Brown v R

Background circumstances

1. About a week before his death Mr Ruiz-Sanchez sold a handgun to the applicant for $600. The applicant took the gun, promising to pay the following day. When he did not do so, the deceased rang him on a number of occasions and left a number of messages on his voicemail, which the applicant considered insulting. The applicant had two sisters, Donna, who lived in Canley Vale, and Jasmine, who lived next door to the deceased. On the day of the assault, the applicant and a number of friends were drinking at Donna's home. In his police interview the applicant said that he had spoken to Jasmine's husband who told him that there were "10 blokes" drinking next door with Mr Ruiz-Sanchez. He stated that, "As the day's progressed we've got a bit fucken, got a bit of alcohol into us…". [3] They decided to drive to the home of Jasmine. On the way the applicant collected a shotgun from the house of another friend. The applicant carried the gun in the car. [4] He then took the firearm into Jasmine's house, placing it on a table in the lounge room. [5] He said it was wrapped in a jumper. [6] After a failed attempt to obtain the drug MDMA, the applicant gave the gun to one of his friends and said "… hold this, I want to go over next door and fucken have a couple of words with this bloke." [7]
2. The five men walked across to the deceased's home, the applicant calling him by name, at which stage Mr Ruiz-Sanchez came out of his front door. At some stage the man who was carrying the shotgun, identified as Ritchie, transferred it to Samuel Lockett. A fist fight commenced with one of the applicant's friends hitting Mr Ruiz-Sanchez in the face. The autopsy revealed cuts and contusions on his face. He fought back, at one stage securing one of his assailants in a head lock. The applicant described Lockett as hitting the deceased about three times on the top of the head with the barrel of the shorn-off shotgun. [8] (Although there was evidence from another witness - a woman inside the home - supporting the account of multiple hits, and from the applicant who said he told Mr Lockett to desist in the course of belabouring the victim with the gun, the trial judge sentenced on the basis of only one hit to the top of the head with the barrel.) The gun discharged accidently, killing Mr Ruiz-Sanchez instantly. The five men ran; the gun was returned to the person from whom it had been obtained.
3. The applicant told police that the gun was jointly owned, was "always loaded" and further that he checked to see that the gun was loaded when he collected it. [9] When asked, "Did any of your friends know that it was loaded" said that "everyone knew it was loaded." [10]
4. The applicant was asked "What was your reason for having a loaded firearm there?" [11] The following response and exchange then took place: "A If, if shit happened, if shit happened with Wally, if shit happened. Q371 What would you have done with it if it did happen? A I would have fired it, I suppose. If, if it happened, what, that's, you're going beyond the point, like, you're going beyond, like it's, it wasn't, wasn't intentional, I did not go there intentionally to shoot Wally. Q372 My question to you is, why would you take a loaded firearm to that house? That's why I'm … A Because Wally was being making threats to me on the phone about not paying him. Damo [the applicant's brother-in-law] called me up earlier that day, he said, 'Ten people are there, watch out.' But like I said, I had nothing to do with that, I went there to go buy drugs. But on the same time as I was going through I thought, all right, I'm going to go buy drugs, I better take that with me just in case the ten people at Wally's house which I, where that I know, I know they had firearms. If they fucken try do anything, I'm not going to be fucken sitting there, like, with no firearm when I'm just going to visit my sister next door over six hundred bucks, you know what I mean."
5. The applicant's description of the fight to the police included the following elements, namely (a) the first punches were thrown by Mr Lockett; (b) the applicant himself was actively involved in punching the deceased; (c) there was a pause in the punching and it was following the resumption that Lockett hit the deceased on the head with the barrel of the shotgun and, (d) it was in the course of Lockett hitting him over the head that the shotgun went off and the deceased was killed.
6. Although the applicant said that the deceased had been "making threats to me on the phone about not paying him", the only evidence of the content of the telephone messages was given by the deceased's partner, Ms Knaggs, who overheard the deceased leaving voice messages and speaking on the phone. She gave evidence to the following effect: [12] "Wallace tried to call several times. He wouldn't answer. Wal would leave voice messages and text messages. It was early in the morning, because me and Wallace were getting ready for work and it was Wal who rang and Carl answered - I guess it was between five and six in the morning. We were in the bedroom, because Wallace was on the phone and I could only hear his responses … and Wallace was saying things like, 'You want to be a gangster, you can't even answer your phone,' and I heard Wallace say, 'I don't want to fight you, that will get me into trouble. I only want the money.' "
7. In her account of the confrontation, which she witnessed from inside the screen door, she said: [13] "Carl Brown had a drink bottle in his hand. He was pointing at Wallace and he was saying, 'You want to leave smart arse … messages on the phone, I'll show you who a gangster is.' … They were all - Carl kept saying, 'You want to leave smart arse messages.'"
8. Ms Knaggs then gave evidence that she left the door and went to get a phone to call for help. Her evidence continued: "As I left the door, Carl said, 'Who's your missus going to call? If she calls anyone I'll shoot you.' He said, 'If your missus calls anyone I'll shoot her.'"
9. The applicant did not give evidence at his trial. The evidence of Ms Knaggs allowed for an inference that the applicant treated the phone messages as insulting, but not threatening. Counsel for the applicant did not suggest otherwise in this Court. [14]

