Batak v R

Background

1. The following summary is taken in part from the sentencing judgment of the trial judge and more generally from the evidence that was before the jury.

The events on the night in question

1. The applicant and Coskun had been friends since school but had not been in close contact in the months leading up to the shooting. The applicant's phone number was given to Coskun by a mutual acquaintance, Abdulsamed Sari, on 16 March 2019. The two were in frequent contact from then on, with phone records showing at least 77 calls between 17 March 2019 and 2 April 2019. There was a significant amount of contact between them on 20 and 22 March and the morning of 23 March 2019. They met on a number of occasions, often in parks and at night.
2. After midnight on 2 April 2019 the two met at the applicant's unit. Prior to arriving they exchanged WhatsApp and text messages, which included Coskun asking the applicant to bring two high vis work shirts. The messages were as follows: Time From To Content 12:21:50 Applicant Coskun Park on the street don't come in the drive way 12:27:05 Coskun Applicant Gel (translation from Turkish to English: "Come") 1:00:10 Coskun Applicant Bring hi viz 1:00:12 Coskun Applicant Work shirts 1:00:13 Coskun Applicant Two

1. The applicant had once worked as a sub-contractor for a business called Quantum Transport Solutions and had been provided with yellow high visibility short-sleeved work shirts.
2. At their meeting the applicant supplied Coskun with at least one high vis work shirt and a handgun, which the applicant would later describe in an intercepted phone conversation as a mini Glock with an "extended clip". Coskun then left the applicant's apartment. He and the other intruder arrived at Sargon Odisho's apartment around 3:45am. They entered through the balcony of Unit 103, which they had reached by climbing over fencing and on top of the housing around a fire hydrant which was below the balcony. They were both wearing gloves and face coverings, and Coskun was wearing the high vis shirt supplied by the applicant.
3. John Odisho and Ms Mitchell-Wiszniewski were asleep in the master bedroom and were woken up by noise in the hallway. Ms Mitchell-Wiszniewski then heard Sargon Odisho say something like, "I don't have" and "I don't know" in a distressed manner. As John Odisho went to investigate the conflict, someone began pushing on the bedroom door. Ms Mitchell-Wiszniewski saw a gun through the doorway, recalling that it "looked like a black handgun".
4. John Odisho then left the master bedroom. One of the intruders who was wearing all black - therefore likely not Coskun, who was wearing the high vis shirt - entered the room. He pointed a silver gun at Ms Mitchell-Wiszniewski's head for a short time. She described it in this way: "Quite large. It wasn't a small handgun, it was a decent sized handgun". The intruder then left the bedroom and Ms Mitchell-Wiszniewski said she immediately heard several shots fired.
5. There was disagreement about precisely what occurred at this point. What is clear is that one of the intruders fired 10 rounds from a .40 calibre weapon into Sargon Odisho's bedroom from the hallway. Two bullets entered the wall adjacent to the door. Other rounds were fired towards the door, when it must have been in a partially open position, while the rest were fired straight into the room. One of those bullets struck John Odisho in the head. Two bullets struck Sargon Odisho.
6. Ballistics reports showed that Sargon Odisho discharged his .38 Smith & Wesson handgun six times from inside the bedroom towards the hallway. Two shots penetrated the wall adjacent to the door in the vicinity of where two of the .40 calibre bullets had entered the wall. Three shots went into the hallway unimpeded and struck the opposite wall. Another shot was the one that struck Coskun in the left flank.

