Carbone v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by Button J and with the reasons given by him for making the proposed orders.

2. [2]

   BUTTON J:

Introduction

1. [3]

   On 12 October 2017, after a trial before Matthews AJ in the Supreme of Court New South Wales, Mr Diego Carbone (the applicant) was found guilty by a jury of the murder of Mr Bradley Dillon (the deceased). The fatal acts were said to have been committed in an underground carpark of Leichhardt Marketplace shopping centre, in the inner west of Sydney.

2. [4]

   On 22 March 2018, the applicant was sentenced to a term of imprisonment featuring a non-parole period of 21 years, to commence on 23 July 2015 and to expire on 22 July 2036, with an additional term of 7 years, to commence on 23 July 2036 and to expire on 22 July 2043. The earliest date on which he is eligible for release on parole in 22 July 2036.

3. [5]

   The Crown case at trial was that, shortly after 5:20 PM on 11 August 2014, the applicant and Mr Antonio Bagnato were together responsible for the murder of the deceased by way of the infliction of several stab and gunshot wounds to his person. Mr Bagnato had fled overseas by the time of the trial, and the applicant stood trial alone. For convenience, I shall nevertheless refer to Mr Bagnato as “the co-accused”.

4. [6]

   The applicant seeks leave to appeal against his conviction for murder. There is no application for leave to appeal against sentence.

Sketch of background

1. [7]

   Because all grounds of appeal focus upon directions given to the jury, the facts of the matter need only be discussed with sufficient detail to examine the correctness and sufficiency of those directions.

2. [8]

   The Crown case was as follows. The sister of the deceased, Ms Cassie Dillon, had lent $2,000 to her boyfriend, Mr Adriano Riccio. Mr Riccio was a friend of the co-accused. The co-accused and the applicant are first cousins. The deceased was pressuring Mr Riccio to repay the debt to the sister of the deceased. Mr Riccio, the co-accused, and the applicant had all been associated with a particular “fight club” located in the inner west at various stages. The family business of the applicant was located around the corner from the carpark in question.

3. [9]

   The applicant and the co-accused were together at 11:17 AM on 11 August 2014, as demonstrated by CCTV from the carpark of the apartment block in which the co-accused lived in Marrickville.

4. [10]

   CCTV footage showed the applicant in the loading dock of his family’s business, very close to the carpark, at 4:17 PM. At the time, he was wearing a green jersey with the number 7 on its back.

5. [11]

   CCTV footage separately showed the co-accused departing his apartment block at 4:24 PM in a motor vehicle. The same vehicle is seen on CCTV at the loading dock of the family business of the applicant, and a little after 4:41 PM the applicant enters its front passenger seat. The vehicle is next seen on a street adjacent to the carpark at 5:13 PM. At 5:20 PM, a text message was sent to the deceased as follows “Car park under tab”. The carpark, although attached to a suburban shopping centre, was an unusually isolated and secluded spot, used by some persons to ingest prohibited drugs. Shortly after the transmission of the text message, the deceased entered the carpark on foot.

6. [12]

   There he was stabbed in the back a number of times, and shot three times, including once through the sole of his left foot. Five shots in total were fired. He fled on foot up the ramp of the carpark, collapsed on a nearby footpath, and died shortly thereafter.

7. [13]

   Two men were seen running away from the carpark shortly afterwards. At trial, there was no dispute that one of them was the applicant.

8. [14]

   DNA identical to the profile of the applicant was found in fingernail scrapings from the deceased. A piece of green fabric was found at the scene that featured DNA consistent with that of the applicant and the deceased. It was likely that that piece of fabric had come from around the collar or neckline on the front of a garment. The Crown case was that it was a portion of the green jersey that the applicant had been seen to have been wearing shortly beforehand.

9. [15]

   Sometime later, the applicant sought to leave Australia, but was forestalled from doing so by authorities.

10. [16]

    The Crown case could not differentiate as to the alleged physical roles of the applicant and the co-accused. By that I mean, it was not said that one man or other did all of the violent acts. Nor was it said that one man did the shooting, and the other the stabbing. The Crown case simply asserted that the applicant was guilty of murder by way of joint criminal enterprise, primarily in its basic form, but also, as necessary, in its extended form. The foundational offence for the purposes of extended joint criminal enterprise was spoken of as “assault”, but to be more precise it was battery.

11. [17]

    In his final address to the jury, defence counsel then appearing for the applicant largely focused on the asserted lack of evidence of any agreement entered into by the applicant to inflict violence upon the deceased, and posited at least one scenario whereby the co-accused alone could have been responsible for his death.

Grounds of appeal

1. [18]

   In support of the application for leave to appeal against conviction, the following grounds were notified and pressed at the hearing before this Court:

2. [19]

   In a nutshell, the submission was that the directions about extended joint criminal enterprise were incomplete, as follows.

3. [20]

   The directions neglected to make clear to the jury that, before returning a verdict of guilty of murder based upon the doctrine, they would need to be satisfied beyond reasonable doubt that the applicant foresaw the possibility of the co-accused acting with, at the least, the intention to inflict grievous bodily harm. In other words, it was contended that a central “mental element about a mental element” had been omitted, with the result that the jury had been provided with a “false path” towards a verdict of guilty.

