury that he understood the Crown case to be put on two separate and alternative bases; aiding and abetting, and concert.

13 It was not until the end of the Crown case that attention came to be focussed upon the nature of the applicant's putative liability for the actions of Baini. When counsel for the applicant called upon the prosecutor to clarify how he put his case against the applicant, the prosecutor, having reflected upon the matter, acknowledged that aiding and abetting was simply not available on the facts of this case.

14 Section 323 of the Crimes Act 1958 provides that a person may be tried as a principal offender if he or she aids, abets, counsels or procures the commission of an indictable offence. The words 'aid, abet, counsel or procure' describe a person who assists or encourages someone else to commit an offence. In order to establish aiding and abetting, the Crown does not have to prove any agreement between the accused and the primary offender. It must, however, establish that the principal offence was committed, that the accused knew of the essential circumstances that constituted the principal offence, and that the accused intentionally assisted or encouraged the primary offender to commit that offence.

15 In general, such assistance or encouragement, if provided prior to the commission of the offence, is described as 'counselling or procuring'. If, however, the assistance or encouragement takes place at the time of the commission of the offence, it is generally described as 'aiding and abetting'.

16 A person can aid or abet the primary offender by conveying his assent to, and concurrence in, the commission of the offence.[1] This test will normally require the aider and abettor to be present at the commission of the crime, though this is may no longer be, as it once was, an absolute requirement in every case.[2] Conversely, a person may be present at the commission of the crime, and not be an aider and abettor. Mere presence is not sufficient, by itself, to render a person liable as an aider and abettor.[3]

17 As we have said, the prosecutor, when asked to explain precisely how the Crown put its case against the applicant, elected to resile from any reliance upon aiding and abetting (which, we repeat, was the basis upon which the case was opened to the jury), and shifted instead to what he termed, 'joint criminal enterprise'. He gave no explanation for this sudden change of approach, but it may reasonably be inferred that, having considered the matter carefully, he realised that there would be difficulties associated with making out a case of aiding and abetting in circumstances where the applicant had not been present at the time these offences were committed.

18 In one sense, the prosecutor was correct to abandon aiding and abetting. The essence of the case against the applicant lay in the allegation that both he and Baini had entered into an agreement with each other to blackmail Rifat, and that whatever took place thereafter was done pursuant to that agreement. The prosecutor's decision to open this case on the basis of aiding and abetting was always problematic, and might be thought to have been somewhat artificial.

19 The trial judge, having been informed by the prosecutor that the case would now be presented as one of joint criminal enterprise (rather than aiding and abetting), took no action despite the fact that the Crown had, by that stage, closed its case. In his charge to the jury, his Honour directed as to joint criminal enterprise, and said nothing about aiding and abetting.

20 It was the sudden and belated change in the nature of the Crown case that gave rise to ground 2 in support of the application for leave to appeal against conviction. That ground complained of prejudice to the applicant arising from the Crown's change of position.[4] It was upon that ground that the Crown conceded that the appeal should succeed. The Crown acknowledged, in argument before this Court, that the prosecutor's shift to joint criminal enterprise had resulted in a miscarriage of justice. Accordingly, and on the basis of that concession, there had to be, at the very least, a retrial.

21 Following the Crown's change of position, the trial judge directed the jury, as we have said, as to the elements required in order to establish joint criminal enterprise. His Honour provided the jury with a document setting out those elements, and said:

Joint criminal enterprise is concerned with the counts that are put against Mr Arafan and those counts I have numbered.

It alleges that in each case that the demands are made by both accused, but derivatively, because as I say Mr Baini it is alleged, is the only person that made the demand.

I say derivatively because the law does provide that if two persons set out on a criminal enterprise have an agreement to do something and if the relevant ingredients are met, which I have set out in the next four paragraphs, one person is bound by that part of the crime performed by the other person.

In other words, if you are satisfied beyond reasonable doubt of the four elements that I have listed on p.3, it would not matter that Mr Baini made the demand, if you so find, and that Mr Arafan did not.

So, the four elements that must be established by the prosecution beyond reasonable doubt to support its contention that there was a joint criminal enterprise between Mr Baini and Mr Arafan is [first,] that Arafan made an agreement with Baini to pursue a joint criminal enterprise, that is, blackmail and that the agreement remained in existence when the offence of blackmail was committed.

