R v Novakovic & Ors (Rulings 2-4)
[2019] VSC 339
•23 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0195
S CR 2018 0196
S CR 2018 0197
Between:
THE QUEEN
-and-
MILOS NOVAKOVIC
MILAN JOVIC &
SASA JOVIC
Accused
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 17, 20 & 21 May 2019 |
DATES OF RULINGS: | 17 & 21 May 2019 |
DATE OF PUBLICATION OF REASONS: | 23 August 2019 |
CASE MAY BE CITED AS: | R v Novakovic & Ors (Rulings 2-4) |
MEDIUM NETRAL CITATION: | [2019] VSC 339 |
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CRIMINAL LAW — Joint trial of three accused — Murder and manslaughter — Deceased died as a result of single stab wound spontaneously inflicted with knife by MN during assault in kitchen at restaurant — Liability for murder and manslaughter by statutory complicity — MJ and SJ each alleged to be “a person who [was] involved in the commission of [murder (or manslaughter)]” — Mens rea required of accused who “intentionally assists [or] encourages … the commission of [murder (or manslaughter)]” — Mens rea required of accused who “intentionally assists [or] encourages … the commission of [assault] where [that accused] was aware that it was probable that [murder (or manslaughter)] would be committed in the course of carrying out the [assault]” — Crimes Act 1958 (Vic), ss 323-324C.
CRIMINAL LAW — Joint trial — Aggravated burglary — Whether “intent … to commit an offence … involving an assault”, for purposes of aggravated burglary, embraces intent to assist or encourage another to commit assault — Crimes Act 1958 (Vic), ss 76, 77 & 320.
CRIMINAL LAW — Joint trial — Affray, murder and manslaughter — Whether case to answer on affray by SJ — Whether open to find SJ’s violence such as to cause any person of reasonable firmness who might witness it to be terrified — Whether latter question may be informed by SJ’s intention — Whether hypothetical bystander’s feeling of terror must be contemporaneous with occurrence of (very brief) act of violence in issue — SJ’s no-case submission on affray rejected — Defence of another to be left to jury on affray against SJ — Whether cases to answer on murder and manslaughter by MJ and SJ — Whether open to find SJ was person seen on CCTV brandishing a knife around time of fatal act of stabbing by MN — Whether open to find SJ’s alleged act of assistance or encouragement (i.e. brandishing a knife) occurred prior to MN’s act of fatally stabbing deceased — No case for SJ to answer on either murder or manslaughter — Whether open to find MJ aware of MN’s act of grabbing knife and intention to stab deceased with it prior to MN’s act of fatally stabbing deceased — MJ’s no-case submission on murder and manslaughter rejected — Criminal Procedure Act 2009 (Vic), ss 226(1)(a) & (c).
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr K Doyle with Ms J Warren | John Cain, Solicitor for Public Prosecutions |
| For Mr Novakovic | Mr C Mandy SC | Marcevski Lawyers |
| For Mr M Jovic | Mr P Dunn QC | Emma Turnbull Lawyers |
| For Mr S Jovic | Mr D Sheales | Emma Turnbull Lawyers |
HIS HONOUR:
Overview
Charges
Milos Novakovic, Milan Jovic and his brother Sasa Jovic were each indicted jointly in this Court on charges of affray, aggravated burglary and murder.
These charges arose out of what started as a melee among patrons at a restaurant and culminated in the stabbing death of a man in the kitchen of the same restaurant a short while later.
The murder charge was put against Mr Novakovic as a principal who, in the course of an assault on Deni Dimovski, grabbed a kitchen knife and stabbed him once to the chest with murderous intent, killing him in consequence. Manslaughter was put as an unindicted alternative.
It was alleged that the Jovic brothers were to the left of Mr Novakovic, assisting or encouraging him, during the assault and the fatal stabbing. The murder charge, and manslaughter, were put against each brother as a secondary party on the two alternative bases of statutory complicity set out in s 323(1)(a) and (b) of the Crimes Act 1958 (Vic) (“the Crimes Act”) (albeit the second basis was later abandoned).
The charges of affray and aggravated burglary were put against each accused as individual principals.
Ruling on elements of statutory complicity for murder and manslaughter
After the close of the Crown case, counsel for each accused indicated that his client would not be giving or calling evidence. During the legal discussions that followed, I distributed to counsel draft outlines of the elements of each of the offences alleged. After hearing oral argument and making some changes to the initial drafts, I indicated that the elements of murder and manslaughter by way of statutory complicity implicit in the resulting final drafts represented my ruling on the requirements of those elements.
In the end, because it was necessary to construe the two heads of complicity relied on under s 323(1)(a) and (b) against the background of and consistently with the other two heads of complicity in s 323(1)(c) and (d), and with each other, I ended up ruling on all four paragraphs, but only as they might apply to ‘intentional’ murder and manslaughter by unlawful and dangerous act.
At this introductory stage, however, I shall set out only what I ruled with respect to the elements of s 323(1)(a) and (b) as they might relate to murder and manslaughter, and only in the abstract. It should be understood that the following examples are not the only ways in which the elements might be structured. Further, each case will depend upon its own facts and circumstances as to what matters are in issue, which in turn is likely to affect the way in which, and the extent to which, the various elements might be set out. Indeed, as will be seen later, the handouts that were used in the course of discussion in the present case, and the versions that ultimately went to the jury, were different from the outlines that follow, as they had to be adapted to the particular circumstances of the case at hand.
Thus, I turn to a precis of my ruling. First, s 323(1)(a) creates a form of liability similar (but not identical) to accessorial liability at common law. Putting to one side, for the moment, the requirement that the act or acts causing death, and also the act or acts of assistance or encouragement, must be committed consciously, voluntarily and deliberately and without lawful justification or excuse, I formed the view that, in order for a secondary party to be guilty of murder in reliance on s 323(1)(a), the following things must be proved, beyond reasonable doubt, on the evidence admissible against the secondary party:
1.1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an act (such as punching, stabbing, shooting, etc), which act caused the deceased’s death (the secondary party’s “act of assistance, encouragement or direction”).
2.2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit murder — i.e. would kill the deceased or cause him really serious injury with the intention of killing him or causing him really serious injury.
3.3) Third, the principal murdered the deceased.
Secondly, s 323(1)(b) creates a hybrid of a narrowed version of extended common purpose liability at common law grafted onto the new statutory version of accessorial liability with respect to the ‘foundational’ offence. I concluded that, in order for a secondary party to be guilty of murder in reliance on s 323(1)(b), the following things must be established:
1.1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an offence (the ‘foundational’ offence) — such as an assault on the deceased (the secondary party’s “act of assistance, encouragement or direction”).
2.2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit an assault on the deceased.
3.3) Third, the principal committed an assault on the deceased (“the assault”).
4.4) Fourth, the secondary party, at the time of his act of assistance, encouragement or direction, was aware that it was probable that, in the course of carrying out the assault, the principal would kill the deceased or cause him really serious injury with an intention to kill the deceased or cause him really serious injury.
5.5) Fifth, the principal, in the course of carrying out the assault, murdered the deceased.
Thirdly, I concluded that, in order for a secondary party to be guilty of manslaughter in reliance on s 323(1)(a), the following things must be established:
1.1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an act (such as punching, stabbing, shooting, etc), which act caused the deceased’s death (the secondary party’s “act of assistance, encouragement or direction”).
2.2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit an act that was both unlawful (such as an assault) and dangerous (i.e. an act which a reasonable person in the position of the secondary party would have realised would expose the deceased to an appreciable risk of serious injury).
3.3) Third, the principal either:
a.a) murdered the deceased; or
b.b) committed manslaughter.
Finally, I ruled that, in order for a secondary party to be guilty of manslaughter in reliance on s 323(1)(b), the following things must be established:
1.1) First, the secondary party intentionally assisted, encouraged or directed the principal to commit an offence (the ‘foundational’ offence) — such as an assault on the deceased (the secondary party’s “act of assistance, encouragement or direction”).
2.2) Second, the secondary party, by his act of assistance, encouragement or direction, intended that the principal would commit an assault on the deceased.
3.3) Third, the principal committed an assault on the deceased (“the assault”).
4.4) Fourth, the secondary party, at the time of his act of assistance, encouragement or direction, was aware that it was probable that, in the course of carrying out the assault, the principal would commit manslaughter — i.e., would commit an act that was both unlawful (such as a more serious assault) and dangerous (i.e. an act which a reasonable person in the position of the secondary party would have realised would expose the deceased to an appreciable risk of serious injury).
5.5) Fifth, the principal, in the course of carrying out the assault, either:
a.a) murdered the deceased; or
b.b) committed manslaughter.
The major issue of construction
In each of the four examples above, the issue that necessitated by far the most analysis concerned the secondary party’s state of mind or mens rea with respect to the principal’s offence. This problem was reflected in the second element under each offence alleged pursuant to s 323(1)(a) and the fourth element under each offence alleged pursuant to s 323(1)(b).
I should say at once, however, that I reached my conclusions on those elements with a degree of hesitation and uncertainty. While it seemed clear enough that, for the purposes of murder, consistently with their common law roots, paragraphs (a) and (b) of s 323(1) require that the secondary party (based on knowledge or belief) respectively intend that the principal possess, or be aware that it is probable that the principal will possess, murderous intent when performing the act which causes death, it was not so clear that the secondary party must have any intention or awareness that the principal’s act would (or probably would) cause death.
Pulling in one direction (i.e. in favour of such a requirement) was the plain meaning of the words used in the new provisions. The illustrations (limited though they were) given in the Explanatory Memorandum to the Bill that ultimately became the Act which inserted these provisions into the Crimes Act were also consistent with that approach. The legislature’s apparent concerns to do away with many of the difficulties that beset the common law of complicity, and to create the four provisions in s 323(1) so as to be internally consistent and simple, were capable of supporting that approach, at least in relation to murder.
On the other hand, the legislature’s decision to adopt many common law concepts also caused me to attempt to navigate a path through the glaring anomalies and asymmetries in the common law of complicity when construing these provisions. This factor, in the main, tended away from requiring, of the secondary party, an intention (or knowledge or belief) that death be caused or an awareness that such an outcome was probable. Other important considerations were the need to ensure at least a modicum of symmetry between the requirements for liability for the same offence as a principal on the one hand and as a secondary party on the other, and yet also an appropriate level of disparity between the position required of a secondary party for murder on the one hand and a secondary party for manslaughter on the other.
