IL v The Queen
[2017] HCATrans 65
[2017] HCATrans 065
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S270 of 2016
B e t w e e n -
IL
Appellant
and
THE QUEEN
Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 APRIL 2017, AT 10.16 AM
Copyright in the High Court of Australia
MS B.J. RIGG, SC: May it please the Court, I appear for the appellant with my learned friend, MR R.C. PONTELLO. (instructed by Benjamin & Leonardo Criminal Defence Lawyers)
MS S.C. DOWLING, SC: May it please the Court, Dowling for the respondent, I appear with MS H.R. ROBERTS. (instructed by Solicitor for Public Prosecutions (NSW))
KIEFEL CJ: Yes, Ms Rigg.
MS RIGG: Your Honours have the outline of the appellant’s argument – should I proceed?
KIEFEL CJ: Yes.
MS RIGG: Thank you. Your Honours, there are essentially two matters raised in this appeal, one of complicity and one in relation to the question of malice in a constructive murder charge. In relation to the question of complicity, the appellant’s argument is as follows. Firstly, that its complicity in the homicide which is required ‑ and this same argument applies to the manslaughter charge as well which is the alternative to the charge of murder. Certainly, so far as murder is concerned, it is the appellant’s submission that insofar as section 18 of the Crimes Act refers to the act of the accused, that should, as far as possible, be treated equivalently for all forms of murder and, in that respect, the common law of complicity should be examined to see whether it is capable of application to constructive murder as well as other kinds of murder.
KIEFEL CJ: In the context of section 18?
MS RIGG: Yes, your Honour. It is submitted that liability should depend on responsibility on the appellant’s behalf for physical and mental elements as they arise and that the section should be interpreted so far as possible to preserve the presumption of innocence; that is, the presumption of innocence in murder, despite the fact that she is guilty or may be guilty of the foundational crime, and the requirement for intention in relation to grave, serious crimes so far as that is capable of being viewed as part of the relevant legislation. So this is really a submission about the legality principle that, if there is a choice, the legislation should be read so as to preserve those fundamental principles of the common law.
There have in New South Wales and in Victoria for decades been cases which, without officially or explicitly explaining why this is so, applied principles of complicity in relation to the homicidal act, not just the foundational crime. So this is the line of authority which in New South Wales includes the 1978 decision of Johns and the later decision of Sharah.
There has been significant querying of Sharah insofar as it applied this element that was said to be, or has been said to be, additional. Where a foundational crime of robbery with wounding, for example, has been committed but the death is caused by the discharge of a gun, Sharah held that the discharge of a gun should be taken into account or needs to be proved by the Crown as a contingency had in mind by the secondary participant.
KIEFEL CJ: Could you give the citation for Sharah for the record?
MS RIGG: Yes, your Honour; I am sorry. It is (1992) 30 NSWLR 292. The appellant’s primary submissions at paragraphs 66 to 70 outline some of the other cases where that requirement has been followed and applied. Ultimately, it is the appellant’s submission that those cases intermingle, as many of the intentional murder cases intermingle, concepts of the result of the crime and the act of the crime. So the specific requirement in Sharah was for the discharge of a gun but there are others where death is referred to.
Ultimately, the appellant’s submission is that where acts like a stabbing or a discharge of a gun are concerned, they so closely approximate the result of death that it has not been important to fine‑tune and work out whether it is the act or the result that is within the foresight of the secondary participant. Someone who has contemplated, during the course of a robbery, that a loaded gun that is to be held to the victim may possibly be discharged has, in our respectful submission – for all intents and purposes – contemplated the possibility of a death.
For that reason it is not surprising that the cases intermingle the terms. But this case, where the act causing death is the lighting of a ring burner, raises quite starkly the need to give real consideration to whether, when foresight is concerned, it is foresight of the act causing death or foresight of the result of death.
There has been querying of the line of authority involving Sharah and one of the decisions which is referred to in Justice Hamill’s primary decision in these proceedings and by her Honour Justice Simpson in the Court of Criminal Appeal is a decision of Batcheldor v The Queen [2014] NSWCCA 252. That is referred to in paragraph 15 of the appellant’s submissions - that is where it is referred to in the primary submissions. There are some further references to it in the submissions in reply.
In these proceedings her Honour Justice Simpson queried that additional requirement or what was said to be an additional requirement of Sharah and certainly the respondent’s submissions, at times, seemed to query the requirement enunciated in Sharah of the discharge of the gun.
The appellant’s submission, ultimately, is that far from Sharah adding too much, arguably it does not add enough and it really needs defining now or consideration as to what the rationale for that line of authority is and how, in accordance with current concepts of complicity it is best explained.
So the appellant’s submission is that it is complicity in the homicide which is required, although the Sharah line will need to be explained and, in our submission, refined, but fundamentally the submission is that the focus in complicity should be on the principal wrong, and that was recognised in Johns in the decision of this Court in 1978 and this is referred to at paragraph 30 of the appellant’s submissions, that reference at page 118 of Johns.
KIEFEL CJ: Which is 143 CLR 108.
MS RIGG: Yes, your Honour, thank you, I am sorry.
BELL J: You are taking us to a passage in the judgment of Justice Stephen in Johns.
MS RIGG: Yes, your Honour.
BELL J: What particular part of page 118 do you have in mind?
MS RIGG: Your Honour, I had in mind a passage which reiterated that it is the crime of murder which is the focus. If I might, please, just turn to my original submissions because I think I had quoted that, but perhaps it is the incorrect page number - if your Honour would please excuse me for a moment. This is paragraph 82, I am sorry, of the appellant’s submissions, not paragraph 30. The proposition is that the criminal responsibility under discussion was not that relating to the original crime, the prime object of the criminal venture, but another crime committed during it.
KIEFEL CJ: Well, the starting point is the scope of the common purpose, is it not? The starting point for the determination of criminal liability is to determine the scope of the common purpose and then to determine – and from that to determine whether there is complicity for the other secondary crime?
MS RIGG: My submission is that where there is an incidental or additional crime that is a subject of the charge, it has to be borne in mind that that is the focus of the inquiry, the responsibility in relation to that crime, although, where a doctrine of joint criminal enterprise or common purpose is invoked that does turn back to the original or foundational crime and whether within the context of that crime, the additional crime was seen as a possible incident of it.
But, in my submission, to focus unduly on the foundational crime, which is ultimately one of the important submissions made in relation to the error alleged here, can cause a disconnection between the incidental crime – the culpability in relation to the incidental crime.
BELL J: When you speak of culpability of the incidental crime, you have just directed us to paragraph 82 of your written submissions where you speak of the incidental crime being contemplated, if it be accepted that the Crown could not exclude that the deceased let the ring burner, putting to one side that lighting the ring burner may have been in furtherance of the manufacture of a large, commercial quantity of methylamphetamine, what crime was committed by the deceased in lighting the ring burner apart from his participation in the manufacture of methylamphetamine?
MS RIGG: Arguably none – and that, ultimately, feeds into the basis upon which Justice Hamill directed the verdict because his Honour looked at it from the perspective of derivative liability. There was, in his Honour’s view, no crime committed by the deceased – if that was the situation – which is why IL was not responsible if it was looked at from a derivative perspective.
BELL J: Well now, the Court of Criminal Appeal considered that Justice Hamill erred because in the way Justice Hamill analysed it the act of lighting the ring burner was, arguably, that of the deceased.
MS RIGG: Yes.
BELL J: And the liability of the appellant was as a principal in the second degree and, accordingly, derivative.
MS RIGG: Yes.
BELL J: And the Court of Criminal Appeal pointed out that the analysis was that the appellant was a party to a joint criminal enterprise, and so relying on Osland, the Court of Criminal Appeal reasoned that the act of the deceased was her act.
MS RIGG: Yes.
BELL J: At paragraph 82 of your written – at least in your opening sentence – you are drawing a distinction between liability for the act and consideration of whether the proper focus is directed to the crime.
MS RIGG: Yes, I have.
BELL J: So that on that view, the deceased lighting the ring burner committed no crime other than his participation in the manufacture of methylamphetamine. That is one strand of your argument, is it?
MS RIGG: No. Because of the way in which the decision – the basis of the decision of the Court of Criminal Appeal leaves this appeal, now, pursued on the basis of consideration of more general principles of complicity and then the malice point. The issue that was decided by Justice Hamill has not been impugned insofar as his Honour made a finding about the deceased not being culpable in relation to his own death. In my submission, it does not need to be reconsidered in any way for these grounds to be argued.
In essence, the appellant has put that issue to the side to argue principles of more general application which is where the accused herself has not – the Crown could not prove that the accused herself has performed the acts causing death. In essence, it is treated – the submissions treat it as though it is a crime, an incidental crime that has been committed, whether it is correctly so described or not.
NETTLE J: Surely, it is fundamental to establish whether or not liability, by reason of being a participant in a common enterprise, goes to anything other than crimes.
MS RIGG: Yes.
NETTLE J: If there is no crime and if the doctrine is confined to crime then that is the end of it, is it not?
MS RIGG: That is right. But, the appellant’s argument is not needing to argue that point because our argument is that it should be confined to crime for broader reasons and that, ultimately, is the result of going down that path, given that Justice Hamill’s decision has not been impugned. But, the appellant does seek to address the issue more broadly than that and not limit the application of these principles to that idiosyncratic situation of a deceased person who is responsible in relation to his own death.
KIEFEL CJ: What does section 18(1) require you to address and what does the statutory provision require? Is it not directed to the commission of a crime?
MS RIGG: Yes, it is.
KIEFEL CJ: So, should that not be governing the situation?
MS RIGG: Section 18 is directed towards an act of the accused which has caused the death of the deceased and so, in that regard, the common law of complicity in relation to whether an act of the accused has caused the death of the deceased is the issue under consideration.
GAGELER J: So, we are not concerned with the provision that says “or some accomplice with him or her”?
MS RIGG: Yes, in my submission, all that that is is referable to a circumstance in which the act causing death needs to have been committed. So, it does not, in any way, in our submission, alter the obligation to look for normal principles of complicity in relation to IL’s responsibility for the act causing death. What the reference to the act of the accused or an accomplice with him or her does is set out by way of a requisite circumstance the fourth type of murder. In my submission, it does not render principles of complicity inapplicable in relation to responsibility for the act causing death.
KIEFEL CJ: Which cases have construed section 18(1) in light of the common law in this – have any of them actually dealt with the construction of it in this circumstance or a similar circumstance?
MS RIGG: One of the decisions both parties intend to take the Court to are the Mraz proceedings where a woman who was raped was killed and in the course of the decision – in the New South Wales Court of Criminal Appeal, one of the Justices, Justice Herron, dealt with the common law of constructive murder but our submission is that when we turn to the point about malice especially is that section 18 is, in fact, a statutory reformulation of the law of malice and that was – the proceedings in Lavender address that point because even though they were manslaughter proceedings, it was central to the consideration by this Court in that case of what the common law of murder was because manslaughter was the residual side of it.
So, Lavender dealt extensively with the common law of murder and manslaughter and their proceedings, in particular, on the issue of malice we will take the Court to. But, in relation to constructive murder, there really has not been any examination, in my submission, of what the basis of the complicity is. The Court at first instance in Johns dealt with constructive murder. So, this is Johns ‑ ‑ ‑
KIEFEL CJ: At page 118, Justice Stephen referring to complicity and the other crime.
MS RIGG: Yes, that is right, your Honour. I am sorry, back to the decision in this Court, your Honour the Chief Justice asked me about earlier, it is right up at the top of the page, 118, the reference is contained that was referred to in my submissions. So that is that the criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture and going on to ‑ ‑ ‑
KIEFEL CJ: It is the other crime. The point is it is the crime, not the act.
MS RIGG: Yes, that is true. That is true. And there are references throughout to the incidental crime. Certainly, the appellant’s submissions set out those references. These are otherwise quoted in paragraph 82; the other references to an “incidental crime” during the course of the foundational crime. And this is where the appellant asserts that the court below fell into error, because one passage from this Court’s decision in Johns was quoted, where reference to “acts” was described, and those many passages where references to crimes were referred to were not set out. I will turn then, if I may, to that aspect of the alleged problem in the court’s reasoning shortly.
Just to go back to some of the concerns or questions that have been asked, the error alleged in the Court of Criminal Appeal’s judgment on the appellant’s behalf relates to not providing sufficient connection between her and the offending and also on the issue of malice. The court did not give a decision in relation to the issue of whether a person can be responsible in relation to his own death, but the effect, in my submission, of consideration of the appellant’s grounds goes back to that decision and shows why the court’s decision is wrong.
There is nothing in the court’s decision that addresses that issue, but fundamentally the appellant does argue that the court was looking at the wrong consideration in focusing on acts in count 1 rather than on incidental crime. I think the question then is subsidiary ‑ whether there was a crime or not, because the appellant would be successful if the court was in error in looking at acts rather than crime. I do not know whether I have addressed adequately the concerns about that issue of ‑ ‑ ‑
KIEFEL CJ: You develop your argument in the way in which you have just explained.
MS RIGG: Thank you, your Honour. Your Honours, in relation to the content of the issues of complicity, the appellant’s submission is that the development over the last 40 years means that there is no warrant now for starting with historical concepts of joint ‑ when people set out to commit a crime, whether someone is responsible for unusual consequences and not improbable consequences and so on. The question is to turn to the current concepts of complicity and to see whether they are capable of application to these two homicide charges and what the answer is if they are not.
In relation to manslaughter, in my submission, there is nothing contentious as to whether orthodox principles of complicity are applicable. Certainly, accessorial liability is capable of application to manslaughter. Liability by agreement is applicable to manslaughter. The appellant submits that complicity by foresight is potentially very problematic in relation to manslaughter, but that it is sometimes available and it is simply the case that care needs to be taken before such a basis of complicity would be required. Certainly, this is not a case where that type of concept would be applied.
So the issue is how she is complicit in the homicide charges and, as I said earlier, the commission of count 1 is a requisite circumstance for constructive murder. But the appellant’s submission is that it is not something that confines the perspective from which complicity for either homicide needs to be addressed.
