Ardestani v R

Court of Criminal Appeal (NSW)|2023-11-29|Before: Harrison CJ, Button J, Weinstein J

HEADNOTE [This headnote is not to be read as part of the judgment] On 16 September 2022, Mr Saeid Miraki Ardestani (the applicant) was found guilty of a specially aggravated break and enter (contrary to s 112(3) of the Crimes Act 1900 (NSW)) following the conclusion of a trial by jury in the District Court of NSW. The offending was said to have occurred on the evening of 15 January 2019. The applicant, a co-offender convicted alongside the applicant following the joint trial, and an unknown third offender had entered a dwelling house in Merrylands, armed with an imitation pistol, as part of a joint criminal enterprise to assault the victim sleeping inside and steal a sum of cash he was known to possess. In fact, the offending that occurred went considerably beyond this. At around 11 PM, the victim was awoken by the co-offender sitting on his stomach with his hand on his neck. The co-offender placed an imitation pistol to the side of the face of the victim and demanded to know where the cash was being held. At the same time, the applicant and third offender were stationed at the other side of the home, preventing the victim's flatmate from intervening. The applicant was in possession of a second imitation pistol. The co-offender then began punching the victim repeatedly to the face and throwing him around the room. As a result, the victim sustained significant facial injuries that could be readily characterised as actual bodily harm. Though the victim's wallet was ultimately taken, the cash was not discovered. The applicant was sentenced to a term of imprisonment of 5 years, with a non-parole period of 3 years and 3 months. Following the abandonment of the first ground of appeal at the oral hearing, leave was ultimately sought to rely on two proposed grounds of appeal: that the verdict was unreasonable or unsupported by the evidence (ground two); and that a miscarriage of justice was occasioned by the failure of the written directions to direct the jury as to what it must be satisfied of in order to find either joint criminal enterprise or extended joint criminal enterprise established (ground three). Submissions regarding the unreasonable verdict ground were grouped into three particulars. The first and third particular concerned whether the evidence at trial was sufficient for the jury to be satisfied beyond reasonable doubt that there was an agreement between the applicant and co-offender to assault the victim, and that the applicant foresaw the possibility of actual bodily harm being inflicted. The second particular, in contrast, focused on the submission that the legal doctrine of extended joint criminal enterprise and the aggravating circumstance of being "in company" cannot be combined. The Court held, allowing leave to appeal but dismissing the appeal on both grounds (Button J, with Harrison CJ at CL and Weinstein J agreeing): As to ground two: 1. There was ample evidence upon which one could be satisfied of an agreement to assault beyond reasonable doubt. The assault was the commencement of the action, and the applicant took steps immediately to block the flatmate from interfering. There was no suggestion of the assailants seeking to search the home for the cash before the application of force. These factors support the inference that the application of force to the victim was expected, indeed planned, from the applicant's perspective: [50]-[56]. 2. The applicant's conduct throughout the offending provided ample evidence that, at the latest from the time the co-offender began assaulting the victim, the applicant foresaw the possibility that actual bodily harm would be or was being inflicted: [58]. 3. The legal concept of extended joint criminal enterprise and the aggravating circumstance of being "in company" are capable of standing together. It is not the law that, in order to be guilty of committing an offence in company, an offender must have been "directed towards" the completion of each and every element of the offence in question. So long as the offender was acting in company regarding the basal elements of the alleged offence, as opposed to possible consequences, that is sufficient: [60]-[72]. Markou v R (2012) 221 A Crim R 48; [2012] NSWCCA 64; Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5, considered; Ford v R [2020] NSWCCA 99, distinguished. 1. It was well open to the jury to return a verdict of guilty: [49] As to ground three: 1. The trial judge provided oral and written directions about the elements of the offence charged on the indictment. Oral directions only were provided about the doctrines of complicity. There is nothing to suggest a miscarriage of justice was occasioned through the lack of written directions about complicity: [78]-[82].

