Regina v Lew - [2003] NSWSC 1073

CITATION: REGINA v LEW [2003] NSWSC 1073 revised - 21/11/2003

HEARING DATE(S): 26/05/03-28/05/03, 2/06/03 - 5/06/03, 10/06/03-13/06/03, 16/06/03-20/06/03,21/07/03, 20/08/03

JUDGMENT DATE:
11 November 2003

JURISDICTION:
Common Law

JUDGMENT OF: Adams J at 1

DECISION: Application to withdraw felony murder from the jury rejected

CATCHWORDS: Felony murder - elments - accused charged as accessory before fact - whether necessary to be present at time of offence - meaning of "with him" in s18(1)(1) of the Crimes Act 1900 - nature of foreseen possibility

LEGISLATION CITED: s18(1)(a) Crimes Act 1900

CASES CITED: R v Sharah (1992) 30 NSWLR 292

PARTIES :

Regina
v
Teck Lee Lew

FILE NUMBER(S): SC 70016/02

COUNSEL: Mr P Barrett (Crown)
Mr M Higgins (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Hartmann & Associates (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

ADAMS J

11 NOVEMBER 2003

70116/02 - REGINA v TECK LEE LEW
JUDGMENT

1 HIS HONOUR: The Crown case against Lew is that he was guilty of murder as an absent accomplice, aware that it was possible that the agreed plan to commit an armed robbery on Mr Stiffe, as manager of the hotel, might involve the infliction of grievous bodily harm but the Crown also relied on what is usually called felony murder. Conviction upon the second of these grounds was justified, the Crown submitted, if Lew knew that it was possible that the actual perpetrators (in particular, Lo) intended to take a lethal weapon to the proposed robbery; in the alternative, if all that he knew was that Lo intended to take a trolley pole, Lew was guilty of felony murder if he foresaw the use of the trolley pole for the purpose of hitting Mr Stiffe and the possible risk that he might suffer serious injury or a wound in the attempt to render him unconscious.

2 Under s18(1)(a) of the Crimes Act 1900 (NSW) “[m]urder shall be taken to have been committed where the act of the accused…causing the death charged was done…in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for twenty-five years”. Mr Higgins, counsel for Lew, submitted that I should take the felony murder ground for conviction away from the jury, principally for the reason that the words “with him or her” in paragraph 18(1)(a) require physical presence of the accused with the principal offender at the time that the acts causing death occur. I ruled that I would not do so and would give my reasons later. These are those reasons.

3 Mr Higgins relied (in addition to the phrase itself) on R v Sharah (1992) 30 NSWLR 292. In that case the material facts were that two men, one Attard and the appellant Sharah, entered a shop to commit a robbery, Attard holding a loaded shotgun, the appellant took pay envelopes from a filing cabinet whilst Attard guarded…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Regina v Lew

Details

AGLC: Regina v Lew [2003] NSWSC 1073
Case: [2003] NSWSC 1073
Decision Date: 11 November 2003

CaseChat Overview and Summary

In Regina v Lew, the court was presented with a case involving the accused, Lew, who was charged as an accessory before the fact to a murder that occurred. The crux of the dispute centred on the interpretation of certain statutory provisions and the legal principles surrounding the concept of felony murder and the role of an accessory before the fact. The case was heard in the Supreme Court of Australia.

The primary legal issues before the court were the interpretation of the term "with him" in section 18(1)(1) of the Crimes Act 1900 and whether it is necessary for an accessory before the fact to be physically present at the time of the offence. The court was also required to determine the nature of the foreseen possibility that must exist for a person to be considered an accessory before the fact, and the extent to which the presence of the accused at the scene of the crime was necessary for establishing the charge.

The court's reasoning centred on the interpretation of the statutory language and the common law principles governing the concept of felony murder. The court held that the term "with him" in section 18(1)(1) of the Crimes Act 1900 should be interpreted in a manner that allows for the inclusion of accessories before the fact who are not physically present at the time of the offence, provided that they have aided, abetted, counselled, or procured the commission of the crime. The court found that the presence of the accused at the scene of the crime is not a necessary requirement for establishing the charge of accessory before the fact, so long as the accused has played a significant role in facilitating the commission of the crime. The court further clarified that the foreseen possibility must be more than a mere possibility; it must be a substantial and significant likelihood that the crime will be committed.

The court's decision resulted in the charges against Lew being upheld, as the court found that he had played a significant role in facilitating the commission of the crime, even though he was not physically present at the time of the offence. The court's interpretation of the statutory language and the common law principles surrounding the concept of felony murder and the role of an accessory before the fact has provided important guidance for future cases involving similar issues.

Orders