So the three realistic complicity options, in our submission, then are participating in a joint criminal enterprise to commit the crime, and that is a joint enterprise relevant to murder agreement; two, an intentional assistance or encouragement relevant to murder, that is, an assistance basis; and three, foresight of the crime of murder as incidental to other, unlawful activity which the Crown has disavowed from the start.
The Crown and the Court of Criminal Appeal have, in slightly different ways, entirely based their perspective of analysis of complicity in the commission of count 1. And so her Honour Justice Simpson addressed joint criminal enterprise – and this is at appeal book 89 – quoted from Johns, including that first reference to responsibility for acts, although there is the reference then in paragraph 21 in the quote from Justices Mason, Murphy and Wilson in Johns to “complicity for the crime”.
Her Honour then came back to say that complicity for foresight of incidental crime, which was described as “extended joint criminal enterprise” was of no application or not applying in this case, and that is at page 90, paragraphs 22 to 24 of the judgment.
Her Honour there quoted from parts of McAuliffe v The Queen and Gillard v The Queen (2003) 219 CLR 1. But, critically, in paragraph 24, her Honour, when looking at the second paragraph of McAuliffe, distanced the judgment from it, saying that is “extended joint criminal enterprise” whereas it is, in fact, the fundamental nature of the test that is set out in Johns where there is another crime falling within the scope of the common purpose.
And the appellant’s issue is not so much with terminology, that it is called extended common purpose. There is a long history of calling foresight on either a McAuliffe or Johns basis “extended common purpose” or “extended joint criminal enterprise”. But the relevant proposition is that, even though her Honour has brought in those concepts of contemplation and foresight set out in Johns, then indicated that that is nothing to do with this case insofar as incidental crimes are concerned.
Her Honour indicated – and this is at appeal book, firstly 91, but then also at paragraphs 25, 38, 61 and 40 – confirmed a number of times that here there was no relevant crime beyond drug manufacture. So, the liability arose because of the joint criminal enterprise to count 1 and only in connection with that joint criminal enterprise was liability fixed in IL for the active lighting the ring burner and its consequences, and that is set out at paragraphs 26, 60 and 63.
The same approach was taken in relation to manslaughter as well, and this is set out initially at paragraph 58 of the judgment, but then concluding at paragraph 70. There was nothing more required for manslaughter here, according to the judgment of the court below, than that the burner was lit by one of the two and that it was within the scope of the enterprise because within the contemplation of IL in her commission of count 1.
So the words used by Justice Hamill were “acting together in lighting the burner” and the court below did not explain what it was about that phrase that was said to be problematic. But what was made clear that it was too - whatever it was, was too demanding because all that was required was that in IL’s commission of count 1 she contemplated the possibility that a ring burner may be lit.
BELL J: That involved the Court of Criminal Appeal accepting the authority of Sharah that for the purposes of the fourth category of murder in section 18 of the Crimes Act there is a requirement for foresight. The Court of Criminal Appeal took the view that the requirement was of foresight of the act causing death, as distinct from foresight of the crime.
MS RIGG: Yes, that certainly seems to be so. That seems to be why that phraseology is used. It is not clear then though why Johns is invoked at all because her Honour queried Sharah but then seems, in referring to this need for a contemplation only of the lighting the ring burner, to be basing that on an obligation to apply Sharah. But the Johns references, in my submission, tie into that as well because they actually start pointing in the direction of the basis of Sharah which ultimately, in our submission, is in one respect foresight of an incidental crime.
GORDON J: If I could take you back to paragraph 63, which is where you took us to and where Justice Simpson seeks, as I read it, to identify what her Honour sees as the correct question, I assume that your submission is that what appears at the foot of page 102 over to the top of 103 of the appeal book is not the correct question, that is, her Honour has posed the incorrect question, on the way you put it?
MS RIGG: Yes, your Honour, that is correct.
GORDON J: How would you put the question? What should her Honour have asked instead of what is at the foot of page 102 up to the top of 103?
MS RIGG: The correct question was to ask whether IL was part of a joint criminal enterprise to light the ring burner in a small and inadequately ventilated room to evaporate acetone during the course of the commission of count 1 or, alternatively, whether she, knowing that the deceased was to light a ring burner to evaporate acetone over a naked flame in a small and inadequately ventilated room during the course of count 1, intentionally assisted him which, on the facts of this case, would have been, for example, by continuing to permit him to use her house or, alternatively, whether in her commission of count 1 she foresaw a possibility that someone may be killed – that a malicious act causing death may occur during the course of the foundational crime.
That would be the question, although the evidence – to answer that question would go back to her knowledge of the circumstances of the lighting the ring burner and so on. That would be our submission that ‑ ‑ ‑
EDELMAN J: Your submission is option 3 is the third of those alternatives?
MS RIGG: Not necessarily, your Honour, because the Crown could have presented a case here that was based on either direct agreement if it had enough evidence or derivative liability and, in essence, that is what we say Justice Hamill was doing, he was looking at direct agreement or accessorial liability in connection with the crime of murder and, on the evidence at its highest, regarded it as a derivative liability case. So, it was one where there was a linking in purpose on the Crown case at its highest and intentional assistance but not sufficient evidence for an actual agreement to manufacture that particular way that morning. So ‑ ‑ ‑
KIEFEL CJ: I am sorry - please finish what you were saying.
MS RIGG: We do not necessarily say that it would have been preferable to cast it as a foresight‑based case and, in particular, where the Crown disavowed that at first instance but where the court below came to consider what is the correct question, they are the theoretical options. Foresight really should have been cut out because the Crown had expressly disavowed it. Of the other two, the trial judge’s determination that on the evidence at its highest it was an accessorial route rather than agreement has not been impugned. So, that is our answer as to what the correct approach is or what the questions were that were to be asked.
KIEFEL CJ: But they are the questions that relate to count 1. Essentially, your case in relation to the count respecting murder is that whatever these things tell you about count 1, they tell you nothing about count – the count in question.
MS RIGG: Yes, that is right. They are related but the focus needs to be on a count 2, on the homicide charge.
KIEFEL CJ: Because they are not directed to a crime – in a consideration of count – in the context of count 1, they are directed to that crime and there is no crime of murder committed in the course of that.
That certainly is part of it but the appellant’s argument is not dependent on, in my submission, that proposition about no crime having been committed. It is really, additionally – or, perhaps, even more importantly, a question of looking at just the wrong test being applied by the Court. So, in my submission, perhaps the quickest way to look at it is in relation to manslaughter because – if I could just go back a moment, perhaps, your Honour?
The Crown theory was more straightforward, in a way, than the Court of Criminal Appeal. So, the Court of Criminal Appeal injected this concept of contemplation which was unnecessary and, in our submission, misplaced when looking at the very basic joint criminal enterprise to commit count 1.
The Crown was right, at first instance, that so far as count 1 is concerned, IL was responsible for lighting the ring burner. That is so because of joint criminal enterprise in its most very basic application. Where people come together to commit a crime and that crime is committed then all participants, regardless of their role, are responsible for the acts of others.
KIEFEL CJ: So that is liability for count 1.
MS RIGG: That is right.
KIEFEL CJ: All right. But you are trying to tell us why that does not answer the question about the count relating to murder.
MS RIGG: Yes. Because that liability involves – requires no understanding whatsoever on the part of the accused of that particular act and it is a fundamental fiction that is crucial to the efficient and just prosecution of crime that the prosecution do not have to prove in every joint criminal enterprise that every participant knew and understood every act that every other participant is committing. That is particularly so in large criminal enterprises like drug manufacturing where people are well distant in many instances from one another.
In essence, the prosecution of crime would grind to a halt if the Crown had to prove that each participant knew, or had an awareness of or even a contemplation of the acts being undertaken by others. So, IL would have had no defence in relation to count 1 to say, for example, that she did not know what was going to be undertaken by using the evaporation of acetone or she did not know it would involve a naked flame. There was no defence whatsoever in relation to her commission of count 1 and sentencing judges work out actual disparity between roles.
But, with manslaughter, in our submission it seems obvious immediately that this process of finding out whether IL is liable for an act in connection with count 1 and then making it her act for manslaughter is not right because manslaughter involves a very close consideration of the actual circumstances of the accused in which an intentional act is performed to apply an objective test to see whether a reasonable person in her position would have realised there was – she was exposing another to an appreciable risk of harm.
It obviously cannot be right that an objective test - that someone is going to be culpable for homicide by the application of an objective test to an act in circumstances the accused not only need not have done but need not have had any knowledge of whatsoever.
It is for that reason, in our submission, that the Crown theory that simply being liable for the act, on the most basic form of joint criminal enterprise liability, just cannot apply to the charge of manslaughter, for example. In our submission, the injection in of the concept of contemplation, as was done by the Court of Criminal Appeal, at the wrong point in the examination, does not change anything; there was simply no warrant in connection with count 1, her Honour very deliberately focusing completely over and again on count 1. There was just no need in relation to count 1 to look at the idea of contemplation at all.
So what that ultimately does is it gives the suggestion of a more direct connection between IL and the act than the Crown’s theory does, but basically it still goes back to the same rationale as the Crown theory, which is: if you are liable for that in relation to count 1 then you are liable for it in relation to the homicide charges.
BELL J: Surely Justice Simpson, in introducing the idea of contemplation of an act, was seeking to apply Sharah, which may have been criticised but had not been overruled. I am just not sure that I understand your criticism of her Honour’s analysis in that respect. I understand it to the extent that you say that properly the contemplation should have been of the result, or crime, if you like, and not the act. I understand that. But you seemed to be developing a different point, suggesting that it had been unnecessary to introduce the concept of contemplation, and that seems to be a submission that the court was wrong to apply Sharah. Now is that your position or not?
MS RIGG: No, because ultimately my submission will be that there are two ways that the Sharah line of authority can be interpreted or developed, one of which is that it imposes liability where there is complicity for foresight of an incidental crime. Arguably, another way it could be based is this: it could be based on actual agreement or intentional assistance in that sense of conditional intent or tacit agreement that Jogee took from Johns. So that narrow aspect of Johns that is not foresight based that was used in the United Kingdom Supreme Court in Jogee in a sense could be an explanation for Sharah as well.
Ultimately, my main submission that will be developed is one that relates to foresight of an incidental crime. But insofar as her Honour introduced that concept, the point made by the appellant is that it was an introduction that is not necessary when you are focusing only on the foundational crime, and that then gives rise to the consideration of why it is introduced. That, in my submission, is what is important about this case: developing or understanding what the doctrinal basis of that additional protection is. But it is just simply not necessary in connection with the foundational crime. It is not a concept that comes up at all in relation to joint criminal enterprise in its most basic term, looking at what has been contemplated or a contingency had in mind.
KIEFEL CJ: Given that her Honour, as you accept, applied the decision in Sharah, should we not be looking at the basis in Sharah for this approach, looking at whether the death was an incident in the course of carrying out the joint criminal enterprise and with the notions of contemplation?
MS RIGG: Yes, I have not, your Honour, included Sharah on my list of authorities, but it was based, it was purportedly based ‑ ‑ ‑
KIEFEL CJ: But it is the source of the approach taken.
MS RIGG: Yes, and Justice Carruthers purportedly based the additional element on the directions given by the trial judge in Johns – so this is the New South Wales Court of Criminal Appeal decision in Johns where Begg J set out – I do have copies of that decision available, I should hand them up, otherwise I will just briefly take your Honours to the parts of Johns that are relevant. So, this is the New South Wales Johns decision which is [1978] 1 NSWLR 282, and Justice Begg’s judgment set out from the base of page 294 over to 295 the directions which had been given by the trial judge in relation to constructive murder.
KIEFEL CJ: Is this on your list of authorities?
MS RIGG: No, it is not, your Honour. I do have copies of it here if I might hand them up.
KIEFEL CJ: Would it be possible for your instructing solicitor to obtain copies of Sharah for us, too?
MS RIGG: Yes, certainly, your Honour. The trial judge’s directions in relation to constructive murder appear at the base of page 294, from just above point G. So the trial judge had said that:
“Under the second part of the definition, the Crown submits that there was a design to which Dodge and Johns gave their assent and encouragement by which Watson, armed with an offensive weapon, would assault Morriss with intent to rob him; that it must have been within their contemplation that Watson might, during the assault with intent to rob Morriss, produce that pistol, or immediately after the assault he might produce it, whether or not in pursuance of the common design and whether [or] not intentionally it might be discharged by him. The very fact that he was armed with an offensive weapon when he went to the robbery must, the Crown contends, have meant for them the possibility that in the course of it all somebody might get killed by the discharge of that pistol whether or not it was necessary for the purpose and done for the purpose and whether or not it was intentional or otherwise.
That direction was followed – the setting out of the directions in relation to intentional murder, which were reasonably similar but had referred to contemplation of an intentional shooting and both of them, if your Honours then follow the judgment of Justice Begg down 295 to about point C - both of those were incorporated in the relevant grounds in the Court of Criminal Appeal that were under consideration.
KIEFEL CJ: Well, it is getting a little bit away from the argument. If you are going to say Sharah – the approach that was taken up in Sharah which has been followed in later cases was wrong, perhaps you could enunciate for us in simple terms what you say was wrong with it essentially.
MS RIGG: Essentially, the concept of contemplation or having a contingency in mind, in my respectful submission, should be directed towards incidental crimes.
KIEFEL CJ: Yes.
MS RIGG: Whereas if there are acts being considered, they need to be subject of actual agreement or intentional assistance and insofar as foresight is concerned, ultimately, in our submission, it is immaterial whether that is then incorporated as part of the agreement, whether it is within the agreement or without the agreement.
KIEFEL CJ: You say that once the correct position is understood on either of those bases there could be no liability here?
MS RIGG: Yes, your Honour, that is right, yes.
KIEFEL CJ: That is essentially the argument?
MS RIGG: Yes, it is.
BELL J: Coming back briefly to the Court of Criminal Appeal in Johns and the direction, one area of confusion is that so frequently in cases where you are dealing with a factual situation like Johns consideration of felony murder under section 18 is surplus to needs and so some of the discussion can become a little confused because one is talking of contemplation in the context of liability for a joint criminal enterprise as distinct from liability for what is sometimes described as constructive murder.