Directions with respect to joint criminal enterprise

1. It was not the prosecution case that the applicant used the gun in the course of the confrontation, nor that he took part in the confrontation intending to kill the deceased. Rather the prosecution said that the applicant was party to an agreement that the deceased be assaulted. So far as the scope of the agreement was concerned, the prosecution case was put in the alternative. The first alternative involved an agreement to assault the deceased and to inflict on him grievous bodily harm, Lockett's act in striking the deceased with the gun being done with such an intention. The alternative formulation was that the agreement did not extend to assault with intention to inflict grievous bodily harm, but a contemplation on the part of the applicant that such harm might occur.
2. Directions were given to the jury with respect to the legal principles involved in joint criminal enterprises, including, in relation to the latter alternative, an "extended joint criminal enterprise", in accordance with McAuliffe v The Queen. [15] Although the directions were challenged by ground 2 in the notice of appeal, that ground was abandoned. A challenge was maintained, however, with respect to the availability of a manslaughter verdict, in the alternative to murder.
3. It was not in doubt that the trial judge gave directions with respect to manslaughter where the jury was not satisfied beyond reasonable doubt of all the elements of murder. [16] The direction commenced as follows: "Where an accused is charged with murder, but where the Crown has failed to establish that Samuel Lockett's act of hitting Mr Ruiz-Sanchez on the head with the gun was done with the intention to inflict grievous bodily harm on Mr Ruiz-Sanchez, there is an alternative verdict available, and that is one of being guilty of manslaughter."
4. The judge then provided the jury with a written document setting out the elements of manslaughter by unlawful and dangerous act, and took the jury through the document. [17] It is not necessary to set out the full extent of the direction because the challenge is limited to a quite specific omission from what was said. In brief, the judge correctly directed the jury that the assault on the deceased would be an unlawful act and it would be a dangerous act if a reasonable person in the position of the assailant would have realised that the deceased was being exposed to an appreciable risk of serious injury. The direction continued: "…if you are satisfied beyond reasonable doubt that Samuel Lockett deliberately hit the accused on the head with a gun, then the Crown has established an unlawful act. Whether it was also dangerous is for you to determine. The Crown does not have to establish that Samuel Lockett's act was done with any particular intention to injure. The offence of manslaughter is complete even if no injury was intended by him and even if Samuel Lockett had not realised he was exposing the deceased to such a risk of injury. The question is whether a reasonable person in the position of Samuel Lockett would have realised that he was exposing the deceased to an appreciable risk of serious injury."
5. The applicant's complaint was that the first paragraph of the direction [18] failed to note that the applicant could be convicted of manslaughter, not merely if the prosecution failed to establish Lockett's intention to inflict grievous bodily harm, but even in circumstances where the prosecution did establish such an intention. The direction as to manslaughter, the applicant submitted, was therefore deficient and misleading, resulting in a miscarriage of justice.
6. It is true that the selected paragraph referred to a failure to establish one specific element necessary for a conviction for murder. The alternative verdict could also have been available where, for example, Mr Lockett had had the necessary intention to inflict grievous bodily harm, but the act was not part of the joint criminal enterprise, nor within the contemplation of the applicant as a party to the joint criminal enterprise.
7. In the course of the submissions on appeal it was put to counsel that the directions would have been adequate if they had either omitted any reference to the elements of murder which might not have been satisfied or if they had specified all of the elements, the complaint being that only one element was identified as a possible missing element. Those propositions were rejected, but it was by no means clear what alternative direction was proposed in either of those events. This was a matter of some importance, as no alternative direction had been proposed in the course of the trial. It appeared, however, that counsel sought a direction that even if the jury were satisfied that Mr Lockett were guilty of murder, the applicant could nevertheless be guilty only of manslaughter. That was true, but followed from the unchallenged directions as to the elements of the murder directions.
