Ford v R

Court of Criminal Appeal (NSW)|2019-11-15|Before: Brereton JA, Bellew J, Lonergan J

Background

Given that the appeal involves a challenge to her Honour's factual conclusion that Ford was the principal assailant, it is necessary to summarise the evidence that bore upon that question.
The victim, Mr Meurant, had resided at 85 Dymond Street, Bargo, a semi-rural property, for many years. Since about 2000 he had lived there alone; before then he had cohabited there in a de facto relationship with Wendy Makin. Wendy Makin's two daughters, including her younger daughter Kristie Makin (hereafter referred to by her first name, in order to avoid confusion), were also members of the household. Wendy and Kristie had left in about 2000, when Kristie was about 17 or 18 years of age, after Kristie had commenced a relationship with the co-offender Jamie Francis, to whom she was married at the time of the offence, although they later separated and divorced.
On 15 January 2011, Ford and his partner - who were long-standing friends of Francis and Kristie - visited their home at Hill Top for a barbecue, arriving about mid-afternoon. Another acquaintance, Paul McHuen, arrived later. Evidence of the events of that evening was given at the trial by Mr Meurant, by Francis, and by Kristie Makin. Ford did not give evidence.

Mr Meurant's evidence

Mr Meurant said that he knew Francis before he became Kristie's partner; he broke in a horse for his mother a long time before that. When Francis was going out with Kristie, before she moved out of the home, he saw Francis around once a week. After she moved out, he did not see him again.

Francis' evidence

According to Francis, on Saturday 15 January 2011, Ford and his partner arrived at about 2.00 or 3.00pm for a barbecue. He and Ford were drinking pre-mixed cans of Jack Daniels, tequila shots and Sol beer. In the course of the afternoon, Kristie Makin and Ford's partner went into Mittagong to purchase salads and more alcohol.
During the course of the evening, Kristie was "harassing" Ford to go and bash her de facto stepfather, Mr Meurant. At one stage she spoke by telephone to her mother Wendy Makin, who also encouraged an assault on Mr Meurant, and offered money for it. Initially, Ford, his partner and Francis said "No".
After McHuen arrived, Ford's partner went to bed. McHuen produced some cocaine which he had brought. Kristie again asked Ford to bash Mr Meurant, and Ford, Francis and McHuen all said "No". Kristie then began crying and sobbing and pleading for Mr Meurant to be assaulted; she claimed that she used to have to listen to Mr Meurant dragging her mum around by the hair and bashing her.
Francis thought that this "began to wear Ford down a little", and Ford said that he had listened to his father do the same to his mother, and became emotional. Then "[h]e hit his hands on the table and agreed to do it". By this time, they had each consumed probably a dozen Jack Daniels, half a bottle of tequila and ten beers, as well as some cocaine.
Kristie then "changed her tune" and became "chirpy and happy". She retrieved two pairs of black rubber disposable gloves from Francis' shed, then hopped in the car and beeped the horn with the car running. The others - Ford, Francis and McHuen - each grabbed a bottle of beer and entered the motor vehicle; by this time, only beer was left. Kristie drove, Francis and Ford were in the back, and McHuen was in the front passenger's seat.
Kristie drove them to Dymond Street, Bargo, and on the way described the layout of Mr Meurant's house. She parked the vehicle on the side of the road at the neighbouring property. Ford and Francis exited the car, put on the gloves, and walked to Mr Meurant's home. They went to the rear of the house. Ford kicked the back door in, kicking it twice. They entered the house. When asked who went in first, Francis answered: "I think it was [Ford], then me". They stood in the kitchen/lounge room area, and could see nothing; then a light came on at the end of the hallway, and Mr Meurant stuck his head out of the doorway of his bedroom and then disappeared.
Ford and Francis walked up the hallway towards the room where they had seen Mr Meurant. Ford was in front; Francis was right behind him. Ford was wearing shorts and a T-shirt or singlet (later, in cross-examination, he said a singlet), and had nothing on his head; Francis was wearing shorts, a black T-shirt with an orange "plus" logo, and a black cap (which, he said later in cross-examination, had a TNG Kelly's Trucking logo on it). When Francis reached the bedroom, Mr Meurant was kneeling beside his bed with his arms on the mattress, and Ford was behind Mr Meurant holding him down in that position, with his knees behind Mr Meurant's elbows, pinning him to the bed. When he saw Mr Meurant in that position, Francis believed that Mr Meurant was reaching for a gun, as they had been told by Kristie that Mr Meurant kept a gun either under his bed or in the bedside table. He then gave this evidence: Q. The accused had him pinned on the bed, fair to say? A. Yeah. Q. What happened then? A. He was struck with the bottle. Q. When you say "he was struck with the bottle", who was striking with the bottle? A. [Ford]. Q. Did you see where that bottle had come from? A. I believe it was [Ford]'s drink. Q. When you went inside the house, that is you personally, were you carrying anything yourself? A. No. Q. The time you went inside the house, did you see [Ford] carrying anything at that time? A. No. Q. Whereabouts on [Meurant]'s body was [Ford] hitting him with the bottle? A. On the back of the head.
Ford struck Mr Meurant on the back of the head with the bottle five or six times, until it broke. Francis was standing to Ford's left, towards the bedroom door, midway down the right-hand side of the bed. Once the bottle broke, Francis punched Mr Meurant to the back of the head, then: Q. Then what happened? A. The lamp was picked up and thrown on his head. Q. Who did that? A. [Ford]. Q. Where did he get the lamp from, do you remember? A. It was a bedside lamp.
They then ran from the house via the back door, jumped off the verandah, and ran to the car. In the course of this, his hat fell from his head. The car would not start at first (because it was still in "drive"), but then started. They dropped McHuen at his home at Braemar, and then returned to Francis' home at Hill Top. Kristie went to bed, while Francis and Ford sat and had a couple more drinks. When Ford's partner woke, perhaps about 7.30 or 8.00am, Ford and she went home, and Francis went to bed. He was woken by Kristie removing his clothing; she then drove around the town and disposed of it.
He and Kristie separated in 2013. In January 2014, he commenced proceedings in the Family Court regarding care arrangements for their children, and Kristie threatened to inform police about his involvement in the events of 15 January 2011.
In cross-examination, Francis said that Kristie did not like her stepfather Mr Meurant. Her urging to bash Mr Meurant was directed at Ford and not at him. He said that he was not part of their lives when she and her mother claimed to have been assaulted or abused by Mr Meurant, and that it had nothing to do with him, and that he went along with Ford as a result of peer group pressure, and not wanting to appear weak in the eyes of Ford or McHuen. He maintained that he had only ever previously been at Mr Meurant's house once, prior to Kristie moving out, and that he had never before entered the house. He was aware that people used the back door to the house rather than the front door, but he says they were informed by Kristie how to enter the house and about the layout of the house and where they were likely to find Mr Meurant.
It was put to him, and he denied, that he took charge of the break-in, that he was the first person to enter the house, and he was the first person to walk down the hallway. He agreed that he was wearing a black cap with a TNG Kelly's Trucking logo on it, and a black T‑shirt with an orange plus symbol on it, which he said was the size of the whole front of the shirt, while Ford was wearing a singlet. He conceded that he and Ford were "smashed", and under the influence of cocaine. It was put to him that Ford took with him a can of Jack Daniels and not a beer; it was not his recollection that Ford took a can of Jack Daniels when they entered the motor vehicle, and he thought that only beer was left at that stage. He confirmed that he took a bottle of Sol beer, which he said he drank on the way to Bargo and left on the floor of the car; he denied having a beer bottle in his hand when he got out of the vehicle, and denied that there was any drink sharing during the course of the night.
He was asked: Q. Tell me, why did you go? A. I ask myself that all the time. I don't do that sort of thing and-- Q. I'm going to suggest to you that you went because you were upset about what you believed [Meurant] had done to your wife, the mother of your children. A. I wasn't - I wasn't bothered in the least about what [Meurant] had done to Wendy. Had nothing to do with me, it didn't bother me in the least. Q. So, you decided to go, you say, simply out of some perception of peer pressure? A. I just didn't want to appear weak to my mate.
It was put to him that he was belting Mr Meurant with the bottle and the lampshade, and he denied that he hit Mr Meurant with a bottle. It was also put to him, and he denied, that he had gone to great lengths to write himself out of the story; and that he had given a version in which, in effect, everything of substance was done by Ford, in an attempt to reduce his own culpability.
In re-examination, the Crown was permitted to adduce evidence of previous representations made by Francis in lawfully intercepted telephone conversations. Francis agreed that in a conversation with McHuen on 12 February 2016 he had said "But I didn't hit him with a beer bottle. The other fellow did". He also agreed that he had a conversation with his mother the following day (13 February) in which he said, "Yeah, but the worst thing is, mum, there's two DNAs and, like, one is a beer bottle which is"; she said, "Yeah, I mean, yeah"; he said, "My beer bottle"; she said, "Yep"; he said, "But I never hit him with the bottle"; she said, "Yeah"; and he said, "I never had the bottle".
In further cross-examination, he agreed that in the conversation with McHuen on 12 February 2016 at 2.17pm, he said: "I'm to roll over on Kristie, because it was her that got us drunk and got us to bloody do this", though he disputed that that was inconsistent with his evidence that Kristie was only asking Ford, not him, to bash Mr Meurant. He agreed that he had said "And the DNA is a hat and a beer bottle, both from one person, and the hat's mine", and "They have a beer bottle from the scene", and that he said to his mother "I have to cooperate, mum, it's going to give me a better sentence, then I could get fucking 20 years". It was put to him, and he denied, that it was very clear to him in February 2016, that he needed to get a story together that involved him doing very little. He denied that, though he knew he was under investigation from 8 February 2016, he was aware of the possibility that the police might be tapping his phone calls, and said that this did not even cross his mind - notwithstanding that when he had telephoned Ford, Ford said that he did not want to talk on the phone. He accepted that he said to McHuen on 12 February 2016 at 6.21pm, "I don't even remember exactly what happened, but I know Kristie coerced us to do it", and "They've got DNA, which is a hat and a beer bottle, which is mine." He maintained that he never had a bottle with him. He accepted that in a conversation on 23 February 2016 at 8.18pm, he said "Like, the, the beer bottle wasn't a weapon, it was a drink container. We were drinking it, like", but denied that this meant that they were drinking from the same bottle. However, he agreed that he had had a concern that his DNA would be found on the bottle that he then understood had been located at the scene of the incident. He also accepted, though he did not remember, that he had said to McHuen on 12 February 2016, during the call at 6.21pm: "I've, I've got a vague memory of it", with reference to his recollection of the incident.

Kristie Makin's evidence

Kristie Makin made an induced statement to police in June 2015, and was aware that, as a result, she would not be prosecuted.
In her evidence at the trial, she said that Mr Meurant "kicked [her] out" when she was 18 and pregnant (to Francis), and that she did not like him, and sometimes thought badly of him, but although she did carry a grudge for a while, it subsided after subsequent events.
She could not remember much of the detail of what happened on 16 January 2011. She could not remember what time Ford and his partner arrived at the house; she thought it might have been in the afternoon, and that they might have been accompanied by their daughters. She said that she and Ford's partner did not go anywhere that afternoon. According to her, Ford brought Jack Daniels with him, but she was unsure whether it was cans or bottles. Francis was drinking the Jack Daniels, and probably beer as well. She could not recall any other spirits being consumed, nor whether anyone other than Francis was drinking beer. She could not recall whether they ate dinner.
She said that it was Francis who was always saying that he never liked Mr Meurant and that Mr Meurant needed to be taught a lesson, because he had "always gotten away with everything" - which she said was not true, because Mr Meurant had spent time in custody. She said that in the course of the evening, she told Francis to "stop blowing hot air". However, Ford responded to what Francis said about teaching Mr Meurant a lesson with "Yeah, come on, let's go do it" - although she says she was not a party to the entire conversation, and was in and out of the house attending to one of her daughter's needs. She denied having had a telephone conversation with her mother that evening.
The next thing she knew, they were in the car driving to Bargo. Francis was in the front passenger seat and Ford in the back; another friend Paul (McHuen) was also in the back. There was no conversation in the car on the way to Bargo. To her knowledge, Francis knew the layout of the house; he had been inside the house before she had moved out. It was her recollection that Francis was wearing a flannelette shirt over his T-shirt (as that was what he always wore), and he was also wearing a TNG Kelly's Trucking cap. She said that Ford was wearing shorts and a T-shirt because "That's what he always used to wear", but could not actually recall what he was wearing that night. She drove because she said she would. She parked the car, and then Ford and Francis got out; Ford had a pre-mixed Jack Daniels drink with him, and she could not recall if Francis had a Jack Daniels or a beer.
After the two men returned to the car, she drove back home. She says that she did not drive McHuen back to his house; her recollection was that he drove himself home. When they got back to Hill Top: Q. Once you got home, was you, the accused, and [Francis] - what happened? A. I know [Francis] - I can't recall whether [Ford] woke Serena up and they went home. I - but I know [Francis] went into the bathroom and washed himself off and undressed. Q. What, if anything, did you do with his clothes - [Francis]'s clothes? A. I put them in a garbage bag. Q. Why was that? A. There was blood all over them. Q. When they got back in the car, what, if anything, did the accused say about what had happened? A. He was fairly quiet. It was [Francis] that was all psyched up over it. Q. What, if anything, did [Francis] say to you about what they'd done? A. He said, "We did it. We did it". Q. Anything else? A. And I - I - I did, I asked him what happened, and he said that the back door was kicked in, and they ran up the hallway, but [Ford] was first and [Francis] was hiding behind [Ford].
She was not 100% sure what Ford did when they returned to Hill Top. Refreshing her memory from her statement, she then said Ford also washed up and then went to bed.
In cross-examination, she said that she would not have said anything to the police about the incident "if [Francis] and I were still together". She also agreed that she had described Ford to the police as "a big fat thing", someone with a fat stomach and a beard: Q. Do you remember saying to the investigator when he asked you to describe [Ford], that you said that, "He's about as you tall, maybe taller, and is a big fat thing," do you remember saying that? A. He's a big, he was at the time. Q. What you're saying is, that he was noticeably overweight at the time, was he? A. Yes. Q. By "fat," you mean, got a big stomach? A. Yes. Q. That the last time you'd seen him, he had a ponytail and a beard? A. Yes, not a long beard, but yeah.

The DNA evidence

DNA was recovered from the mouth of a broken Sol beer bottle which was found in Mr Meurant's bedroom, and from a black cap which was found off the verandah.
The DNA on the mouthpiece of the bottle was a mixture that originated from at least two individuals; the presence of a third could not be excluded, although there was no evidence of it. On the assumption that there were only two contributors, Francis was excluded, as he did not possess the types attributed to the major and minor contributors. The major contributor had the same profile as Ford, and was 1.9 billion times more likely to have originated from Ford than from an unknown unrelated individual.
Francis' DNA was recovered from the black cap.

