Published by Geoff Harrison | 16 June 2023
The offences of Murder and Manslaughter are defined under section 18(1) of the Crimes Act 1900 as:
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.
The maximum sentence for murder is imprisonment for the term of the person's natural life:
s19A(1) A person who commits the crime of murder is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life.
(3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life).
(4) This section applies to murder committed before or after the commencement of this section.
(5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply.
(6) Nothing in this section affects the prerogative of mercy.
Hence, as can be seen the charge of murder can be established via a number of different acts and states of mind of the accused. Such as:
1. An intention to inflict grievous bodily harm, or
2. an intention to kill, or
3. reckless indifference to human life, or
4. committed by the accused or some accomplice with him or her in an attempt to commit, or during or immediately after the commission of, an offence punishable by at least 25 years imprisonment (constructive murder), or
5. at common law via an extended joint criminal enterprise.
The actus reus and mens rea for offences foreshadowed within s18 of the Crimes Act 1900 are fairly straight forward however, arguably murder via an extended joint criminal enterprise has caused some debate within the different common law jurisdictions; particularly in relation to the mental element namely, "foresight of the possibility". The principles relating to the doctrine of extended joint criminal enterprise were summarised by Button J in Carbone v R [2020] NSWCCA 318 at [68]-[69]:
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.
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.
Hence, where an accused is also held responsible for the murder of a person by a co-accused, where the murder is as a result of a joint criminal enterprise of assault, the prosecution must prove that the accused had foresight of the possibility that in the course of the assault one or more of their co-offenders would cause the deceased to suffer really serious injury with the intention of causing injury of that kind.
A case where the prosecution unsuccessfully relied upon the principle of extended joint criminal enterprise for murder by several co-accused was: R v Fernando & Ors [2022] NSWSC 1332 which is set out in part below. All accused were acquitted of murder. Also see: R v IL [2016] NSWCCA 51 and Cavanagh v R; McIvor v R; O'Keefe v R [2023] NSWCCA 164 (30 June 2023).
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Supreme Court
New South Wales
Case Name:
R v Fernando & Ors
Medium Neutral Citation:
[2022] NSWSC 1332
Hearing Date(s):
11 July – 12 September 2022
Decision Date:
30 September 2022
Jurisdiction:
Common Law
Before:
Fullerton J
Decision:
Verdicts of not guilty entered for each of the accused. Each of the accused is acquitted.
Catchwords:
CRIMINAL LAW – murder – trial by judge alone – joint trial of seven co-accused –extended joint criminal enterprise – whether in the course of an agreement to assault a fatal injury was inflicted with intention to inflict grievous bodily harm – whether the accused foresaw the possibility of infliction of grievous bodily harm by one or more of the accused with the intention to inflict grievous bodily harm –circumstantial case – no eyewitnesses – limited forensic evidence – Crown failed to establish joint criminal enterprise agreement as particularised
Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited:
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
King v The Queen (1986) 161 CLR 423; [1986] HCA 59
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category:
Principal judgment
Parties:
The Crown
Leslie David Fernando (Accused)
David Richard Beale (Accused)
Stacey Kelly-Greenup (Accused)
Lional Charles McGrady (Accused)
Michael Thomas Porter (Accused)
Jeremy Owen James Smith (Accused)
Shane Keith Weatherall (Accused)
Representation:
Counsel:
P Barrett (Crown)
G Harrison (Accused Fernando)
M Smith (Accused Beale)
C Watson (Accused Kelly-Greenup)
H White (Accused McGrady)
A Webb (Accused Porter)
S Climo (Accused Smith)
P Coady (Accused Weatherall)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Macquarie Law Group (Accused Fernando)
Rivera Legal (Accused Beale)
Ryan Payten Le (Accused Kelly-Greenup)
McWilliams Lawyers (Accused McGrady)
Lisa De Luca & Co (Accused Porter)
Andrews Solicitors (Accused Smith)
Streeton Lawyers (Accused Weatherall)
File Number(s):
2020/185995
2020/309668
2020/193673
2020/185963
2020/186020
2020/192380
2020/185899
JUDGMENT
1. HER HONOUR: On 6 August 2021 Mr Leslie David Fernando, Mr David Richard Beale, Ms Stacey Kelly-Greenup, Mr Lional Charles McGrady, Mr Michael Thomas Porter, Mr Jeremy Owen James Smith, and Mr Shane Keith Weatherall were arraigned on a charge that on 30 December 2019, they murdered Mr Vergel Velasquez at Girraween in the State of New South Wales.
