KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
IL APPELLANT
AND
THE QUEEN RESPONDENT
IL v The Queen
[2017] HCA 27
9 August 2017
S270/2016
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 8 April 2016 and in their place order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of New South Wales
Representation
B J Rigg SC with R C Pontello for the appellant (instructed by Benjamin & Leonardo Criminal Defence Lawyers)
S C Dowling SC with H R Roberts for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
IL v The Queen
Criminal law – Murder and manslaughter – Where appellant and deceased engaged in joint criminal enterprise – Where act causing death committed in course of joint criminal enterprise – Where Crown could not exclude possibility that deceased had committed act causing death – Where appellant charged with murder or manslaughter of deceased – Whether s 18(1) of Crimes Act1900 (NSW) encompasses self-killing.
Criminal law – Joint criminal enterprise liability – Whether acts or liability for actus reus of crimes committed in course of joint criminal enterprise attributed to co-participant – Whether act of deceased causing death attributable to appellant.
Words and phrases – "attribution of acts", "complicity", "constructive murder", "derivative liability", "felo de se", "felony murder", "joint criminal enterprise liability", "primary liability", "rules of attribution", "self-murder", "suicide".
The background, facts, and legislative provisions are set out in the judgment of Bell and Nettle JJ. We agree that the appeal should be allowed on the first ground of appeal. We also agree with the orders that their Honours propose. However, we reach the conclusion that the appeal should be allowed on the first ground for different reasons. The offences of murder and manslaughter in s 18 of the Crimes Act 1900 (NSW) require that one person kill another person. Section 18 is not engaged if a person kills himself or herself intentionally. Nor is it engaged if the person kills himself or herself in the course of committing a crime punishable by imprisonment for life or for 25 years or by an unlawful and dangerous act. This conclusion is sufficient to allow the appeal on the first ground. It is unnecessary to consider the second ground of appeal or the notice of contention, which concerned whether the killing was "malicious" within s 18(2)(a).
Since we conclude that murder in s 18 does not apply to circumstances involving self-killing, it is not strictly necessary for us to consider the operation of the rules of attribution when co-offenders act in concert. It suffices to observe that we…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
IL v The Queen [2017] HCA 27
Case
[2017] HCA 27
Decision Date
CaseChat Overview and Summary
The appellant was tried in the Supreme Court of New South Wales on charges including manufacturing a large commercial quantity of methylamphetamine, murder, and manslaughter. The Crown alleged the appellant participated in a joint criminal enterprise with the deceased to manufacture the drug. Regarding the murder and manslaughter charges, the Crown contended that even if the deceased's death was accidental and self-inflicted, the appellant was guilty because the act causing death occurred during the course of the joint criminal enterprise, an offence punishable by life imprisonment. The trial judge directed the jury to acquit the appellant of these counts, a decision subsequently overturned by the Court of Criminal Appeal, which ordered a new trial. The High Court of Australia was asked to determine whether the trial judge's direction to acquit was correct.
The central legal issues before the High Court were whether section 18(1) of the Crimes Act 1900 (NSW) encompasses self-killing, and whether the principles of joint criminal enterprise liability permit the attribution of the deceased's act causing their own death to the appellant. Specifically, the Court had to consider if the liability of a co-participant in a joint criminal enterprise extends to acts performed by the deceased that result in their own death, particularly when the death occurs in the course of that enterprise.
The High Court, in allowing the appeal, clarified the principles of joint criminal enterprise liability as established in *Osland*. The majority held that joint criminal liability involves the attribution of acts, meaning one person can be held responsible for the actual acts of another. However, this attribution of acts does not extend to attributing liability for the whole or part of a crime, nor does it encompass the attribution of liability for the deceased's self-inflicted act. The Court concluded that the trial judge's direction to acquit the appellant of the murder and manslaughter charges was correct, as the concept of joint criminal enterprise liability does not extend to holding a participant responsible for the self-killing of a co-participant.
Consequently, the High Court allowed the appeal, set aside the orders of the Court of Criminal Appeal, and reinstated the trial judge's direction to dismiss the murder and manslaughter counts.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 8 April 2016 and in their place order that the appeal to that Court be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND EDELMAN JJ
BELL AND NETTLE JJ
In summary, the decision of the majority of this Court in Osland resolved much confusion that had existed in the context of the primary liability of an accused person based upon the attribution of acts done in the course of a joint criminal enterprise. That decision was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime.Conclusion The appeal should be allowed and orders made as proposed by Bell and Nettle JJ. The appellant was tried in the Supreme Court of New South Wales on one count of manufacturing a large commercial quantity of a prohibited drug, namely 6.7 kilograms of methylamphetamine (Count 1); one count of murder (Count 2a); in the alternative, one count of unlawfully causing the death of Zhi Min Lan ("the deceased") (Count 2b); and four offences relating to the unlawful possession of firearms. The Crown alleged that the appellant committed the offence charged by Count 1 by participating with the deceased in a joint criminal enterprise to manufacture the methylamphetamine. In relation to Counts 2a and 2b, the Crown alleged that, although the evidence could not exclude the possibility that the deceased was killed accidently as a result of his own act, the appellant was guilty of his murder, or alternatively manslaughter, pursuant to s 18(1) of the Crimes Act 1900 (NSW) by reason that the act which caused the deceased's death was committed in the course of the joint criminal enterprise to manufacture the methylamphetamine, an offence punishable by imprisonment for life, and was therefore an act of the appellant as a participant in that enterprise. At the conclusion of the Crown case, the trial judge (Hamill J) directed the jury to acquit the appellant of Counts 2a and 2b. On appeal by the Crown pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Court of Criminal Appeal (Simpson JA, R A Hulme and Bellew JJ agreeing) held that the directed verdicts of acquittal should be quashed and that there should be a new trial on those counts. The question for decision in this appeal is whether the trial judge was correct to direct the jury to acquit the appellant of the counts of murder and manslaughter charged by Counts 2a and 2b. For the reasons which follow, the question should be answered affirmatively and the appeal should be allowed. Relevant statutory provisions To the extent that is relevant, ss 24 and 33 of the Drug Misuse and Trafficking Act 1985 (NSW) provide as follows: "24 Manufacture and production of prohibited drugs...(2)A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence....33Penalties for offences involving commercial quantities or cultivation for a commercial purpose(1) This section applies to the following offences:(a) an offence under section 23(1A) or (2), 24(2) or 25(2) or (2A), ...(2) The penalty for an offence is:(a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, ... (3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is:(a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both. (4)In this section:large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1."
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND EDELMAN JJ,
BELL AND NETTLE JJ