R v Mitchell (No 6)
[2021] SASC 20
•1 March 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v MITCHELL & ORS (No 6)
[2021] SASC 20
Reasons for Ruling of the Honourable Justice Lovell
1 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DURESS AND COMPULSION - AVAILABILITY OF DEFENCE - TO OFFENCE OF MURDER
The accused are jointly charged with murder. The one charge incorporates constructive murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 (SA). One of the co-accused seeks to raise a defence of duress.
Whether an accused can rely upon the defence of duress when charged with constructive murder.
Held:
1. The defence of duress should be available to an accused in relation to the foundational offence when charged with constructive murder.
Criminal Law Consolidation Act 1935 (SA) 12A, referred to.
Abbott v The Queen [1977] AC 755; DPP (Northern Ireland) v Lynch [1975] AC 653; R v Brown (1986) 43 SASR 33; R v Brown & Morley [1968] SASR 467; R v Howe [1987] AC 417; R v Kageregere [2011] SASC 154; R v R (1995) 63 SASR 417; R v Spathis [2001] NSWCCA 476; R v Van Beelen (1973) 4 SASR 353, considered.
R v MITCHELL & ORS (No 6)
[2021] SASC 20Criminal
LOVELL J:
Overview
Can an accused rely upon the defence of duress if charged with “constructive murder”?
Background
Mr Gjabri (the deceased) was involved in tending a “hydroponic” cannabis crop inside a house at Para Vista. The prosecution alleges that the five accused broke into the house occupied by the deceased with the intention of stealing (or, in the alternative, robbing the deceased of) the cannabis crop. While stealing the cannabis crop, the accused, or at least one of them, bludgeoned the deceased to death. While the deceased was struck a number of times, and with considerable force, the prosecution is unable to identify which accused (or more than one of them) struck the deceased.
The five accused are charged with one count of murder. To found a conviction for murder, the prosecution relies on the doctrine of joint enterprise, alternatively extended joint enterprise or further and alternatively the felony murder rule. That is, the prosecution, having jointly charged the accused with one count of murder, rely on alternate pathways to guilt including “felony murder”.
Mr Howell, one of the accused, alleged in his record of interview with the police that he only entered the property with the other accused under threats of violence, and actual violence, from the accused Mr Rigney. An issue arose pre-trial as to whether the defence of duress could apply to felony murder.
Felony/constructive murder
The common law felony murder rule, as formulated by the Court in R v Van Beelen is that it “is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger”.[1] The common law felony murder rule in South Australia was abolished and replaced by s 12A of the Criminal Law Consolidation Act1935 (SA) (‘CLCA') which relevantly states:
A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.
[1] (1973) 4 SASR 353, 403 (Bray CJ, Mitchell and Zelling JJ).
The requirement for a felony has been replaced by a major indictable offence punishable by imprisonment for ten years or more. I will refer to this offence as the “foundational crime”.
In R v R,[2] King CJ (with whom Matheson, Millhouse and Duggan JJ agreed), when dealing with s 12A of the CLCA, observed that the common law had been “replaced by a more or less equivalent provision”.[3] The difference between the common law requirement of the felony involving violence or danger and the statutory requirement of an “intentional act of violence” has not been definitively determined.[4] The difference, if any, does not fall to be considered in this matter. With the abolition of the distinction between felonies and misdemeanours, the old felony murder rule is now often referred to as “constructive murder”. I will use the expression “constructive murder” rather than “felony murder”.
[2] (1995) 63 SASR 417.
[3] (1995) 63 SASR 417, 420.
[4] However, see Perry J in R v R (1995) 63 SASR 417, 424 and Kourakis J (as he then was) in R v Kageregere [2011] SASC 154.
Duress and murder
The starting point of analysis is that there is only one offence of murder but it may be committed in a number of different ways including potential culpability under the constructive murder rule. Utilising s 12A of the CLCA as a pathway to guilt does not require a separate charge.[5] The principal difference between the alternate pathways is that to establish what is sometimes referred to as mens rea murder, the prosecution must prove specific intent, namely an intention to kill or cause grievous bodily harm, whereas no specific intent is required for constructive murder. For culpability to be established under s 12A all that is required is proof of the intent necessary to establish the foundational crime giving rise to the application of the constructive murder section accompanied by an intentional (including mens rea) act of violence. For the sake of convenience, I will adopt the classification of mens rea murder and constructive murder.
[5] R v Spathis [2001] NSWCCA 476.
In R v Brown & Morley,[6] this Court decided, by majority, that the “defence” of duress is not available in South Australia to an accused on a charge of murder. I am bound by that decision. The issue arising in this matter is whether the decision in Brown applies to all pathways to guilt for murder or whether, for constructive murder, the defence of duress can be maintained.
[6] [1968] SASR 467.