JUDGMENT

HARRISON CJ at CL: I have had the considerable benefit of reading in draft the reasons of Button J. Having reviewed the evidence independently, I agree with the orders that his Honour proposes.
BUTTON J:

Introduction This judgment resolves an application for leave to appeal against conviction brought by Mr Saeid Miraki Ardestani (the applicant). The conviction was entered after a verdict of guilty was returned at the conclusion of a trial by jury on a single count. It averred that on 15 January 2019 at Merrylands (a suburb of Sydney) the applicant and Mr Eric Moefili (the co-accused) had broken and entered the dwelling house of Mr Omid Moridani (the victim) and Mr Sattar Mahmodi (the flatmate); and then committed inside that house a serious indictable offence, namely assault occasioning actual bodily harm, upon the victim; and that they had done so in circumstances of aggravation, namely being in company with each other and a third unidentified person; and in circumstances of special aggravation, namely being armed with a dangerous weapon in the form of an imitation pistol (contrary to s 112(3) of the Crimes Act 1900 (NSW)).

The applicant was sentenced to imprisonment, but no application for leave to appeal against sentence was brought.
At the hearing in this Court, two grounds of appeal were pressed:

Ground two: The verdict was unreasonable or unsupported by the evidence; and

Ground three: A miscarriage of justice was occasioned by the failure of the written directions (MFI 8) to direct the jury as to what it must be satisfied of to find either joint criminal enterprise or extended joint criminal enterprise established.

Because at least one ground involves a question of mixed law and fact, leave is required. For the following reasons, I would grant leave to pursue both grounds, but dismiss the appeal.