4. [21]

   In order to assess that submission, it is necessary to set out all the material from the trial whereby the jury was spoken to about the elements of murder by way of extended joint criminal enterprise. I shall also set out some of the discussions between trial judge and counsel in the absence of the jury that explain why the jury was and was not directed about certain matters. I shall set things out in the order in which they unfolded in the trial. All emphases by way of italics have been added by me.

5. [22]

   First, towards the end of his opening, the Crown prosecutor summarised the legal bases for the Crown case:

6. [23]

   Defence counsel did not open to the jury.

7. [24]

   Secondly, at TT 544.50 and following, before the Crown case closed, the following exchange took place between her Honour and counsel:

8. [25]

   Thirdly, a little later on the same day, commencing at TT 547.06, aspects of the proposed question trail were further discussed:

9. [26]

   Fourthly, later on the same day, commencing at TT 559.07, the document was further discussed in the absence of the jury:

10. [27]

    Fifthly, the question trail that had been settled with counsel was provided to the jury before the final addresses. I set it out in its entirety, whilst recording that the focus of the applicant with regard to ground 1 is upon questions 5 and 6.

11. [28]

    Sixthly, when the question trail was provided to the jury, her Honour provided the following explanation of it at TT 562.35 and following:

12. [29]

    Seventhly, turning now to relevant aspects of the closing address of the Crown, at TT 588.05 and following it was said:

13. [30]

    Eighthly, as for relevant extracts from the closing address of defence counsel at first instance, commencing at TT 591.49:

14. [31]

    Ninthly, as for the portions of the summing-up that are relevant to this ground, they commence at page 7:

15. [32]

    Tenthly, after retirement, the jury asked the following written question:

16. [33]

    The answer was discussed at length between her Honour and both counsel, and I do not extract that discussion. It was ultimately answered as follows (at summing-up page 61):

17. [34]

    Finally, it was also submitted that a separate but related error had been made in the summing-up with regard to the “definition” of grievous bodily harm. I repeat simply for convenience the relevant paragraph:

18. [35]

    I turn now to summarise the written submissions made for the applicant with regard to this ground.

19. [36]

    The applicant asserted that an essential ingredient of the offence of murder is an intention to kill or to inflict grievous bodily harm. Where are an accused is said to be a participant in an extended joint criminal enterprise, it is necessary that the accused foresee the possibility of the other participant committing the act with the necessary intention for murder, in order to establish the elements of murder against the accused: see McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.

20. [37]

    He submitted that the necessary foresight of the commission of the act and consequence of infliction of grievous bodily harm along with the necessary intention for murder was omitted from, from the written direction contained in the “question trail”, from the oral explanation of that document, the summing-up to the jury.

21. [38]

    The applicant pointed to page 7 of the summing-up, as previously set out by me at [31], to submit that, while the trial judge referred to the need for foresight of the possibility that the deceased might be killed or really seriously injured, and that, pursuant to the joint criminal enterprise, one or both of the men inflicted the injuries, there was no reference made to the necessary foresight of the intentional causing of death or grievous bodily harm.

22. [39]

    There was a similar absence of reference to the necessity of foresight by the non-active participant of the relevant intention on the part of the active participant by the trial judge at pages 9 and 10 of the summing-up. Instead, it was said, the directions only dealt with the foresight of the infliction of really serious injury or death, in the absence of reference to foresight of the intention on the part of the other participant.

23. [40]

    The written question trail provided to the jury was similarly said to be affected by the same significant error. The focus was upon questions 5 and 6, which directly addressed extended joint criminal enterprise, but failed to address the requisite intention for murder in that context. The applicant submitted that that was of obvious concern as the written document carried particular force and was likely to override the recollection that the jury had of any oral directions: see Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242; Hadchiti v R (2016) NSWLR 671; [2016] NSWCCA 663.

24. [41]

    Furthermore, it was said that the additional oral directions provided to the jury in response to their question, at [33] above, were also affected by error. While the applicant conceded that the reference by the trial judge to the contemplation of the “intentional infliction of really serious injury” by the applicant in her Honour’s response to the jury question was correct when read in isolation, the answer did not explicitly clarify or correct the other oral directions provided, nor the error in the question trail.

25. [42]

    Separately, it was said that the answer to the jury question failed to address appropriately the issue of liability by way of joint criminal enterprise, when the jury question itself had implied that the jury understanding was that there had been no antecedent agreement to inflict violence upon the deceased.

26. [43]

    In such circumstances, it was argued that liability could only be derivative. Because the Crown case was based upon basic and extended joint criminal enterprise, liability for which is primary, the jury had not been directed about derivative liability. In any event, the applicant asserted that mere presence, in the absence of an agreement or any relevant intention, would not have been sufficient to establish liability, derivative or primary.

27. [44]

    Finally, it was separately submitted that the jury were not appropriately directed as to the level of harm that needed to have been intended to be inflicted, for the purposes of foresight within extended joint criminal enterprise, because the trial judge had erred in the definition of grievous bodily harm provided in the summing-up.

28. [45]

    It was argued that the characterisation of grievous bodily harm adopted by the trial judge as being “significantly more than [a] trivial” injury blended aspects of grievous bodily harm with aspects of actual bodily harm, the former of which involves “really serious injury”, irrespective of its permanency, and the latter of which requires injury that is more than transient and trifling and interferes with the health or comfort of the victim.

