Youkhana v R

Ground 1 (error in direction concerning joint criminal enterprise)

The applicant submits that the trial judge's direction about joint criminal enterprise involved error because it did not make clear that the jury had to be satisfied not only that the applicant was a party to an arrangement with the others to rob Mr Joseph, but also that he had participated in that enterprise by being present and intentionally assisting or encouraging the others to commit the robbery. In support of this last proposition the applicant relies upon the following statement of Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545 at 556-557: (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in that joint criminal enterprise to commit the crime.
In response, the Crown says that in the way the trial was run, the only issue for the jury was whether, accepting that the applicant was present in the train during the commission of the offence charged, he was party to an arrangement with the others to rob Mr Joseph. If he was party to such an arrangement, no further question arose about his participation because it was accepted and established by the evidence that he was present when the crime was committed. In those circumstances it was not necessary for the trial judge to give any specific direction as to what was necessary to establish participation. For the reasons which follow these submissions should be accepted.
The task of a trial judge when formulating directions to the jury is described by the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) in R v Chai [2002] HCA 12; 76 ALJR 628 at [18]: … First, it is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case. Secondly, the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided.
Thus in Huynh v The Queen [2013] HCA 6; 87 ALJR 434 whether the trial judge had erred in not directing the jury as to the accused's alleged participation in a joint enterprise to commit murder turned on whether the fact of participation was or was not an issue at the trial. If it was not, there was no need for the trial judge to direct on that question, because the responsibility of the trial judge was to "direct the jury on only so much of the law as they need to know to guide them to a decision" on the real issues in the case: at [31] - [32]. See generally the observations of this Court as to the duty of a judge in a jury trial in Lane v R [2013] NSWCCA 317 at [36] - [37].
The doctrine of "joint enterprise" provides "the means of attaching liability for [a crime that is the subject of an agreement between two or more persons that it be committed] on all the parties to the agreement regardless of the part played by each in its execution": Huynh at [37]. It does so by making each of the parties to the understanding or agreement criminally responsible for the act or acts of the others committed in furtherance of it. That liability attaches to "all the parties to the agreement who participate in some way in furthering its execution": Huynh at [37], citing in support the reasoning in McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 113 - 114.
It is sufficient to constitute participation that a party to the agreement is present when the crime is committed in accordance with the agreement: Huynh at [38] citing Osland v The Queen [1998] HCA 75; 197 CLR 316 at [27] per Gaudron and Gummow JJ and [73] per McHugh J extracting the statement of the relevant principles of Hunt CJ at CL in R v Tangye at 556 - 557. Significantly this extract does not include the balance of the statement in the paragraph numbered three commencing with the words "and (with knowledge…". The exclusion of the balance of the first sentence is explicable on the basis that it refers to participation that does not require presence whilst the crime is being committed.
As Gaudron and Gummow JJ explained in Osland at [27]: More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in McAuliffe v The Queen. Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.
The applicant's reliance upon the statement in R v Tangye is misplaced in the present case because the participation relied upon was the applicant's presence when the crime the subject of the arrangement was committed. In such a case it is not necessary separately to establish intentional assisting or encouraging because the person present has a continuing understanding with the others present that the crime should be committed.
Here there could be no issue on the evidence that three men boarded the train at Parramatta station, that the applicant was one of them and that at least two of them acted together to rob Mr Joseph of his iPad. This was done by the men seating themselves in front of and behind Mr Joseph so that as the train stopped at Clyde station one was able to attack from behind and sufficiently unsettle him to enable the man in front of him to take his iPad. This evidence showed beyond question that two of the men were directly involved in the carrying out of a plan to rob Mr Joseph and that the third was present when that occurred.
Unsurprisingly, the applicant's counsel described the issue for the jury in terms which reflected the reality of the evidence the Crown was expected to lead: What you really are going to have to determine is, was he a participant in the robbery that occurred on the train and there's no question that a robbery did take place and I anticipate that you'll be told by her Honour there's really only two ways that you could reason to a conclusion of him being guilty. One is if you are satisfied there was evidence that he was directly involved, that's the first way. The second way is if you're satisfied beyond reasonable doubt that he was together with the others part of an agreement to carry this out, and lawyers call that joint criminal enterprise. But it's really an agreement between people to do something criminal. As is alleged here. So that's really the issue for you, the accused has pleaded not guilty, and the position is through his plea, he asserts that he is not guilty. He wasn't involved in a direct way, he wasn't involved as part of some agreement that this man should be robbed. The question for you is are you satisfied beyond a reasonable doubt that he is guilty. Is there another explanation for him running from the station?
