The Queen v Taufahema [2007] HCA 11

[2007] HCA 11

High Court of Australia|2007-03-21|Before: Crennan JJ

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Court

High Court of Australia

Decision date

2007-03-21

Before

Crennan JJ

Source

Original judgment source is linked above.

Judgment (382 paragraphs)

[1]

The applicant's primary submission is that there should be a new trial so as to enable the prosecution to put, and a jury to consider, a case that this was "an armed robbery gone awry". On such a case, which was not put at trial or in the Court of Criminal Appeal, the relevant joint criminal enterprise, to which the respondent was a party, was armed robbery, and the respondent's secondary liability for the murder of Senior Constable McEnallay arose from his continuing participation in that enterprise with the foresight of the possibility that another person might be assaulted with intention to kill or cause really serious injury to that person.

[2]

If that had been the prosecution case at the trial before Sully J, the course of the trial would almost certainly have been different. The question of the admissibility of the evidence that the respondent and the other men in the Holden were all men with criminal convictions who were on parole at the time of their observation by Senior Constable McEnallay would have taken on a different complexion. It was obviously to the advantage of the prosecution to have that evidence, but the basis upon which Sully J decided to admit the evidence would not apply. Secondly, the conduct of the defence case would probably have been different. It is hardly likely that the defence would have called Manuel Cackau as a witness. Thirdly, the relationship between the "foundational crime" and the allegedly foreseen shooting of a third party would have borne a different aspect.

[3]

Where a case of murder is based upon the form of culpability described as "extended common purpose", the identification of the joint criminal enterprise, participation in which results in the accused's secondary liability, is an important particular of the case which the accused must meet. That is not to say that the prosecution must be able to identify the joint criminal enterprise with complete specificity. However, the judge and the jury must know enough about the enterprise to enable a decision to be made, first, as to whether it is criminal, and, secondly, as to whether the shooting was within the scope of the common purpose reflected in that joint criminal enterprise in that it was foreseen as a possible incident of the enterprise as explained in cases such as McAuliffe and Clayton. The judge must know enough about the enterprise to rule on questions of admissibility of evidence. Counsel for the accused must know enough about the enterprise to decide how to conduct the defence case. That is why, in the proceedings before Sully J, so much attention was devoted, before and during the trial, to the formulation of this aspect of the prosecution case. The function of particulars in criminal proceedings was explained in Johnson v Miller[7], Giorgianni v The Queen[8], and Stanton v Abernathy[9]. If to do so is not inconsistent with the interests of justice, particulars may be amended during the course of a criminal trial, as they were in the present case. The joint criminal enterprise that was left to the jury for consideration at the end of the trial was different from that opened by the prosecution. The joint criminal enterprise put in argument in the Court of Criminal Appeal was different again. As has been explained, by the end of argument in the Court of Criminal Appeal, the prosecution at various stages of the proceedings had particularised the "foundational crime" said to be the source of the respondent's secondary liability for murder in three different ways. Yet those three different particulars had one thing in common: the focus of attention was the conduct of the four men in the Holden during the very brief time between their first observation of Senior Constable McEnallay and the shooting of Senior Constable McEnallay by Sione Penisini, and their desire to evade apprehension by him. It was this that made admissible the evidence that they were all on parole at the time. That was said to be the motive for their joint plan to avoid apprehension, and the existence of that alleged joint plan was what was said to produce the consequence that, when one of the men, in the course of attempting to avoid apprehension, shot and killed the police officer, they were all guilty of homicide.

