IL v The Queen

[2016] HCATrans 279

[2016] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S124 of 2016

B e t w e e n -

IL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 NOVEMBER 2016, AT 11.57 AM

Copyright in the High Court of Australia

MS B.J. RIGG, SC:   May it please the Court, I appear for the applicant.  (instructed by Benjamin & Leonardo Criminal Defence Lawyers)

MS S.C. DOWLING, SC:   Your Honours, I appear with MS H.R. ROBERTS, for the respondent.  (instructed by Director of Public Prosecutions (NSW))

GAGELER J:   Yes, Ms Rigg.

MS RIGG:   Your Honours, it is submitted on behalf of the applicant that without any particular grounds requiring it to do so, the court below has outlined a far‑reaching theory of complicity in charges of constructive murder and manslaughter which, in the applicant’s submission, was wrong in substance and was decided without jurisdiction.

For the first time since well before Mraz in 1955, the court below has recognised that “malice” in section 18(2) of the Crimes Act (NSW) is a meaningful requirement for murder in this State but then has failed to give “recklessness” its usual meaning which would so plainly have warranted the acquittal of the applicant in this case. The court has also failed to outline a workable definition of it otherwise and failed also to give any instruction as to how additional elements would be addressed to make out malice in a constructive murder charge.

Justice Simpson acknowledged that it was important that the Crown could not prove the respondent lit the ring burner but then proceeded to determine if she had merely contemplated the possibility of lighting the ring burner it made no difference to the murder or manslaughter charge, that the act causing death was not hers.

GAGELER J:   I think we understand the basic way in which you put the substantive argument.  You mention the jurisdictional argument, that is the subject, I think, of the first two of your proposed grounds of appeal.  How do you put that?

MS RIGG:   Your Honours, it is submitted that the very restrictive nature of the right of appeal for the Crown where there has been a directed acquittal, as set out in the summary of argument, was not met here.  The notice of appeal, if looked at, discloses, on its face, no question of law alone.  No one would pick up that document and have any understanding what abstract question of law alone is to be discussed, decided, and checked for application as compared to the trial judge’s determination. 

It was, however, accepted on the applicant’s behalf that the Crown had particularised what it said was the question of law alone in its written submissions and so, although it should have been particularised on the notice of appeal, it was adequately particularised in the written submissions, but the question of law alone it particularised was not one, it was simply that the trial judge had failed to take the Crown case at its highest, that this demonstrated an error because of a failure to deploy this in Doney v The King and May v O’Sullivan and, accordingly, the Court should uphold the appeal. 

So, the Crown proceeded, essentially, to summarise what it said the evidence demonstrated, made various assumptions of law, asked the court to come to a conclusion and submitted that the trial judge had not applied the correct test because he had not taken the Crown case at its highest.  So, the fundamental error that the Crown pursued in the court below was this; in Justice Hamill finding that the applicant was an accessory or a principal in the second degree in relation to the drug manufacturing charge, he had failed to deploy the correct test by not taking the Crown case at its highest and, consequentially, the finding about derivative liability was flawed. 

There was no legal articulation at all in the court below that there was any general legal question about derivative liability or direct liability.  It all flowed, in the Crown’s submission, from the wrong finding on the totality of evidence that the applicant was a principal in the second degree.

So, in our submission, the simple answer to the Crown’s appeal should have been, firstly, that is not a question of law alone and, secondly, that the judge had not erred in the way that the Crown alleged because it seems that the Crown, even now, seems to accept that what Justice Hamill was doing was looking for liability in relation to the murder charge.  He did not make a finding that she was a principal in the second degree in relation to the manufacturing charge, the subject of count 1. 

In any event, the court did not answer that question.  That which the Crown put forward is the fundamental aspect of their appeal was unanswered and the questions which looked answered were not the subject of appeal by the…..So, the fundamental nature of the court’s decision as to what the relevant error was is the suggestion that the trial judge focused on whether IL had contemplated injury or death, whereas he should have focused on whether she contemplated the lighting of the ring burner and that appears from paragraphs 60 of the judgment which is at application book 143.

The other paragraphs outlining the substance or the merits of the appeal all brought it back in to what they said was – what her Honour Justice Simpson said was that core central error that had been made by Justice Hamill.  But the Crown had never raised this issue with the – as a basis of appeal.  So, the trial judge’s analysis of the Sharah issue – so this is the passage where his Honour outlines the conflicting authority in relation

to that additional protection for secondary parties and then said on the evidence at its highest that it cannot be said that this applicant contemplated that anyone would be injured, let alone die, and looked at the requirements in Sharah.