Ground 2 - Common purpose

It is logical first to address the second ground of appeal, which was that the trial judge erred in failing to determine or apparently consider whether the wounding of the victim was part of any common purpose or shared intention between the appellant and the co-offender, Francis, such that they were in company for the purposes of a specially aggravated offence pursuant to s 112(3) of the (NSW) Crimes Act 1900 as alleged. The applicant submitted that even if the finding that he was the primary assailant were correct, the trial judge did not make any finding of common purpose or shared intention to wound, and that no such finding was reasonably open on the evidence, so that the two offenders were not "in company" for the purpose of the specially aggravated offence. In this respect, it was argued that the only evidence of Francis' purpose or state of mind was the bare evidence of his plea of guilty, which was unexplained, and that he gave no evidence of any common or shared intention to wound. It was submitted that to be "in company" requires that the offenders share a common purpose or intention to commit the relevant offence, and that it was incumbent on the prosecution to prove this.
It may be accepted that to be "in company" requires that the offenders share a common purpose or intention to commit the relevant offence. [1] However, for present purposes, the relevant offence is the simple form of the offence, not the circumstance of special aggravation. The appellant's argument does not have regard to the structure of s 112, and how the circumstances of aggravation and special aggravation fit within it.
At all material times, s 112 has provided for the simple offence, the aggravated offence, and the specially aggravated offence, as follows: 112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or (b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.
At the time of the offence, s 105A relevantly provided as follows: [2] 105A Definitions (1) In sections 106-115A: building includes any place of Divine worship. circumstances of aggravation means circumstances involving any one or more of the following: (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. circumstances of special aggravation means circumstances involving either or both of the following: (a) the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person, (b) the alleged offender is armed with a dangerous weapon. (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of circumstances of aggravation, or (b) paragraph (a) of the definition of circumstances of special aggravation, can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) For the purposes of paragraph (f) of the definition of circumstances of aggravation, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place. (3) The definitions in subsection (1) are not mutually exclusive.
The structure of s 112 is a cascading one. The first question is whether the accused is guilty of the simple offence, under subs (1). Ford admitted that he was.
If so, the second question is whether there are circumstances of aggravation, so as to render the accused guilty of the aggravated offence under subs (2). Here, the circumstance relied on was subs (b), that the accused was "in the company of another person", and he admitted that he was. As it happens, several other of the circumstances of aggravation, in particular (a), (b), (d) and (f), could also have been relied on.
If - and only if - the second question is answered in the affirmative, does the third question arise, namely whether there are circumstances of special aggravation, so as to render the accused guilty of the specially aggravated offence under subs (3). Here, the circumstance relied on was the wounding of a person, namely Mr Meurant. The only question at this stage is whether there was a circumstance of special aggravation. There is no requirement that any common purpose necessary to establish the circumstance of aggravation that the accused was "in the company of another person" extend to the circumstance of special aggravation.
This ground of appeal must fail.

Principles

The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen, [3] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows (emphasis added): [4] 84 The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the Court is required to make its own "independent assessment of the evidence". If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated (at 494) that "[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced" and "[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred": see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. 85 As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. 86 In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48].
In considering this ground, an appellate court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses". [5] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [6] These considerations are reinforced by the following observations of the High Court in The Queen v Baden-Clay ("Baden-Clay") (footnotes omitted): [7] 65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
Nonetheless, the concluding words of that passage, and the authority cited for it, [8] show that the ultimate question remains whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Baden-Clay does not affect the propositions that: 1. the appellate court must make its own independent assessment of the evidence, and if after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside; 2. in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced, and only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt may the court conclude that no miscarriage of justice occurred; 3. while it is insufficient, to render a verdict unreasonable, that a review of the evidence shows only that it was possible for a jury to reach a different conclusion, it is also insufficient, for a Court to conclude there was no miscarriage, that there was evidence on which a jury could convict: if after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.
These principles have generally been stated in the context of a jury verdict, but are also applied in a judge alone trial. [9] However, in the context of a judge alone trial, the availability of reasons for a judge's decision will inform consideration of whether it is unreasonable, because, unlike in a jury trial, the process of reasoning is exposed. [10] Drawing on the authorities to which reference has been made, they may for present purposes, in the context of an appeal to this Court from a conviction by judge alone, be stated as follows: 1. First, the question for the Court is whether it thinks that, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty. [11] 2. Secondly, to address that question, the Court must make its own independent assessment of the sufficiency and quality of the evidence. [12] 3. Thirdly, although it will not suffice to set aside the conviction if it appears only that it was possible on the evidence for the trial judge to reach a different conclusion, the conviction must be set aside if the Court decides that the trial judge should have had a reasonable doubt about the appellant's guilt (in the sense that he or she must, as distinct from might, have entertained such a doubt), even if there was sufficient evidence in law to support it. [13] 4. Fourthly, a doubt experienced by the Court will generally be a doubt which the trial judge ought also to have experienced, and if the Court is left in reasonable doubt after giving full weight to the primacy of the trial judge, it is only where the trial judge's advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice. [14]
The issue before the Court is therefore whether it was open (in the sense described in SKA v The Queen [15] and Libke v The Queen) [16] on the whole of the evidence for the trial judge to be satisfied, beyond reasonable doubt, that it was the appellant who struck Mr Meurant with a bottle and then a lamp and thereby wounded him.

The trial judge's reasoning

The evidence which bore directly on the identity of the principal assailant was that of Mr Meurant, that of Francis, and the DNA evidence. In order to find that Ford was the principal assailant, her Honour found that Francis was a reliable witness, and that Mr Meurant was mistaken in respect of the hat and T-shirt.
Her Honour's reasons for considering Francis to be reliable were as follows: I find Mr Francis to be a credible witness, certainly more credible than Ms Makin, and whilst there are some aspects of his evidence I reject, such as he had only been in the house once before this particular night, I find myself able to rely upon him beyond reasonable doubt in support of the Crown case as to the essential matters. In doing so, I am not preferring his version over that of any other. To my observation cross-examination of him revealed nothing to damage the reliability, but more importantly the consistency of his evidence. He had a good recollection of peripheral matters, in addition to the central aspects of the Crown case, the sort of witness who becomes more reliable as cross-examination continued. He was corroborated in a number of aspects of his evidence.
Her Honour's reasoning for finding Mr Meurant mistaken as to who was wearing the cap were as follows: I find that the person described by Mr Meurant as first entering his bedroom was this accused. This accused is a much larger individual than Mr Francis. Any description of the accused given by Ms Makin I reject out of hand. As I have said, I have found her to be an unreliable witness. I find that Mr Meurant was mistaken as to who was wearing the cap, just as he was mistaken as to the location of the vehicle driven by Ms Makin on this night. I find myself satisfied on the evidence of Mr Francis, and in light of the DNA evidence, that it was his cap and it was a cap worn by him, but I am not persuaded that it was Mr Francis who entered the room first wearing the cap, which is the case advanced on behalf of the accused. I find it was the accused and that Mr Meurant, like a lot of witnesses who have just experienced significant trauma, was mistaken in that regard. When the first male entered the room, the light was on. Mr Meurant knew Mr Francis. If it had been Mr Francis who entered the room first, Mr Meurant would have recognised him.
As to the DNA evidence, her Honour reasoned: I find it was the accused who struck Mr Meurant first with a bottle and then with a bedside lamp. He was the one closest to Mr Meurant in that small space beside the bed and the wardrobe. When the bottle shattered he was in arm's reach of the bedside lamp, and I find it was he who used that as a weapon also to strike Mr Meurant. I find myself beyond reasonable doubt that it was the accused who was armed with a bottle, it was his DNA on the mouthpiece of that bottle. A mixed DNA profile was recovered from the mouthpiece of the bottle. The major component has the same profile as that of the accused. It is greater than 1.9 billion times more likely to obtain this major profile if it originates from the accused, rather than if it originates from an unknown unrelated individual. An additional report was obtained from Ms Virginia Friedman, the expert witness from FASS. The DNA recovered from the mouthpiece is a mixture that originates from at least two individuals. There is no evidence of a third individual, but the presence of such a person obviously cannot be ruled out. Assuming, however, that there are only two contributors, Jamie Francis is excluded as a contributor to the mixture as he does not possess the types attributed to the major and minor contributors. I reject the submission that there was the possibility of secondary transfer. Neither of these men strike me as the sort of individuals who would have shared a bottle of beer. True it is that a significant quantity of alcohol had been consumed on this night, but it was over a lengthy period of time, nearly 12 hours from 2pm or 3pm on the Saturday afternoon before. A meal was consumed and it was then in the early hours of the following morning that they went to the premises.
As to the relative motives of Ford and Francis, her Honour continued: I reject the submission that it was Mr Francis who had the greater motivation to assault Mr Meurant. I accept his evidence when he said, somewhat matter of factly, that he had no interest in meting out punishment to Mr Meurant for some perceived past wrong. His description of the reaction of the accused to the harassment of him by Ms Makin, to punish Mr Meurant for violence inflicted upon her mother, is entirely consistent with someone who was witness to such events as a child and who, under the influence of alcohol, decides to punish such a perpetrator as a result.

Should the judge have had a reasonable doubt?