2. The joint trial of the accused commenced before me on 11 July 2022. At that time, it was intended to be a trial with a jury.
3. On 11 August 2022, after a number of pre-trial applications resulted in the exclusion of evidence in the Crown case against Mr McGrady, Mr Porter, Mr Smith, Ms Kelly-Greenup and Mr Weatherall, on the application of all accused and consented to by the Crown, an order was made in accordance with s 132 of the Criminal Procedure Act 1986 (NSW) that the joint trial of the accused proceed without a jury.
4. On that day the accused were rearraigned before me and each entered a plea of not guilty.
5. When the Crown opened its case, the legal liability for murder of each of the accused was expressed in the alternative: Either their participation in a joint criminal enterprise to assault the deceased and to inflict grievous bodily harm, in the course of which he was fatally assaulted by one of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall, with Mr Smith and Ms Kelly-Greenup present and intending to encourage each of their co-offenders to assault the deceased (that is, a joint criminal enterprise to inflict grievous bodily harm simpliciter), or their participation in a joint criminal enterprise to assault the deceased and to cause him harm, again in which they each either physically assaulted the deceased or intentionally assisted the others to assault the deceased and, in addition, where they each foresaw the possibility that in the course of committing that assault one (or more than one) of them would inflict grievous bodily harm, with the intention of inflicting harm of that kind (that is, murder on the basis of an extended joint criminal enterprise).
6. At the close of the evidence in the Crown case, the Crown abandoned any reliance upon a joint criminal enterprise simpliciter as a basis for the liability of any of the accused for the deceased’s murder. The Crown case against each of the accused for the murder of the deceased was left solely on the basis of an extended joint criminal enterprise.
7. The Crown called evidence from 25 witnesses, including expert evidence from Dr Little, a forensic pathologist, Dr Collins, a forensic biologist and two crime scene officers. A number of crime scene photographs and an ISRAPS of the crime scene were tendered. Statements from nine civilian witnesses were tendered by consent.[1]
8. A schedule evidencing the movements of the accused on 30 December 2019, either on foot or travelling in a white Holden Commodore recorded on a number of CCTV cameras operating in private, commercial premises or public places (including in the environs of the deceased’s home at Girraween at or around 4pm) was tendered, together with the accompanying CCTV footage and a number of still photographs taken from that footage.
9. A schedule of text and telephone contact between Ms Kelly-Greenup and Mr Smith between 29 and 31 December 2019 and 4 January 2020 was also tendered.[2] Apart from the attempts Mr Smith made to contact Ms Kelly-Greenup on the afternoon of 30 December 2019, the schedule was admitted only against Ms Kelly-Greenup and Mr Smith.
10. Each of Ms Kelly-Greenup, Mr McGrady and Mr Smith participated in electronically recorded interviews in May or June 2020. They were tendered in the Crown case against those three accused as capable of constituting admissions by them against interest and, in the case of Ms Kelly-Greenup, as containing a number of deliberate lies told from a consciousness of guilt.
11. At the close of the evidence in the Crown case on 2 September 2022, counsel for each of the accused applied for a directed verdict of acquittal. Comprehensive written submissions by each of defence counsel were filed addressing alleged deficiencies in the evidence were filed. The Crown filed written comprehensive submissions in response.
12. On 6 September 2022, I ruled that each of the accused had a case to answer.
13. Other than a document tendered by Mr Coady in Mr Weatherall’s case, there was no defence case for any of the accused.[3] None of the accused gave evidence.
The Crown case in broad outline
14. In very broad outline, it is the Crown case that shortly before 4pm on 30 December 2019, the deceased was physically assaulted in the ground level carpark area of his home unit block at Girraween by Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall, in the course of which one of them struck him in the area of the left parietal area of his skull with a weapon causing a comminuted skull fracture with radiating fractures into the right parietal area and the right temporal bone. Those fractures were associated with both acute intracranial haemorrhages (being a combination of subdural extradural and subarachnoid haemorrhages) and with haemorrhagic contusions on the brain tissue.
The arrival of emergency services
15. After the arrival of emergency services at the deceased’s home unit at 4:26pm in response to the triple-0 call sent at 4:02 pm by Ms Kol (one of the residents of the unit block), the deceased was transported unconscious and unresponsive to Westmead Hospital where a series of CT scans were performed prior to emergency surgery.
