Ground 1: The inadequacy of the judge's reasons

1. Under cover of the first ground, counsel for the applicant submitted that the judge's reasons are deficient, and amount to no more than 'analysis by assertion'. Hence, the reasons do not: expose a path of reasoning toward finding that the only reasonable explanation of the applicant's actions was that he was complicit in Harrison's offending; adequately explain how conclusions more generally were arrived at with reference to the evidence; and explain how (or why) the submissions advanced for the applicant were rejected.
2. The respondent's counsel submitted that the judge's reasons are sufficient in all the circumstances. This was an unusual case in which the totality of the offending is captured on video footage. It was therefore unnecessary to set out the factual matrix of the relevant offending in any great detail, the only issue being the inferences that could be drawn from the footage. Counsel submitted that the footage 'speaks for itself' and sufficiently demonstrates the applicant's involvement in the carjacking. The prosecution case was overwhelming. In such circumstances, the judge's reasons are adequate and disclose the necessary pathway to reasoning.
3. In our view, the submissions of the applicant's counsel should be accepted.
4. For the purposes of evaluating the adequacy - or, as the applicant would have it, the inadequacy - of the judge's reasons, it is convenient to set out in full the nine paragraphs that appear under the heading 'Consideration':[7]
   1. The starting point for my consideration whether or not the prosecution has proven beyond reasonable doubt that the [applicant] committed the offence of aggravated carjacking is that it is undisputed that the co-accused Cori Harrison committed the offence. The only issue in this case is, was the [applicant] complicit?
   2. First, I consider that the evidence of the criminal association between Cori Harrison and the accused beginning at 11:40 am on 1 April [2019] demonstrates that the pair had together taken part in a joint criminal spree and shared a joint criminal motive not only to commit crime but also to evade police. The objective of evading police did not merely arise at the point of collision with Ms Welsh's vehicle. The [applicant] and Harrison and Pais were travelling in a stolen vehicle in which there were numerous items of stolen property. This is not disputed. The joint motive to evade police was in existence at the time of the collision.
   3. There is no evidence to suggest that the [applicant] at any time withdrew from his association with Harrison. Upon collision with Ms Welsh's vehicle, the Air Wing footage, in my view, demonstrates unmistakably that the [applicant] and Harrison continue acting together.
   4. They exit their damaged vehicle almost simultaneously and the [applicant] follows Harrison as he runs across several lanes of the Frankston-Dandenong Road. It is clear from the footage that the pair are trying to secure an alternative vehicle. Harrison is armed with the imitation firearm, which is clearly visible. That the [applicant] was at all relevant times aware that Harrison was armed is not in dispute.
   5. Whether the [applicant] and Harrison were communicating, or whether it was because the [applicant] could see what Harrison was doing, the footage shows that when Harrison circles back and begins to run towards the stationary vehicles, the [applicant] does precisely the same thing.
   6. It is clear the pair are acting in tandem, and it is clear that their actions are directed at stealing a vehicle while Harrison is armed in order to achieve that objective. In my view_, the footage is patently inconsistent with the hypothesis that the pair are acting separately and distinctly_. I regard the hypothesis that there is no joint criminal activity until the moment when the [applicant] joins Harrison in Mr Baker's vehicle as insupportable on the evidence and I have no difficulty rejecting it. There is no point at which the [applicant] and Harrison attempt to go their separate ways, even though there are multiple directions in which they could flee.
   7. When the [applicant] and Harrison reach the stationary vehicles, they continue acting in unison trying to steal a vehicle. The [applicant] gets into the first vehicle, which is Mr Broadby's vehicle. Mr Broadby was unclear whether or not he left his keys in the ignition but, in any event, the [applicant] is only in Mr Broadby's vehicle momentarily before he exits it, which he does at the same time Mr Baker exits his vehicle under threat from Harrison. The [applicant] then joins Harrison in Mr Baker's vehicle. Ms Pais joins them and they drive away.
   8. In my view, it is clear the evidence shows that the [applicant] was certainly not a mere bystander, nor can his actions be viewed as solely his own and not linked to those of Harrison. Rather, the evidence shows that he was at all times an active and joint participant with Harrison in the offence of aggravated carjacking.
   9. In my view, the evidence proves that the [applicant]:

(i) intentionally assisted and/or encouraged Harrison to commit the offence of aggravated carjacking; and

(ii) agreed with Cori Harrison to commit the offence of aggravated carjacking and he acted in support of this agreement.