Subsequent evidence as to the role of the applicant

1. The police obtained warrants allowing them to intercept phone calls made by the applicant and to place listening devices in his home and car. Evidence was tendered of a number of recorded conversations involving the applicant.
2. One notable conversation recorded by a listening device occurred on 28 June 2019 between the applicant and two males named Yalim and Karaman. There was difficulty in distinguishing between the other two males when one of them was speaking, and they were designated just as "Y/K" in the transcript. Some of the conversation was in Turkish but has been translated. The transcript included the following (Exhibit BP; emphasis added): "Y/K: Did you hear what happened to Cengiz? With Cengiz [ie Coskun]. … Applicant: Did you know I was going to go with him? … Y/K: Are you close with him? Applicant: Yeah, bro I grew up with him. Cengiz came. Alright, this I'll tell you exactly what happened. Cengiz came to my house. … Applicant: Cuz he came, he called me up. At the time I swear to God, I was dead broke. I need money, and he knew it, so he came, and I had … Applicant: I had two at home. Yeah, he asked please can I take one. Y/K: You know the, got shot? [sic] Y/K: (Inaudible) Applicant: I know that cuz. I gave it to him yeah. Y/K: No, the one he got shot with. Applicant: You know the one I gave him, extended clip. … Applicant: He comes cuz, we're at my garage, it's like one in the morning. He's telling me exactly the scenario, like the scene. He went there, his mate was there. Y/K: He got good intel my bro. Applicant: Shit intel, he told me [Over talk] Y/K: Shit intel, bro? How'd he know that guy was there? Know that guy was there. Applicant: Cause his mate was there, his mate was there. Yeah, at the house and he goes everyone was smacking out. Like, they're just crashing. So, there's two of them explained everything cuz. I go, 'Alright'. He goes, 'Let's go together' and he goes, 'It's easy'. Please explain. He goes, 'We just go up the balcony, on the ground floor', and he goes, 'The doors open we'll go straight in', yeah, 'In and out nice and quick'. I promise to God, I was there for about 10 minutes, in my garage, cause he asked me for fluro's as well. I gave him my work shirt. He's wearing my work shirt, huh? Y/K: What do you mean fluro's? Applicant: He's wearing my work shirt in the fucking camera footage. Y/K: Names? On the shirt? Applicant: Quantum Transport. Represent my brother. … Applicant: Cuz, I'll tell you exactly what happened. I stood there with him about 10 minutes, just thinking about everything just explained to me, and I'm like brother, if this pulls off, that money, I need that now, yeah. I promise to God I kept thinking and thinking and I was actually persuading to go with him. Last minute, you know what happened, cuz my stomach turned, yeah, I had to chuck a shit. Like, I, bro I could not hold it too, huh. … He goes 'I have to go now'. I go, 'Cuz, I gotta go poo, yeah.' I go, 'ok you go then', I full got turned off from it, I go, 'I'm gonna go upstairs, I'm gonna shit', yeah. Then and there he was calling someone else and he goes, 'Don't worry, I've got someone else.' He goes, 'I'll get something out of it and I'll bring it to ya.' He left. Next morning cuz, ask me what I hear on the radio. Five Dock shooting. Everything. And he called me in the morning too, cause he got shot. … Applicant: I gave him a Glock … [Over talk] Y/K: Stiff shit. Applicant: It was a mini Glock too. [Over talk] … Applicant: I promise to God, I do, I was gonna go, yeah. I was this close, literally this close. I was getting ready, we were gonna go we loaded it up I got my clothes everything, we were gonna go. … "

Grounds 1 and 2 - accessory before the fact to constructive murder

1. By grounds 1 and 2 the applicant challenges the legal basis upon which the case against him for the murder of John Odisho was left to the jury and, alternatively, the correctness of the directions given to the jury as to the elements of the offence, in circumstances where the Crown alleged that he was liable for the crime as an accessory before the fact. The issues raised are complex and overlapping. Our consideration of those issues is structured as follows: 1. the Crown's pathway to liability for murder (at [29]-[40]); 2. the trial judge's directions as to the elements of the offences (at [41]-[43]); 3. the applicant's arguments as to accessorial liability and constructive murder (at [44]-[49]); 4. the evolution of accessorial liability and principles of complicity (at [50]-[96]); 5. the doctrine of constructive murder in this State (at [97]-[133]); 6. the decision in R v Sharah (1992) 30 NSWLR 292 (at [134]-[156]); 7. accessorial liability and constructive murder (at [157]-[193]); 8. summary of conclusions on accessorial liability (at [194]-[196]); 9. other attacks on the directions as to the elements of the offences (at [197]-[206]).