8. How the additional statement would have clarified the situation was by no means clear. Immediately following the passage complained of, the trial judge had stated: [19] "I emphasise, members of the jury, that you cannot find the accused guilty of murder or manslaughter unless you are satisfied beyond reasonable doubt that he was a party to a joint criminal enterprise and Samuel Lockett was also a party to that agreement. When you look at summing-up documents 2, 3 and 4 [being the written directions in respect of joint criminal enterprise and extended joint criminal enterprise] - you will see that the first three essential legal elements set out in each document require the Crown to establish beyond reasonable doubt the existence of a joint criminal enterprise with the accused and Samuel Lockett being parties to the agreement. If you consider that it is a reasonable possibility that a joint criminal enterprise did not exist, or that the accused was not a party to the agreement with Samuel Lockett, you must find the accused not guilty of both murder and manslaughter."
9. There followed specific directions with respect to the elements of manslaughter, about which no complaint is made.
10. The applicant sought to derive support for his complaint from the reasoning of the High Court in The Queen v Nguyen. [20] Nguyen involved a prosecution appeal from a judgment of the Victorian Court of Appeal setting aside the respondent's conviction on the basis that it was "unsafe or unsatisfactory". While upholding that ground, the Court of Appeal had rejected Mr Nguyen's challenge to the directions given to the jury. The High Court overturned both aspects of the decision below. It found the Victorian Court of Appeal in error in concluding that verdicts of guilty were not reasonably open to the jury, but also in error in rejecting the ground alleging mis-direction. It is the latter aspect of the judgment which is presently relevant. The High Court stated: [21] "The effect of [the instructions to the jury] was to leave manslaughter to the jury as a possible verdict against Dang Quang Nguyen [the applicant] only if Bill Ho [the person who shot the deceased] was guilty of that crime. If Bill Ho was found guilty of murder, no case of manslaughter was left for consideration by the jury in respect of Dang Quang Nguyen."
11. The relevant directions were complicated by the fact that Mr Ho had shot two victims, one of whom survived, while the other did not. With respect to the survivor, he was charged with attempted murder; with respect to the deceased, he was charged with murder. Dang Quang Nguyen was similarly charged. In the High Court, the prosecutor argued that "there was no viable case of manslaughter to be considered in relation to the count of murder", but that depended upon the jury first deciding that Dang Quang Nguyen was guilty of attempted murder. [22] The Court pointed out that the jury were not directed to consider the charges in any particular order. The reasons then stated: "If Dang Quang Nguyen was party to an agreement, or had a contemplation, or provided assistance directed to some lesser assault than one intended to kill, it would have been open to the jury to conclude that, although he was not guilty of the charge of attempted murder, a verdict of manslaughter should be returned in respect of the count charging him with murder. The trial judge's directions did not admit of that possibility."
12. The legal principles are not in doubt: it is their application in the circumstances of the particular case, including the terms of any direction given, which needs to be addressed. In the present case, the alternative verdict of manslaughter was expressly left to the jury in terms which were unexceptionable. The alternative verdict was said to be available if the jury were not satisfied beyond reasonable doubt "of all the elements of the murder - joint criminal enterprise or murder - extended joint criminal enterprise" in which case the jury were required to acquit the applicant on the charge of murder. That aspect of the direction was not challenged. What followed was the challenged paragraph which suggested that an alternative verdict of manslaughter might be available only in one circumstance, namely where the element of intention on the part of Mr Lockett was not established beyond reasonable doubt. The directions on manslaughter then identified the essential elements of that offence.
13. Counsel for the applicant conceded that a lawyer would not be confused by the directions, but nevertheless a jury might be. That is a danger of which any trial judge must conscious; however, in the present case the possibility of confusion only arises by taking one sentence of the directions and viewing it in isolation. That is not the way the jury would hear the directions: the sentence should be read in context. Once that step is taken, there is no real possibility of confusion, or of the jury being misled. Ground 3 should be rejected.

