Carlyle-Watson v R

Court of Criminal Appeal (NSW)|2019-08-09|Before: Payne JA, Garling J, Wright J, Wright JJ

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Tristan Carlyle-Watson, was convicted of one count of aggravated sexual intercourse without consent, in company, contrary to s 61J of the Crimes Act 1900 (NSW). The applicant was one of a number of men who the Crown alleged participated in, or were present at, a number of incidents of aggravated sexual intercourse without consent, recorded, in part, on a GoPro camera. The applicant appealed against his conviction and sentence. The issues on appeal were whether a miscarriage of justice was occasioned by: 1. a failure to identify whether the applicant was liable as an accessory present at the scene or a party to a joint criminal enterprise; 2. a conflation throughout the trial of the meaning of "in company" with "common purpose"; 3. a failure by the trial judge to direct in clear terms whether the Crown case was that the applicant was alleged to be party to a joint criminal enterprise to commit a crime, or was an accessory to a crime committed by another; 4. in so far as the Crown case was based on liability as an accessory, a failure by the trial judge to explain that the requirement that the Crown prove that the applicant "knew all the circumstances necessary to show the crime was committed by the alleged principal" required proof of his actual knowledge that the complainant did not consent to the sexual intercourse. The Court (Payne JA, Garling and Wright JJ agreeing) held, allowing the appeal against conviction: In relation to issues 1, 2, and 3: The case was opened to the jury on the basis of an alleged joint criminal enterprise, but the jury was never told that that case had been abandoned or modified and was now one not requiring proof of an agreement that a principal accused have sexual intercourse with the complainant without her consent. Blundell v R [2019] NSWCCA 3 applied. In relation to issue 4: The jury was left with the clear impression that recklessness as to the consent of the complainant to sexual intercourse was a sufficient state of mind for the applicant to be found guilty. The applicant could not be convicted unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Neither negligence nor recklessness was sufficient. Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 applied.

Judgment

PAYNE JA: On 8 August 2017, the applicant, Tristan Carlyle-Watson, was found guilty by a jury and convicted of one count of aggravated sexual intercourse without consent, in company, contrary to s 61J of the Crimes Act 1900 (NSW). There was a directed verdict of not guilty in relation to the alternative to the count on which the applicant was convicted, which contained the additional element of recklessly inflicting actual bodily harm. The applicant was also found not guilty on a separate count. Count 6A on the indictment upon which the applicant was convicted provided as follows: "Kurt Stevenson, Andrew Waters, Tristan Carlyle-Watson Between 22 May 2015 and 23 May 2015 at St Clair in the State of New South Wales, while in company with Ayden Devereux and [ML], had sexual intercourse with [the complainant], without her consent and knowing she was not consenting."
On 19 January 2018, Norton SC DCJ sentenced the applicant to a non-parole period of 4 years and 9 months' imprisonment with an additional term of 1 year and 7 months' imprisonment commencing on 14 October 2015, the day the applicant went into custody. The applicant sought leave to appeal against both conviction and sentence in this Court.

Background facts

The applicant was one of a number of men who the Crown alleged participated in, or were present at, a number of incidents of aggravated sexual intercourse without consent which occurred on the night of 22 May 2015 and morning of 23 May 2015.
That conduct was in part recorded by one of the men on a GoPro camera. The Crown alleged that the sexual conduct with the complainant occurred without her consent by reason of her obvious intoxication. The applicant, Kurt Stevenson and Andrew Waters were tried together. The applicant was convicted on the basis that he was present together with Ayden Devereux and ML (a juvenile who had earlier pleaded guilty and been sentenced) at the time when Mr Waters had penile-vaginal intercourse with the complainant without her consent.
The complainant was a 16 year old girl and was in contact with the applicant via Facebook in the days prior to the alleged offence. In May 2015, the applicant was 24 years old. On 22 May 2015, in the hours prior to the incidents the subject of the indictment, Facebook contact between the complainant and the applicant continued which culminated in an invitation to the complainant to attend a social gathering at a friend's house.
Upon arrival at the social gathering the complainant consumed alcohol and at least "one cone" of cannabis. She became obviously intoxicated. She retired to a bedroom. "GoPro 506" footage of what subsequently occurred in the bedroom was obtained some days later by the police when one of the offenders was arrested for spraying graffiti.

