R v IL

Case [2016] NSWCCA 51 8 April 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v IL [2016] NSWCCA 51
Hearing dates: 26 August 2015
Decision date: 08 April 2016
Before: Simpson JA at [1]; R A Hulme J at [107]; Bellew J at [108]
Decision:
(1)  The verdict of the Supreme Court of 2 December 2014, pursuant to which the respondent was acquitted of the murder of Zhi Min Lan is quashed.

(2)  The verdict of the Supreme Court of 2 December 2014, pursuant to which the respondent was acquitted of the manslaughter of Zhi Min Lan is quashed.
(3)  There be a new trial on the charges of murder and manslaughter.
Catchwords:
JURISDICTION – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against acquittal by jury at direction of trial judge – whether grounds of appeal raise questions of law alone – both grounds assert errors of law in approach taken by trial judge

CRIMINAL LAW – appeal – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against directed verdict of acquittal for constructive murder – whether trial judge erred by not applying correct test when determining no prima facie case of constructive murder – joint criminal enterprise – where death caused by ignition of ring burner – error in reasoning of trial judge – liability of respondent not derivative – principles of joint criminal enterprise applicable to foundational crime of manufacturing large commercial quantity of a prohibited drug – respondent liable for all acts taken in pursuit of enterprise – ignition of ring burner within this enterprise – acquittal of murder charge quashed

CRIMINAL LAW – appeal – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against directed verdict of acquittal for constructive murder – where death caused by ignition of ring burner – Crimes Act 1900 (NSW), s 18(2)(a) – whether act causing death was “malicious” within s 18(2)(a)

CRIMINAL LAW – appeal – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against directed verdict of acquittal for involuntary manslaughter by unlawful and dangerous act – whether trial judge erred by not applying correct test when determining no prima facie case of manslaughter – joint criminal enterprise – where death caused by ignition of ring burner – act causing death unlawful and dangerous – error in reasoning of trial judge – liability of respondent not derivative – lighting ring burner was within contemplation of respondent in participation of drug manufacturing offence – acquittal of manslaughter charge quashed
WORDS AND PHRASES – “malicious” – Crimes Act 1900 (NSW), s 18(2)(a) and Sch 11, cl 65
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 107(2), 111(1)(b)
Crimes Act 1900 (NSW), ss 4A, 5, 18, Sch 11, cl 65
Crimes Amendment Act 2007 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 33(3)(a)
Cases Cited: Batcheldor v R; Walsh v R [2014] NSWCCA 252
Chen v R [2013] NSWCCA 116
Clayton v 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 IL

Details

AGLC: R v IL [2016] NSWCCA 51
Case: [2016] NSWCCA 51
Decision Date: 08 April 2016

CaseChat Overview and Summary

The appeal by the Crown against the acquittal of the respondent, IL, on charges of murder and manslaughter was heard by the Court of Criminal Appeal. The respondent had been acquitted by a jury at the direction of the trial judge in a trial for the manufacture of a large commercial quantity of a prohibited drug, which led to the death of another person. The Crown argued that the trial judge had erred in directing the jury to acquit the respondent of the murder and manslaughter charges.

The court was required to determine whether the trial judge erred in law by applying an incorrect test when considering whether a prima facie case of murder and manslaughter had been established. The court also needed to consider whether the act that caused the death was "malicious" as required by section 18(2)(a) of the Crimes Act 1900 (NSW). The court had to examine the principles of joint criminal enterprise and whether the respondent's liability for the death was derivative or not.

The court found that the trial judge had erred in law by applying an incorrect test when determining whether a prima facie case of murder and manslaughter had been established. The court held that the principles of joint criminal enterprise were applicable to the foundational crime of manufacturing a large commercial quantity of a prohibited drug and that the respondent's liability for the death was not derivative. The court found that the ignition of the ring burner, which caused the death, was within the enterprise and was an act taken in pursuit of the drug manufacturing offence. The court held that the act was unlawful and dangerous and that the respondent's participation in the drug manufacturing offence was within the contemplation of the respondent. The court quashed the acquittal of the murder and manslaughter charges.

The court ordered that the matter be remitted to the Supreme Court for a new trial on the charges of murder and manslaughter.

Orders