Background

There was no dispute in this Court that the Crown case at trial could be summarised as follows.
The applicant and the victim were friends, having met in 2013. The applicant had been a guest at the granny flat shared by the victim and the flatmate. The victim had met the co-accused briefly on one occasion, in the company of the applicant, and knew him as 'X'.
In late 2018, the victim sold his van for $13,000 cash. He informed the applicant of that fact.
In early January 2019, the applicant started to ask the victim for money, the former having lost funds gambling. The victim gave the applicant $1,500 cash.
At 3:16 PM on 15 January 2019 (the date of the count) the applicant sent a text message to the victim, who did not respond. In the following hours, the applicant sought to reach the victim by phone, without success. At the time, the victim had $10,000 cash at his home.
The applicant and the co-accused knew each other well at that time. The applicant told the co-offender about the cash possessed by the victim. The two men planned to break into the home of the victim, whilst armed with an imitation pistol, to assault him, and take his money.
The victim went to bed at about 6 PM on 15 January 2019. At about 11 PM, the applicant, the co-accused, and at least one other unknown person broke into the granny flat. Each of the offenders was wearing a face covering. The victim was woken by the co-accused sitting on his stomach with his hand on his neck. The co-accused placed an imitation pistol to the side of the face of the victim and said "Shut the fuck up. Where's the money?" The co-accused then began punching the victim repeatedly to the face, and throwing him around the room, as the victim screamed for help.
Simultaneously, the applicant and the third offender moved towards the other end of the granny flat. That was in an effort to ensure that the flatmate did not intervene in what was occurring. At the time, the applicant had the imitation pistol down the front of his pants.
Before leaving the premises, one of the three offenders took the victim's wallet.
The victim sustained significant injuries to his face.
The applicant concealed the imitation pistol inside a washing machine in his home. It was located there by police the following day.
The two occupants of the granny flat recognised and identified the applicant at the time of the offence, and in fact named him immediately in the call to emergency services that evening. Three days later, on 22 January 2022, the victim selected an image of the co-accused during a picture identification process as being similar to the person who brutalised him, and also said that the voice of the co-accused was similar to that of the person who attacked him.
I proceed to expand on that summary a little from the trial transcript to the extent necessary to understand the grounds of appeal.
In his opening address to the jury, defence counsel made it clear that the central issue in the trial was whether his client was there at all at the time of the alleged offence.
In his examination-in-chief, the victim gave the following evidence about how the event commenced: Q. You said you went to sleep after 6pm. What is the next thing that you remember after you fell asleep? A. INTERPRETER: After I went to sleep? Q. Yes. A. INTERPRETER: I felt suffocating and then I opened my eyes and I saw someone on, someone on top of me. Q. You said you felt suffocating, what do you mean by that? A. INTERPRETER: I felt some sort of pain in my body that didn't sound normal like it awoke me. Q. Pain in your body that awoke you? A. INTERPRETER: Yes. Q. You said you woke up and saw the person on top of you? A. INTERPRETER: Yes. Q. What did you see exactly? A. INTERPRETER: There was a person with some stocking over his, his face like a mask and he was wearing a hat and when he put his, his hand on my neck not like to choke me but, but just to make sure that I wouldn't move, I noticed that he had gloves on and he put a, put a gun to the right-hand side of my face. Q. This man was on top of you and you said with a hand on your neck and a gun to the right side of your face, is that right? A. INTERPRETER: This side, I'm not sure this is right or left. Q. Left side, temple area? A. INTERPRETER: Yeah this, he put it here. Q. Did you notice anything else about this man on top of you? A. INTERPRETER: He said "Shut the fuck up, where is money?" Q. Did you notice anything about him when he spoke? A. INTERPRETER: His voice sounded very much like X's and I felt like it was, it was X. Q. Were you able to see the gun when it was placed near your temple? A. INTERPRETER: Yes. Q. Can you describe that for us? A. INTERPRETER: It was at that darkness of the night that it was, it looked like a pistol that he had put on my temple.
As he awoke, the victim turned his head and saw the applicant, whom he recognised despite there being a stocking over his face, and another person.
When he yelled out for help, the victim was punched to the face by the man who was on top of him, causing significant injuries.
The memory of the victim was that, whilst he was being beaten, the applicant and the third man moved to the next room, where the flatmate was located. His impression was that the applicant was holding the item that seemed to be a firearm by that stage. The man who was punching the victim was saying "Shut up. Where is the money?" The victim was asking the applicant for help. In particular, the victim believed that he had lost the sight in one of his eyes, and begged the applicant by name to turn on the light of the premises to inspect the injury. Eventually, he did so.
The co-offender said to the applicant "Turn it off, are you crazy?". The light was turned off, it having been on for less than 10 seconds. A short period of time after the light was turned off, the intruders departed, after a further person had briefly come to the door and had a short conversation with the applicant.
A little later, the victim realised that in fact none of the cash had been stolen.
In cross-examination by counsel for the applicant, the victim was asked about the details of the man sitting on top of him presenting what seemed to be a pistol to his face.
In light of the real issue in the trial, much of the cross-examination by counsel for the applicant was directed towards the question of identification, and does not require review here.
When asked in cross-examination about the length of time that the light was turned on, the victim said that it was "[a] brief moment, short time".
The central proposition that the applicant had not been there at all was put, and firmly rejected by the victim.
The flatmate, Mr Mahmodi, gave the following further evidence as to how he was awoken on the night of the offending: Q. You went to sleep at 8pm. Did you sleep through the night, or did you wake up at all? A. WITNESS: No. When I sleep, I sleep until morning. I just - when I went to sleep - I'm not sure. I just - I been asleep. I just hear something. I couldn't hear exactly because I was sleepy. And I just - I was thinking I could hear, it's something. I was thinking "Is it a dream?" Q. What did you hear? A. WITNESS: After - his voice was too loud. I could hear "I don't have money." And he was like - I can't say exactly. Like, he said "I don't have money. Help me. I don't have - my nose. My eyes. I can't see." And then I just moved. I saw - now I see something real was going on. And when I moved on my bed, I saw one big boy and their face was covered. And he was in front of me. He just pushed me in the corner, and I fall down. He said "Don't move. Don't move." And then I just moved, and I came up. I saw another person was behind him and he just told me - yeah. He just told me "Shh." When he said "Shush", I saw his lips and his eyes, and I saw his hand. It's exactly - Saeid came in our house many times. When he came in our house, I seen him always. He had a t-shirt like this. And I said "Saeid? What are you doing?" But his face was covered. When I said - because I can see it's Saeid. I said - they had the cover, but I can see it's Saeid. I said "Saeid, what are you doing?" The other person, he pushed me in the corner. When he see - I said I understand Saeid, he just run away. He just went outside. Because when I said "Saeid?", he just did like this, and he went.
Further evidence-in-chief was to the effect that when he had awoken, the flatmate moved to see the applicant, whom he also recognised despite the face covering, standing in front of him. The applicant pushed Mr Mahmodi into the corner of the room, told him to "Shh" and not to move. There was another man present behind the applicant, though the flatmate did not recognise him.
The flatmate could see the co-offender hitting the victim. He heard him saying "Give me the money. Give me the money". There was blood all over the floor, and on the walls. The flatmate saw a black gun down the front of the applicant's pants. He was told by the applicant "Don't move. Don't move". He heard the co-offender ask the applicant to hand over the gun, though the applicant did not. The three intruders left shortly afterwards.
Again, most of the cross-examination by counsel for the applicant was focused on the flatmate's identification evidence.
Mr Mahmodi maintained that the applicant was there that night. He denied that he might be mistaken.
At trial, the applicant relied upon a recorded interview that he had chosen to provide to the police, in which he denied knowing anything of the offending, and claimed that he had been home at the time.
He also relied upon the absence of scientific evidence linking him to the premises.
The applicant did not give evidence, called no witnesses, and did not raise good character in a general or specific sense.
I proceed now to set out the legal bases upon which the Crown went to the jury against the applicant. By the conclusion of the trial, it was clear that the allegation against the applicant was that he himself had broken and entered the premises in the company of at least the co-accused, having agreed to the commission of an assault upon the victim and the possession of an imitation pistol during the event. In other words, apart perhaps from the applicant having personally entered the premises himself, the Crown relied upon basic joint criminal enterprise with regard to all elements of the offence but one, as follows. With regard to the occasioning of actual bodily harm to the victim (which "converted" the assault into a serious indictable offence by way of the applicable maximum penalty of imprisonment for five years) the Crown case was not that that consequence had been agreed to by the applicant; rather, the allegation was that he foresaw the possibility of it occurring. In other words, with regard to that element, the doctrine relied upon was extended joint criminal enterprise.
The final part of this sketch is to summarise how the learned trial judge explained legal concepts to the jury in the summing-up.
In short, oral and written directions were given about the elements of the offence. The written directions were contained in MFI 6. That document set out the legal meaning of such things as being armed, a dangerous weapon, and a firearm.
Her Honour also provided the jury with oral directions about the complicity doctrines relied upon: basic joint criminal enterprise with regard to all elements but one; and extended joint enterprise with regard to that remaining element. Her Honour did not, however, provide the jury with written directions about any aspect of complicity.