16. Those scans revealed an acute intracranial haemorrhage overlaying the right cerebral convexity which was considered to be a combination of subdural, extradural and subarachnoid haemorrhages, measuring up to 1.7cm in thickness. Haemorrhagic contusions were seen in the underlying brain, in particular in the parietal regions bilaterally, which were associated with a comminuted fracture in the left parietal area of the skull with a radiating fracture into the right parietal area and the temporal bone below the area of the right ear. Bilateral nasal bone fractures were also noted.
17. Despite an emergency decompressive craniotomy and evacuation of the subdural haematoma (in the course of which a large linear skull fracture was noted associated with arterial haemorrhage and dural and brain laceration evident along the fracture line), the deceased was diagnosed, post-operatively, with severe traumatic brain injury with high intracranial pressures, which proved resistant to medical and surgical measures. There was an absence of brainstem reflexes.
18. Mr Velasquez was pronounced deceased in the intensive care unit at Westmead Hospital at 5:25pm on 31 December 2019.
19. It is the Crown case that the five accused (Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall) who were engaged in the physical assault on the deceased in the carpark, were parties to a joint criminal enterprise to assault him and cause him harm and that the principles of extended joint criminal enterprise render them liable for his murder. It is the Crown case that each of the assailants had foresight of the possibility that in the course of the assault in which they jointly participated, one or more of them would do an act causing the deceased to suffer really serious injury with the intention of causing injury of that kind in circumstances where at least two of them were armed with a weapon. It is the Crown case that the sole motive for the assault on the deceased in which the five accused physically participated was in retribution or retaliation for the deceased’s sexual assault on Ms Kelly-Greenup. It was the Crown case that each of them was motivated to enter into an agreement to assault the deceased for that reason, the formation of which predated 30 December 2019.
20.It is the Crown case that Ms Kelly-Greenup and Mr Smith were also parties to the same joint criminal enterprise to assault the deceased and although they were not physically engaged in the assault, they were present (watching the assault), intending by that fact to encourage their co-offenders to assault the deceased. It is the Crown case that Ms Kelly-Greenup published the allegation of sexual assault to one or more of the accused and that she and Mr Smith joined in the agreement to assault the deceased in retribution or retaliation for that sexual assault. On the Crown case, the principles of extended joint criminal enterprise also render those two accused liable for the deceased’s murder because they each had foresight of the possibility that in the course of the assault one or more of their co-offenders would cause the deceased to suffer really serious injury with the intention of causing injury of that kind.
The findings on autopsy
21. An autopsy was conducted at the Department of Forensic Medicine at 10:30am on 6 January 2020. The direct cause of death was reported by Dr Little as “blunt force head injury and its sequelae”. In coming to that conclusion Dr Little reviewed the CT report associated with the CT scans performed prior to surgery. CT scans performed post-mortem confirmed evidence of a large right craniotomy (surgically performed) which was associated with significant subarachnoid and extra axial haemorrhage over the entire scalp. Dr Little reported no lacerating or abrasive injury to the scalp overlying the skull fractures.
22. Neuropathological examination of the brain also showed evidence of surgical intervention together with widespread evidence of blunt force trauma including stains on the brain tissue evidencing diffuse traumatic injury. As Dr Little explained in her evidence at the trial, these injuries caused the brain tissue to swell impairing blood flow and oxygenation to the brain tissue leading eventually to the deceased’s brain death.
23. There was no issue taken in the trial by any of the accused that the blunt force injury to the deceased’s head in the left parietal area of his skull was the direct cause of his death. Additionally, in the closing submissions of defence counsel, no issue was taken with the fact that the fatal injury was inflicted in the course of an assault on the deceased in the ground level garage area of his home unit at about 4pm on 30 December 2019.
The crime scene
24. A team of specialist crime scene officers attended the deceased’s home unit at 7:10pm on 30 December 2019. Crime Scene Officer Paul Weldon prepared a statement extending over 179 paragraphs relating to his examination of the crime scene, including collecting and recording various physical items and forensic samples recovered from the crime scene.[4] He also took a large number of photographs, some of which were annexed to his statement and other separately tendered as part of the evidence in the trial.[5]
25. A number of crime scene markers were positioned to identify areas of blood staining or apparent blood staining in the downstairs carpark area and internal tiled foyer. Two markers, “C” and “D”, identified the position of a house brick and an area of blood staining nearby. The brick was not “in” the area of the blood staining but located near it. A small brick fragment was also located in that general area. Other evidence in the trial confirmed that the fragment was likely broken from the house brick at marker “C”. A loose stack of bricks was located nearby with two other bricks separated from the stack.
