TAUFAHEMA v THE QUEEN

Court of Criminal Appeal (NSW)|2006-05-08|Before: Beazley JA, Adams J, Howie J, Sully J, Wood CJ

CITATION: TAUFAHEMA v THE QUEEN [2006] NSWCCA 152 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Beazley JA at 1; Adams J at 2; Howie J at 41

DECISION: Conviction quashed; verdict of acquittal entered

LEGISLATION CITED: Crimes Act 1900 ss 546C, 33B, 58

Gillard v The Queen (2003) 219 CLR 1 Leonard v Morris (1975) 10 SASR 528 McAuliffe v The Queen (1995) 183 CLR 108 CASES CITED: R v Chekeri [2001] NSWCCA 221 R v Kanaan [2005] NSWCCA 385 Tangye (1997) 92 A Crim R 545 Worsley v Aitken & Anor (1990) 9 Petty Sessions Review 4074

Motekiai 'Oscar' TAUFAHEMA (Appellant) PARTIES: v

COUNSEL: Appellant: T. Game SC Crown: J. Bennett SC

SOLICITORS: Appellant: S.O'Connor Crown: S. Kavanagh

IN THE COURT OF CRIMINAL APPEAL 2005/2120

BEAZLEY JA ADAMS J HOWIE J

8 May 2006 Motekiai 'Oscar' TAUFAHEMA v The QUEEN Judgment

ADAMS J: Introduction 2 On 27 March 2002 the appellant, his brother John, Meli Lagi and Sione Penisini were in a Commodore that had been reported stolen. Each of the occupants was on parole. In the car were four loaded firearms, each of which was stolen. The appellant was driving. He was unlicensed. The car came to the notice of highway patrol officer Senior Constable Glen McEnallay and, in Denison Street Hillsdale he activated his siren and lights, announcing his pursuit. The appellant accelerated to avoid apprehension and, seconds later, made a right hand turn at speed into Grace Campbell Crescent. The Commodore struck the gutter or a traffic island and damaged a wheel. It was immobilised. Penisini got out of the Commodore armed with a .38 revolver and immediately fired five shots in quick succession at the officer. Four of the bullets struck him and he died as a result of gunshot wounds to the chest and head. It is not clear when the other three men alighted from the Commodore but it seems that the appellant was the last. All four men then fled the scene in different directions, each with a gun. The entire episode was over in a minute or so. 3 The Crown case was that the appellant was guilty of Senior Constable McEnallay's murder by reason of his participation in a criminal enterprise to evade lawful apprehension by police, foreseeing that, in the course of that unlawful enterprise, the death or grievous bodily harm of Senior Constable McEnallay was possible. 4 John Taufahema and Meli Lagi were tried before Wood CJ at CL and a jury in August 2003. John Taufahema was convicted of murder but Meli Lagi was acquitted of that charge, being convicted of a lesser alternative charge. The appellant was to be tried with his brother and Meli Lagi but, because of his counsel's ill health, this did not occur. The appellant therefore was tried separately before Sully J and a jury commencing on 10 March 2004. On 31 March 2004 the appellant was convicted of murder. On 10 September 2004, he was sentenced to an effective overall term of 23 years with a non-parole period of 16 years. He has appealed against his conviction for murder.

The evidence at trial 5 The Commodore first came under the notice of police when two off duty officers in a private car saw it in Botany Road Matraville travelling at high speed, on occasions up to 150kph, sometimes tailgating or overtaking and at one point travelling on the wrong side of the road. The officers followed but eventually lost sight of it. Shortly after, they came across the unmarked police vehicle being driven by Senior Constable McEnallay and spoke to him about the Commodore. An enquiry via police radio revealed that it was believed the Commodore was stolen. (As it happened, the registration plate had been stolen sometime in 2001 but the vehicle was not stolen.) Senior Constable McEnallay decided he would try to find the Commodore. Not long afterwards his vehicle was seen by a delivery truck driver, Mr Patterson, following the Commodore. The Commodore was apparently complying with the road rules and the police vehicle was following it without either lights blinking or siren on. The delivery truck was in front, followed by the Commodore and then by the police car. When Mr Patterson turned left, the Commodore changed lanes to the right to overtake the vehicle. Mr Patterson looked down into it at this point. He said that he could see three men, one in the passenger seat and two in the back, and he noticed one of the persons in the front hand something through to the back. He was not sure what it was. The suggestion by the Crown that, if true, this was a pistol was mere surmise. Shortly afterwards the Commodore turned into Dennison Road and thence into Grace Campbell Crescent. It is apparent from the radio calls that Senior Constable McEnallay commenced to follow the Commodore at almost 5.48pm and stopped in Grace Campbelll Crescent at about 3 minutes later. He did not turn on his siren and flashing lights until shortly after he turned his vehicle into Dennison Road.