1. Before turning to an analysis of the judge's reasons, we pause to note the way in which the prosecution put its case against the applicant. Thus, in his final address the prosecutor did not submit that the evidence justified a finding that the applicant 'directed' Harrison in the commission of the offence of carjacking within the meaning of s 323(1)(a) of the Crimes Act 1958, but did submit that the evidence demonstrated that he assisted and encouraged him. Moreover, with respect to the limb in s 323(1)(c), the prosecutor told the judge that, as 'to whether there was an agreement, arrangement or understanding, ... I can indicate at the outset that the Crown focuses its submissions on understanding'. In written submissions to which he spoke, the prosecutor submitted that

it is open to a jury to draw an inference that the [applicant] had either:

• intentionally assisted or encouraged the commission of the aggravated carjacking; or

• intentionally assisted or encouraged the commission of the theft of a motor vehicle and the [applicant] was aware that it was probable that Harrison would commit an offence of aggravated carjacking in the course of seeking to steal a motor vehicle; or

• entered into an understanding with Harrison that a vehicle was going to be stolen at the relevant scene with the use of force and display of weapon; or

• entered into an understanding with Harrison to commit an offence of theft of motor vehicle and the [applicant] was aware that it was probable that Harrison would commit an offence of aggravated carjacking in the course of seeking to steal a motor vehicle.[8]

1. An examination of the judge's reasons demonstrates that she concluded that 'the [applicant] was certainly not a mere bystander, nor can his actions be viewed as solely his own and not linked to those of Harrison'. Rather, the evidence showed that the applicant 'was at all times an active and joint participant with Harrison in the offence of aggravated carjacking'. The judge concluded that 'the evidence proves' that the applicant intentionally assisted or encouraged Harrison to commit the offence of aggravated carjacking, and 'agreed' with Harrison to commit the offence - the prosecution had focused on 'understanding' - and 'acted in support of that agreement'.
2. What is missing from the judge's reasons, however, is an analysis of that part (or parts) of the evidence which moved her to conclude that the applicant was an 'active and joint participant' in the carjacking, or that he 'acted in support' of an agreement to support Harrison's offence of carjacking. The prosecutor had submitted in his final address that, in 'seeking to prove statutory complicity' the Police Air Wing footage 'speaks for itself'. To an extent that may be true. But as we have said, we consider that the footage itself raises a live issue as to whether the carjacking was not in fact complete by the time the applicant exited Mr Broadby's silver station wagon and went to join Harrison at Mr Baker's blue utility.
3. Of course, the prosecution might argue that there was an agreement on foot in the lead-up to the carjacking of Mr Baker's vehicle to carjack a vehicle - any vehicle - to evade police. That was not, however, how the case ultimately was put at trial.
4. Furthermore, in her reasons the judge said that 'the evidence of criminal association' demonstrates that the applicant and Harrison 'had together taken part in a joint criminal spree' and 'shared a joint criminal motive not only to commit crime but also to evade police', which 'did not merely arise at the point of collision with Ms Welsh's vehicle'. Their 'joint motive to evade police was in existence at the time of the collision'. The evidence demonstrates that, after the collision, the applicant and Harrison 'continue acting together' and 'there is no evidence to suggest that the applicant 'at any time withdrew from his association' with Harrison. According to the judge, 'the pair are acting in tandem', and the footage 'is patently inconsistent with the hypothesis that the pair are acting separately and distinctly'. The hypothesis that there is no joint criminal activity until the moment when the applicant joins Harrison in Mr Baker's vehicle is 'insupportable on the evidence'. It was clear to the applicant that Harrison was armed, and the two were 'trying to secure an alternative vehicle'.
5. When considering the adequacy of the judge's reasons, attention must, in our view, be directed to the elements of the charged offence. A person commits a carjacking if he or she steals a vehicle and, immediately before or at the time of doing so, and in order to do so, uses force on another person (or puts or seeks to put another person in fear that he or she or anyone else will then and there be subjected to force).[9] And a person commits aggravated carjacking if, when committing carjacking, he or she has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; or causes injury to another person in the course of the carjacking.[10]
6. To observe that the applicant and Harrison had a joint motive to evade police; that there was no evidence that the applicant withdrew from his association with Harrison; that the two were acting in tandem; and that they were trying to secure an alternative vehicle; tends to obscure the critical question: did the evidence establish to the criminal standard that the applicant intentionally assisted or encouraged Harrison to steal a vehicle by using force in order to do so, or acted in support of an agreement or understanding to steal a vehicle by using force in order to do so? Nowhere in her reasons does the judge spell out the evidence from which she was capable of resolving that question in a manner adverse to the applicant. Nor does she spell out her reasons for doing so.
7. As an ordinary incident of the judicial process, judges have an obligation to provide adequate reasons for decision. Although the content and extent of a judge's reasons will necessarily be dictated by the nature of the matter under consideration, and the evidence and the issues raised, a mere recitation of the evidence, accompanied by a bald statement of conclusions, will generally not be sufficient. Depending on the nature of the case, and the issues to be determined, a judge's reasons need not necessarily be elaborate. But in any disputed case, a judge should set out any material findings of fact, together with any ultimate conclusions or findings reached. He or she should provide reasons for arriving at the relevant findings of fact and the conclusions based on those findings, and should give reasons applying the law to the facts as so found.[11]
8. As Weinberg JA observed in Makeham (after citing Soulemezis[12]):[13]