Mr Meurant's evidence was that the principal assailant was wearing a black T-shirt and a black cap, that he was a "big, pretty solid, muscly fellow", and that he did not recognise him. He recalled that there was a logo on the cap and on the T-shirt which he thought were the same. He obtained only a glimpse of a figure of the other assailant, who was standing in the shadows.
It was not in doubt that it was Francis who was wearing a black cap (which had on it a TNG Kelly's Trucking logo), which was retrieved from the scene, and on which Francis' DNA was found, and which Francis admitted was his. Francis also admitted that he was wearing a black T-shirt, with a prominent orange "plus" symbol on it. So far as the evidence went, it suggested that Ford was wearing a singlet, and no headdress. Thus this part of Mr Meurant's evidence pointed very strongly to Francis being the person he saw and who was the principal assailant.
Other aspects of Mr Meurant's evidence, which were more equivocal, were relied on by the Crown, and by the trial judge, as tending to identify Ford as the principal assailant. First, he described the principal assailant as a "big, pretty solid, muscly fellow"; this was said to point to Ford, who was much larger than Francis. In my view, this is a very fragile basis for identification: Mr Meurant gained no more than a glimpse of the second assailant and was in no position to, and did not, offer a comparison of their respective sizes; to someone in his position during the assault (pinned down to a bed for most of the incident), woken from sleep at night, any assailant would appear large; and while there was evidence that Kristie Makin had described Ford as "a big fat thing", with a fat stomach, a beard and a ponytail, that is not consistent with Mr Meurant's description of someone who was "solid and muscly" with short hair or a shaved head. Secondly, the fact that Mr Meurant did not recognise his assailant was also said to point to it being Ford, since he knew Francis, whom he had known since a young age, and who had been his stepdaughter's boyfriend. However, they had not had contact for eleven years, and even then their contact had been limited; it was dark; and the circumstances were traumatic.
The applicant complained that Mr Meurant's evidence about the cap and T-shirt had never been challenged, and the theory that he might have been mistaken had never been tested. I do not accept that the Crown was under any obligation to challenge his evidence by seeking leave to cross-examine him under (NSW) Evidence Act 1995, s 38. It is by no means clear that leave to cross-examine would have been given, just because his evidence might not in one respect have fitted the Crown's. It is entirely orthodox for a party to submit that a witness called by it might be mistaken in one or more respects and that other evidence should be preferred, and it is entirely permissible for a judge to conclude, notwithstanding the absence of cross-examination, that the witness is mistaken in some respect. That is not to say, however, that in all the circumstances of this case it was open to be satisfied, beyond reasonable doubt, that Ford was the principal assailant.
Francis said that it was Ford who used the beer bottle and the lamp to strike Mr Meurant. At the time of the relevant events, he was of course well-intoxicated with alcohol, and under the influence of cocaine; this may be expected to have clouded his recollection. Consistent with this, he told McHuen, in the intercepted telephone conversations on 12 February 2016, that "I don't even remember exactly what happened" and "I've, I've got a vague memory of it"; all these matters raise doubt as to the accuracy of his apparently clear recollection of the events conveyed in his evidence at the trial.
Francis was, of course, criminally concerned in the incident. By the time he came to give evidence, he had pleaded guilty to the same offence as that with which Ford was charged. He had not yet been sentenced, but the sentencing judge had indicated that an offer of assistance would be taken into account in deciding whether to refer him for assessment for an intensive correction order. It is plain (including from his intercepted conversation with his mother) that he was motivated to co-operate by the prospect of receiving more lenient treatment, and although he said that he had not been assured of a discount for co-operation, he was plainly hoping to obtain one (as he eventually did), and in terms of motivation, the hope of such an outcome is not much less of an incentive than the assurance of one. Her Honour properly warned herself that these matters could affect his credibility: In those circumstances it is important that I warn myself why his evidence may be unreliable. As he was involved in this most serious crime, he may want to shift the blame from himself onto this accused in order to justify his own conduct. He might construct an untruthful story which tends to downplay his part in the crime and play up the part of this accused. He might be making a false claim as to the involvement of this accused out of a motive of revenge or a feeling of hostility or dislike. He might be motivated to give false evidence in order to ensure that he does receive a discount on sentence when he returns to be sentenced by her Honour Judge Norton in July next. There might be other reasons or motives why false evidence may have been given by him. It is not for the accused to establish what they might have been. It is for the Crown to prove the essential elements of its case and the accused does not have to prove anything at all.
Although Francis rejected the proposition that as Kristie's wife and the father of her children he had at least as good a motive to assault Mr Meurant as Ford, and her Honour accepted his evidence, given "somewhat matter of factly", that he had no interest in meting out punishment to Mr Meurant for some perceived past wrong, both logic and probability point in the other direction. Mr Meurant was unknown to Ford. The instigator was, on Francis' evidence, his wife Kristie (and on her evidence, Francis himself); no one suggested that Ford was the instigator. Ford was under no apparent obligation to, or influence by, Kristie. The proposition that he would be motivated to take the lead role in this assault by memories of domestic violence allegedly perpetrated on his own mother in his childhood seems to me, objectively, far more improbable than that Francis would succumb to the entreaties and demands of his own spouse.
The assailants entered the property through the back door. As Mr Meurant explained, the front door was always kept locked and never used. Entry through the back door bespoke some familiarity with the property. While Kristie Makin was potentially one source of that information (according to Francis, she was; but this was not something included in his statement to police), so too was Francis. The trial judge rejected Francis' evidence that he had only attended Mr Meurant's Bargo residence once before this particular night, and had never entered it - which was improbable given that he was Kristie's girlfriend prior to her vacating the property; and was contradicted by Kristie's evidence that he visited her at the house in Bargo quite frequently before she moved out, as they were in a relationship at the time; and also by Mr Meurant's evidence that he saw him roughly once a week before Kristie Makin moved out, and had known him from much earlier when he had broken in a horse for his mother. Francis' evidence in this respect, which her Honour rejected, was calculated to dispel any inference that it was he who had the familiarity with the property to advise use of the back door. In the context that he was awaiting sentence, and hoping to receive favourable consideration on account of cooperating with police in the case against Ford, this raises a more general concern about his honesty and reliability.