Ground two: The verdict was unreasonable or unsupported by the evidence.

In support of this ground, the applicant relied on three main points or particulars said to demonstrate that the verdict of guilty against the applicant was unreasonable or unable to be supported. Two of them, the first and the third, were orthodox analyses of the sufficiency of the evidence underpinning satisfaction beyond reasonable doubt by the jury of a particular element. The second particular, however, was different: it was a submission that the legal ideas of extended joint criminal enterprise and being in company are disjunctive. Because of those differences between the particulars, I shall deal with them a little out of order.

First particular: sufficiency of evidence of agreement to assault?

Submissions for the applicant

Assuming that the Crown case was relevantly one of basic joint criminal enterprise, it was asserted that the evidence led at trial as to any agreement between the applicant and the co-offender to commit assault was equally consistent with an agreement to break, enter and commit larceny. Alternatively, it was equally consistent with an agreement merely to break and enter. 1. Written submissions for the applicant emphasised that the Crown closing presented its case as one focused on establishing the fact of an agreement to break and enter and steal property from the victim, which contemplated the use of a firearm. No evidence relied upon by the Crown, it was said, could rationally exclude the reasonable possibility that the assault itself was outside the scope of any agreement entered into by the applicant before the break and enter was effected. 2. During the hearing in this Court, it was put to counsel for the applicant that the Crown's closing also mentioned the fact that the "agreement [could] be reached at any point up until the commission of the crime". The submission in response was that, as the Crown clearly set out to establish a single agreement between the applicant and co-accused, such an agreement could only be reached up until the point when the first aspect in time of the offence, namely the breaking and entering, was committed. It was accepted that the evidence presented at trial of the applicant's actions while the assault was being committed - namely, his restraining of the flatmate from intervening in the assault - could be sufficient to make out an extended joint criminal enterprise. But it was argued that no evidence negatived the possibility that the agreement made was merely one to break, enter and steal, or indeed simply to break and enter.

Third particular: sufficiency of evidence of foresight of possibility of actual bodily harm?

