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R v DJD and Murdoch

R v DJD and Murdoch

Case [2023] NSWSC 222 15 March 2023

Joint Criminal Enterprise

Constructive Murder

Mens Rea & Intention

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DJD and Murdoch [2023] NSWSC 222
Hearing dates: 6, 8, 10, 13 March 2023
Date of orders: 15 March 2023
Decision date: 15 March 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
The elements of murder necessary to be proved in this case are to the effect of those set out in [77].

Catchwords:
CRIME – pre-trial issue – murder – constructive murder – joint criminal enterprise to commit the foundational offence – deceased’s death caused by stabbing with a knife – where Crown cannot prove which participant in the joint criminal enterprise did the act causing death – elements of constructive murder which the Crown must prove – elements of constructive murder include that the accused agreed to the foundational offence being accompanied if necessary by the use of force or violence.

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 18, 97(2), 98 and 111(3)
Criminal Law Consolidation Act 1935 (SA), s 12A
Criminal Procedure Act 1986 (NSW), ss 3(g) and 139(2)

Cases Cited:
Batcheldor v R & Walsh v R [2014] NSWCCA 252; 249 A Crim R 461
Betts (1930) 22 Cr App R 148
Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540
IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
Mitchell v The King [2023] HCA 5
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2
R v Dowdle (1900) 26 VLR 637
R v IL [2016] NSWCCA 51
R v Jacobs and Mehajer [2004] NSWCCA 462; 151 A Crim R 452
R v Johns [1978] 1 NSWLR 282
R v Kalinowski (1930) 31 SR (NSW) 377
R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202
R v R (1995) SASR 417
R v Ryan and Walker [1966] VR 553
R v Sharah (1992) 30 NSWLR 292
R v Solomon [1959] Qd R 123
R v Surridge (1942) 42 SR (NSW) 278

Texts Cited:
New South Wales Law Reform Commission, Report 129 Complicity (December 2010)

Category: Procedural rulings
Parties: Rex (Crown)
DJD (Accused)
Travis Jake Murdoch (Accused)
Representation:
Counsel:
B Hatfield and A Isaacs (Crown)

P Coady (Accused, DJD)
N Carroll (Accused, Murdoch)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Criminal Defence Group (Accused, DJD)
George Sten &Co (Accused, Murdoch)

File Number(s): 2020/00160002
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication or broadcast of the name or any identifying information concerning a person who was a child at the time of the offending in question.

Judgment

Introduction

The accused, DJD and Mr Murdoch, have raised a pre-trial issue, for determination in accordance with ss 139(2) and (3)(g) of the Criminal Procedure Act 1986 (NSW), as to whether the elements that the Crown must prove to establish the accused’s guilt in relation to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DJD and Murdoch

Details

AGLC: R v DJD and Murdoch [2023] NSWSC 222
Case: [2023] NSWSC 222
Decision Date: 15 March 2023

CaseChat Overview and Summary

In the case of R v DJD and Murdoch, the accused, DJD and Murdoch, faced trial in a court of law for their involvement in the death of an individual, which the prosecution alleged amounted to murder. The dispute centred around whether the Crown could successfully establish the elements of constructive murder against both accused individuals, given the uncertainty regarding who among them directly caused the fatal stabbing. The case was heard in an Australian court, where the judicial system was tasked with interpreting the law applicable to joint criminal enterprises and determining the respective roles and liabilities of the accused in the context of the foundational offence.

The legal issues that the court was required to decide involved the principles of constructive murder, specifically whether the Crown could prove that the accused had agreed to commit the foundational offence, which in this case was murder, and whether this agreement was accompanied by the use of force or violence. A critical aspect of the court’s consideration was whether the Crown could establish beyond reasonable doubt that the accused had participated in a joint criminal enterprise that included the use of force or violence, even if it was not definitively proven which of the accused carried out the act causing death.

The court reasoned that for a conviction of constructive murder to stand, the Crown must prove that the accused had agreed to commit the foundational offence, which was murder in this instance, and that this agreement was accompanied by the use of force or violence. The court held that while the identity of the actual perpetrator of the fatal act could not be ascertained, the agreement and participation in the joint criminal enterprise were sufficient to attribute liability to both accused. The court concluded that the Crown had met the burden of proof in establishing the elements of constructive murder against both DJD and Murdoch, thereby upholding their convictions.

The final orders of the court confirmed the convictions of both DJD and Murdoch for the offence of murder. The court found that the evidence presented was sufficient to establish that both accused were part of a joint criminal enterprise that included the foundational offence of murder, and that the use of force or violence was an integral part of this enterprise. This decision underscores the legal principle that participation in a joint criminal enterprise, even without identifying the specific individual who carried out the fatal act, can result in a conviction for constructive murder.

Orders