Francis' clothing was contaminated with a substantial quantity of blood, so that Kristie arranged for it to be disposed of in rubbish bins around the town the next day. This is not easily reconcilable with the minimal role in the assault which his evidence describes.
There is admittedly some support for Mr Francis' version in the telephone conversations with McHuen and his mother which were intercepted. His statements to McHuen on 12 February 2016 in the conversation which commenced at 6.21pm: "But I didn't hit him with a beer bottle, the other fellow did", and to his mother on 13 February 2016 at 12.04pm: "But I never hit him with the bottle … I never had the bottle", provide corroboration for the version he gave at trial. I also accept that his statement to McHuen in the conversation on 12 February 2016 at 6.21pm: "They've got DNA, which is a hat and a beer bottle, which is mine", is ambiguous, and could reflect his understanding of the police position, and that in any event it does not amount to an unequivocal statement that the beer bottle was his. Consistently with this, elsewhere, what appears to be the same conversation was adopted by him in different terms: "And the DNA is a hat and a beer bottle, both from one person, and the hat's mine". However, those conversations took place five years after the incident, at a time when Francis was aware that there was a police investigation and that he was a suspect. The transcripts of the intercepted conversations were not in evidence, although they were in the prosecution brief and accessible to the parties; evidence of their content was adduced in re-examination, and then in further cross-examination. Thus only selected excerpts, and not the entire context of the relevant statement, were in evidence. This makes it difficult to draw conclusions about the significance of single sentences, devoid of their context.
Some corroboration for Francis' version is also provided by Kristie Makin's evidence that after they returned to Hill Top, Francis told her that "they ran up the hallway, but [Ford] was first and [Francis] was hiding behind [Ford]". However, that statement describes the entry and move up the hallway; it does not clearly refer to the assault itself. Moreover, Kristie's recollection of the whole night was poor, and she was considered unreliable by the trial judge.
To a high degree of certainty, Ford was a major contributor, and Francis was not a contributor, to the DNA obtained from the mouth of the beer bottle which was broken in Mr Meurant's bedroom. That plainly founds a conclusion that the bottle was one from which Ford had drunk. However, it says nothing as to who had handled the bottle, or used it as a weapon, particularly as both men wore gloves during the assault. It leaves open the possibility that a bottle from which Ford had at some stage drunk was picked up by Francis and used as a weapon to hit Mr Meurant.
It was necessary for the Crown to prove beyond reasonable doubt that Ford was the principal assailant, or alternatively put, to exclude as a reasonable possibility that it was Francis. For Ford to have been the principal assailant, it was necessary to discard Mr Meurant's identification of the principal assailant as a person wearing a black cap with a logo and a black T-shirt with a logo as mistaken. While it is not impossible that he was mistaken, that evidence corresponds so closely with the known facts that it is unlikely to be mistaken, given the specificity and accuracy of the description of the clothing, which matches what Francis admittedly wore. The possibility of reconstruction, arising from discovery of the cap after the event, is much reduced when one has regard to the accurate recollection concerning the black T-shirt with logo, which was not retrieved. On the other hand, the matters in his evidence relied on as pointing to Ford being the principal assailant have much less force.
Given that the men were gloved, and the DNA was taken from the mouthpiece, the DNA evidence says nothing as to who used the bottle to hit Mr Meurant, as either could have used a bottle from which Ford had at some stage drunk as the weapon. Only Francis' evidence ties the bottle to Ford: Kristie's evidence was that Ford had a pre-mixed Jack Daniels drink with him when they exited the car, while she could not recall if Francis had a Jack Daniels or a beer. There is no evidence that Ford was the instigator; it was either Kristie (according to Francis) or Francis (according to Kristie); in either case, it was Francis and not Ford who would have had the greater motive to assault Mr Meurant.
The evidence of Francis, which implicated Ford, was of questionable reliability. At the time, Francis was intoxicated and under the influence of cocaine; he had earlier stated (in the telephone conversations) that he did not remember exactly what happened; and by the time he came to give evidence, he was incentivised to underplay his own role, in order to maximise his prospects of leniency, as was illustrated by his claim - which was rejected by the trial judge - to have previously visited Mr Meurant's home only once and never to have entered it. Moreover, Francis was already aware of the benefits of co-operation when he spoke on the phone to McHuen and to his mother.
Given: 1. the apparently compelling identification by Mr Meurant of a man wearing the clothing admittedly worn by Francis as the principal assailant, and the relative weakness of his non-recognition of his assailant and the size of the assailant as indicators; 2. that Francis' state of inebriation and his motivation to minimise his role, confirmed by his understatement of his familiarity with the premises, was such that his evidence was of questionable reliability, a defect which was not entirely overcome by the intercepted conversations; 3. that the possibility that a bottle from which Ford had drunk was picked up and used as a weapon by Francis could not be excluded, as only Francis' evidence did so; and 4. the circumstance that objectively it was overwhelmingly Francis rather than Ford who had a motive to assault Mr Meurant; I am left in doubt that Ford was the principal assailant.
I do not think that this can be resolved by the trial judge's position of advantage in seeing the witnesses. There is nothing to indicate that her Honour's conclusion that Mr Meurant must have been mistaken was based on demeanour. It is true that her Honour's acceptance of Francis was, to some extent, based on demeanour; thus her Honour observed: "To my observation cross-examination of him revealed nothing to damage the reliability, but more importantly the consistency of his evidence. He had a good recollection of peripheral matters, in addition to the central aspects of the Crown case, the sort of witness who becomes more reliable as cross-examination continued". However, her Honour's justified rejection of his evidence that he had never been inside Mr Meurant's home, coupled with his statements in the intercepted conversation with McHuen to the effect that his recollection of the events was vague, could not be rationalised with acceptance of his evidence as reliable, by demeanour. While Francis' credibility was to some extent reinforced by his statements in the intercepted conversations that it was not he who struck Mr Meurant with the bottle, their force is undercut by his interest in minimising his own role, and the doubts cast on his claimed recollection by his intoxication and his statements to McHuen.
In those circumstances, his previous representations were insufficient to dispel, beyond reasonable doubt, Mr Meurant's identification of the principal assailant as a man who was wearing not only a cap with a logo but also a black T-shirt with a logo, as Francis was. In my judgment, therefore, the trial judge ought to have had a reasonable doubt as to whether Ford was the principal assailant.