6 Another police vehicle had responded to radio calls and was following the Commodore and Senior Constable McEnallay's vehicle though from a little distance away at Senior Constable McEnallay's request. The officers in the second vehicle, Senior Constables Kolosque and Day (who were only seconds behind Senior Constable McEnallay's vehicle), followed the other two vehicles into Dennison Street and turned into Grace Campbell Crescent. They saw the Commodore and the police vehicle stopped at about 20 metres in front of them both facing the same direction. By this time Senior Constable McEnallay had been shot. Senior Constable Kolosque saw three men outside the Commodore looking around and, when they saw the police vehicle, began to run down a nearby street. Senior Constable Day saw the appellant running down Grace Campbell Crescent, that is to say in a different direction. 7 As it happened, a Ms Douglas-Irving drove past Grace Campbell Crescent very shortly after Senior Constable McEnallay's car (going in the opposite direction) turned into the Crescent. She saw that it was stopped. She saw a man standing next to the Commodore leaning over the driver's side pointing a gun at the police car. She saw the driver's door of the police car begin to open. Ms Douglas-Irving saw two shots fired as she was driving past, she then heard another two shots. She drove back and went to the police car, yelling that a police officer had been shot. She saw the shooter and another man running away.

8 Another witness, a Mr Aodisho, was in the park at the side of Grace Campbell Crescent when he heard a car braking loudly. He saw the Commodore and the police car pulling up behind it. He said he heard a number of gunshots and saw the shooter standing in the road on the passenger side of the car firing at the windscreen of the police car. A number of other witnesses saw the appellant, alone, running down Grace Campbell Crescent and then walking past their point of observation apparently carrying something which he was attempting to cover with a blue bandana. A little distance away, in Rhodes Street the appellant was seen hiding something amongst some shrubs. It was a pistol. Shortly after the police found the appellant and arrested him. It is clear that this pistol was not that which was used to kill Senior Constable McEnallay.

