Blundell v R [2019] NSWCCA 3

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Blundell v R [2019] NSWCCA 3 Hearing dates: 26 September 2018 Decision date: 01 February 2019 Before: Payne JA at [1] Johnson J at [2] N Adams J at [3] Decision: (1) To the extent that leave is required under Rule 4 of the Criminal Appeal Rules 1952 (NSW), such leave is granted. (2) The appeal is allowed. (3) A new trial is ordered. (4) The matter is listed for mention in the Supreme Court Arraignments List on 8 February 2019 or such other date as directed by the Criminal List Judge. Catchwords: CRIMINAL LAW – appeal against conviction – accessorial liability – Crimes Act 1900 (NSW) s 346 – where appellant convicted of accessory before the fact to murder – where appellant not present at murder scene – where appellant tried based on encouragement and assistance – where appellant sent threatening text messages to deceased – where evidence that appellant intended to encourage principal offender to cause really serious bodily injury to deceased – where appellant messaged principal offender "If you see [deceased] jump on his head", "jus chop index n look" – where appellant's defence was that deceased's death was the result of principal offender's spontaneous acts – where no alternate case relying on either joint criminal enterprise or extended joint criminal enterprise relied upon by the Crown – where trial judge used terms "enterprise" and "design" in context of summarising defence counsel's closing address – whether trial judge erred in directing jury it was not necessary to prove actual encouragement of the principal offender – whether recklessness suffices – whether assisting and encouraging is a continuous act that persists until the substantive offence is committed – whether trial judge conflated concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability