R v LN; R v AW (No. 9)

1. [1]

   JOHNSON J: LN and AW are standing trial for the alleged murder of a child (to be referred to in this judgment as Timothy) on or about 3 August 2014 at Oberon in the State of New South Wales.

The Present Application

1. [2]

   At the conclusion of the evidence and before the commencement of closing addresses, Ms Moen, counsel for AW, made application for certain directions to be given to the jury with respect to the concepts of joint criminal enterprise and extended joint criminal enterprise in the context of this trial.

2. [3]

   Prior to that application, the Court had already heard submissions and settled written directions to be given to the jury on murder and manslaughter by unlawful and dangerous act (MFI34). Those directions were settled following submissions being made by counsel on 24 March 2017 (T1054-1061).

3. [4]

   On 28 March 2017, Ms Moen foreshadowed the making of an application for a verdict by direction on behalf of AW (T1236-1238).

4. [5]

   When the application proceeded on 29 March 2017, counsel for AW informed the Court that such an application was not to be made, but that application would be made to amend the proposed written directions with respect to AW. Submissions proceeded on that application on 29 March 2017 (T1241-1250, 1258-1261) and 30 March 2017 (T1266-1278). To assist an understanding of the application being made on behalf of AW, an amended form of the written directions was prepared which contained the alterations sought by counsel for AW (MFI45).

5. [6]

   At the conclusion of the argument and after some opportunity for reflection on the submissions, I declined to direct the jury in the manner outlined in MFI45. I expressed satisfaction that the written directions in MFI34 captured the elements and concepts of joint criminal enterprise and extended joint criminal enterprise, as they would apply in the circumstances of this trial as against AW. I indicated that I would publish my reasons for this ruling at a later time (T1287).

6. [7]

   This judgment contains my reasons for that ruling.

The Crown Case Against Each Accused

1. [8]

   The Crown case against LN and AW, as summarised before trial in the Crown Case Statement, was set out in R v LN; R v AW (No. 1) [2017] NSWSC 119 at [5]-[55].

2. [9]

   The Crown puts its case against LN on the basis that she committed a voluntary act on or about 3 August 2014, accompanied by an intention to kill or to inflict grievous bodily harm, with that act causing Timothy’s death: R v LN; R v AW (No. 1) at [58].

3. [10]

   The Crown puts its case against AW on the basis of extended joint criminal enterprise. The Crown alleges that LN inflicted fatal injuries upon Timothy on or about 3 August 2014 and that, from the time that Timothy came to live at Oberon on 14 June 2014, each of LN and AW engaged in a joint criminal enterprise to assault the child and that AW foresaw the possibility that LN, during the course of that joint criminal enterprise, might commit a voluntary act causing Timothy’s death whilst having the requisite intent for murder, namely an intent to kill or to inflict grievous bodily harm: R v LN; R v AW (No. 1) at [59].

4. [11]

   To assist an understanding of the issues considered in this judgment, I have annexed to this judgment the written directions on murder (as contained in MFI34) to be given to the jury. The annexure has been edited to remove names to give effect to s.15A Children (Criminal Proceedings) Act 1987.

Submissions for AW

1. [12]

   Ms Moen submitted that paragraph 9(a) of the proposed directions should be amended by removal of the concept of “the commission of assaults” and replacing that part of the direction with the words “a joint criminal enterprise between LN and AW to assault” the child.

2. [13]

   It was submitted that paragraph 9(e) should be amended so that it would read:

3. [14]

   Counsel for AW submitted that, in the section of the written direction concerning joint criminal enterprise, a new paragraph should be inserted after paragraph 16 in the following terms:

4. [15]

   It was submitted, as well, that the opening words of paragraph 18 should be amended by removing the words “it may be that in carrying out the joint criminal enterprise …” and inserting instead the words “it may be that in carrying out the agreed assault …”

5. [16]

   It was submitted that the closing words of paragraph 19 should be amended by removal of the words “continues to participate in the agreed criminal enterprise” and inserting instead “continues to participate in the agreed assault”.

6. [17]

   In support of these proposed amendments, counsel for AW submitted that the law concerning joint criminal enterprise and extended joint criminal enterprise required a single foundational offence (such as an assault) and not a number of offences (such as the commission of assaults over a period of time).

7. [18]

   Put shortly, it was submitted for AW that the common law with respect to joint criminal enterprise and extended joint criminal enterprise did not allow the prosecution to rely upon an alleged joint criminal enterprise to commit a series of offences such as assault. It was argued that it was necessary for the prosecution to identify a single foundational offence. Although there was scope for ongoing offences to exist because of statutory provisions (such as ongoing drug supply or ongoing sexual abuse of a child), it was submitted that the relevant common law doctrine does not accommodate an ongoing course of criminal conduct in pursuance of a joint criminal enterprise between two or more persons.

8. [19]

   Counsel could not point to any authority to support this submission. Rather, the Court was taken to paragraphs in a number of decisions which were said to provide some indirect support for this proposition: Clayton v The Queen [2006] HCA 58; 81 ALJR 439 at 443 [17]; Huynh v The Queen [2013] HCA 6; 87 ALJR 434 at 442 [38] and Youkhana v R [2015] NSWCCA 41; 249 A Crim R 424 at 427 [13].