Verdict unreasonable or not supported by the evidence

1. Again, the legal principles are not in doubt: in considering this ground of appeal, this Court must consider whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on the evidence before it at the trial. If this Court entertains a reasonable doubt as to his guilt, it should acquit unless satisfied that the doubt is one which a jury could reasonably have resolved on the basis of their assessment of the witnesses. [23]
2. In the present case, the jury had the benefit of listening to the recording of the applicant's interview with the police and heard the description of the events given by Ms Knaggs, in particular. It also had the benefit of listening to the evidence unfold in a manner not available to this Court. Nevertheless, for the reasons which follow this Court should be satisfied that it was well open to the jury to be satisfied beyond reasonable doubt of the relevant elements of the offence of murder, based on the principles of extended joint criminal enterprise.
3. The circumstances of the confrontation, including its background, have been outlined above. The ultimate conclusion for which the applicant contended was that the jury should have had a reasonable doubt that the applicant contemplated one of the other men using the gun to hit the deceased, with an intention to inflict grievous bodily harm. The basis of such a doubt was, it was submitted, to be found in the following propositions: (a) the applicant had no motive to inflict grievous bodily harm on the deceased; (b) the agreement was limited to the deceased being punched, even by a number of men, which would not involve contemplation of an act inflicting grievous bodily harm; (c) the gun was taken only for possible purposes of self-defence, and not to be used as a weapon of aggression.
4. It was not explicitly suggested that, if the use of the gun as a weapon of aggression did fall within the contemplation of the parties, and particularly of the applicant, its accidental discharge would not have been contemplated. Given that the applicant knew that the gun was loaded and knew that it would be taken to the confrontation, such a submission would not have been plausible.
5. It should be accepted, as the applicant submitted, that although he had identified in his police interview Mr Lockett hitting the deceased over the head three times with the barrel of the firearm, there was other evidence that he had only hit the applicant once and the trial judge in sentencing the applicant was not satisfied beyond reasonable doubt that Lockett had struck the deceased more than once with the shotgun. [24] The applicant was entitled to have the facts assessed on that basis.
6. The assertion that the applicant (and presumably Mr Lockett) had "no motive to inflict grievous bodily harm" on the deceased is not a factor which should be accepted as carrying significant weight. The background to the incident was known: the applicant was angry about supposedly insulting messages received from the deceased, which appear to have called in question his willingness or ability to pay the price of the firearm he had purchased, or perhaps some other aspect of his self-image. There was no basis to doubt that he and his four supporters went to the deceased's house intending to assault the deceased. Although it was said that the punching caused the deceased only minor injuries, the possibility that serious injury would be caused was undoubtedly contemplated as a real possibility and probably intended. The jury was entitled to infer from the presence of the five men that significant resistance was contemplated and that the gun was taken with the intention that it would be used if that were thought necessary. When the applicant collected the gun, there may have been a greater expectation that it would be used because the applicant then believed that Mr Ruiz-Sanchez had some 10 friends at his house. By the time that the five men decided to confront him, they believed that most of the deceased's friends had departed and that there may have been only two men and two women present, in addition to the intended victim. Nevertheless, the loaded gun, which could have been left in the applicant's sister's house, was taken to the confrontation. When questioned by the police as to why he had the gun with him, he gave the somewhat confused answers set out above. [25] The gun was not taken inadvertently, as shown by the applicant's threat to Ms Knaggs, indicating an ability to shoot her.
7. The applicant's submission was that the gun was only taken to use in self-defence and the occasion to use it in self-defence did not arise. This analysis was not that which a reasonable jury would carry out in considering the scope of a joint criminal enterprise. Nor does the event in question bear a nice analysis as to whether what occurred was "self-defence", as a matter of legal principle. The conclusion which was open to the jury was that the gun was taken to be used as a weapon in the event that significant resistance was encountered; the person carrying the gun being expected to know if and when it should be used and the manner in which it might be deployed. In my view, all that fell within the scope of the common purpose to which the applicant was a party; it was therefore contemplated that the gun might be used in the course of the attack on the deceased and that, if it were used, the possibility that it would be fired, whether deliberately or by accident, was expressly contemplated. It was well open to the jury to reach that conclusion on the criminal standard, on the material before them.
8. The question is ultimately one of fact for this Court: I would have reached that conclusion, without entertaining a reasonable doubt as to its correctness. Accordingly, ground 1 should be rejected. The appeal against the conviction for murder must be dismissed.