The step taken in Sharah was Justice Carruthers set out the basis of liability of a person in relation to the joint criminal enterprise and then separately set out the basis of liability on an analysis of felony murder and in that regard his Honour added that the discharge of the gun immediately after the offence of armed robbery with wounding was a contingency that the appellant had had in mind and it was the addition of that concept which is controversial and has been the subject of criticism but which has not been – which the New South Wales Court of Criminal Appeal has thus far adhered to.
MS RIGG: Yes, that is right.
BELL J: It seemed to me a little earlier in your argument - you are not suggesting – you are not inviting us to find Sharah is wrong ‑ ‑ ‑
MS RIGG: No.
BELL J: What you are inviting us to find is that Sharah is right in insisting on the appellant having in mind the commission of the incidental crime. That distils that aspect of the argument.
MS RIGG: Yes, and it is right in connecting her with the murder, not just with the foundational crime.
BELL J: Yes.
MS RIGG: Yes. Thank you, your Honour. Ultimately then, the appellant submits that that aspect, that essential aspect of Sharah should be preferred to cases such as Surridge, the 1942 New South Wales decision, and the other authority of R & G, which is the South Australian common law decision, insofar as they – perhaps on one reading of them – suggest you merely need to be guilty of the foundational crime to be guilty of murder. So the Sharah step is an important recognition, in our submission, that there needs to be complicity brought in in relation to the homicide. It is just a question of fine‑tuning how it is best expressed.
Your Honours, if I could turn then to our point 6 on the outline? These are the two options if a foresight basis of complicity is not looked at – or not looked at, at this stage. In our submission, if there is complicity by agreement or intentional assistance, that must relate to the crime of murder. It is in that sense that I answered the earlier question of your Honour Justice Gordon as to what the correct test is – or the correct question that we would say - we would say they are the three bases of liability and they are the three ways in which ‑ ‑ ‑
BELL J: Ms Rigg, how does complicity by agreement or assistance arise on these facts?
MS RIGG: It may not arise well but if it were to arise at all it would be in this sense. The deceased – without going back to the issue of the problem or potential problem of his causing his own death – if a principal does something which causes a death during the course of a foundational crime, then that person will be guilty of constructive murder.
BELL J: We are not here to answer an exam question.
MS RIGG: No, no.
BELL J: We are here to deal with the issues that are presented by this case.
MS RIGG: Yes.
BELL J: I just wonder whether both your answer to Justice Gordon earlier and the material that you are now directing attention to is raised.
MS RIGG: In my submission, they are raised in a theoretical sense only as I attempted to indicate earlier. The judgment of Justice Hamill, which has not been impugned, is one which said that on the evidence at its highest this could be looked at only as an accessorial basis of liability in relation to that particular drug manufacturing, not an agreement route.
BELL J: I see.
MS RIGG: So, insofar as my suggestion that the three potential options are these, that is really a theoretical submission.
BELL J: Where do we get that in Justice Hamill’s judgment? I understand ultimately Justice Hamill dealt with it as the liability of a principal in the second degree present at the scene.
MS RIGG: Yes.
BELL J: But where do we get his Honour saying that it was not open to deal with the case on the basis of a joint enterprise? That was the inference from the facts.
MS RIGG: Yes, I am sorry; his Honour did not specifically say that the two options he was considering were a direct agreement in relation to murder and a derivative liability route and that he preferred the derivative liability route. Rather, that which his Honour – the relevant part of his Honour’s judgment is at page 26 of the appeal book, paragraphs 78 through to 81. His Honour at those points, in our submission, is essentially rejecting the Crown theory of liability. His Honour is saying it is not as simple as finding liability in connection with count 1 and transposing that onto count 2.
Paragraph 82 is where his Honour then accepted the submission that the criminal liability was derivative, and bearing in mind that this is an application at the close of a Crown case and his Honour had set out that he was applying the relevant principles of taking the Crown case at its highest, his Honour there said:
Properly analysed, if the accused is liable for murder, she is liable as a principal in the second degree.
So that, at paragraph 82, is his Honour’s finding as to how, on the evidence at its highest, he regarded the case as based. Any fineness of a distinction between agreement and accessorial liability on the facts and circumstances of this case has just not arisen. It was not a ground pursued by the Crown and it was not an issue that was considered by the Court of Criminal Appeal.
Perhaps I am focusing too much on theoretical options but, just in an endeavour to try to explain our submission as to what the principles of complicity are that could relate to constructive murder in a case like this, theoretically, it could be a direct agreement ‑ ‑ ‑
BELL J: Ms Rigg, we are not looking to solve every issue in the law of complicity, merely the issues presented by this case.
MS RIGG: No. Yes, thank you. I have copies here of Sharah. If I might hand those up, please.
KIEFEL CJ: Yes.
EDELMAN J: Just in relation to the particular circumstances here, the essence, as I understand it, of your submission in relation to extending Sharah is concerned with what is effectively an additional requirement for attribution to IL of the acts of the deceased.
MS RIGG: Yes.
EDELMAN J: Is there not a preliminary question before one even asks that, which is would you ever attribute the acts of a deceased where those acts are not in relation to any other person? When we think about attribution generally, whether in criminal law or in civil law, we usually think about attribution of the acts of somebody in relation to other people.
MS RIGG: Yes.
EDELMAN J: But here, if there is anything to be attributed, it is the acts of the deceased which only affected himself.
MS RIGG: Yes, that is right.
BELL J: That brings one to the pith of Justice Hamill’s analysis ‑ ‑ ‑
MS RIGG: It does.
BELL J: ‑ ‑ ‑ which was there was no crime of murder; it was the act of the deceased that caused his own death.
MS RIGG: Yes, your Honour, that is right. In answer to your Honour’s question, the appeal grounds that are pursued are not dependent on that proposition because fundamentally the appellant asserts that, regardless of whether it had been the deceased or someone else, she cannot be responsible for something she did not ‑ cannot be shown to have known about, for example, or agreed to, and she cannot be taken to be responsible for a crime she has not foreseen.
NETTLE J: Ms Rigg, surely Justice Edelman’s point is within ground 2i of your notice of appeal. It is the very point.
MS RIGG: It is part of the point, your Honour, but it is not the only point. Certainly, if the Court is of the view that that issue in itself is able to resolve the appeal that is important ‑ ‑ ‑
NETTLE J: Maybe of itself or it may be that it is just another way of coming at the fundamental point that you make, that the deceased, by blowing himself up, ex hypothesi did not commit a crime.
MS RIGG: Yes. Yes, that is so, your Honour.
NETTLE J: He would have committed a crime if there had been a child or someone else in the room – perhaps manslaughter – but fortunately no one was; he killed only himself.
MS RIGG: Yes. Your Honour, that is right, but we do go further and say that even if there had been someone else who was harmed, unless she can be brought in to ‑ ‑ ‑
NETTLE J: But why would you bother with that? We are only concerned with the situation before us, namely, that this man blew himself up and killed himself as a consequence.
MS RIGG: Yes. That is right then, your Honour. Perhaps if I turn then to deal with the ‑ ‑ ‑
KIEFEL CJ: Notice of contention?
MS RIGG: If the Court pleases, if I turn to the notice of contention.
KIEFEL CJ: Yes, thank you.
MS RIGG: Thank you. Your Honours, in relation to the notice of contention, it is submitted that section 18 ought to be interpreted to give effect and meaning to all words contained within it, which include the important proviso in section 18(2)(a) and I rely on the authority set out in paragraph 71 of the submissions in support of that contention.
There is a definition contained in the Act or, more precisely, there was a definition contained in the Act, in the terms of section 5 which neither party takes issue with insofar as its continuing application to murder is concerned. The respondent’s notice of contention rather suggests that it was never needed in relation to the term “malicious” contained within section 18(2)(a).
In our submission, the legislation is clear and there is not necessarily any need to turn to the extrinsic material. The legislation gives a clear definition of what “malice” is. Section 18 requires the crime of murder to be malicious, and the Crimes Act previously contained an express requirement for indictments for murder to refer to the malicious killing of the deceased. That is a provision that has been within the Crimes Act and its predecessor from the beginning, and, even prior to that, through all the bills and drafts from 1871 onwards.
If I might take your Honours to some of the extrinsic material that has been provided to the Court, firstly the respondent relies upon an extract from the 1877 second reading speech. In our submission, rather than suggesting there that the point or objective of the proposed murder legislation was to construct malice from the foundational crime, it is really completely to the opposite effect. It is part of a very strong and powerful critique of the common law.
If I might take your Honours to –I am sorry, I will just go back a step. The appellant’s submission is that the combined effect of sections 18 and 5 of the Crimes Act and the equivalent predecessors in the 1883 legislation provide a complete statutory definition of “murder” and there is no need to resort to any common law concepts of construction.
The reform of the law of constructive malice was one of the most significant reforms of the 1883 legislation, and it is in this sense that the respondent’s submissions about the second reading speech in paragraphs 30 and 68 of the respondent’s submissions are important.
Just going to some of the context before turning, if I might, to the second reading speech itself, the background history is set out reasonably concisely in some of the chapters or pages from the textbook of his Honour Judge Woods which has been filed with the supplementary materials. In my submission, it is a useful tool for going quickly through some of the legislative – the historical points along the way of the progress of this legislation, although I will turn directly to the terms of the parliamentary debates in their original form where they are important.
As is said at page 250 of the Woods textbook, it is impossible to understand the Law Reform Commission report of 1871 and the debates without keeping in mind the international influences at that time, which were the 1866 English royal commission on death punishment and the James Fitzjames Stephen’s very well‑known criticisms of malice and the death penalty, and these are set out as well in the 1953 English royal commission report, for example, on page 28.
I will not go through all of that at this stage, but the pages that have been referred to in the appellant’s list of supplementary submissions set out the context of the international feeling in the second half of the 19th century in relation to the crime of murder insofar as “malice” is constructed in felony murder charges.
That is a provision that has been within the Crimes Act and its predecessor from the beginning and even prior to that through all the Bills and drafts from 1871 onwards. If I might take your Honours to some of the extrinsic material that has been provided to the Court; firstly, the respondent relies upon an extract from the 1877 second reading speech. In our submission, rather than suggesting there that the pointer objective of the proposed murder legislation was to construct malice from the foundational crime, it is really completely to the opposite effect, it is part of a very strong and powerful critique of the common law.
I might take your Honours to – I am sorry, I will just go back a step. So the appellant’s submission is that the combined effect of sections 18 and 5 of the Crimes Act and the equivalent predecessors in the 1883 legislation provide a complete statutory definition of murder and there is no need to resort to any common law concepts of construction. The reform of the law of constructive malice was one of the most significant reforms of the 1883 legislation. It is, in this sense, that the respondent’s submissions about the second reading speech in paragraphs 30 and 68 of the respondent’s submissions are important.
So, just going to some of the context before turning, if I might, to the second reading speech itself, the background history is set out reasonably concisely in some of the chapters or pages from the textbook of his Honour Judge Woods which has been filed with the supplementary materials. In my submission, it is a useful tool for going quickly through some of the legislative – the historical points along the way of the progress of this legislation, although, I will turn directly to the terms of the parliamentary debates in their original form where they are important.
But, as is said, at page 250 of the Woods textbook, it is impossible to understand the Law Reform Commission Report of 1871 and the debates without keeping in mind the international influences at that time which were the 1866 English Royal Commission on death, punishment and J. F. Stephen’s criticisms – this is James Fitzjames Stephen’s very well‑known criticisms of malice and the death penalty, and these are set out as well in the 1953 English Royal Commission Report, for example, on page 28.
I will not go through all of that at this stage but the pages that have been referred to in the appellant’s list of supplementary submissions set out that the context of the international feeling in the second half of the 19th century in relation to the crime of murder insofar as malice is constructed in felony murder charges.
At page 30, for example, if I might take your Honours now to the Royal Commission on Capital Punishment Report? So, although this is a 1953 report, it sets out quite concisely the history of the second half of the 19th century. If I might take your Honours, please, to page 29 of that report? The subject there is common law concept where the intention to commit the felony or resist the officer “supples the malice”, as it is sometimes termed. It says:
This doctrine of “constructive malice” has been much criticised on grounds both of humanity and of logic. We think there can be no doubt that the severity of the old rules has been mitigated by judicial decisions during the last 100 years and that the law is now no longer as stated by Stephen.
That is referring there not to Stephen’s criticisms but his basic setting out of when murder is committed, including when it is during the commission of the felony:
But there has been no authoritative decision which would enable us to state with certainty and precision the present state of the law.
That, ultimately, was important in the abolition. Over the page, then, on page 30, there is more important information as to how the doctrine was criticised in the second half of the 19th century. This is in paragraph (ii), a couple of lines down:
But even when the rule is stated in these narrower terms, it appears excessively harsh and severe, and during the nineteenth century it was widely felt to be so. It was strongly criticised, for example, in 1839 in the Fourth Report of the Commissioners on the Criminal Law, in 1866 in the Report of the Royal Commission on Capital Punishment and in 1883 by Stephen in his History of the Criminal Law; and in a number of cases the courts showed a steadily increasing tendency to limit its application and to exclude from its scope cases where, although death was caused in the commission of a felony, it was purely accidental or was a consequence which could not reasonably have been foreseen by the offender.
And the report continues to cite some of those cases where there was an increasing judicial determination to direct juries not to convict of murder unless there were additional requirements beyond the commission of the foundational crime which were directed towards the mental culpability of the accused in relation to the danger to the life of the deceased.
Many of these criticisms have been set out – the historical criticisms have been set out in this Court’s decision in R v Lavender (2005) 222 CLR 671. Because the issue of the development of malice was being considered in that decision, a number of the judgments went through these historical issues in relation to concern for constructive murder in the second half of the 19th century. For example, Justice Kirby in Lavender at paragraph 79, quoted heavily from some of the writings of Sir James Fitzjames Stephen on that topic.