26. A number of areas of what were described by Officer Weldon as “bloodstains” were identified on the doors to garages 4 and 5, on a concrete pillar and on a car parked near the pillar. A trail of blood stains extended from the carpark into the tiled foyer area where the deceased was found by ambulance officers and where he had been treated earlier that afternoon before being transferred to Westmead Hospital.
27. There was no scientific evidence adduced by the Crown concerning the likely manner in which the blood stains were left or deposited, or the possible range of transfer mechanisms. Moreover, there was nothing in the general appearance of the stains from which I could draw any inference to support a finding that the deceased was forcibly pushed against the roller doors or the concrete pillar as distinct from him falling or brushing against those surfaces (and transferring blood in the process). The parties did not invite me to undertake that analysis as the tribunal of fact in any event.
28. Although samples were taken for DNA analysis (to which I will refer later in this judgment), there was scant, if any, other evidence collected from the crime scene that informed the resolution of the facts in issue in the trial, principal among them being whether the assault on the deceased was perpetrated by five of the seven accused, that is, the case the Crown advanced in closing address against Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall, with at least two of them armed with weapons.
The accused’s cases in broad outline
29. Again, in very broad outline, it was the primary case for each of the accused that although the evidence was capable of establishing their presence in the ground level carpark area when the deceased was fatally assaulted, the Crown had failed to establish that their presence at that place and at that time was because of the existence of a joint criminal enterprise of the nature and scope alleged by the Crown.
30. Each of the accused further submitted that to the extent that I was satisfied of the existence of a joint criminal enterprise of the nature and scope contended for by the Crown as a fact fundamental to proof of their guilt and, to the extent that I was also satisfied that each of the accused were parties to an agreement to assault the deceased, a further fact fundamental to proof of guilt, namely, that they each had foresight of the possibility that in the course of the assault one or more of them might do an act which resulted in the deceased suffering grievous bodily harm with the intention of inflicting harm of that kind had not been established, in large part because the accused submitted the Crown’s “two weapons theory” was unsupported by the forensic evidence.
Some directions of law
31. It will be necessary later in the judgment to identify the legal principles inherent in the concept of extended joint criminal enterprise where murder is the crime alleged. It will also be necessary at that time to articulate the directions by which I will be bound in determining whether the evidence adduced by the Crown in proof of the guilt of each of the accused, and the facts which I am satisfied are established by that evidence (including facts established as a matter of inference from facts established by that evidence) proves the guilt of each of the accused beyond reasonable doubt.
32. Suffice at this time to give myself the following fundamental direction: in identifying the factual issues in dispute in the trial, and in considering whether those that are capable of resolution support the inference of guilt for which the Crown contends, I am conscious, and direct myself accordingly, against the risk of inverting the burden of proof. That is, I am conscious, and direct myself accordingly, that consistent with the entitlement of each of the accused to the presumption of innocence, they bear no legal or evidential burden of establishing any fact or series of facts (or circumstances) that might either prove their innocence or which might raise a reasonable doubt as to their guilt.
33. I also direct myself that the accused bear no burden of establishing any reasonable hypothesis consistent with their innocence, whether on the basis of the facts or circumstances that I am satisfied are positively established by the evidence or which fairly arise on the evidence. After full weight is given to the facts and circumstances which I am satisfied are established by the evidence, I direct myself that in discharging the legal burden of proving the guilt of each of the accused beyond reasonable doubt, the Crown is obliged to negative any reasonable possibility that there remains a reasonable, that is, a rational, hypothesis that is inconsistent with the guilt of the accused, or any one of them.[6]
34. It is also appropriate at this time that I direct myself that in reasoning to verdicts against each of the accused, I may only take into consideration the evidence admissible against that accused. In this trial, that translates into the following direction: in determining whether the Crown has proved the participation of each of the accused in a joint criminal enterprise to assault the deceased and, if I am satisfied of that fact beyond reasonable doubt, whether I am also satisfied that each of the accused had foresight of the possibility that one or more of them would cause the deceased to suffer really serious injury with an intention of inflicting injury of that kind, I must confine myself to the evidence admissible against that particular accused.
35. In this trial, apart from the three ERISPs in which the accused Ms Kelly-Greenup, Mr McGrady and Mr Smith participated, and that part of the schedule of telephone contact which included actual text message exchanges between Ms Kelly-Greenup and Mr Smith which was only tendered against those two accused,[7]and the evidence of Ms Marlene Wood tendered in Mr Weatherall’s case,[8] all of the evidence in the trial was admitted, without objection, against each of the accused.