What is clear is that a bald statement of an ultimate conclusion, even by reference to the evidence that is said to support that conclusion, is unlikely, by itself, to be sufficient. The process of reasoning which enables the path by which the conclusion has been reached must be able to be clearly discerned.

Of course, a judge, though obliged to give reasons, is not required to address every submission advanced during the course of a hearing. Nor are judges expected to deal specifically with every consideration that passes fleetingly through their minds as they proceed to their ultimate determination.

If it is not possible to discern from the reasons given how the conclusion was reached then those reasons will ordinarily be inadequate. Reasons should, at least, trace the major steps in the reasoning process so that anyone reading them can understand, at least in broad terms, how the judge arrived at his or her conclusion. Importantly, reasons must demonstrate that findings of fact were based upon logically probative evidence.

The content of the duty to give reasons will, of course, vary. The obligation that rests upon a busy magistrate, hearing perhaps dozens of summary matters in a day, will obviously be far less onerous than that which rests upon a judge in the County or Supreme Court. Nonetheless, there must be an irreducible minimum below which no set of reasons given by a judicial officer, in the exercise of judicial power, can fall.

1. In the present case, the reasons contained bald statements of ultimate conclusions without appropriate analysis. Although, in broad terms, the judge referred to the evidence which underpinned her conclusions, an explanation of the reasoning process which led to those conclusions being arrived at is largely absent.
2. We do not consider that the judge's reasons in this case needed to be particularly elaborate, since the video footage did, to a significant extent, 'speak for itself'. But the judge's reasons needed to disclose with clarity how what could be observed in the footage - taken with the other evidence - informed her ultimate conclusions as to the applicant's complicity with Harrison. They did not. Consequently, they were inadequate. Ground 1 therefore is made out.
3. In our view, the inadequacy of the judge's reasons has occasioned a substantial miscarriage of justice, since the applicant's conviction for aggravated carjacking was not inevitable.[14] Ordinarily, that conclusion would lead to an order for a new trial. In the unusual circumstances of this case, however, we are, for the reasons discussed below, persuaded that we should instead substitute a verdict of theft of a motor vehicle.[15]