Secondly, that Arafan participated in the joint criminal enterprise in some way. The prosecution contend that Arafan's participation was of benefit to be obtained, his signature that of a partnership of agreement, count 8, his signature to the terms of settlement, count 18, and his meeting with Rifat at the Mobil Quix petrol station.

Thirdly, that Baini and Arafan in accordance with their agreement, performed all of the acts necessary to commit the offence of blackmail, and finally that Arafan had the state of mind or the intention to commit the offence of blackmail at the time he made the agreement with Baini.

...

Put another way, as I have said, was Arafan a party to an agreement with Baini to blackmail Rifat? That position has remained unchanged throughout the trial and you heard counsel address you on Thursday afternoon, Friday morning, yesterday and this morning. During the course of their addresses, counsel accurately and properly put to you legal propositions that I have no need to debate with you. They were accurate.

22 The trial judge subsequently returned to the question of joint criminal enterprise. He said:

However, it is alleged in this case by the prosecution that there was a joint criminal enterprise between Mr Baini and Mr Arafan in the manner I have described. The way the prosecution has put its case is that the prosecution maintain and urge upon you that that joint criminal enterprise was reached some time prior to 4 April 2005. I say that because that is the date in Count 2 and that is the first count brought against Mr Arafan in point of time. That agreement, which the prosecution allege, is relevant to all of the counts in which Mr Baini and Mr Arafan are jointly charged. The prosecution contend the agreement just continued. It was not interrupted, the prosecution do not say that the agreement came to an end at a particular point in time and a fresh agreement was made and reactivated, "Let us do a demand on 8 April", one agreement, "Let us do a demand on 19 April", another agreement. The agreement which the prosecution contend is an agreement that in effect stretches in time from some time prior to 4 April 2005 to August 2007. So the prosecution contend the agreement is made, the joint criminal enterprise is made and complete before 4 April 2005. There may be other evidence which is relevant to more than one charge but the example I have given you is the obvious one.

23 His Honour then gave further directions regarding the way in which the Crown put its case against the applicant. He said:

The next topic of law that I need to deal with is that of the joint criminal enterprise. And I have had produced to you the elements of that concept, each of which must be established, beyond reasonable doubt.

Arafan has been charged with the offence of blackmail. However, it has not been alleged that he committed that offence, alone. Instead the prosecution has alleged that he committed it, together with Baini. I must therefore direct you as to what is called joint criminal enterprise.

The law provides that if two or more people are part of a joint criminal enterprise, to commit an offence, then they will all be equally guilty of that offence, regardless of the role they played.

This is one of the situations in which the law holds a person responsible for the actions of other people. In order to find Arafan guilty of committing blackmail by a joint criminal enterprise, there are four elements, all of which the prosecution must prove, beyond reasonable doubt. And I have listed those elements on p.3, and for the sake of the transcript I will repeat them.

Firstly, that Arafan made an agreement with Baini to pursue a joint criminal enterprise, that is blackmail, and that the agreement remained in existence when the offence of blackmail was committed.

Two, that Arafan participated in the joint criminal enterprise in some way. The prosecution contend here that Arafan's participation was the benefit he obtained, his signature to the partnership agreement, Count 8, his signature, in [the] terms of settlement, Count 18 and his meeting with Rifat at the Mobil petrol station.

The third element, that Baini and/or Arafan, in accordance with their agreement, performed all the acts necessary to commit the offence of blackmail. And fourthly, that Arafan had the state of mind or the intention to commit the offence of blackmail at the time he made the agreement with Baini.

...

First, you must be satisfied that Arafan made an agreement with Baini to pursue a joint criminal enterprise. Such an agreement, you might expect, would not be expressly stated and it is said by the Crown in this case, may be inferred from the surrounding circumstances, which I have described to you as necessitating the drawing of inferences.

The second part of the element requires that the prosecution prove that the agreement remained in existence when the offence was committed. If there is a possibility that the agreement had been called off prior to that time, or that Arafan had withdrawn from that agreement, then this first element will not be met.

I do not recall any suggestion that the agreement was called off. Rather it is contended that the prosecution have not established, beyond reasonable doubt, that an agreement was made in the first place.

Participation, the second element, simply means that Mr Arafan must have done something to contribute to the joint criminal enterprise. It is not enough that he merely agreed that it should be carried out. For this element to be satisfied, you will need to find that Arafan performed some conduct, either legal or illegal, that in some way contributed to the commission of the crime.