A case stated may be an appropriate course in other cases
The construction of these provisions is, of course, a matter of great significance to the administration of justice in homicide cases in particular and to the criminal law in general. As it happened, there was a good deal of agreement among the parties as to how these provisions should be construed and applied in the present case. Further, counsel for the Crown, wisely and responsibly in my opinion, were careful to present their case in a way that avoided needless complexity but also ensured a better chance of justice for all concerned. Defence counsel took the same approach.
In other cases, however, there might not be the same degree of commonality of views on matters of importance. In such circumstances, while time is usually of the essence, especially in homicide cases (because the accused are usually in custody), it may be that the reservation of a question of law to the Court of Appeal prior to trial would be an appropriate course in order to quell the controversy at hand and gain that Court’s authoritative guidance on these important provisions.
Ruling on ulterior intent for aggravated burglary
Another question on which I was required to rule concerned the relationship between the complicity provisions and the ulterior intent required for aggravated burglary.
In particular, I ruled that an intention to assist or encourage another to assault a person in a building was a sufficient “intent … to commit an offence … involving an assault to a person in the building … which is punishable with imprisonment for a term of five years or more”, for the purposes of s 76(1)(b)(i) of the Crimes Act.
Ruling on no-case applications
Finally, having settled upon the elements of statutory complicity for murder and manslaughter, they formed part of the framework against which I considered submissions that there was no case to answer on those charges and then formulated the final directions to be given to the jury on the elements of those offences.
In the result, I ruled that Sasa Jovic had no case to answer on either murder or manslaughter, but that Milan Jovic had a case to answer on both charges. I also ruled that Sasa Jovic had a case to answer on affray.
In the course of making those decisions, I also made some rulings on the elements of affray, which I shall detail later in these reasons.
Verdicts and sentences
The jury ultimately returned verdicts of guilty of affray against all three accused; verdicts of guilty of aggravated burglary against Milan Jovic and Sasa Jovic (Mr Novakovic had pleaded guilty to that charge); and verdicts of guilty of murder against Mr Novakovic but not guilty of both murder and manslaughter against Milan Jovic. I sentenced Milan Jovic and Sasa Jovic soon after the trial. Mr Novakovic’s plea in mitigation has since been heard and he is to be sentenced today.
The need for detailed written reasons
While my essential reasons for ruling as I did on the elements of statutory complicity, aggravated burglary, affray and the no-case applications would be apparent from discussions in argument and my ex tempore reasons delivered orally, I also indicated that, in each case, I would publish more detailed written reasons at a later time. That this was the first time these particular aspects of the elements of statutory complicity had been ruled on at trial, at least with respect to murder and manslaughter, was another factor favouring that course. These are those written reasons.
Ruling 2: Elements of murder (and manslaughter) by way of statutory complicity
Introduction
I turn first to my rulings on the elements of statutory complicity for the purposes of murder and manslaughter.
At the close of the Crown case, Mr Dunn QC (counsel for Milan Jovic) and Mr Sheales (counsel for Sasa Jovic) respectively foreshadowed submissions that their clients had no case to answer on either murder or manslaughter. Mr Sheales also foreshadowed a no-case submission on behalf of Sasa Jovic on affray. Mr Doyle (who appeared with Ms Warren for the Crown) indicated that he would be submitting that there was a case to answer on each charge.
Prior to consideration of those applications, however, several preliminary matters had to be addressed, including, importantly, the construction of the statutory complicity provisions upon which the Crown relied to establish murder and manslaughter.
Before turning to those questions of construction, I shall set out a summary of the evidence and other aspects of the trial.
Summary of evidence and trial
An evening of wine and song turns nasty
At about 2:10 a.m. on Saturday 9 September 2017, a convivial evening of Balkans music and food, together with a goodly amount of alcohol, was winding up at the Korzo Grill House, in Caroline Springs. Many of the attendees, of whom there were about 50, were invited friends or family of the organisers, who included Deni Dimovski. Others were also allowed to attend.
The three accused men arrived at the restaurant, with a larger group, quite late in the evening. They had been there for around two hours or more when a fight broke out among several (male) patrons in the dining room. It seems that the violence erupted over something as trivial as a spilled drink or maybe a glass thrown, a dose of bad manners and far too much testosterone.
Affray
Whatever the true cause of the ill-feeling, things turned from silly to nasty to violent, and pretty quickly at that. Shirts were grabbed; pushes and shoves were delivered; punches were thrown; furniture was knocked over; a chair and a bottle or two were hurled; headlocks were administered; and men were grabbed by the arms or the shoulders in attempts to drag them away from the fray. Some fell over in the mayhem. And yet others seemed to be interested bystanders, craning their necks for a better view. Some were frightened, perhaps even terrified; others not. Women and children were ushered away from this ugly scene, or were at least warned to stand back.
These events in the dining room, as well as aspects of the subsequent goings-on out the front of the restaurant, at the back door and (crucially, but to a more limited extent) inside the kitchen, were captured and recorded by six CCTV cameras. Parts of those recordings went into evidence.
It was clear that Milan Jovic threw a chair at one point during the violence. Shortly after that, Mr Novakovic, Milan Jovic and another were involved in part of the fighting against Mr Dimovski. Mr Novakovic and Milan Jovic each threw multiple punches at Mr Dimovski, and Milan Jovic tried to kick him once. It was, in effect, three onto one for a moment or two.
Sasa Jovic picked up a bottle prior to the fighting commencing, when it seemed apparent that things might get out of hand. He was not physically involved in any violence until towards the end of the melee, when Mr Dimovski and another appeared to be getting the better of Mr Novakovic. At that point, Sasa Jovic came in behind Mr Dimovski and took a step or two towards him, just as he (Mr Dimovski) was attempting to throw a punch at Mr Novakovic. Sasa Jovic then made an overarm swinging motion (a bit like an off-spinner’s delivery of a cricket ball) towards Mr Dimovski’s head. The resulting contact between Sasa Jovic’s wrist and the back of Mr Dimovski’s head or shoulder, if contact it was, caused the bottle to dislodge and fly out of Mr Jovic’s hand without harm.
There was also evidence, from some of those who witnessed the fighting, or parts of it, about how they felt. That evidence ranged from fear of death to fear of harm to women and children, and to unspecified fear. Upon closer examination, it became apparent that some of that evidence was informed by the belief (presumably formed much later) that Deni Dimovski had been killed, which could have constituted no part of the affray. The parties agreed that, whatever was to be made of the evidence of the witnesses to the violence in the dining room, the jury would be able to make their own assessment of those relevant events as depicted on the CCTV footage.
In view of that and other evidence, it was alleged by the Crown that it was open to find that each of the three accused, to a greater or lesser degree, had committed the (common law) offence of affray (Charge 1).
Each accused pleaded not guilty to that charge when arraigned in the presence of the jury panel.
It was plain that self-defence — in the sense of defence of another — would have to be left to the jury in Sasa Jovic’s case, if indeed there was otherwise a case to answer on the charge of affray.
Uncharged acts of aggression out the front of the restaurant
After the fighting in the dining room, the three accused and numerous others were ejected or otherwise left the premises of their own volition. The resulting large group of mostly young men milled around outside the front of the restaurant. A bit of unspecified pushing and shoving occurred in that area. There was also evidence that Mr Novakovic kicked the front door of the restaurant, causing damage to a glass panel, and that he yelled three times, “I’m gonna kill him [or them]” (or something similar). Further, there was evidence that Milan Jovic also participated in kicking at the door or the windows and that he too was yelling (although what he said could not be made out). There was no evidence that Sasa Jovic did, was a party to or witnessed any of these things.
Aggravated burglary
From among those out the front, at least nine men, including the three accused, moved around to the carpark area at the rear of the restaurant. It was alleged that six of those men, including the three accused, and, later, a seventh, ultimately entered the restaurant’s kitchen through the rear door.
Prior to that entry, Sasa Jovic could be seen on the CCTV walking towards the kitchen door, crouching down (apparently, in order to put down a bottle he was holding) and then motioning to others, who came over and gathered outside the door. Shortly afterwards, a woman came to the door from inside the kitchen and made her way outside and past the men to the carpark. Mr Dimovski was also just inside the same kitchen door at that time. Like the woman before him, he had arrived there from inside the building.
The first of the seven men to enter the kitchen from the outside was Mr Novakovic. As he did so, he threw a punch or punches at Mr Dimovski. Milan Jovic and then Sasa Jovic followed Mr Novakovic inside in quick succession, as did three other men. Shortly afterwards, one man came out and another man from the original group of nine or so went in.
It was alleged against the three accused that they all entered the kitchen as trespassers with the intention of committing an offence involving an assault on a person inside (namely, Mr Dimovski); that he was in fact inside the kitchen at the time of their entry; and that they (the accused) were each aware of (or at least reckless as to) that fact. Those allegations, if established in each case, submitted the Crown, would amount to aggravated burglary (Charge 2).
While Mr Novakovic pleaded guilty to that charge upon arraignment before the jury panel, the Jovic brothers each pleaded not guilty.
The Crown put the case against the latter two accused on the basis that, at the time of entry, each had an intention to assault Mr Dimovski personally or, alternatively, to assist or encourage Mr Novakovic to do so.
Murder (and manslaughter) — Background
It was further alleged that, once inside the kitchen, Mr Novakovic immediately forced Mr Dimovski backwards, and that somehow he ended up on the floor (on his back) against a stainless steel bench, whereupon Mr Novakovic stood over him and began to assault him further.
From the CCTV footage, it could be seen that, within seconds of the commencement of the assault in front of the bench, Mr Novakovic quickly — and, it seems, wholly spontaneously — reached over to his right to the top of the bench with his right hand and grabbed a large kitchen knife, by its handle, from a container. It was alleged that he then used the knife to stab Mr Dimovski twice, once to the chest and once to the upper left arm, in the course of the continuing — albeit brief — fracas that followed.
I should point out that the order of those two instances of stabbing was not known, on the evidence, as the view from the CCTV camera did not show Mr Dimovski’s person at all, and therefore did not actually show the stabbings. Instead, it showed only Mr Novakovic and Milan Jovic respectively from behind and from about the head and shoulders upwards. More particularly, in the case of Mr Novakovic, it showed movements consistent with him stabbing downwards at the unseen Mr Dimovski immediately after he grabbed the knife from the bench.