29. [46]

    Those points were developed orally, as follows.

30. [47]

    First, it was asserted that questions 1 and 2 of the question trail, which pertained to primary liability, should not have been included in the document at all, because it was never suggested by the Crown that it could prove that the applicant did, in fact, personally inflict the fatal violence. In other words, I understood the submission to be that they were, at best, simply extraneous.

31. [48]

    Secondly, the answer provided to the written note of the jury, extracted at [33] above, when read as a whole suggests erroneously that the mere presence of the applicant could establish an agreement, participation in the agreement, and foresight of the intentional infliction of grievous bodily harm, even in the absence of the applicant intending to provide physical support to the co-accused.

32. [49]

    Lastly, even if the trial judge did correctly state the necessary mental element for extended joint criminal enterprise right at the end--namely, that the accused “contemplated the intentional infliction of really serious injury”--there was nevertheless a miscarriage of justice. It was said that that was the case because the erroneous written directions in the question trail surely “trumped” the oral answer provided to the jury, especially in light of the trial judge having correctly stated the necessity of foresight of intention only once in the course of the entire trial.

33. [50]

    Resisting this ground of appeal, the Crown asserted that, by way of the directions as a whole, including the final oral direction provided by her Honour in answer to the jury question, the jury were properly instructed with respect to the necessary foresight of the possibility of intention to cause really serious physical injury required for the offence of murder, pursuant to extended joint criminal enterprise.

34. [51]

    The Crown began its written submissions by referring to relevant passages of the summing-up of the trial judge that have been set out above, only one of which will be repeated again for emphasis:

35. [52]

    The relevant passage of the opening address of the Crown at trial, which discussed the need for foresight of the requisite intention for murder was also relied upon. I shall repeat it again for convenience:

36. [53]

    The Crown conceded that there were some passages in the summing-up and question trail in which her Honour failed to refer specifically to the requirement of foresight of possibility of intention, in the context of an extended joint criminal enterprise, and that those omissions were errors of law. Having said that, the Crown submitted that the grave nature of the injuries, coupled with the lethal weapons used to inflict those injuries, may explain why her Honour adopted the course that was taken. In other words, I understood the submission to be that, on the facts of this case, even if there has been a legal omission, it was of no moment.

37. [54]

    In any event, it was argued that any confusion that may have been created about the need for the Crown to prove beyond reasonable doubt that the applicant contemplated that the intentional infliction of really serious physical injury was a possible incident of the assault on the deceased, was largely resolved by the final direction by her Honour. And in circumstances in which neither the Crown at first instance nor defence counsel considered it necessary to amend the question trail, it was argued that the question trail would not have “overridden” the ultimate oral direction given by her Honour.

38. [55]

    The Crown also submitted that, when her Honour responded to the jury question and noted that the applicant needed to be “intending to implicitly or tacitly” provide support for the co-accused in the assault, that was clearly referable to the situation whereby the applicant, having recognised what was occurring, continued to participate in a joint criminal enterprise that was already in existence.

39. [56]

    With regard to the separate point about the definition of grievous bodily harm, the Crown rejected the proposition that the jury was not properly directed with respect to the level of harm that needed to have been inflicted. That was on the basis that an injury being “significantly more” than a trivial injury was consistent with the definition as per Haoui v R [2008] NSWCCA 209, and that defence counsel had made no complaint at trial.

40. [57]

    In oral submissions, the Crown confirmed his acceptance that some of the directions of the trial judge considered in isolation were indeed deficient. However, it was said that, read as a whole and in light of the Crown case, including the manner in which the Crown opened, it cannot be suggested that the trial judge erred consequentially.

41. [58]

    Ultimately, it was emphasised that her Honour’s directions in their entirety, especially the final oral direction provided to the jury, clarified that the Crown did indeed have to prove (for the purpose of basic joint criminal enterprise) that the applicant was acting pursuant to an implicit agreement, even if his physical act pursuant to that agreement was mere presence; and furthermore (for the purpose of extended joint criminal enterprise) that he contemplated that the intentional infliction of really serious injury was a possible incident of the assault upon the deceased.

42. [59]

    Discussion of the doctrines within the overarching topic of criminal complicity is made difficult by lack of standardised nomenclature. In the following passages, I have adopted the terminology that I believe is most often used in the High Court of Australia.

43. [60]

    In the interests of clarity, I first discuss what the Crown case did not encompass.

44. [61]

    The Crown never asserted that it could prove that the applicant had personally committed the physical elements of the offence, whether in whole or in part. In other words, the Crown never asserted that it could prove beyond reasonable doubt that the accused shot and stabbed the deceased, or that the accused shot him, or that the accused stabbed him. In other words, the Crown did not set out to prove that the applicant was the sole “true” principal in the first degree, or one of them: Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316. To express that another way, the Crown (at the least implicitly) conceded that it could not prove that the accused was the actor or an actor. Accordingly, the Crown case was founded upon what I shall compendiously call complicity.

45. [62]

    Nor did the Crown rely upon what I shall call accessorial liability: a principal in the second degree aiding, abetting, counselling or procuring the principal in the first degree to commit a serious offence: Stokes and Difford v R (1990) 51 A Crim R 25. That derivative subset of complicity – not requiring agreement as to the commission of a crime, but rather intentional encouragement or assistance, provided before or during the offence, to another person who commits it – was never relied upon, and never left to the consideration of the jury.