36. I also note that save for the tender of the three ERISPs of Ms Kelly-Greenup, Mr McGrady and Mr Smith, relied upon by the Crown as containing admissions by those accused (and in the case of Ms Kelly-Greenup, as containing lies told with a consciousness of guilt), the Crown case against each accused is based on a range of individual facts and circumstances which, in the Crown’s submission, when considered together compel a finding that each is guilty of murder beyond reasonable doubt because no other rational hypothesis consistent with the innocence of any of the accused remains open on the evidence.
General observations of the nature of the evidence in the Crown case
37. There were no eyewitnesses to the fatal assault on the deceased. There was a single witness, Ms Brittany Sampson, whose evidence was relied upon by the Crown to establish the presence of each of the accused in the ground level carpark at the time of the assault.
38. Other than the accused Mr Beale, who Ms Sampson did not know either by name or by association, the Crown submitted Ms Sampson effectively identified each of the remaining five male accused as present in the ground level carpark by the various nicknames by which they are commonly known and by which they were known to her, and that she also effectively identified Mr Beale as also present in the carpark having seen him earlier in the deceased’s unit.
39. Ms Kelly-Greenup and Ms Sampson were friends. Ms Sampson gave evidence that she was with Ms Kelly-Greenup in the carpark at the time of the assault.
40. Apart from Ms Sampson describing Ms Kelly-Greenup and Mr Smith standing with her in some unidentified area of the ground level garage at or about the time that other evidence establishes residents of the unit block heard sounds associated with “a fight”, Ms Sampson gave no evidence of where any of the remaining five male accused were located, either relative to each other or the deceased, or relative to any of the parked cars, including a white Commodore station wagon which the evidence established was the vehicle in which each of the six male accused had arrived at the deceased’s home unit by about 3:30pm and the vehicle in which, on the Crown case, the six male accused left the carpark at about 3:58pm.[9]
41. Ms Sampson gave no evidence of seeing any of the accused Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall assaulting the deceased. Further, although she gave evidence that while she was standing with Ms Kelly-Greenup and Mr Smith she was alerted to what she described as the anguished screams of the deceased, she was not invited by the Crown to appoint where the deceased was when she heard his screams referable to any photographs or maps of the carpark, or where the deceased was when she went to attend to him or, for that matter, where any of the seven accused were at that time.
42. Given the wide-ranging challenge to Ms Sampson’s credibility and reliability by counsel for each of the accused, and given the Crown’s reliance on her evidence to establish the presence of each of the accused when the deceased was assaulted (a fact fundamental to proving their participation in the joint criminal enterprise), it will be necessary to give close consideration to her evidence and what it is capable of establishing about the facts in issue in the trial.
43. Although there were no eyewitnesses to the assault, there was evidence from three residents of the unit block each of whom heard sounds, including raised voices, both male and female, consistent with an assault taking place a short time before one of the residents, Ms Kol, placed a triple-0 call at 4:02pm. It will also be necessary to give close consideration to that body of evidence and, in combination with other evidence, including Ms Sampson’s evidence, what it is capable of establishing about the facts in issue in the trial, including the presence of the accused in the carpark area of the unit block at the time the sounds of “a fight” were heard and the departure of the six male accused from the unit block in the white Commodore at 3:58pm.[10]
44. Two other witnesses, Mr Olla and Ms Plasto, who were visitors to the deceased’s unit on 30 December 2019 gave uncontested evidence of their observations of a number of people, including the deceased, in the carpark area as they left through a rear gate moments earlier, while two other visitors, Mr Daniel and Ms Joukhador, gave uncontested evidence of seeing Ms Kelly-Greenup and Ms Sampson leave the unit block on foot after seeing the white Commodore drive away.
A further elaboration of the Crown case
45. Before undertaking a detailed examination of the evidence relied upon by the Crown in proof of the guilt of each of the accused, it is both important and useful at this stage in my deliberations to return to that aspect of the Crown case against each of the accused which is based upon the forensic evidence.
46. The Crown submitted in closing address that the evidence of the forensic pathologist, Dr Little, and the evidence of the forensic biologist, Dr Collins, when considered together with the evidence of the crime scene officers, allows for a finding that the chipped house brick recovered from the carpark proximate to a pool of the deceased’s blood was in fact used, or was likely to have been used, to inflict the fatal head wound.