The appellant's account 9 Inspector Carla Tomadini electronically interviewed the appellant on the evening of 27 March 2002. The following is an extract from that interview - "Q36: OK, do you have a driver's licence for a car? A: No, no Q37: No? A: Yeah, and then I see the police officer so I just sped off 'cause I didn't want to get done my licence again. Q72: OK, so all four of you were in the vehicle when you saw the police car, OK, and what happened then? A: I just sped off and I just wanted to lose the, get around the corner from the police car and so I can get out and leave the car. Q90: Can you tell me what happened [after you turned into Grace Campbell Crescent]? A: I turned into there and then I hit the gutter, I think, and yeah, I hit the gutter and then I opened the door and then I heard shots fired and then I just put my head down. I picked up my cigarettes and that from the middle console. Q91: OK, you said you heard shots fired. Do you know who shot those… A: No, I thought they, I thought the police shot at us. Q92: You thought the police shot at you? A: Yeah, that's why I, I just put my head down on the thing and grabbed my cigarettes and that and went around and shut the door and took off. Q94: OK, and [then] what happened? A: And then I ran, I ran…I ran for the flats and the house. Q114: Do you know if any of the people in your vehicle had weapons? A: No. If I knew anybody had weapons I wouldn't have fuckin' jumped in the car and drive with them. Like I just got out of prison. Q144: OK, and so you looked up and the others were running away, is that right? A: Yeah. Q145: OK, can you tell me what you saw? A: I didn't, I just saw everybody scattered and I just took off my own way too. Q146: OK, did you see any weapons? A: No, I didn't see any weaponry at that time. I seriously thought the police was firing at us as I put the accelerator. Q152: OK, I've been told that a male person was seen in the garden of number 33 Rhodes Street. A: Where is that? Q153: That's next door to where you say you were, was seen in the garden there doing something and later a police officer found a firearm in that garden. Can you tell me anything about that? A: No, that wouldn't have been mine. I had nothing on me. Like I said if my friends had, if I knew they had then well then…in the car with me. I wouldn't have drove them. Q154: OK, I believe you were the person who placed that firearm in the garden at number 33 Rhodes Street, Hillsdale. What can you tell me about that? A: You should get the weapon fingerprinted because its not mine. [Note: no fingerprints were found on that firearm.] Q157: Can you tell me where everybody was seated in the vehicle. [Over a number of further answers the appellant indicated he was driving, Lagi was in the front passenger seat, his brother John Taufahema was in the rear passenger seat behind the driver, and Penisini was in the rear passenger seat behind Lagi.] Q190: When did you first see he police officer? A: Somewhere around Bunnerong Road. [He went on to say that he saw the police officer continuing to follow him on Foreshore Drive to the lights and after they turned right, and on to Denison Street.] Q205: And what were you trying to do? A: I was just trying to, so I could lose sight of him so I could out and go. Q206: OK, and what did the police officer do? A: He sped up too and he put his siren on. Q208: And what happened then? A: That's when I turned into the gutter. Q266: When you saw the police did you say anything? A: No. Q267: Did you mention to the other three people in the car that the police were behind you at any stage? A: I, did they know that the police was behind us? Q268: Did you say anything? A: All right, all right. Yeah, I said, I said, Shit, I haven't got a licence. I'm going to be done for unlicensed driving again. Q269: OK, what did they say? A: They were all…we've got the police behind me and after that it was just, I just drove. Q270: All right, was there any other talk about the policeman being behind you? A: Nuh, I just told them to, put your seat belt on. Q271: When you stopped the car why did the other three males run? A: They were just I s'pose, they were probably, they were all on parole or something. None of us had a licence. Q272: Yes, but the other three weren't driving so what made them run> A: I'm not sure. I know I was running because I didn't have a licence. Q278: Do you know where the other three males went? A: They were just scattered in front of me. Q280: So you were the last one? A: Yeah, I think I was the last one to get out of, to run from the car. Q323: Have you handled any weapons in the last 24 hours? A: No." 10 In the course of his evidence at trial the appellant said that, as he turned into Denison Street, he said to the other occupants of the vehicle, "put your seat belts on, there is a police officer behind". This was clearly a declaration that he intended to avoid being stopped by (as it happened) Senior Constable McEnallay if he could do so by outrunning or outmanoeuvring the police vehicle. He said that he was not sure whether anybody said anything in response. (I interpolate that, in my view, this statement and the silence of the other occupants did not justify an inference that they agreed, in the sense of encouraging or joining with him in an enterprise of escape, with this course of action. Even if they had agreed to the appellant's action of attempting to evade the police car, there was no basis for inferring from this evidence an agreement that guns were or might be used or that any action apart from that which involved driving was contemplated.)

11 The appellant said that he thought that his brother and Meli got out of the car before it came to a full stop but he was not sure. He said that he was the last to get out of the car and, as he put his leg out of the door to stand up, he heard the gunshots. His first thought was that the police officer had fired a warning shot. He said that he put his head down on the front driver's seat and then moved away from the car. He noticed Penisini out of the car on the passenger's side. Penisini called out to him. He turned around to look at him. Penisini then threw an object in a blue bandana to him. When he caught it he realised it was a gun. Both of them ran away. In cross-examination the appellant denied that he was aware that any guns were in the car at any relevant time. He said that he drove into Grace Campbell Crescent so that he could stop the car out of sight of the police vehicle and exchange driving positions with his brother. He just did not want the police officer to see him driving. The prosecutor suggested to the appellant that he discussed getting away from the policeman with the others in the car, but the appellant denied this. He also denied agreeing with Penisini and the others that weapons would be used to enable him to escape from the police.

12 Using one of the guns on the pursuing police officer is, on the face of it at least, inconsistent with an agreement to keep the weapons concealed. 13 The Crown's submission to this Court was that the appellant's culpability lay in his shared understanding with the other occupants of the motor vehicle that they would evade lawful apprehension by police, foreseeing that in the course of that unlawful enterprise the murder of Senior Constable McEnallay was a possible incident. The Crown Prosecutor also argued that the appellant had agreed to "hinder" the police officer in the execution of his duty, within the meaning of s546C of the Crimes Act 1900. I deal with this contention below.

