REGINA v MRK

Court of Criminal Appeal (NSW)|2005-06-30|Before: Spigelman CJ, Grove J, Hall J, Sully J

Background Facts 6 As indicated above, the Crown case against the Appellant was that he participated in a joint criminal enterprise based on an agreement amongst all of the accused to commit acts of aggravated sexual assault in company. It was the Crown case that this agreement extended to the threat by use of the knife and that it was complete by the time of the deprivation of liberty of the complainants. The Crown did not assert that the Appellant committed any sexual act but that he was part of the joint enterprise and assisted in it. The Crown accepted that there was no evidence that the Appellant actually saw any of the knives being produced or used. His Honour directed the jury in accordance with the terms of that concession. 7 The Appellant, who gave evidence, said that he was affected by drink when his brothers and RS returned to the house. He asserted that he did not take part in any sexual assault and was not a party to any agreement or understanding that the complainants were to be sexually assaulted, let alone in the circumstances of aggravation. He said that he was not aware that a knife was used to threaten either of the complainants. 8 On the previous Saturday, i.e. 13 July 2002, the Appellant and his brothers having met with the two complainants had returned to their own house with them. The complainants slept the night with the Appellant on the lounge room floor. Nothing untoward occurred on that occasion. 9 On the night of the offences the Appellant's brothers had arranged to meet LS and HG at East Hills train station. The Appellant's first involvement in the events of the evening was that he contacted other persons by telephone seeking directions as to how to get to East Hills station. His three brothers and the co-offender RS went to East Hills station and picked up the complainants. The Appellant was not with them. 10 After several hours at the house the assaults began when MMK asked LS to come to the bedroom with him. When she refused he grabbed her wrists and her hair and pulled her to the ground. MSK approached her during this period and slapped her hard on the face. LS ran to the back door but was confronted by MMK. LS said that she screamed for assistance from HG. MAK and MSK came to where she was standing. MSK was holding a knife in his hand. She ran to the bathroom but they pursued her and MSK pointed a knife at her and he said: "I'm going to kill you". LS said that she started to scream very loudly and was crying hysterically. She said she was screaming out: "Help me" and HG's name. She said that she was taken back from the bathroom to the living room and by the time she arrived there HG was no longer there. 11 In her evidence HG gave evidence of the time when MMK grabbed LS and took her off the couch and pulled her towards the kitchen door. It was at this point that the Appellant first became involved. HG said: "I was about to get back and (MRK) was behind me and he came up behind me and held me down so I couldn't get back up … While (MMK) was dragging (LS) off the couch … I was, like, fighting to try and get up and then he said, 'Oh, don't get up, he hits girls' …" (T 283) 12 She also gave evidence that the thing that was stopping her from going to the assistance of LS was that: "(MRK) held me down" (T 284.25). 13 HG then gave evidence that MSK said to MRK: "Oh, get her, grab her shit … take her to the room. (T 284.45)

She gave evidence that she went with MRK to the room, because MRK and MSK "made me" (T 286.18 and .31). She said that she did this because of the violence that had been manifest and that MSK was "making orders" and MRK said to her "Oh, do what he says" and "Oh, he hits girls" (T 286.40-43). 14 HG gave evidence that she was in a state which she described as "freaking out" when she came into the room with MRK. MRK shut the door behind him (T 287.23). She attempted to dial emergency number 112 on her mobile while MRK had his back turned. She then said: "… He just happened to turn around at the time I pushed call and then he goes 'Oh what are you doing', you know, and he snatched the phone out of my hand, he said 'Oh what are you doing' and I said 'What are you doing, give my phone back' and he wouldn't give it back. He snatched it off me and he wouldn't give it back and I said 'Give my phone back' and he said 'Oh no I'll give it back to you after'." (T 287.36-43) 15 She indicated that MRK then left the room and shut the door behind him (T 287.49). 16 A short time after the Appellant left the room, leaving HG there alone, MMK entered the room and sexually assaulted her a number of times threatening her with two different knives. 17 LS described the knife involved in her attack as a pocket knife with a red handle. HG described the knives used in her attack as a kitchen knife with a black handle and a blade of some 15-16 cms in length. She described a second knife as being like a diving knife with a green handle and a jagged edged blade. 18 HG was subsequently assaulted by RS and a third person whom she could not identify. 19 LS had been taken to another bedroom. The Appellant was already there (T 103.50). She asked for his assistance and he said: "I'm only new to the group. I can't tell them what to do, I can't make them do anything. He's just drunk. Do what he says." (T 104.1-5) 20 It was MSK who had pushed the complainant into the room and the inference was available that the "he", to whom the Appellant was referring, was MSK. The Appellant left the room and as he did so the complainant noticed that there were people standing in the hallway just outside the room (T 106.20-25). 21 When MSK entered the room he came in with a different and bigger knife which had a brown wooden handle. He also showed her three bullets and told her that he had a gun. 22 LS said that at this stage she was crying hysterically and started screaming. She also said that MSK was screaming and yelling at her. He also screamed at her "Take off all your clothes. I'm going to kill you." at a time when he was pointing the knife at her (T 106.45-48). He screamed words of this kind, including a threat to kill her, more than once. During this period she said she was pleading with him to put the knife down (T 106.50-T 107.5). He sexually assaulted her three times. 23 After MSK left the bedroom MAK entered and proceeded to sexually assault her, during the course of which she was also screaming and crying. He also said that he was going to kill her. 24 After the assaults of each of the complainants had occurred they returned to the lounge room where the Appellant was present. Subsequently the Appellant and the other four co-offenders drove the two complainants and then dropped them off at a train station. During the course of the drive some of the co-offenders, but not according to one of the complainants the Appellant, made a number of threats to kill the complainants if they went to the police (T 117.50-55 and T 119.1, T 312.58-T 313.8). 25 When they left the car HG said that the Appellant and MMK abused them by saying words to the effect "Fuck off you sluts" (T 313.42).