The 1871 Law Reform Commission report – this is the New South Wales Law Reform Commission report – came about in that context and so Sir Alfred Stephen who has been noted on a number of occasions in Parker and in Lavender to be a relative of Sir James Fitzjames Stephen was the chairman of that Law Reform Commission. He was then the Chief Justice of New South Wales. It is in particular pages 8 to 9 of that Law Reform Commission report that are in important in setting out the strong criticism of the construction of malice where a felony has been committed. Could I take your Honours to page 8 of that Law Reform Commission report? About eight lines down the page the report says this:
But it is right to observe, that this last (often the only dreaded) penalty is retained in every British code, as a just and salutary measure, for the technical crime of Murder, without exception or qualification of any kind. We advisedly use the word technical, in order to notice the fact that this crime, although popularly by no means so understood, may be committed without previous malice; that an immediate intention to kill any one, much less the particular individual, is not essential to it; and that, in certain cases, even an omission may suffice to constitute the legal guilt.
Further down the page the example of the shooting at a tame fowl, which ended up coming to be brought up quite frequently in the parliamentary debates, was referred to by the Law Reform Commission, and this is an example that derived from Coke and then was criticised heavily by Sir Fitzjames Stephen where someone may be held guilty for murder because they have shot at a hen or fowl of someone else and thereby committed a felony and killed someone inadvertently, a person not known even to be in the vicinity. This example then is criticised and, turning over then to page 9, the report about a quarter of the way down says that:
Retaining the death penalty for certain more flagitious acts, the Bill proposes to take it away from cases of Murder not actually malicious, in the ordinary sense of the word, or (in their nature, or in respect of the probable consequences of the act,) not wicked in a high degree.
BELL J: Did it do that by requiring that the felony be one punishable by life imprisonment?
MS RIGG: Yes.
BELL J: Now, this analysis undertaken by the 1870 Law Reform Commission is considered by Justice Windeyer in his judgment in Ryan v The Queen 121 CLR at 241 where his Honour pulls together this history in order, as I read it, to explain that while at common law it had been that a death occasioned during the course of the commission of any felony exposed those liable for the felony to punishment for murder in consequence of the Stephen recommendations, the law was ameliorated by requiring that the felony be one punishable by imprisonment for life.
MS RIGG: Yes.
BELL J: Well, where does that get you?
MS RIGG: Because, ultimately, that was not the only protection that was built into the legislation in relation to felony murder and, in our submission, the requirement of actual malice by a combination of what is now 18(2)(a) and 5 but what was previously 7, 9 and 14 was an additional very important qualification as well because ‑ ‑ ‑
BELL J: Are you going to take us to any extrinsic material that bears on the inclusion of section 18(2)(a)?
MS RIGG: That extrinsic – that material has not been included in the list of authorities. It is expressly referred to in Lavender. I will call up the particular paragraph in a moment but the precise juncture at which section 18(2)(a) was added in was in response to concerns in the Legislative Assembly about reckless indifference murder. But, in my submission, that is certainly consistent – that amendment then was passed immediately by the Legislative Council and it is consistent with the parliamentary debates preceding that which were all focused on concern for insufficient mental culpability in relation to the crime of murder which attracted the death penalty.
So, the addition in of section 18(2)(a) came quite late but there were a number of developments I propose to take the Court to through the history of the development to that point that are important in showing that the Parliament was profoundly concerned that malice remain part of the crime of murder – it was essential to murder but that constructing it was not a viable option. Parliament can be seen to really struggle with the best method in which that is to be achieved. So, the first – at the very initial stages ‑ ‑ ‑
GORDON J: Sorry, just so I am clear, in Lavender, Chief Justice Gleeson and Justices McHugh, Gummow and Hayne go through the history of 18(2)(a). Is that incomplete or is that sufficient for your purposes?
MS RIGG: It is incomplete for my purposes.
GORDON J: So what is missing from it?
MS RIGG: It may be sufficient but, in my submission, there is more that does add real texture to the importance of malice not just being referable to reckless indifference but to murder generally and, in particular, the point in May of 1877 when the definition of “malice”, which had previously been in 470 – this is contained in – this is the extract from the Sydney Morning Herald 10 May 1877. It is item 6 on the supplementary list of authorities.
KIEFEL CJ: Is this really necessary to your argument? I mean, you have said there is more. Well, there is a lot more history - we could take all day. What is essential to your argument? You are meeting a point put forward by the respondent.
MS RIGG: Yes. Essential to my point is that the Parliament – that the context was Parliament deliberately bringing at that time the definition of “malice” and the definition of “murder”, which then included specifically the word “maliciously”, right together and reading them side by side with one another in the definition that was being proposed and that, throughout the entire period of parliamentary debates, the requirement for the indictment to allege malice in the murder was always there so that was not something that was changing.
So, in a sense, 18(2)(a) was a bolstering provision, but it was probably not even necessary because it was always the case that there was a requirement that murder be malicious. That was there through all versions of the proposed legislation.
There was then, at some stage, in May 1877, an express requirement in the definition of “murder” that it be malicious and it was put right next to the definition of “malicious”. It was this introduction of “malicious” which evinces, in our submission, a legislative intent that the statutory definition be turned to rather than any notion of constructing malice and, ultimately, that is made abundantly plain in the Criminal Law Manual where it is said that the three issues need to be turned to – this is clear on the first page of appendix A of the Criminal Law Manual on page 199, that to find “murder” defined those three sections need to be turned to and that includes the definition of “malice”. So our submission, basically, is that in response to the notice of contention the legislation, firstly, is clear on its face but, secondly ‑ ‑ ‑
KIEFEL CJ: That was your first point.
MS RIGG: That was my first point. But, insofar as other materials may suggest that – or the respondent contends that they would suggest the subject matter or context give rise to a different definition, in our submission it is quite to the contrary. It is an ongoing weighty concern with constructing malice and ultimately resulting in the imposition of culpability only where the foundational crime is exceptionally serious and a definition of “malice” in the Act.
It may well be that at the time this was enacted it was not envisaged or understood that there could be crimes that serious which would not be malicious and, indeed, the crimes that are referred to in the respondent’s submission at paragraph 28 were all extremely serious crimes, all of which required malice to be proved and when looked at are crimes extremely hostile to human life.
If I could just take your Honours briefly to paragraph 28 of the respondent’s submissions, those crimes set out there were all crimes which had malice as an ingredient but also, when looked at, all involved dangerousness to human beings or vessels in which human beings were being carried, often with intent, and so it is not quite – those brief descriptions there in that paragraph are not reflective, in my submission, of this grave seriousness of those crimes.
So, it may be that at the time the definition of “malice” was enacted it was not well understood how it could act as a filter in relation to foundational crimes because most foundational crimes of that seriousness would, indeed, have malice as an element. But this case raises an example where the definition is important and it is important because the usual type of malice that arises in constructive murder crimes just simply is not here.
Insofar as cases like Ryan are referred to by the respondent and said to be examples of authority deciding that the malice is in the foundational crime, in my submission, there are no such authorities, they are simply examples of prosecutions where the point was not expressly taken. Mr Ryan, for example, held a cocked and loaded firearm with the safety catch off to the back of the head of his victim while he fumbled for cord to tie him to rob him of his money. It is in those circumstances unsurprising that the point was not taken that that act causing death was not malicious within the terms of section 5.
Section 5 includes reckless indifference to human life or suffering, it includes intent to injure in property or otherwise and so all of those cases amply come within the definition of section 5. It is because this case does not come within those usual aspects of malice demonstrated by violent robberies or violent rapes that a different understanding or a different concept has been looked at and that is where the concept of recklessness comes in.
Our basic submission about the Mraz proceedings is that they are really the only proceedings where the issue of malice has been ‑ in connection with section 18 has been expressly considered and the decision of the Court of Criminal Appeal there was the one that, on that issue, in my respectful submission, was the more important. So, these are – the case of Mraz v The Queen (1955) 72 WN (NSW) 422. The headnote to ‑ ‑ ‑
BELL J: You are taking us to Mraz in the Court of Criminal Appeal?
MS RIGG: Yes, your Honour. So the headnote there – that which is said in the headnote to the then finding is:
that a finding that rape was committed necessarily involves a finding of intent to injure which, if the rape results in the victim’s death, is a malicious intent within s. 5 of the Crimes Act –
Insofar as the judgments of the Chief Justice, Justice Street, and Justice McLelland are concerned, that certainly is borne out. Both of their Honours turn to the definition of “malice” in section 5 and its inclusion of intent to injure. In particular, some of these references are set out in the appeal book at pages 64 to 67 because the submissions were ‑ on this point in the court below were included but certainly that part of the Chief Justice’s judgment at 426 is relied upon by the appellant where his Honour said that:
Rape consists of having sexual intercourse with a woman without her free, conscious and understanding permission. The word in itself involves the concept of personal injury so far as the woman is concerned.
His Honour then, over the page, dealt with section 5. Approximately halfway down the first column on 427, said that:
It is inescapable, therefore, that the acts in fact done by the accused in the present case were done maliciously within the meaning of s. 5 and consequently also s. 18.
In our submission, a similar approach was taken by Justice McLelland who turned directly to section 5 as well and found that the act of raping someone is done with intent to injure and so within the terms of section 5. And, it was only really the judgment of Justice Herron where common law concept of felony murder was looked at and cases such as Beard’s Case were gone through. His Honour, therefore, thought it unnecessary to determine the construction of section 18(2) of the Crimes Act.
His Honour then – this is Justice Herron – did say at 430 – this is about two‑thirds of the way down the first column:
I also think, but without expressly deciding, that if death occurs during or immediately after the commission of a crime punishable by death or penal servitude for life, it must necessarily be regarded as a malicious homicide.
In our submission, that essentially is an obiter comment in the context of this case and it is not in accordance with the way in which Justices McLelland and Chief Justice Street approached it.
BELL J: But, it is in accord with Ryan v The Queen, is it not?
MS RIGG: No. In my submission, the decision in Ryan did not – there was no occasion in Ryan to consider the issue of malice. It was not – malice was not raised in Ryan.
BELL J: To the extent that Justice Windeyer considered the scope of felony murder, in his analysis in Ryan, it was to accept that a killing that occurred in the course of the commission of a felony punishable by life imprisonment – as I think it then was ‑ exposed the accused to liability for murder.
MS RIGG: Yes, that is right. Our submission is that because malice did not expressly arise for consideration in Ryan’s Case, it ought not be followed as authority in the face of the expressed requirements of the legislation that malice needs to be made out and there is a definition of it to turn to that definition. There was just simply not an issue in Ryan that required a direct decision on that matter. It did require a direct decision in Mraz in the Court of Criminal Appeal and that decision was, in the main, to look at section 5 and find that there was an intent to injure if a woman is raped.
When Mraz then came to this Court, in our submission it was primarily concerned with the proviso. There was no real issue but that the trial judge’s directions had been wrong because, in fact, malice did not arise in the circumstances of that prosecution. There was simply no scope whatsoever for malice – the issue of the absence of malice to arise.
In my submission, the judgment of this Court in Mraz is primarily concerned with that issue. There was no criticism of the judgment of the Court of Criminal Appeal on the interpretation of malice by this Court in Mraz. Justices Williams, Webb and Taylor said they completely agreed with the decision of the court below. It is Justice Fullagar’s decision in the High Court in Mraz which potentially suggests that all that needs to be shown is the commission of the foundational crime. The decision in this Court is Mraz v The Queen (1955) 93 CLR 493. Justice Fullagar, at page 510, included section 5 ‑ this is at the top of the page – as part of the definition of malice. In that regard, the other authorities that have been included by the appellant in the supplementary list of authorities and the relevant paragraphs are really to the same effect.
On numerous occasions when this Court has had cause to set out what the definition of murder in New South Wales is, section 5 is normally quoted and set out as part of that definition. The other authorities on the appellant’s supplementary list of authorities go to that issue, so that would include Royall and Ryan and Lavender. Always the section 5 definition is set out as well as part of the definition of malice. So here in Mraz in this Court Justice Fullagar set out that section 5 definition, but his Honour then, just a little less than half way down the page, said:
So far as it is material to the present case, this appears to me to be a mere question‑begging definition, saying no more than that “every act done of malice . . . shall be taken to have been done maliciously”.
His Honour also, at page 512, criticised the trial judge’s charge and suggested that it almost – this is at the base of page 512:
it almost certainly proceeds from a confusion of the two distinct senses in which the word “malice” is unfortunately used in the law, a confusion made worse confounded by the so‑called definition in s. 5 of the Crimes Act. In the one sense it refers to the intentional doing of a wrongful act, and in the other sense it denotes spite or ill‑will or a desire to injure.
That aspect of Justice Fullagar’s judgment may seem to lend support to the respondent’s argument in support of the notice of contention but, in our submission, this aspect of one judgment in Mraz is not conclusive when the legislation is clearly to the contrary. In particular, this point being a minor point for consideration in Mraz – the main point, of course, being the proviso – and it not appearing to be the case that there was any substantial issue or argument about the context of section 5, in my submission, is not persuasive and so far as the other judgments endorse without criticism the judgment of the Court of Criminal Appeal they should be preferred.
In particular, the parliamentary debates and the Criminal Law Manual, which seem not to have been raised or discussed in any way in Mraz, make clear that the point of the legislation was to move away from this distinction between malice in law and malice in fact. There was no longer to be any malice in law or presumed in law for the purposes of the Crimes Act, and that again is made plain by the terms of the Criminal Law Manual. I realise that the Criminal Law Manual was written, although the same year as the enactment of the 1883 Act, it was written slightly afterwards, but it has been endorsed as a proper source of an understanding of the common law at that time and the intention of Parliament.
BELL J: Is there a particular passage in the manual that you are referring us to?
MS RIGG: Yes, I will, your Honour. Excuse me a moment, please. So, apart from the extract on page 199 that I earlier referred to which says the intention is to go to 1, 2 and 3, it is to go to the definition of “malice” and it is also to go to the definition of “murder”. There is page vii. On page vii it was said that:
With respect to the crime of Murder, the Law Commission ventured on a step in advance of the written law, by the insertion of provisions, eventually converted into a definition, by which the unmeaning and misleading phrase “malice aforethought” is abandoned.