The facts in Brown & Morley are important. Brown and his wife were living as tenants in a house owned and occupied by Mrs Leggett. The prosecution alleged that early in the evening Morley spoke to Brown about murdering Mrs Leggett to enable him to steal money she possessed. Brown gave evidence that Morley threatened him with a knife. Later that evening Morley attempted to suffocate Mrs Leggett and, when that was unsuccessful, stabbed her to death. At trial, Morley ran the defence of insanity. Brown, whose involvement in the crime was “coughing loudly” to disguise Morley’s approach towards Mrs Leggett, denied involvement in the scheme but also argued that whatever he did was under compulsion of threats from Morley to him and his wife.
At trial, whilst the murder occurred during the course of a felony, namely robbery, the prosecution alleged Brown joined in the plan to murder Mrs Leggett. The ground of appeal alleged that the trial judge misdirected the jury by directing them that “threats would not excuse the appellant from taking an active part in an arrangement for the killing of the deceased”. The focus of the appeal was therefore on the question of whether duress applied to mens rea murder.
The majority, Bright and Mitchell JJ,[7] stated:
A majority of us are not prepared to hold that duress can ever excuse a person who performs an act which he intends to be in furtherance of a proposed murder. In this context an entry into an agreement with the actual killer to perform an act intended to be in furtherance of the proposed crime may itself be an act inexcusable by duress.
(Emphasis added)
[7] [1968] SASR 467, 485.
The majority further stated:[8]
We are concerned only with the responsibility of persons who agreed to participate in the killing and who did in some way participate. A mere agreement, not manifesting itself in any act, would not always be properly regarded as furthering the intent to kill. But any acts which to the knowledge of the actor further that intent will usually be the result of prior agreement (of however a loose a nature) between the actor and the killer. It is acts such as these at which the present discussion is directed.
(Emphasis added)
[8] [1968] SASR 467, 489.
Bray CJ dissented, holding that the defence of duress is available generally on a charge of murder.
It is clear in Brown & Morley, from the way in which the case was argued and also from the terms of the majority judgment, that the Court was only concerned with mens rea murder and not constructive murder. There is no binding authority that duress cannot apply to constructive murder. Research of the Australian (and English) authorities has not uncovered any cases where this issue has been considered.
In Brown & Morley, Bright and Mitchell JJ noted that in relation to the defence of duress to murder there was “little direct authority and much theoretical discussion”.[9] In DPP (Northern Ireland) v Lynch,[10] the House of Lords, by majority, decided that the defence of duress was available on a charge of murder to a principal in the second degree. Lord Edmund-Davies noted the dearth of authority and a “jurisprudential muddle of a most unfortunate kind”.[11] The majority cited Bray CJ’s dissent in Brown & Morley to support their position. In Abbott v The Queen,[12] the Privy Council refused to extend the defence to the principal participant.
[9] [1968] SASR 467, 479.
[10] [1975] AC 653.
[11] [1975] AC 653, 704.
[12] [1977] AC 755.
The decision in Lynch did not survive for long. In R v Howe,[13] the House of Lords overruled the decision of Lynch, holding that it was not a defence to a charge of murder that an accused had acted under duress in order to protect his own life or that of his family. In Howe, the Court relied upon the “unbroken tradition of authority dating back to Hale and Blackstone” that duress was not available to a defendant accused of mens rea murder.[14] Faced with the submission that the defence of duress should be extended to the actual killer, their Lordships accepted that the distinction between the actual killer and a principal in the second degree was illogical. Rather than extend the defence, the House of Lords overturned Lynch and denied the defence to the charge of murder to either the principal or accessory. The issue before their Lordships was confined to whether duress was available on a charge of murder where the prosecution was required to prove mens rea. The question of felony murder was not discussed.
[13] [1987] AC 417.
[14] [1987] AC 417, 427.
As these authorities demonstrate, the courts have struggled with the issue of whether duress should ever be a defence to murder. The lithe contortions exhibited by the House of Lords and Privy Council on the issue demonstrate its complexity. Clearly the issue has a moral dimension on which minds may differ. As Lord Hailsham of Marlebone L.C. explained in Howe: [15]
…..while there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to be, doomed to failure, and, in the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility.
[15] [1987] AC 417, 430.
That said, while the decision to not allow the defence of duress to be argued on a charge of murder appears to be a policy decision, the English courts justified the decision by relying on a number of old authorities. For example, Blackstone, who was relied upon to support the proposition that duress is not available on a charge of murder, considered that as murder was a “natural offence declared by the law of God, and not a mere positive crime created by the laws of society, is one that the laws of society may not excuse”.[16] Some of the older authorities suggest duress was not a defence to any crime; rather it may mitigate penalty. Hale, relying on 14th century cases, considered that there was a difference between acts done in time of war or rebellion or those acts done in time of peace; that view has not been adopted subsequently.[17] Stephen, in his History of the Criminal Law, considered duress could never be a defence though it might operate in mitigation of penalty.[18]
[16] Glanville Williams, Criminal Law: The General Part (Stevens & Sons Ltd, 2nd Ed, 1961) 760.