Does this vitiate the conviction?

However, as will appear, it does not follow that Ford was not guilty of the specially aggravated offence.
The trial proceeded on the basis of a pre-trial ruling, sought by the accused, in respect of the mental element of the specially aggravated offence, insofar as it concerned an intention to wound. Before her Honour, it was submitted for the present applicant that, to establish the circumstance of special aggravation, the Crown must prove that the accused intended to wound the victim, while the Crown responded that what needed to be proved in respect of wounding was the possibility that a wound would occur, rather than the intention to inflict a wound.
As enacted the definition of circumstances of special aggravation under s 105A of the (NSW) Crimes Act 1900 was: circumstances of special aggravation means circumstances involving either or both of the following: (a) the alleged offender wounds or maliciously inflicts grievous bodily harm on any person; (b) the alleged offender is armed with a dangerous weapon.
At the time of the relevant offence in 2011, the definition was as follows: circumstances of special aggravation means circumstances involving either or both of the following: (a) the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person, (b) the alleged offender is armed with a dangerous weapon.
The form of s 105A in 2011 followed the (NSW) Crimes Amendment Act 2007, which replaced the word "maliciously" with the words "intentionally or recklessly". Later, after Blackwell v The Queen, [17] it was further amended by the (NSW) Crimes Amendment (Reckless Infliction of Harm) Act 2012, to read (underlining emphasis added): circumstances of special aggravation means circumstances involving any or all of the following: (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that person or any other person, (c) the alleged offender is armed with a dangerous weapon.
Thus, subs (a) now expressly requires that the wounding or infliction of grievous bodily harm be intentional, while under (b) it suffices, if grievous bodily harm be occasioned, that there was recklessness as to causing actual bodily harm.
Her Honour regarded the 2012 amendment as confirming what the law had always been, and concluded: It was the case, and it remains the case, that the prosecution needs to prove that the offender inflicted a wound and at the time he foresaw the possibility of a wound occurring, albeit not one necessarily as serious as that actually inflicted. The changes in the law following the decision in Blackwell, and the legislative changes, have no impact or effect on the mental element of the offence of malicious wounding, or the mental element of reckless wounding, and that is because of the nature of the injury sustained. It has always been, and it remains, incumbent on the Crown to prove that the accused intended to cause a wound in order to satisfy the requirements of s 105A of the Crimes Act where wounding is required upon.
However, in Ryan v The Queen ("Ryan"), [18] the High Court considered the offence of armed robbery etc with wounding, under (NSW) Crimes Act 1900, s 98, which was then as follows: 98. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life.
Notably, the elements of the offence under s 98 included (1) the "simple" offence of robbery, or assault with intent to rob; (2) an aggravating circumstance of being armed, or being in company with another person who is armed; and (3) a further aggravating circumstance, of wounding or inflicting grievous bodily harm on the victim. It is therefore a closely analogous provision to s 112(3).
In respect of that part of s 98 which said, "Whosoever … wounds … such person", Barwick CJ said: [19] I turn first to the construction of s. 98. There can be no doubt, in my opinion, that the wounding must be by the voluntary act of the accused: "whosoever wounds" is not satisfied by the mere fact that before, during or immediately after a robbery with arms the victim is in fact wounded. But will any act of the accused which causes the wounding suffice, or must there be a specific intent on the part of the accused by that act to wound the victim of the robbery. It is at the outset noticeable that the word "maliciously", found in s. 32, is absent from s. 98. I would take this omission to be deliberate and significant. In s. 32 nothing but the presence of that word would introduce the elements recited in the definition of malice in s. 5. In the case of s. 98, the earlier acts of robbery with arms introduces the element of unlawfulness, and makes unnecessary the use of the word "maliciously" merely to confine the wounding to some occasion of criminal behaviour. I do not think that s. 98 should be construed as if the word "maliciously" were inserted before the word "wounds". Further, s. 98 bears somewhat the same relation to s. 97 as s. 96 bears to s. 95. In each bracket, it is the wounding that enlarges the punishment from penal servitude for 14 years to penal servitude for life. I think it is instructive to observe that in the case of s. 96 it is the wounding thereby, ie, by the commission of the crime under s. 95 which constitutes the aggravated offence. That crime may be committed by a robbing preceded, accompanied or followed by a striking of a person or the use of violence to a person, in either case not necessarily the victim of the robbery. Clearly, it is the element of striking or use of violence by which the wounding will most likely be effected so as to satisfy s. 96. But according to the precise language of s. 96 the person wounded need not be the same person as the person struck or towards whom violence was used, who in turn, as I have observed, need not be the person robbed. It seems to me that under s. 96 whilst the striking or the use of violence must be voluntary, there need be no intention to wound and particularly no intention to wound the person who is in fact wounded. It seems to me that an accused may be guilty of the offence under s. 96, when he has robbed A, struck B and wounded C by the blow which he aimed at B, having towards C no intent even of the most general kind. Therefore, "whosoever . . . wounds" in s. 96 does not, in my opinion, import any intention to wound. But whilst there need be no intent to wound, the wounding must be by the accused. Therefore, the striking or the use of violence must be of such a nature or with such a weapon or implement as to be capable of wounding some person. But this does not mean that it must be found that the accused ought to have realized that his act would wound.
For present purposes, there are two significant aspects of what was said in Ryan. The first is the conclusion that in neither s 96 nor in s 98 was it necessary to establish any intention to wound. The structure of the definition of "circumstances of special aggravation" in s 105A as it was at the time of the offence was analogous to that of s 98 as considered in Ryan. Parliament, in enacting s 105A using words to the same effect as those the subject of Ryan, should be taken to have intended them to have the same effect. The absence of the word "maliciously" or "intentionally" before "wounds", and the presence of the words "intentionally or recklessly" before "inflicts grievous bodily harm", indicate that an intention to wound was not required to attract the circumstance of special aggravation, where wounding was relied on.
However, the second aspect is the statement that the wounding must be the voluntary act of the accused: "whilst there need be no intent to wound, the wounding must be by the accused". In Ryan, this flowed from the use of the words, in both s 96 and s 98, of the phrase "whosoever … wounds", and although s 105A uses the more modern language "the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person", it is analogous to the provisions considered in Ryan. This means that the circumstance of special aggravation is not satisfied merely if the victim is wounded; it must be the voluntary act of the accused.
On this approach, it sufficed to convict Ford of the specially aggravated offence if he was the principal assailant: the mere fact that his blows wounded Mr Meurant is sufficient. In any event, use of a bottle on a bald head with such force that it breaks is ample to support an inference of, at the least, recklessness as to wounding. However, if he were not the principal assailant, there would be insufficient evidence to establish, beyond reasonable doubt, that he wounded the victim.
At trial, and on appeal, the Crown presented an alternative case that, even if Ford were not the primary assailant, he was guilty of the specially aggravated offence under the doctrine of joint criminal enterprise, if in the course of their joint criminal enterprise he contemplated the possibility of wounding. In this respect, the Crown referred to Sio v The Queen, [20] in which Sio had been charged with and convicted of an offence against (NSW) Crimes Act 1900, s 98, which had been slightly but immaterially amended from the form in which it was at the time of Ryan, on the basis of joint criminal enterprise. The trial judge had directed the jury as follows: [21] 8. The crime of armed robbery with wounding has been committed by [Mr] Sio if the Crown has established beyond reasonable doubt each of the following elements: (a) On 24 October 2012 at Clyde [Mr] Filihia robbed [Mr] Gaudry. (Admitted) (b) At the time or immediately before [Mr] Filihia robbed [Mr] Gaudry he was armed with an offensive weapon, namely a knife. (Admitted) (c) At the time or immediately before [Mr] Filihia robbed [Mr] Gaudry he stabbed and wounded [Mr] Gaudry. (Admitted) (d) Mr Sio participated in a joint criminal enterprise of armed robbery with Mr Filihia. 9. Element (d) requires the Crown to prove Mr Sio did a positive act that signified his agreement to the joint criminal enterprise to commit armed robbery. His mere presence is not enough.
The High Court observed: 27 As is apparent, in relation to both charges, whether "Mr Sio participated in a joint criminal enterprise of armed robbery with Mr Filihia" was in issue before the jury. However, the written directions did not refer to the need for the Crown to prove the foresight of wounding element for the armed robbery with wounding charge but did refer to that element in relation to the murder charge. The oral directions also omitted reference to the foresight of wounding element of the armed robbery with wounding charge. Had such a direction been given, there would have been a complete coincidence of the elements in issue for the jury in relation to both charges.
In allowing the appeal from this Court, [22] and quashing the conviction, the High Court observed (footnotes omitted; underlining emphasis added): 33 The Court of Criminal Appeal approached Mr Sio's second ground of appeal as if it were a submission that the jury were wrong to find Mr Sio guilty of "armed robbery" rather than robbery simpliciter. It is apparent that the Court of Criminal Appeal's attention was focused upon whether Mr Sio was reasonably convicted of armed robbery. In this regard, the necessary understanding between Mr Sio and Mr Filihia to commit an armed robbery "could readily be inferred from Mr Sio providing Mr Filihia with the knife used in the robbery." The Court of Criminal Appeal did not address the specific question whether the conviction of armed robbery with wounding was unreasonable, which would have directed attention to the issue whether Mr Sio foresaw the possibility that Mr Filihia would use the knife to wound someone in the brothel while carrying out the robbery.
These observations clearly contemplate that an accused can be convicted of armed robbery with wounding, if the accused participates in a joint criminal enterprise of armed robbery with the principal offender, and foresees the possibility that the principal offender will wound someone in the course of the robbery. Ryan was not concerned with the doctrine of joint criminal enterprise; relevantly, its point was that where the act which caused the wounding was not, in any relevant sense, the act of the accused, a charge based upon s 98 would fail, because in such circumstances it would not be the act of the accused that caused the wounding. [23] Sio shows that, notwithstanding this, a charge based on (extended) joint criminal enterprise can succeed, if the accused foresaw the possibility that the principal offender would wound the victim. Such a case, where the act of wounding is within the contemplation of the accused, is not one in which the act which caused the wounding was not, in any relevant sense, the act of the accused. In any event, to the extent that Sio is inconsistent with Ryan, then the recent decision in a joint judgment of a unanimous bench of the High Court should be taken as reflecting the current state of the law.
In the present case, it is not necessary to resort to the doctrine of extended joint criminal exercise, which was the issue in Sio. In Miller v The Queen, [24] it was said, with reference to McAuliffe v The Queen [25] (footnotes omitted): 4 The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime (the incidental crime) committed by a co-venturer that is within the scope of the agreement (joint criminal enterprise liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ("extended joint criminal enterprise" liability).
While it is clear that Ford and Francis agreed to break, enter and commit a serious indictable offence, in company, I would not be prepared to conclude that they actually agreed to wound Mr Meurant. However, in circumstances where they intended to inflict bodily harm on him, and a bottle was taken to be used as a weapon for that purpose, they must have contemplated wounding as a possible incident of the execution of their agreement. It follows that if, as I have concluded, it is not established that Ford was the principal assailant, he can nonetheless be convicted of the specially aggravated offence on the basis of joint criminal enterprise. And even if, contrary to that view, wounding was not within the scope of the agreement, Ford must have foreseen - at least from the use of a bottle and lampshade as weapons - that wounding was a possibility, and as nonetheless continued to participate in the enterprise, he would be liable to be convicted on the basis of extended joint criminal enterprise. Accordingly, in my judgment, Ford was rightly convicted of the specially aggravated offence, albeit on the basis of joint criminal enterprise rather than on the basis that he was the principal assailant.
The appeal against conviction therefore fails.