Ground 3: The verdict is not unsafe and unsatisfactory

1. The submissions of the applicant's counsel under cover of ground 3 focused on the inadequacies of the judge's reasons.
2. Where, however, it is contended after a judge-alone trial that the verdict is unsafe and unsatisfactory - or, to use the language of the statute, 'is unreasonable or cannot be supported having regard to the evidence'[16] - the focus must be on the verdict, not the judge's reasons for it. The question this Court must ask itself in light of M[17] is whether we think that it was open to the judge - standing in the shoes of a jury - to be satisfied beyond reasonable doubt upon the whole of the evidence that the applicant was guilty.[18] Thus, the High Court said recently in Dansie[19] that

as the decision under appeal illustrates, undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it by [the equivalent of s 276(1)(a) of the Criminal Procedure Act 2009 (Vic)] when determining on an appeal against conviction whether the verdict 'should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence'. That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.

That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that 'the question which the court must ask itself' when performing that function is 'whether it 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', that question being one of fact which the court must decide by making its own independent assessment of the evidence'.

1. The Court in Dansie also observed:[20]

Filippou confirmed that the function of a court of criminal appeal determining an appeal on the unreasonable verdict ground is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury.[21] In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court 'will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt'.[22]

1. As we have endeavoured to make clear when dealing with ground 1, we consider the judge's reasons to have been inadequate. It does not inevitably follow, however, that the verdict on charge 7 was not one that was open to the judge on all of the evidence.
2. Having conducted our own independent review of the evidence, we are not persuaded that the judge, standing in the shoes of the jury, must - as opposed to might - have had a reasonable doubt of the applicant's guilt of carjacking.
3. In our opinion, the critical issue is very narrow, and turns on the inferences that a fact-finder is capable of drawing from the applicant's actions closely proximate to Harrison's carjacking (informed, as that exercise must be, by a consideration of the whole of the evidence, including the inferences that might be drawn from their joint criminal activities earlier in the day). As we have observed, although the applicant is seen to exit Mr Broadby's silver station wagon at a moment closely proximate to the point at which Mr Baker surrenders his vehicle to Harrison by vacating its driver's seat, we consider there to be a live issue as to whether the carjacking committed by Harrison was not in fact complete by the time the applicant got out of the station wagon and ran to join Harrison at the utility (and thus whether the applicant could not be said to be complicit with Harrison in any of the ways contemplated by s 323(1) of the Crimes Act 1958). The timing of the incident - and what a fact-finder makes of the actions of the participants at critical moments in the space of a few seconds - is crucial.
4. Ultimately, we consider that although a jury might have entertained a reasonable doubt about the applicant's complicity with Harrison, they would not have been compelled to have done so.
5. We would not uphold ground 3.

Conclusion: A conviction for theft of motor vehicle should be substituted

1. The respondent's counsel submitted that, should we uphold the first ground, we should substitute a conviction for theft of a motor vehicle for that of aggravated carjacking on charge 7 on the trial indictment, and re-sentence the applicant accordingly.[23] Counsel for the applicant did not demur. In the circumstances, we consider the adoption of that course to be proper. Hence, we will grant leave to appeal against conviction, allow the appeal and make the consequential orders set out hereafter.
2. On 20 August 2021, the judge sentenced the applicant in accordance with the following table:

Plea indictment and related summary offences - 4 years' imprisonment 2 years non-parole

Trial indictment and related summary offences - 4 years' imprisonment with 2 years non-parole

All drivers licences or permits suspended for a period of 4 years from 20 August 2021

