Directions: joint criminal enterprise
141 As argued, the first ground of appeal is rather more extensive than would at first appear. It concerns the directions given to the jury in relation to what is encompassed by a joint criminal enterprise. This is not an easy area of the law. As McHugh J pointed out in Osland , there are a variety of ways in which the Crown may establish that one person, not the person who does the acts that constitute the actus reus of the offence, may nevertheless be criminally liable for those acts. The category of criminal complicity upon which the Crown relies will determine the necessary and appropriate directions both as to law and as to the facts of the particular case. Of the particular category that is here relevant, McHugh J said:
"However, there is a third category where the 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 result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No.2] [ [1972] VR 560 at 560] by Smith J who directed the jury in the following terms:
'The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.'
In that case, his Honour directed the jury that 'they are all equally guilty of that crime'. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law :
'[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.' (emphasis added.)" (emphasis in original: some internal references omitted).
142 It will be seen that (i) presence; (ii) pursuant to pre-concert, are the twin aspects of this category of liability.
143 What made the present case complex and called for particular care with directions was the late arrival of the appellant at the scene of the crime.
144 The particular point made on behalf of the appellant was that the directions failed to draw attention to the necessity for the Crown to prove that the appellant was present when Charles did the acts that made up the crime. There were a number of such acts necessary to constitute the offence of armed robbery with wounding. That crime has a number of elements, of which, for present purposes, it is necessary to mention only one, wounding. As to the meaning of wounding, the judge appropriately directed the jury in a manner not subject to challenge. This included a reference to the need for a breaking of the skin. Although there appears never to have been any precise delineation as to which of the injuries - the laceration to the scalp, or the broken nose - was the injury relied upon by the Crown, that is of no significance. There was no dispute that Mr Sharpe suffered an injury amounting to a wounding. The question was whether or not the wounding had been shown to have been inflicted at a time when the appellant was present; more accurately, given the way in which the ground was framed, whether the jury's attention had adequately been drawn to the need for the Crown to establish that to the requisite standard.
145 The question is, theoretically at least, of some significance. If the wounding had been inflicted before the appellant's arrival at the scene, then he could not have been found guilty on the basis alleged by the Crown. Presence at the time of the wounding was essential to that category of liability. (The appellant might, if other relevant circumstances had adequately been proved, have been liable as an accessory before the fact, but this is not the basis on which the Crown case was conducted.)
146 Counsel for the appellant argued that there were a number of possibilities, on the evidence, as to the timing of the wounding, and that the Crown had not discharged the onus of proving that the appellant had been present at all of those times.
147 The evidence clearly shows that there were at least two blows inflicted on Mr Sharpe. The first was when he was hit on the base of the neck, near the shoulder, something which, on his evidence, occurred before the appellant's arrival. The second, which Mr Sharpe was unable to describe in any detail, plainly occurred in the moment before he lost consciousness. This was after the appellant's arrival. The trial judge did not include any directions to the effect that the jury could not convict unless satisfied beyond reasonable doubt that the appellant was present at the time the wounding was inflicted. Nor did he draw attention to any doubts or uncertainties arising from the evidence about the point during the encounter at which Mr Sharpe was wounded. On behalf of the appellant it was argued that this was a significant omission because of the diverse possibilities as to when the wounding occurred.
148 However, when the evidence is properly analysed, there is no reasonable possibility that the jury could have concluded that the first blow was the cause of the wounding. It did not cause Mr Sharpe to lose consciousness; he said that he stood up immediately. He gave no evidence of bleeding at that time. There was no medical evidence of injury to the base of the neck or shoulder, the parts of the body Mr Sharpe identified as the location of that blow. By contrast, Mr Sharpe's evidence clearly suggests that he was struck again after the appellant's arrival; he lost consciousness for a time thereafter; and, on regaining consciousness, he was bleeding. The inference from the medical evidence is that he was hit in the face, causing him to fall backwards and strike his head. On the appellant's own evidence, he was present at the time Charles raised his hand to Sharpe for the second time.