Thus, at the commencement of the trial, the defence case was that the Crown could not establish beyond reasonable doubt either that the applicant was one of the two men directly involved in the robbery or that he was part of some agreement that the robbery should be committed. That remained the question for the jury at the close of the evidence.
In its summing up the Crown described that question as follows: Now the Crown must establish … to this high standard of beyond reasonable doubt, that the accused did - was a person that was there either actively participating or was a person who was jointly part of this plan to rob Anthony of the iPad.
The applicant's counsel focused on the same question. He submitted that there was no evidence that enabled the jury to be satisfied beyond reasonable doubt that the applicant was one of the two persons directly involved, either the person who took the iPad or the person who punched Mr Joseph from behind. Counsel continued: The other way as the Crown has said, the other way that you could be satisfied beyond a reasonable doubt is if you thought there was an agreement between these three people … but it is not really a complicated thing. It is where there is an agreement between people to commit a crime and if the agreement exists then if they all participate in some way even if it's just being there ready to assist, then they're all guilty.
In this context the trial judge's directions about joint criminal enterprise fall to be considered. They included the following: The Crown must establish both the existence of a joint criminal enterprise and that the accused participated in that. It is not sufficient that the Crown established that there was a plan of some sort to rob Mr Joseph, but it is essential that the Crown proves that the accused was participating, or agreed it would occur. … However, it does not matter whether the agreed crime is committed by only one or some of the participants in a joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played as long as they all agreed to it. Mr Barrow gave you an example of the bank robbery and distinguished it from particular circumstances in this case. … As I told you when I directed you on joint criminal enterprise, it is not necessary that the accused was directly involved, but you must be satisfied that he was part of an agreement to rob the complainant. Intention can be seen from the circumstances surrounding the commission of an offence. There is no dispute in this trial, as I said, that the robbery was committed. The only dispute is whether the Crown has established beyond reasonable doubt that the accused was involved either directly - which is not the Crown case here - or by being part of an agreement to rob the complainant. … Members of the jury, in brief, what the defence case is, is that you could not be satisfied beyond reasonable doubt that the accused was part of any agreement to rob Mr Joseph on the train and you would not find that all the other circumstances point to his involvement, or are of sufficient probative value to establish beyond reasonable doubt that he was involved in this robbery. [emphasis added].
These directions focus on the only issue at trial which was whether, accepting that the Crown could not establish that the applicant was one of the two men who were directly involved in the robbery, the jury could be satisfied beyond reasonable doubt that he nevertheless was a party to an agreement with them to rob Mr Joseph. In that context the trial judge's reference to it being essential that the Crown prove that the "accused was participating, or agreed it would occur" was reasonably to be understood as being to the need for the Crown to prove either, that the accused was one of those who actively participated (from which it followed that he was part of the arrangement to rob Mr Joseph), or that he had agreed with those others that it would be committed. The reference did not, as the applicant submitted, separate the concepts of participation and agreement, as they would apply to a member of the joint criminal enterprise not actively involved in the robbery. Her Honour's later statement that the only "dispute" for the jury was whether the Crown had established that the accused "was involved either directly - or by being part of an agreement to rob the complainant" describes the same and only question for the jury.
That this sufficiently and clearly guided the jury as to the real issue is confirmed by the absence of any application by defence counsel for any further direction as to the need for the Crown to establish any more as to the applicant's participation in the robbery, over and above his presence when it was committed.
Counsel did however seek a specific direction about the element of robbing "in company" with another person. That direction was unnecessary because the robbery, as committed and agreed to be committed, involved more than one person actually threatening or assaulting Mr Joseph. Therefore, it was not necessary for a direction to be given, as the applicant's counsel suggested and the trial judge accepted, to the effect that a robbery committed with another person present for the purpose of giving assistance was a "robbery in company" for the purposes of s 97(1) of the Crimes Act 1900. More relevantly, as the Crown submitted, it is not likely that this further direction, as given, in any way confused or distracted the jury when addressing the real issue in the case.
Ground 1 is not made out. The directions given were not the subject of any objection at the trial. For those reasons leave permitting the applicant to rely on this ground of appeal should be refused.