It does not matter how important or unimportant those acts were, to the completion of the enterprise, as long as he did something to assist. In this case, as I repeat, the prosecution alleged Arafan participated in the agreement by the receipt of money, the signing of the terms, the deed of partnership, the signing of the terms of settlement, and the meeting with Rifat at the Mobil service station.

The third element, the prosecution must prove is that in accordance with their agreement, the parties to the agreement, between them, performed all the acts necessary to commit the offence of blackmail.

Again, there are two parts to this element. First, you must be satisfied that all of the necessary acts were committed by the parties to the agreement. This means that you must find that all of the following matters have been proven, beyond reasonable doubt. That is to say the four elements of the offence of blackmail, which I have described in the notes on page 1. That is to say that Baini with a view to gain for himself and/or Arafan, made a demand on Rifat, or in the case of Srower in Count 50. That the demand was unwarranted and the demand was made with menaces in the manner I have described.

It is only if you are satisfied that the parties performed all the acts necessary to commit the offence of blackmail, that the commission of this offence was within the scope of their agreement, that this third element will be made out.

The fourth element relates to Mr Arafan's state of mind, namely that he had the intention to commit the offence of blackmail at the time he made the agreement with Mr Baini. It is the prosecution's contention that Arafan must have intended Baini to make the unwarranted demands with menaces or threats upon Rifat, his family, horses or business, with a view to obtain a benefit for himself and/or for Arafan.

Arafan must have had that state of mind. It will not be sufficient for the prosecution to prove that one, be it Arafan or Baini, to the agreement, had that state of mind at the time of entering into the agreement. Both must have that state of mind.

To summarise. Before you can find Arafan guilty of blackmail by joint criminal enterprise, the prosecution must prove to you, beyond reasonable doubt, the four elements that I have set out in p.3 of the notes, and I do not propose to repeat them.

24 It seems clear that the trial judge based his directions to the jury regarding joint criminal enterprise upon what is set out, in that regard, in the Victorian Criminal Charge Book prepared by the Judicial College of Victoria. The model charge proposed regarding joint criminal enterprise is in the following terms:

In order to find [name of accused] guilty of committing [name of offence] by a joint criminal enterprise, there are 4 elements, all of which the prosecution must prove beyond reasonable doubt. I will list them for you and then explain each one in detail.

The first element that the prosecution must prove is that the accused made an agreement with other people to pursue a joint criminal enterprise, and that the agreement remained in existence when the offence of [name of offence] was committed.

The second element that the prosecution must prove is that the accused participated in the joint criminal enterprise in some way.

The third element that the prosecution must prove is that, in accordance with that agreement, the parties to the agreement between them performed all of the acts necessary to commit [name of offence].

The fourth element that the prosecution must prove is that the accused had the state of mind necessary to commit [name of offence] at the time of entering the agreement.

Before you can find [name of accused] guilty of [name of offence] by joint criminal enterprise, you must be satisfied that all four of these elements have been proven beyond reasonable doubt.

25 The Bench Notes to that model charge refer to joint criminal enterprise as a species of liability that is quite separate from other forms of common purpose including, in particular, acting in concert. Those Bench Notes indicate that the difference between pursuing a 'joint criminal enterprise' and 'acting in concert' is that, to be liable by way of acting in concert, the accused must be 'present' when the charged offence is committed. The Bench Notes suggest that this is not the case in relation to joint criminal enterprise, citing as authority for that proposition two cases; the decision of the High Court in Johns v The Queen,[5] and that of the Full Court of the Supreme Court of Victoria in R v Clarke & Johnstone.[6]

26 The Bench Notes go on to suggest that, unlike offenders who act in concert (where liability is both primary and direct), liability in the case of joint criminal enterprise may be seen as is derivative.[7] That is because the accused need not, in such circumstances, be present at the commission of the offence.

27 For present purposes, there is little that need be said about the first, third and fourth elements, as set out above, which must be established in order to make out a case of joint criminal enterprise. The focus of debate in the application before this Court centred around the second of those elements, namely that of 'participation'.

28 The model charge set out in the Victorian Criminal Charge Book suggests that the jury be told that this second element can be established in the following way:

The second element that the prosecution must prove is that the accused participated in the joint criminal enterprise in some way.

That is, the accused must have done something to contribute to that enterprise. It is not enough that s/he merely agreed that it should be carried out.

For this element to be satisfied, you need to find that [name of accused] performed some conduct, either legal or illegal, that in some way contributed to the commission of the crime. It does not matter how important or unimportant those acts were to the completion of the enterprise, as long as s/he did something to assist.