1. As we have said, we will substitute a conviction for theft of motor vehicle on charge 7 of the trial indictment, and impose a sentence of two years and six months' imprisonment on that charge. We will make the sentence on that charge the base sentence, and not disturb any of the sentencing judge's orders for cumulation of the other sentences she imposed. The new total effective sentence will thus be four years and eight months' imprisonment, upon which we will fix a new non-parole period of three years. We will make an appropriate declaration of pre-sentence detention.[24] Although we will not disturb the other orders touching the applicant's drivers licence, on charge 7 we will cancel any licences held by the applicant, and disqualify him from holding any other licence for two years.
2. The sentence we have selected on charge 7 reflects our view that the applicant's was an extremely serious example of the offence of theft of a motor vehicle, meriting stern punishment. In fixing sentence, we have endeavoured to take into account all mitigating features urged upon the sentencing judge by the applicant's counsel (including the applicant's youth). We would also indicate that we have also taken into account for the purposes of totality what we regard to be the relatively lenient sentences imposed on all other charges (including the very lenient sentence imposed for arson on charge 6 of the trial indictment). Further, we have taken into account all relevant features in mitigation in arriving at the new non-parole period. Given the leniency of the sentences imposed in the County Court, we see no reason to make any change to the declarations made by the sentencing judge under s 6AAA of the Sentencing Act 1991.

[1] Section 324C(1) of the Crimes Act 1958 abolishes the common law in relation to aiding, abetting, counselling or procuring the commission of an offence; and s 324C(2) abolishes the common law doctrines of acting in concert, joint criminal enterprise and common purpose (including extended common purpose). By implication - and as the note to s 324C recognises - the common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished. See, eg, See White v Ridley [1978] HCA 38; (1978) 140 CLR 342, 347-351, 354.

[2] Crimes Act 1958, s 79A. The maximum penalty is 25 years' imprisonment.

[3] See [61] et seq.

[4] The video footage was accompanied by a contemporaneous audio commentary by an officer in the helicopter describing observed events as they unfolded.

[5] The dashcam video footage was also accompanied by a contemporaneous audio commentary by an occupant of the vehicle, describing events as they took place. Shortly after Harrison can be seen to run towards a Volkswagen passenger vehicle in Frankston-Dandenong Road while armed with the rifle - see [19] - the driver of the dashcam-fitted vehicle did a 'u-turn' over the median strip to drive north. Thus, the dashcam footage does not capture the carjacking.

[6] Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ) ('Harriman').

[9] Crimes Act 1958, s 79(1).

[10] Crimes Act 1958, s 79A.

[11] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442 (Meagher JA); Makeham v Sheppard [2020] VSCA 242, [38] (Priest JA) ('Makeham').

[12] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA).

[14] See Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 480 [28] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 681-2 [102]-[104] (Maxwell P, Weinberg and Priest JJA).

[15] See [61] et seq.

[16] Criminal Procedure Act 2009, s 280(1)(a).

[17] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-5 (Mason CJ, Deane, Dawson and Toohey JJ) ('M').

[18] M, 493 (Mason CJ, Deane, Dawson and Toohey JJ). See also Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47, 53-4 [11]-[12] (French CJ, Bell, Keane and Nettle JJ) ('Filippou'); Henshaw (a pseudonym) v The Queen [2021] VSCA 356, [111] (Priest and Kyrou JJA); Snyder (a pseudonym) v The Queen [2022] VSCA 140, [126] (Priest, Kyrou and T Forrest JJA).

[19] Dansie v The Queen [2022] HCA 25, [7]-[8] (Gageler, Keane, Gordon, Steward and Gleeson JJ) ('Dansie') (citations omitted; emphasis added).

[20] Ibid [15] (citations as in original).

[21] [2015] HCA 29; (2015) 256 CLR 47 at 54 [12], 75 [82].

[22] [2015] HCA 29; (2015) 256 CLR 47 at 75 [82], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493‑494 and SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at 405-406 [11]- [14]. See also [2015] HCA 29; (2015) 256 CLR 47 at 53-54 [12].

[23] See Criminal Procedure Act 2009, s 277(1)(c).

[24] As at 5 August 2022, pre-sentence detention was 758 days (not including that day).