Then on page 7 – this is page 7 in the commentary to section 7 – there is reference to the courts’ twofolding meaning of malice – “malice in fact”, on the one hand, and “implied or constructive malice” on the other, which is “malice in law”. Your Honours will see that reference is specifically made there then in his consideration of section 7 which is the definition of malice – reference is made specifically to murder, and the common law where malice must be aforethought, although it can be implied. There was a reference then to one case, Ward’s Case, which dealt with malicious wounding, and the manual then says this:
But, with that exception, if it can be so called, there seems to have been no legislative declaration as to the sense in which the word malice, malicious, or maliciously, occurring in an enactment, is used therein. Section 7 supplies the deficiency, with respect to all acts described as malicious, or as having been done maliciously, and made offences or subjected to punishment, by this statute. It uses the word malice in its proper, and ordinary, and only legitimate acceptation, and then expands its application for the purposes of the Act.
So, the appellant’s submission is that the intention of the Parliament was to provide a statutory definition of malice which was malice in fact, although with an expanded definition, that it did not simply include spite or ill‑will towards a person, but it included other mental states. That was the sense in which malice was thereafter to be interpreted, including in relation to murder, rather than to constructing murder from any foundational offence.
BELL J: By enacting a statutory definition of murder, the concept of malice aforethought was cleared away by establishing that murder would be committed in any of the four ways that section 18 provided for. The first three involved a state of mind and the fourth involved the murder being taken to be committed in circumstances where it occurred in an attempt to commit during or immediately after the commission by the accused or some accomplice of a crime punishable by imprisonment for life or 25 years.
MS RIGG: Yes.
BELL J: Given that fourth category, when one has a crime that has been committed or is in the course of being committed that answers the description of a crime punishable by life or imprisonment for 25 years, what further element in terms of malice do you say one needs to locate and where do you find it in the terms?
MS RIGG: Yes, it needs to be found within section 5. Normally, that would be reasonably easily met and does not arise in the prosecution of commonly occurring ‑ ‑ ‑
BELL J: When you say, “Normally, it would be easily met” it would be easily met from the commission of the felony punishable by life or 25 years. Is that right?
MS RIGG: Yes, because they are done with intent to injure, in property or otherwise, or with indifference to human life or suffering.
BELL J: Or recklessly?
MS RIGG: Recklessly was the issue that arose here. So it is accepted that that is where this needs to be based, because the malice is not simply constructed because IL committed a crime that attracted a sentence of imprisonment – maximum imprisonment of over 25 years. It has to actually be malicious and that is why reckless needs to be turned to, in my respectful submission.
KIEFEL CJ: Are you moving to recklessness, then?
MS RIGG: Yes, your Honour. Your Honours, the appellant submits that the relevant test for recklessness is subjective foresight of the particular kind of harm done. The particular kind of harm done here was death and, in our submission, that is why recklessness required foresight of the possibility of death on the part of IL. The submissions have tended to use the word appreciation of a risk of death but I realise that the issue of possibility or probability is under consideration in the proceedings in MA and it is of no importance to our argument that particular terminology.
In some charges with gradation of injury, so actual bodily harm or grievous bodily harm, for example, there has been some slackening of the correspondence principle in relation to recklessness. So, whereas a particular result is the subject of the crime, the person need not have foreseen that particular result for the person to have been reckless and these are some of the authorities that have been referred to in the decision of the court below concerned with grievous bodily harm or actual bodily harm and that has been applied in New South Wales as well.
The appellant’s submission, though, is that where something is an either/or situation like death rather than a type of harm which is subject to degrees, it is the fact of death which needs to be contemplated and reference was made in the submissions to the New South Wales decision of Chen (2013) NSWCCA 116 which was a wounding, reckless wounding case.
KIEFEL CJ: Ms Rigg, what was the act that the Court of Criminal Appeal identified as relevant to the appellant’s foresight that there might be caused some physical harm, what act was attributed to the appellant?
MS RIGG: Nothing. Their reference was to – I will come to the precise words but, in essence, it was said to be “plainly” or “obviously” dangerous activity with primitive equipment and ‑ ‑ ‑
KIEFEL CJ: But not referable to any act on her part?
MS RIGG: No, no, and without any reference to anything that she could be said to have known about or agreed with and it is in that sense that it is essentially – using objective terminology in the appellant’s submission and at no stage, even addressing the fact that the trial judge had found that on the evidence at its highest, IL had not contemplated any injury, let alone death. So, there was ‑ ‑ ‑
KIEFEL CJ: So, the idea is that she is reckless about the act of the deceased?
MS RIGG: Yes, it seems to be so, yes. The particular references in the court below on that issue are at appeal book 112. Insofar as even the alternative of injury is concerned, the appellant’s submission is that the Court cannot have applied such a subjective test and there are a number of reasons for that. Firstly, is to simply ask the question as to what the decision of the court below was as to whether the Crown was required to prove subjective foresight of injury to the deceased and, in circumstances where the core reason for finding error on the part of the trial judge was his alleged error in looking for foresight of injury or death rather than foresight of lighting the ring burner.
It simply must be said that the decision of the Court below was that the Crown did not have to prove contemplation of injury or death. The Court’s decision on page 102 – its basic decision in upholding the substance of the appeal makes that clear. That is at paragraph 60, 61 and 63. The Court also found that:
the Crown could not realistically proceed on the basis –
here of any contemplation of death or grievous bodily harm being within the contemplation of IL. That is at paragraph 33.
It was said at paragraph 11 that the case would have been straightforward if the Crown could prove IL lit the burner. In our submission, in circumstances where the trial judge had so clearly said that the evidence at its highest did not disclose any contemplation of injury or death, that finding does not sit well with a suggestion that the case would have been straightforward if the Crown could prove IL lit the burner.
Rather, it is suggestive of a subjective foresight not being taken into account.
Insofar as the Court listed the matters to be proved to make out a charge of murder here, there was no subjective contemplation listed and there were various other statements made at paragraphs 95 and 97 about a clear outcome here because the act was, plainly, dangerous. In our submission, that is objective terminology being used. There is no reference back to bring that within a subjective contemplation. Ultimately, it is submitted, that the references to the case of Safwan – which were not apt to that point – may be how the issue came to be distracted even though there had been appropriate reference to Cunningham and the subjective test of foresight, subjective foresight, of harm.
Your Honours, if the Court pleases, by way of conclusion, it is submitted that the submissions advanced on behalf of IL appropriately calibrate murder and manslaughter in relation to a potential incident such as this, insofar as it has been submitted that the first question is to find sufficient connection between IL and the relevant conduct and only once that relevant connection is established can then the culpability be addressed. So, if there is sufficient connection and then, subjectively, she has appreciated the foresight of death, then there may be liability for murder, subject to, of course, the other issue that arises in relation to no crime having been committed because of the particular situation of the deceased.
But, in a manslaughter situation, the test for – the objective test for dangerousness would only be applied once that sufficient connection is established. The concepts here of foresight of death that have been raised are not raised as applying to all constructive murder charges. This is not suggested to change the law of constructive murder. They arise, particularly, here because of the nature of the complicity that is alleged and they arise, particularly, because the nature of or potential absence of malice in a crime that is not otherwise inherently violent or dangerous or hostile to life. If the Court pleases, those are the submissions for the appellant. Thank you.
KIEFEL CJ: Yes, Ms Dowling.
MS DOWLING: Do your Honours wish me to move formally on the summons in relation to the notice of contention?
KIEFEL CJ: Do you need to?
MS DOWLING: As I understand it, leave has not yet formally been granted.
KIEFEL CJ: I see. Yes, thank you. I take it from the argument already presented though that there is no objection?
MS RIGG: Yes, that is so, your Honour.
KIEFEL CJ: I do not think you need to trouble.
MS DOWLING: Thank you, your Honour. The first and perhaps relatively minor point that the Crown wishes to make is a bit of a pleading point in relation to ground 1 and that is the assertion that the CCA found it was irrelevant as to how lit the burner and that, of course, was not at all the finding of the CCA. The CCA – Justice Simpson, on behalf – who wrote the judgment, did not make any finding as to who lit the burner and did not determine that the identity of the person who physically performed the act causing death was irrelevant as suggested in the way that ground is framed. It was accepted at trial and before the Court of Criminal Appeal that the Crown could not prove which of the deceased or the appellant lit the burner and in light of that position the appeal proceeded on the basis that the Crown case must proceed as if it were the deceased who performed the act causing death.
Contrary to the suggestion in ground of appeal 1, her Honour Justice Simpson correctly observed that this was of fundamental importance to the issues in the appeal and that is found at CCA paragraph 11 at appeal book 86, point 30. The appellant argues that the Court of Criminal Appeal incorrectly characterised the Crown case as a hybrid of extended joint criminal enterprise rather than straightforward joint criminal enterprise. If I could take you please, your Honours, to paragraph 20 of the CCA judgment which is at appeal book 89. At paragraphs 20 to 25, her Honour Justice Simpson summarised the relevant principles of joint criminal enterprise and extended joint criminal enterprise as described in this Court in Johns and then McAuliffe and Miller. I appreciate that this is well trod ground before the members of this Bench.
At paragraph 24, her Honour refers to the judgment of this Court in Clayton and the description of “extended joint criminal enterprise” given in that case and refers to the requirement of foresight of the act outside the scope of the agreement for the purposes of that doctrine. At paragraph 25, her Honour then goes on to say:
That doctrine (extended joint criminal enterprise) does not arise for consideration in the present case.
It is quite clear that her Honour regarded this as straightforward joint criminal enterprise, what my friend has called “Johns criminal enterprise” in her submissions. That is a joint criminal enterprise that looks to the scope of the agreement and in determining what the scope of the agreement is looks to what was in the contemplation of the parties to the agreement as a reasonable and necessary incident of the performance of their agreement.
If I could just take you, first, to the decision of the Court of Criminal Appeal in Johns (1978) 1 NSWLR 282, to which my learned friend took you a little earlier, in the judgment of his Honour Chief Justice Street, your Honours, at the bottom of 285, the last line where his Honour starts the sentence “A principal in the second degree may be held liable” and up until the first line of 286 his Honour Chief Justice Street refers to:
the particular actus reus, whilst differing from that directly and specifically intended . . . was nevertheless one that the jury regard as within the contemplation of the parties as an act which might be done in the course of carrying out their primary criminal intention.
The significance of that passage, which was approved by his Honour Chief Justice Barwick and by their Honours Wilson, Murphy and Mason in the High Court decision of Johns is that they pick up the use of the word “act”; it is only his Honour Justice Stephen who refers to “crimes” in Johns. It is quite clear, in my respectful submission, that what is being explained in the CCA in Johns, and approved by this Court in Johns, is that it is the physical act that is attributed to the co‑participant, and of course that is consistent with the recent decision of your Honours in Miller. It makes it quite clear that it is liable for the actus reus.
If one jumps ahead to consider cases like Osland, that distinction is important because it is not the crime that is shared, it is not co‑extensive liability. In fact, you can have a co‑participant who lacks the mens rea, therefore cannot be liable of the crime, but the non‑physical or passive participant remains liable because it is the actus reus that is attributed to her. That is very significant in this case.
NETTLE J: Even if she does not foresee the mens rea of the principal participant? Surely not.
MS DOWLING: That is correct. If one is speaking in terms of extended joint criminal enterprise, then it has to be foresight of the actus reus with the relevant mens rea, and that is as explained in McAuliffe and Miller. However, where one is not in the territory of extended joint criminal enterprise it is sufficient, if one is looking at if it is within the scope or within the contemplation of the party, and that is where it is limited and that is why her Honour Justice Simpson’s focus was on straight – joint criminal enterprise, those two expressions of it contained within Johns and act within the scope explained as an act reasonably within the contemplation of the parties to the agreement and that is what sheeted home liability for the act of the deceased in lighting the burner in this case.
NETTLE J: But is that not the act when it is the actus reus? Is that not what comes out of the judgment in R v Johns in the Court of Criminal Appeal?
MS DOWLING: When it is the physical act.
NETTLE J: When the act which is foreseeing is the actus reus of the incidental crime?
MS DOWLING: When it is the – in this case the act causing death. That is right.
NETTLE J: That is a difference, that is the critical difference.
MS DOWLING: But it is not the actus reus of the incidental crime. The crime is a conclusion that comes when one had the actus reus together with the relevant mens rea and that is often – it is often not problematic to speak of it as the incidental crime where it, in cases like McAuliffe or Miller, where it is clear that they run together and it is not in dispute. But if you go back to Johns the principle operates to attribute liability for the physical act of the co‑offender and if you are in extended joint criminal enterprise territory you then also need to foresee that that act is done with murderous intent, but if you are not in extended joint criminal enterprise, what you need to foresee is the act causing death and that is the third element in Sharah, which I will come to later ‑ ‑ ‑
NETTLE J: Just to stay on this point, is not the whole purpose of the exercise of common purpose to attribute liability for a crime committed by the co‑participant?
MS DOWLING: We would start one step back from that or earlier from that. But the point of it is to attribute to co‑offenders or co‑participants in a criminal agreement liability for the acts of their co‑offenders.
EDELMAN J: There must, at least, be acts in relation to other people, not acts in relation to themselves.
MS DOWLING: Well, it can be acts in relation to anything. In this case, in relation to count 1, it was acts in relation to the manufacturing of drugs.
NETTLE J: Plainly so.
MS DOWLING: In my respectful submission, it does not have to be so confined.
NETTLE J: But that was because manufacturing methylamphetamine was a crime. That is why those acts were attributed to the appellant.
MS DOWLING: One, presumably, would not be having the argument if it did not relate to a crime because that is the point of the prosecution – that you are seeking to hold a person criminally responsible for an act, whether it is their physical act or not. But the principle is that you start with the physical act, whether you can be held responsible for it, and then you look to the mental element that you need to have, either yourself, or to have foreseen in your co‑offender. That is why the language of Johns, which is the root of these cases in this Court, speaks of liability for acts and not liability for crimes.