The GoPro footage

The GoPro footage comprised 16 minutes and 52 seconds of images recording acts of sexual intercourse with the complainant. Some of the footage depicts little more than darkness. The sound recording is continuous but sometimes lacking in clarity.
The applicant's conviction on count 6A in the indictment related to events recorded in the last portion of the GoPro footage, from 13.25 minutes until 16.52 minutes. At the commencement of that part of the footage Mr Stevenson is depicted having penile-vaginal intercourse with the complainant who appears intoxicated. That conduct was the subject of count 5A on the indictment. Mr Stevenson is recorded saying that he was leaving the bedroom at 13.23 minutes. It was common ground in respect of count 6A that the applicant was not the primary/principal offender.
At the commencement of the relevant part of the footage Mr Devereux says to the complainant "you ready for the next one". ML says "just bend over the bed bro so we can fuck you in the arse and fuck you in the mouth as well". Mr Devereux says "Andy [Waters] just bend her over". Mr Stevenson can be heard to ask for a light so he can find his phone and cigarettes. At about 14.19 minutes of the footage Mr Waters can be seen having penile-vaginal intercourse with the complainant who is lying on her stomach. Mr Waters is on top of the complainant and she appears to be completely motionless. The applicant is recorded saying "I think she is snoozing bro by the look of it". Mr Waters says "is she sleeping or what?" and another male voice can be heard to say "is she sleeping?" The applicant then says "let Franky have a stab first", while Mr Devereux says "Andy's a hog bro".
Later ML is shown pulling the sheet from the bed showing the complainant lying on top of Mr Waters who is attempting to insert his penis in her vagina. The applicant is recorded saying "put it in you shit cunt". At about 15.50 minutes ML slaps the complainant hard on the left buttock and the complainant does not react. Another male is shown reaching in and slapping the complainant on the right buttock. The complainant cries out and places her hands over her bottom. Mr Stevenson is the only man present who objects to this conduct. At about 16.34 minutes the applicant is shown standing next to the bed. Mr Devereux pans the room taking in other offenders and the applicant says "Mr Married" and "Don't you film me in this shit, I ain't going to court". The footage finishes soon after at 16.52 minutes.

Notice of appeal

The notice of appeal stated, relevantly, that a miscarriage of justice was occasioned by: 1. the failure throughout the applicant's trial to precisely identify, for the jury, the basis of the applicant's liability (whether as an accessory present at the scene (principal in the second degree) or as being party to a joint criminal enterprise (principal in the first degree); 2. the conflation throughout the applicant's trial of the meaning of "in company" with "common purpose" and/or liability as an accessory present at the scene (principal in the second degree); 3. the trial judge erred in her directions as to the elements of count 6A, as they applied to the applicant, by providing written directions the same as that for the alleged principal offender. In particular her Honour failed to direct in clear terms (or at all) whether the Crown case was that the applicant was alleged to be party to a joint criminal enterprise to commit a crime, or was an accessory (principal in the second degree) to a crime committed by another; 4. in so far as the Crown case was based on liability as an accessory (principal in the second degree), her Honour erred in her directions as to the elements of count 6A, as they applied to the applicant, by failing to explain that the requirement that the Crown prove (beyond reasonable doubt) that the applicant "knew all the circumstances necessary to show the crime was committed by the alleged principal" required proof (beyond reasonable doubt) of his actual knowledge that the complainant did not consent to the sexual intercourse (an essential element of the alleged principal's crime).
The applicant also sought leave to appeal on sentence.

Applicant's submissions

The applicant submitted that the Crown did not properly articulate its case as to the basis of the applicant's liability in respect of the only count in the indictment upon which he was convicted. It was submitted that the trial initially proceeded on the footing that the applicant's liability arose as a party to a joint criminal enterprise, in the sense of him having acted in concert with other parties to an agreement including the person who actually committed the offence, Andrew Waters. At other times, it appears to have been the Crown case that the applicant's liability arose as an accessory being present at the scene and therefore as a principal in the second degree: Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [69]-[72] (McHugh J).
The ambiguity was compounded by the Crown's use of the phrase "in company" interchangeably with other nomenclature for some form of complicity.
The applicant submitted that the genesis of the problems was the manner in which the Crown framed its case in both its opening and closing addresses. It was submitted that from the outset the Crown referred to the applicant's liability arising from his being "in company". The Crown did not, however, distinguish the concept of "in company" as an aggravating element under s 61J of the Crimes Act from concepts relevant to a joint criminal enterprise. Nor, it was submitted, did the Crown identify the differences required between the state of mind required to prove a joint criminal enterprise and the state of mind required to prove the applicant guilty as a principal in the second degree.
It was submitted that establishing the applicant's guilt as an accessory present at the scene (which the Crown in this Court submitted was the case left to the jury by the trial judge) required, consistent with Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, proof beyond reasonable doubt of: 1. the applicant's knowledge that Mr Waters had had sexual intercourse with the complainant; 2. the applicant's knowledge that the complainant did not consent to that intercourse; 3. (possibly) the applicant's knowledge that Mr Waters knew or was reckless that the complainant was not consenting; and 4. the applicant having intentionally assisted or encouraged Mr Waters in his commission of the offence.
It was submitted that the jury was never told that intentional encouragement or assistance by the applicant had to be accompanied by knowledge that the complainant was not in fact consenting.
The applicant noted that the Crown prosecutor introduced the phrase "in company" at the very beginning of her opening address. She commenced by saying: "Members of the jury, the case that the Crown brings is based on the allegation that a number of men, these three accused and other men, while in company with each other had sexual intercourse with the complainant … without her consent, knowing that she wasn't consenting, and that at about the time of those acts of sexual intercourse, bodily harm was occasioned to or caused to [the complainant]. Six of the seven acts, as you may remember when the indictment was read out, are alleged to have occurred in company, that is, in the presence of others, one or all of these accused men."
The applicant submitted that while the Crown prosecutor used the term "in company" in her opening address, she also stated that the Crown must "prove an agreement" that there be "sexual intercourse with the complainant without her consent". This suggested that liability was to be established on the basis of "pre-concert" or "joint criminal enterprise". The Crown then went on to articulate the subject matter of the agreement as: "the complainant be sexually assaulted, or that sexual intercourse be had with her without her consent, knowing that she was not consenting."
It was submitted that no attempt was made to explain to the jury the difference between recklessness as to consent required on the part of the perpetrator of the assault, Mr Waters, and the knowledge that the complainant was not consenting required to be proven about the applicant.
The applicant submitted that the Crown prosecutor emphasised the importance of the GoPro video, saying to the jury "you are more than entitled to make up your minds as to the guilt of the accused based on what you can see and hear in that footage", without explaining to the jury the knowledge required to conclude that the applicant was guilty of the offence charged. This was not corrected by the trial judge in her written or oral directions to the jury.
It was submitted that the written and oral directions conveyed to the jury that recklessness as to the complainant's consent on the part of the applicant was sufficient. The distinction between the knowledge of consent required of the person who committed an act of intercourse and the knowledge required for an accomplice was not adequately explained to the jury.