Submissions for the applicant

To the extent that extended joint criminal enterprise was part of the Crown case, it was submitted that there was a reasonable doubt as to whether or not the applicant subjectively foresaw the possibility of an assault occasioning actual bodily harm occurring in the context of the offending. 1. On the applicant's written submissions, no guidance was provided in the Crown closing as to how the evidence adduced at trial proved beyond reasonable doubt that the applicant foresaw the possibility of assault occasioning actual bodily harm being inflicted on the victim. In fact, it was asserted that no part of the Crown case focused on proving specifically that the applicant ever foresaw the possibility of any incidental crime being committed outside the scope of the initial agreement. Though the guilty verdict suggests the jury was satisfied that the applicant had the requisite foresight, counsel for the applicant submitted that the evidentiary basis for that finding is unclear. 2. During the oral hearing, it was suggested to counsel that the evidence regarding the applicant's conduct during the offending as a whole may be sufficient to be satisfied beyond reasonable doubt that actual bodily harm was foreseen by him. This was accepted, though it was also submitted that the timing of such foresight was important: PARKIN: Your Honour can take that into account what, in fact, happened in determining what might have been foreseen, I accept that. But in my submission the sufficiency of the evidence about that point is not met simply by evidence of what, in fact, happened. There needs to be foresight anterior to that occurring and in my submission there just isn't adequate evidence in the Crown case. I can't really take it much further, than I wish I could direct your Honours to evidence about it. But it wasn't a matter which was the subject of any submissions by the Crown in their closing below.

Second particular: combining "in company" with extended joint criminal enterprise?

Submissions for the applicant

As for the second particular, different in nature, even if evidence of an extended joint criminal enterprise was available as a basis to convict on the evidence, counsel for the applicant argued that the use of extended joint criminal enterprise as the lawful basis upon which the applicant could be liable for the actual bodily harm could not be combined with the Crown's assertion that the offence was committed "in company". 1. Written submissions for the applicant cited a number of authorities regarding the meaning of acting "in company". It was observed that those acting in company must share a "common purpose": see R v Button [2002] NSWCCA 159 at [120]; Markou v R (2012) 221 A Crim R 48; [2012] NSWCCA 64 at [26]. Physical presence was also said to be a necessary factor. In Zheng v The Queen [2021] NSWCCA 78, Ierace J (Bell P and Button J agreeing) observed at [123]: "… There is a degree of overlap between the elements of joint criminal enterprise and an offence being committed "in company", notably, there being a common purpose. In order to establish that an offence was committed "in company", it is necessary that the applicant was also physically present, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant." 1. The necessity that a person be acting "in the company of another person or persons" to aggravate the basic offence is one that extends not only to the breaking and entering, it was said, but also to the assault occasioning actual bodily harm then committed. If the Crown case was that the basic joint criminal enterprise extended only to the break and enter offence, and that the applicant's liability for the result of the assault occasioning actual bodily harm was based on extended joint criminal enterprise, the applicant could only be said to be acting "in company" with respect to the former, lesser elements, and not the latter. This is because, it was submitted, the assault was outside the scope of the common purpose: it was foreseen as a possibility, but not the subject of agreement or the "working together" necessary for two offenders to be in company.