KIEFEL CJ: But when it is taken up in McAuliffe, is not the reference to crimes there?
MS DOWLING: Yes, it is; that is correct. But that is, in our submission, in no way indicating a departure from the fundamental principle, as explained in Johns.
GAGELER J: Can I just ask a question about Johns? I am sorry; this is really a mechanical basic question. In the Court of Appeal there is reference in the judgments to section 18. When you get to the High Court there is no mention of section 18 that I am aware of. It is section 19 and section 336, I think, or section 442 that feature in reasoning. In the Court of Appeal was it treated as a constructive murder case?
MS DOWLING: Yes, it was a constructive murder case.
GAGELER J: When it got to the High Court, constructive murder I think does not feature at all, does it?
MS DOWLING: It is not apparent from the High Court decision. I may have to come back to that, but it is my recollection that it is not clear on its face from the High Court decision that it was in fact a constructive murder case. The Crown case went on a number of bases, as is often the way, as your Honours will see from these authorities and it went as intentional murder, joint criminal enterprise murder and constructive murder on these three bases, which is why the charge had those three different aspects to it.
GORDON J: While we are on that question, at appeal book 93, at paragraph 33, Justice Simpson says:
the Crown was forced to rely on the final category of murder, constructive murder -
only here. Is that still the position?
MS DOWLING: I am sorry, your Honour.
GORDON J: At page 93, the final line in paragraph 33, it says that:
the Crown was forced to rely on the final category of murder, constructive murder –
because of the way in which the Crown had put its case. Is that still the position?
MS DOWLING: Yes, that is still the case. The Crown case has not changed from trial to this Court, and the Crown case is as explained by her Honour Justice Simpson in the CCA judgment.
BELL J: In the way the matter was developed before Justice Hamill, his Honour was prepared to accept that it would be open to the jury to find the act causing death was the lighting of the gas ring.
MS DOWLING: Yes.
BELL J: Just to test the scope of liability, as the Crown puts it, if, as seems possible from the evidence, the act causing death was the deceased walking into the room and switching on the light switch, would that on the Crown’s analysis nonetheless expose the appellant to liability for murder?
MS DOWLING: The way the case was framed by the CCA was that it was the act of the ignition of the ring burner and, if that in fact was not the act causing death, then ‑ ‑ ‑
BELL J: In the way the case was run.
MS DOWLING: Yes.
BELL J: What I am really taking up with you is this. Would you say that in the case of people who are engaged in the enterprise of manufacturing methylamphetamine and one of them, in this circumstance, walks into a room, switches on the light and blows himself up fatally, that attracts liability for murder because one can define the act causing death as the setting up of the equipment and the chemical process going on and the vapours, and so forth.
MS DOWLING: Yes, and the Crown would say that she would be liable for that act because she was a participant in a criminal activity that involved the creation of a flammable cloud which was liable to be ignited by one of the four possible ignition sources identified in the CCA. However, I acknowledge that the Crown case was more narrowly framed at trial and in the CCA. But if one is talking in a broader hypothetical sense, then yes, on general principles, yes, she could be held responsible for that act.
That would be an act causing death which, by reason of her participation in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, is to be properly regarded as her physical act leading to the death of the deceased, or any other person. As my friend has acknowledged in her written submissions and in her oral argument, these principles apply equally, whether it was the deceased that was killed or a third person.
BELL J: Well, that may be controversial since on another view the deceased committed no crime in switching on a light switch, lighting a cigarette, igniting the burner.
MS DOWLING: Which is why one comes back to the terminology and the concepts used in Johns that it is the physical act of each co‑participant that is attributed to the other.
EDELMAN J: But it is the physical act in relation to another person. That is why causing death – I suppose one question might be whether it is causing death of another person which in 1900 one could not imagine any cases where it would have been caught within section 18(1) which involved causing death of oneself.
MS DOWLING: In my respectful submission, her liability for his act applies whether the victim dies or is severely burnt and suffers grievous bodily harm, or a third person who is not the deceased dies, and the liability is not determined by the identity of the co‑participant who perhaps is killed, perhaps is not. If there were three people in the room, then they would all three of them be liable. If there were three we may not have been able to tell which one and, in any event, the CCA did not find that it was the deceased that lit the burner, although it cannot be excluded, on the Crown case. The appellant, your Honours ‑ ‑ ‑
KIEFEL CJ: Before you go on, I know this is basic but going back to McAuliffe 183 CLR 108 at the foot of 117 and the top of 118, if one turns to 117 to start with, at about point 8 on the page, the act which was in the contemplation of both the secondary and principal offender is discussed there by way of saying that this is part of the joint enterprise. The identification of the act has to be brought within that sphere.
MS DOWLING: It is within that context, yes.
KIEFEL CJ: It is on that basis that there is a liability for a crime committed in the course of that enterprise and at the top of 118, over the page, it said this:
is in accordance with the general principle . . . that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.
MS DOWLING: Yes, and that is a reference to the fact that this was an accessory case rather than a joint criminal enterprise case.
KIEFEL CJ: Quite. The distinction is, the act discussed in Johns and here is by way of explaining that it is part of the enterprise but that does not explain its somewhat separate discussion to say that you may therefore be liable for a crime. You have to identify the crime. It is not just the act for which you are responsible; it is the crime for which you are liable to which that is addressed.
MS DOWLING: Yes, and that ‑ ‑ ‑
KIEFEL CJ: So what crime is committed in the course of count 1?
MS DOWLING: The Crown’s case is the crime of manslaughter and the crime of murder.
KIEFEL CJ: By whom?
MS DOWLING: By the appellant because of the building up of the transfer or the construction of the physical element first and then the mental element by operation of section 18.
KIEFEL CJ: Sorry. The crime for which she is responsible is that necessarily which is committed by the deceased. It is the point that the trial judge was trying to make, albeit by reference to suicide no longer being a crime.
MS DOWLING: It is the Crown’s contention, which in my respectful submission the CCA also endorsed, that that liability is co‑extensive, that one does not start with his crime and then attribute it; you look at what they were doing together in agreement in furtherance of their criminal enterprise and the acts that each one of them did were the acts of the other. So when one of those acts, properly attributed to the appellant caused the death of one of the co‑offenders, then that is complete - then the crime of murder is complete, of constructive murder under section 18.
Of course, section 18 in its terms refers to the act causing death, done within the course of the commission of a felony. The focus of Johns and of the language of the section is on the act causing death and although I am at risk of jumping around a little, your Honours, that is the aspect of the conduct of the co‑offender ‑ ‑ ‑
KIEFEL CJ: Does not section 18(1) refer to an act done in relation to the accomplice in the commission of a crime – or some accomplice with him or her of a crime?
MS DOWLING: Yes, but that is the foundational offence that is referred to there, not the crime of murder. It is that advertence to – or focus on the foresight of the knowledge of the act causing death that is the subject of the third element in Sharah and was the element considered by this Court in Sio - If I can just take your Honours briefly to the decision in Sio [2016] HCA 32; (2016) 334 ALR 57.
Your Honours will no doubt recall that the Crown case in Sio was one of constructive murder that relied on principles of joint criminal enterprise to fix the appellant with liability for the foundational offence of armed robbery with wounding. Your Honours will recall that in New South Wales armed robbery simpliciter is not a qualifying foundational offence for constructive murder but it requires the additional element of wounding, that is section 98.
The physical participant in Sio, Mr Filihia, performed the act causing death which was a stabbing, inside the premises while the appellant waited outside in the car. The act causing death in that case was also an element of the foundational charge, that is, the act of wounding. So the appeal concerned the correctness of the directions on constructive murder and armed robbery with woundings and the directions which were approved by the Court are set out at paragraph 25, your Honours, which is page 63.
Directions (a),(b) and (c) go to proof of the foundational offence of armed robbery with wounding. Direction (d) goes to proof of the act causing death and the fact of death. Direction (e) goes to proof of Mr Sio - he is the non‑active participant:
Mr Sio participated in a joint criminal enterprise –
to commit the offence of armed robbery. Direction (f) requires foresight of wounding because that is an element of the foundational offence. There was no requirement of foresight of death on the part of Mr Sio. That is a point that I would seek to enlarge upon a little later in my submissions. But the point that I wish to make at this point is that the aspect of the co‑offender’s conduct that is required to be foreseen is the commission of the act causing death.
BELL J: That accepts the correctness of Sharah, does it?
MS DOWLING: Yes. It does not – because the act causing death was coincidental with the act that was an element of the foundational offence it did not arise as sharply as it did in Sharah ‑ ‑ ‑
BELL J: Yes.
MS DOWLING: ‑ ‑ ‑ because the act that comprised part of the foundational offence in Sharah was the wounding of victim 1. The act causing death was the killing of victim 2. So, there was a dislocation of those two physical elements there which is why, in my respectful submission, that third element was formulated in the way that it was in Sharah. But even in Sharah, what is required to be foreseen is the act causing death, not the crime.
BELL J: In a case where the commission of a crime was not in issue.
MS DOWLING: That is right.
BELL J: Yes.
MS DOWLING: But in this case we say that the relevant crime was not in issue here either. It was the act of manufacturing a large commercial quantity of drugs.
BELL J: But the commission of the crime of murder ‑ ‑ ‑
MS DOWLING: There was no doubt that a person had been killed by a murderous act by the principal in that case, yes. If I could take you back – I hope not to labour this point, your Honours ‑ to Johns (1980) 143 CLR 108 in this Court, my learned friend the appellant has taken you to that part of the judgment that sets out his Honour Justice Stephen’s reasons and his references to crimes but did not take you in terms to the decision of Chief Justice Barwick at page 113, at about point 4, which is the paragraph starting “The learned trial judge’s summing up”.
Your Honours will see that there is a reference to the acts of the co‑offender and then there is an explanation, or it is clear that when one is looking to determine the ambit of a joint criminal enterprise one is looking to all those contingencies which can be held to have been in the contemplation of the participants or which in the circumstances ought necessarily to have been in such contemplation.
So when the word “contemplation” is used by the CCA, in my respectful submission it is clear that that was used in its conventional Johns sense to explain or to indicate that her Honour Justice Simpson was looking to the scope of the agreement.
KIEFEL CJ: But it does not say you will be liable for all acts within the contemplation of the participants, even if they do not give rise to a crime.
MS DOWLING: No. One probably would not be in court if they did not give rise to a crime.
KIEFEL CJ: No one has contemplated – that is not what they are discussing, because it is not in issue. There is no issue as we have in this case.
MS DOWLING: And it could ‑ ‑ ‑
KIEFEL CJ: All that his Honour is concerned to say there is in cases of joint enterprise you are liable for acts done which are in the contemplation of the participants. It does not really answer the particular odd situation that we have here.
MS DOWLING: No, it does not, and that is why it is important to go back to foundational principles, which is what the Crown has sought to do in explaining how it is and, in my respectful submission ‑ ‑ ‑
KIEFEL CJ: But that is what they were referring to in McAuliffe, that the principle is that you are liable for crimes committed in the course of a common enterprise so you have to identify the crime.
MS DOWLING: In my respectful submission, that is approaching it from an endpoint rather than from the beginning point because the nature of a prosecution is such that you are prosecuting for a crime. That is why the secondary participants are before the court and that, in my submission, is probably why it does not come up in the statements of basal principle in Johns in that way because it is built up from how do we get here? You did not commit the act yourself. You are held responsible for that physical act because of your participation in the joint agreement. So then you have criminal responsibility for the physical act, and then one has to look at the mens rea. Is that there in whatever form it is required, whether it is joint criminal enterprise extended or felony murder?
GAGELER J: What his Honour Chief Justice Barwick was endorsing I think at page 113 was the direction of the trial judge that is set out - I think most clearly at page 109 about point 5 ‑ ‑ ‑
MS DOWLING: Yes.
GAGELER J: ‑ ‑ ‑ which is the parties must have had in mind the contingency that for the purposes of carrying out their joint enterprise – carrying a joint enterprise out or attempting to carry it out, the firearm might be discharged and kill somebody.
MS DOWLING: Yes.
GAGELER J: Do you accept that?
MS DOWLING: Yes, the reference to killing somebody the Crown says is not a reference that was necessary in that case and was not one that has been followed and in particular in Sharah is a good example of that. It stops at foresight of the act causing death. But in that case because it was the discharge of a firearm it was surplusage which operated to the advantage of the accused and was uncontroversial because there was such a close coincidence between the act causing death and the killing.
KIEFEL CJ: You say it is not necessary to show that the act in contemplation might result in serious injury?
MS DOWLING: The Crown says it is not necessary to foresee death, as is in our written submissions.
KIEFEL CJ: Or serious injury?
MS DOWLING: It depends whether one is in joint criminal enterprise territory or extended. If you are in extended joint criminal enterprise then you need to foresee the act causing death with the relevant murderous intent, which can be an intention to cause grievous bodily harm or an intention to kill or even reckless indifference to human life.
GAGELER J: If you go to page 132 to the second full sentence on that page in the joint judgment, “The jury could therefore conclude”, you would also say that the words “and that the violence contemplated amounted to grievous bodily harm or homicide” are superfluous.
MS DOWLING: Yes. Your Honours, while we are in the judgment of their Honours Justices Mason, Murphy and Wilson, I would just for the sake of completeness draw your Honours’ attention to the passage at the bottom of page 130 where they endorse the terminology used by his Honour Chief Justice Street, again talking about contemplation of the act of the principal ‑ ‑ ‑
NETTLE J: It does need to be understood in the context of 125 where they begin that discussion:
The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted –
et cetera.
MS DOWLING: Yes, and the Crown does not step back from that but what their Honours are saying there is that this is the object of the doctrine of joint criminal enterprise and then they are explaining how it works later in the judgment. It works by looking at the agreement between the co‑offenders, looking at what was agreed between them before they started or during the commission of their offence and working out whether what actually happened was within the scope of that agreement. If it was not within the scope then one does have to look at McAuliffe principles.
KIEFEL CJ: But that is by way of saying you are responsible for the result of an act – act, result, pure causation. I almost feel as if we are in the wrong territory here.