Crown submissions

The Crown submitted that the size of the bedroom did not allow for anyone who was present within it, including the applicant, to be in any doubt as to whether or not the complainant was consenting to the sexual intercourse that was occurring at the time.
The Crown submitted that the trial judge addressed the concept of being in company not only as the aggravating factor for each offence but also the means through which an accomplice could also be guilty.
It was submitted that the trial judge's definition of the concept of being "in company with another person" was relevant when the jury was considering the guilt of the applicant. The written and oral directions contain two definitions of "in company". The introduction to the second set of elements "Put another way", was submitted to be a reference to the liability of an alleged accomplice. This second set of elements within the definition of "in company" was, it was submitted, in accordance with the classic formulation of the requirement for liability as an accessory at the fact.
The Crown submitted that the applicant's contention that the trial judge failed to direct the jury clearly as to whether they should consider the case against the applicant as part of a joint criminal enterprise or as a principal in the second degree should be rejected.
The Crown accepted that the oral directions given incorrectly stated that it was sufficient that the applicant was reckless as to the complainant's consent. It was submitted that the written direction, however, correctly stated that it was the applicant's actual knowledge of the complainant's consent that was to be considered and that recklessness was not sufficient. It was submitted to be most likely that the jury had recourse to the written directions in the course of their deliberations with the likelihood that the written directions overrode what the trial judge said about an accomplice being reckless as to the complainant's consent: Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242.
The Crown conceded that the opening at the trial relied upon an allegation of joint criminal enterprise, but submitted that matters did not rest there. The Crown submitted that on 14 July 2017, the ninth day of the trial, the trial judge had commenced working on a document setting out the elements of the offence. The Crown submitted that there was no objection by the applicant to the trial judge leaving the case to the jury on the basis that he was a principal in the second degree.
The Crown submitted that the lack of objection to the trial judge's approach indicated that none of the defence counsel, including the applicant's counsel at trial, considered that they were in any way prejudiced by the course the trial judge took.
The Crown dealt with ground 3 by arguing that the Crown case, as left to the jury, was not based on joint criminal enterprise. Therefore, it was submitted, there is no basis upon which to allege error on the part of the trial judge in this respect.