At about the time Mr Novakovic and others entered the kitchen, three friends or acquaintances of Mr Dimovski — namely, Jove Dimovski (no relation), Tony Gorsevski and Jimmy Ribarovski (the proprietor of the restaurant) — who had remained inside the restaurant with him after the fighting in the dining room, heard a commotion and came into the kitchen from an internal doorway. They entered the kitchen at about the same time as Mr Novakovic grasped the knife (which was at about 2:16:40 on the CCTV recording). All three ended up positioned on the opposite side of the bench, facing the accused, while the mayhem continued.
Those three men all gave viva voce evidence. When their evidence was compared with what could be seen on the CCTV footage, it was plain that those witnesses, to a greater or lesser degree, either failed to observe things right in front of them or confused things they did observe or claimed to see things that they could not have seen. Yet they appeared to me to be honest men doing their best to recall what they had observed. It was therefore a powerful reminder about the fallibility of human perception and/or memory, particularly in fast-moving and shocking circumstances such as these.
In any event, there was no dispute that the stabbing to the chest (which penetrated to a depth of about eleven-and-a-half centimetres) also pierced through Mr Dimovski’s heart and into his liver. Nor was there any dispute that, a short time later, he died as a result of that stab wound. This was despite the quick intervention of his friends (who, under instruction from a triple-zero operator, applied pressure to his wounds) and, later, treatment by paramedics.
According to the pathologist Dr Victoria Francis, the stab wound to Mr Dimovski’s arm did not make any significant contribution to his death.
Given what could and could not be seen from the synchronised CCTV footage from cameras inside the kitchen and outside the back door, together with photographs and measurements, it was apparent that at least six men, plus Mr Dimovski, were crammed inside the kitchen together on one side of the bench at the same time as the three men were on the opposite side of the bench, all for a very short period during this episode.
Within seconds of their entry to the kitchen, the six persons (including the three accused) filed back out through the rear door and into the carpark. It was alleged that, on the CCTV footage, Mr Novakovic could be seen discarding in the carpark the knife he used to stab Mr Dimovski. That knife was found later between two parked cars. It was also alleged that Sasa Jovic could be seen in the carpark discarding a knife that he had picked up and brandished when inside the kitchen, although I think that that was difficult to make out. A knife of that type was also found in the carpark later.
Murder (and manslaughter) — Mr Novakovic
The Crown case on murder against Mr Novakovic was that, by a conscious, voluntary and deliberate act of stabbing to Mr Dimovski’s chest committed without lawful justification or excuse but with murderous intent, he killed Mr Dimovski. Upon arraignment before the jury panel, Mr Novakovic pleaded not guilty to the charge of murder (Charge 3) but guilty to manslaughter. Thus, the only element in issue was murderous intent.
In addition to the stabbing and its surrounding circumstances, the Crown relied on other evidence to prove murderous intent. That evidence included the animus Mr Novakovic had towards Mr Dimovski as demonstrated by his behaviour during the affray; his anger in kicking the door and declaring he was going to kill him; and his decision to enter the kitchen assaulting Mr Dimovski.
The parties agreed that manslaughter would also have to be considered in the alternative to murder in the case of each accused. In the case of Mr Novakovic, manslaughter was put against him as a principal offender on the basis of manslaughter by unlawful and dangerous act.
Murder (and manslaughter) — Milan Jovic and Sasa Jovic
As intimated earlier, the Crown did not allege that either Milan Jovic or Sasa Jovic personally committed any act that caused Mr Dimovski’s death.
Instead, it was alleged that Milan Jovic, more than once, punched, kicked or stomped on Mr Dimovski, or tried to do so, when positioned immediately to Mr Novakovic’s left, while the latter was assaulting and then stabbing Mr Dimovski at the front of the bench in the kitchen.
In the case against Milan Jovic, the Crown pointed to various pieces of evidence to support the case for murder (and manslaughter), including his arrival at the back door and pulling his hood over his head to disguise himself; his holding of the door open once the woman had walked out and as Mr Novakovic started to throw punches at Mr Dimovski; his entry to the kitchen; his presence in the kitchen when Mr Dimovski was assaulted and ended up on the floor; and his participation in the assault at the bench by punching, kicking or stomping, or attempting to do so.
It was also alleged that, at the same time, Sasa Jovic was further to his brother’s left and, as I said a moment ago, brandishing a knife (that he had picked up from a bench to his left) while Mr Novakovic assaulted and stabbed Mr Dimovski. (I should point out that the person alleged to be Sasa Jovic could not be identified directly. In fact, all that could be seen on the CCTV footage was the picking up and brandishing of the knife by a person who may have been wearing a dark cap or who may have had dark hair. Another of the six people inside the kitchen at the relevant time, like Sasa Jovic, wore a black cap. It was this evidence, combined with the CCTV of the alleged dropping of the knife in the carpark, together with a process of elimination, that was said to have amounted to proof that Sasa Jovic was in fact the person brandishing the knife in the kitchen while to the left of Milan Jovic.)
In relation to Sasa Jovic, the Crown case on murder (and manslaughter) included evidence of his arrival at the back door, crouching down and signalling to the others, thereby helping to arrange positioning at the door; his waiting there with his co-accused for the door to open; his entry to the kitchen, despite another person (apparently) attempting to hold him back; his presence inside the kitchen when Mr Dimovski was assaulted and forced to the floor; and his picking up of a knife and brandishing it in the direction of the men on the other side of the bench.
Based on this alleged behaviour, together with other evidence, the charge of murder was put against the Jovic brothers on the basis that each was “involved in the commission of the offence” and thereby should be “taken to have committed [that] offence”, within the meaning of s 324(1) of the Crimes Act. In particular, it was alleged that each man was involved in the commission of murder because, pursuant to s 323(1)(a), he intentionally assisted or encouraged Mr Novakovic to murder Mr Dimovski or, alternatively, pursuant to s 323(1)(b), he intentionally assisted or encouraged Mr Novakovic to assault Mr Dimovski and was aware that it was probable that Mr Novakovic would murder him in the course of carrying out the assault.
While the Crown were initially uncertain as to whether manslaughter should be put against the Jovic brothers under only paragraph (a) of s 323(1), or under paragraph (b) as well, both forms of complicity ended up being pressed, at least until the no-case rulings were made.
Both Milan Jovic and Sasa Jovic pleaded not guilty to murder when arraigned before the jury panel. Unlike Mr Novakovic, they did not plead guilty to manslaughter.
A complicating factor
The particular form the jury directions might take in this case was complicated somewhat by the fact that, on the evidence, there was a powerful argument, at least from the perspective of Milan Jovic and Sasa Jovic, that Mr Novakovic’s grasping of a knife and stabbing Mr Dimovski came completely out of the blue. Indeed, it might be thought that the evidence, at its highest, would prove that Milan Jovic and Sasa Jovic were aware, and intended, that Mr Dimovski would be physically assaulted, perhaps even with some ferocity, with fists and perhaps feet, but not with a knife. Thus, the circumstances were those that, at common law, would raise what has become known in the United Kingdom as “the fundamentally different act rule”. I shall say more about that rule later in these reasons.
Questions raised
It is against that background that the questions of construction and application of the statutory complicity provisions arose. As I indicated earlier, in particular, among the questions raised was precisely what, for the purposes of s 323(1)(a) of the Crimes Act, the Crown must prove to establish that an accused had the necessary mens rea to have intentionally assisted, encouraged or directed the commission of murder or manslaughter.
For example, in the present case, where it was alleged that Milan Jovic and Sasa Jovic each intentionally assisted or encouraged Mr Novakovic to commit murder, was the Crown required to prove that each accused, in assisting or encouraging him, intended, knew or believed that Mr Novakovic, by an act of stabbing, would kill Mr Dimovski with murderous intent (by which I mean either an intention to kill or an intention to cause really serious injury)? Or was it enough that, when intentionally assisting or encouraging Mr Novakovic, the secondary party intended, knew or believed that Mr Novakovic would commit, for example, some act of violence with murderous intent, which act happened to kill? Numerous other variants of these requirements might be considered as well.
A like series of alternative possibilities as those considered under s 323(1)(a) arose under the alternative head of statutory complicity relied on in s 323(1)(b). In particular, in order for, say, Milan Jovic to be guilty of murder on this basis, was the Crown required to prove that he was aware that it was probable that, in the course of carrying out an assault upon Mr Dimovski, Mr Novakovic, by an act of stabbing, would kill the deceased with murderous intent? Or was it enough that he was aware that it was probable that, in the course of carrying out that assault, Mr Novakovic would commit some act of violence with murderous intent, which act happened to kill?
Similar questions arose with respect to statutory complicity in relation to the unindicted alternative of manslaughter. For example, for the purposes of s 323(1)(a), was the Crown required to prove that each accused, in assisting or encouraging him, intended, knew or believed that Mr Novakovic, by an act of stabbing which, when considered objectively, amounted to an unlawful and dangerous act, would kill Mr Dimovski? Or was it enough that, when intentionally assisting or encouraging Mr Novakovic, Mr Jovic knew or believed that Mr Novakovic would commit an act which, objectively, amounted to an unlawful and dangerous act, which act happened to kill? Again, numerous other variants might be considered as well.
Finally, in order for, say, Milan Jovic to be guilty of manslaughter on the basis relied on under s 323(1)(b), was the Crown required to prove that he was aware that it was probable that, in the course of carrying out an assault upon Mr Dimovski, Mr Novakovic, by an act of stabbing that was unlawful and objectively dangerous, would kill him? Or was it enough that he was aware that it was probable that, in the course of carrying out that assault, Mr Novakovic would commit an act which was unlawful and objectively dangerous act, which act happened to kill?
Crown case on elements of murder and manslaughter by complicity, in more detail
I turn now to the specifics of what I understood to be the Crown position on the elements of statutory complicity for murder and manslaughter against Milan Jovic and Sasa Jovic.
Crown position on murder by complicity — Milan Jovic
After discussions about the elements of statutory complicity and the evidence led at trial, I understood that the Crown’s preliminary position was as follows.
First, for the purposes of s 323(1)(a), the Crown’s position was that proof of the following things would establish murder against Milan Jovic:
1.1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic, by punching, kicking or stomping Mr Dimovski (or attempting to do so), while beside Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to murder Mr Dimovski.
2.2) Second, Mr Novakovic murdered Mr Dimovski.
Secondly, for the purposes of s 323(1)(b), I understood the Crown position to be that proof of the following things also would establish murder against Milan Jovic:
1.1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic, by punching, kicking or stomping Mr Dimovski (or attempting to do so), while beside Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to assault Mr Dimovski (“his act or acts of assistance or encouragement”), which Mr Novakovic did intentionally.