Ground 2 (unreasonable verdict)

The question raised by this ground is whether, having made an independent assessment of the whole of the evidence, this Court thinks that it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; 213 CLR 606 at [25], [55]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11], [14].
The evidence at trial is summarised above. It consisted of the CCTV footage and photographs produced from that footage, oral evidence from the investigating police officer proving that footage and identifying the persons shown in it and oral evidence of the victim, Mr Joseph. His evidence included a diagram which showed the layout of the upper level of the train carriage and where he and the three men sat.
The applicant pointed to four aspects of the evidence as giving rise to a reasonable doubt concerning his being a party to any arrangement to rob Mr Joseph. First, reference was made to the "paucity" of evidence in the Crown case. There was no CCTV footage from within the train or accounts of any other independent witness as to what happened inside the carriage and no DNA or fingerprint evidence connecting the applicant with the iPad. Secondly, it was said that the CCTV footage was neutral as to the applicant's involvement in any arrangement to rob. The fact that the three men were friends and boarded the train together could not give rise to an inference that they proposed to commit a robbery. The fact that the applicant had run from the train at Clyde station and attempted to cover his face was equally consistent with his seeking to get away from a situation which was not of his making, prompted by a misguided loyalty to his friends who had committed the offence.
Thirdly, it was said that Mr Joseph's evidence also was equivocal. The fact that the men were communicating in a different language was irrelevant and the way in which they were seated suggested that the applicant was not involved, because he was likely to have been seated near the aisle in the last bench in the carriage. That was said to explain why he was first out of the train. Finally, there was some evidence pointing against his involvement in the robbery. That evidence, of the investigating officer, was that Messrs Sabri and Yousif gave possession of the iPad to a local shopkeeper shortly after the robbery.
In response the Crown pointed out that its case was a circumstantial one and that it was necessary for the jury to consider all of the evidence and take account of the extent to which, in various ways, it supported the inference that the applicant was a party to the robbery. Reference was made to what was said by Gummow, Hayne and Crennan JJ in R v Hillier [2007] HCA 13; 228 CLR 618 at [48] about the need, in such a case, to weigh all the circumstances when judging whether there is evidence upon which it was open to the jury to convict.
In my view it was plainly open to the jury to be satisfied, on the whole of the evidence, that the applicant was guilty. The evidence showed the three men together before they boarded the train. The jury would have noticed that they were led onto the train (and off it) by the applicant. The three men then sat in a configuration which was consistent with the existence of a plan to rob Mr Joseph in the way that subsequently happened. The jury was entitled to attach significance to the fact that they did not sit together, although they were travelling together and apparently wished to continue to converse with each other. The evidence showed that they could have sat together if that was what they wanted to do. The actions of the three men as the train stopped at Clyde station were consistent with their giving effect to a plan which was put in place when they chose to sit as they did, surrounding Mr Joseph.
Finally, the jury would have noted that the applicant was the first out of the train and that he led the other two men for some distance and at pace out of the station and onto the street via the pedestrian footbridge. He did not appear bewildered or shocked by what had occurred. The jury could reasonably have concluded that his doing was much more consistent with his having been involved in what happened on the train. So too was the fact that he was sufficiently conscious of what had occurred and his involvement that at the time he ran along the platform he covered his face from the gaze of the CCTV camera.
None of the matters to which the applicant refers justifies a conclusion that the jury must, as distinct from might, reasonably have entertained a doubt about the applicant's guilt: per Hayne J (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]. The jury was entitled to discount the possibility that in leading the three men out of the train and from the station the applicant was merely attempting to get away from a situation which was not of his making. The evidence tending strongly against that explanation included that he sat in the train in a position which was consistent with the existence of a plan to rob, led the others in running from the train, covered his face and was seen to run again when Mr Joseph continued his pursuit.
This ground of appeal should be rejected.

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