Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Proud v R [2016] NSWCCA 41 Hearing dates: 11 March 2016 Decision date: 11 March 2016 Before: Basten JA; Johnson J ; R A Hulme J Decision: (1) Grant the applicant leave to amend her grounds of appeal to raise a challenge to the directions with respect to the mental element of extended joint criminal enterprise. (2) Refuse application to vacate the hearing date. Catchwords: PRACTICE AND PROCEDURE - criminal appeal – court bound by authority to dismiss ground of appeal – authority to be challenged in proceedings pending in High Court – special leave application referred to Full Court for hearing – application to amend grounds to raise issue – application to vacate hearing of appeal pending determination in High Court Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Cases Cited: Aston v The Queen S157/1994 [1995] HCATrans 278 Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44 Clayton v The Queen [2006] HCA 58; 81 ALJR 439 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Grierson v The King (1938) 60 CLR 431 McAuliffe v The Queen (1995) 183 CLR 108 R v Jogee [2016] UKSC 8 R v Presley (2015) 122 SASR 476; [2015] SASCFC 53 Category: Procedural and other rulings Parties: Michelle Sharon Proud (Applicant) Regina (Respondent) Representation: Counsel: Ms C Loukas SC (Applicant) Ms M Cinque SC (Respondent) Solicitors: Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/410458 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979 Date of Decision: 28 July 2014 Before: Harrison J File Number(s): 2011/410458 Judgment 1. JUDGMENT of COURT delivered by BASTEN JA: On 11 April 2014 the applicant, together with a co-accused, was found guilty by a jury of the murder on 27 October 2011 of Katherine Foreman. Ms Foreman died when the bedroom in which she was sleeping was set alight. On 11 April 2014 a jury returned a verdict, finding the applicant guilty of murder. She was sentenced on 28 July 2014 to imprisonment for 20 years, with a non-parole period of 14 years. 2. On 2 October 2015, some 18 months after the verdict, she sought leave to appeal from that conviction; the application and, if leave be granted, the appeal were listed for concurrent hearing today. The applicant gave notice last week that she sought to vacate the hearing of the appeal, on the basis that this Court was bound on existing authority to reject proposed ground 4, but that a similar issue was to be raised in the High Court on an application for special leave to appeal in South Australian cases, Smith v The Queen [1] and the related matter of Presley. [2] On 12 February 2016 that application was referred to a Full Court and has been listed for hearing in the May sittings. 3. The grounds, as filed on 2 October 2015, contained no express challenge to the directions given with respect to "extended joint criminal enterprise", although ground 2 referred to error in directing the jury "on the element of participation in the joint criminal enterprise". On 3 March 2016, the applicant filed a further submission with respect to an additional ground 4, which alleged error in directing the jury "on extended joint criminal enterprise and the requisite mental state." 4. The submissions stated: [3] "6. It is accepted that the … directions conformed to Australian law on … joint criminal enterprise and extended joint criminal enterprise as it then stood and currently stands: McAuliffe v The Queen; [4] Gillard v The Queen; [5] Clayton v The Queen. [6] … 9. Additional Ground 4 further asserts that the correctness of his Honour's directions as to the mental state required for extended criminal enterprise should be reconsidered in light of the recent decision of the Supreme Court of the United Kingdom in R v Jogee (Appellant). [7] This would necessarily involve reconsideration of the principle from McAuliffe outlined above." 1. For present purposes it is sufficient to note one aspect of the applicant's offending and two aspects of the trial. 2. In relation to the offending, there was evidence connecting the applicant to the plans carried out by two other persons to cause harm to the victim, but the applicant was not present, nor in the vicinity, when the attack occurred. 3. In relation to the trial, the matter was left to the jury both on the basis that the applicant was a participant in a joint criminal enterprise to cause physical harm to the deceased, with the shared intention that the deceased would be killed or grievously injured. That is a standard form of joint criminal enterprise. The appeal raises a ground as to whether a verdict entered on that basis would be unreasonable and unsupported by the evidence, but the availability of that basis of murder is not challenged. 4. The matter was also left to the jury on the basis of an extended joint criminal enterprise, which allowed for a verdict of guilty of murder in circumstances where, although it was not the intention to cause death or grievous injury to the intended victim, the applicant foresaw the possibility that that might occur. The ground of appeal as originally formulated included a challenge to the adequacy of the directions given in this regard. However, what is now proposed is that a ground be added which challenges the established principles as to mere contemplation of conduct causing death or grievous bodily harm as a sufficient basis for a conviction of murder. 5. It is this additional ground which gives rise to the request for the appeal to be adjourned, partly on the basis that such a ground has been raised with respect to an appeal in the matter of Smith v The Queen, listed for hearing in the High Court in May. Further, counsel for the applicant understand that it is proposed, on behalf of Mr Smith, to invite the High Court to reconsider the present law regarding the state of mind sufficient for a conviction of murder based on extended joint criminal enterprise, relying on the reconsideration of those principles by the United Kingdom Supreme Court in R v Jogee. 