2.2) Second, Milan Jovic, at the time of his act or acts of assistance or encouragement, was aware that it was probable that, in the course of carrying out the assault, Mr Novakovic would murder Mr Dimovski.
3.3) Third, Mr Novakovic murdered Mr Dimovski.
Crown position on manslaughter by complicity — Milan Jovic
Thirdly, turning to manslaughter, as I understood it, the Crown’s position was that, for the purposes of s 323(1)(a), proof of the following things would establish manslaughter against Milan Jovic:
1.1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic, by punching, kicking or stomping Mr Dimovski (or attempting to do so), while beside Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to commit an act or acts that, considered objectively, would amount to manslaughter.
2.2) Second, Mr Novakovic either murdered Mr Dimovski or committed manslaughter.
Fourthly, I also understood the Crown’s position to be that, for the purposes of s 323(1)(b), proof of the following things also would establish manslaughter:
1.1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic, by punching, kicking or stomping Mr Dimovski (or attempting to do so), while beside Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to assault Mr Dimovski (“his act or acts of assistance or encouragement”), which Mr Novakovic did intentionally.
2.2) Second, Milan Jovic, at the time of his act or acts of assistance or encouragement, was aware that it was probable that, in the course of carrying out the assault, Mr Novakovic would commit an act or acts that, considered objectively, would amount to manslaughter.
3.3) Third, Mr Novakovic either murdered Mr Dimovski or committed manslaughter.
Crown position on murder and manslaughter by complicity — Sasa Jovic
In relation to Sasa Jovic, the Crown’s position on murder and manslaughter pursuant to s 323(1)(a) and (b) was the same as it was in respect of Milan Jovic, except that the first element in each alternative concerned Sasa Jovic’s alleged brandishing of a knife at the men on the other side of the bench while near Mr Novakovic as the intentional act or acts of assistance or encouragement.
I should add that the Crown had argued that behaviour prior to the alleged brandishing of the knife would suffice as the necessary assistance or encouragement, but I disagreed. One difficulty was that, while it was open on the evidence to find that Sasa Jovic entered the kitchen with the intention of assaulting Mr Dimovski or assisting or encouraging Mr Novakovic to do so, there was no evidence of what Sasa Jovic did, if anything, once inside the kitchen, before he grabbed and brandished the knife, if indeed he did. Another difficulty was that, whatever Sasa Jovic may have done before brandishing the knife, such behaviour, on the evidence, could not have occurred with an intention to assist or encourage Mr Novakovic to stab Mr Dimovski because his (Mr Novakovic’s) grasping of the knife was so spontaneous and unexpected that Sasa Jovic could not have been — or at least could not be proved to have been — thinking of any such thing before Mr Novakovic’s grasping occurred.
Greater particularity required regarding the secondary party’s state of mind
While the foregoing statements of the elements were mostly uncontroversial, the (far) more difficult questions concerned precisely what state of mind the secondary party must have with respect to the principal’s behaviour and the elements of the charged offence, and particularly the causation of death.
None of these questions could be answered without considering and construing the new statutory complicity provisions, to which I now turn.
The new statutory provisions on complicity
The ‘new’ provisions
I have described them as new, but the truth is that the provisions have been in place for nearly five years. As from 1 November 2014, most aspects of the common law of complicity in Victoria were abrogated and replaced with a series of provisions in the Crimes Act concerning the concept of being “involved in the commission of an offence”.
These changes were effected by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) (“the Amending Act”).
Each of the new provisions is set out in full below:
323Interpretation
(1)For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a)intentionally assists, encourages or directs the commission of the offence; or
(b)intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c)enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d)enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
(2)In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence.
Note
A person who committed an offence may include 2 or more persons who entered into an agreement, arrangement or understanding to commit the offence.
(3)A person may be involved in the commission of an offence, by act or omission—
(a)even if the person is not physically present when the offence, or an element of the offence, is committed; and
(b)whether or not the person realises that the facts constitute an offence.
324Person involved in commission of offence taken to have committed the offence
(1)Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.
(2)Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence.
Note
The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit: for example, White v Ridley … (1978) 140 CLR 342; R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward … [1980] VR 194.
(3)Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person.
324AOther offenders need not be prosecuted or found guilty
A person who is involved in the commission of an offence may be found guilty of the offence whether or not any other person is prosecuted for or found guilty of the offence.
324BOffender’s role need not be determined
A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.
324CAbolition of certain aspects of complicity at common law
(1)The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished.
(2)The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished.
Note
The common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished by this section.
Despite the considerable time that has passed since their commencement, these provisions have featured in the reasons given in relatively few published decisions of this Court or the Court of Appeal. Further, as far as I can tell, none of those decisions considered squarely the issues raised in this case.
Explanatory Memorandum
In the Explanatory Memorandum to the Bill that became the Amending Act, the following introductory remarks were made with respect to these provisions:
This Subdivision will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules. These amendments will facilitate simpler, more understandable jury directions on complicity. These issues were comprehensively examined in the “Simplification of Jury Directions Project” report produced by a team [led] by the Honourable Justice Mark Weinberg in August 2012. The Bill draws extensively from the recommendations in that report to reform the law of complicity.
Later in these reasons, I shall return, in particular, to the legislature’s expectation that these provisions “will improve the substantive law of complicity by introducing simpler, internally consistent laws and abolishing problematic common law rules“ and that they “will facilitate simpler, more understandable jury directions”.
Some similarities and differences vis-à-vis the common law
It is evident that, in many respects, these provisions have been modelled on the common law of complicity. In other respects, however, they are quite different from the common law doctrines. As the Explanatory Memorandum makes clear, these are deliberate choices.
To take an obvious similarity, by use of the words “intentionally assists, encourages or directs the commission of an offence”, s 323(1)(a) employs language reminiscent of (albeit not wholly identical to) accessorial liability at common law, i.e. liability by way of aiding, abetting, counselling or procuring. Thus, in Giorgianni v The Queen, Wilson, Deane and Dawson JJ said that “[a]iding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence”.
Further, the form of liability set out in s 323(1)(c) — “an agreement, arrangement or understanding with another person to commit the offence” — picks up at least part of the language of joint criminal enterprise (or acting in concert or common purpose) at common law.
And the terms of s 323(1)(d) — which speak of a person who “enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence” — sound very much like extended common purpose liability (sometimes called extended joint criminal enterprise).
As we shall see, unlike the position at common law in the United Kingdom, where the doctrine (known there as “parasitic accessory liability”) no longer exists, the High Court recently rejected a challenge to the existence of the doctrine as part of the common law of Australia.
One of the more striking differences, however, is that s 323(1)(d) introduces the requirement that the accused must be “aware that it was probable that the offence charged would be committed”, whereas extended common purpose at common law requires only foresight of the possibility of the charged offence being committed.
Another difference is that, in s 323(1)(b), this modified form of extended common purpose liability is expressly grafted on to the new equivalent of common law accessorial liability found in s 323(1)(a) with respect to the commission of the foundational offence.
Yet another difference is that, to the extent that some doctrines of complicity at common law were thought to have required the secondary party to be physically present when the offence was committed, s 323(3)(a) makes it clear that there is no longer any such requirement.
Further preliminary observations
At this point, I shall make some further preliminary observations, which, I expect, are uncontroversial.
Given the terms of s 324(1), all of the provisions of s 323(1) contemplate proof, in the secondary party’s case, of the commission of the offence by another (or perhaps others), whom I have been describing as the principal. Put another way, liability under s 324(1) is derivative. Were it otherwise, a secondary party would be liable on an inchoate basis without reference to the principal’s offence.
Equally, however, s 324A makes it clear that the secondary party may be found guilty of the offence whether or not the principal is prosecuted for or found guilty of the offence. The latter situation may arise where the evidence in the case against the principal is insufficient to establish guilt against him whereas there is ample proof of the principal’s commission of the crime in the evidence admissible against the secondary party. This might occur where, say, the secondary party makes, but the principal does not make, admissions that the principal committed the offence.
Some rules of construction
Similarities and differences vis-à-vis common law informs interpretation
That there are similarities and differences between the new provisions and the common law is, I think, a matter that must inform the interpretation of the new provisions.
In addition, it is as well to note a couple of other important considerations relevant to this particular task of statutory construction.
Consistency of meaning and scope across all four paragraphs
First, while the Crown in this case relies only on paragraphs (a) and (b) of s 323(1), nevertheless, consistently with the sentiments in the opening sentences of the extract from the Explanatory Memorandum set out earlier, the four separate categories of liability created by s 323(1) should be interpreted so as to be as internally consistent, and as simply, as is reasonably possible. Thus, regard must be had to the terms of paragraphs (c) and (d) of s 323(1) in considering the meaning of paragraphs (a) and (b), and vice versa.
The principle against doubtful penalisation
Secondly, back in 1976, Gibbs J observed that, in determining the meaning of a penal statute, the ordinary rules of construction must be applied, but that, if the language of the statute remains ambiguous or doubtful, the doubt or ambiguity may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule, however, is one of last resort. Further, as has been noted by Herzfeld, Prince and Tully more recently, however, in their work Interpretation and Use of Legal Sources:
The principle is weaker than the historical rule that a “strict construction” of penal statutes was required. On that view, if a penal statute was reasonably capable of two meanings, one of which was more favourable to the accused than the other, the former was to be adopted. Nevertheless, it is still often said that penal statutes are subject to a requirement of “strict construction”, as a shorthand for the approach described in this paragraph. The approach has also been described as reflecting a “principle against doubtful penalisation”.
Section 323(1)(a): Assists, encourages or directs the commission of an offence
Section 323(1)(a)
I turn now to s 323(1)(a). As we have seen, that paragraph provides that a person is involved in the commission of an offence if the person “intentionally assists, encourages or directs the commission of the offence”.
Questions raised by the terms of s 323(1)(a)
As I have said, one of the many questions raised by the terms of s 323(1)(a) concerns what the secondary party must intend, know or believe — i.e. what mens rea he must have — in order intentionally to assist, encourage or direct the commission of the offence by the principal.
That in turn prompts the question whether the secondary party’s state of mind, when assisting, encouraging or directing, must be concerned with his own intention that the crime be committed, or with the actions of the principal, or (in the case of ‘result’ crimes) with the forbidden result to be caused by the principal (or some lesser result), or with the principal’s mens rea which accompanies his actions and/or causation of the forbidden result, or with some combination of these things.
Importance of the common law in construing s 323(1)(a)
Given that it appears that s 323(1)(a) was modelled, in large part, on the common law of accessorial liability, I considered it necessary to consider just how it was that the common law answered questions of the type thrown up by this case.