The sentence appeal

On the basis that Ford was the principal assailant, the trial judge sentenced him to imprisonment for six years, with a non-parole period of three years and six months. In his appeal against sentence, the applicant advanced grounds that: 1. The trial judge erred in failing to find that the appellant had a history of exposure to domestic violence as a child, which contributed to his decision to offend. 2. The appellant has a justifiable sense of grievance in relation to the sentence imposed on the co-offender Francis. 3. The trial judge erred in finding to the criminal standard that the appellant was the primary assailant, in that he was the one who struck the victim with the bottle and the lamp.
The parties agreed that if it were concluded, as I have, that the appeal succeeded insofar as concerned the finding that the applicant was the primary assailant, but the conviction was nonetheless upheld on the basis of joint criminal enterprise, the sentence appeal should be allowed. While the parties suggested that the matter should be remitted to the District Court for resentencing, there seems to me no reason why this Court should not proceed, as (NSW) Criminal Appeal Act 1912, s 6(3), commands, to substitute the sentence that ought to have been imposed. In so doing, the trial judge's remarks, insofar as they were not challenged or are not affected by her Honour's finding that Ford was the principal assailant, provide a sound starting point.
The maximum penalty for the specially aggravated offence is imprisonment for 25 years, and there is a standard non-parole period of 7 years.
Objectively, the offence had many marks of considerable gravity, but some moderating features. It was committed in the victim's home, in the early hours of the morning, when the offenders anticipated that he would be home and, having regard to the hour, in all likelihood asleep. The weapons used - a bottle and a bedside lamp base - were well capable of inflicting serious injuries, but they were arguably less dangerous than others which might have been used (such as a knife or an iron bar or a firearm), and were used because they were close at hand; the offenders did not go to the victim's home ready armed with iron bars or more dangerous weapons. The offence was a violent one, and the offenders intended from the outset to inflict bodily harm on the victim; it is not as if the wounding was an accident. However the degree of premeditation was modest; it was a decision spontaneously made on the evening of 15 January 2011, when the offenders were extremely intoxicated and under the influence of cocaine. The offence was committed, at the instigation and urging either of Kristie Makin or of Francis, to "punish" Mr Meurant - who was a stranger to Ford - for alleged conduct against his former de facto wife, Kristie's mother. While the incident must have been utterly terrifying for Mr Meurant, it was of relatively short duration. Mr Meurant received severe head injuries (one wound required 18 staples or sutures to his scalp), and has been left with psychological sequelae: his treating psychologist suggested he might have post-traumatic stress disorder, although there was no evidence from a psychiatrist to that effect. Damage was also occasioned to his home by the forced entry.
The trial judge considered that the nature of the weapons used, and the brief duration of the home invasion, reduced the offence below the mid-range of objective seriousness, but that it was nonetheless towards the mid-range of objective seriousness having regard to the fact that there were two offenders, two weapons were used, it was a violent break-in to Mr Meurant's home, it was an offence committed in the early hours of the morning with a degree of premeditation, and at a time when these offenders knew full well that the victim was likely to be home. Her Honour's assessment of objective seriousness must be reduced on account of my conclusion that Ford has not been proved to be the principal assailant, but is guilty on the basis of joint criminal exercise. To that might be added that Ford had no personal interest in the commission of the offence, and stood to gain no benefit from it. In addition, in the context that being "in company" and armed were elements of the specially aggravated offence, they should not have aggravated its objective gravity. [26] Nonetheless, it remains an offence of considerable objective seriousness.
Subjectively, Ford is now 42 years of age. He did not give evidence in the sentencing proceedings, but a report of Professor Stephen Woods was tendered, as were references from his partner, his father and his sister. He also provided a letter to the trial judge, in which he said that he was deeply remorseful for what he had done to the victim, to his partner, to his children, to his family and to his friends. Her Honour found that Ford had done his best to demonstrate remorse for his wrongdoing and had an understanding of the impact of his offending behaviour on the victim and his family.
In his letter, he also wrote of witnessing things in his earlier life to which he should not have been subjected. To similar effect, Professor Woods reported that he referred to a history of being raised in a highly dysfunctional home environment, characterised by alcohol abuse and domestic violence inflicted by his father. Professor Woods opined that this early life experience appeared to have contributed to his decision, fuelled by drugs and alcohol, to agree with a request from his friend's partner to assault her mother's ex-boyfriend. Like the trial judge, in the absence of evidence from Ford I am not prepared to accept this. Ford's father, Alex Ford, is a retired police sergeant, whose letter of reference said that Ford and his sister were brought up in a loving family environment where respect, especially for the law, was paramount. Alex Ford had been married to his wife for nearly 49 years. Ford worked side-by-side with his supposedly abusive father in their joint stonemasonry business for some 20 years. Ford's sister's letter of reference contains no mention of them being exposed to domestic violence as children, or being maltreated by their father, or of there being alcohol abuse. This does not sit at all well with Ford's assertion to Professor Woods that his father was emotionally and physically abusive of their mother, and that his father inflicted harsh corporal punishment for the slightest misdemeanour or simply because he was in a bad mood. In the absence of any direct evidence to support Ford's claim, and in the face of the evidence of his father and his sister which would tend to contradict it, I too would reject that claim.
According to Ford's account to Professor Woods, he began to engage in substance and alcohol abuse between the ages of 12 and 14. By the age of 17 he was using amphetamines and cocaine, and had developed a daily habit and was also abusing alcohol. He says that when he was aged about 24 and the family moved to Bargo, he ceased using illicit substances and significantly reduced his intake of alcohol, but eventually he relapsed into drug abuse and engaged in what Professor Woods considered to be "dangerously high levels of binge drinking".
At the age of 20 he was convicted of driving with the special range prescribed concentration of alcohol and driving while unlicensed. Subsequently he had convictions for resisting a police officer in the execution of duty; driving whilst his licence was expired; speeding; not complying with the conditions of his provisional licence; driving with the low range prescribed concentration of alcohol; driving with the mid-range prescribed concentration of alcohol; and, since the offence in question, for affray. Thus his record includes nothing similar to, or approaching in gravity, the current offence, his convictions being mostly for driving offences and, in particular, drink-driving offences. Notably, other than the affray, he has no convictions for violence, and none for breaking and entering, or otherwise analogous to the current offence.
Professor Woods described Ford as unassertive and retiring in presentation, with a blunted affect, indicative of a depressed mood. Following psychometric testing, in the opinion of Professor Woods, he is suffering from mild to moderate anxiety, a major depressive disorder, alcohol abuse disorder of moderate severity, and stimulant drug disorder which is now in sustained remission. Ford and his partner have three grown daughters, two of whom still reside in the family home. His partner is in employment. The family is facing the prospect of a forced sale of the family home, as she will be unable to meet the mortgage repayments from her income alone. He is fearful that their relationship may not survive the stress and financial hardship occasioned by his trial and sentence.
Her Honour said that this offence "clearly was an aberration on his part", noting that his only other offence of violence post-dated it. By that her Honour presumably meant that, while he had a record of driving and drink-driving offences, he was not a person who had previously engaged in crimes of this nature and gravity, and that despite his considerable drug and alcohol problems, he had worked significant hours and contributed to supporting his family. In that sense, I agree with her Honour.
Her Honour found that his prospects for rehabilitation were "guarded, given his failure to attend for psychotherapy or undertake drug or alcohol counselling" to address his drug and alcohol addictions, even after this offence was committed until he went into custody. Her Honour found that if he does not undertake appropriate courses or counselling then the likelihood of him relapsing and re-offending was high. Given the apparently aberrant nature of the subject offence, I am less pessimistic about his future prospects. Her Honour rightly observed that since 2014 there had been no further offending, and that this bodes well for his rehabilitation if he is able to remain abstinent from abusing drugs and is able to manage his alcohol consumption.
Her Honour said that general deterrence was a significant consideration. While I do not disagree, its significance is moderated by the relatively spontaneous nature of the offence, the circumstances which led to its commission, and its aberrant nature.
Her Honour thought that the question of parity did not arise: This offender was by far the most violent of the two who broke into this victim's home. He has a more significant criminal record than his co-offender. His co-offender entered a plea of guilty early in the piece and offered to give evidence against this offender, for which he received, in total, a combined discount on sentence of 50%. As I have said, the head sentence before discount would have been approximately four years.
Francis had been sentenced by Norton DCJ to imprisonment for two years, to be served by way of an Intensive Correctional Order. He received a discount of 50% for his early plea of guilty and his co-operation, so that the notional starting point was a sentence of 4 years imprisonment. It was the fact that Ford was found to be the primary assailant, and that he was not entitled to a discount for a plea of guilty or for co-operation, where Francis was, that resulted in the disparity.
It follows from what has been said above in connection with the conviction appeal that he must be re-sentenced on the basis that it is not established that he was the primary assailant, and her Honour's finding that he was the more violent of the two assailants cannot be sustained. In those circumstances, where he is convicted on the basis of joint criminal enterprise, parity becomes a more important consideration, although he remains disentitled to any discount for a plea or for co-operation.
Her Honour made a finding of special circumstances, on the basis that there is a need for a longer than normal period of supervision on parole to enhance the offender's prospects for rehabilitation, and to ensure he attends counselling and drug and alcohol prevention and/or relapse prevention programs. This was reflected in a non-parole period which was less than 60% of the total sentence. I am prepared to accept her Honour's finding of special circumstances, though to a lesser extent; if applied to a reduced head sentence, it would result in a period of full-time imprisonment inadequate to reflect the gravity of the offence.
Although Ford had indicated a willingness to plead to a less serious offence than the one for which he has been found guilty, that offer was not accepted by the Crown. The trial proceeded and Ford was convicted of the specially aggravated offence. Her Honour rightly concluded that he was not entitled to any discount for his preparedness to plead to the lesser offence, as it had no utilitarian value.
In Morgan v R, [27] Morgan was sentenced for an offence against (NSW) Crimes Act 1900, s 112(3) (the specially aggravated offence), to imprisonment for six years and three months, with a non-parole period of two years and nine months. The Court adverted to submissions based on the Judicial Commission's statistics of sentences for the offence under s 112(3) and with sixteen cases in this Court dealing with that offence, and said: Broadly speaking, the figures placed the applicant's head sentence and non-parole period close to the mid-point of sentence for all offenders. The cases deal with the offence in a wide variety of circumstances, and disclose sentences ranging from 4 year[s] with a non-parole period of 2 years to 10 years and 9 months with a non-parole period of 7 years….
In my view, on the basis on which the trial judge sentenced him, being that he was the principal assailant, the sentence was a lenient one; the non-parole period of three years and six months was half of the standard non-parole period of seven years. However, the objective seriousness of the offence is reduced below the mid-range not only by the matters mentioned by her Honour, but also by its relatively spontaneous nature; and now by the conclusion that he is not shown to have been the principal assailant, but is convicted on the basis of joint criminal enterprise, in which circumstances parity becomes a much more important consideration. Subjectively, it is relevant that the offence is an apparent aberration on Ford's part, and that he had no personal interest in and stood to gain no benefit from it.
Giving very considerable significance to considerations of parity, and having regard to the apparently aberrant and spontaneous nature of the offence, and accepting her Honour's finding of special circumstances, I would quash the sentence, and substitute a non-parole period of two years and nine months commencing from 30 November 2018, and expiring on 29 August 2021, and a total term of imprisonment of four years, expiring on 29 November 2022.