149 Accordingly, although it was necessary for the jury to be satisfied beyond reasonable doubt that the appellant was present when the wounding took place, the absence of a specific direction to that effect caused no miscarriage of justice. If the appellant's argument in relation to the first ground of appeal had been so narrowly confined, I would reject it.
150 However, the written and oral argument went further. In order to consider the ground as it was ultimately put, it is necessary to set out extensive passages from the summing up. The transcript records that his Honour said:
"I now propose to continue my summing up by coming to the legal term, joint criminal enterprise. The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The prosecution must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime, may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them, then and there, to commit the crime.
A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed and by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and the readiness to give aid, if required, is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in the enterprise are equally guilty of the crime regardless of the part paid by each in its commission …
[His Honour then illustrated the principle by reference to examples]
The prosecution asks you to consider all of the circumstances of this event. What Mr Alwyn Sharpe told you about the descriptions he gave of each of the two men who were there and what they respectively did, what positions they took up in the spot near to Arthur Street, adjacent to the Pacific Highway.
The scientific evidence relating to the matching blood on the accused's jogger shoes lace (sic) with the blood of Alwyn Sharpe is also a matter, asks (sic) to be taken into account as part of the circumstances from which you can draw inferences about this joint criminal enterprise. The Crown asks you now to take into account that the accused was there and involved in this enterprise. He has given evidence about it and there is no question that he says, 'I was there.' He continued to be with Lindsay Charles, the prosecution puts to you and he ran away. The prosecution asks you to look at all of this and the whole of the evidence. I was only picking out parts of it, because the prosecution only yesterday put to you submissions as to what you should rely upon, but the prosecution puts all this to you to say it points, overwhelming and beyond reasonable doubt, to a conclusion that Lindsay Charles and Paul Donnelly, this accused, reached an understanding to commit a robbery. Each is responsible and therefore guilty of the crime charged regardless of the part played in its commission, that is, the prosecution puts to you, it does not matter that you make a finding in your minds that Lindsay Charles wielded the weapon, so long as the prosecution can show material upon which you can find, beyond reasonable doubt, that there was an understanding between Charles and Donnelly to commit a robbery in these circumstances. It does not matter that one of them and one only wielded the bat. Each are equally guilty for the acts of the others in the commission of the crime."
151 His Honour then turned to other matters, to some of which it will be necessary shortly to refer, and returned to the concept of joint criminal enterprise. The transcript records the following:
"I hope, that by going over what is meant by joint criminal enterprise, I dispel the submission made to you by defence counsel that for your (sic) to be satisfied, beyond reasonable doubt, the hitter has to be armed. That is, in this case, this accused to be guilty of joint criminal enterprise, he must have been aware of all those details, aware that it is a scheme or plan. I have told you that he can be responsible for the acts of the other, if you are satisfied beyond reasonable doubt, that there was an understanding and it is true that there is no evidence that the accused hit anyone, that he joined in someone else's hitting. Well that, as I put to you, that is sufficient, as I told you, sufficient under the definition of joint criminal enterprise."
152 A number of specific criticisms were made about the form of the directions. Firstly, it was contended that the directions given as set out in paragraph 34 above were those appropriate to a case in which the Crown sought to establish liability as a principal in the second degree (that is, as a person who is present at the scene, encouraging and willing to assist if necessary: see Osland para 71, Tangye , pp 556-7).
153 This was not the basis on which the Crown here sought to make the appellant liable. The directions appropriate to the basis on which the Crown relied (principal in the first degree - Osland , para 72) would have focussed the jury's attention on the question of just what the appellant had agreed to participate in, as distinct from his willingness to assist.
154 At the conclusion of the summing-up counsel for the appellant sought a re-direction, arguing that his Honour had "intermingled" the two concepts. His Honour declined to re-direct the jury.