As we shall see, however, I think it is fair to say that the common law’s approach in principle, and its answers in practice, to these questions, have been inconsistent, which was of some significance in construing s 323(1)(a).
One interpretation of the requirements of s 323(1)(a)
That said, whatever the state of the common law might be, there must be an attempt, at least as a starting point, to construe paragraph (a) according to its own terms.
Uninstructed in the common law of complicity generally or accessorial liability in particular, but cognisant of the elements of murder, one reading — and, I think, a natural reading — of the provision in the case of murder would be that the secondary party must intentionally assist, encourage or direct the principal in the knowledge or belief that the principal is engaging in, or will engage in, an act (or an act of the type) that will kill the deceased, and that the principal will do so with murderous intent. This construction also would require that the secondary party, by his assistance, encouragement or direction, must intend to bring about the commission of the offence, including the killing of the deceased. Given that ignorance of the law is no excuse, the secondary party need not know or believe that what he or the principal is doing is a crime. But he must know or believe that what he is intentionally assisting, encouraging or directing the principal to do is something which will go to make up the actions, results and intention which, as it happens, form the factual bases for the elements of the offence, and he must intend to bring about the commission of the offence, including its forbidden result.
On this construction, and putting aside (for the sake of brevity) the requirements that any proscribed act or omission must be committed consciously, voluntarily and deliberately and without any lawful justification or excuse, the elements required to be proved in order to establish murder against the secondary party might be set out in the following (shorthand) way:
1.1) The secondary party (i) intentionally assisted, encouraged or directed the principal to kill the deceased (ii) while knowing or believing and intending that the principal would kill the deceased with murderous intent.
2.2) The principal murdered the deceased — which is to say that the principal killed the deceased with murderous intent.
It was the second part of the first of these two elements, as framed, that gave rise to the major issue in this case, for it is that part which concerns the secondary party’s state of mind vis-à-vis the principal’s commission of murder.
In my view, there must be some relationship between the secondary party’s intentional assistance, encouragement or direction, his state of mind vis-à-vis the commission of the offence and the principal’s behaviour in committing the offence. I hasten to add that, in saying this, I do not mean that there must be a “but for” causal relationship between the secondary party’s assistance, encouragement or direction and the principal’s crime. Indeed, s 323(2) expressly provides that, “[i]n determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence”. I assume that it was thought unnecessary to include equivalent provisions concerning the effectiveness or otherwise of a secondary party’s “assistance” of or “direction” to the principal. What I do mean, however, is that it seems arguable that the foregoing construction is also consistent with, and affected by, the particular adverb and verbs used in the phrase “intentionally assists, encourages or directs the commission of the offence”.
Thus, as a matter of ordinary usage, intentionally to direct the commission of the offence of murder suggests that the secondary party, when giving the necessary direction, intends that the principal will commit murder. That seems plain enough. More particularly, on the face of it, those words seem to mean that the secondary party is intentionally directing the principal to kill with the intention of killing. This in turn suggests that the secondary party must know or believe and intend, when giving his direction, that the principal will kill the deceased and that the principal will do so with an intention to kill (or perhaps with an intention to cause at least really serious injury, given that that is an alternative intent that will be a sufficient mens rea for murder by a principal).
Put another way, a secondary party who intentionally directed a principal simply to assault another, without knowing or believing or intending that the principal would kill, does not, as a matter of ordinary language, strike me as one who has intentionally directed the principal to commit murder, even if the principal does in fact commit murder. It might come closer to that description if the secondary party knew or believed and intended that the principal would act with murderous intent — i.e. an intention to kill or to cause really serious injury. But, surely, the essence of intentionally directing a principal to commit murder — a necessary element of which offence is the killing of another human being — is the secondary party’s knowledge or belief that the principal will kill (with murderous intent), as well as his (the secondary party’s) intention to bring about that behaviour and that result by his direction.
While they are perhaps less emphatic verbs, to assist and to encourage are capable of being construed in essentially the same way — i.e. intentionally to assist or encourage another to commit murder is to say that, when he is assisting or encouraging the principal, the secondary party knows or believes and intends that the principal will kill the deceased with the intention of killing him (or with the intention of causing him at least really serious injury).
If, instead of these constructions, by the words “intentionally assists, encourages or directs the commission of the offence [of murder]”, the legislature had meant, say, that the secondary party will be guilty of murder if he merely intentionally assists, encourages or directs a principal to commit some act of violence against another knowing that the principal had an intention to kill or cause really serious injury, and the principal went on and murdered the person, then it might be thought, reasonably, that the legislature would have said something along those lines, and in clear terms.
On the other hand, it might be said that, given that the terms of paragraph (a) largely reflect the common law, it would be expected that the courts would construe this provision with the common law in mind.
The Australian common law’s approach to the accessory’s intent in principle
Thus, I turn now to some aspects of the common law’s approach to accessorial liability in principle.
The common law of Australia has insisted on several requirements to establish a person as an accessory to a principal’s crime, at least two of which appear to be germane to the accessory’s state of mind.
First, the law considered that the verbs to aid, abet, counsel and procure were all instances of the one general idea, namely that the accessory:
is in some way linked in purpose with the person actually committing the crime and is by his words or conduct doing something to bring about, or rendering more likely, such commission.
These are the words of Cussen ACJ in R v Russell, which were referred to with approval by Gibbs CJ (at least in part) and Mason J (in full) in Giorgianni v The Queen, a seminal decision in this country on accessorial liability.
Secondly, also in Giorgianni, it was said that the “necessary intent is absent if the [accessory] does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence”. This requirement is also discussed in some detail, particularly in the majority judgment of Wilson, Deane and Dawson JJ.
In Giorgianni, the High Court considered whether the owner of a coal truck with defective brakes could be liable as an accessory for offences of culpable driving causing death and culpable driving causing grievous bodily harm, pursuant to ss 52A and 351 of the Crimes Act 1900 (NSW). Also in issue was whether the trial judge’s directions to the jury on the mens rea for accessorial liability were in error.
On the occasion in question, the coal truck, driven by the owner’s employee Mr Renshaw, ran out of control on a steep incline because its brakes, which were defective, failed. Mr Fraser, the driver of a Volvo truck on the same road, deliberately placed his truck in the path of the coal truck in an attempt to stop its progress. The two vehicles collided, but the effect of the collision was to damage the steering of the coal truck, which then careered out of control into other cars, killing five occupants and seriously injuring another. At trial, the owner disputed that, as a result of his inspection of the truck a fortnight earlier, he knew, or ought to have been aware, of the defective condition of the brakes.
Relevantly, s 52A provided as follows:
(1)Where the death of, or grievous bodily harm to, any person is occasioned through—
…
(d)the impact of a motor vehicle with any vehicle or other object in, on or near which that person was at the time of impact,
and the motor vehicle was at the time of the impact … being driven by another person—
(e) under the influence of intoxicating liquor or a drug; or
(f) at a speed or in a manner dangerous to the public,
the person who was so driving the motor vehicle shall be guilty of the misdemeanour of culpable driving.
Section 351 of the same Act provided as follows:
Any person who aids, abets, counsels, or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender.
All members of the Court held that the owner could commit the offence in s 52A by way of the accessorial liability described in s 351. Just as importantly, for present purposes, all members of the Court also held that the trial judge was in error in directing the jury to the effect that it was sufficient, for the purposes of such accessorial liability, if the owner was reckless or negligent as to the defective condition of the brakes. Instead, it must be proved that he knew all the circumstances which made what was done an offence, which included knowledge of the defective brakes (even though proof of such knowledge would not be required to establish the offence against the driver).
Towards the end of his judgment, Gibbs CJ summed up his view of the law “very shortly”:
No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described it, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.
In a separate judgment, Mason J expressed his agreement with the Chief Justice, including as to wilful blindness.
In their joint judgment, Wilson, Deane and Dawson JJ also said that “knowledge of the essential facts of the principal offence is necessary before there can be intent”. While it was accepted that it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it, it was nevertheless “actual knowledge which must be proved and not knowledge which is imputed or presumed”. In a famous passage, their Honours went on to state the general principle in the following way:
For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that R v Glennan suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law.
These two sets of requirements (i.e., being linked in purpose with the principal and doing something to bring about the commission of the crime, on the one hand, and knowledge or belief with respect to “the essential facts” or “the factual ingredients” of the crime, on the other), when read together, might be thought to focus the accessory’s intention and purpose on the facts that will form the basis of the elements of the principal’s offence, and that that intention must be based on knowledge of, or belief in, the existence of the facts necessary to make out the elements.
If that is correct, it suggests that, in order for an accessory to be guilty of a result crime such as murder, the Crown must prove the following things:
1.1) First, the accessory knew or believed (and perhaps intended) that the principal (by whatever specified behaviour) would kill the deceased with murderous intent.
2.2) Second, with that knowledge or belief, the accessory intentionally assisted or encouraged the principal to kill the deceased with murderous intent.
3.3) Third, the principal murdered the deceased.
That that might be the way in which the reasoning in Giorgianni should be understood and applied to murder might be thought to be all the more compelling a view when regard is had to the following remarks of Gibbs CJ in the same case:
Further, as has already been indicated, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. …
The Australian common law’s approach to the accessory’s intent in practice
As we shall see, however, this is not how Giorgianni has been applied, either in this State in respect of offences such as murder and recklessly causing serious injury, or in New South Wales in respect of the offences of maliciously inflicting grievous bodily harm with intent and without intent. Nor did the High Court think those principles went so far in Giorgianni itself, at least in cases of culpable driving and manslaughter.
Thus, in Likiardopoulos v The Queen, the Court of Appeal of this State held that, to be guilty of murder by way of accessorial liability (in particular, counselling or procuring) at common law, it was sufficient if, inter alia, in that particular case — where the deceased was killed as a result of a series of assaults committed by more than one principal — the alleged accessory intentionally assisted or encouraged the principals to assault the deceased knowing or believing that the principals would commit the assaults with the intention of causing really serious injury. There was no need to prove that the accessory knew or believed that the actions of the principals would in fact cause death.
The Court of Appeal took this view despite the fact that, as can be seen from the extract from the plurality judgment in Giorgianni set out earlier, Wilson, Deane and Dawson JJ, when speaking of the required intention for accessorial liability, equated aiding, abetting, counselling and procuring with attempt and conspiracy. Those latter two doctrines, when applied to murder, require proof respectively of an intention to kill and of an agreement and an intention to kill, unlike the complete offence, which requires proof against a principal of either an intention to kill or an intention to cause really serious injury.