The Crown's pathway to liability for murder

1. The indictment of the applicant as presented at trial was framed in this way: "1. On the 2nd day of April 2019, at Five Dock in the State of New South Wales, [the applicant] did murder John Odisho. S 18(1)(a) Crimes Act 1900 Law part code 2 S 346 Crimes Act 1900 Law part code 53065 2. On the 2nd day of April 2019, at Five Dock in the State of New South Wales, [the applicant] did attempt to rob Sargon Odisho of certain property, namely prohibited drugs and an unknown sum of Australian currency, the property of Sargon Odisho, whilst armed with a dangerous weapon, namely a firearm. S 97(2) Crimes Act 1900 Law part code 479 S 346 Crimes Act 1900 Law part code 53067"
2. With the relevant portions rendered in bold font, s 18(1)(a) of the Crimes Act provides as follows: 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or 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 25 years.
3. The section identifies two categories of murder, namely (proceeding just on the text) where an act or omission of the accused caused the death charged, and was done: 1. with reckless indifference to human life or with intent to kill or inflict grievous bodily harm; or 2. in an attempt to commit, or during or immediately after the commission, by either the accused, or some accomplice with him or her, of a foundational crime of the identified degree of seriousness.
4. The second category, constructive murder (previously known as "felony murder"), is what is at issue here. A distinctive feature of the second category is that, in contrast to the first, no particular mental state is required as regards causing the death. In that sense constructive murder involves a type of strict liability. If the death of another is caused in connection with the actual or attempted commission of a crime by the accused or an accomplice, being a crime of the requisite seriousness (the "foundational offence"), then the accused is liable for the murder although they may have had no intent to cause, nor recklessness as to causing, death or really serious injury. Here the foundational offence was that charged in count 2, being an offence of attempted robbery whilst armed with a dangerous weapon. That offence carries a maximum penalty of 25 years imprisonment.

The trial judge's directions as to the elements of the offences

1. The jury was directed with respect to what the Crown had to prove if it was to establish its case, prior to the commencement of the closing addresses of counsel, in three written documents, marked respectively as MFI 66, 71 and 72. MFI 66 was the "elements document" and is of most significance for current purposes. His Honour's oral directions to the jury on the elements were not materially different to the contents of MFI 66. It is useful to extract the document in full (the text in bold font mirrors the original): "Essential elements of the charges the Crown is required to prove beyond reasonable doubt 1. Cengiz Coskun and the unknown male attempted to commit a robbery while they were armed with a dangerous weapon. That is: (a) they attempted to steal property by the threat of force (b) while one or both of them was armed with a dangerous weapon. A gun capable of propelling a projectile by means of an explosive is a "dangerous weapon". There is no dispute about this element. 2. The accused intentionally assisted Cengiz Coskun in the preparations for the attempt to commit the armed robbery with a dangerous weapon. The Crown says he did so by providing a high-visibility fluorescent yellow shirt and handgun. The Crown does not have to prove both forms of assistance. It has to prove intentional assistance was provided by the accused by one means or the other. 3. At the time of intentionally assisting Cengiz Coskun, the accused knew all the essential facts, both of a physical and mental nature, which amounted to the crime of attempting to commit an armed robbery with a dangerous weapon. That is, the Crown must prove the accused actually knew that Cengiz Coskun intended to steal property from someone by threat of force while armed with a dangerous weapon. Proof of each of elements 1, 2 and 3 beyond reasonable doubt is required to establish the accused's guilt of the offence in Count 2, accessory before the fact to the offence of attempted armed robbery with a dangerous weapon. To prove the accused's guilt of Count 1, the offence of murder, the Crown is also required to prove beyond reasonable doubt both of the following additional matters. 4. During the attempt to commit the crime of robbery whilst armed with a dangerous weapon, a shot was fired by either Cengiz Coskun or the unknown male which caused the death of John Odisho. It does not matter whether or not the firing of a gun was intentional. It does not matter whether or not it was necessary for a gun to be fired for the purpose of carrying out the armed robbery. It does not matter whether or not the intruders intended to kill or to cause any level of harm to anyone. There is no dispute about this element. 5. The discharge of a gun during the attempted armed robbery with a dangerous weapon was a possibility which the accused was aware of when he provided the assistance to Cengiz Coskun (providing the shirt and/or gun). Put another way, the accused realised or contemplated, at the time of assisting Mr Coskun, that it was possible a gun could be discharged during the attempt to commit the armed robbery."