In this case, the prosecution alleged that [name of accused] participated in the agreement by [insert prosecution evidence about [name of accused]'s participation]. The defence denied this, arguing [describe relevant defence evidence and/or arguments].

29 This element of 'participation' is attributed, in the Bench Notes, to the decision in Clarke.[8] That case concerned the liability of an offender who had participated in the purchase of a farm on which marijuana was later grown, and who had also purchased various items for use on that farm. The offender visited the farm from time to time. The Crown case was that the whole project was a joint criminal enterprise or, in the alternative, that the offender had aided and abetted the principal grower.

30 One of the grounds of appeal complained of the trial judge's failure, in that case, to direct the jury as to 'concert'. The Full Court observed, however, that the case had not been conducted as one of concert. Accordingly, the standard direction to be found in R v Lowery & King (No 2),[9] and approved in R v Jensen,[10] was not required to be given. The Full Court noted that the trial judge had, at no time, mentioned the expression 'concert' in his charge, and nor had he ever intended to do so. Concert, in this State, was said to be dependent for its application upon the presence of the co-offenders at the scene at the time of the commission of the offence. Such a requirement could have no sensible application to the commission of the type of offending involved in Clarke.[11] This was precisely the kind of offence where a number of offenders might be expected to be involved, and the parts played by some, such as financing and marketing, would never bring them onto the land where the drug was being cultivated.

31 In the joint judgment of the Full Court (Crockett, McGarvie and Southwell JJ) the following passage appears:

The offence can be (and usually is when conducted on a large scale), and in this case truly was, a "joint venture". Still less is the offence as charged and presented by the Crown a mere case of conspiracy. The gist of the offence was actual participation in some aspect of the trafficking - not merely an agreement to traffick.[12]

32 The reference in the passage above to 'actual participation' may well be the source of the second of the four elements of joint criminal enterprise identified in the model charge, and specifically addressed by the trial judge in the present case.

33 The decision in Clarke[13] was later followed by this Court in R v Lao & Nguyen.[14] That was a case in which the accused were charged with a single count of trafficking in heroin on a 'between dates' basis. In other words, the offence was pleaded as a Giretti[15] count, that is, as a continuous trafficking enterprise. Vincent JA said as follows:

in order to secure the conviction of Lao or Nguyen for trafficking in combination with each other or with Tong and others in a Giretti sense, the prosecution would need to establish (inter alia) that the individual concerned participated in what he recognised was a continuous integrated activity conducted by the Tong group.[16]

34 It should, of course, be understood that in both Clarke[17] and Nguyen[18] there was ample evidence that each accused had 'participated' in the fullest sense in the commission of a range of drug-related activities. In Nguyen,[19] for example, each accused engaged in a number of specific acts of trafficking, Lao as the supplier of the drugs and Nguyen as purchaser, those acts being treated merely as overt acts in proof of their being engaged in the continuous business of trafficking. It was that business of trafficking which was said to be a 'joint criminal enterprise'. It was in relation to that business of trafficking that each accused performed a different, but interrelated, role.

35 In the present case, the question which the trial judge posed for the jury was whether they were satisfied, as against the applicant, that he 'participated in the joint enterprise in some way'. That was explained as requiring them to be satisfied that, on the evidence admissible against the applicant, he had taken 'some steps to further the criminal enterprise'.

36 As the trial judge correctly told the jury, it was not necessary for the Crown to establish that the applicant had performed some specifically illegal act in furtherance of the joint criminal enterprise. It was, however, necessary, as the Crown frankly conceded in oral argument before this Court, that there be evidence that the applicant did something (other than simply agree to the commission of the offences charged) in furtherance of that joint criminal enterprise.

37 The grounds of appeal upon which the applicant relied included a claim that the verdicts in his case were unsafe and unsatisfactory (ground 1), a contention that his trial miscarried because the prosecutor changed the nature of the Crown case (ground 2), a challenge to the trial judge's directions regarding joint criminal enterprise (ground 3), an attack upon the trial judge's directions as to inferences and circumstantial evidence (ground 4), and a complaint about the trial judge's refusal to sever a count that did not concern the applicant (ground 5).

38 As previously stated, the Crown, in its written submissions before this Court, conceded that the applicant was entitled to succeed on ground 2. The Crown accepted that the reformulation of the case against the applicant, after all of its evidence had been led, had resulted in prejudice and had given rise to a substantial miscarriage of justice.