9. [20]

   Reliance was placed as well upon the decision of the minority (Gleeson CJ and Callinan J) in The Queen v Taufahema [2007] HCA 11; 228 CLR 232 at 246-247 [31] with respect to the general concepts of joint criminal enterprise and extended joint criminal enterprise.

10. [21]

    With respect to the proposed amendment which involved the concept of presence, counsel for AW acknowledged that presence at the time of the commission of the act (relied upon for the ultimate crime) is not required. However, in the circumstances of this case, it was submitted that the jury should be directed in terms of the proposed new paragraph 17 involving concepts of participation and presence in circumstances where, it was said, an issue may arise here as to whether AW was asleep at the time of any relevant act.

11. [22]

    The Crown submitted that the jury ought be directed in the manner originally agreed in MFI34. It was submitted that the directions sought on behalf of AW were not appropriate in law or in the circumstances of the case.

Decision

1. [23]

   The directions contained in MFI34 were based upon the law as stated in a number of decisions, including the recent decision of the High Court of Australia in Miller v The Queen [2016] HCA 30; 90 ALJR 918. The general directions on the concepts of joint criminal enterprise and extended joint criminal enterprise, as contained in MFI34, are not challenged by counsel for AW.

2. [24]

   The Crown case against AW asserts the existence of a joint criminal enterprise (paragraph 9(a) and (b)), over a period of about five weeks between 28 June 2014 and 3 August 2014, to commit assaults upon Timothy, the three-year old son of LN and stepson of AW. During this period, LN, AW, Timothy and FN (LN’s eldest son) were residing in a cottage in Oberon together with Mary, the 17-month old daughter of LN and AW.

3. [25]

   FN has given evidence in the trial of a series of events over that period of time in which LN, AW or both of them assaulted Timothy in a number of ways.

4. [26]

   Counsel for each Accused has made clear that no reliance is to be placed upon the defence of lawful correction in s.61AA Crimes Act 1900. Accordingly, the usual direction which would be given to explain to the jury the concept of assault does not include the formula “without lawful excuse”. Neither Accused is to suggest to the jury that any act of violence committed against Timothy was based upon the exercise of lawful excuse in the form of lawful correction. Each Accused has made admissions to police, which are in evidence before the jury, of acts against the child which constitute assaults.

5. [27]

   Accordingly, in considering the appropriate directions to the jury in this trial, it is to be kept in mind that there is undisputed evidence that, over the five-week period, each Accused assaulted the child, sometimes in the presence of the other Accused and sometimes not. A number of these acts were witnessed by FN and he has given evidence about them.

6. [28]

   The Crown contends that it is open to the jury to find that there was a joint criminal enterprise between LN and AW to assault Timothy on a number of occasions, arising from the conduct of each Accused directed to the young child in their care. Accompanying the evidence of acts is evidence of LN’s state of mind, where she admitted that she wished to do harm (or worse) to the child for various reasons.

7. [29]

   The Crown alleges that AW participated (paragraph 9(c)) in a joint criminal enterprise to commit assaults against Timothy by his own commission of assaults from time to time, in this five-week period and by other steps taken by him involving the child. The Crown points to evidence of AW having taken steps to treat (or reduce evidence of) injuries which had been caused to the child by LN or himself. These acts included the placing of Mercurochrome on parts of the child’s body, and placing the child in an Esky containing ice (with the lid being closed) for the suggested purpose of reducing bruising which appeared on the child’s body.

8. [30]

   The Crown alleges that at a time on or about 3 August 2014, LN severely assaulted Timothy in a manner which inflicted substantial head injuries which led ultimately to his death (paragraph 9(d)). The Crown is not in a position to point to a particular incident occurring at a specific time in this regard. Rather, the Crown submits that the repeated assaults upon Timothy by his mother, accompanied by an intention to cause him really serious bodily injury or death, supports strongly an inference to this effect being drawn.

9. [31]

   The Crown contends that AW contemplated the possible intentional infliction of (at least) really serious bodily injury by LN upon Timothy during the course of the joint criminal enterprise to commit assaults against him and that, with that awareness, AW continued to participate in the agreed criminal enterprise (paragraph 9(e)).

10. [32]

    The application made on behalf of AW, in effect, seeks to confine the Crown to an agreement to commit a particular assault. It is said that this is a prerequisite before one can move to the principles of extended joint criminal enterprise. It is said that there must be a foundational offence, with a course of conduct involving repeated offending of the same type against the same victim not being permissible at law.

11. [33]

    I do not accept the submission made for AW in this respect. Although it may be the case in many examples that a single foundational offence is involved, this is because the facts of those cases involve no more than that. This may be seen in Clayton v The Queen at 443 [17]. In that case, there was a joint criminal enterprise to commit a single offence so that the words “the assault” in that paragraph must be so understood.