The trial judge’s analysis of those issues were not referred to in the part of his judgement where he gave his reasons for directing acquittals.  In a much earlier part of his judgment dealing with a wide‑ranging review of some aspects of the legal landscape…..At that point, his Honour specifically said it was not to be the basis upon which he determined the application.  There was then no ground articulated by the Crown or question of law alone articulated which ever suggested that the judge’s reference to Sharah or the requirement said to be in a contemplation of injury or death was in evidence, nor that he was in error in not – to not consider that the Crown had to prove only that IL contemplated the possibility that the ring burner ignited.  So, that central aspect that was found to be erroneous by the Court of Criminal Appeal was not the subject of any Crown’s grounds nor its articulation of the question of law alone.

There were some limited submissions made by the Crown in support of ground 1.c which was the closest that the Crown went to to even criticising that, but that was in support of a different ground and it was not connected to that ground or the question of law alone there articulated.  So, derivative liability was not raised ‑ ‑ ‑

GAGELER J:   We might be assisted by hearing from Ms Dowling at this point.

MS RIGG:   Thank you, your Honours.

MS DOWLING:   Thank you, your Honours.  The appellant acknowledges in her written submissions that the prosecution did raise complex questions of law and it is uncontroversial that the wrong description by a trial judge of a relevant legal principle is an error of law alone and, similarly, consideration by a trial judge of a matter that is legally irrelevant or that is not permitted at law to be taken into account is also a question of law alone.

The question for the trial judge in this case on the application for a directed verdict was, taking the Crown case at its highest would the evidence sustain a verdict of guilty?  That test was correctly expressed by the trial judge.  But necessarily to perform that task, the trial judge must identify the elements in the Crown case.  That is also a question of law alone.

Having then correctly characterised the legal elements of the Crown case, as is required to consider whether the new evidence was capable of supporting a verdict on that case, here the Crown case was that the applicant’s liability for murder and/or manslaughter that…..put to you pursuant to the operation of the law of joint criminal enterprise in relation to manslaughter and directly as a principle – under the felony murder rule.  Now, that much was ‑ ‑ ‑

GAGELER J:   This combination of joint criminal enterprise with felony murder seems to me to have an element of novelty about it.

MS DOWLING:   It is routinely the basis for proceedings for felony murder where the foundational…..serious personal violence.  It is also – but section 18 does not so limit the ambit of felony murder.  It applies to, as your Honour’s know, any offence which carries – which is punishable by imprisonment for 25 years or more.

Now, there are a number of offences in the Crimes Act that satisfy that criteria and also in the Drug Misuse and Trafficking Act and they do not all include elements of violence.  There are sexual offences against children.  There is the offence of specially aggravated kidnapping.  There are specially aggravated break and enter offences that do not include, as an element of those offences, the infliction of any violence.  So, it is clear on the face of section 18 that it does extend to offences that do not have an intrinsic violent quality to them.  It is also – the case law is replete with examples of cases ‑ ‑ ‑

NETTLE J:   Ms Dowling, are cases routinely prosecuted in this State which do not involve violence and yet are put up as felony murder by the basis of complicity?

MS DOWLING:   They are not routinely prosecuted.  There are examples, in fact, Mraz is an example of one.  In Mraz, the foundational offence, and that was a case coming from New South Wales, although it was a long time ago.

NETTLE J:   It was rape, though.

MS DOWLING:   It was rape but there was no violence and the cause of death was not clear and, in fact, it was assumed in the appeal court, and at trial in the appeal court and in this Court, that the deceased had died of shock, not through the infliction of any violence, in the course of the commission of the felony.  Interestingly, in Mraz, in relation to the malice element, it was held that proof of the commission of the underlying felony, the foundational offence, was sufficient to establish the requirement of malice and that is an observation that is also in the judgment of Justices Toohey and Gaudron in Royall.  That is merely an aside and also to meet the fact that my friend started her submissions by reference to Mraz. 

There are examples of other prosecutions for offences which do not involve violence but they are infrequent because when a person is committing a felony punishable by 25 years that does not include violence, it is less frequent that death occurs in the commission of that offence. Clandestine drug labs, however, are an example where this is – where death or really serious injury is likely to happen, or a more likely consequence of the conduct of the felony, and that is because, as the trial judge observed, and the CCA observed in this case, they are inherently dangerous due to the method of manufacture which involves the evaporation of highly volatile flammable vapours and, of course, the ignition sources that are used in order to get the evaporation process happening.