46. [63]

    Rather, the Crown case was left to the jury on joint criminal enterprise. And the Crown relied upon its two related but conceptually separate variants: basic joint criminal enterprise, and extended joint criminal enterprise.

47. [64]

    For the former in the context of murder, the Crown needed to prove beyond reasonable doubt that the applicant and the co-accused entered into an agreement to inflict at least grievous bodily harm upon the deceased; that one or other of them voluntarily did an act with that intent; that the deceased died as a result of that act; and that the other person was at least present when the act was committed, and present pursuant to that agreement.

48. [65]

    For the latter doctrine in the context of murder, the Crown needed to prove that the applicant and the co-accused had entered into an agreement to commit an offence; that during the commission of the agreed offence one or other of them voluntarily did an act that caused the death of the deceased; that that actor at the time intended at least to inflict grievous bodily harm; and that the other person at least foresaw the possibility of the infliction of grievous bodily harm, with intent to do so, by that actor.

49. [66]

    As for basic joint criminal enterprise, in my opinion the legal explanations and directions given were very largely correct: in the opening address of the Crown; in the question trail; in its contemporaneous oral explanation; in the summing-up. On balance, however, I consider that they were at the least confusing in the answer to the jury question. I shall return concisely to my reasons for that view later.

50. [67]

    But it is extended joint criminal enterprise that was the focus of the ground, and that is, in my opinion, the real problem.

51. [68]

    The doctrine of extended joint criminal enterprise is based upon: agreement to commit a foundational offence together; foresight of the possibility of the existence of the elements of a further, more serious, offence; and readiness to proceed with the foundational offence nevertheless. Those are the aspects of the doctrine that give rise to the moral culpability underpinning criminal liability for the more serious offence: see Keane J in Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30; (2016) 259 CLR 380. If those elements are established, the “non-actor” can be guilty of the further offence, even though he or she neither intended nor desired it. But an important part of the doctrine is that the necessity for foresight of possibility of elements of the further crime includes foresight of possibility of the necessary mental element or elements of the offence charged.

52. [69]

    Applying that analysis to the count of murder on the indictment, for the Crown to succeed against the applicant on the basis of extended joint criminal enterprise, it needed to prove beyond reasonable doubt that the applicant agreed with the co-accused that they would together commit a battery upon the deceased; that the co-accused committed murder; and that the applicant foresaw the possibility that, during the course of that battery, the co-accused may not only inflict death or really serious physical injury upon the deceased, but also that the co-accused may do so intentionally. So much has been established for 27 years: McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.

53. [70]

    Applying that analysis, I shall now set out whether the things said to the jury at various stages about the requirements of extended joint criminal enterprise were complete and correct, or incomplete and incorrect. I shall adopt the same order of analysis as I have done with regard to the extracted passages above.

54. [71]

    First, what the Crown prosecutor said in his opening was complete and correct, because he said that the second basis of the Crown case was “that the accused contemplated the intentional infliction of grievous bodily harm”.

55. [72]

    Secondly, thirdly and fourthly, on the assumption that the draft of the question trail under discussion was not more extensive than the final version ultimately given to the jury, despite the agreement of both counsel, the discussion between her Honour and the two of them proceeded on an understanding that was, with respect, incomplete and incorrect. That is because it did not include foresight of the intentional infliction of grievous bodily harm as a necessary element within murder based upon extended joint criminal enterprise.

56. [73]

    Fifthly, question 6 within the final version of the question trail given to the jury was incomplete and incorrect, for the same reason. And the statement “If “yes” you will find the accused guilty of murder” constituted a false path to a verdict of guilty of that offence.

57. [74]

    Sixthly, for the same reason, the oral explanation of the question trail was also, with respect, incomplete and incorrect.

58. [75]

    Seventhly, the final address of the Crown prosecutor was, with respect, incomplete and incorrect: it neglected to speak of contemplation of the possibility of the intentional infliction of grievous bodily harm.

59. [76]

    Eighthly, the final address of defence counsel was, with respect, complete and correct as far as it went, in that it spoke only of the basal requirement of agreement for either form of joint criminal enterprise, and did not delve further into the specific elements of extended joint criminal enterprise.

60. [77]

    Ninthly, the summing-up was, with respect, incomplete and incorrect, in that it spoke more than once of foresight of the possibility of an assault with the consequences of death or really serious physical injury, but neglected to speak of foresight of the possibility of the necessary intention to bring about those consequences. It was also incomplete and incorrect to the extent that it referred repeatedly to question 6 in the question trail. It is true that the summing-up spoke, with respect correctly, of the need for foresight of the possibility of “the crime which was in fact committed”, but it was never explained to the jury that that reference to a crime included its mental elements.

61. [78]

    Tenthly and finally, the answer to the question from the jury was, with respect, complete and correct with regard to this aspect. That is because, towards its conclusion, it spoke of the Crown needing to “prove that the accused contemplated the intentional infliction of really serious injury was a possible incident of that assault.” (As I have said, I shall deal with other aspects of the answer to the jury question separately.)