MS DOWLING: In my respectful submission, although causation is always ‑ ‑ ‑
KIEFEL CJ: But that seems to be all there is.
MS DOWLING: ‑ ‑ ‑ in the shadows behind foresight, it is not the point that the Court was seeking to make in Johns and in McAuliffe.
KIEFEL CJ: No, but that seems to be the result of your argument and the way which it has been approached that it is – whatever, in the course of – if the act is contemplated within the common enterprise then anything that results from it by way of serious injury or death, responsibility follows without more.
MS DOWLING: Well, as the judgments in Ryan make clear and if one is in the territory of constructive murder, constructive murder provides that a principal offender will be liable for the unintended, unexpected, accidental consequences of his act.
KIEFEL CJ: I understand what you are saying that the crime is constructed upon that premise. It just seems to be rather unsatisfactory perhaps for the reasons the appellant has indicated.
MS DOWLING: Questions of causation will always arise in every criminal trial and it may be that the Crown case falls over or the Crown cannot satisfy the jury that the relevant act ‑ ‑ ‑
KIEFEL CJ: I was not suggesting that there was an issue with causation here but rather that it seems strange that everything seems to depend upon even no more.
MS DOWLING: In my respectful submission, no, that is not a concern because what is being looked at at this stage of the proceeding is what physical act happened and what is your responsibility for that act?
KIEFEL CJ: That is the last question, is it not?
MS DOWLING: But that is the first step in the inquiry because one then has to work out if that, in fact, did cause the death or was a substantial and operating cause of it.
KIEFEL CJ: But responsibility is the last question. The first question is what is the act? Is it within the common enterprise? Did it result in death, grievous bodily harm? Are you responsible for a crime? What is the crime? Who committed it? You are being held responsible with others for a crime.
MS DOWLING: The way in which her Honour Justice Simpson formulated the elements in this case that her Honour considered needed to be satisfied is the way in which the Crown submits is the correct statement of questions and it mirrors the directions required in Sharah.
KIEFEL CJ: Where are you reading from?
MS DOWLING: Appeal book 96, your Honours, paragraph 41, and that requires in the first dot point the satisfaction that there was a joint criminal enterprise to manufacture. Then the act - the lighting of the ring burner was an act within the scope of that. Then 3, 4 and 5 relate to the question of whether that caused - other causation issues.
BELL J: In point of principle, murder being the most serious offence in the criminal calendar, why, in a circumstance such as this, where the act causing death may be accepted to be the act of the deceased, would the law seek to attach liability for that offence?
MS DOWLING: Because in one sense it is not to the point that it was the deceased that could have been killed – that was killed. It could have been another person; it could have been a person in the house next door. The criminality of the appellant’s conduct is not changed by the identity of the victim, and the fact that she has participated in this criminal activity, which included the lighting of a naked flame in a situation where there was a highly volatile, flammable cloud, and then it resulted in the death of another human being is the reason why the law would hold her responsible.
BELL J: We might all accept that the criminal law looks to consequences. The difficulty I am having is not in seeing that if a five‑year‑old child died as the result of an explosion that liability might be sheeted home to the appellant, it is understanding why it should be when the person who did the act for which she is being held responsible is the one who died.
MS DOWLING: That is the nub of this case.
BELL J: Yes.
MS DOWLING: The Crown’s position is that when one talks of the act that it is the act of the appellant and that, as was recently explained in this Court’s decision in Miller and in your Honour Justice Keane’s judgment in that case, the criminal responsibility for those physical acts is shared and co‑extensive. So the fact that one of the other people that shares that liability dies as a result of their act, which is your act, which is shared, that does not then alleviate you of criminal liability for that act. Your Honours, I note the time.
KIEFEL CJ: Yes, thank you. The Court will adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
KIEFEL CJ: Yes, Ms Dowling.
MS DOWLING: Thank you, your Honours. Your Honours, if I may return to the question that was raised before lunch, that is, whether a co‑participant can be liable for the acts of her co‑offender in circumstances where his acts do not amount to a crime – a crime in the physical participant, we do not challenge the correctness of McAuliffe, of course, but it is important to bear in mind, in my submission, that McAuliffe was a case of intentional murder, relying both on principles of joint criminal enterprise and extended joint criminal enterprise.
Therefore, the secondary participant in McAuliffe had to have either agreed to commit a murder or an assault with GBH in the case of joint criminal enterprise, or have had foresight of the actus reus and mens rea on the part of the physical participant for murder. That is the complete crime on the part of the physical perpetrator. So that is why it was appropriate and apt for this Court in McAuliffe, when discussing the application of those principles, to refer to the crime – the incidental crime, because that was what was required. It was complete.
Furthermore, it is not controversial that a co‑participant can be criminally responsible for the physical act of her co‑offender where the co‑offender is not guilty of a crime. The classic example of that is Osland where the co‑offender had a complete defence of self‑defence and was acquitted of the crime. It was raised in this Court as a basis for finding that the mother could not be responsible because her co‑offender had not committed a crime.
It is the Crown’s submission that you do not look to the criminal responsibility of the co‑offender – that is, the physical participant – to determine the criminal responsibility of the passive participant. You look - or the court should look to the elements of the offence and in section 18 the elements are – the element of section 18 is whether there is an act of the accused – and we say in this case that it is her act, by way of her participation in the agreement – causing death and, in the case of felony murder, whether that act is committed in the course of the commission of a qualifying foundational offence.
BELL J: Just to look at the words of the provision, it includes of course:
done in an attempt to commit, or during or immediately after the commission –
of the foundational offence.
MS DOWLING: Yes.
BELL J: So, on the prosecution analysis, if two people commit an armed robbery with wounding and the person who has fired the shot that has wounded feels remorse and turns the gun on himself and shoots himself his co‑venturer is guilty of murder.
MS DOWLING: If that is an act that was foreseen – if that was an act that was within the scope of the agreement, if it is ‑ ‑ ‑
BELL J: Why does it need to be within the scope of the agreement? They have jointly embarked on an armed robbery with wounding. That has taken place and in a fit of remorse one kills himself immediately afterwards. Why does it not fall within the words of section 18 on your construction?
MS DOWLING: On the Sharah construction, it is a necessary requirement that the act causing death be foreseen by the co – by the passive participant, the non‑physical participant and if one adopts that Sharah requirement which is what her Honour Justice Simpson held was appropriate in this case then the answer to that question would probably determine that prosecution and it would be probably unforeseen and, therefore, responsibility would not be - criminal responsibility would not lie with the passive participant.
Your Honours, while I am just addressing this question of derivative liability, my learned friend has submitted that his Honour the trial judge, Justice Hamill’s findings were not impugned on this point. The Crown joins issue with that submission and refers the Court to the judgment of the CCA at paragraphs 60 and 61 which are at appeal book 102 and it is clear, in my respectful submission, there that her Honour Justice Simpson did disagree with Justice Hamill’s characterisation of the offence in those terms and also at paragraph 64 which is on appeal book 103.
EDELMAN J: Ms Dowling, can I just ask you, immediately prior to the 1883 Act, the texts that treated of the various different categories of homicide treated murder and including felony act murder quite separately from a category of felo de se which was all the circumstances in which a person could be liable for murder where somebody else had killed themself. Is it necessary on your construction that those two categories have to be conflated in order to bring them both within section 18?
MS DOWLING: As your Honour is well aware, the evolution of the statutory expression of murder in section 18 is unusual in that it starts from a – the starting point is that all homicides are murder if they were not proven to be done by misadventure or in self‑defence. As was explained in the decision of Lavender, various categories of killing were hived out and separated from murder.
In the Crown’s submission, section 18 takes – section 18 as it was enacted took five categories of killing and limited murder in the State of New South Wales to those five killings and they were intent to kill, intent to GBH, reckless indifference to human life, an act causing death caused in the course of an act that was obviously dangerous to human life and then the felony murder.
EDELMAN J: All of those categories are precisely set out in works such as Kenny.
MS DOWLING: Yes.
EDELMAN J: But they are treated very separately from felo de se which is where a killing is not of another – the killing is – the starting point is the killing of oneself.
MS DOWLING: It is not an aspect that has flowed into section 18. Section 18 is not limited – is not in its terms confined to the killing of another. It is an act causing death.
EDELMAN J: Well, I suppose that is the question of whether one reads “causing the death” as causing the death of another or including all of the circumstances that would have been brought in with felo de se - causing the death of oneself.
MS DOWLING: It is not a question that I have prepared an answer to, I am afraid to say, your Honour. It certainly has not come up before, in my researches, under section 18, and with the abolition of the crime of suicide it is not one that comes up very often. As the authorities stress, section 18 is to be construed according to its terms and that it is a complete explanation of the categories of killing that will qualify as murder. To the extent that it is not stated to apply to the killing of another we say that it is not so limited.
However, it is the Crown’s position that the appellant in this case did cause the death of another, notwithstanding that another cause of death was he himself, because of course their liability is co‑extensive. We do not rely on the crime of killing oneself to attribute liability to her in this prosecution.
EDELMAN J: Unless one were to read the act that is being attributed as the act causing the death. You want to read the act separately from the element of causation, but if it is read as essentially a compendious whole, the act causing the death, then there could be a very big difference whether the act causing the death is the act causing the death of another that is attributed or the act causing the death of oneself that is attributed.
MS DOWLING: We say in this case it is the act causing the death of another because it is the act of the accused causing the death of the deceased.
EDELMAN J: But the Crown case cannot exclude the possibility that the deceased killed himself.
MS DOWLING: The act is hers by operation of joint criminal enterprise principles and I appreciate that that perhaps is just coming back to the point that I was making before lunch but in circumstances like this where we cannot exclude that he was the person that lit the ring burner that has to be the basis upon which the prosecution can succeed.
Your Honours, turning to 2(d) on our outline, it is important, in my respectful submission, to – one of the problems with the way the appellant has framed the argument - to remember that it is a constructive murder case and the mens rea ordinarily required for murder on the part of a physical participant is constructed and imposes liability for an unintended death in particular circumstances.
As the Court explained in Ryan the physical perpetrator is liable for the unintended consequences of his actions. That is what is perceived to be the unfairness in the operation of the felony murder rule. Whether an act causing death is performed by a sole accused in the course of committing a qualifying foundational offence, there is no requirement that she or he foresees death.
The appellant does not appear to challenge this proposition and nor could she without challenging the correctness of Ryan. In Ryan’s Case your Honours will recall that the appellant argued that he did not deliberately pull the trigger on the loaded gun that he was using in the course of his armed robbery.
The South Australian Full Court in R v Van Beelen (1973) 4 SASR 353 observed that if subjective foresight of death or grievous bodily harm were required in the context of a sole offender there would be no content left in the doctrine of felony murder since an unlawful act committed with foreknowledge that it was likely to cause death or grievous bodily harm would itself amount to murder if death resulted even if no question of the commission of any other felony were involved at all.
Yet the appellant contends that where the act of the accused – I am sorry, I withdraw that – where the accused was a co‑participant in the foundational crime but did not physically perform the act causing death, she should be required to foresee the possibility of death and presumably and I believe that my learned friend has agreed that foresight of the commission of grievous bodily harm would not be sufficient, that position can be contrasted with the position of a primary offender for an intentional murder where intention to cause grievous bodily harm is sufficient to be liable for murder.
Your Honours, as has been observed earlier in the argument, this Court has consistently confirmed that the state of mind necessary to establish constructive murder in relation to the principal – the physical perpetrator of the act causing death is that necessary to prove the foundational offence together with proof that the act causing death was voluntary and Mraz and Ryan are the authorities for that proposition, neither of which are challenged by the appellant.
The proposal that the offence of constructive murder should now contain an additional new element applicable only to the non‑physical participant to a joint criminal enterprise is, in the Crown submission, completely contrary to both principles of complicity expressed in various decisions of this Court such as Osland and Miller and principles concerning the operation of constructive murder and its equivalence in decisions like Johns and Arulthilakan. Of course, I have already taken your Honours to Sio.
Just returning very briefly to Sio (2016) 334 ALR 57, if I may, your Honours will note that in the discussion of the directions for constructive murder there was no requirement of foresight of death on the part of the secondary participant, Mr Sio. That is because the joint criminal enterprise in that case was to commit a robbery with wounding and the act causing death was the wounding. There was no further requirement for a discrete direction concerning foresight.
As the Court noted at paragraph [27], your Honours, had the jury been properly directed on the section 98 charge – that was the armed robbery with wounding:
there would have been a complete coincidence –
between the elements of the foundational offence and the elements of the constructive murder as they applied to that secondary participant.
Your Honours, if I could now take you to Arulthilakan 203 ALR 259. This is a case arising under the South Australian legislation, statutory murder legislation. The elements of the offence of statutory murder are, for the purposes of this discussion, not relevantly different to those that arise under section 18(1)(a). That is adverted to in the judgment at paragraph [28] of the court – I am sorry, the judgment of the majority, Chief Justice Gleeson and Justices Gummow, Hayne, Callinan and Heydon.
The Crown case was that Mr Arulthilakan was a party to a joint criminal enterprise to commit an armed robbery with Mr Escalante and that would qualify as a foundational offence in South Australia, not in New South Wales, but under this legislation it did.
In the course of the robbery, Mr Escalante, the co‑offender, stabbed and killed the victim. If I could take your Honours to paragraph [16] on page 263 at about point 5 on the page. This is where the Court reproduced the charge to the jury and the paragraph starting “As to joint enterprise”, your Honours, and the passage to which I seek to draw the Court’s attention is the last two sentences where the trial judge said:
I realise that sounds very similar to the concept of joint enterprise in relation to common law murder –
because the Crown case was on two bases:
but it is different in that it is not necessary that any of the accused had an intention to cause death, or to cause grievous bodily harm, or contemplated as part of the joint enterprise the possibility that the use of the knives could result in an intentional inflicting of grievous bodily harm. That is the difference between –
statutory murder and common law intentional murder. The jury were instructed, directed that it would be sufficient for the Crown to establish a joint enterprise to rob the victims that included the use of knives and other weapons and that the co‑participant, Mr Arulthilikan, contemplated the use of the weapons to threaten or intimidate.