[4]

In R v Benz[10], this Court discussed the considerations relevant to the exercise of its power to grant special leave to appeal from a decision of a Court of Criminal Appeal which has quashed a conviction and entered a verdict of acquittal. An example of the exercise of that power is R v Rogerson[11]. As Mason CJ explained in Benz[12], while there is a reluctance to grant special leave to appeal against an acquittal by an intermediate appellate court, sometimes expressed by reference to the need to show "very exceptional circumstances"[13], the considerations of double jeopardy that would apply to an attempt to appeal from a verdict of acquittal by a jury are not the same as those that apply when a convicted person has initiated the appellate process, which includes the possibility of a decision by a final court of appeal. If an intermediate court of appeal, whose jurisdiction has been invoked by a convicted person, makes an error in that person's favour, the possibility remains of correction of that error within the appellate process itself. This will be of special importance if the error is of such a kind as is likely to affect the general administration of the criminal law, as in the case of an erroneous decision on a point of law or procedure of general application. It may also be of significance where correction of error is necessary to ensure the due administration of justice in the individual case**[14]**. It is, however, unnecessary to pursue the question of the kind of error by a Court of Criminal Appeal that will justify intervention by this Court even in the case of an acquittal. It is unnecessary because, in this case, the Court of Criminal Appeal made no error. Its reasons for decision, which were addressed to the arguments that were put to it, were correct. The applicant for special leave to appeal to this Court contends that the order of the Court of Criminal Appeal, by entering an acquittal and failing to order a new trial, was wrong, not because of any error in the reasoning of the Court of Criminal Appeal on the arguments put to it, but because, for a reason not advanced to or considered by the Court of Criminal Appeal, there should have been an order for a new trial. In brief, the purpose of the application for special leave to appeal is to have this Court, in the exercise of its appellate jurisdiction, vary the orders made by the Court of Criminal Appeal in allowing the appeal to that Court, and order that there be a new trial for a reason not previously argued.

[59]

In the present case, what the prosecution proposes to do at the second trial of the accused is not to advance any factual allegation inconsistent with what the jury or the Court of Criminal Appeal have already found, and not to advance any factual allegation inconsistent with the case advanced at the first trial. It proposes to tender the circumstantial evidence tendered at the first trial - of the telephone calls made by the four men on the day in question, of the surveillance of two of the men as they travelled by railway, of their movements around Sydney, and of the incriminating materials they possessed (four loaded guns, all stolen; extra ammunition; a hockey mask; two pairs of gloves; sunglasses). That evidence illuminates the nature of the enterprise on which the men were engaged. The enterprise can be characterised in different ways. That is, what the prosecution proposes to do is rely on the same evidence as was called at the first trial, but to seek to characterise the facts which that evidence may establish in a different way, but not a radically different way. At the first trial the criminal enterprise revealed by the evidence was not called "armed robbery", but the evidence was capable of supporting the inference that it was. Indeed, the defence embraced that inference in calling Cackau to say that the three men other than the accused were engaged in an enterprise of armed robbery. All the prosecution proposes to do at the second trial is to rely on an inference which could have been drawn in the first trial. The evidence that the four men were on parole, which was held relevant at the first trial as showing that the accused had a strong motive to adhere to a joint enterprise of avoiding apprehension by the police, will not necessarily be held irrelevant at the second trial. It may be relevant at that trial as going to the possibility of a firearm being used, for the consequences of apprehension for persons engaged in the joint enterprise of robbery are likely to be seen by them as worse if they were on parole. It has not been shown that the evidence to be called by the prosecution at the second trial will be different in any other respect. Counsel for the accused conceded that if the characterisation which the prosecution wishes to make of the evidence at the second trial had been put at the first, there would have been no difference in the evidence called, except for Cackau. In fact it has not been shown that the accused would not have called Cackau had the "new case" been presented at the first trial, since the point of doing so was to seek to establish that the accused was not part of the criminal enterprise. That goal was as important as it will be in the second trial, and the only way of achieving it was to call Cackau. As for tactical considerations, no doubt it was easier for the prosecution to seek to establish the case left to the jury than the case opened at the first trial at a factual level, and possibly the "new case", had it occurred to counsel for the prosecution, was originally not run because of its perceived difficulty. In the circumstances as they have unfolded, however, it is hard to see why it is unfair for the prosecution to be allowed to remould its case in the manner proposed. What has happened may be regrettable and undesirable, but it is not sinister.

The Queen v Taufahema [2007] HCA 11

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Judgment (382 paragraphs)

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Cases Cited (55)

The Queen v Taufahema [2007] HCA 11 (21 March 2007)