47. In the course of his closing submissions, the Crown prosecutor submitted that because a mixture of Mr McGrady’s DNA and the deceased’s DNA was identified in a single trace swab from multiple edges of the house brick, it would be open to me to find that Mr McGrady wielded the house brick under significant force at the back of deceased’s head causing the blunt force injury which was the direct cause of his death.
48. The Crown submitted that were I to find as a fact that the house brick was implicated in the deceased’s murder in that way, I would have no difficulty making a further factual finding that Mr McGrady intended to cause the deceased grievous bodily harm when he wielded the brick at his head and, in those circumstances, irrespective of any verdict I might return against the other six accused, it would be open to me to convict Mr McGrady of murder.
49. Given the way the Crown opened its case, and the formal basis upon which the Crown closed its case before each of the accused advanced a no case submission, namely that the basis for liability in each of the accused, including Mr McGrady, was on the basis of an extended joint criminal enterprise in which they each intentionally participated, I direct myself that it is not open to the Crown to seek a verdict against Mr McGrady based solely upon any finding I might make that he deliberately wielded a house brick at the deceased’s head with the intention of causing him grievous bodily harm and that the deceased died from that injury.[11] That is, I direct myself that it is not open to me to return a verdict of guilty against Mr McGrady on the basis that he acted unilaterally in deliberately striking the deceased to the head with the intention of causing grievous bodily harm. If the Crown intended to seek a verdict against Mr McGrady on the basis that he was party to a joint criminal enterprise to assault the deceased and to harm him, but that in execution of that agreement he exceeded the scope of that agreement when he unilaterally and spontaneously picked up a house brick that happened to be in a nearby pile of bricks and struck the deceased to the head, the Crown should have opened its case on that basis in order that Mr McGrady’s defence could be conducted with that knowledge. I am fortified in giving myself that direction by the Crown case statement, filed pursuant to s 142 of the Criminal Procedure Act 1986 (NSW), in which the Crown expressly eschewed any reliance on the individual assaultive actions of the five accused who, on the Crown, case physically assaulted the deceased in seeking a verdict against any of them, as distinct from what the Crown described as its reliance upon “the collective nature of the adventure”, that is, the actions of the accused as members of a joint criminal enterprise”.[12]
50. The Crown remains entitled to seek a verdict against Mr McGrady for the deceased’s murder referable to the DNA evidence collected from the house brick if the Crown establishes that he was party to a joint criminal enterprise to assault the deceased and, in executing his role as a party to that agreement, he removed a house brick from a pile of house bricks in the carpark area which he then wielded at the head of the deceased with the intention of causing grievous bodily harm while others were physically assaulting the deceased, one of whom was also wielding a weapon.
51. A further defining feature of the Crown prosecutor’s closing address in the case he sought to make against each accused according to the principles of extended joint criminal enterprise concerned Dr Little’s identification of a non-fatal deep lacerating injury to the deceased’s forehead, which, as with the fatal head injury, was an injury Dr Little described as delivered under significant force.
52. In the Crown’s submission, Dr Little’s identification of the injury to the deceased’s forehead, without any underlying skull fracture and without any obvious area of abrasion around the wound site from contact with the abrasive rough surface of the brick, allowed for a factual finding that the house brick was not used to inflict that injury. In the Crown’s submission, that finding, coupled with Dr Little’s evidence in cross-examination that it was highly unlikely that even a very severe bare fisted punch would have caused the laceration to the forehead, compelled the making of a further factual finding that there must have been a minimum of two weapons (possibly more) but certainly two weapons used in the course of the assault on the deceased, and it follows there must have been more than one assailant physically engaged in the assault.
53. The weapon which caused the lacerating injury to the deceased’s forehead was not located at the crime scene and was not otherwise described in the evidence available to the Crown in proof of its case. The Crown submitted it would be open to me to find from the facts that the second weapon (whatever it was) was brought to the deceased’s unit in the white Holden Commodore and removed from the scene when the six male accused left the deceased’s unit in that vehicle after the assault.
54. As I will make clear when I move to consider Dr Little’s’ evidence in detail later in these reasons, I consider it significant that there was no forensic evidence as to the shape, contour or weight of the so-called second weapon (or the material that might have been involved in its construction) and that no attempt was made by the Crown to adduce admissible evidence from Dr Little concerning that issue.