62. [79]

    In summary then: right at the start of the trial in the Crown opening, the necessary element was given orally to the jury. And right at the end of the trial, in answer to the jury question, it was given orally to the jury again. But in between, and in particular in the written directions contained in the question trail, it was not left to the consideration of the jury.

63. [80]

    In my opinion, it is too much to expect the jury to have heard, understood, and applied that necessary element in all of those circumstances. And I say that appreciating that the very last thing they were told about the topic was, in truth, complete and correct. Apart from anything else, if the jury had indeed understood that they were being told of a necessary mental element that was not discussed in the question trail, one would have expected a further question about that disjunction.

64. [81]

    In my opinion, the applicant is correct to say that the failure to direct the jury about the necessity of foresight of the possibility of the mental element necessary for the offence of murder provided a “false path” to a verdict of guilty on that count. By that I mean, having been inadequately directed about the elements, the jury could have returned such a verdict without in truth having been satisfied of all necessary elements beyond reasonable doubt.

65. [82]

    And that is not merely a theoretical possibility, divorced from the evidence actually placed before the jury, for the following reasons.

66. [83]

    First, defence counsel asked the jury to reflect upon circumstances whereby some sort of planned confrontation may have gotten out of control and the co-accused acted with great violence towards the deceased without the agreement of the applicant, thereby explaining the scientific and post-mortem evidence.

67. [84]

    Secondly, it is not inconceivable that the jury could have found that the accused agreed to be part of a battery upon the deceased, foresaw the possibility of grievous bodily harm ultimately resulting to him, but did not foresee the possibility of that occurring intentionally; for example, the deceased fleeing in a panic and being hit by a car, without that having been intended at all by either the applicant or the co-accused. In those circumstances, the applicant would not have been guilty of murder, because he would not have foreseen the possibility of the intentional infliction of grievous bodily harm or death. And yet the directions told the jury that he would have been.

68. [85]

    In my opinion, a miscarriage of justice has been established with regard to ground 1, subject to Rule 4 of the Criminal Appeal Rules (NSW), and the “proviso” to be found in s 6(3) of the Criminal Appeal Act 1912 (NSW). I shall discuss each of them concisely later in this judgment.

69. [86]

    Because I consider that the primary submission underpinning ground 1 establishes a miscarriage of justice, I shall only respond briefly to the ancillary submissions made in support of this ground.

70. [87]

    In my opinion, read in the context of the whole of the relevant paragraph of the summing-up, the direction about the meaning of the phrase “grievous bodily harm” was quite correct. It brought home to the jury that what needed to be proven was really serious physical injury.

71. [88]

    As for other aspects of the question trail, it is correct to say that questions 1 and 2 were extraneous, because the Crown never purported to be able to prove that the accused was either the actor, or one of the actors. It is also correct to say that question 7 was extraneous, for the same reason, a topic to which I shall return in discussing ground 2. Having said that, in my opinion, nothing turns on that with regard to this ground, because the jury would readily have answered in the negative any question based upon proof beyond reasonable doubt of the applicant having been the actor or an actor, and moved on to consideration of joint criminal enterprise.

72. [89]

    Finally, as for the answer to the question from the jury, in my opinion the jury question was seemingly not predicated upon an understanding of the need for proof of presence pursuant to an actual agreement to commit a crime together. It seemed to be asking whether there could be some sort of constructive agreement based upon an understanding on the part of the applicant of what the co-accused was to do, and a choice to remain nevertheless.

73. [90]

    It is true, as I have said, that the last part of the answer was correct with regard to the need for proof of contemplation of a possible intention to inflict really serious (physical) injury. It is also true that the second part of the answer was correct to say that the Crown must prove beyond reasonable doubt a joint criminal enterprise to commit the foundational offence of assault.

74. [91]

    Even so, it was not correct to say, in the first part of the answer that “He [the applicant] was intending to implicitly or tacitly provide support for Mr Bagnato in the assault, then yes, his presence with that intention, in that situation, would be sufficient to constitute a joint criminal enterprise to assault Mr Dillon”. Expressing joint criminal enterprise in that way was a melding of, on the one hand, concepts of encouragement or assistance without the necessity of agreement to commit a crime together, the foundation of accessorial liability, derivative in nature; and, on the other hand, the concept of agreement to commit a crime together, the foundation of joint criminal enterprise, primary in the nature of its liability.

75. [92]

    Having said that, despite those deficiencies in the answer to the question, they are secondary to the principal failing with regard to ensuring understanding of the need for proof beyond reasonable doubt an essential element of murder by way of extended joint criminal enterprise. In my opinion, on their own, they do not constitute a miscarriage of justice.

76. [93]

    In short, as I have said, subject to Rule 4 and the proviso, I would uphold this ground.

77. [94]

    Because I would uphold ground 1, and, as explained below, I do not believe that anything can stand in the way of the conviction for murder being quashed, my analysis of grounds 2 and 3 will be more concise than if they were determinative of my opinion.

78. [95]

    As I have done with regard to ground 1, I shall now set out the relevant passages from the trial that the applicant relied upon to show error. There will be a degree of repetition, again for the convenience of the reader.