39 The Crown's concession regarding ground 2 was, in our view, rightly made. The case against the applicant was, as we have said, opened on the basis that he was an aider and abettor. Yet, it was clear throughout that the applicant never personally threatened Rifat, or made any demands of him. It was Baini alone who had acted in that way.

40 The change from aiding and abetting to joint criminal enterprise resulted in a trial that differed significantly from that which had been foreshadowed. Critically, it introduced a new element into the case, the need for proof of 'participation' on the part of the applicant in the joint criminal enterprise. Had the case been left to the jury as one of aiding and abetting, or indeed acting in concert, the applicant's presence at the time of the offending, if it had been established, would have satisfied the need for such 'participation'. Once the change in position had taken place, there had to be a focus upon facts from which such 'participation' could be inferred. It was only at the very last stage of the trial, during the course of his Honour's charge, that this came to be appreciated.

41 Because of the Crown's concession that there must be a new trial, as a result of ground 2 having been made good, it is unnecessary to say anything about any of the other grounds that would have the same effect. Ground 1, however, is in a different category. That ground is of critical importance to the disposition of this case because, if made good, it results not merely in a new trial being ordered, but a complete acquittal on all counts.

42 The applicant's submission in support of ground 1 took essentially the following form. First, the fact that he was not present when the threats or demands were made was said to be fatal to any form of joint criminal enterprise. Secondly, even if that proposition could not be made good, there was, nevertheless, no evidence capable of satisfying the jury beyond reasonable doubt that he had 'participated' in the blackmailing of Rifat. Accordingly, he could not be convicted on the basis of joint criminal enterprise. Thirdly, even if there was such evidence available, it was so inherently weak that this Court, having quashed the convictions sustained, should exercise its discretion by declining to order a retrial. The Court should instead enter verdicts of acquittal on all counts.

43 The first submission cannot be accepted. While it is true that, as the law in this State presently stands, the better view may be that acting in concert requires proof of presence at the scene of the offending,[20] that is by no means definitively established. What is clear, however, is that presence is not a prerequisite for all forms of joint criminal enterprise.[21]

44 In Osland v The Queen,[22] McHugh J at one point suggested that acting in concert (resulting in primary, and not derivative, liability) did require physical presence at the scene of the crime. His Honour said:

However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2] by Smith J who directed the jury in the following terms:

"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime."[23]

45 Curiously, at a later point in his reasons for judgment, McHugh J seemed to acknowledge that there could be liability for 'acting in concert' even where the accused was not physically present. It is fair to say, however, that his Honour added that such presence would undoubtedly strengthen the Crown case. He said:

Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.[24]

46 McHugh J's suggestion in Osland[25] that acting in concert can, in some cases, be established without physical presence is sometimes thought to reflect the conclusion reached by the High Court some years earlier in Johns[26] to the effect that such presence is not an element of common purpose. It must be remembered, however, that Johns[27] was neither a case of acting in concert, nor of joint criminal enterprise in its ordinary sense. It was rather a case of what has come to be known as 'extended common purpose'.

47 In any event, it is clear from cases such as Clarke[28] and Nguyen,[29] as well as others to which we shall shortly refer, that the fact that the applicant was never physically present at the time Baini threatened Rifat, or made demands of him, was in no way fatal to the Crown case, as ultimately propounded, namely, as one of joint criminal enterprise.

48 The applicant's next submission, namely, that there was no evidence capable of establishing that he had relevantly 'participated' in the commission of these offences, seemed to us to have greater substance.

49 In dealing with that submission, it should first be noted that the term 'joint criminal enterprise' has been used in a variety of different ways, and not always consistently as between the courts of different States.

50 In McAuliffe v The Queen,[30] the High Court regarded the various terms used to encompass what it called common purpose as merely variants of a single theme. The Court said:

The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime.[31]

51 In R v Tangye,[32] Hunt CJ at CL attempted to explain the difference between various forms of common purpose, stating in somewhat exasperated terms:

The Crown needs to rely upon a straightforward joint criminal enterprise only where ... it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said.[33]

52 In Gillard v The Queen,[34] the appellant and one P were each charged with two counts of murder and one count of attempted murder. They had driven to the car repair workshop of K in a van stolen by the appellant at P's request, after having telephoned to confirm that K was there. When they arrived, the appellant remained in the car while P walked into the workshop, shot and killed K and another man, and shot and injured a third man.