Orders

I propose the following orders: 1. Grant leave to appeal; 2. Dismiss the appeal against conviction; 3. Allow the appeal against sentence; 4. Quash the sentence imposed in the District Court at Campbelltown on 13 December 2018 and substitute a non-parole period of two years and nine months commencing from 30 November 2018 and expiring on 29 August 2021, and a total term of imprisonment of four years expiring on 29 November 2022.
BELLEW J: I agree with Brereton JA and with the orders that his Honour proposes.
LONERGAN J: I agree with Brereton JA and with the orders that his Honour proposes.

Endnotes

R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159 at [120]; R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 at [119]-[121]; Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64 at [24]-[34]; FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182 at [121]-[125].
The definition of "circumstances of special aggravation" has since been amended: see [84]-[85] below.
(2017) 94 NSWLR 476; [2017] NSWCCA 78; see also BF v R [2019] NSWCCA 321 at [8]; IW v R [2019] NSWCCA 311 at [223]; Mulholland v R [2019] NSWCCA 257 at [68]; Ng v R [2019] NSWCCA 172; Ambury v R [2018] NSWCCA 275.
See also Boyson v Chief of Army [2019] ADFDAT 2 at [49]-[53] (Brereton JA, Perry J agreeing), on which this and the following paragraphs are based.
M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13] (French CJ, Gummow and Kiefel JJ).
Atai v R [2014] NSWCCA 210 at [134].
(2016) 258 CLR 308; [2016] HCA 35.
M v The Queen (1994) 181 CLR 487 at 494-5; [1994] HCA 63.
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [24]; R v Holden [2014] NSWCCA 230 at [23]-[27]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6], [9], [11], [12], [56]; Smith v R [2019] NSWCCA 162 at [70] (Davies J, Hoeben CJ and Fagan J agreeing).
Cf Bell v R [2017] NSWCCA 207 at [20]-[25] (Bathurst CJ, McCallum J and N Adams J); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12], [81]-[83].
M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66].
M v The Queen (1994) 181 CLR 487 at 492; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14] (French CJ, Gummow and Kiefel JJ); Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84].
M v The Queen (1994) 181 CLR 487 at 492-5; [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85].
M v The Queen (1994) 181 CLR 487 at 493-4; [1994] HCA 63; Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12].
(2011) 243 CLR 400; [2011] HCA 13.
(2007) 230 CLR 559; [2007] HCA 30.
(2011) 81 NSWLR 119; [2011] NSWCCA 93.
(1967) 121 CLR 205; [1967] HCA 2.
Ryan (1967) 121 CLR 205 at 223-4; [1967] HCA 2.
(2016) 259 CLR 47; [2016] HCA 32.
(2016) 259 CLR 47; [2016] HCA 32 at [26].
Sio v The Queen (2015) 249 A Crim R 553; [2015] NSWCCA 42 (Leeming JA, Johnson and Schmidt JJ agreeing).
See Ryan (1967) 121 CLR 205 at 231; [1967] HCA 2 (Taylor and Owen JJ).
(2016) 259 CLR 380; [2016] HCA 30 (French CJ, Kiefel, Bell, Nettle and Gordon JJ, Keane J agreeing at [131]); see also IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 at [61]-[63] (Bell and Nettle JJ); Johns v The Queen (1980) 143 CLR 108 at 118; [1980] HCA 3 (Stephen J).
(1995) 183 CLR 108 at 114-115; [1995] HCA 37.
(NSW) Crimes (Sentencing Procedure) Act 1999 s 21A(2); Cf Tabbah v R [2019] NSWCCA 324 at [114]; R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [106].
[2016] NSWCCA 298 at [25]. 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: 22 May 2020

Crimes Amendment (Reckless Infliction of Harm) Act 2012(NSW)

Crimes Amendment Act 2007(NSW)

2 Sio v The Queen (2015) 249 A Crim R 533; [2015] NSWCCA 42 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smith v R [2019] NSWCCA 162 Tabbah v R [2019] NSWCCA 324 Category: Principal judgment Parties: Lee Ford (Applicant) Regina (Respondent) Representation: Counsel: I Neil SC (Applicant) D McMahon (Applicant) H Roberts (Respondent)

As to ground 1 of the conviction appeal

The trial judge ought to have had a reasonable doubt as to whether Ford was the principal assailant. The ultimate question when determining whether a verdict is unreasonable is whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court was left with a reasonable doubt as to whether the applicant was the principal assailant given a combination of factual and contextual circumstances. This doubt could not be resolved by the trial judge's position of advantage in seeing the witnesses: at [55], [78]-[80].
The applicant was rightly convicted of the specially aggravated offence, albeit on the basis of joint criminal enterprise rather than on the basis that he was the principal assailant. Notwithstanding an arguable inconsistency between two High Court authorities, the doctrine of joint criminal enterprise is applicable to s 112(3) (and the closely analogous provision of s 98) of the Crimes Act. At the time of the relevant offence in 2011, an intention to wound was not required to attract the circumstance of special aggravation where wounding was relied on: at [89], [91], [97]-[101] Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 applied; Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2 applied and distinguished.

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Cases Cited (49)