79. [96]

    Before the provision of the question trail to the jury, the following discussion occurred between her Honour and counsel:

80. [97]

    As for the question trail itself, and its oral explanation at the time it was provided, they are extracted above, and I shall not repeat them, except as follows:

81. [98]

    In the summing-up, the following was said about the topic of manslaughter:

82. [99]

    The applicant submitted in writing that the overarching complaint for this ground of appeal was not that a verdict on manslaughter was left to the jury, but that the jury directions failed to address the possibility of a verdict of manslaughter in circumstances where the applicant was not the person who inflicted the fatal injuries.

83. [100]

    Although this was a trial in which the evidence could not establish whether the applicant was or was not the assailant, it was argued that the directions about manslaughter were confined to circumstances where the applicant had himself inflicted the injuries on the deceased. The practical result was that unless the jury was satisfied that the applicant had, in fact, personally inflicted the fatal injuries, the only possible verdicts open to the jury were: guilty of murder, or not guilty of murder.

84. [101]

    The applicant pointed to the real possibility that the jury could have reached a verdict of manslaughter if they had been established that there was an extended joint criminal enterprise, but that it featured the foresight of the possibility of a lower level of intended violence than an intention to kill or cause grievous bodily harm.

85. [102]

    Separately, it was also suggested that there was a reasonable possibility that the jury could have reached a manslaughter verdict if they found that there had been an agreement to assault the deceased, with foresight of death or serious injury, but without the necessary foresight that it could be inflicted intentionally.

86. [103]

    However, the question trail and the directions failed to permit a verdict of guilty of manslaughter based on the full range of reasonable possibilities available to the jury, and as a result, a miscarriage of justice had occurred: Restricted Decision [2019] NSWCCA 153.

87. [104]

    At the hearing before this Court, the applicant emphasised those points, in particular the limiting effect of the directions with respect to the possible avenues whereby the jury could find the applicant guilty of manslaughter. He also stressed that the manslaughter directions were simply erroneous to the extent that they dealt with a finding that could not be established on the evidence, namely that it was the applicant himself who had inflicted physical harm upon the deceased.

88. [105]

    Separately, the applicant parenthetically drew attention to the fact that even the written direction that was given to the jury about manslaughter was not quite correct. That is because it did not refer to realisation on the part of a reasonable person in the position of the accused that the act in question was exposing the deceased to an appreciable risk of serious injury.

89. [106]

    Resisting this ground of appeal, the Crown asserted that the trial judge did not fall into error because a verdict of manslaughter on an alternative basis, namely by way of joint criminal enterprise, was not “reasonably open on the evidence”.

90. [107]

    It was submitted that it was common ground at trial that the evidence was incapable of establishing the precise roles played by the applicant and the co-accused. But it was said that the evidence did establish that the nature of the injuries, namely four stab wounds to the back and several gunshot wounds, led inevitably to the inference that they could not have been inflicted without an intention to inflict at least very serious harm.

91. [108]

    The Crown submitted that, in the unlikely event that it was only one assailant armed with all of the weapons and responsible for all of the injuries, it was highly unlikely that the other assailant, having the knowledge of the weapons, would not have foreseen the possibility of the intentional infliction of grievous bodily harm.

92. [109]

    The Crown emphasised the following exchange in which the possibility of leaving manslaughter on a further alternative basis to the jury was discussed:

93. [110]

    The Crown submitted that in that passage her Honour clearly expressed the view that such a basis for manslaughter was not available on the evidence.

94. [111]

    In oral submissions, it was emphasised that in circumstances where it was not open to the jury to identify the particular role of the applicant, it was not open to find an agreement about the infliction of a lower level of violence than grievous bodily harm. That was because of the nature of the weapons, especially the presence at the scene of a loaded gun, the injuries actually inflicted, and the unlikelihood that all the injuries were inflicted by the one person.

95. [112]

    In relation to the alternative possibility that the applicant may have only agreed to an assault and only foreseen the possibility of some further unlawful and dangerous act, but not the intentional infliction of grievous bodily harm, the Crown submitted that such a scenario could give rise to a finding of manslaughter. However, it was emphasised that such circumstances simply did not arise on the objective evidence in the trial, and that is why manslaughter was correctly not left on that basis.

96. [113]

    As I have said, I shall be concise. In my opinion, this ground should succeed as well, for the following reasons.

97. [114]

    First, it is well established that, in a trial for murder, failure to leave manslaughter as a lesser form of homicide when it is reasonably open on the evidence can undermine a verdict of guilty of murder, on the basis that the range of options with which one is presented can affect the choices that one makes: see Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414.

98. [115]

    Secondly, it is true that manslaughter was left to the jury. But it was left on a basis that was otiose. That is because, although the Crown prosecutor had made it clear from the start of the trial in his opening that the Crown could not prove to the criminal standard that the accused was the actor or an actor, question 7 was predicated on that very proposition.

99. [116]

    Thirdly, as the final address of defence counsel about possible alternative scenarios, combined with the problems illuminated by ground 1 demonstrate, there were ways in which manslaughter could have arisen. For example, if the jury were satisfied: that the applicant entered into a joint criminal enterprise to commit battery against the deceased; that battery caused his death; the battery was unlawful and dangerous; but the jury were satisfied neither that the joint criminal enterprise encompassed the infliction of grievous bodily harm, nor that the applicant foresaw as a possibility its intentional infliction, then the appropriate verdict would be “not guilty of murder, but guilty of manslaughter”, based upon a joint criminal enterprise to commit an unlawful and dangerous act that was ultimately fatal.