53 The case against P was that he was a hired killer, contracted to kill K. The case against the appellant was that he was a party to the plan to kill K, and that he had been aware of what P was planning to do. The prosecution led evidence upon which the jury could have concluded that the appellant knew that P went into the workshop with a loaded gun. The appellant, who did not give evidence at the trial, had asserted in his record of interview that he thought at all times that only a robbery was planned. The prosecution contended at trial that, even on that hypothesis, there was a case of manslaughter to be left to the jury on the basis of a common purpose between the appellant and P of engaging in a crime of violence that included the use of a loaded gun. Counsel for the appellant maintained that there should be no direction on manslaughter and sought a direction that the jury should either convict of murder, or acquit entirely.

54 The appellant was convicted on the two counts of murder and one of attempted murder. On appeal, he contended that, notwithstanding his trial counsel's submission to the judge, manslaughter should have been left to the jury. That argument failed before the Full Court of the Supreme Court of South Australia. It succeeded in the High Court. It was held that, on the armed robbery hypothesis, there had been a viable case of manslaughter which should have been left to the jury. There would have been a common purpose of engaging in an act of criminal violence involving the hostile use of a loaded gun. The appellant would have been guilty of manslaughter if he had foreseen as a possibility that the principal offender might shoot, but had not foreseen shooting with intent to kill or cause grievous bodily harm.

55 Importantly, for present purposes, the High Court endorsed the principles stated in McAuliffe[35] to the effect that, where death results from a joint enterprise involving violence, and the level of violence contemplated by one participant exceeds that contemplated by another, one may be guilty of murder and the other guilty of manslaughter.

56 Hayne J, with whom Gummow J expressly agreed, said:

As was pointed out in McAuliffe, the terms "common purpose", "common design", "concert", "joint criminal enterprise" are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others.

In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission.

The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. "[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose". The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose. And "[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement".

As McAuliffe reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe, "the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind". To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that "a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it". The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.[36]

57 It was against the background of these statements of general principle by the High Court in particular that the question of joint criminal enterprise came to be considered by this Court in its recent decision in Likiardopoulos v The Queen.[37] In that case, the applicant was convicted of murder in circumstances where his liability was said to rest, in part, on that doctrine. One of his grounds of appeal complained of the trial judge's failure to direct the jury that liability by way of joint criminal enterprise required proof that the applicant was present at the time that the act or acts causing death were performed. He further complained that the trial judge had erred in directing the jury that proof of his presence was not required, and in leaving the case on the basis of joint criminal enterprise in circumstances where the Crown had not excluded the possibility that he was absent when the act or acts causing death were performed.

58 It was submitted, on behalf of the applicant in Likiardopoulos,[38] that 'joint criminal enterprise' was, in substance, nothing more than another term for 'acting in concert'. It was further submitted that, given that the latter form of joint liability required the presence of the offender when the relevant act was done, so too must its analogue require such presence. However, the trial judge had directed the jury that it was not necessary for the applicant to have been present throughout the series of assaults that led to the death of the victim. That was said to have been an error. Next, because no one could say what specific act or acts had caused the death, and because the applicant had not been present throughout the assaults, it had not been open to the jury to have convicted on the basis of joint criminal enterprise.

59 In a joint judgment, this Court (Buchanan, Ashley and Tate JJA) rejected each of these contentions. Having referred to McAuliffe,[39] Osland[40] and Tangye,[41] the Court observed first that the nomenclature used to describe ways in which more than one person may be liable as a principal offender for a criminal venture has presented a recurring problem. The Court said that the problem with nomenclature had its roots, at least in part, in historical distinctions which were now long past. However, that problem had been compounded, in more recent times, by the distinction drawn between what was sometimes called 'traditional common purpose', and 'extended common purpose'.[42]

60 The doctrine of 'extended common purpose' was not of any relevance in Likiardopoulos.[43] The Crown did not put its case against the applicant on that basis.

61 As to problems with nomenclature, the Court noted three varieties of circumstances which had been typically encountered and each given a label: 'acting in concert', 'joint criminal enterprise' and 'extended common purpose'. The first of these, concert, had been described to the jury by Smith J in Lowery (No 2)[44] as requiring presence. However, that direction was given in a context where both offenders were present, and the charge did not need to explore other circumstances.

62 The Court, in Likiardopoulos,[45] referred to R v Morgan[46] where the Victorian Court of Criminal Appeal had rejected a submission that 'presence' was always required in a case of alleged joint criminal conduct. The Court, in Likiardopoulos,[47] also rejected a submission, said to be supported by the High Court in Osland,[48] that 'joint criminal enterprise' was the equivalent of 'concert' and, for that reason alone, required presence.