Indeed, at paragraph [46], which is on page 270 of the report, your Honours, his Honour Justice Kirby, identified that statutory murder was easier for the Crown to prove in that case because it did not require proof of an intention to kill, cause grievous bodily harm or contemplation as part of a joint criminal enterprise of the possibility that the use of knives could result in the intentional infliction of, at least, grievous bodily harm.
Importantly, for the purpose of my submission, there is no suggestion in this judgment that foresight of death was an element of statutory murder as applied to secondary participants which is what the appellant seeks to urge upon the Court in this appeal. If one uses the language of the appellant in her written submissions, the relevant connection between the secondary party and the homicidal act was his participation in the joint criminal enterprise to commit an armed robbery.
In Arulthilikan, as in this case, the act causing death was well within the scope of the joint criminal enterprise to the parties to the agreement. Both Sio and Arulthilikan are joint criminal enterprise constructive murder cases where the elements of that offence were considered directly by this Court. In neither of those cases is there a suggestion that foresight of the possibility of death is an element necessary to be proven by the Crown to inhere liability or constructive murder on the part of the secondary participant. To introduce the new element that is now suggested by the appellant would be, in the Crown’s respectful submission, inconsistent with those authorities.
Your Honours, the appellant acknowledges that her proposed new element would introduce a disparity between the elements of constructive murder as they apply to a sole offender in contrast with their application to offenders who act in concert pursuant to a joint criminal enterprise.
As the primary participant who physically does the act does not need to foresee the possibility of death, in the Crown submission, there is no principled reason to require the co‑participant to foresee the possibility of death. If one accepts the correctness of the principles as explained in Miller, the liability is co‑extensive and each co‑participant is properly regarded as a principal.
The addition of a requirement of foresight of death, as suggested by the appellant, would create a distinction between persons who are properly regarded as joint principals in the foundational offence that is inconsistent with these well‑established principles of complicity. The argument that such a disparity is warranted because the act causing death was not the act of the accused, if accepted, in the Crown submission, would subvert the policy rationale repeatedly endorsed by this Court in relation to offences committed pursuant to a joint criminal enterprise and would be contrary to the principles described in Johns, Osland and Miller.
As your Honours are aware, the policy reasons for attributing co‑extensive liability to co‑venturers in a criminal agreement are well understood and operate fairly and were most recently explained in your Honour Justice Keane’s judgment in Miller. The application of those established principles in the existing case does not diminish the importance of the concern that criminal responsibility should reflect the moral culpability of an individual offender, as suggested by the appellant, because in the agreed pursuit of the criminal purpose the moral and criminal responsibility of the participants is regarded as the same.
GAGELER J: Would your argument be the same if the case were one of extended joint criminal enterprise?
MS DOWLING: Yes, our argument would be the same, and the requirement of foresight in extended joint criminal enterprise would apply to this offender. The view of the Court of Criminal Appeal certainly is that the Crown could not succeed on this fact scenario with an extended – and that is why it is so confined – the application was so confined to joint criminal enterprise rather than extended.
It is, as his Honour Chief Justice King observed in R v R, if it is accepted that the physical perpetrator should be liable for the unintended consequences of his actions in the course of the foundational offence, because in undertaking to commit that offence he accepts responsibility for what occurs during its commission, then there is no sound policy reason why other participants in that offence who have agreed with him to commit it in that fashion should not also have to accept the same responsibility.
If I can turn briefly to manslaughter, it is the respondent’s submission that the Court of Criminal Appeal was correct in finding the appellant’s liability for the act of the deceased in lighting the burner was co‑extensive for the purposes of manslaughter as it was for murder. Your Honours are familiar with the elements of manslaughter and that it has an objective and subjective aspect to it.
The assessment of the dangerousness of the act is an objective test: would a reasonable person in the position of the appellant have realised that the act exposed others to an appreciable risk of serious injury? It is uncontroversial that liability for manslaughter arises where death was neither foreseen nor intended.
This Court has rejected submissions that principles of accessorial liability, including joint criminal enterprise, fail to properly reflect the culpability of accessories and has observed that a person who participates in an illegal and dangerous act from which an unintended death results should be liable for manslaughter whether as a result of the applications of principles of joint criminal enterprise or accessorial liability.
The Crown case is that the appellant agreed with the deceased to engage in an unlawful act of manufacturing methylamphetamine which, for the reasons set out by the Court of Criminal Appeal at paragraph 95, appeal book 112, was plainly dangerous. It involved the evaporation of a highly volatile and flammable substance in a small, unventilated room where there were numerous sources of ignition that could trigger a fire or explosion.
At paragraph 95 at appeal book 112, Her Honour Justice Simpson makes it clear that the question of dangerousness was a question that could go to the jury. Clearly, this was a subjective question that her Honour identified and properly considered.
If I could turn now to ground 2 and the question of malice. It is the respondent’s submission that the contention that section 18(2)(a) requires proof of malice as an additional element over and above proof of the mental element of the foundational offence is not supported by authority and is inconsistent with the rationale that underpins constructive murder.
As my learned friend has taken you to, the Criminal Law Manual 1883 - and I will not take your Honours back to that document but as Stephen noted at common law every homicide was prima facie malicious and so was murder unless the accused could demonstrate that the killing was justified or excused and Sir Alfred Stephen recites various instances of implied malice that would support a conviction for murder.
Stephen noted that section 9 of the 1883 Act which became section 18 differs from the English common law in relation to constructive murder in that it will not amount to murder unless the felony amounts to a capital one. In prosecutions from this State for constructive murder or for felony murder, it was recognised that once the mental element necessary to establish the foundational offence was made out, malice was also established. It was constructive.
If I can take you very briefly to the Court of Criminal Appeal judgment in Mraz to which my learned friend has already referred – sorry, your Honours, I will just find the reference (1955) 72 WN (NSW) 422, towards the end of the judgments, your Honours, at page 430 his Honour Justice Herron makes some observations about the meaning or the use of the word “maliciously” in section 18(2)(a) and refers to at about point 5 on the left‑hand column at 430 the list of offences punishable by death that qualified as foundational offences at the time of the – as at the enactment of the first version of section 18. At the top of the next column, still on page 430, his Honour observes that:
All these are examples of malicious acts of such a grave nature as to have warranted provision for the penalty of death or penal servitude for life, and are crimes which must be taken to fall within the definition of malice, either at common law or according to s 5 –
At the bottom of that page, your Honours, after referring to a number of authorities including the other Justice Stephen’s judgment in Serné, his Honour Justice Herron observes that:
It seems that the view will probably prevail, if in a proper case an actual decision on the point becomes necessary, that the purpose of s. 18 was to substitute acts or omissions of a stated character which extend to some extent the common law position and to define what in New South Wales must be taken to involve malice aforethought as applied to homicide.
So, it was certainly his view that the proof of the commission of the felony was sufficient to establish the necessary degree of malice for the purposes of 18(2)(a) and that is the view that was then endorsed in this Court in Mraz 93 CLR 493 which my friend has already taken you to. There was less consideration of that requirement because in the facts of that case it was self‑evidently an act of malice. It was the rape during the course of which the complainant died.
Ryan 121 CLR 205 is the next and other High Court authority that really addresses the point, as your Honours have been asking my friend about before the lunch break, and in the decision of his Honour Justice Windeyer at page 241 about point 6, your Honours, his Honour Justice Windeyer details the history of “the modification of the common law of felony murder” and how it addressed the concept of “malice aforethought” and refers to the fact at about point 6 on the page:
the effect of the New South Wales definition was to banish the expression “malice aforethought”, but not otherwise to alter the common law, except in one respect. “In one particular”, they said –
and he is referring back to the extra curial writings of Sir Alfred Stephen and Alexander Oliver:
“there is an important difference. The accidental taking of life, by a person committing (or about to commit) a felony of any kind, is by the common law murder. Under the ninth section it will not amount to that crime unless the felony was a capital one or punishable by penal servitude for life”.
Then over at page 244, your Honours, at about point 2 after the reference to Woolmington, his Honour observed that:
with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication.” This is the law of New South Wales just as it is of England. The only difference is that in New South Wales the statute defines the circumstances in which “malice”, as the common law understands it, is taken to exist.
That of course links back up what his Honour said earlier, that a felony will suffice that mental element, be sufficient for. Those statements of principle are also picked up by the judgment of the Court in Lavender at paragraphs 25 and 26 where it was observed that malice aforethought for murder could be established by proof of the intention “to commit any felony whatever”. That was in the context of the previous common law but in the
Crown’s submission of constructive murder, it is proof of the intention to commit the foundational offence.
If this is accepted as a correct statement of that proposition, it is not strictly necessary for this Court to consider the correctness of recklessness - section 5 recklessness as a basis for finding malice and that is the purpose of the notice of contention filed by the respondent. In relation to the availability of recklessness as a sufficient state of mind, the appellant argues that because death is not just a variation by degree of some physical harm, the reasoning in Coleman and Cunningham is inapt.
Your Honours, the Coleman test, as your Honours are well familiar with, provides that liability attaches by reason of the advertence of the accused to the risk of some harm, some physical harm. It is designed to exclude – it is an exclusionary provision that is designed to exclude liability for acts where the infliction of any harm is unforeseen. Once harm is foreseen, recklessness is established for the purpose of establishing malice
So an accused will be held liable for the infliction of grievous bodily harm where she foresaw that her act might cause some fairly minor physical harm. In such a case, on the appellant’s argument in that scenario, if that victim died of his or her injuries, the accused would not be held liable unless she foresaw the possibility of death, and that is not an appropriate way to reason about recklessness in the respondent’s submission. Your Honours, those are the Crown’s submissions. Thank you.
KIEFEL CJ: Thank you. Is there anything in reply?
MS RIGG: Firstly, it is submitted that the Court ought bear in mind the distinction that exists between what a person is responsible for and what a person has foreseen, that which has to be foreseen and that which is responsible for. So a person may be responsible for acts, yet it is nonetheless a crime that needs to have been foreseen. They are distinct issues in my submission.
Secondly, it was twice submitted that the appellant was part of a joint criminal enterprise to light or ignite a burner and create a flammable cloud, on another occasion that she agreed to commit the offence in the way that it was – in that fashion, that is, the fashion in which it was committed. The appellant’s response to that is that this has never been part of the Crown case. This is central to the appellant’s argument – is that all that the Court of Criminal Appeal has required is her guilt of count 1 and contemplation of an act. It forms no part of the judgment that she needs to be part of any – party to or knowledgeable about any more specific aspects of the manufacturing than that.
Without needing to go into the evidence that arose in the case, the Court needs to bear in mind, in my respectful submission, the obvious proposition that people commit crimes pursuant to joint criminal enterprises in widely varying roles and methods of contribution. Your Honours have the remarks on sentence of Justice Hamill in the appeal book and if I could take your Honours to pages 34 and 36 of the appeal book – perhaps page 36 will – perhaps page 34, firstly, at paragraph 13 of the remarks on sentence. His Honour said that:
it is clear that, at the very least, the offender was involved in the manufacture by permitting Lan to use her premises for the singular purposes of manufacturing methylamphetamines in very large quantities.
He then went on and referred to some other particular aspects which are then picked up again on the next page, on page 36, when his Honour summarises these issues. Relevantly, at paragraphs 22 and 24 of the remarks on sentence, his Honour, dealing at this stage with evidence that arose in the Crown case and the defence case, sentenced IL on the basis that her culpability was in agreeing to allow the deceased to use her premises for manufacturing and undertaking two tasks at his “request or direction”.
There was then one further act that arose specifically in the context of the defence evidence but even one of those errands at his request or direction, only one of those arose in the Crown case. So, she was treated for the purposes of sentence as someone not involved physically in any way in manufacturing but who had permitted her partner to use her premises for his manufacturing.
It is important to simply, in my respectful submission, bear in mind that there is a wide divergence of ways in which people can commit crimes and that central to the appellant’s arguments about the lack of sufficient connection required by the Court of Criminal Appeal for murder and the same applies for murder, the submission was advanced that the court found addressed at paragraph 95 of the judgment the ways in which objectively this enterprise was dangerous but the problem was that the court did not require IL to have any knowledge or understanding or contribution to those aspects that were said to be dangerous. She simply had to be guilty of count 1 and to have contemplated not even those circumstances but contemplated the act causing death.
Thirdly, in relation to the case of Sio, might I remind the Court that that was a case where Mr Sio had been acquitted of murder and so the directions in relation to murder were not under consideration at all by the court insofar as there was a checking of the murder directions as against the armed robbery directions, that was simply an analysis of the directions
as left to the jury. There was no – the judgment involved no analysis in any way of whether the directions in relation to murder were correct or not.
Similarly or additionally, I should say, in relation to the case of Arulthilakan, the important point there is – or an interesting point, in my submission, is the trial judge’s comment to the jury that his directions in relation to intentional murder and in relation to joint criminal enterprise murder sounded quite similar and so they should in the appellant’s submissions, the difference being intent.
In a situation like this, the relevant difference is whether the accused on an intentional murder case has seen an intentional act causing death during the course of a crime whereas, in our submission, the question is whether the accused has foreseen an act causing death during the course of the foundational crime but without such intent. There should be that similarity there and that is how the two situations should compare. Arulthilikan is a case where, like many of the others, it is the act rather than the results that is relied upon, but that is a matter upon which the parties have already made submissions.
On the question of the alleged disparity, the appellant’s submission is that this is not contrary at all to principles of joint criminal enterprise because, if the court is looking at foresight‑based complicity, the culpability is in the risk taking and it is for that reason that the culpability of the non‑principal accused is judged differently from the principal and there may be a differing level of intent or mental awareness between the two parties.
In fact even if it were the other way around or, if I might say, the more unnatural way around in a case like Miller, where the secondary party had a lesser requirement, that disparity was not said to be problematic. Here the same principles apply, in my respectful submission. Thank you, your Honours, those are the submissions in reply.
KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise until 10.15 am.
AT 2.57 PM THE MATTER WAS ADJOURNED
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