14 The Crown submitted that the "essential issue at trial was always whether the Crown could satisfy the jury that the appellant knew that there was a loaded firearm in the car and that he appreciated that, in the circumstances and the atmosphere then obtaining, there was a real risk that any one of the men in the car might fire at the police officer with intent to kill or cause serious harm". The fundamental problem with this formulation, of course, is that a joint enterprise depends on mutual agreement, not knowledge of what the others intend to do or a mere prediction about what is likely to occur. 15 In my view there was nothing in the evidence of the appellant that assisted the Crown case even assuming that the jury did not believe that the appellant was telling the truth.

The appeal 16 It is obvious that the crucial questions involved the extent to which the jury were persuaded that the applicant was party to an agreement that involved the joint attempt to escape (or hinder the officer) of all four, together foresight by the applicant that one or other of the other three might use a gun to effect that hindering or joint escape, that the gun might be fired and that it might be fired with the intention to cause death or grievous bodily harm.

17 Before dealing with the learned trial judge's directions to the jury on this matter it is convenient to set out the law as I understand it to be. As I have mentioned earlier, the way in which the applicant's guilt was ultimately left to be determined involved a common purpose arising out of a joint criminal enterprise in which the shooting of the deceased was a foreseen though unintended consequence of the "foundational crime" to which the appellant was a party. 18 A useful starting point is McAuliffe v The Queen (1995) 183 CLR 108. The following summary is taken from the headnote to the report. Four youths decided to go to the park to bash someone. One went with a hammer and another with a stick. Two of them were experienced kick boxers. At the park two of them attacked a man who was standing near the top of a high cliff. They kicked him and beat him with a stick. The other youth then high kicked the man in the chest, causing him to fall into a puddle in the rocks a short distance from the edge of the cliff. The youths then left. Next day the man's body was found in the sea at the bottom of the cliff. Four of the youths were tried for murder and the appeal concerned the correctness of direction by the trial judge as to the application of common purpose. In the course of a joint judgment the court said (183 CLR at 113, references omitted) - "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuant of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime…[The] complicity of a secondary party may be…established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be expressed and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part paid by each in its commission… Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary objective of the criminal venture, whether or not those other crimes are contemplated by the parties to that venture…However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose… In Johns (TS) v The Queen (1980) 143 CLR 108 [The] Court did not consider the situation in which the commission of an offence which lay outside the scope of a common purpose was nevertheless contemplated as a possibility in the carrying out of the enterprise by a party who continue to participate in the venture with that knowledge. That situation would occur where, for example, a party knows that another party to a joint criminal enterprise is carrying a weapon which that other party would use to kill or inflict grievous bodily harm in carrying out the enterprise and expressly rejects any agreement that the weapon might be used but nevertheless continues with the venture. The question arises whether both parties are liable if the weapon is used to inflict harm in the course of executing the common purpose that action being one which lay outside the scope of the common purpose or agreement, but within the contemplation of the secondary party. … …There was no occasion for the court [in Johns ] to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no relevant distinction… For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with [the third youth], a shared common intention-that is a common purpose - to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder". 19 In Tangye (1997) 92 A Crim R 545 the deceased and the appellant were involved in melee in which the former was punched in the head and fell to the ground where he was kicked, suffering fractures to his face and a brain haemorrhage and the Crown contended (as a second path to convicting the appellant) that he was guilty of maliciously inflicting grievous bodily harm on the victim because he was part of a joint criminal enterprise by the group of which he was one to engage in a street fight with the group of whom the victim was one. The principal judgment was delivered by Hunt CJ at CL, with whose discussion of the directions as to joint enterprise the other members of the bench agreed. His Honour pointed out (92 A Crim R at 588) the distinction between the concepts of joint criminal enterprise and common purpose, observing that "common purpose becomes necessary only where there has been agreement to carry out a particular crime (some text books call it the foundational crime) but some other crime has been committed which had been within the contemplation of the accused as a possible incidence in the execution of their agreed joint criminal enterprise (some textbooks call it the incidental crime) which is said to be within the scope of the common purpose", citing authorities which it is unnecessary to set out. In this case the infliction of grievous bodily harm was part of the joint criminal enterprise, at least from the time when the members in the group of which the appellant was one started to kick the victim. 20 It follows, as it seems to me, that it is essential to firstly identify the foundational crime alleged to be the subject of the agreement between the alleged offenders, the incidental crime which occurred and the mode by which it is contended by the prosecution that the incidental crime is within the scope of the common purpose. Clearly enough, in this case, the contention of the Crown was that the offenders would jointly evade arrest, described by the learned trial judge as the "crime of avoiding lawful arrest".