63 Finally, the Court in Likiardopoulos[49] referred to a number of cases in this State in which principles governing joint offending, which did not fit 'concert', had been developed. The Court said that cases such as Clarke,[50] Morgan,[51] R v Franklin[52] and Nguyen,[53] all supported the existence of a kind of joint offender liability having the elements described by the trial judge in Likiardopoulos,[54] not requiring presence of all offenders, but certainly requiring 'participation' in the criminal enterprise. The Court went on to say that 'by participation is meant the taking of a step or steps to further that enterprise'.[55]

64 Likiardopoulos[56] was, of course, not decided until after we had pronounced orders allowing this appeal. With respect, the judgment provides a clear and helpful exposition of the law on joint criminal enterprise in this State. We consider that it supports our conclusion that the fact that the applicant in the current case was not present when the various demands with menaces were made was not, of itself, an obstacle to his conviction on the basis of that doctrine. However, it also supports our conclusion that, in a case of joint criminal enterprise, more must be proved than mere agreement reflecting a common purpose. This was not a prosecution for conspiracy. Having elected to present its case as one of joint criminal enterprise, the Crown was required to establish 'participation' in the sense described in Likiardopoulos,[57] that is, 'taking a step or steps to further the enterprise', if it was to sheet home criminal liability on the basis of that form of joint offending.

65 The applicant, as has been seen, submitted that, even if his first argument were to be rejected, and his presence was not required in order for him to be found guilty on the basis of joint criminal enterprise, the Crown case, taken at its highest, could not sustain a finding of guilt on the basis of that doctrine. That submission was advanced in support of his contention that, he was entitled to a complete acquittal on all counts.

66 The argument was put on the following basis. Once the Crown invoked a form of joint criminal enterprise which did not require proof that the applicant was present at the commission of each of the offences charged, it at least had to establish that he had 'participated' in the commission of each of those offences.

67 The trial judge, as we have seen, left four distinct items of evidence to the jury as potentially capable of establishing such 'participation'. These were:

• his signing of what was described as the 'terms of settlement' (count 18);

• his execution of a 'deed of partnership' (count 8); and

• his meeting with Rifat at the Mobil Quix petrol station.

68 The Crown submitted that the applicant's contention that he should be acquitted on all counts should be rejected. It submitted that there was evidence upon which a jury would be entitled to find that he had engaged in a joint criminal enterprise with Baini to blackmail Rifat, and that there was a proper basis upon which the jury could find that he had 'participated' in each of the offences with which he was charged.

69 Importantly, however, the Crown did not rely upon the same four items of evidence as proof of 'participation' as those listed above which had been put forward at the trial. For example, the Crown did not, any longer, place any reliance upon the 'terms of settlement'. Nor did it rely upon the Mobil Quix petrol station conversation (presumably because the meeting that took place between the applicant and Rifat did not occur until 2007, more than a year after the last of the offences upon which the applicant was convicted had taken place). The Crown sought to rely instead upon the meeting that took place between the applicant and Rifat at Sydney Airport, presumably in 2005 (though the date of that meeting was never made clear). The Crown also sought to rely upon two of the matters identified at the trial, namely, the payments received by the applicant, and his having executed the deed of partnership, most likely on or about 1 June 2005.

70 In our view, the meeting which took place between the applicant and Rifat at Sydney Airport in 2005 could not conceivably amount to evidence of his having relevantly 'participated' in any of Baini's acts of blackmail. Rifat himself said that the applicant was at the airport in order to protect Rifat and his family from Hakim. Rifat did not suggest that there was anything untoward about that meeting. No threats of any kind were made, and no demands were put forward.

71 A meeting of that kind, though in one sense arguably linked to Baini and his role in providing Rifat with protection, could not properly be regarded as evidencing 'participation' by the applicant in Baini's offending. As the Crown fairly conceded, 'participation' in the relevant sense requires the doing of some act which can properly be described as being 'in furtherance' of the particular offence charged, in this case, blackmail. Rifat's description of the meeting made it clear that in his mind it was entirely innocent, and, in that sense, innocuous. It is hardly surprising, in these circumstances, that neither the prosecutor nor the trial judge regarded this meeting as being capable of constituting 'participation' in any relevant sense. It was only before this Court that any reliance was sought to be placed upon this meeting, and, for the reasons set out above, that reliance was misplaced.

