R v Taufahema

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Callinan J.,Gummow,Hayne,Heydon,Crennan JJ.,Kirby J.
• Judgment Date: 21 March 2007
• Neutral Citation: 2007-0321 HCA C,[2007] HCA 11
• Docket Number: S142/2006
• Date: 21 March 2007

The Queen

Applicant

and

Motekiai Taufahema

Respondent

[2007] HCA 11

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.

S142/2006

HIGH COURT OF AUSTRALIA

The Queen v Taufahema

Criminal law — Joint criminal enterprise — Extended common purpose — Respondent alleged to be party to a joint criminal enterprise — Respondent convicted of murder — Appeal against conviction allowed on the ground of a wrong direction on a question of law — Conviction quashed and verdict of acquittal entered.

Criminal law and procedure — Retrial — Whether the verdict of acquittal should be set aside and a new trial ordered — Whether retrial can be ordered where the classification of the joint criminal enterprise differs from that presented at the first trial — Whether difference of classification constitutes a new case not made at the first trial — Meaning of ‘new case’ — Whether retrial appropriate where case at trial adopted by prosecution for tactical reasons — Whether granting retrial on a ‘new case’ is consistent with even-handed disposition of criminal appeals.

Courts — Court of Criminal Appeal — Criminal Appeal Act 1912 (NSW), s 8(1) — Discretion of Court of Criminal Appeal to order new trial upon successful appeal against conviction — Circumstances to be taken into account.

Courts — High Court of Australia — Practice and procedure — Special leave to appeal — Application by Crown for special leave to appeal against a verdict of acquittal entered by a Court of Criminal Appeal — Circumstances to be taken into account.

Words and phrases — ‘new case’, ‘foundational crime’, ‘extended common purpose’.

Crimes Act 1900 (NSW), ss 18, 33B, 546C.

Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 8(1).

Representation

N R Cowdery QC with D M L Woodburne and J A Girdham for the applicant (instructed by Solicitor for Public Prosecutions (New South Wales))

T A Game SC with G A Bashir for the respondent (instructed by Legal Aid Commission of New South Wales)

1. Special leave to appeal granted.

2. Appeal allowed.

3. Set aside the order of the New South Wales Court of Criminal Appeal made on 8 May 2006 entering a verdict of acquittal and in its place order that there be a new trial.

1 Gleeson CJ and Callinan J. Following a trial in the Supreme Court of New South Wales before Sully J and a jury, the respondent was convicted of the murder of Senior Constable Glenn McEnallay. He was sentenced to imprisonment for 23 years, with a non-parole period of 16 years. He appealed against his conviction. The Court of Criminal Appeal (Beazley JA, Adams and Howie JJ) allowed the appeal and quashed the conviction 1. The Court of Criminal Appeal declined to order a new trial, and entered a verdict of acquittal. That aspect of the orders of the Court of Criminal Appeal is the subject of the present application. The applicant does not challenge the quashing of the conviction, but contends that there should be a new trial. Although it is submitted that the Court of Criminal Appeal erred in declining to order a new trial, the argument now advanced by the applicant in support of such an order was not put to that Court, and the applicant has made it clear that, at a new trial, the case against the respondent would differ in certain respects from the case argued at the original trial and in the Court of Criminal Appeal.

The death of Senior Constable McEnallay

2 Senior Constable McEnallay was shot and killed by Sione Penisini, who was convicted of murder following a plea of guilty. The charge against the respondent was based upon his alleged complicity in the conduct of Sione Penisini. The relevant legal principles, which are not in dispute, will be identified below. First it is necessary to state, in summary form, the circumstances said to have given rise to such complicity.

3 At about 5.30 pm on 27 March 2002, two police officers, who were off duty, saw a green Holden car travelling at excessive speed in a Sydney suburban area. They noted the registration number. They reported what they had seen to Senior Constable McEnallay, a highway patrol officer who was in the vicinity. He made radio enquiries, and learned that the vehicle had been reported stolen some months earlier. Soon afterwards, he saw the vehicle. In it there were four men. Senior Constable McEnallay called for assistance, and drove up behind the vehicle. The vehicle increased speed, and he pursued. The pursuit was brief. The Holden collided with an obstacle on the road and stopped. Sione Penisini, one of the passengers, left the vehicle with a loaded revolver in his hand, and fired a number of shots into the police car from close range, mortally wounding Senior Constable McEnallay. The four men, each armed with a revolver, ran away. They were chased by police officers who had arrived at the scene shortly after the shooting of Senior Constable McEnallay. Three of the men (including the respondent) were captured immediately. One was arrested some days later.

4 Apart from Sione Penisini, the other three men in the Holden were the respondent, who was the driver, the respondent's brother, John Taufahema, and Meli Lagi. All four men were on parole at the time of the incident. That was a matter of significance in the prosecution case. Apart from the weapons which each man carried when running away from the police, the police found, in or near the Holden, two pairs of gloves and a hockey mask. In outlining the prosecution case for the purpose of a pre-trial ruling on evidence, the prosecutor said:

‘It is the Crown case that the motive for the shooting and the motive for attempting to escape from the pursuing police … was the fact that each of them was on parole; that each of them was in possession of a firearm, in a reported stolen vehicle, which firearm was loaded and also found in the vehicle was a mask and gloves of the type that would readily be used to effect disguise for the purpose of carrying out crime of some sort.’

5 The prosecution case was that the four men all understood that, if apprehended, they would have been found to be in breach of their parole conditions, and would have been returned to prison to complete their sentences in custody. The respondent was charged with, and convicted of, unauthorised possession of a Smith and Wesson .357 revolver. That conviction is not the subject of this application. He was also charged with, and convicted of, murder.

Criminal complicity

6 The murder charge against the respondent was based on secondary liability. The principal offender was Sione Penisini. Under s 18 of the Crimes Act 1900 (NSW) (‘the Crimes Act’), Sione Penisini was guilty of murder because it was his act which caused the death of the police officer, and that act was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Since he fired at Senior Constable McEnallay from close range, there was a compelling inference that he acted with intent to kill or inflict grievous bodily harm. The principle of secondary liability of present relevance was stated by Brennan CJ, Deane, Dawson, Toohey and Gummow JJ in McAuliffe v The Queen2:

‘The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms — common purpose, common design, concert, joint criminal enterprise — are used more or less interchangeably

to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.’

7 The principle referred to in the second of the above paragraphs is sometimes described as ‘extended common purpose’ 3. In Clayton v The Queen4, the majority gave the following example:

‘If a party to a joint...