The applicant's arguments as to accessorial liability and constructive murder

1. The applicant argues that the law does not recognise or provide for a person to be liable to a charge of constructive murder, pursuant to s 18(1)(a), on the basis of being an accessory before the fact to a relevant foundational offence. He asserts that the Crown's chosen pathway to establishing his liability for murder was not one available under the law of this State. He advanced five contentions in support of that overarching claim, as follows: 1. the doctrine of constructive murder applies only to the person who committed the act causing death, and to any participant in a joint criminal enterprise to commit the foundational offence; 2. derivative liability does not operate such that the act of the principal is attributed to the accessory; 3. the knowledge required of the accessory to constructive murder is incapable of formulation; 4. the decision of Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 (Johns HC) is not persuasive or binding authority to establish liability for constructive murder as against an accessory before the fact; and 5. there is no offence of accessory before the fact to a constructive murder.
2. The applicant contends that, for liability for constructive murder to arise under s 18(1)(a), the act causing death must be done by either the accused or an accomplice who was present and part of a joint criminal enterprise to commit the foundational offence. If that construction of s 18(1)(a) is correct, the applicant - who neither discharged the fatal shot nor was present at the scene of the shooting as an accomplice - cannot be liable for constructive murder. He contends that nothing in the law of accessorial liability changes that statutory reality. He relies upon a decision of Wright J in R v DJD and Murdoch [2023] NSWSC 222; (2023) 111 NSWLR 193, at [43]-[47], as authority for that construction of s 18(1)(a), which he submits is consistent with the common law rule as expressed in Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299.
3. The applicant submits that nothing in the doctrine of accessorial liability operates to extend constructive murder such that it is capable of attributing liability for the act of the principal that caused death to the person who was an accessory before the fact to the foundational offence. He argues that to establish an accessory before the fact offence against an accused person, the Crown must prove that the accessory assisted the principal in some way to commit the particular serious indictable offence, in this case, murder. On that basis, s 346 does not render an accessory liable for any serious indictable offence the principal might commit, but only for the particular offence the accessory counselled or aided.

The evolution of accessorial liability and principles of complicity

1. Before considering the arguments advanced before the Court and determining this ground there is some value in examining the origins of the jurisprudence relating to accessorial liability and constructive murder and the development of these historically vexed doctrines over time. Although both doctrines have been addressed in statute in New South Wales, the common law rules that identify and define accessories before the fact, principals in the first degree and principals in the second degree, and those that delineate the scope of the application of the constructive murder doctrine, remain influential in marking out the substantive limits of liability under these doctrines. An understanding of the operation of the common law rules is the necessary background against which the statutory provisions fall to be construed.

The development of liability as an accessory

1. The concept of an accessory before the fact is an ancient one, and the doctrine of accessorial liability is one of long standing, first glimpsed in Britain under Roman rule. In Russell on Crime1 the author referred to the Roman concept of noxal surrender, which was retained and expanded by English law. The concept was that where the crime involved the death of a man (the male gender only being referred to) not only the perpetrator of a crime was guilty but also those inanimate objects associated with its commission. Thus a cart or piece of timber or other object tainted with guilt for the killing was handed over to the monarch to be dealt with under the sovereign's direction. In Russell on Crime this rule was said to be the origin of principles of accessorial liability (at p 19): "In this ancient institution there can be detected the elemental origins of the different canons of criminal liability which emerged in later centuries. … this helped to form the ancient doctrine, which was that a harm must be paid for by any man who had actually taken part in the chain of events which could be traced back from it".
2. Accessorial liability was referred to in the Statute of Westminster 1275, 3 Edw 1 c 5. It was explained by Sir Edward Coke in The Institutes of the Laws of England of 1797, where he said: [1] "And forasmuch as it hath been used in some counties to outlaw persons being appealed of commandment, force, aid, or receipt within the same time that he which is appealed for the deed, is outlawed …".
3. That formula expressed concepts that continue into the present of commanding or providing aid to the principal. Sir Edward Coke divided accessories into two categories, before the fact and after the fact. An accessory before the fact commanded or aided the principal, that being to "… incite, procure, set on, or stir up any other to doe the fact, and are not present when the fact is done" (ibid). The word "force" was said to "properly signifieth the furnishing of a weapon of force to doe the fact, and by force whereof the fact is committed, and he that furnisheth it is not present when the fact is done" (ibid). The notion of aid as given by Sir Edward Coke (ibid): "comprehended all persons counselling, abetting, plotting, assenting, consenting and encouraging to doe the act, and are not present when the act is done; for if the party commanding, furnishing with weapon, or aiding, be present when the act is done, then he is a principal".

