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Joint Criminal Enterprise

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Liability for a criminal offence can be extended in a number of ways – this article will deal with the principle of joint criminal enterprises. Essentially, if the prosecution can establish that an agreement has been reached or formed between the parties to commit a criminal offence and the parties then proceed to participate in that offence, then each of the participants are equally guilty for that offence regardless of their individual roles. The agreement to commit and participate in an offence obviously need not be express and can arise at the time the offence is being committed. Under the principle of extended joint criminal enterprise or “common purpose” a participant is also liable for any offence other than the agreed offence provided, the further offence falls within the scope of the common purpose – the test is a subjective test hence, the prosecution must prove that the accused was aware of the possibility of the other offence being committed.

 
The test usually referred to in order to establish as joint criminal enterprise was laid down by Hunt CJ in the decision of R v Tangye (1997) 92 A Crim R 545 (see extracted below). However, a question that does occasionally arise, is whether a person is liable for a crime by their mere presence (as opposed to some form of participation or encouragement) when the crime is committed? The answer is yes, the person is equally liable for the offence if the persons presence at the crime was in furtherance of the agreement. This was made clear in the High Court decision of Huynh v The Queen [2013] HCA 6, where after an agreement is reached to commit a specific crime, mere presence is then sufficient to establish liability; as this would be participation or encouragement in itself: “[a] person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement”. This was also made clear in the decision of Meagher JA in Youkhana v R [2015] NSWCCA 41 (see below). 
 
As to whether a person is liable by way of a joint criminal enterprise the test is a per R v Tangye (1997) 92 A Crim R 545 [para. 19]:
 
1. The law is that, where two or more person carry out a joint criminal enterprise, each is responsible for the act of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. 
 
2.  A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more person are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. 
 

3.  A person participate 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 persons 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 the joint criminal enterprise to commit the crime. 

4.  If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in the are enterprise are equally guilty of the crime regardless of the part played by each in its commission. 

 
Generally the existence of an agreement or participation in the agreement is proven by inferential evidence; as noted in the decision of Wood v R [2012] NSWCCA 21 per McClellan CJ at CL [669] where His Honour refers to Latham J’s comments in Sever v The Queen [2010] NSWCCA 135:   
 
 

145 In such a straightforward case of joint criminal enterprise, as the direction makes clear, the existence of the agreement and the participation in that agreement by the accused are matters of inference established by the circumstances in which two or more persons are participating together in the commission of the offence, and the presence of the accused at the time the offence is committed, coupled with intentional assistance to, or encouragement of, the other participant(s).     

 
146 It is, of course, possible for the Crown to mount a case based on joint criminal enterprise where the accused is not present at the commission of the offence; Osland v The Queen [1998] HCA 75 at [27], [93]; [1998] HCA 75; (1998) 197 CLR 316 at 329-330, 350 ; R  v Prochilo [2003] NSWCCA 265. However, the existence of the agreement or enterprise, and the participation in it by the accused in such a case cannot be inferred from the circumstances in which the offence is committed, because (to state the obvious) there is no evidence of what the accused said and/or did during the commission of the offence. The jury must look to evidence of events, other than those pertaining to the offence itself, for proof beyond reasonable doubt of the existence and scope of the agreement, and the accused’s participation in it.     
 
147 In the instant case, there was a complete absence of evidence of that character. There was no evidence of the identity of a potential co-offender. There was no evidence of conversations between the accused and others that were capable of amounting to an agreement to commit an offence. There was no evidence of acts on the part of the accused, such as the transfer of a large amount of money to another or the purchase of material linked to the fire, that suggested an intention to carry out such an agreement. 
 

Youkhana v R [2015] NSWCCA 41 (27 March 2015)

 
Court of Criminal Appeal
Supreme Court
New South Wales
Case Name: Youkhana v R
Medium Neutral Citation: [2015] NSWCCA 41
Hearing Date(s): 09 March 2015
Decision Date: 27 March 2015
Before: Meagher JA at [1];  
Schmidt J at [36];
Bellew J at [37]
Decision: Application for leave to appeal dismissed
Catchwords: CRIMINAL LAW – conviction appeal – robbery – Crimes Act 1900 (NSW), s 97 – joint criminal enterprise – whether primary judge erred in direction on joint criminal enterprise – ‘participation’ required of member of joint enterprise present but not actively involved in the commission of agreed crime – whether jury ought to be directed that ‘participation’ requires more than proof that the accused was a party to an agreement and was present when agreed crime was committed
Legislation Cited: Crimes Act 1900 (NSW), s 97(1) 
Criminal Appeal Rules, r 4
Cases Cited: Huynh v The Queen  [2013] HCA 6;  87 ALJR 434
Libke v The Queen  [2007] HCA 30;  230 CLR 559
M v The Queen  [1994] HCA 63;  181 CLR 487
McAuliffe v The Queen  [1995] HCA 37;  183 CLR 108
MFA v The Queen  [2002] HCA 53;  213 CLR 606
Osland v the Queen  [1998] HCA 75;  197 CLR 316
R v Chai  [2002] HCA 1276 ALJR 628
R v Hillier  [2007] HCA 13;  228 CLR 618
R v Tangye  (1997) 92 A Crim R 545
SKA v The Queen  [2011] HCA 13;  243 CLR 400
Category: Principal judgment
Parties: Youbert Youkhana (Applicant)
Regina (Crown)
Representation: Counsel:
S Pararajasingham (Applicant)
J Pickering SC (Crown)

Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): CCA2012/379377
Decision under appeal:  
Court or Tribunal: District Court of New South Wales
Jurisdiction: Criminal Jurisdiction
Date of Decision: 11 December 2013
Before: Quirk DCJ
File Number(s): DC2012/379377

JUDGMENT

  1. MEAGHER JA: The applicant, Youbert Youkhana, seeks leave to appeal from his conviction, following a trial before Quirk DCJ, that on 26 September 2012 at Clyde in New South Wales, while in company, he robbed Anthony Joseph of his Apple iPad 2, contrary to s 97(1) of the Crimes Act 1900 (NSW).
  2. He does so on two grounds. They are:

1. Her Honour erred in her direction to the jury concerning what constituted a joint criminal enterprise.

2. The verdict of guilty was unreasonable and cannot be supported having regard to the nature and quality of the evidence.

  1. The applicant’s counsel did not take any objection to her Honour’s directions as to what had to be proved to establish his liability as a participant in a joint criminal enterprise to commit the robbery. Therefore, r 4 of the Criminal Appeal Rules applies and the applicant requires leave to be allowed to rely upon the first of these grounds.
  2. It is convenient at the outset to summarise the evidence at trial which was within a narrow compass.

The evidence at trial

  1. On 26 September 2012 at around 4.30pm Mr Joseph was a passenger in a train travelling from Wentworthville towards Parramatta station. He was in the upper level of a double-deck carriage in the second last seat, facing in the direction that the train was travelling. That bench provided seating for three passengers and was on the left side of the train as it travelled in the direction of Parramatta. Mr Joseph was seated near the window and was using his iPad to access the internet.
  2. The applicant and two others boarded that carriage at Parramatta station. They were Rani Sabri and Aramsin Yousif. Closed circuit television (CCTV) footage at that station showed the applicant leading them through the turnstile, up an escalator and onto the platform. When they boarded the train, the seats in the upper level of Mr Joseph’s carriage, in the area where he was seated, were mostly unoccupied. On entering that upper level, one of the three men sat on the seat bench in front of Mr Joseph which was facing away from the direction in which the train was travelling. That person was sitting opposite Mr Joseph, but closer to the aisle. The other two men sat in the last bench in the carriage, immediately behind Mr Joseph. That seat also could accommodate three persons and was facing in the direction in which the train was travelling.
  3. The journey to Clyde station took less than seven minutes and included stops at Harris Park and Granville stations. During that time Mr Joseph heard the three men talking to each other in a language other than English. There was no evidence as to what was said. As the train stopped at Clyde station and the doors opened Mr Joseph was punched in his right eye from behind. At the same time the person sitting facing him snatched his iPad. The three men then ran down the stairs from the upper level and out of the train. The CCTV footage at Clyde station showed them running along the platform and then upstairs, across a small overpass, out of the station and down a longer footbridge leading to the roadway. It showed the applicant leading the other two men at a pace through the various twists and turns involved in that escapade. It also showed that the applicant covered his face as he ran along the platform towards one of the CCTV cameras. Mr Joseph chased the men out of the station. At one stage he saw them ahead of him, walking and talking together. One was laughing. When one of the men turned back and saw Mr Joseph, the three started running again.

Ground 1 (error in direction concerning joint criminal enterprise)

  1. 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.

  1. 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.
  2. 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.

  1. 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].
  2. 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.
  3. 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…”. In particular, 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.
  4. 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.

  1. 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.
  2. 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.
  3. 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?

  1. 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.
  2. 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.

  1. 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.

  1. 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].

  1. 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.
  2. 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.
  3. 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.
  4. 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)

  1. 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].
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. This ground of appeal should be rejected.

Conclusion

  1. The order I would make is that the application for leave to appeal be dismissed.
  2. SCHMIDT J: I agree with Meagher JA.
  3. BELLEW J: I agree with Meagher JA.

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