Relevant legal principles

The relevant differences between primary liability (or joint criminal enterprise) and derivative liability (or accessorial liability) were explained by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75. The following principles emerge: [1] 1. a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative (at [70]); 2. those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime (at [71]); 3. those who were merely present, encouraging (Kupferberg (1919) 13 Cr App R 166; R v Clarkson [1971] 1 WLR 1402; [1971] 3 All ER 344) but not participating physically, or whose acts were not a substantial cause of the crime, were regarded as principals in the second degree (at [71]); 4. 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 (at [72]); 5. the principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. For example, the person who did the act may be legally insane (at [79]).
In Giorgianni, the High Court emphasised the importance of actual knowledge necessary in the case of a person charged with derivative or accessorial liability.
Giorgianni concerned an accessory before the fact where there was no reliance by the Crown upon principles of joint criminal enterprise. The appellant had leased a truck which was driven by his employee. The truck collided with other vehicles when its brakes failed, which caused the death of multiple people. The appellant was not present at the time of the collision however he was convicted of culpable driving causing death. The charge had been brought on the basis that the appellant and his employee had worked on the truck 10 days prior to the collision and that the appellant ought to have known of the defects.
There were two issues before the Court. First, whether a person could be liable as an accessory before the fact to the strict liability offence of dangerous driving occasioning death. Second, whether recklessness (as opposed to actual knowledge) as to the existence of facts and circumstances which would render the driving dangerous was sufficient to constitute criminal liability. In relation to the first issue Gibbs CJ made the following observations (at 478): "There is no reason why a person who counsels or procures another to drive a vehicle, knowing that the person persuaded to drive the vehicle is drunk, or that the vehicle is so defective as to be dangerous, should not be liable, in accordance with the ordinary principles embodied in s.351 of the Crimes Act, if the vehicle is involved in a collision causing death. This view is supported by Reg. v. Robert Millar Ltd. (1970) 2 QB 54, where it was held that an employer who instructed an employee to drive a vehicle, knowing it to be in a dangerously defective condition, was guilty of the offence of dangerous driving causing death."
His Honour then went on to consider the second question of whether it was necessary to prove that the accessory before the fact knew all the circumstances which made what was done an offence or whether recklessness was sufficient. His Honour considered the terms of s 52A of the Crimes Act and observed that: "The very words used in s. 351, and the synonyms which express their meanings - e.g. help, encourage, advise, persuade, induce, bring about by effort - indicate that a particular state of mind is essential before a person can become liable as a secondary party for the commission of an offence, even if the offence is one of strict liability."
Gibbs CJ referred to the observations of Judge Learned Hand in United States v Peoni 100 F 2d 401 (1938) where his Honour referred to a number of statutory definitions and then stated: "It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; and [that] they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used - even the most colourless 'abet' - carry an implication of purposive attitude towards it."
Gibbs CJ went on to state (at 480): "In other words, the person charged as a secondary party should in some way be 'linked in purpose with the person actually committing the crime ...': R. v. Russell [1933] V.L.R. 59. at p. 67, per Cussen A.C.J."
In further considering the question of whether knowledge (as opposed to recklessness) is sufficient to convict an accessory before the fact, Gibbs CJ made the following observations (at 481): "Russell on Crime, 12th ed. (1964), p. 151, states that 'the bare minimum' which is necessary to constitute a person an accessory before the fact is that his conduct should indicate '(a) that he knew that the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed'. The passage is cited with approval in Attorney-General v Able [1984] Q.B., at p. 809. There is a strong body of authority which supports the view that knowledge of the facts is necessary before a person can be made liable as a secondary party for the commission of an offence. In Johnson v. Youden (1950) 1 K.B. 544 at p. 546, Lord Goddard C.J. stated the position in relation to aiders and abettors as follows: 'Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence.' This statement has been frequently cited with approval, and not only in relation to the case of aiders and abettors."
Gibbs CJ (at 482) referred to numerous other cases that stand as authority for the general principle that "a person can be convicted as a secondary party only if he had knowledge of the essential circumstances". In terms of wilful blindness his Honour observed (at 482) that: "One qualification that must be accepted is that wilful blindness, the deliberate shutting of one's eyes to what is going on, is equivalent to knowledge."