12. [34]

    However, I see no difficulty in applying these concepts to a situation such as this where it is alleged that two persons, over a period of time, have engaged in a joint criminal enterprise or agreement to assault a child in their care on multiple occasions. The relevant principles may operate meaningfully in this context.

13. [35]

    If AW was aware that LN had assaulted the child on a number of occasions and that she had not desisted from such acts or withdrawn from any agreement to do so, it is open to the Crown to contend that AW contemplated the possible intentional infliction of at least grievous bodily harm by LN upon the child on a future occasion, when all of them were living under the same roof.

14. [36]

    It is open to the Crown to contend that, with that awareness, AW continued to participate in the agreed criminal enterprise, so that he may be found liable in law for murder by application of the relevant principles, if LN commits a deliberate act which causes the death of the child accompanied by the relevant mental state for murder.

15. [37]

    I see no tension between this statement of the case and the principles emerging from the authorities in the area of joint criminal enterprise and extended joint criminal enterprise.

16. [38]

    In the course of submissions, I raised with counsel for AW the decisions of the Victorian Court of Appeal in Likiardopoulos v R [2010] VSCA 344; 30 VR 654 and of the High Court of Australia in Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265. In that case, a number of persons assaulted the victim in a house over a period of two days with persons coming and going in that period. The Crown alleged against Mr Likiardopoulos that he was party to a joint criminal enterprise to beat the victim with the intention of inflicting really serious injury. One of the issues raised in the case was whether it was necessary for the Crown to prove his presence at the time of the act causing death.

17. [39]

    The Victorian Court of Appeal determined that his presence was not essential at the time of the act causing death noting, in any event, that the term “presence” in this area of the law does not have a narrow meaning: Likiardopoulos v R at 671 [72]-[74]. It is, of course, possible for the Crown to mount a case based on joint criminal enterprise where the accused person is not present at the commission of the offence: Sever v R [2010] NSWCCA 135 at [146].

18. [40]

    The factual circumstances of Likiardopoulos provides some support for the way in which the Crown puts its case against AW.

19. [41]

    The area of difference is that, in the present case, the Crown relies upon the doctrine of extended joint criminal enterprise. I do not see that this poses any difficulty for the Crown in a case such as this. It is not necessary for the Crown to prove that AW was present at the time of the alleged fatal assault by LN against the child. It is not necessary for the Crown to prove that AW was in the house at the time or whether, if he was in the house, he was awake. These aspects, in my view, are not relevant to the elements of the offence charged against AW.

20. [42]

    What the Crown must prove is the existence of a joint criminal enterprise between LN and AW to carry out assaults upon the child, with the evidence clearly pointing to acts being committed against the child which are capable of constituting assaults by one or other or both of the Accused. It is not necessary for the Crown to identify a particular assault, which must be agreed, before the doctrine of extended joint criminal enterprise can be applied as against AW.

21. [43]

    In some cases it may be important to be able to identify the precise act for the purpose of application of the relevant principles. This would have particular application where the foundational crime was of a different type to that which was otherwise the subject of the agreement and which involved different features.

22. [44]

    In the present case, however, each of the criminal acts which the Crown relies upon as forming part of the joint criminal enterprise between LN and AW involved the use of physical force, in the form of an assault, against the same three-year old child in their care. There is no evidence that, if such a joint criminal enterprise is found by the jury, AW took steps to withdraw from it or to persuade LN not to undertake further violent acts of that type against the child.

23. [45]

    It is open to the jury to accept that AW was party to such a joint criminal enterprise, and that he participated in it and did not withdraw from that joint criminal enterprise, which remained on foot at the time of the fatal act relied upon by the Crown. The fatal act, of course, would be of the same type as that previously committed, namely an assault against a three-year old child in the care of LN and AW, although one which would be accompanied by the mental element for murder on LN’s part.

24. [46]

    In expressing the case against AW in this way, I am (of course) not purporting to make any findings against him. Rather, I am seeking to articulate the way in which the case is put against him by the Crown so as to expose that case for consideration, in light of the submissions made by counsel for AW.

25. [47]

    The directions sought on behalf of AW were not, in my view, either required by law nor factually and legally appropriate in the circumstances of this trial. To narrow the focus upon “an assault” or “the assault” (in the sense of the alleged fatal assault) would not fairly and realistically reflect the case which the Crown brings against AW.

26. [48]

    I note that Gleeson CJ and Callinan J observed in Taufahema v The Queen at 246-247 [31], that identification of the relevant joint criminal enterprise is necessary to allow the trial Judge to rule on questions of admissibility and defence counsel to decide how to conduct the defence case. I am satisfied that the case against AW as opened by the Crown has achieved those purposes. What appears in this judgment reflects the way in which the trial has been conducted so that there can be no legitimate complaint that defence counsel has been taken by surprise.

27. [49]

    Further, the particular direction sought concerning the concept of presence and participation (at [14] above) is, in my view, wrong in law and in any event inappropriate in the circumstances of the case.

28. [50]

    It is for these reasons that I declined to direct the jury in the terms sought on behalf of the Accused AW. I was satisfied that the written directions as originally framed, and agreed upon in MFI34, continued to be appropriate in the circumstances of this trial.