6. On the assumption that the hearing in the High Court occurs by the end of the May sittings (16 May 2016) it may be expected that a judgment will be delivered in the second half of the year. To delay the appeal in this matter until after the judgment is delivered renders it probable that the current appeal would not be relisted until late 2016 or early 2017. There are two issues to be addressed in determining whether that element of delay is warranted. The first is the possibility that the applicant will succeed on other grounds, that is by application of the law as it presently stands. It is accepted by senior counsel for the applicant that this would be likely to result in a retrial: that possibility itself renders undesirable the foreshadowed delay, consequential on vacating the current hearing date. 7. The other issue concerns the likelihood that the appeal in the matter of Smith will affect the outcome in the present case. On the one hand, it must be accepted that, if the High Court were to revisit the principles governing extended joint criminal enterprises and accept the approach now adopted by the UK Supreme Court, the directions to the jury with respect to that aspect of the prosecution case against the applicant would probably be found to be erroneous. However, this outcome is by no means certain and may not be probable. That is for three reasons. 8. First, the application for special leave to appeal has not been determined, but has been referred to the Full Court. Special leave may yet be refused in so far as Mr Smith seeks to reopen the principles governing extended joint criminal enterprise, on the basis that his case does not provide an appropriate vehicle for such a reconsideration. That must remain a real possibility, given the facts of the case. Mr Smith was one of at least four and possibly six men who attacked the victim. One man, Betts, inflicted a fatal stab wound. Mr Smith, on the prosecution case, was a party to the assault and hit the victim with a shovel and a bottle. The relevant ground as identified by the South Australian Court of Criminal Appeal, in the case there known as R v Presley, [8] was in the following terms: "Additionally, a submission was advanced which sought to echo specific grounds advanced by Miller. Those grounds were that the judge erred in leaving extended joint criminal enterprise as a basis for liability for murder in the circumstances of the case, that the judge failed to adequately direct the jury as to the distinction between murder by extended joint enterprise and manslaughter by unlawful and dangerous act and, finally, that the judge failed to direct the jury that Smith could be found guilty of manslaughter by excessive self-defence, notwithstanding that the defence of self-defence may be rejected in respect of the case against Betts." 1. In dealing with the complaint of the co-appellant that the trial judge had left extended joint enterprise to the jury, the Court noted the argument that it was "open to the jury to conclude that Miller was part of a group who had at least agreed to cause grievous bodily harm to others." [9] The submissions in the response were identified in the following passage: [10] "Counsel for Miller submitted that it was redundant to leave extended joint enterprise murder because there was no possibility on the evidence that the jury would not be satisfied beyond reasonable doubt that Miller was guilty of joint enterprise murder but would be guilty of extended enterprise murder and, therefore, leaving both produced unnecessary complexity and potential confusion. However, in our view, it was open for the jury not to be satisfied beyond reasonable doubt that the agreement to which Miller and Betts were parties extended to inflicting grievous bodily harm but to be satisfied beyond reasonable doubt that Miller contemplated the possibility that another would act with this intent." 1. The reason for referring to these passages is a limited one, namely to identify a possibility that Smith's case might not provide an acceptable vehicle for reconsidering the principles established in cases such as McAuliffe. 2. The best case in favour of an adjournment would be circumstances in which an applicant lacked reasonable prospects of success on an appeal other than through the High Court revisiting the principles stated in McAuliffe and other authorities, and where, in another case already before the High Court, that was likely to occur. Assuming both those circumstances were made good, the next question is whether the applicant would be prejudiced by the Court proceeding with her appeal on the law as it presently stands. 3. It may be accepted that the applicant, having raised the issue, should have the benefit of any reconsideration conducted by the High Court and applicable to her circumstances. It is unlikely that Smith's case will be determined before she has an opportunity to seek special leave to appeal, if she were otherwise unsuccessful on her appeal. She could then seek special leave so as to obtain the benefit of any result favourable to her in the judgment in Smith, or to agitate the arguments if not resolved. Although success may not follow as of course, the judgment not on any view being a nullity, [11] such an application would have reasonable prospects of success. Alternatively, if that course were not followed, or were to be unsuccessful, and although precluded from a second appeal, [12] she could proceed under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). 4. The applicant should in any event have leave to amend her grounds to raise a challenge to the directions with respect to the mental element of extended joint criminal enterprise. Otherwise, the application to vacate the hearing date should be refused. ********** Endnotes 1. Smith, Wayne Edward v The Queen (A22/2015). 2. Presley v Director of Public Prosecutions (SA) (A17/2015). 3. Applicant's written submissions, 3 March 2016, pars 6 and 9. 4. (1995) 183 CLR 108. 5. (2003) 219 CLR 1; [2003] HCA 64. 6. [2006] HCA 58; 81 ALJR 439. 7. [2016] UKSC 8 (18 February 2016) (Lord Hughes and Lord Toulson, with Lord Neuberger, Lady Hale and Lord Thomas agreeing). 8. (2015) 122 SASR 476; [2015] SASCFC 53 at [129]. 9. Presley at [113]. 10. Presley at [114]. 11. Cf Aston v The Queen S157/1994 [1995] HCATrans 278, following Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44. 12. See Grierson v The King (1938) 60 CLR 431. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2016