If I could just come back to the question of law issue raised by my learned friend, the anterior step required by the trial judge was to identify the elements of the Crown case which he then was to apply to the evidence that was before him.  The Crown did not advance the case based on accessorial liability of the kind considered by this Court in Likiardopoulos.  The Crown case was one of joint criminal enterprise in relation to the manufacture offence.  However ‑ and this is at application book 20, your Honours – the trial judge in the part of his judgment where he is referring to general principles, referred to the judgment of this Court in McAuliffe and at the top of page 20 there is a heading “Accessorial and derivative liability” where his Honour referred to the decision of this Court in Likiardopoulos and observed the general principle that:

A person present at the scene of a crime assisting or encouraging its commission is described as a principal in the second degree –

and his liability is derivative.  Now, that was a matter that was not legally relevant to the consideration of the elements of the Crown case that his Honour was required to determine before turning to the facts to see whether they could sustain a verdict.  That error is where this judgment goes wrong because his Honour did find that she was more properly characterised as an accessory at the fact, therefore her liability was derivative and not co‑extensive.  This was not the basis upon which the Crown put its case at trial and it was not a matter that could properly be considered by the trial judge in determining whether the Crown…..the Doney test.

Her Honour Justice Simpson held that both the grounds of appeal before the Court of Criminal Appeal did identify errors of law in the approach – questions of law alone in the approach taken by the trial judge in that she found that the grounds as pleaded asserted a failure to apply the correct legal test to the question of whether there was a prima facie case on murder and manslaughter.  Now, that is not a reference to the Doney test, it is a reference to the test of what are the elements of the Crown case.  Her Honour Justice Simpson, with whom the other members of the Bench agreed, considered this at application book 142 and 143. 

In relation to the murder charge, her Honour found that ground of appeal 1(a) was a complaint that the finding of derivative liability was a direct result of the incorrect statement of legal principle which was identified in ground 1 and that is the statement – the principle to which I have just taken the Court.  Clearly, that is a question of law alone.

Her Honour correctly identified, in the Crown’s submission, ground 1(a) raised a clear question of law alone, namely, is criminal liability constructive murder derivative or direct.  Her Honour then considered subparagraph (b) to be a complaint that the finding was a direct result of this application of incorrect legal principle. 

Your Honours, the respondent accepts that ground 1(b) as it was formulated in the Court of Criminal Appeal may not add much to the question of law alone that were identified in ground 1 and subparagraph (a).  However, it is the Crown’s submission that once a question of law alone was identified then the Court of Criminal Appeal’s jurisdiction was enlivened and the rest of the ground, perhaps it is regarded as surplusage, but it is not to the point, particularly in this Court, once it can be seen that there was a proper basis for the Court’s jurisdiction.

In relation to ground 1(c) as it was pleaded in the Court of Criminal Appeal, her Honour found that properly understood, the question of law alone identified was that his Honour took into account an irrelevant consideration.  Namely, he thought it could be said that the deceased did all things necessary to constitute the crime of murder.  That was irrelevant because taking the Crown case at its highest on the charge of constructive murder which arose through the commission of a joint criminal enterprise, the evidence could sustain a verdict of guilty.  However, on the mischaracterisation of the Crown case, the trial judge had erroneously found that it could not. 

In relation to the second ground of appeal in the Court of Criminal Appeal which related to the charge of manslaughter, the question of law raised in ground 2(a) was again whether the trial judge had identified the correct principle to be applied in determining whether the Crown case at its highest could sustain the guilty verdict.  Again, the question was the same, his Honour was required to properly characterise the legal elements of the Crown case before turning to the factual question that his Honour had to determine.

Ground 2(a) in the CCA referred to the finding that it was necessary for the Crown to establish that the applicant and the deceased acted together in the…..of the burner.  Her Honour Justice Simpson correctly, in the Crown’s submission, identified that this involved the consideration by the trial judge of a legally irrelevant consideration arising from a misconception by his Honour of the correct test and that is at application book…..

As her Honour had done with ground 1, her Honour characterised 2(b) as flowing from 2(a) and, again, I make the same submission, that even if this Court took the view that ground 2(b) was more properly characterised as a mixed question of law and fact, given that 2(a) did identify a question of law alone, the Court of Criminal Appeal’s jurisdiction was properly enlivened.  The applicant also criticises the course taken by the Court of Criminal Appeal in determining all the issues that flowed out of consideration of the primary question of law alone.