Submissions for the Crown

Initial written submissions for the Crown deal with this third particular merely by contending that the applicant's argument misunderstood the fact that the foundational offence - that is, break, enter and commit an assault occasioning actual bodily harm - included an agreement made between the applicant and co-offender to assault the victim. It was only the infliction of actual bodily harm that fell outside the scope of the agreement. Supplementary submissions filed after the oral hearing grappled with the issue more closely. The Crown reasoned that the concepts of "in company" and complicity, although overlapping, are not identical. To establish that the applicant committed the offence alleged here in company, proof of an express or implied arrangement or understanding between the offenders to act together to achieve some agreed criminal end was all that was required. The arrangement in this case, it was submitted, needed merely to "embrac[e] the assault", and not the consequential element of assault occasionally actual bodily harm.
During the hearing, the Crown relied on two authorities to demonstrate the asserted flaw in the applicant's submission, as follows: 1. Ford v R [2020] NSWCCA 99 concerned an appeal brought against the applicant's conviction for specially aggravated break, enter and commit a serious indictable offence (s 112(3) of the Crimes Act 1900). The aggravation asserted was that the offence was committed in company, and the special aggravation was the intentional wounding of the victim. It was argued that the trial judge erred in failing to consider whether the circumstance of special aggravation - to repeat, the wounding of the victim - was part of any common purpose, or shared intention, between the applicant and the co-offender such that they were in company, as I have said the circumstance of aggravation pursuant to s 112(2). 1. Brereton JA (with Bellew and Lonergan JJ agreeing) found that it was not necessary to establish that the circumstance of aggravation of being in company extended to the circumstance of special aggravation (at [51]). 2. The structure of s 112 of the Crimes Act 1900, it was held, is a "cascading one". The first step must be whether an accused person is guilty of the "simple offence". If so, it can secondly be considered whether there are circumstances of aggravation, such as being in company, so as to render that accused guilty of the "aggravated offence". Finally, if so, it can thirdly be considered whether there are also circumstances of special aggravation so as to render that accused guilty of the "specially aggravated offence". 3. In other words, the being in company "preceded" the wounding in the statutory structure. For that reason, the basic offence needed to have been proven to have been committed in company, but the wounding did not. 1. In Markou v R, the applicant had been convicted after a judge-alone trial of an assault occasioning actual bodily harm in company. The issue there was whether the Crown had proven beyond reasonable doubt that each co-accused had been acting "in company", sharing a common purpose. 1. The learned trial judge had focused on the two accused being physically present in each other's company and physically performing similar acts of violence, without focusing on the need for proof of "common purpose" underpinning those physical facts. 2. Macfarlan JA (RS Hulme J agreeing with the outcome of the appeal, but providing dissenting views on resentence; RA Hulme J agreeing with Macfarlan JA) found that the Crown only needed to establish that the co-offenders "shared a common purpose that embraced the assault of the complainant" (at [26]). In the event, the appeal against conviction was upheld on the basis that there was no such evidence. 3. In other words, the Crown relied on the fact that the Court did not speak of the need to prove that the "common purpose" extended to the consequential assault occasioning actual bodily harm. 1. It was said for the Crown that these decisions outline the appropriate way the issue of "in company" is to be approached in this particular situation. First, where the "simple offence" has been proven, irrespective of how that liability is attached to the offender, the subsequent question of whether that offence was committed in company is considered separately. Second, the idea of a common purpose is limited by the applicant and co-offender sharing the object of the agreement made merely to assault the victim; they were acting globally with a common purpose, it was submitted, notwithstanding that one of the co-offenders' criminal behaviour went somewhat beyond the scope of what had been agreed.

Determination of ground two

In my opinion, applying with regard to particulars one and three the analysis first spoken of by the High Court of Australia in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, and most recently in Bromley v The King (2023) 98 ALJR 84; [2023] HCA 42, it was well open to the jury to return a verdict of guilty of the count in the indictment. I say that for the following reasons.

First particular: sufficiency of evidence of agreement to assault formed before breaking and entering?

As for the first particular, for the sake of argument only I determine the question on the assumption that, in the circumstances of this case, the Crown was bound to prove that any agreement to assault the victim had been entered into by the applicant before the breaking and entering was committed, despite the indictment not alleging any such temporal aspect, and the well-known fact that, speaking generally, matters that are the subject of criminal agreement can develop during the course of the commission of an offence.
Even so, there was ample evidence upon which one could be satisfied beyond reasonable doubt that that had occurred. It can be summarised as follows.
First, the assault was the commencement of the interaction. It was the first event of which the victim was aware. It was constituted originally by an imitation pistol being placed to his face before he had even woken, and then developed quickly into forceful blows.
Secondly, whilst the assault was occurring, on the evidence the applicant was in possession of the imitation pistol, and taking steps to block the flatmate from getting involved. The evidence could support the inference that the application of force to the victim was expected, indeed as planned, from the perspective of the applicant.
Thirdly, there was no suggestion of the assailants seeking to search the home for the cash without the application of force. Nor is there any suggestion of demands without the use of force being made for the provision of the cash. To repeat: the evidence was that the commencement of known events inside the premises was the co-offender sitting on top of the sleeping victim, and holding an imitation pistol to his face, followed by cries for help, followed immediately by the application of force.
In light of the immediacy of the assault, the absence of alternative efforts to locate and take the money, and the role supporting it readily played by the applicant, I consider that it was well open to the jury to find that it had been agreed by the applicant and at least one other person before the assailants broke into the home that the victim would be assaulted once they were inside.
This particular is unpersuasive.

Third particular: sufficiency of evidence of foresight by applicant of possibility of infliction of actual bodily harm?