21 In the trial of the other occupants of the vehicle, Wood CJ at CL had directed the jury in respect of the murder count - "[The Crown must prove the following elements: (a) The accused whose case you are considering was party to a joint enterprise with the men who were in this company that, if faced with the possibility of being arrested, one or other of them would use a firearm with intent to prevent such arrest. (b) The accused whose case you are considering contemplated that it was possible that, in using a firearm to prevent their arrest, the user would do so in a way that either resulted in the death of, or really serious bodily injury to, the person attempting to arrest them. (c)…"

22 This direction reflected, as is obvious, the case presented in the earlier trial that the foundational crime was the offence under s 33B of the Crimes Act 1900. In the appellant's trial, the Crown prosecutor expressly withdrew the contention that the foundational crime was this offence and relied instead upon an attempt to evade or avoid lawful apprehension. In this Court the Crown did not contend that the foundational crime was an offence under s 33B. One of the important consequences of this concession is that the foundational offence (unlike that, say, of armed robbery or an offence under s33B) did not involve violence or the threat of violence. It is submitted, further, by Mr Game SC for the appellant that, at all events, there is no such offence.

23 The Act creates a number of offences involving attempts to avoid a lawful apprehension: s 33B, dealing with the use (in various ways) of an offensive object to threaten injury to any person or property "with intent to prevent or hinder the lawful apprehension or detention of any person or prevent or hinder a member of the police force from investigating any act or circumstance reasonably calling for investigation"; s 58, dealing with assaults, resistance or wilful obstruction of any officer while in the execution of his or her duty or with the intention of resisting or preventing the lawful apprehension or detainer of any person for any offence; and s 546C making it an offence for any person to resist or hinder a member of the police force in the execution of his or her duty.

24 The Crown contended in this Court that the foundational crime was that created by s 546C of the Crimes Act 1900. Whilst not resiling, in terms, from the case put below, that the foundational offence was evading arrest, the Crown prosecutor in this Court contended that another available offence was that of hindering the officer in the execution of his duty. One major obstacle in the way of this submission is that such a case was not put at trial. 25 It was submitted that the word "hinder" is a word of ordinary parlance without any special meaning and that its usual definition (for example, that in the Shorter Oxford English Dictionary) is "to keep back, delay, impede, obstruct, prevent". By not stopping the Commodore when Senior Constable McEnallay signalled that he should do so by operating the siren and the flashing lights on his vehicle, it is submitted that the appellant sought to delay or impede an impending lawful arrest. (I interpolate that, the officer undoubtedly wished the vehicle to heed the signals and stop but whether he was then intending to arrest anybody is uncertain.) The Crown also contends, relying on the fact that all four offenders fled the scene, that they had agreed that they would run away from the officer and that the agreement to run away was an agreement to "hinder" in the sense, again, of delaying or impeding and hopefully preventing their arrest. The researches of counsel did not produce any authority stating or approving such a wide use of "hinder". If correct, it would mean, for example, that an offender in Sydney who heard that a warrant for his arrest had been issued in Perth and left his place of residence to hide from the police would be guilty of an offence where the effective changing of his address was, in fact, to delay, impede or prevent it. (I mention that - as appears from the trial judge's directions extracted below - the Crown case at trial was not merely that the occupants of the car agreed to evade the officer, but that they had agreed to avoid arrest. There was no evidence, as stated above, that the officer was intending to arrest anyone when he was killed.)

26 In Leonard v Morris (1975) 10 SASR 528, Bray CJ (at 531) described the actus reus of the offence established by section 546C as "any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance". This passage was adopted as correct by Sully J in Worsley v Aitken & Anor (1990) 9 Petty Sessions Review 4074. Worsley, it was alleged, took hold of the police officer's jacket when the officer was endeavouring to assist another officer then in the course of arresting another person during a melee, saying to the officer "leave him alone, he's done nothing". The officer desisted from his attempt to assist with the arrest of the suspect and pushed Worsley away before returning to his task. Of course, Sully J was there considering an actual physical interference by the accused person with the arrest which the officer was about to effect. That is not the use of hinder upon which the Crown relies in this case.