However, it is the respondent’s submission that this criticism is misplaced because the Court of Criminal Appeal ultimately had to consider whether the discretion to order a retrial should be exercised in favour of the Crown and if it could be demonstrated that the Crown case had no prospects of success for either a factual reason or a legal reason further down the chain of reasoning that had not been considered by the trial judge because he took what, in the Crown’s submission, is a wrong turn fairly early in the piece, if it could be demonstrated that the Crown case was doomed then it would be inappropriate for the discretion to order a retrial to be exercised in favour of the Crown, so that was why it was incumbent upon the Court of Criminal Appeal to then consider how this matter would play out if you did that to a jury.  Her Honour certainly did not make factual findings in relation to that.  Her Honour just identified that there was material that was capable of going to a jury for resolution of these factual questions.

GAGELER J:   Are you going to deal with the substantive points that are argued?

MS DOWLING:   Yes.  Would you like me to deal with those now?

GAGELER J:   Yes.

MS DOWLING:   In relation to proposed ground 2(iii) and special leave question 3, which is the act of the accused and the question of dangerousness in manslaughter, it is the respondent’s submission that the issue identified in special leave question 3 does not arise in this case because in law the act of lighting the burner was the applicant’s act for the purpose of fixing criminal liability for the consequences of that act.  That is the effect ‑ ‑ ‑

GAGELER J:   That might be the question.

MS DOWLING:   I am sorry?

GAGELER J:   I said that might be the question.

MS DOWLING:   Well, it is the respondent’s submission that that is the effect of the proper application of the principles of joint criminal enterprise as explained as recently in judgments of this Court as in Miller and Osland and McAuliffe.

NETTLE J:   Not under the felony murder rule necessarily.

MS DOWLING:   I am, in particular, addressing on the manslaughter ground.  The felony murder point is somewhat different because it specifically refers to an act of the accused or of the accomplice.  So, there is a certain overlay in relation to that question but if I can confine this submission to the question of manslaughter it may help the Court determine which of these questions is perhaps appropriate for a grant of special leave and which ones are not. 

The court below held and, in the Crown’s submission, correctly, that the act of igniting the ring burner was an act attributed to the accused even if it was physically carried out by the deceased because of the fact that they were engaged in a joint criminal enterprise to commit the crime of drug manufacturing, and that is found at application book 144 in the context of the felony murder consideration and at 146 in the context of manslaughter.  Importantly, your Honours, the Court of Criminal Appeal described the drug operation as a plainly dangerous chemical operation being undertaken in a confined space in wholly unsuitable premises with primitive equipment. 

The applicant, in this Court, accepts that the lighting of the burner was an act within the ambit of the joint criminal enterprise to manufacture methylamphetamine.  So, there is no issue between the parties in that regard.  The act causing death identified by the Crown and accepted by the Court of Criminal Appeal for the purposes of the appeal was the lighting of the ring burner in circumstances of highly flammable vapour had been created by the evaporation of the acetone. In this sense, it was held that whether or not the deceased physically did the act that caused his death was irrelevant because of the co‑extensive quality of the liability for acts done in furtherance of that joint criminal enterprise. 

GAGELER J:   I can see the logic.  It is just where the logic leads you is something that we have to come to grips with in this case.

MS DOWLING:   In relation to unlawful and dangerous act manslaughter, the logic leads you into a place that this Court would be comfortable with when one looks at the statements of policy in McAuliffe and in Miller.  If two participants to an unlawful and dangerous act do things between them necessary to effect that there is no policy reason why when something goes wrong that was reasonably foreseeable then – that was dangerousness – that carried an appreciable risk of danger within the test for dangerousness in manslaughter…..policy reason why the co‑venturer should not be held liable in manslaughter for that act.

GAGELER J:   What about murder?

MS DOWLING:   The Crown says that the pathway that one gets to there is different for felony murder but if I could just finish my submission in relation to manslaughter.  It is the respondent’s submission that consistent with the decisions of this Court in Osland where it is stressed that it is the actus reus that is attributed to the co‑venturer, not the moral culpability, not the crime, but it is a simple attribution of the act that liability rises from the joint commission of that to perform the criminal act.  That is a primary liability not derivative, obviously, and is co‑extensive and not contingent upon that of the co‑venturer. 