Sentence appeal

1. There was no suggestion that the sentence imposed on the applicant was manifestly excessive: rather, the submission was that the trial judge erred in assessing the relevant culpabilities of the applicant and Mr Lockett as equivalent.
2. The trial judge, Price J, sentenced both the applicant and Mr Lockett. He gave explicit and contemporaneous consideration to the question of parity, both when sentencing Lockett [26] and when sentencing the applicant. [27]
3. The trial judge reasoned that both were "equally culpable for the murder" and that the subjective circumstances justified a lesser sentence for Lockett. He explained the latter conclusion in the following terms: [28] "[Lockett's] criminal history does not disclose any previous convictions for offences involving violence whereas Brown had committed two offences of reckless wounding whilst in company in 2009. I have assessed Lockett to a limited extent to be remorseful, whereas no finding of remorse is made for Brown. Furthermore, I found that Lockett is unlikely to re-offend and has good prospects of rehabilitation whereas I was unable to make such a finding for Brown. In Lockett's case personal deterrence did not have a significant role to play, whereas for Brown more weight is given to personal deterrence and the protection of the community."
4. The focus of the applicant's submissions was both the conclusion of equal culpability and the proposition noted by the trial judge that his counsel had not "submitted otherwise". No doubt for that reason, he did not address the issues going to culpability in comparative terms in sentencing the applicant. However, when dealing with Mr Lockett, the trial judge stated: [29] "[35] Both Mr Crown and Mr Smith submitted that when considering the parity principle, Brown's role in the commission of the offence was more than Lockett's. Mr Crown submitted that Brown was 'the controlling mind' who recruited the others into a violent and cowardly endeavour because of his 'personal offended pride' …. Mr Crown argued that his lesser degree of actual physical involvement was outweighed by his role that was instrumental in the deceased's death. Mr Smith referred to Brown's role as the leader of those engaged in the criminal enterprise. [36] Brown is to be sentenced on the basis of extended joint criminal enterprise murder. [37] I am not persuaded that Brown's culpability for the murder is greater than Lockett's. Although it is true that Brown obtained the shotgun that he knew was loaded, had the relationship with the deceased and initiated the confrontation with him, it was the offender's extreme act of violence in striking the deceased on the head with the shotgun that caused the deceased's death. I assess them as being equally culpable for the murder.
5. In addressing on sentence, counsel for the applicant noted that counsel for Mr Lockett and the prosecutor had canvassed "the unusual nature of the objective facts, generally." [30] He then said: "What I have to address in relation to Mr Brown, the fact that he has a prior for violence and that he was on bail for that at the time of this offence. He's on conditional liberty … certainly the fact he is on conditional liberty would have to be seen by your Honour as an aggravating feature. I can't resile from that."
6. At what appeared to be the end of his submissions, the trial judge raised the question of parity. He stated in response: [31] "In relation to the question of parity, it is a matter with respect as to what differential your Honour finds, I would say in relation to two matters only; that is, the fact Mr Brown's original dealings with Mr Sanchez that lead to this event, and whether, as one matter to be considered by your Honour, was strictly identical sentences or strict parity. And the other matter, obviously, that he was on conditional liberty at the time."
7. Although counsel made some further submissions, they did not expressly attempt to differentiate between Brown and Lockett on the question of moral culpability for the offending. Similarly, the submissions for the prosecutor were less than lucid on this point. The closest the prosecutor got to distinguishing the two was, having noted that Mr Lockett struck the blow which proved fatal but that a co-offender may be morally culpable for other reasons, in stating: [32] "He's had greater culpability than Mr Lockett, despite the fact Mr Lockett directly inflicts the harm and the pain that went with what he did, but both of high order of culpability together."
8. Apparently in response to that submission, counsel for the applicant returned to a comparative description of the roles of the respective offenders. In this Court, it was said to be "implicit" in those submissions in reply that the applicant's culpability was below that of Mr Lockett.
9. It is not necessary to recount the submissions; there was no express submission that Mr Brown's culpability was lower than Lockett's. Read in context, the submissions are better understood as a response to the suggestion that Brown's culpability may have been above that of Mr Lockett. It is quite likely that the trial judge obtained limited assistance from the submissions. There was certainly no express submission that Mr Brown's culpability was lower. As is self-evident, the men played different roles: it was entirely open to the trial judge to conclude that they should be sentenced on the basis of an assessment of culpability which did not materially differ.
10. In the absence of any identifiable error of the kind relied upon with respect to parity, the appeal against sentence must be dismissed.