Grounds of Appeal 26 There are five grounds of appeal as follows: "1. The learned trial judge erred, in determining that evidence of the use by others of a knife to threaten the alleged victims in counts one, two, three, six, seven and eight was admissible against the appellant, because there was no evidence, or alternatively insufficient evidence, to establish that there was an agreement to which the appellant was a party that there should be an offensive weapon used to threaten the alleged victims. 2. The trial judge erred in failing to direct verdicts of acquittal in relation to counts one, two, three, six, seven and eight, that is the counts alleging the use by others, said to be acting in concert with the appellant, of a knife, where there was no evidence that the appellant was present when a knife was produced, or knew of the use of the knife or agreed to the use of a knife. 3. The directions given by the trial judge on the concept of joint criminal enterprise were erroneous and inadequate, particularly in the manner in which they dealt with: (i) The need for the Crown to prove not only the presence of the appellant, and his knowledge of the offences in which he was alleged to be a participant, but also his active and intentional encouragement of the others, or his preparedness to give willing assistance to the others. (ii) The need for the Crown to prove the knowledge of the appellant that the assaults occurring away from his immediate presence were not only crimes of sexual assault but were assaults which had the specific characteristics to make them offences of aggravated sexual assault in company (s61A Crimes Act 1900 ), that is of a kind which were described in written directions as being 'type three' sexual offences: see 'summing up document #3' at page 5. (iii) The need for the Crown to prove beyond reasonable doubt that there was an agreement, whether express or otherwise, between the appellant and the others to commit the offences with which they were jointly charged. His Honour's directions to the jury, particularly in response to a specific question from a juror in the course of the summing up, may have left the jury with the impression that it was enough to secure a conviction if it was possible to infer that there was an agreement; see summing up 8 October 2003 at page 67.9. 4. The directions in the appellant's case on the issue of joint criminal enterprise in the appellant's case were erroneous in that they had the effect of reversing the onus of proof. 5. The verdicts of the jury on counts one, two, three, four, six, seven, eight, nine and ten are unreasonable having regard to the evidence admissible against the appellant: s6(1) Criminal Appeal Act 1912. " 27 Grounds 1 and 2 relate to the two sets of charges under s61JA(1)(c)(ii), i.e. the use of the knife. These grounds turn on the state of the evidence about this particular Appellant's knowledge that a knife was or was to be used in the assault. Should the appeal with respect to these offences be upheld by some combination of Grounds 1, 2 and 5, Mr P Byrne SC, who appeared for the Appellant, accepted that it would be open for this Court to substitute a verdict of guilty under s61J of the Crimes Act 1900, pursuant to s7(2) of the Criminal Appeal Act 1912. Grounds 3, 4 and 5 apply to all charges.