27 The description of the actus reus of this offence given by Bray CJ in Leonard v Morris has been regarded, in my experience, as applicable in this State for decades and I would not be prepared to extend the offence any further by a wider use of the word "hinder" than that which it has hitherto been understood to have. I am of the view that the actus reus of the offence created by s 546C is indeed that ascribed to it by Bray CJ in Leonard v Morris. It follows that the foundational offence upon which the Crown relied did not exist. In the circumstances, this conclusion is fatal to the correctness of the conviction. It is important, I think, to point out that it was not - at least, ultimately, for good reason I think - the Crown case that the appellant had a common purpose with Penisini to use a gun to threaten or attack Senior Constable McEnallay in order to evade or avoid arrest. There was simply no evidentiary basis for such a case, as the prosecutor at trial conceded. The highest point at which the Crown could aim was that the appellant foresaw the possibility that Penisini might use his weapon against the officer (though, on my view, this must be mere speculation). There was no evidence that could justify the conclusion that the appellant agreed with Penisini that he should use the gun to threaten, let alone shoot at the police officer or that he encouraged him to do so. 28 In the circumstances I think it is desirable that I should also deal with the other complaints made by the appellant as to the directions on joint criminal enterprise and common purpose. At the outset, Mr Game SC for the appellant submitted (I think rightly) that the appellant could not be convicted if the Crown proved no more that he intended to run away from the police officer and was aware that the other passengers in the car intended to do the same, even if he adverted to the possibility that someone might shoot at the officer. It was essential that the jury be satisfied beyond reasonable doubt not only that each had decided to evade the officer and that each was aware that the others would also evade the officer, but that each would assist the others in doing so and that the appellant realised that a gun might be used in the attempt and there was a real risk that the officer might be shot or suffer grievous bodily harm. It is this mutuality of assistance that creates the essential commonality of purpose and makes them members of a joint enterprise as distinct from each taking part in his own individual enterprise of attempting to avoid arrest. 29 The way in which this matter was finally left in the summing up can be seen in the following extract from written directions provided to the jury by the learned trial judge during his Honour's summing up - "The simplest approach is to ask whether the Crown has satisfied you by reasonable doubt: 1. That the actions of the four men who were travelling in the Commodore then being driven by the accused, gives rise to an inference that they had reached an agreement or understanding that all four of them would jointly evade lawful apprehension by S/C McEnallay and; 2. That the accused then knew that there was at least one loaded revolver the being carried in the vehicle and; 3. That the accused realised that, in the circumstances and the atmosphere then obtaining, there was a risk that any one of the men in the Commodore might fire that weapon at the police officer; and that in such an event there was a real risk that the police officer might be killed or at least seriously injured; 4. That such risks crystallised in the shooting in fact by Penisini of the police officer." 30 With unfeigned respect for the learned trial judge it does not seem to me that this direction sufficiently conveyed to the jury the essential point that it was not enough that each of them decided that he would escape as distinct from an agreement that each would assist the others to escape. With respect, it seems to me that the phrase "an agreement or understanding that all four of them would jointly evade lawful apprehension" would not be sufficient to convey to the jury the vital distinction. If the appellant simply intended to run away, he could not be criminally responsible for the death of Senior Constable McEnallay merely because he realised that the other occupants of the vehicle intended to escape and that one of the other offenders, in the course of that offender's escape, might use a weapon against the officer.

31 It is worth noting, I think, that there was nothing in what the appellant said in his interview to the police that assisted the prosecution case in this respect. If anything, the common sense interpretation of the appellant's claim (whether it be true or false) was that he intended to escape and that others had a motive for not being arrested (namely they were on parole) but that their decisions to evade arrest were individually made. Certainly the effect of the appellant's answers was that his decision to run was his own and not the result of any agreement of with the others.

32 It would be seem from the brief summary of the appellant's evidence that although it is true to say that his case was, essentially, that he was unaware of any weapons being in the car but he also denied that there was any agreement between him and the others that all would escape, let alone that there was an agreement that anyone would assist anyone else to do so. The alternative verdict of manslaughter 33 At the hearing of the appeal the appellant sought to add a further ground of appeal to the effect that the learned trial judge erred in law in failing to leave the offence of manslaughter as an alternative verdict for the jury's consideration. Leave is required to add their proposed ground. The grant of leave is not opposed by the Crown. The ground is fairly arguable and I would propose that leave be granted.

34 The consequences of a failure to direct a jury in relation to the alternative verdict of manslaughter upon a charge of murder was reviewed by Hunt AJA in R v Kanaan [2005] NSWCCA 385 at [75] as follows - "(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is "viable"). (2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict the judge must accept it. (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury- notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (4)(a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason) there has been error of law. (b) Subject to provisions of the Criminal Appeal Rule s r 4… the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred.