55. In the Crown’s submission, despite there being no eyewitnesses to the assault, and no evidence of anyone seeing any of the accused armed with weapons at any time, and only one witness, Ms Sampson, whose evidence is broadly capable of identifying each of the seven accused as present in the ground-level carpark at the time the deceased was fatally assaulted, I would find, as a matter of inference from all of the evidence, that there was a minimum of two weapons wielded at the deceased’s head and, by implication, two assailants in the group of five of the male accused physically participating in the assault.
56. In the Crown’s submission, those related factual findings which underpin the Crown’s two weapons theory, taken together with all the evidence in the Crown case which places each of the accused in the carpark area of the deceased’s home unit block when he was fatally assaulted, inclusive of the fact that the seven accused congregated in the carpark area of the deceased’s unit that day within 30 minutes of the assault, was capable of establishing the existence of the joint criminal enterprise to assault the deceased, and that each of the accused must also have had foresight of the possibility that in the course of the assault on the deceased at least one of them would inflict grievous bodily harm on the deceased (with a weapon) and that person would act with the intention of causing harm of that kind.
57. That submission was advanced by the Crown in order to meet what the Crown must fairly have anticipated would be the case for each of the accused that the Crown could not discount the reasonable possibility that one of the accused, acting unilaterally, spontaneously launched an assault on the deceased and, in the process of that assault, armed himself opportunistically with a makeshift weapon seized from somewhere in the garage which he wielded at the head of the deceased (likely with two separate blows, one of which was fatal and the other resulting in the lacerating injury to the deceased’s forehead) and, in the same assaultive episode, that accused delivered other blows to the deceased’s body before the deceased succumbed to the assault.
58. I note that both Mr Smith and Mr McGrady gave an account in their ERISPs broadly consistent with that scenario. Mr Smith named Mr Fernando as the assailant armed with a piece of wood. Although Mr McGrady told police he did not see what happened to the deceased (because he was with Mr Smith who was talking to Ms Kelly-Greenup and Ms Sampson and was hoping to be offered a “twirl” of Mr Smith’s “ice” pipe) he said he heard screaming and when he saw the deceased lying on the ground near the stack of bricks, he saw what he described as “a (wooden) table leg” square in shape lying on the ground not far from the deceased.
59. The submission that the Crown could not exclude the reasonable possibility of one assailant acting unilaterally in launching and perpetuating the assault on the deceased in which the fatal blow was inflicted, and that the Crown could not discount the reasonable possibility that it was that person who launched the assault on the deceased with a makeshift weapon seized opportunistically from within the garage area, was a submission also advanced in closing submissions on behalf of the remaining four male accused and Ms Kelly-Greenup.
60. Counsel for Mr Fernando, Mr Beale, Ms Kelly-Greenup, Mr Porter and Mr Weatherall submitted that scenario was left open at the close of the Crown case, in large part, because of the way in which the Crown conducted its case, including the Crown’s reliance on the evidence from Dr Little in closing submissions in promoting the Crown’s two weapons theory.
61. In the submissions of defence counsel, a fact fundamental to proof of the Crown case, namely that there were multiple weapons wielded by multiple assailants, was not established by the evidence adduced by the Crown from Dr Little and was not otherwise the subject of report by her in the documents tendered. They also submitted it was not a fact-based theory susceptible to proof by inference from the objective evidence collected (and photographed) from the crime scene.
62. Defence counsel submitted that in circumstances where there remained at the close of the Crown case a fundamental deficiency in the evidence capable of supporting the two weapons theory, it was not open to me to find, by the deployment of inferential reasoning from the objective forensic evidence, including the evidence from the crime scene or from the items submitted for forensic analysis, that there was a group assault on the deceased as contended for by the Crown. In those circumstances, they submitted each of their clients must be acquitted.
63. In considering those submissions, it will be necessary to give close consideration to Dr Little’s evidence and the various documentary exhibits tendered by the Crown through her. At that time, it will also be necessary to direct myself that care must be taken before any fact in dispute that is not the subject of direct evidence, admission or concession is susceptible to proof by inference from other facts that are established by the evidence.
