Ardestani v R [2024] NSWCCA 31
Ardestani v R [2024] NSWCCA 31 · Read the judgment on AustLII
Catchwords: Extended Joint Criminal Enterprise – ‘in company’
In this decision, the Court of Criminal Appeal (‘CCA’) has held that the concepts of extended joint criminal enterprise (‘EJCE’) and ‘in company’ are distinct legal concepts, but being ‘in company’ is less rigorous, and there is no prohibition on the prosecution relying on both of them at the same time.
A jury found the applicant guilty of specially aggravated break, enter, and committing serious indictable offence, being assault occasioning actual bodily harm (‘AOABH’).
Against a background of an applicant with gambling debts and a victim who had some cash at home, the applicant and a co-offender planned to break into the home of the victim whilst armed with an imitation pistol to assault him and take his money. The two of them and a further co-offender duly broke into the victim’s house, waking him with violence and a pistol to the side of the face, demanding money. The co-accused thereafter repeatedly punched the victim in the face and threw him around the room. While that violence was happening, the applicant and the third offender moved towards the other end of the granny flat where the offence was happening, in an effort to ensure that the victim’s flatmate would not intervene. The applicant had the imitation pistol down his pants. The victim having sustained significant facial injuries, the three men left, taking the victim’s wallet with them. The victim and the flatmate had recognised the applicant at the time of the offence and duly identified him to the police.
The applicant appealed his convictions on grounds including that the verdict was unreasonable or unsupported by the evidence. That ground was, in part, particularised with an assertion that the legal ideas of EJCE and being ‘in company’ are disjunctive. Or, put another way, that at least in this statutory context, EJCE cannot be relied upon in order to prove, in whole or in part, an offence said to have been committed in company. As the CCA (Button J, Harrison CJ at CL and Weinstein J agreeing) observed, the issue is of fundamental importance, because there is no offence of break and enter and commit simple common assault, because that offence isn’t a serious indictable offence (carrying a maximum of only two years, rather than the five required to amount to a serious indictable offence).
Readers will recall that ‘simple’ joint criminal enterprise involves rendering each offender guilty for the acts carried out by others with whom they have made an agreement to commit the offence. On the other hand, EJJE is based on the one offender’s foresight of the possibility (rather than an intention, or an agreement) that a co-offender might commit an offence not explicitly within the agreement. EJCE is the kind of concept which is easily taught in the abstract, but becomes wildly complicated the instant it makes contact with real world factual scenarios.
Here, the Court held that the concepts of EJCE and ‘in company’ can stand separately (at [64]). EJCE has been a feature of NSW criminal law for more than 40 years, and ‘in company’ has been a feature since at least 1883. In the last 40 years there must have been thousands of prosecutions combining the two concepts, but counsel for the applicant could point to no authority for the prohibition for which he contended. This, it was said, strongly suggests that no such prohibition exists (at [67]). The earlier decision of Markou v R (2012) 221 A Crim R 48; [2012] NSWCCA 64 was also said to assist the Crown in this context. In that decision the CCA had held that only the assault needed to have been committed in company, not its consequential actual bodily harm as well (at [66]).
Button J expressed himself to be unconvinced that the law of being ‘in company’ requires an offender to have been directed towards the completion of each and every element of the offence in question. Rather, so long as the offender was acting in company for the basal elements of the alleged offence, that is sufficient. That is, ‘in company’ is not as rigorous or as precise as the law for doctrines of complicity (at [69]).
In this case, the applicant was proven to have agreed to an assault. He also agreed to at least a breaking, and he personally entered. He undoubtedly committed the offence of common assault whilst in company. He similarly carried out the acts of breaking and entering in company. He was present when the actual bodily harm was inflicted, and he had foreseen it as possible. Against that background, he was guilty of break and enter and AOABH in company (at [70]).