His Honour also noted that: "… the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party…" (footnotes omitted)
About recklessness, Gibbs CJ held (at 487) that: "… it is not correct to say that a person may be convicted of aiding, abetting, counselling or procuring the commission of an offence simply because he has acted recklessly."
His Honour summarised the relevant legal principles as follows (at 487-8): "My view of the law may be summed up very shortly. No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient."
At 492 Justice Mason explained the use of the terms "aid", "abet", "counsel" and "procure" at common law and observed that there is no legal distinction between an accessory before the fact and a principal in the second degree beyond presence. His Honour stated: "In felony at common law the terms 'aid' and 'abet' are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms 'counsel' or 'procure' are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence: 4 BI. Comm. 34-36; Ferguson v. Weaving [1951] 1 K.B. 814, at pp. 818-819. In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence."
His Honour discussed the application of the "doctrine of secondary participation to statutory offences involving no mental element", as considered in a number of cases, and then said (at 494): "In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence. The 'link in purpose' between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act."
In their joint judgment in Giorgianni, Wilson, Deane and Dawson JJ held (at 505) that: "Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence."
In terms of whether recklessness could apply to an offence of aiding, abetting, counselling or procuring, their Honours said (at 506-7): "For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts."
Relevant principles of accessorial liability were considered by this Court in R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29, a case which concerned a principal in the second degree who was present at the scene of the offence. This Court held in that case that the instruction to the jury given by the trial judge did not sufficiently address the matters required to be proven to establish the liability of the appellant in circumstances where he asserted that his presence at the scene was accidental, that he was unconscious at the time of the shooting and that he did not provide any encouragement or assistance to the shooter. In that context, Wood CJ at CL (with whom McClellan and Smart JJ agreed) stated: "[69] Moreover, mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime, and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its commission. [70] In Coney (1882) 8 QBD 534, Hawkins J, at 557-558 identified the essential requirement for such a case in the following passage: 'In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, or gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.' [71] Cave J, in the same case, said at 539: 'Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony or apprehend the felon.' [72] Similarly, in All[a]n (1963) 3 WLR 677, Edmund Davies J said at 683: '…before a jury can properly convict an accused person of being a principal in the second degree to an affray, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants. To hold otherwise would be, in effect … to convict a man on his thoughts, unaccompanied by any physical act other than the fact of his mere presence.' … [78] To that extent, the non accidental presence of the appellant and his acquiescence in or assent to what occurred would not be enough, unless it was also made clear that the Crown had to establish that such assent or acquiescence amounted to that degree of encouragement or assistance as would constitute him a principal in the second degree."
Smart J agreed with Wood CJ at CL and in separate reasons observed the following in relation to the elements of the offence of being an accessory present at the scene: "[104] Usually a jury is told that the Crown must prove beyond reasonable doubt: (a) the commission of the crime … by the principal offender (b) the presence of the accused at the time the crime was committed (c) the accused knew all the essential facts or circumstances necessary to show the crime was committed by the principal offender (…); (d) with that knowledge, the accused intentionally assisted or encouraged the principal offender to commit the crime. It is then necessary for the jury to be told the elements which the Crown must prove beyond reasonable doubt for them to be satisfied that the principal offender committed the crime. This may overlap with sub-paragraph (c) above. … [106] In Giorgianni at 481 Gibbs J pointed out that similar matters need to be proved in the case of an accessory before the fact and that of an aider and abettor. Mason J at 493 stated that in substance 'there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence'. [107] Again, in Giorgianni at 481 Gibbs J cited this passage from Russell on Crime 12th ed (1964) p151 'the bare minimum which is necessary to constitute a person as an accessory before the fact is that his conduct should indicate (a) that he knew that the particular deed was contemplated and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed'. Gibbs J went on to point out that the law had developed and that knowledge of the facts is necessary before a party can be made liable as a secondary party for the commission of an offence (481-482). Further, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result (482)."

Consideration

Against this background it is appropriate to turn to the present case. Section 61J of the Crimes Act provides, relevantly: 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, circumstances of aggravation means circumstances in which: …, or (c) the alleged offender is in the company of another person or persons, or …
As N Adams J explained in Blundell v R, as a general rule, principles of extended joint criminal enterprise cast a wider net than principles of accessorial liability. Given the background to this matter, the evidence available on the GoPro device and the other evidence in the case, the Crown could perhaps have elected to proceed against the applicant either as a person allegedly liable as being part of a joint criminal enterprise or as a person with derivative or accessorial liability as an accessory at the fact. Whilst the elements which needed to be proved against the applicant under each way of proceeding overlapped, as I have explained they were each separate and distinct bases of liability in important respects.
In what follows I wish to emphasise that principal responsibility for confusion about the basis upon which the applicant was tried and convicted is borne by the legal representatives for the Crown and the applicant at the trial. The trial judge was entitled to expect that legal representatives for the parties expressly, clearly and from the beginning articulate whether the case the trial judge was being asked to direct the jury on was one where the applicant was allegedly liable as being part of a joint criminal enterprise or as a person with derivative or accessorial liability. Clear thinking and expression on this issue by the legal representatives at the trial was absent here.
In written and oral submissions on this appeal, counsel for the Crown conceded that the case was opened to the jury on the basis of an alleged joint criminal enterprise. The Crown opened to the jury that what they were seeking to prove was "an agreement that the complainant be sexually assaulted": "For those accused, members of the jury, who did not physically have sexual intercourse with the complainant, so for example let's go to count 6 where Tristan Carlyle-Watson is charged with count 6, and that is with Andrew Waters having sexual intercourse with the complainant, the Crown must prove that they're acting in company. Okay? So the Crown must prove an agreement by them that the act be done. So that is the act is sexual intercourse with the complainant without her consent, and the Crown can establish that agreement by the circumstances. It doesn't need a piece of paper where people have signed a contract about what they agree is going to happen. … So the Crown would say looking at all the circumstances there's an agreement that the complainant be sexually assaulted, or that sexual intercourse be had with her without her consent, knowing that she was not consenting. So the Crown must prove that agreement and their participation in some way, and that participation can be simply from their presence. The Crown relies upon in that case other things that Tristan Carlyle-Watson said that I went through when I was telling you what the evidence was in relation to count 6." (italics added)
The Crown never told the jury that the case they had opened had been abandoned or modified and was now one not requiring proof of an agreement that a principal accused have sexual intercourse with the complainant without her consent.
While it seems the trial judge moved away from the Crown opening in significant respects, regrettably, even now, it is unclear whether the jury was instructed on the basis that the applicant was alleged to be guilty as an accessory at the fact or as part of a joint criminal enterprise. The Crown submitted that the trial judge left the case to the jury on the basis that they should consider whether the applicant was a principal in the second degree instead of considering whether he was a member of a joint criminal enterprise. If that was the intended course it was not successful.
The Crown in this Court abandoned any reliance on the doctrine of joint criminal enterprise and submitted that, although the jury was never explicitly told so, the trial judge had determined that the Crown were alleging that this was an accessory at the fact case: "The Crown case, as left to the jury, was not based on joint criminal enterprise."
There is some merit in the Crown's submission that the trial judge considered that the case was more appropriately tried as an accessory at the fact case as the directions to the jury, both written and oral, are more consistent with such a determination being reached. There remain, however, significant problems. That it remained unclear on precisely what basis the applicant had been convicted is underlined by the trial judge's sentencing remarks which referred to the applicant's conviction as being based on a joint criminal enterprise: "The jury verdict is consistent with them finding Carlyle-Watson was part of a joint criminal enterprise and that by his presence he encouraged Waters to have sexual intercourse without the victim's consent."
It is difficult to escape the conclusion, as was submitted by counsel for the applicant in this Court, that: "… this was a jumble, sorry to use that term, from the very beginning right through until the very end and that no-one really seemed to apply their mind to the precision of the basis of liability that seemed to have been complicated by perhaps an unfortunate aggravating circumstance of in company, where the law about in company has some overlap with complicity principles."
The critical problem, over and above the confusion just described, was that the jury was left with the clear impression, from the beginning of the trial and in the summing up and the written directions document, that recklessness as to the consent of the complainant to sexual intercourse was a sufficient state of mind for the applicant to be found guilty.
The principal offence required proof beyond reasonable doubt that the complainant was not consenting to the act of sexual intercourse. As I have explained, Giorgianni is authority for the proposition that, assuming the jury was being instructed that this was an accessory at the fact case, the applicant could not be convicted unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Neither negligence nor recklessness was sufficient.
The written directions given to the jury provided, relevantly, on the first page: "Aggravated sexual assault- Counts … 6A The Crown must prove beyond reasonable doubt that, at the time and place alleged: 1. An accused had sexual intercourse with the complainant, 2. The sexual intercourse occurred without the consent of the complainant, 3. The accused knew or was reckless to the lack of consent of the complainant of that sexual intercourse, and 4. At the time of the intercourse the accused was in the company of at least one of the persons listed in the count. There is a statutory alternative to counts …… and 6A." (emphasis added)