(c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of alternative verdict of manslaughter at the new trial". 35 In order for the appellant to be convicted of murder as a possible incident of carrying out the common design, it is essential that the prosecution prove that he foresaw that one of the other offenders might shoot at the police officer with the intention of killing him or causing him grievous bodily harm. If, on the other hand, the jury considered it reasonably possible that the appellant only foresaw, as a possible incident, that one of the other offenders might shoot the officer (and possibly cause death or grievous bodily harm) but without foreseeing such an intent, then he would only be guilty of manslaughter: Gillard v The Queen (2003) 219 CLR 1 per Gleeson CJ and Callinan J at 13-14, Kirby, Hayne and Gummow JJ in substance agreeing.

36 It is obvious, I think, from what I have already said about the facts of the matter that, if the jury concluded that there was indeed a joint enterprise to avoid arrest and that the appellant appreciated that it was possible that one of the others might use a weapon for that purpose, that would leave very much alive the question whether he adverted to the possibility that one of the others might intend to kill or cause grievous bodily harm to the pursuing police officer. I do not see an evidentiary basis for drawing the latter inference, as indeed I do not see a sufficient evidentiary basis for concluding that there was such a joint enterprise or that the appellant thought that there was a possibility that one of the others would use a gun in the course of it. It seems to me inescapable that a jury might well not be prepared to conclude beyond reasonable doubt that the appellant adverted to the possibility that one of the others might intentionally shoot at the officer with the intention of killing him or causing him serious injury, as distinct from the mere possibility that the gun might be used in some way.

37 Accordingly, the alternative verdict of manslaughter must have been left to the jury and it would have been an error of law not to do so. In this regard, the written directions extracted above omit the necessary element that the appellant adverted to the possibility that a gun might be used with the intention of killing or causing grievous bodily harm. In the course of his oral directions the learned trial judge said - "What will draw this accused in, if anything, is not only that he was driving the vehicle or that he understood that all four of the people in the vehicle were determined to get away from the pursuing Senior Constable McEnallay. That is enough to show that there was a joint criminal enterprise to evade apprehension. But if this accused is to be drawn into that arrangement in a way that makes him liable for murder, that is to say for a murder by shooting committed not by him but by Penisini, then it is essential that the Crown establish that the accused knew that there was at least one loaded weapon being carried in the vehicle. We know that there were in fact four but it would be sufficient for that point to be made good if you were satisfied beyond reasonable doubt that he knew that there was at least one loaded revolver being carried in the vehicle, and that he realised in the circumstances and the atmosphere the enterprise to get away coupled with the availability in the vehicle of at least a loaded weapon, gave rise to a real risk that any one of the men in the Commodore might have thought it a good idea to fire the weapon at the police officer in the course of getting away and that if that happened there was a real risk on the ground that the police officer was going to be either killed or seriously injured". 38 In my respectful view these directions could only support a manslaughter conviction. This was, in substance, conceded by the Crown prosecutor in this Court. Proposed orders 39 I propose that the conviction be quashed. In my view, there is no evidentiary basis for a conclusion that the appellant was party to an agreement that all four men would attempt to evade the police officer, as distinct from having made a decision that he would attempt to do so and knew that the others would do the same. Nor was there a basis for concluding that he adverted to the possibility that one of the others might use a gun in the course of evading the officer. The case proposed in this Court by the Crown, namely that there was an agreement to hinder the officer in the execution of his duty, was not put at trial and this Court should not order a new trial to permit such a different case to be put: R v Chekeri [2001] NSWCCA 221 at [57]; (2001) 122 A Crim R 422 at 434. More fundamentally, the hindering identified - the running away - is not hindering within the meaning of s546C of the Act. There is thus no foundational offence or joint criminal enterprise upon which the Crown can rely for the purpose of establishing the culpability of the appellant for the (conceded) unintentional consequence of shooting the police officer. As the appellant could not be convicted of murder or manslaughter on the cases as formulated by the Crown both at trial and in this Court, it seems to me that it is not appropriate to order a new trial.

40 Accordingly, I propose that this Court enter a verdict of acquittal. 41 HOWIE J: I agree with Adams J. **********

25/05/2006 - Typographical errors - Paragraph(s) 18, 35, 37.

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