[17] Glanville Williams, Criminal Law: The General Part (Stevens & Sons Ltd, 2nd Ed, 1961) 754.
[18] Glanville Williams, Criminal Law: The General Part (Stevens & Sons Ltd, 2nd Ed, 1961) 755.
Whether the views expressed in Howe provide a secure footing for the current legal position, one that involves a moral absolute, is a matter best left for Parliament to consider. I am bound to follow Brown that, on a charge of murder, duress is not available where mens rea is required to be proved. Duress is not available whether the accused could be classified as a principal or an accessory.
Constructive murder rule and duress
The policy of the felony murder rule is, as expressed by King CJ in R v R,[19] that a perpetrator should be liable for the unintended consequences of his actions in the course of the felony because in engaging in a violent or dangerous felony he must accept responsibility for what occurred in the course of the felony, even though unintended.[20] Kourakis J (as he then was) in R v Kageregere,[21] when interpreting s 12A of the CLCA, considered that it changed the felony murder rule in two respects. First, by replacing a felony as the foundational offence with offences carrying a maximum penalty of ten years or more. Secondly, and perhaps more importantly, by requiring an intentional act of violence, it removed from the scope of constructive murder death caused by pure accident.[22] While I accept those observations of Kourakis J, I do not consider, nor did his Honour suggest, that s 12A altered, in any meaningful way, the underlying policy of the felony murder rule.
[19] (1995) 63 SASR 417.
[20] (1995) 63 SASR 417, 421 (although dealing with the common law felony murder rule).
[21] [2011] SASC 154.
[22] [2011] SASC 154 at [133] - [135].
To put that another way, while there must be an intentional act of violence during the course or furtherance of the foundational crime, once that is established, an accused must accept responsibility for what occurred in the course or furtherance of the foundational crime, even though the consequences were unintended. In such circumstances, a verdict of guilty of murder may be returned under s 12A where the prosecution do not prove, and are not required to prove, mens rea relating to the infliction of really serious harm or intention to kill. However, mens rea in relation to the foundational crime and the intentional act of violence must be proved beyond a reasonable doubt. The usual rules of accessorial liability apply to constructive murder.
As discussed, an element of constructive murder is proof of the foundational crime. It is accepted that if the charge was not murder the defence of duress would be available to an accused charged only with the foundational offence.[23] Does the fact that it forms part of the offence of murder mean the defence cannot be raised to the foundational crime when the foundational crime is an element of the offence of murder? Or to put it another way, does the rationale for constructive murder extend to circumstances where an accused’s participation in the foundational offence only arose due to some form of duress? Should a person be liable for the unintended death of a person simply by engaging in the foundational offence when the participation in that offence is under duress?
[23] R v Brown (1986) 43 SASR 33, 37 (King CJ).
This issue is not a matter squarely addressed in the authorities; resolution of the issue is ultimately a policy decision. In my view, where the prosecution rely on s 12A as a potential pathway to guilt, duress should be available to be argued by an accused in relation to this particular element of murder. The difference between mens rea and constructive murder, from a moral perspective, lies in the choice faced by the accused. The policy underlying mens rea murder is, as discussed, a moral absolute where an accused participates in a deliberate killing of a person. By exercising his choice the accused intends (or at least foresees) that the victim will be killed or subjected to the infliction of grievous bodily harm. The law does not excuse the taking of a life in those circumstances and this moral absolute applies even if duress was applied to the accused. For constructive murder, the choice for an accused is whether to participate in the foundational offence, not whether to participate in the deliberate killing of a person; the subsequent death is unintended. In such circumstances duress as a defence should be available to an accused where there is a factual basis for it. If the prosecution establish that duress does not arise as a reasonable possibility then an accused will be liable for the unintended consequences of his willing participation in the foundational offence.
In relation to the accused Mr Howell, I would leave the question of duress in relation to the foundational crime of constructive murder to the jury. That of course will have significant consequences on the admissibility of evidence of the police records and prior conduct of other accused.
While I accept that it is not relevant to this legal issue, I have not overlooked the evidential paradox involved in this case. Many cases of murder involve the commission of a serious criminal offence as background to the murder. In those cases, the prosecution rarely rely on constructive murder as a pathway to guilt. However, whether to rely on constructive murder in a particular case is within the prosecutorial discretion. On the facts of this case it is understandable why the prosecution relies on constructive murder as a pathway to guilt.
While Mr Howell may argue duress in relation to the constructive murder issue, to establish the defence there must be evidence that other accused used violence and/or threats of violence to force his participation. To avoid a conviction for mens rea murder he would need to establish, at least as a reasonable possibility, that he did not contemplate that during the course of stealing the cannabis, one of his fellow accused might then become violent and inflict grievous bodily harm on the deceased. There is an obvious forensic difficulty for Mr Howell in maintaining that position but of course that will be an issue for the jury. It is likely that such difficulties will often arise in cases where duress is to be argued in relation to the foundational crime and the prosecution rely on mens rea murder as well.
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