While the point was not taken on the appeal to the High Court in Likiardopoulos, nevertheless, Gummow, Hayne, Crennan, Kiefel and Bell JJ, in the following passage from their joint judgment, might be thought implicitly to have endorsed the way in which the accessorial basis for liability was left to the jury at trial:
In particular, the accessorial case relied on evidence that the appellant directed and encouraged others to assault the deceased. On the accessorial case, the appellant’s guilt of murder would be established by proof that one or more persons assaulted the deceased intending to do him really serious injury, and that with knowledge of those facts, the appellant intentionally assisted or encouraged that person or those persons in the commission of the fatal assaults.
Similarly, in Giorgianni itself, despite the requirement of knowledge of or belief in the existence of the facts constituting the offence, Mason J accepted the view that the offence of culpable driving under ss 52A and 351:
does not require proof that the alleged accessory had any knowledge or intention concerning either the impact of the truck with another vehicle or the occasioning of death or grievous bodily injury even though these matters must be proved to establish the defence. The reason is that the actions of both the principal offender and the secondary party under s 52A are complete where the vehicle is driven in a manner dangerous to the public. The circumstance that liability attaches under the section only where that manner of driving carries certain consequences, which are the natural and probable results of such driving, does not relieve the secondary party of culpability merely because he has no knowledge of those consequences.
Wilson, Deane and Dawson JJ reasoned to the same result by reference to involuntary manslaughter. Thus, after observing that there may have been a time when there was some basis for the proposition that there is no offence known to the law of being an accessory before the fact to involuntary manslaughter (because of “the notion that a man cannot counsel or procure what he does not intend and he cannot intend an accidental killing”), nevertheless, their Honours went on to say, by reference to various later authorities, that the common law today is that such an offence can be committed. In particular, their Honours referred to the following passage from the English Court of Criminal Appeal’s judgment in R v Creamer:
A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence such as assault, or, in the present case, abortion. This can no doubt be said to be illogical, since the culpability is the same, but nevertheless, it is an illogicality which runs throughout the whole of our law, both the common law and the statute law. A comparatively recent example is that of dangerous driving. Bearing that in mind, it is quite consistent that a man who has counselled and procured such an illegal and dangerous act from which death, unintended, results should be guilty of being an accessory before the fact to manslaughter.
Immediately after that extract, their Honours concluded the matter in this way:
That seems to us to be an accurate statement of the law and it follows that, although a person cannot aid, abet, counsel or procure the commission of an offence, even a statutory offence of strict liability, without intent based upon knowledge of the essential facts which constitute the offence, the requisite intent and knowledge do not, in the case of culpable driving, extend to the occurrence of death or grievous bodily harm which “ensues upon” the unlawful act the commission of which was aided, abetted, counselled or procured.
Before moving to two final decisions, I should note the remarks of Brennan J in Yorke v Lucas. After referring to passages from the judgment of Lord Goddard CJ in Johnson v Youden and the plurality judgment in Giorgianni, his Honour said this:
Their Honours [namely, Wilson, Deane and Dawson JJ] confine the requirement of intention, and thus the requirement of knowledge, to “the commission of the acts which constitute” the offence. Another question, which their Honours considered earlier in their judgment, is the requirement of intention in a secondary participant with respect to the result of the acts which constitute the offence when the occurrence of the result is an element of the offence — e.g., death in the crime of involuntary manslaughter. Whether a secondary participant is criminally liable in all such cases without knowledge of the result if the offence is so defined that knowledge or foresight of the result is not required of the principal offender is a question which does not now arise …
It strikes me that, in making those remarks, Brennan J recognised, and left open, the possibility that there may be some cases in which, for liability to arise, an accessory may have to be proved to have been aware of the result to be caused by the principal, even if knowledge or foresight of the result need not be proved against the principal. Further, his Honour’s remarks might also be taken as implying that, where the principal offender must be proved to have intended or foreseen a result, the secondary party must be shown to have known or believed that the principal held that intention or foresight. The first point would be inconsistent with the reasoning in Likiardopoulos and, as we shall see, R v Stokes & Difford, whereas the latter would be consistent with those two decisions.
I turn now to Stokes & Difford. In that case, the New South Wales Court of Criminal Appeal, led by Hunt J (with whom Wood J and McInerney J agreed), said the following in respect of accessorial liability for the crimes of maliciously inflicting grievous bodily harm without intent and maliciously inflicting grievous bodily harm with intent:
In relation to an accessory to the crime of maliciously inflicting grievous bodily harm without intent, therefore, the Crown must establish (in addition to the commission of the crime by the principal offender) that such accessory present at the time (aiding and abetting) knew or was aware:
i.i. of the principal offender’s intention to do the act which caused the grievous bodily harm (but not that it would in fact cause such harm), and
ii.ii. that that act would be done by the principal offender maliciously.
…
In relation to an accessory to the crime of maliciously inflicting grievous bodily harm with intent, the Crown must establish (in addition to the commission of the crime by the principal offender) that such an accessory knew as well that that act of the principal offender would be done by him with an intention to cause grievous bodily harm (but, again, not that it would in fact cause such harm). …
Thus, in Hunt J’s view, while the accessory must be aware of the principal’s intention to commit the act that caused the proscribed result and of any intention (or malice) that the principal must possess with respect to the proscribed result, he need not be aware that the principal’s act would cause that result.
Carswell J, sitting without a jury in the Crown Court of Northern Ireland, said this:
… When an assailant ‘kneecaps’ his victim, i.e. discharges a weapon into one of his limbs, most commonly into the knee joint, there must always be a risk that it will go wrong and that an artery may be severed or the limb may be so damaged that gangrene sets in, both potentially fatal complications. It has to be said, however, that such cases must be very rare among victims of what is an abhorrent and disturbingly frequent crime. Persons who take part in inflicting injuries of this nature no doubt do not generally expect that they will endanger life, and I should be willing to believe that in most cases they believe that they are engaged in a lesser offence than murder.
The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design.
To accept this type of reasoning would be to fix the accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Siu. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting.
Carswell J went on to find that the killing of Mr Patton by the other two accused was a crime of a different kind from the beating or kneecapping contemplated and authorised by Mr Douglas and Mr McKee, and that the killing did not follow directly as a result of the crime to which they lent themselves as accessories. Accordingly, he found both Mr Douglas and Mr McKee not guilty of murder but guilty of wounding with intent to commit grievous bodily harm.
In Powell, when considering the fundamentally different act rule, Lord Hutton said this of Carswell J’s reasoning Gamble:
In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife. The issue (which is one of fact after the tribunal of fact has directed itself, or had been directed, in accordance with the statement of Lord Parker CJ in [R v Anderson & Morris]) whether a secondary party who foresees the use of a gun to kneecap, and death is then caused by the deliberate firing of the gun into the head or body of the victim, is guilty of murder is more debatable although, with respect, I agree with the decision of Carswell J on the facts of that case.
In much the same way that Lord Hutton expressed some reservation in the last sentence, I suspect that reasonable minds might differ as to whether, either as a matter of moral culpability or as a matter of construction, any or all of the four heads of complicity in s 323(1) of the Crimes Act should or would render the likes of Messrs Douglas and McKee liable for murder, manslaughter or neither offence. While I need not express a view on which side of the line I might fall in such a case, nevertheless, I can see the conundrum raised by the facts posited in his Lordship’s last sentence.
But the present case presented no such doubt in my mind. In the case against each of Milan Jovic and Sasa Jovic, it struck me that it was essential to proof of both murder and manslaughter pursuant to s 323(1)(a) that the accused in question was aware of Mr Novakovic’s taking up of the knife and intended that he should use it to stab Mr Dimovski. This is because, without that awareness and intention, the act that caused death would be so remote from the type of assault that the accused, up to that point, were involved in, or encouraging or assisting Mr Novakovic to perpetrate, that it could not reasonably be said to be an act (or consequence) that either accused intended, knew or believed would occur.
While both murder and manslaughter, when alleged pursuant to s 323(1)(b) (or pursuant to paragraph (d), for that matter) are, in a sense, likely to be at least one step further removed from the act causing death, in the circumstances of this case, Mr Doyle nevertheless agreed that awareness of Mr Novakovic’s taking up of the knife was essential to proof of both offences against both of the Jovic brothers under paragraph (b) as well.
The elements of murder and manslaughter under s 323(1)(a) applied to this case
It is for all of those reasons that in the particular circumstances of this case — including the centrality of the awareness of Mr Novakovic’s taking up of the knife and his use of it, and the fact that the stabbing to the chest caused Mr Dimovski’s death — I concluded that the general directions needed to be adapted as follows.
In particular, in order for Milan Jovic to be found guilty of the murder of Mr Dimovski in reliance on s 323(1)(a), I considered that the Crown must prove, beyond reasonable doubt, on the evidence admitted in his trial, each of the following elements and sub-elements:
1.1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic:
a.a) became aware that Mr Novakovic had armed himself with a knife; and
b.b) by a conscious, voluntary and deliberate act or acts — namely, punching, kicking or stomping Mr Dimovski, or attempting to do so, while beside Mr Novakovic — performed without lawful justification or excuse, intentionally assisted or encouraged Mr Novakovic to stab Mr Dimovski (“his act or acts of assistance or encouragement”).
1.2) Secondly, Milan Jovic, by his act or acts of assistance or encouragement, intended that Mr Novakovic, by a conscious, voluntary and deliberate act performed without lawful justification or excuse, would stab Mr Dimovski and thereby kill him or cause him really serious injury with the intention of killing him or of causing him really serious injury.
2.3) Thirdly, Mr Novakovic committed murder — i.e. Mr Novakovic, by a conscious, voluntary and deliberate act performed without lawful justification or excuse, stabbed Mr Dimovski with a knife and thereby caused his death, and did so with the intention of killing him or of causing him really serious injury.
For the same reasons, I concluded that, in order for Milan Jovic to be found guilty of the manslaughter of Mr Dimovski in reliance on s 323(1)(a), the Crown must prove, beyond reasonable doubt, on the evidence admitted in his trial, each of the following elements and sub-elements:
1.1) First, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Milan Jovic:
a.a) became aware that Mr Novakovic had armed himself with a knife; and
b.b) by a conscious, voluntary and deliberate act or acts — namely, punching, kicking or stomping Mr Dimovski, or attempting to do so, while beside Mr Novakovic — performed without lawful justification or excuse, intentionally assisted or encouraged Mr Novakovic to stab Mr Dimovski (“his act or acts of assistance or encouragement”).