155 I have concluded that there is merit, both in what was put by counsel to the trial judge, and what has here been argued. The various bases on which criminal complicity can be established has some complexity. What is important is that the jury be directed in such a way as to make clear the legal basis on which liability is put by the Crown, and as to the facts and the evidence (and the arguments of counsel) relevant to that issue; and, particularly, relevant to the issue or issues as it or they emerge at the trial. Here, as the trial was conducted by the Crown, the issue was not whether the appellant was present, offering encouragement and willing to offer assistant, but whether he was there by reason of a prior agreement to commit a crime, and, if so, what came within that agreement - that is, what crime had he been shown to have agreed to participate in.
156 The direction about assistance and encouragement that was given had the potential positively to deflect the jury's attention from the critical question, that is, the existence and boundaries of any agreement between the appellant and Charles; and the jury were not given the necessary guidance as to the factual matters relevant to the determination.
157 To add to the confusion, his Honour also endorsed a submission apparently made by the Crown, that the blood on the appellant's shoelaces was a matter "from which you can draw inferences about this joint criminal enterprise".
158 This was, in my opinion, in the circumstances quite misleading. What the evidence of blood on the shoelaces tended to establish was that the appellant had been present at the scene at some time after Mr Sharpe had been wounded. Once the appellant had given evidence, and had acknowledged having been so present, the evidence of the blood did little, if anything, to advance the Crown case. It was misleading to direct the jury that it was something from which inferences could be drawn, without specifying what relevant inferences were available. In the circumstances of this case, the existence of blood on the shoelaces was not a matter capable of contributing to the resolution of the real issues.
159 That issue was whether the Crown had proved that the appellant was present as a result of preconcert and if so, what was encompassed in the preconcert. There being no admissions made by the appellant, and no evidence from Charles, the Crown case on these important matters was entirely circumstantial. An important part of the Crown case lay in the words attributed by Mr Sharpe to the appellant:
"Give it to him or he'll use it".
160 These words (assuming that Mr Sharpe's evidence in this respect was accepted by the jury) were capable of being construed alternatively as threatening or advisory. Mr Sharpe did not describe the tone of voice in which they were uttered as anything other than "casual". If the jury accepted that the words were spoken, then the appellant's denial may have gone someway towards assisting the jury in the resolution of their proper interpretation. Again, this called for a clear direction.
161 There are other matters of concern in the summing-up. I have quoted the passage in which in which his Honour purported to "dispel the submission" made by defence counsel. It is difficult to see how this passage in any way could have assisted the jury.
162 Further, although it is not a matter that has been raised on behalf of the appellant, the trial judge gave an extensive direction on lies upon which, it seems, the Crown had relied as part of a circumstantial case. It is well established that lies told by an accused person may be used by a jury to support an inference of consciousness of guilt: see, eg R v Dellapatrona (1993) 31 NSWLR 123; Edwards v R (1993) 178 CLR 193; R v Zoneff [2000] HCA 28; 112 A Crim R 114; R v Sandford (1994) 72 A Crim R 160. However, a direction in this respect must be given with great care. Most importantly, it is essential that the alleged lie or lies be identified in the summing-up. Further, the jury must be told that they could not act upon a lie or lies told by an accused unless satisfied that it was or they were deliberate, related to an issue material to the offence charged, and was or were told by the accused out of fear of being found guilty of the offence charged if he or she told the truth, or because he or she was unable to give an innocent explanation or account for the conduct which was the subject of the lie.