Grounds 1 and 2 28 Mr P Byrne SC, who appeared for the Appellant, submitted that the use of a knife was an essential element of the aggravated form of the offence charged. The Crown had to prove beyond reasonable doubt every element of the offence including that the joint criminal enterprise in which MRK intentionally participated extended to the use of the knife. Ground 1 is concerned with the admissibility of evidence relating to the use of knives by others. Ground 2 challenges the failure of his Honour to direct a verdict of acquittal on the basis that the evidence which was admitted was not sufficient to go to the jury on the particular charge. It is convenient to deal with these grounds together. 29 The Crown case on this element of the offence was circumstantial, there being no direct evidence that the Appellant was present on any occasion at which a knife was produced. Nevertheless, in my opinion, there was a proper basis for an inference, available to the jury on the evidence, that the joint criminal enterprise extended to encompass the use of whatever force was necessary to subjugate two young women and that that force could extend to threats to kill either of them and to do so by means of a knife. 30 On the evidence it was open to the jury to find that MRK was an integral member of the group with a pre-arranged defined role to be performed by him as part of the overall scheme. That he so regarded himself is strongly suggested by the evidence of HG who said that he told her "I'm new to the group". More significant are the active steps he took during the course of the assaults. As soon as MMK, perhaps by means of a pre-arranged signal, asked LS to come to the bedroom with him and then assaulted her, MRK immediately acted by pinning HG so that she could not come to the assistance of LS. Thereafter MRK performed the role of taking HG to a room and preventing her from making a telephone call. He also supervised LS when she was taken to the room by MSK. Both of the victims gave evidence that MRK said to them that they should submit to the will of the others because they would physically assault them if they did not. These references did not, however, extend to the use of the knife. 31 There were additional factors which entitled a jury to infer that MRK was well aware that knives might be used. Three of the four assailants were his brothers with whom he lived in the apartment in which the offences occurred. At least one of the knives was a kitchen knife, the presence of which he would have been aware of. The fact that the two assailants who produced knives lived in the same place as brothers suggested a relationship in which their possession of the other knives would probably have been known to the Appellant together with their propensity to use them. Furthermore, during the course of the assaults, particularly that of MSK on each of LS and HG, there were threats to kill each of the victims by MSK in a voice described by the victims as screaming. LS gave evidence that she asked him to put the knife down on several occasions. The flat was a small one. It was open to the jury to infer that the Appellant heard everything. The propensity of his brothers to threaten to kill their victims was reinforced in the car drive after the assaults during which the Appellant was present and during which the other assailants made further threats to kill the complainants. 32 The combined effect of all of these matters is, in my opinion, that it was open to the jury to find beyond reasonable doubt that this essential element of the offence was made out. This was apparent at the time that the objection to the admissibility of the evidence was made. In any event, for the reasons I have indicated above, even if excluded at that stage, the evidence would have been admitted at a subsequent stage. Grounds 1 and 2 should be dismissed.