The Crown case as to the factual liability for each of the accused to be convicted of murder
64. In his closing address, the Crown prosecutor submitted that the liability of each of the accused for murder on the basis of an extended joint criminal enterprise was grounded in proof of the following facts:
(1) At some unspecified time between 27 and 30 December 2019, each of the accused agreed that the deceased should be assaulted in retaliation or retribution because (they had heard that) the deceased had sexually assaulted Ms Kelly-Greenup;[13]
(2) At some unspecified time after 27 December 2019, each of the accused agreed that they would assemble at the deceased’s unit on 30 December 2019 to carry out that agreement;
(3) Consistent with that agreement, on 30 December 2019 each of the six male accused travelled to the deceased’s unit (where Ms Kelly-Greenup was staying) in Mr Fernando’s white Holden Commodore and were present in the ground floor carpark area at the deceased’s home unit on 30 December 2019 when, at about 4pm, he was fatally assaulted;
(4) Each of the accused Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall physically participated in the assault on the deceased, while Mr Smith and Ms Kelly-Greenup were present and intentionally encouraging the others to assault the deceased;
(5) In the course of that assault Mr Fernando, Mr Beale, Mr McGrady, Mr Porter or Mr Weatherall struck the deceased on the back of the head with a weapon with the intention of causing him really serious injury;
(6) The strike on the back of the deceased’s head with a weapon caused his death; and
(7) Each of the accused who were party to the agreement to assault the deceased foresaw the possibility that during the course of committing the assault, one of them (or more than one of them) might assault the deceased in such a manner (including with a weapon) as to cause him to suffer really serious injury cause and that that person would do so with the intention of inflicting harm of that kind.
65. Accordingly, I direct myself that in order to return a verdict of guilty against any of the accused I will need to be satisfied, on the basis of evidence admissible against that accused, of the following:
(1) That the accused whose guilt I am considering was party to an agreement to assault the deceased of the nature and scope contended for by the Crown;
(2) That the accused whose guilt I am considering was present at the time the assault was committed because of that agreement and, in the case of Mr Fernando, Mr Beale, Mr McGrady, Mr Porter and Mr Weatherall they were physically participating in the assault, and in the case of Mr Smith and Ms Kelly-Greenup that they were present with the intention of assisting or encouraging the others to assault the deceased;
(3) That the accused whose guilt I am considering foresaw the reasonable possibility that in the execution of the agreement that the deceased be assaulted, one or more than one of those who were party to that agreement might assault the deceased in such a manner as to cause him to suffer really serious injury and that person (or those people) would do so with the intention of inflicting harm of that kind; and
(4) The deceased died as a result of that act.
66. Counsel for each of the accused submitted (correctly) that as a matter of law the presence of their client generally at the place where the deceased was fatally assaulted, or in the immediate vicinity of that place (assuming the facts allowed for a factual finding advanced by the Crown that the deceased was assaulted at or proximate to the roller door to garage 5 in the ground level carpark area) was insufficient to expose any of them to liability for the deceased’s murder, even if the act causing death was committed in their presence.
67. What defence counsel submitted (again correctly) was that the Crown was obliged to prove that their client was present in the carpark area because of the agreement their client had reached with one or more of the other accused (before arriving at the deceased’s home unit on 30 December 2019) that the deceased should be physically assaulted. In the case of Ms Kelly-Greenup, her counsel submitted (correctly) that the Crown was obliged to prove that she had reached an agreement with one, or more than one, of the six male accused before their arrival at the deceased’s home unit that he should be assaulted.
68. It was further submitted by counsel for each of the accused (also correctly) that even were I satisfied of the existence of the joint criminal enterprise to assault the deceased at his home unit, and that their client was present in the ground floor garage at or about the time the deceased was fatally assaulted consistent with that agreement, that was insufficient to expose them to criminal liability for his murder. Counsel for each of the accused submitted that the Crown is also obliged to establish that the presence of their client at that time was accompanied by a state of mind, capable of being established by inference from the assembled facts, that before the assault on the deceased was launched, they each foresaw the possibility that one or more of those with whom they had agreed the deceased should be assaulted would, in the course of that assault, inflict grievous bodily harm on the deceased with the intention of inflicting harm of that kind, either by the use of a house brick which was seized from a pile of house bricks near the roller door to garage 5, or a weapon (or weapons) taken to the deceased’s unit in the white Holden Commodore in which they travelled together.
What the accused did not put in contest:
69. Save only for a limited submission advanced on behalf of Mr Beale that the evidence does not allow me to find that he was in the ground floor carpark area at the time of the fatal assault, it was not the subject of contest that the deceased was fatally assaulted in the ground floor garage area of his unit at or about 4pm on 30 December 2019.
70. It was also, at least implicit, in the closing addresses of each of defence counsel that the evidence allowed me to find as a fact that the act causing death was committed by one of the six male accused and that person was armed with a weapon when the deceased’s head was struck with considerable force.