163 The direction given was deficient in a number of respects. It was in the following terms:
"The prosecution, in this case, asks you to regard what it puts to you are lies by the accused in determining guilt. In short, the prosecution says that that demonstrates a consciousness of guilt that can be inferred from the lies that the prosecution says the accused told out of Court and in Court. But I must tell you how you look upon lies, before you can rely upon them. The prosecution alleges that the accused has told lies to the investigating police and in the course of his evidence here. The Crown seeks to make use of those lies to corroborate its allegations. It argues that a person who tells lies about one matter cannot be trusted in respect of other matters. In other words, if the accused tells any lies at all, this may affect his credibility all round, but as I would understand the defence, you may still, as I put to you earlier, separate evidence, that is, you can say, 'well someone can lie about one thing and be honest about something else', but the prosecution says that if you accept that he is telling lies, then that may affect his credibility in your eyes. You can accept this argument or not, you may feel that telling any of the lies is enough to damage a man's credibility or you may think that it depends, to some extent, on the nature of the lies and the circumstances in which it is made. Here the accused tells you that he had never been in this situation and he freaked out and he was frightened of being blamed for something else. The extent to which you accept or reject the submission by the prosecution is entirely a matter for you as the sole judges of the facts. But the prosecution seeks to gain some affirmative position from the fact that it can convince you that the accused has told particular lies in this case, relevant to the matters that are of concern. The prosecution seeks to rely on the lies as actually constituting evidence in its case and in particular, as corroborating the material it has put before you in support of its proof beyond reasonable doubt and further more, rendering more credible, the evidence of the prosecution witnesses, that is, rendering more credible what Mr Sharpe, the alleged victim, told you about this instance.
It is permissible for you to make use of lies, but only if certain conditions are fulfilled. The first of those ladies and gentlemen is, that he told a deliberate lie or lies. Second, that it or they, related to a matter that is material to this case and three, that he told it because he believed that the truth would implicate him in the offence.
First, you must be satisfied, beyond reasonable doubt that the accused did tell the lies in question. There are three steps involved in reaching that decision. Before you can be satisfied that he has told a lie, you must find first, that he made the statement alleged. You must then find that it was untrue and you must then find that at the time he made it, he knew that it was untrue. To put that another way, it must be shown to be a deliberate lie.."
164 There followed a passage in which his Honour expanded on what was meant by the reference to "a deliberate lie", and some repetition of other matters, and went on to say:
"The prosecution points out to you that not only did he say to his own counsel that he told a story different from what he told the police, but there are some particular and deliberate lies, not all of which I am going to go over again, but he tells the police about finding a twenty dollar note with the receipt wrapped around it. There is no mention of that when he is giving his evidence. There is, indeed, a rendering to you of a totally different story. There are other matters and I do not think it would be wise of me to go over all of those, the prosecution has outlined them to you and what the prosecution says is, they relate to a material issue in this case."
165 This was followed by a direction to the effect that there may be explanations other than consciousness of guilt of the offence charged for an accused person to tell a lie, and that:
"It is only his knowledge of his guilt of the offence with which he is charged here that is relevant."
166 A fundamental flaw in the direction was the failure to identify the lie or lies on which the Crown relied. Moreover, the appellant in fact explained the attitude he had originally taken. When he gave evidence he acknowledged that he had been in possession of money the proceeds of Charles' assault on Mr Sharpe. This was a classic case in which the jury should have been clearly warned that, to the extent they were satisfied that the appellant had told material lies, they could not act on that unless they were also satisfied beyond reasonable doubt that the explanation for the lie or lies lay in his consciousness of guilt of the offence of armed robbery with wounding - not an offence of being in possession of goods in custody, for example. Such a possibility was alluded to, but only tangentially.
167 I have observed that no re-direction was sought in this respect, and, indeed, the direction on lies was not raised as an issue in the appeal. Nevertheless, in my opinion the direction was so flawed that a conviction based upon it cannot be allowed to stand.
168 In my opinion, having regard to the deficiencies in the directions on joint criminal enterprise and on lies, the conviction must be quashed and a new trial ordered.
169 The second ground of appeal is a ground that, if successful, would entitle the appellant to an acquittal. I will deal shortly with the two remaining grounds of appeal before returning to that question.