Fan v R [2024] NSWCCA 114

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fan v R [2024] NSWCCA 114 Hearing dates: 16 February 2024 Decision date: 12 July 2024 Before: Bell CJ at [1]; Button J at [2]; McNaughton J at [202] Decision: (1) Leave to appeal against conviction granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against conviction – murder – joint criminal enterprise – basic and extended relied upon by Crown – directions to jury – where Crown case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where jury directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct jury that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and joint criminal enterprise – no miscarriage of justice occasioned CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to jury to return verdicts of guilty on both counts – appeal dismissed Legislation Cited: Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Crimes Act 1900 (NSW) s 18 Cases Cited: Batak v R [2024] NSWCCA 66 Carbone v R (No 2) [2024] NSWCCA 7 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Dawson v R [2024] NSWCCA 98 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Wilio [2022] VSC 86 Royall v R (1991) 172 CLR 378; [1991] HCA 27 Russell v R [2023] NSWCCA 196 Shepherd v R (1990) 170 CLR 573; [1990] HCA 56 The Queen v Saunders & Archer at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473 Category: Principal judgment Parties: Ian Fan (Applicant) Rex (Respondent) Representation: Counsel: S Buchen SC with C McGorey (Applicant) M England (Respondent)