1.2) Secondly, Milan Jovic, by his act or acts of assistance or encouragement, intended that Mr Novakovic, by a conscious, voluntary and deliberate act performed without lawful justification or excuse, would stab Mr Dimovski in circumstances in which a reasonable person in the position of Milan Jovic would have realised would expose Mr Dimovski to an appreciable risk of serious injury.
2.3) Thirdly, Mr Novakovic either:
a.a) committed manslaughter — i.e. by a conscious, voluntary and deliberate act performed without lawful justification or excuse, Mr Novakovic stabbed Mr Dimovski with a knife, and thereby caused his death, in circumstances in which a reasonable person in the position of Mr Novakovic would have realised would expose Mr Dimovski to an appreciable risk of serious injury; or
b.b) committed murder — i.e. by a conscious, voluntary and deliberate act performed without lawful justification or excuse, Mr Novakovic stabbed Mr Dimovski with a knife and thereby caused his death, and did so with the intention of killing him or of causing him really serious injury.
Abandonment of reliance on s 323(1)(b)
At this point, I should explain how it came about that, ultimately, only the foregoing heads of liability for murder and manslaughter against Milan Jovic were left to the jury and that the alternative bases for liability, pursuant to s 323(1)(b), were abandoned.
After the no-case applications were determined, I invited the Crown to reconsider reliance on s 323(1)(b), and persist only with the case for both murder and manslaughter pursuant to s 323(1)(a). In the particular circumstances of this trial, the alleged act or acts of assistance or encouragement to stab (for the purposes of s 323(1)(a)) and the alleged act or acts of assistance or encouragement to assault (for the purposes of s 323(1)(b)) — namely, punching, kicking or stomping Mr Dimovski, or attempting to do so, while beside Mr Novakovic — were the same. Further, neither basis of liability could be established unless Milan Jovic was aware of Mr Novakovic’s possession of the knife before he used it. In those circumstances, the point of difference in the required proofs of the two bases of liability was so small (if it existed at all) that leaving both bases would serve only to complicate the jury’s task, and unnecessarily so. In those circumstances, Mr Doyle, wisely and fairly, in my respectful opinion, took up my invitation.
In respect of Sasa Jovic, I concluded, at least initially, that a like series of elements could be set out for each of the two alternative heads of murder and manslaughter in his case as well. The difference, however, was that the alleged act of assistance or encouragement relied on in each first element was that, prior to Mr Novakovic’s act of stabbing Mr Dimovski in the chest, Sasa Jovic, by brandishing a knife at the men on the other side of the bench while near Mr Novakovic, intentionally assisted or encouraged Mr Novakovic to stab Mr Dimovski (for the purposes of s 323(1)(a)) or to assault him (for the purposes of s 323(1)(b)).
Again, I should point out, however, that, had Sasa Jovic’s no-case submissions on murder and manslaughter failed, I would not have been inclined to leave to the jury the alternative heads of liability for murder and manslaughter, pursuant to s 323(1)(b). Instead, for essentially the same reasons that caused me to take that course in the case of Milan Jovic, I would have invited the Crown to confine the case against Sasa Jovic to both forms of homicide pursuant to s 323(1)(a).
Since Sasa Jovic’s no-case submission on murder and manslaughter succeeded, and since the Crown ultimately abandoned reliance on s 323(1)(b) to prove either murder or manslaughter against Milan Jovic, the draft directions on s 323(1)(b) were not developed in a way that adequately reflected the concession that awareness of Mr Novakovic’s taking up of the knife was essential to proof of those offences under that head of complicity as well. In those circumstances, I do not think it is useful to set out the earlier versions of the drafts concerning the case against Sasa Jovic.
Ruling 3: Aggravated burglary — Intention to commit an offence involving an assault
Introduction
I turn now to a matter concerning the elements of aggravated burglary on which I was required to rule.
In particular, the question was whether an intention to assist or encourage another to assault a person in a building was a sufficient intention “to commit an offence involving an assault to a person in the building which is punishable with imprisonment for a term of five years or more” within the meaning of s 76(1)(b)(i) of the Crimes Act.
It will be remembered that the Crown put its case of aggravated burglary against each of Milan Jovic and Sasa Jovic on the basis that the accused entered either with an intention to assault a person in the kitchen (namely, Mr Dimovski) or with an intention to assist or encourage Mr Novakovic to assault a person in the kitchen (again, Mr Dimovski).
Submissions
Mr Sheales submitted that it was not open in law to leave the latter alternative. As I understood him, his point was that it would be open, in law, to employ statutory complicity reasoning to establish the offence of aggravated burglary. For example, this could have been done by alleging, pursuant to s 323(1)(a) of the Crimes Act, that Sasa Jovic assisted or encouraged Mr Novakovic to commit an aggravated burglary. But that was not this case. Instead, in Mr Sheales’ submission, the Crown were seeking to employ statutory complicity reasoning to establish the ulterior intention to commit an offence involving an assault. That, he submitted, was not open in law.
Mr Doyle submitted that the words “intent to commit an offence involving an assault” in s 76(1)(b)(i) embraced both an intent to commit an assault personally and an intent to commit an assault by way of complicity, including by assisting or encouraging another to commit an assault. It was not a question of applying the complicity provisions to prove an offence. Instead, it was merely a matter of employing the complicity provisions to determine what form of intent might satisfy the definition in s 76(1)(b)(i).
The provisions
Section 77(1) of the Crimes Act provides as follows:
(1)A person is guilty of aggravated burglary if he or she commits a burglary and—
(a)at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or
(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.
And s 76(1) provides as follows:
(1)A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—
(a)to steal anything in the building or part in question; or
(b)to commit an offence—
(i)involving an assault to a person in the building or part in question; or
(ii)involving any damage to the building or to property in the building or part in question—
which is punishable with imprisonment for a term of five years or more.
Analysis
For the purposes of the charge in issue, the Crown relied on a coupling of the conduct and intent specified in s 76(1)(b)(i) and s 77(1)(b) to allege an aggravated burglary.
Turning to the requirements of s 76(1)(b)(i), common assault is a common law offence the maximum penalty for which is five years’ imprisonment. That offence therefore meets the test of being “punishable with imprisonment for a term of five years or more”.
There was no dispute that to have an intent personally to commit a common assault on a person in a building or part thereof would suffice as an intent for the purposes of s 76(1)(b)(i).
The question was whether the words “intent to commit an offence involving an assault” in s 76(1)(b)(i) embraced an intent to commit an assault (i.e. a common assault) by way of complicity — in particular, by assisting or encouraging another to commit such an assault.
In my view, Mr Doyle was correct to submit that the provision does embrace such an intent.
As a matter of law, by s 323(1)(a) of the Crimes Act, a person who intentionally assists or encourages the commission of an offence is “involved in the commission of the offence”. And, by s 324(1), if an offence is committed, a person who is “involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence”.
Thus, I think it follows that a person who has an intent to assist or encourage the commission of an offence should be regarded as a person who has an “intent to commit an offence” as much as a person who intends to commit an offence personally (or as a principal) has an intent to commit an offence.
Where that offence is a common assault, the same person, in my opinion, is one who has an “intent to commit an offence involving an assault” within the meaning of the provision. This is because I think, first, that to commit an assault falls within the phrase “commit an offence involving an assault”. (No doubt other offences would fall within that definition, such as intentionally causing injury, intentionally causing serious injury, rape, attempted murder and murder, to name a few.) Secondly, an intent to commit an assault therefore must be an “intent to commit an offence involving an assault”.
Accordingly, I concluded that an intent to commit a common assault personally, and an intent to encourage or assist another to commit a common assault, were each embraced by the composite phrase “intent to commit an offence involving an assault … punishable with imprisonment for a term of five years or more” within the meaning of s 76(1)(b)(i).
Contrary to Mr Sheales’ submission, I could see no bar on using the complicity provisions to reason in this way. Indeed, it would strike me as absurd if an intention to commit an offence by way of complicity would not suffice for the purposes of the provision. Instead, as Mr Doyle submitted, it was legitimate to employ the complicity provisions to determine whether the intent alleged fell within s 76(1)(b)(i).
I should add that the fact that ss 323 and 324 speak of being “involved in the commission of an offence” and that s 76(1)(b)(i) employs similar words — “intent to commit an offence involving an assault” — made not a jot of difference to the analysis.
While I need not decide the matter, I venture to say that the result would have been the same under the common law of accessorial liability.
In the result, I left aggravated burglary to the jury against Milan Jovic and Sasa Jovic on the two alternate bases alleged by the Crown.
For completeness, I should point out that, after this trial, I noticed that, in s 3(1) of the Sentencing Act 1991 (Vic), the phrase “offence involving an assault”, in that Act, is defined to mean various offences in the Crimes Act listed in the definition. Common assault is not mentioned in that list. I was not aware of the provision at the time of the trial. I suspect this has no bearing on the foregoing analysis, but, of course, I have not heard any submissions on the point.
Ruling 4: No-case submissions
Overview
I turn now to my rulings on the no-case applications.
As indicated earlier, after the close of the Crown case, Mr Sheales submitted that Sasa Jovic had no case to answer on the charges of affray, murder and manslaughter. Mr Dunn submitted that Milan Jovic had no case to answer on the charges of murder and manslaughter. Mr Doyle made submissions to the contrary in each case.
Having considered those submissions, I concluded:
1.1) that Sasa Jovic had a case to answer on affray;
2.2) that Sasa Jovic had no case to answer on either murder or manslaughter; and
3.3) that Milan Jovic had a case to answer on both murder and manslaughter.
My reasons for those conclusions follow.
Sasa Jovic — Affray
I turn first to the submission that Sasa Jovic had no case to answer on the charge of affray.
The Crown case, in substance, was that Sasa Jovic committed an affray by taking a step or two towards Mr Dimovski and swinging his arm towards his head region with a bottle in hand. It is not clear whether the bottle struck Mr Dimovski. Rather, it seems that Mr Jovic’s wrist may have come into contact with Mr Dimovski’s shoulder and/or head, which caused the bottle to dislodge from Mr Jovic’s grasp and fly off harmlessly.
The principal argument advanced by Mr Sheales was that that alleged behaviour was not capable of causing any person of reasonable firmness who might witness it to be terrified. He emphasised the extremity of being terrified, as distinct from being frightened or alarmed or the like, none of which will suffice. He submitted that the very brief duration and nature of Mr Jovic’s alleged behaviour made it impossible for a hypothetical bystander of the requisite firmness to be terrified. Mr Doyle submitted that it was open on the evidence to find an affray had been committed by Sasa Jovic, particularly given the nature of the alleged behaviour in question.