As was noted in Johns and in Miller, as a matter of policy it is well recognised that the pursuit of a joint criminal enterprise that involves a substantial element of…..which exposes the participants and their victims and the general public to the unacceptable risk that a crime additional to that which motivated the enterprise might be committed.  Those statements of principle in relation to extended joint criminal enterprise apply equally in the Crown’s submission to the issue of unlawful and dangerous act performed in the context of a joint criminal enterprise.

The fact that the applicant did not light the burner herself does not assist the applicant for the reasons that were in Miller as warranting the retention of the principle of extended joint criminal enterprise.  Similarly, in the Crown’s submission, the application of those principles of policy to constructive murder where the foundation offence is not one of personal violence, does not deny or diminish the overarching concern that criminal responsibility should reflect moral culpability of the individual offender. 

GAGELER J:   I am sorry, you say that is this case, that criminal responsibility reflects moral culpability?

MS DOWLING:   Yes, the Crown does say and I will expand on that in relation to the felony murder matter and, in particular, the issue of recklessness.  I refer your Honours to the observations of his Honour Justice Keane in Miller that there is no obvious reason why the moral culpability of the person who commits the actus reus, in this case, the deceased, is greater than that of his co‑venturer because he was necessarily acting as her instrument in carrying their joint enterprise to effect.  This is particularly the case where the joint criminal enterprise involves an inherently dangerous activity ‑ in this case, the lighting of a fire in the presence of…..

The Crown’s – in relation to the question of dangerousness and the appreciable risk factor in the manslaughter charge, it is uncontroversial – the principle is uncontroversial that when party’s act pursuant to a joint criminal enterprise to perform an unlawful and dangerous act that the relevant dangerousness is whether a reasonable person in the position of the accused would have appreciated that the act was an act which exposed another person to risk of serious injury.  So, there is somewhat of a fetter on the principle in relation to manslaughter in that regard.

GAGELER J:   Ms Dowling, I see your time is up.  Is there something in particular you wanted to add to your submissions?

MS DOWLING:   I am sorry, your Honours, I got carried away – I have not addressed on the question of recklessness, if I may have just a very brief moment?  I have not had the benefit of hearing my friend’s submissions on that ground; that is ground of appeal 2(iv).

GAGELER J:   I see it, yes.

MS DOWLING: There is no issue between the parties that malice applies to felony murder by operation of section 18(2). Her Honour found that was satisfied by recklessness and that the recklessness in question was recklessness adverting to the possibility of risk of serious injury. It was different to the level of recklessness required for reckless indifference to human life.

Now, my learned friend, in her written submissions, suggests that that is an unprincipled and undemanding test that was too low to apply in a case of murder.  However, the natural effect of my learned friend’s submissions is by requiring advertence to death – the likelihood of death is to put this on a par with the other categories of murder, of reckless indifference to human life which requires advertence to the probability of death as a result of the conduct.  There would be no work for the felony murder rule if that were the test to be applied. 

The applicant’s argument also fails to acknowledge the fetter on liability imposed by the requirement that in addition to participation in a very serious criminal offence, one punishable for 25 years, the accused foresaw the possibility of physical harm arising from her act.  To focus, as

the applicant does, and the trial judge did on the fact that the fire and the death were unintended is not to the point.  If it were, the offence would be intentional murder. 

Just briefly, your Honours, the policy of the law behind principles of extended joint criminal enterprise, that once persons start engaging in serious criminal conduct, such activities can readily escalate into more serious consequences than originally intended, as referred to in Powell and Miller is applicable to constructive murder also.  There is an appropriate fetter on the extension of the principle by the requirement of recklessness, so it is not an absolute liability offence as one might think if you just look at section 18(1)(a) and that the fetter that the CCA found was contained by the operation of malice.  The requirement for malice is an appropriate one given the intention of the legislature in preserving felony murder as a basis of liability in this State.  Thank you, your Honours.

GAGELER J:   Thank you, Ms Dowling.  Ms Rigg, we are inclined to grant special leave on your proposed grounds 3 and 4 but to refuse special leave on your proposed grounds 1 and 2.

MS RIGG:   May it please the Court. 

GAGELER J:   Unless you have something to say against that, that is what we will do.

MS RIGG:   Nothing further, your Honour.

GAGELER J:   Thank you very much.  So there will be a grant of special leave to appeal in this matter limited to proposed grounds 3 and 4.  The parties should speak to the Registry about the proposed timetable which will be slightly modified to take account of the Christmas break.

AT 12.29 PM THE MATTER WAS CONCLUDED