100. [117]

     In other words, the initial thought of the Crown prosecutor expressed during discussions was, with respect, correct, and the opinion of the trial judge that manslaughter by unlawful and dangerous act could not arise in the context of basic or extended joint criminal enterprise was, with respect, incorrect.

101. [118]

     In my opinion, on the evidence in this case, it was necessary to leave to the jury manslaughter by unlawful and dangerous act founded upon joint criminal enterprise. The failure to do so undermines the verdict of guilty of murder. I believe that a miscarriage of justice has been established here as well. I deal later with the application of Rule 4 and the proviso to this ground.

102. [119]

     Finally, and again parenthetically, it is correct to say that the written direction about a “dangerous” act for the purposes of manslaughter at the conclusion of the question trail was not quite complete, because it did not refer to “an appreciable risk of serious injury”: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. But nothing turns on that, in light of the fact that that direction was inutile in any event.

103. [120]

     The applicant submitted that the trial judge introduced jury directions on circumstantial reasoning and inferences that were unnecessary and unclear, and may have created confusion for the jury.

104. [121]

     To permit understanding of this ground, it is convenient yet again to set out the relevant passages from the summing-up that the applicant referred to in his written submissions, commencing at page 10:

105. [122]

     This was followed by the following exchange in the absence of the jury:

106. [123]

     Her Honour subsequently directed the jury as follows:

107. [124]

     The applicant made the following points in written submissions.

108. [125]

     First, it was asserted that there was a lack of distinction between direct and circumstantial evidence, and no specificity about the precise “primary facts” that the Crown argued were established on the evidence. Further, there was a number of facts relied upon in the Crown case, however there was no distinction drawn as to what extent the jury were required to be satisfied of each of those facts to find them established.

109. [126]

     Secondly, it was said that that direction of the trial judge, as extracted in [123] above, referring as it did to intermediate facts, introduced an intermediate standard of proof that had the effect of creating uncertainty as to which matters required proof as primary or intermediate facts, and which matters required proof beyond reasonable doubt.

110. [127]

     Thirdly, reference to the jury’s evaluation of whether the “only rational conclusion is the one which is sought to be drawn by the Crown” in the direction was said to have had the effect of undermining the burden and standard of proof, by introducing an elaboration upon the standard of proof based upon “rationality”.

111. [128]

     Fourthly, it was contended that the direction as a whole was neither logical nor a stepped approach, and had the effect of obscuring the process which the jury had to undertake in order to evaluate the evidence in a circumstantial murder case. It was said that the absence of warnings regarding speculation or supposition and of focusing on a particular fact in isolation added to the confusion of the jury.

112. [129]

     In oral submissions, the applicant emphasised that the directions were superfluous, on the basis that the directions created a false dichotomy for the jury about finding facts that are either “links in the chain” or a “strand in the cable”, when there may be some facts that fall under the former category and some that fall under the latter. It was also said that there may well have been some indispensable intermediate facts in this case, depending upon the analysis of the jury. Finally, it was said, that this ground needed to be seen in the context of the diminution in the elements that needed to be proven by the Crown underpinning ground 1.

113. [130]

     In response to this ground, the Crown stated that nothing turned on the trial judge referring to some basic facts as “primary” or “intermediate facts”, particularly as her Honour later clarified that none of the facts had be proven beyond reasonable doubt, but rather considered together by the jury in deciding whether they could be satisfied beyond reasonable doubt of the guilt of the applicant.

114. [131]

     Furthermore, it was submitted that her Honour’s reference to the “only rational conclusion”, when read in context, did not undermine the burden and standard of proof, as it merely emphasised that the jury needed to be satisfied about proof of guilt of the offence beyond reasonable doubt.

115. [132]

     The Crown also drew attention to the fact that defence counsel made no application for a re-direction, nor suggested that the directions for the trial judge were erroneous or confusing.

116. [133]

     At the hearing before this Court, the Crown asserted that the directions in relation to circumstantial evidence need to be read as a whole, and when they are, it is evident that the jury were clearly told that no particular fact needed to be proved beyond reasonable doubt.

117. [134]

     While the trial judge did refer to some primary or intermediate facts in her Honour’s summing-up, it was made clear that none of those facts needed to be proven beyond reasonable doubt, and it was only the conclusion from those facts that needed to be established beyond reasonable doubt. As a result, the burden and standard of proof was not compromised by the directions provided by her Honour.

118. [135]

     As I have said, I shall deal with this ground succinctly. My opinion can be expressed by way of the following propositions.

119. [136]

     First, it was, with respect, an error for her Honour to direct the jury initially that primary facts needed to be proven beyond reasonable doubt. The submission of the Crown prosecutor that that error needed to be corrected was, with respect, clearly correct: see the judgment of Dawson J in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, relied upon in many subsequent decisions of this Court.

120. [137]

     Secondly, it was correct of her Honour to say by way of correction that the primary facts needed only to be “established” to the satisfaction of the jury, without providing a specific standard of proof. No standard of proof has been assigned by the criminal law to “establishment” of primary facts in a circumstantial case.