As for the third particular, it was not the submission in this Court that foresight on the part of the applicant of the possibility of the infliction of actual bodily harm needed to be proven before the breaking and entering took place. That means that the thesis was not that this Court must leave out of consideration evidence as to the development of that foresight inside the home.
Proceeding on that basis, by way of the conduct of the applicant when the victim was being brutalised by the co-accused, there was ample evidence that, at the latest at that stage, the applicant foresaw the possibility that actual bodily harm would be or was being inflicted upon the victim. To provide the most compelling example: when ordered by the co-accused to turn the interior light off again at a stage when the beating and the infliction of injuries were well advanced, obviously in an effort to avoid detection, the applicant readily complied.
In my opinion, it was well open to the jury to find that, during the commission of the offence, the applicant foresaw the possibility of the infliction of actual bodily harm upon the victim. For that reason, I find this particular unpersuasive as well.

Second particular: disjunction between extended joint criminal enterprise and committing an offence in company?

As for the second particular, this cannot really be thought of as a matter of emphasis within an unreasonable verdict ground. That is because it does not call for an assessment of the evidence in the trial by this Court. Rather, as I have said, the ground is the legal proposition that, at least in this statutory context, extended joint criminal enterprise cannot be relied upon in order to prove, in whole or in part, an offence said to have been committed in company. But I shall deal with it under the rubric of ground two in any event.
To express the ground by way of a rhetorical question to be asked by the applicant: how can it be said that he committed the offence of break and enter and assault occasioning actual bodily harm in company, when an element of that offence did not feature him acting with a common purpose, or what I call "directedness" towards its completion, it only featured foresight on his part that that element might occur?
And the question is fundamentally important, because there is no offence of break and enter and commit simple common assault, because the maximum penalty of imprisonment of two years of that offence means that, although common assault is an indictable offence, it is not a serious indictable offence. Nor, of course, is there an offence of simply breaking and entering on its own.
This ground has given me pause for thought, especially because of the well-known and long-standing criticisms of extended joint criminal enterprise - based as it is on foresight of possibility, not intention or agreement- most recently spoken of by the High Court of Australia in Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5.
It could also be said that, to the extent that the question is really one of statutory interpretation of the breadth of the phrase "in company", there are grounds for interpreting it strictly.
Even so, I have come to the view that the two legal ideas can stand together, for the following reasons.
First, Ford v R can be put to one side as a case that assists the Crown in this context. There, the element said not to require proof of having been committed in company (wounding) came after the element of being in company in the statutory structure. In contrast, here, actual bodily harm comes before it in the same structure.
Secondly, in contrast, I think that the judgments in Markou v R do assist the Crown here. It is true that this question was not directly raised for consideration in that case, and the more fundamental question there was whether the trial judge had correctly considered the concept of being in company in itself, not the precise elements to which it needed to "attach". Even so, members of this Court addressed what needed to have been proven to have been done in company, in the context of a count of assault occasioning actual bodily harm in company. As the brief quotation that I have provided above at [47] shows, it was only the assault that was held to have needed to have been committed in company, not its consequential actual bodily harm as well. That undoubtedly supports the Crown in the context here.
Thirdly, the idea of being in company in the commission of an offence has been in our Crimes Act since its inception in 1900, and it has been part of the criminal law of New South Wales since, at the latest, 1883. And I infer that it is part of the criminal law of other Australian States and Territories as well. The subjective formulation of extended joint criminal enterprise has been a part of our criminal law for over 40 years, since the decision of the High Court in Johns v the Queen (1980) 143 CLR 108; [1980] HCA 3. There must have been thousands of prosecutions during those 40 years in which the two concepts were sought to be combined. And yet counsel for the applicant could point to no authority from any court for the prohibition for which he contends. That strongly suggests, I think, that no such prohibition exists.
Fourthly, it is true that being in company requires presence and directedness towards the completion of an offence. And in that sense, it is certainly similar to concepts of complicity. It is also true that the latter concepts require rigorous analysis of precisely which elements of an alleged offence an accused person intended, or agreed to, or foresaw as possible. So much is demonstrated by the regular outcome of trials whereby one offender is convicted of murder and another co-offender is convicted of manslaughter.
Nevertheless, I am not convinced that it is the law that, in order to be guilty of committing an offence in company, an offender must have been directed towards the completion of each and every element of the offence in question. So long as the offender was acting in company regarding the basal elements of the alleged offence, in my opinion that is sufficient. In other words, I do not consider that the concept of being in company is as rigorous or precise as the concepts underpinning the doctrine of complicity.
Applying that thinking to this case: the applicant was proven to have agreed in an assault, an indictable offence. He was also proven to have (at least) agreed in a breaking, and to have personally completed an entering. He undoubtedly committed the offence of common assault, and performed the acts of breaking and entering, in company. He was also present when the actual bodily harm arising from the assault was being inflicted, and foresaw it is possible. In that context, I do not think it inappropriate to say that, having foreseen the possible consequence of the assault that indeed eventuated, he was guilty of break and enter and assault occasioning actual bodily harm in company.
For those reasons, I would not uphold this second particular of ground two.