Orders

1. The Court should make the following orders: (1) Grant the applicant leave to appeal against his conviction for the murder of Wallace Ruiz-Sanchez on 12 October 2010. (2) Dismiss the appeal. (3) Grant the applicant leave to appeal against the sentence imposed for the murder. (4) Dismiss the appeal.
2. McCALLUM J: As to ground 1, I share the conclusion reached by Basten JA as to the verdict. I agree with the orders proposed by Basten JA, for the reasons stated by his Honour.
3. R A HULME J: I agree with Basten JA.

Endnotes

1. Criminal Appeal Act 1912 (NSW), s 6(1).
2. Ibid, s 5(1).
3. Record of interview, Question 32.
4. Q 112, Q 118.
5. Q130.
6. Q132.
7. Q142.
8. Q170-Q177.
9. Q182-Q189.
10. Q190.
11. Q374, but properly Q370A.
12. Trial transcript, 17/06/13, p 55.
13. Tcpt, p 60.
14. CCA transcript, 3/12/14, p 2.
15. [1995] HCA 37; 183 CLR 108.
16. Summing-up, p 37.
17. Summing-up, pp 38-40.
18. Set out at [16*] above.
19. Summing-up, p 38.
20. [2010] HCA 38; 242 CLR 491.
21. Nguyen at [43].
22. Nguyen at [49].
23. The relevant principles were identified in Nguyen at [33], referring to M v The Queen [1994] HCA 63; 181 CLR 487 at 493 and 494-495.
24. R v Brown [2013] NSWSC 1557 at [16].
25. At [8].
26. R v Lockett [2013] NSWSC 1555 at [32]-[35].
27. R v Brown [2013] NSWSC 1557 at [32].
28. Lockett at [38].
29. Lockett at [35]-[37].
30. Tcpt, 20/09/13, p 18.
31. Tcpt, p 19.
32. Tcpt, p 21. 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: 18 February 2015