I concluded that there was a case to answer. While it might not have been the most serious example of affray (far from it, in fact), I was satisfied nevertheless that it was open on the evidence to a properly instructed jury to find, beyond reasonable doubt, that the elements of affray were established. In particular, I thought it was open on the evidence to find that the behaviour alleged would cause a person of reasonable firmness or courage who witnessed it to be terrified. I accepted that some might think that to swing an arm holding a bottle towards the head of a man from behind would not be capable of causing a bystander of reasonable firmness to be terrified. Indeed, I expect this is an area where reasonable minds might differ. But, as I have said, I accepted that such behaviour was capable of satisfying the test, and therefore that the charge should go to the jury.
Mr Sheales also submitted, first, that any reaction by the bystander must be contemporaneous with the behaviour constituting the alleged affray and, second, that the jury’s view of Mr Jovic’s intention was irrelevant to the question whether a bystander of reasonable firmness would be terrified.
On the first point, Mr Sheales referred me to a passage in the judgment of the English Court of Appeal in R v Keys, where the following was said:
The crime of affray may range from the comparatively trivial rowdy scene which arises spontaneously, usually at closing time outside a public house, a matter which is terrifying for a short time but subsides quickly. At the other end of the scale is the sort of lengthy pitched battle going on for hours … with scores of casualties, arson, looting and so on.
Mr Sheales fixed on the words “which is terrifying for a short time but subsides quickly”. I was not sure that that passage necessarily supported his argument. Indeed, my initial reaction was that the point was not a good one.
On reflection, however, I came to a different view, but based upon general principle. That said, it was not a view that availed Sasa Jovic on the no-case submission. Let me explain.
Generally speaking, the elements of an offence may be part of either the actus reus or the mens rea. Also, in order that liability for an offence may be established, generally, the actus reus and the mens rea of an offence must be contemporaneous. While the effect on a bystander might not easily fall into either part of that usual taxonomy, absent being pointed to any authority on point, I concluded that the effect in question must be regarded as part of the actus reus. If that were so, then, I reasoned that that effect must occur concurrently with the behaviour and intention which formed part of the actus reus and the mens rea, both of which must be contemporaneous with each other. While the ongoing psychological effects on a victim of the terror that persisted after the violence that gave rise to an affray might be relevant to sentencing, it seemed to me to be wrong to say that liability for such an offence might be determined by such subsequent reactions. Instead, the terror required must be capable of being experienced by the hypothetical bystander of reasonable firmness who might witness it at some point during the intentional violence relied on to make out the affray.
Further, while the alleged intentional violence in question in this case was of short duration, it was nevertheless open to a properly instructed jury to find that a person of reasonable firmness would be terrified at some point while witnessing that behaviour.
As to the second point concerning the intention of the accused, I rejected Mr Sheales’ submission. If it was open to a hypothetical bystander to think that the accused was trying to strike the other person on the back of the head with a bottle, then that, in my view, was a factor capable of informing the question whether the hypothetical bystander would be terrified. If the bystander believed that the accused was only pretending to strike, then that would be relevant too. On the evidence in this case, it was open to the jury to be satisfied that a hypothetical reasonable bystander would conclude that Sasa Jovic was intending to strike Mr Dimovski with the bottle and, in turn, that that was capable of informing whether that bystander would be terrified.
For these reasons, I was satisfied that Sasa Jovic had a case to answer on the charge of affray.
Sasa Jovic — Murder and manslaughter
I turn now to the question whether Sasa Jovic had a case to answer on murder or manslaughter.
Mr Sheales pressed three broad submissions as to why there was no case to answer. First, he submitted that it was not open to find that Sasa Jovic was the person who brandished the knife in the kitchen, as depicted on the CCTV from 2:16:42.
Second, he submitted that it was not open to find that Sasa Jovic was aware of Mr Novakovic’s taking up and use of the knife at any time prior to the stabbing.
Thirdly, he submitted that it was not open to find that the fatal stabbing occurred after 2:16:42, which was when the alleged act or acts of assistance or encouragement for the purposes of homicide by Sasa Jovic commenced. Put another way, he submitted that it was not open on the evidence to exclude the reasonable possibility that the fatal stabbing occurred immediately after Mr Novakovic took up the knife , at about 2:16:40-41, and therefore before the alleged act or acts of assistance or encouragement for the purposes of homicide by Sasa Jovic commenced at 2:16:42.
As things turned out, for the purposes of the no-case ruling, it was sufficient to deal only with the third of those submissions.
As both Mr Sheales and Mr Doyle accepted, given the way the Crown case on both forms of homicide had been framed, there could be no case to answer by Sasa Jovic if it was not open, on the evidence, for a jury to exclude the reasonable possibility that Mr Dimovski was stabbed in the chest immediately after Mr Novakovic grabbed the knife (which occurs at about 2:16:40) or otherwise before 2:16:42. This is because the alleged act or acts of assistance or encouragement, for the purposes of either form of homicide (namely, brandishing a second knife by Sasa Jovic), did not begin until 2:16:42. Put simply, on this analysis, Sasa Jovic’s alleged act of encouragement or assistance would have come too late to inculpate him in Mr Novakovic’s act of stabbing Mr Dimovski to the chest, and therefore too late to inculpate him in either form of homicide.
Both parties put several arguments on this issue. I considered the evidence of the relevant witnesses and studied the CCTV footage very carefully — over and over again.
In short, I reached these views. First, it was open to find that Mr Novakovic stabbed Mr Dimovski immediately after he grabbed the knife at 2:16:40. The movements that could be seen on the CCTV were consistent with his stabbing the deceased with his right hand.
Secondly, while both Jove Dimovski and Tony Gorsevski gave evidence of seeing either a stabbing motion or a waving of the knife up and down near the floor, their evidence did not isolate — and was not capable of isolating — the time of those occurrences as being definitively at some time after 2:16:42.
Thirdly, their evidence was consistent with seeing such occurrences when they had just come into the kitchen, which could be seen on the CCTV at around 2:16:40-41.
Fourthly, even if it could be said that they were speaking only of later events — such as at 2:16:45-47 — that does not, and cannot, exclude the reasonable possibility that the fatal stab wound was inflicted at about 2:16:40 or before 2:16:42. This is because, at that time, they may have seen stabbing motions that did not connect with Mr Dimovski. In this regard, it is important to note that neither witness claims to have seen any actual stabbing occur. While Jove Dimovski’s earlier evidence suggested otherwise, he expressly recanted that under cross-examination by Mr Mandy.
For these reasons, I accepted that it was not open on the evidence to exclude the reasonable possibility that Deni Dimovski was fatally stabbed in the chest by Mr Novakovic immediately after he grabbed the knife (at about 2:16:40) or otherwise before 2:16:42.
It therefore followed that, given the way that the cases of assisting or encouraging murder and manslaughter by Mr Novakovic were put, and given the way that the Crown put the alternative cases of assisting or encouraging an assault by Mr Novakovic while being aware that it was probable that murder (or manslaughter) would be committed in the course of carrying out the assault, none of those cases of either murder or manslaughter could be made out on the evidence. In short, Sasa Jovic’s alleged act of encouragement or assistance came too late to inculpate him in any homicide.
Accordingly, I concluded that Sasa Jovic had no case to answer on either murder or manslaughter.
Milan Jovic — Murder and manslaughter
I turn now to the question whether Milan Jovic had a case to answer on murder or manslaughter.
Mr Dunn put several submissions. In essence, his point was that it was not open on the evidence to conclude that Milan Jovic was aware of Mr Novakovic’s taking up of the knife at any time prior to the fatal stabbing. Alternatively, he submitted that, even if he were wrong about that, Milan Jovic could not have had sufficient time to form the intention to assist or encourage Mr Novakovic to stab Mr Dimovski and either murder him or commit manslaughter.
As Mr Doyle accepted, given the way the Crown case on both forms of homicide had been framed, that there could be no case to answer by Milan Jovic if either of those submissions was accepted.
I must confess that, initially, I was attracted to Mr Dunn’s submission, based on his analysis of the evidence. However, in the end, it is a rather simple pair of points made by Mr Doyle that turned me around, such that I found that there was a case to answer by Milan Jovic on both charges.
These are the points. First, while Mr Dunn submitted that Milan Jovic’s head was turned away at critical times such that he was in no position to see Mr Novakovic grab the knife and begin using it, on closer inspection of the CCTV, I did not accept that submission. Instead, consistently with Mr Doyle’s submission to the contrary, I thought it was open for a jury to conclude, from the CCTV, that Milan Jovic could see those things.
Secondly, while Mr Dunn made a very persuasive submission to the effect that, even if he did see the knife, Milan Jovic did not have time to process what he saw and form the intention required for either murder or manslaughter by way of statutory complicity, again, on reflection, I thought it was open on the evidence on the CCTV for a jury to conclude otherwise. The adverse inference was all the more compelling when regard was had to the fact that it appeared that Milan Jovic engaged in the acts of assistance or encouragement relied on — namely, punching, kicking or stomping, or trying to do so, while right beside Mr Novakovic — both before, during and after the period during which the fatal stabbing must have occurred. Mr Dunn saw this as a badge of innocence — because, to use his attractive turn of phrase, Milan Jovic was “still on Plan A” (by which he meant Mr Jovic was still thinking about an assault, not about any stabbing). But, in my view, as powerful as that and other arguments he advanced were, they surely were matters for a properly instructed jury.
For these reasons, I was satisfied that there was a case for Milan Jovic to answer on each of the ways that murder and manslaughter was put against him.
Concluding remarks
It followed that I was required to direct verdicts of not guilty of murder and manslaughter in the case of Sasa Jovic. I was also required to leave for the jury’s consideration verdicts in respect of affray concerning all three accused; aggravated burglary concerning Milan Jovic and Sasa Jovic only; and murder and manslaughter concerning Mr Novakovic and Milan Jovic only.
Finally, after delivering these rulings, I reminded counsel of the remarks I had made in the course of argument about the alternative bases for murder and manslaughter, put pursuant to s 323(1)(b) of the Crimes Act, against the Jovic brothers. In short, on reflection, I expressed doubt that those would be proper bases for leaving either form of homicide in this case. As I have mentioned earlier, Mr Doyle took up that invitation and ultimately pressed murder and manslaughter against Milan Jovic only on the bases outlined earlier pursuant to s 323(1)(a).
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