72 Rifat's payments of significant sums, on a regular basis, into the applicant's account might be seen as providing support for the contention that he was a participant in an arrangement or understanding with Baini to blackmail Rifat. It is questionable, however, whether the mere receipt of such monies is capable of constituting 'participation' in the commission of that offence.

73 In that regard, it must be remembered that blackmail consists of making an unwarranted demand with menaces, with a view to gain.[58] The offence is complete at the moment the demand is made. There is no requirement that any money actually be paid.

74 The applicant's receipt of various sums, even if the timing of the payments be generally in accord with the date of the alleged demands, cannot logically be viewed as acts done 'in furtherance' of the commission of each of the offences charged. That was effectively conceded by the Crown in oral submissions before this Court, and correctly so.

75 Finally, there is a problem with the Crown's intention to rely upon the applicant's signature on the deed of partnership, without more, as evidence of 'participation' in the relevant offending. That act is somewhat removed from the making of the demands that were said to constitute the separate acts of blackmail in this case. The jury might reason that the benefit conferred upon the applicant, through his having been given a share of Rifat's business, tended to support the Crown case that he was jointly involved with Baini in blackmailing Rifat. On the other hand, there would still be a significant degree of surmise and conjecture in coming to that conclusion. Clearly, signing a deed of that kind is in no way comparable to the acts that were said to constitute 'participation' in cases like Clarke,[59] and Nguyen.[60]

76 It is unnecessary, in these circumstances, to consider the third of the applicant's submissions, namely, that the Court should not, in the exercise of its discretion, order a new trial because of the inherent weakness of any Crown case that might be put forward. The fact is that there was no evidence capable of sustaining a conviction on any of the counts on which the applicant was presented once the case was put forward as one of joint criminal enterprise.

77 It was in these circumstances that we concluded that, not only should the convictions be quashed, but that there should be judgment and verdicts of acquittal entered on all counts.

78 For the sake of completeness, we should add that the ground complaining of inconsistent verdicts seemed to us to have been made out. The applicant was convicted on all counts involving demands with menaces up to November 2005, and acquitted on all counts involving essentially the same types of demands made thereafter. We could discern no rational basis upon which the jury could have differentiated in that way, having regard to the evidence led in this case. The Crown very fairly conceded that there was no apparent justification for that differentiation. Had it been necessary to do so, we would have set aside these convictions on the basis of that ground alone.

[1] R v Lowery & King (No 2) [1972] VicRp 63; [1972] VR 560.

[4] See generally King v The Queen [1986] HCA 59; (1986) 161 CLR 423 for an analogous outcome in a case where there had been a belated change to the way in which the Crown put its case in terms of liability.

[7] See Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316.

[8] [1986] VicRp 64; [1986] VR 643 ('Lowery (No 2)').

[16] Nguyen [2002] VSCA 157; (2002) 5 VR 129, 145 (emphasis added).

[20] Lowery (No 2) [1972] VicRp 63; [1972] VR 560, 561. To the same effect, as we have said, is Clarke [1986] VicRp 64; [1986] VR 643.

[21] In Johns [1980] HCA 3; (1980) 143 CLR 108, the High Court made it plain that, in cases of extended common purpose, actual presence is not required. As we have already indicated, the old rule which required presence for aiding and abetting may have been modified in this State; see R v Wong [2005] VSC 96; (2005) 202 FLR 1. Cf Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 493 (Mason J).

[36] [2003] HCA 64; (2003) 219 CLR 1, 35-36 (citations omitted). Kirby J was critical of this exposition of joint criminal enterprise, and would have favoured reconsidering the correctness of McAuliffe [1995] HCA 37; (1995) 183 CLR 108.

[37] [2010] VSCA 344 ('Likiardopoulos').

[42] The Court noted that the doctrine of 'extended common purpose' had its origins in Johns [1980] HCA 3; (1980) 143 CLR 108, and its existence had been confirmed in McAuliffe [1995] HCA 37; (1995) 183 CLR 108 and Gillard [2003] HCA 64; (2003) 219 CLR 1. It added that, despite academic criticisms - and the minority opinion of Kirby J - the doctrine had withstood attack, at least in the context of murder convictions in Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439.

Arafan v The Queen [2010] VSCA 356

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Judgment (147 paragraphs)

Arafan v The Queen [2010] VSCA 356 (22 December 2010)

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Cases Cited (11)