Ultimate disposition of ground two

Applying my own evaluation to the evidence, neither the first particular nor the third particular raises a reasonable doubt in my mind on the evidence about the guilt of the applicant.
As for the second particular, it is based on an asserted prohibited combination of doctrines when this Court was shown no authority for that proposition, and of which I am not convinced in any event.
For those reasons, I would grant leave to argue this ground, but dismiss it.

Submissions for the applicant

Written submissions for the applicant asserted that, although the trial judge's oral summing-up substantially detailed the doctrines of basic joint criminal enterprise and extended joint criminal enterprise for the jury, her Honour's written directions failed to do so. This omission of any written direction as to what the jury needed to be satisfied of beyond reasonable doubt regarding basic joint criminal enterprise and extended joint criminal enterprise, it was argued, could well have resulted in the jury overlooking these matters during their deliberation. If it could be assumed that the jury's decision was made wholly in accordance with the written directions provided, counsel for the applicant submitted that the Court could not be satisfied that the jury adequately turned their minds to the necessary doctrines of complicity required in law for the applicant to be convicted of the offence.
During the oral hearing, it was asked of counsel whether the written directions given to the jury were not intended to "cover the field" but were merely setting out the elements of the offence itself. It was accepted that the document was not objected to at trial. The jury also showed no signs of being confused, or unsure, as to what they were required to find. Counsel nevertheless submitted that the written directions, on their face, would have appeared to the jury as the "essential elements" that the Crown had to prove beyond reasonable doubt, to the exclusion of any other matter. This exclusion of written directions about basic joint criminal enterprise and extended joint criminal enterprise created a risk that the jury would fail to turn their minds to the issue, or even fail to recall that they had been directed to find the existence of such an agreement beyond reasonable doubt in the first place.

Determination of ground three

In my opinion, this ground can be resolved shortly.
As explained above, the trial judge provided the jury with oral and written directions about the elements of the offence itself. Oral directions only were provided about the doctrines of complicity whereby the Crown alleged that the applicant was guilty of the offence, even though there was no evidence that the applicant personally had assaulted the victim, nor inflicted actual bodily harm upon him. Defence counsel at trial raised no objection to that course. During its retirement, the jury neither asked a question nor did anything else to suggest that its members were experiencing any difficulty in understanding any aspect of complicity. Finally, for the applicant it was accepted in this Court that the oral directions about complicity were correct.
In my opinion, judicial minds may legitimately differ about the degree to which oral directions about important legal matters should be supplemented by confirmatory written directions, whether in summary or extended form. That is a matter for the experienced evaluation of a trial judge as to how best to ensure that a jury understands the legal framework in which it must determine matters of fact, no doubt with the constructive assistance of the parties about it, and bearing in mind that the modern trend is towards the supplementation of an oral summing-up with more written assistance, rather than less.
In this case, some judges may have felt it better to have provided written directions about complicity as well; other judges may have felt written directions about complicity only were the best course; yet others may have felt that no written directions at all were required. But there is nothing to suggest that the course adopted led to a miscarriage of justice in this case. Furthermore, the agreement of defence counsel (and the Crown) in the course adopted strongly supports its appropriateness in the circumstances of this particular trial.
I would not uphold this ground.

Orders

Because I would uphold neither ground three nor any aspect of ground two, I propose the following orders: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal.
WEINSTEIN J: I agree with Button J.

Amendments 08 March 2024 - Amended counsel for the applicant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2024

Crimes Act 1900(NSW)s 112(3)

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Cases Cited (12)