121. [138]

     Thirdly, it was, with respect, confusing for her Honour to introduce the concept of “intermediate” facts into that correction. The term had not previously been used. Furthermore, neither party had submitted that this was a case in which the judge might need to direct the jury that, if they formed the view that certain intermediate facts were “indispensable” to proof of guilt, then they would need to be proven beyond reasonable doubt: see Shepherd v The Queen, R v Merritt [1999] NSWCCA 29, Burrell v R [2009] NSWCCA 163; (2009) 196 A Crim R 199, R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150.

122. [139]

     Fourthly, I respectfully agree with the analysis of Spigelman CJ in R v Davidson at [10] and following, in which the Chief Justice spoke of the element of “redundancy” in informing a jury, which has already been told that the elements of the offence must be proven beyond reasonable doubt, that any intermediate fact that, in the assessment of the jury, is indispensable to arrival at that destination, must also be proven beyond reasonable doubt. I say that because the proposition would seem necessarily to follow, and not seem to be liable to misapprehension by a jury.

123. [140]

     Fifthly, it is true that the dichotomy between a so-called “strands in the cable” case and a so-called “links in the chain” case is a primitive one: see the judgment of the Court in Burrell v R at [97]. But in my opinion this was a case in which a large number of primary facts were relied upon, the absence of no particular one of which would have been fatal to the Crown case, especially bearing in mind the undisputed presence of the applicant in the car park, in the company of the co-accused, when the deceased was shot and stabbed: see the judgment of Simpson J in R v Davidson at [74].

124. [141]

     Sixthly, and relatedly, in my opinion there were no indispensable intermediate facts about which a direction needed to be given in this case, depending on how the jury chose to reason. For example, I do not accept the oral submission for the applicant that the proposition that the applicant took a knife from the nearby family business was, or could have been, an indispensable intermediate fact that needed to be proven beyond reasonable doubt before the jury could return a verdict of guilty of murder.

125. [142]

     Seventhly and finally, there was no error in her Honour directing the jury that an essential part of proof beyond reasonable doubt of the offence was rejection of alternative hypotheses to the same standard. The latter is an entirely orthodox extrapolation of the former. If it had not been said, the summing-up may have been liable to criticism. And I have never understood it to have been held that the reference to the need for rejection of alternative rational hypotheses is a wrongful gloss on the criminal standard of proof.

126. [143]

     In short, I accept that the correction of the initial error featured an unnecessary refinement that may have confused the jury. But I do not believe it can be characterised as a significant error, and certainly not as constituting a miscarriage of justice. And I am fortified in my opinion about that by the fact that defence counsel sought no redirection about the matter.

127. [144]

     I would not uphold this ground.

Rule 4 – both successful grounds

1. [145]

   I turn now to discuss the possible adverse effect of Rule 4 upon the two grounds that I believe are established.

2. [146]

   No objection was taken to the deficient part of the question trail; indeed, it was agreed in by defence counsel. That raises a question whether leave should be granted to rely upon ground 1.

3. [147]

   But the simple fact is that an essential element of murder by way of extended joint criminal enterprise was lacking. And, as I have said, it is not beyond the bounds of possibility that the jury were satisfied of foresight of the possibility of the outcome, without having been satisfied of foresight of the possibility of the intention to bring about that outcome. It is therefore possible that the applicant has been convicted of murder when the jury was not truly satisfied of his guilt of that offence. In other words, it is possible that a man who is not guilty of murder has been convicted of murder.

4. [148]

   For that reason, I do not accept that Rule 4 can stand in the way of success of ground 1.

5. [149]

   As for ground 2, the failure to leave manslaughter to the consideration of the jury on a valid basis may have made the jury more likely to return a verdict of guilty of murder. It was incumbent upon both counsel to assist her Honour to identify bases for the lesser form of homicide that were reasonably open on the evidence. Defence counsel did not contend that manslaughter should be left on any basis other than the single, otiose basis upon which it was left.

6. [150]

   Even so, because of the importance of the issue, and the possibility that the practical “all or nothing” question with which the jury was confronted may have led to a verdict of guilty of murder, I do not believe that Rule 4 should stand in the way of success of this ground either.

The proviso – both successful grounds

1. [151]

   Although as I have shown all grounds were firmly resisted by the Crown, no reliance was placed upon the proviso. That was for the simple reasons, as I understand them, that if ground 1 were to succeed, the applicant had not been in reality tried for the offence upon which he had been arraigned; and that, if ground 2 were to succeed, axiomatically one could not rely upon the satisfaction of the jury that the Crown had proven that the applicant was guilty of murder. I accept that concession. Apart from anything else, on the evidence, a false pathway to a verdict of guilty of murder was, at the least, conceivably taken, in accordance with ground 1. And the failure to leave manslaughter on a reasonably open basis may have made the jury more likely to return a verdict of guilty of murder, in accordance with ground 2.

Proposed orders

1. [152]

   On the basis of the preceding analysis, I propose the following orders:

   1. (1)

      Leave to appeal against conviction granted.

   2. (2)

      Appeal upheld.

   3. (3)

      The conviction for murder entered against the applicant is quashed, and a new trial is to be had.

   4. (4)

      The matter is listed in the Arraignments List of the Supreme Court at 10 am on 12 February 2021.

2. [153]

   WILSON J: I agree with Button J, for the reasons his Honour gives.