Ground 3 33 This ground of appeal consists of three separate matters of complaint as set out above. 34 Sully J provided the jury with a written document outlining the structure of the summing-up and providing part of its content in writing. His Honour addressed the jury with reference to that document. His Honour separately addressed the evidence in relation to each of the co-offenders. In the course of doing this in MRK's case his Honour said at SU 130-131: "The issues, therefore, that you have to resolve come down in MRK's case to this: there being no dispute that he was present in the Thomas Street premises at the relevant times, has the Crown proved to your satisfaction and beyond reasonable doubt that whatever you are satisfied he said and did, gives rise to no other rational explanation - I repeat no other rational explanation - than the explanation that although he committed no actual assault, he knew that the assaults were going on, and was prepared to do whatever he might be called upon to do by way of assisting; or in other words, that he was throughout a participant in a joint criminal enterprise as previously discussed." 35 Even taken on its own, without further elaboration, this direction is sufficient to reject each of the three matters asserted by the Appellant to constitute errors in his Honour's summing-up. In emphatic terms his Honour indicated the circumstantial nature of the case, reiterating his Honour's earlier direction in this regard, and referred back to the detailed directions he had given to the jury with respect to the joint criminal enterprise. These were matters that had to be established by the Crown with respect to the assault that had actually occurred. 36 Earlier in his summing-up his Honour indicated that the case against MRK was "entirely a circumstantial case" (SU 47). He went on to indicate, in terms of which no complaint is made (at SU 49-50): "Insofar as the Crown case depends upon circumstantial evidence, it cannot succeed unless the Crown satisfies you that there is no inference to be drawn rationally from the whole of the proven circumstances except inference of guilt as charged." 37 His Honour provided the jury with detailed directions on the principles of law with respect to joint criminal enterprise to which no specific objection was taken. These included the following directions in both writing and orally: "3. A person participates in a joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is carried out and with knowledge that the crime is to be or is in fact being committed by intentionally assisting or encouraging another joint participant in the joint criminal enterprise to commit the particular crime. The presence of that person at the time when the crime is committed and readiness to give aid is required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the particular crime. … 4. If the agreed crime is committed by one or other of the participants in the particular joint criminal enterprise all of the participants in the enterprise are equally guilty of the crime regardless of the particular part played by each in the actual commission of the particular crime." 38 His Honour went on to outline in some detail the whole of the Crown case including setting out in point form the range of inferences concerning the existence of a joint criminal enterprise which had to be drawn with such assurance that no other rational inference was open. These inferences include an arrangement in which all knowingly participated in a joint enterprise to sexually assault each of the girls "if necessary by force or the threat of force". His Honour also directed the jury that each of the co-offenders, even if not actually assaulting the victims, knew that the assault was occurring and was ready to give any assistance necessary in order to enable the assaults to be carried out. 39 His Honour went on to give detailed instructions to the jury on the different levels of seriousness in the hierarchy of sexual offences. In the course of this part of his summing-up his Honour drew attention to the elements of aggravation including the use of an offensive weapon. He directed the jury that any kind of knife was an offensive weapon. 40 I can see no proper basis for the first of the matters raised under Ground 3. His Honour reiterated on a number of occasions that the Appellant could only be found guilty if the Crown established either his intentional encouragement of the actual assailants or his preparedness to give assistance. 41 The second particular matter raised relies on the significance of the absence of any evidence that the Appellant was present when a knife was actually deployed in the context of the series of assaults. Shortly after his Honour's specific directions in the case of the Appellant, counsel for the Appellant, in the absence of the jury, requested further directions in the following terms: "YEHIA: Your Honour, two matters. I ask your Honour to remind them not to convict in circumstances of aggravation which is the threat of infliction with the knife and on the Crown case there is no evidence that he was present at the time the knife was produced, no direct evidence that he was present at the time the knife was produced or threats made with it. I ask your Honour to give a circumstantial direction. I ask your Honour to remind them if there is any rational hypothesis consistent with innocence it is their duty to acquit. HIS HONOUR: I told them that in other words, haven't I? Each time when I came to the no rational explanation I said, no rational explanation, repeating it. I think that will do." 42 It was the case, as his Honour indicated, that he had used the formulation "no rational hypothesis consistent with innocence" or its equivalent on many occasions including in the passage that I have quoted above in par [34]. This passage occurred only a few moments prior to the submission. His Honour's directions in this regard were more than adequate. 43 Submissions about the Appellant's knowledge of the presence of knives in the house were then made. His Honour then made the following additional direction in the case of MRK: "The evidence does not establish that he was ever present himself in any room in which a knife was actually produced and used. If you add that into the list of matters that you will need to consider in the connection with his case." 44 In the light of the directions as a whole there is no basis for a complaint that his Honour failed to bring home to the jury's mind the need for the Crown to prove knowledge of the Appellant that the assaults had all the characteristics, including the essential element of the offences charged of the aggravation by the use of the knife. This is also sufficient to dispose of the third matter to which objection was taken under this ground. 45 With respect to this third basis, the Appellant drew attention to a question by a juror in the course of his Honour's summing-up when his Honour was giving an example relating to a break enter and steal offence where one offender was the driver in a get-away vehicle, and another had broken the glass but did not actually enter and steal anything. His Honour said each could be held liable "because each had played a knowing part in the carrying out of a joint criminal enterprise" (SU 67-68). In the course of this direction a juror asked a number of questions. His Honour answered and made reference to the fact that there must be an agreement. His Honour was plainly addressing the specific matters raised. There is no suggestion in anything his Honour said, nor can it be inferred, that an agreement was sufficient. His Honour emphasised on many occasions the nature and extent of participation which was required in order to find the Appellant guilty of the offence. 46 This ground of appeal should be rejected.

Ground 4 47 The part of his Honour's summing-up which, it is submitted, has the effect of reversing the onus of proof is the following. His Honour said with respect to MRK: "… in his case a great deal turns upon the view that you formed of him in the light of your advantage in seeing and hearing him as he gave his evidence in the witness box. Do you think that it is a reasonable possibility, - may I say again: a reasonable possibility; we are not talking about debating points, we are talking about logic and commonsense, - do you think it a reasonable possibility that throughout the whole course of events on 27 and 28 July, he was so drunk and hungover that he saw nothing, heard nothing and did nothing such as would make him, in the way previously explained to you, a participant in the alleged joint criminal enterprise." 48 His Honour had at this point already directed the jury with respect to the facts and the significance of the complainant's evidence, including alleged inconsistencies in their evidence identified by counsel for the Appellant in her address to the jury. His Honour then went on to refer to MRK's own evidence and referred back to his Honour's earlier directions about lies. It was in the context of the consideration of MRK's reference that the passage objected to occurred. 49 His Honour had made numerous references to the need for the Crown to prove its case beyond reasonable doubt. Indeed, a moment or two before the passage objected to, in the passage set out in par [34], he reiterated the need for the Crown to prove beyond reasonable doubt that whatever the Appellant did gave rise to no other rational explanation than that he knew the assaults were going on and was prepared to do whatever he might be called upon to do to assist them. His Honour's references to a "reasonable possibility" in this context did not suggest anything in the nature of a reversal of the onus of proof. Rather it reinforced the basic direction. There is nothing in the passage, let alone in the overall context, which would suggest a reversal of the onus of proof. It is perfectly consistent with his Honour's frequently reiterated direction that the Crown had to prove its case beyond reasonable doubt.

