R v Mitchell (No 6) - [2021] SASC 20

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 20
Criminal
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…

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 Mitchell (No 6)

Details

AGLC: R v Mitchell (No 6) [2021] SASC 20
Case: [2021] SASC 20
Decision Date: 1 March 2021

CaseChat Overview and Summary

The case of R v Mitchell (No 6) involves five accused individuals charged with the murder of Mr Gjabri, who was involved in tending a hydroponic cannabis crop. The accused are alleged to have broken into the house occupied by Mr Gjabri with the intention of stealing or robbing him of the cannabis crop, during which the deceased was bludgeoned to death. The prosecution seeks to convict the accused of murder by relying on the doctrine of joint enterprise, extended joint enterprise, or the felony murder rule. Mr Howell, one of the accused, claims that he entered the property under threats of violence from another accused, Mr Rigney. The central issue in this case is whether the defence of duress can be applied to the offence of constructive murder.

The primary legal issue before the court was whether the accused could rely on the defence of duress in relation to the foundational offence when charged with constructive murder. The court had to determine whether duress could negate the accused's liability for the foundational offence, which in turn would negate their liability for constructive murder. The court also had to consider the statutory requirement of an "intentional act of violence" as outlined in s 12A of the Criminal Law Consolidation Act 1935 (SA).

The court held that the defence of duress should be available to an accused in relation to the foundational offence when charged with constructive murder. The court reasoned that the availability of the defence of duress is not dependent on the type of offence with which the accused is charged, but rather on the nature of the act performed by the accused. The court held that if the accused were to successfully plead duress in relation to the foundational offence, their liability for constructive murder would also be negated. The court found that the statutory requirement of an "intentional act of violence" did not preclude the availability of the defence of duress.

No specific final orders were made in this case as the matter was still before the court for further proceedings. However, the court's decision on the availability of the defence of duress in relation to constructive murder is significant for future cases involving similar charges.

Orders

Orders of the court

Held:

1. The defence of duress should be available to an accused in relation to the foundational offence when charged with constructive murder.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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