The jury was told about this written direction that: "The Crown must prove beyond reasonable doubt that at the time and place alleged an accused had sexual intercourse with the complainant. Now, that person is often referred to as the principal, so that is the person actually accused of having whatever sexual conduct is covered in that count with the complainant. The second element is that the sexual intercourse occurred without the consent of the complainant. The third element is the accused knew or was reckless as to the lack of consent of the complainant to that sexual intercourse. Should be 'to'; it says 'of'. Now, it says the accused because if you are dealing with the principal then it is the principal's knowledge. If you are dealing with someone who is there in company it is the accused who is in company whose case you are dealing with who is the accused and whose knowledge is relevant. It becomes clearer and gets, in fact, very repetitive when we start to go through the counts one by one." (italics added)
Assuming that the Crown was correct that the directions to the jury should be understood as providing directions on the basis that he was an accessory at the fact, it was necessary for the jury to be satisfied beyond reasonable doubt that the applicant knew that the complaint was not consenting to the relevant act of sexual intercourse. It is true that the jury was told by the trial judge at one point in the oral summing up: "The co-accused at that time knew all the circumstances necessary to show the crime was committed by the alleged principal". It was, however, never explained to the jury that to find the applicant guilty they had to be satisfied beyond reasonable doubt that the applicant knew that the complainant was not consenting to the relevant act of sexual intercourse. To the contrary, on a number of occasions the jury was told that recklessness was a sufficient state of mind to find the applicant guilty.
Further, the jury was given a written direction about knowledge which compounded the problem of the elements required to be proved against the applicant: "Knowledge about Consent: A person who has sexual intercourse with another person without the consent of the other person knows that the person does not consent to the sexual intercourse if: 1. The person knows that the other person does not consent to the sexual intercourse, 2. The person is reckless as to whether the other person consents to the sexual intercourse, and 3. The person has no reasonable grounds for believing that the other person consents to the sexual intercourse. Recklessness may be established by proof of intention or knowledge."
In light of the earlier direction, this direction compounded the problem. The second and third formulations were inaccurate as explanations of possible bases of the applicant's criminal liability.
The jury was also given a written direction about recklessness: "Recklessness: The Crown must prove beyond reasonable doubt either: (a) The accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if they had turned his mind to it, or (b) The accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not."
Given the setting out and text of the written direction the jury was clearly invited to reason that the applicant could be found guilty as an accessory present at the fact on the basis of recklessness.
I am unable to accept the Crown's submission that the problems were ameliorated or cured by references to knowledge in the written directions, dealing with the element of aggravation that the applicant was "in the company of another person or persons". The jury was given the following written direction: "In company with another person: 'In company with another person' means: 1. The alleged principal co-accused had sexual intercourse with the complainant without her consent, knowing that she was not consenting, 2. The co-accused shared a common purpose that this should occur, and 3. The co-accused was physically present when this occurred. That is close enough that their presence either offered encouragement to the co-accused or operated to intimidate or coerce the complainant. Mere physical presence in the room is not enough. Put another way: 1. The alleged principal co-accused committed the offence of sexual intercourse with the complainant without her consent, knowing she was not consenting, 2. The co-accused was present at the time the offence was committed, 3. The co-accused at the time knew all the circumstances necessary to show the crime was committed by the alleged principal, and 4. With that knowledge the co-accused intentionally assisted, or encouraged the alleged principal co-accused to commit the crime in the company of at least one of the other persons named in the court. [sic "count"]"
This direction, whilst largely consistent with the identification of elements of the circumstance of aggravation, namely being "in company" (see R v Button (2002) 54 NSWLR 455; [2002] NSWCCA 159 at [120]) did not address what the jury had already been told about the third element in the charge, that the applicant "knew or was reckless to the lack of consent of the complainant [to] that sexual intercourse".
In oral directions about this issue the jury was told: "Now, we come to the fourth element, which is in company with another person. In company with another person means: (1) the alleged principal co-accused had sexual intercourse with the complainant without her consent knowing she was not consenting. So there is the word 'principal' again. The co-accused shared a common purpose that this should occur; and (3) the co-accused was physically present when this occurred. That is close enough that their presence either offered encouragement to the co-accused or operated to intimidate or coerce the complainant. Mere physical presence, as in this case presence in the room, by itself is not enough."
The reference in the oral directions to the alleged principal (Mr Waters in this case) having sexual intercourse with the complainant without her consent knowing she was not consenting did not ameliorate or cure the earlier directions in which the jury was told that recklessness was a sufficient state of mind to reach a verdict of guilty in relation to the applicant. It was never explained to the jury that recklessness about the complainant's consent to sexual intercourse was not a sufficient state of mind to find the applicant guilty.
In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the plurality identified the three limbs of s 6 of the Criminal Appeal Act 1912 (NSW) thus: 1. the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or 2. where the judgment of the court of trial is wrong by reason of a wrong decision of a question of law; or 3. for any other ground there has been a miscarriage of justice.
This is a case arising under the second limb, about which the plurality in Filippou stated: "[13] Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A 'wrong decision of any question of law' includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law [Weiss v The Queen (2005) 224 CLR 300 at 308 [17]‑[18] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.]"
I would grant leave under r 4 of the Criminal Appeal Rules (NSW) in this case. There was no apparent tactical reason for the applicant's counsel not to have objected to the directions. The errors relate to areas of the law that are of some complexity and, as I have found, the basis upon which the applicant was tried was somewhat of a jumble. Counsel for the applicant and the Crown did not apply their minds with clarity to the basis of the applicant's suggested liability. The requirement that the jury be properly directed about the applicant's knowledge in this case was fundamental to the trial process.
The errors here in the written and oral directions constituted a miscarriage of justice in the sense of a departure from trial according to law.