Ground 5 50 Nothing additional is raised with respect to this ground. The issues that may have given rise to a finding in this regard have been considered and rejected above. 51 The appeal against conviction should be dismissed. 52 GROVE J: I agree with Spigelman CJ. 53 HALL, J: I agree with the reasons of the Chief Justice and the orders he proposes. I would wish only to add the following in relation to grounds 1 and 2 of the appeal. 54 The evidence entitled the jury to infer that the joint criminal enterprise was preceded by specific planning and co-ordination by the four offenders. 55 The evidence also entitled the jury to determine the scope of the pre-existing agreement between the four offenders and in that respect to infer that the enterprise was to be implemented by means of duress involving threats and acts of violence and by the unlawful restraint and confinement of the complainants. 56 The jury were entitled to scrutinise the behaviour of each of the offenders before, during and immediately after the commission of the offences in order to determine the scope of the agreement in each case. The evidence permitted the jury to conclude that the following conduct was within the common design of the joint criminal enterprise:-

(a) the physical assault by MSK upon LS by slapping her hard on the face;

(b) the unlawful restraint of HG by the appellant by holding her down so that she was unable to stand up;

(c) the unlawful action of "Mohammed" in dragging LS off the couch and then dragging her towards the kitchen door with LS screaming out to HG;

(d) the appellant proceeding to the bedroom with HG and his subsequent actions in taking and removing HG's mobile phone and in turning the lights off in the room prior to leaving the room and shutting the door on HG;

(e) the appellant's statement to HG, "Oh, do what he says … he hits girls" ;

(f) the actions of MAK, MSK and MMK in running at or towards LS with MSK, at this early stage of the enterprise, then holding a pocket knife and, whilst pushing open the bathroom door, MSK threatening "I'm going to kill you" followed by the screaming and hysterical crying of LS;

(g) MSK forcing LS into another bedroom at knifepoint, the appellant then being present in that bedroom and the appellant responding to LS's plea for help, with the statement, "I'm only new to the group. I can't tell them what to do, I can't make them do anything … He's just drunk. Do what he says" (referring to MSK). 57 The appellant at all times was within the house where the criminal activities occurred, including those to which I have referred. The scale plan of the house reveals that the relevant rooms within it, the loungeroom, the bedrooms and the bathroom were within very close proximity, one to the other. The appellant was at all times within close proximity to MSK, MAK and MMK when they undertook the abovementioned activities. The appellant, by his actions, both supported MSK, MAK and MMK in the means employed to achieve their joint objective and in several respects directly participated in the fast-moving events to which I have referred. In particular, the evidence of LS established that the appellant was aware of the threat made very early in the relevant sequence of events by MSK to kill her, he at all material times being within close hearing range of MSK. 58 The jury were entitled to infer and conclude that it was within the common design or purpose of the offenders' plan that a weapon such as a knife would be employed as a means of creating the duress necessary to overpower the will of the two complainants. The jury were also entitled to infer that it must have been apparent to the appellant that MSK would use an instrument such as the knife to reinforce the threat to LS, "I'm going to kill you" as a means to oppress the complainant into submission. In other words, whether or not the appellant saw a knife in the hand of one or more of his co-offenders, the jury were entitled on the evidence to conclude that the use of a knife or knives was within the scope of the joint plan: Varley v. The Queen (1977) 51 LJR 243, 256; Regina v. Duong (1992) 61 A. Crim. R. 140, 147-148 per Mathews, J. The use of a knife was within the range of events which might reasonably be expected to occur before and during the sexual assaults of the complainants and on the proven facts the jury were well-entitled to conclude that the use of such a weapon was within the actual contemplation of the appellant. **********

09/08/2005 - Incorrect spelling of Counsel (Mitchelmore) - Paragraph(s) Front sheet

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.

REGINA v MRK [2005] NSWCCA 271 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (1)

Cited By (1)