Application of the proviso

In Kalbasi v Western Australia [2018] HCA 7; 92 ALJR 305 the High Court dealt with a provision that closely mirrors the common form of proviso found in s 6(1) of the Criminal Appeal Act but which adopted a contemporary style of drafting. The difference in language does not appear to have been treated by the High Court as material. The Court divided 4-3 on the outcome. The general principle was described in the majority judgment thus: "[16] The appellant's invitation to elaborate on the categories of case in which satisfaction of the negative condition will not suffice to enliven the proviso is to be resisted. It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead." (footnote omitted)
The majority later explained: "[56] It may be accepted that in any case in which an appellate court concludes that an accused was 'not in reality tried for the offences for which he was indicted' there will have been a substantial miscarriage of justice within the meaning of the proviso. And it may also be expected that in such a case there will be a contest as to whether that conclusion is appropriate: to say that an accused has not in reality been tried for the offence for which he or she has been indicted is a vivid way of expressing the conclusion that a misdirection as to the elements of an offence amounts to a substantial miscarriage of justice for the purposes of the proviso, but it does not aid the analysis of whether the error is of such gravity as to warrant that conclusion. [57] A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. Krakouer was a case of a misdirection on a matter of law which reversed the onus of proof in relation to the intent with which the 'drugs' were possessed, effectively requiring the jury to find that element established; and yet, were it not for other circumstances of the case, the proviso may have been applied [Krakouer v The Queen (1998) 194 CLR 202 at 212-213 [23]-[24] per Gaudron, Gummow, Kirby and Hayne JJ]. The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred. [58] In a trial where no issue arises as to proof of a particular element of the offence charged, and the accused through his or her counsel consents to the removal of that element from the jury's consideration, then it may be that no miscarriage of justice at all will have occurred because of that removal."
More recently, in OKS v Western Australia [2019] HCA 10; 93 ALJR 438 a plurality in the High Court explained the application of the proviso: "[31] It is well settled that, in a case that does not involve a fundamental defect, the proviso cannot be applied 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict' [Lane v The Queen (2018) 92 ALJR 689 at 695 [38] per Kiefel CJ, Bell, Keane and Edelman JJ; 357 ALR 1 at 8; [2018] HCA 28, quoting Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at 104 [29] per French CJ, Gummow, Hayne and Crennan JJ; [2012] HCA 14 and Weiss v The Queen (2005) 224 CLR 300 at 317 [44]]. And as explained in Weiss v The Queen, there are cases in which the natural limitations of proceeding on the record do not permit the appellate court to attain that satisfaction [(2005) 224 CLR 300 at 316 [41]; and see Baini v The Queen (2012) 246 CLR 469 at 480 [29] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; [2012] HCA 59; Castle v The Queen (2016) 259 CLR 449 at 473 [68] per Kiefel, Bell, Keane and Nettle JJ; [2016] HCA 46; Collins v The Queen (2018) 92 ALJR 517 at 526 per Kiefel CJ, Bell, Keane and Gordon JJ; 355 ALR 203 at 212.]. This was such a case. The Court of Appeal's only gauge of the sufficiency of S's evidence to prove the appellant's guilt to the criminal standard was the verdict. It cannot be assumed that the misdirection had no effect upon the jury's verdict in circumstances in which the misdirection precluded the jury from adopting a process of reasoning, favourable to the appellant, that was open to it."
I reject the Crown's submission that this was a case where counsel for the applicant consented to the removal of the element of knowledge from the jury's consideration. It is true that counsel for the applicant did not give the trial judge the assistance her Honour was entitled to expect to receive about the elements the Crown needed to prove against the applicant. The principal responsibility for that state of affairs, however, rests with the Crown who opened, and never withdrew, a case resting on principles of joint criminal enterprise. I am satisfied that the applicant at the trial put in issue the fact of consent and his state of mind as to the fact of consent.
It is correct, as the Crown submitted, that this was potentially a strong Crown case against the applicant as an accessory at the fact in relation to the offence committed by Mr Waters. The GoPro evidence, which I have viewed, is powerful evidence of most elements of the charge, in particular, of the encouragement offered by the applicant to Mr Waters.
I have concluded, however, that this is a case where the applicant was not in reality tried for the offences for which he was indicted. This is because the jury was misdirected in a fundamental respect about the required mental state the applicant had to possess to be guilty of the charged offence. This is for two reasons.
First, it is not possible safely to conclude that the applicant was properly tried as an accessory at the fact. The multiple confusing references to elements of a joint criminal enterprise in the Crown opening and the written and oral directions make that conclusion unsustainable. On that basis alone it is not possible to conclude that there was no substantial miscarriage of justice.
Secondly, the jury was led to believe that recklessness on the part of the applicant about whether the complainant was consenting to the sexual intercourse occurring was a sufficient mental state to establish the applicant's guilt as an accessory present at the fact. As Simpson J observed in KA v R [2015] NSWCCA 111 (at [94]): "Proof that an act of intercourse is non-consensual and that an accused person knows that the act is non-consensual is not the same as proof that two accused persons agree to participate in a non-consensual act of intercourse. The agreement and the actuality are not coextensive."
I cannot exclude a possibility that, had the correct instruction been given, the jury, acting reasonably, might have acquitted the applicant. Despite the existence of the GoPro footage, I am not able to conclude that the conviction of the applicant by the jury, acting reasonably, was inevitable. For these reasons this is not a case where the proviso applies.
Grounds 1-4 of the notice of appeal should be upheld and the appeal against conviction allowed.

Sentence appeal

Given the conclusions I have reached it is inappropriate to address the sentence appeal. Leave to appeal on sentence should be refused.

Conclusion and proposed orders

For the foregoing reasons, I propose the following orders: 1. Leave to appeal against conviction granted. 2. Leave to appeal against sentence refused. 3. Appeal against conviction allowed. 4. Set aside the applicant's conviction. 5. Remit the matter to the District Court arraignment list on Friday 4 October 2019.
GARLING J: I agree with the orders proposed by Payne JA and with his reasons.
WRIGHT J: I agree with Payne JA.

Endnote

In Blundell v R [2019] NSWCCA 3, N Adams J (with whom Johnson J and I agreed) explained the critical differences between the principles of accessorial liability and the doctrine of joint criminal enterprise. In what follows I have drawn heavily upon her Honour's judgment. 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: 03 November 2020

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