Johns v The Queen

1. This case was a particular focus of the submissions in this matter. It is a case that is very similar in some respects to the present appeal, although the applicant disputes its applicability to the questions raised by him. Johns had agreed to drive another man, Watson, to Kings Cross, where Watson planned to meet an associate, Dodge, and rob another individual, Morriss, of a substantial sum of cash and jewellery. Johns was to hold the property after the robbery until such time as Watson could get away. Johns had been aware at the time that he drove Watson to Kings Cross that Watson went habitually armed with a pistol that was, on the particular occasion, likely to be loaded. During the course of the drive, Watson told Johns that the target of the robbery, Morriss, was himself always armed, and that he, Watson, would not stand for any "mucking around if it came to a showdown". Johns was aware that Watson was quick-tempered and capable of violence.
2. Johns drove Watson to Kings Cross where Watson joined Dodge. Dodge had a car and he and Watson drove off to another location to confront Morriss. Johns waited for Watson's return. When he did return, Watson told Johns that he had not gotten the property and "it had gone bad". Johns discovered the following day that Morriss had had neither valuables nor a gun, but there had been a struggle with the would-be robbers, during which Morriss was shot dead. Johns, who was alleged by the Crown to have been an accessory before the fact, was indicted as a principal pursuant to ss 18(1)(a) and 346 of the Act, and convicted of murder and assault with intent to rob whilst armed. His appeal to this Court against conviction and, separately, sentence, was dismissed: R v Johns [1978] 1 NSWLR 282 (Johns CCA).
3. The Crown had put its case in terms relying on both categories of murder addressed in s 18(1) of the Act. As to the first category, the Crown case was that (Johns CCA at 294): "the shot was fired by Watson with intent to kill in pursuance of a common design to attack, rob and escape, unrecognised and undetected, and that that contingency or possibility was in the contemplation of all three who engaged upon the common design to effect that purpose."
4. As to the second pathway, relying on constructive murder, the trial judge summarised the Crown case as follows (ibid at 294-295): "there was a design to which Dodge and Johns gave their assent and encouragement by which Watson, armed with an offensive weapon, would assault Morriss with intent to rob him; that it must have been within their contemplation that Watson might, during the assault with intent to rob Morriss, produce that pistol, or immediately after the assault he might produce it, whether or not in pursuance of the common design and whether of not intentionally it might be discharged by him. The very fact that he was armed with an offensive weapon when he went to the robbery must, the Crown contends, have meant for them the possibility that in the course of it all somebody might get killed by the discharge of that pistol whether or not it was necessary for the purpose and done for the purpose and whether or not it was intentional or otherwise. If they were engaged in such a purpose of armed robbery, armed assault with intent to rob, and in the course of it Watson fired the pistol, whether or not accidentally and whether or not in furtherance of the common design, so long as it was a contingency which they had in mind, then the discharge of that weapon killing Morriss was murder in the first degree in Watson and to that murder Dodge was an accessory at the fact, or as it is now called a principal in the second degree, and Johns was an accessory before the fact. It is upon the Crown to prove each of these elements if it is to visit Dodge and Johns with complicity in murder by Watson under the second part of the definition."

Subsequent High Court authority relating to criminal complicity

1. Johns HC was affirmed and built upon in McAuliffe in 1995. There a unanimous bench of the High Court gave what is generally regarded as one of the classic statements of the law of criminal complicity with respect to issues of joint criminal enterprise and extended joint criminal enterprise, stating (at 113-114, citations omitted): "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."

The overlapping forms of criminal complicity

1. As can be seen, the criminal doctrines of liability and complicity are complex and overlapping. Some of the distinctions involved are fine ones. In the interests of clarity it is useful to summarise relevant aspects of the doctrines and how they differ.
2. As explained by McHugh J in Osland, a principal in the first degree is a person who took part in the commission of the crime; either alone or with others. Thus a person who stabs another causing a wound is a principal in the first degree to an offence involving wounding; two persons together, where one holds the victim while another wields the knife to stab the victim, will each be a principal in the first degree to wounding and equally liable.
3. Pursuant to the doctrine of joint criminal enterprise, others who did not necessarily participate in all the acts constituting the offence may also be liable. At the heart of that doctrine is an ongoing agreement to carry out conduct constituting an offence, albeit that the agreement may be unspoken but implied, and may arise essentially contemporaneously with carrying out the offence. Liability extends to a crime incidental to the intended conduct "if the parties contemplate its commission as a possible incident of the execution of their agreement": Miller at [4] and [19]. The doctrine involves attribution of the acts of the parties to the agreement to each other - ie the actus reus of the crime - insofar as they are carrying out the agreement: Osland at [73] and [79]; IL v The Queen [2017] HCA 27; (2017) 262 CLR 268 at [30] and [40]; Mitchell at [55]. In that sense it involves a form of agency: IL at [81]-[83]; Mitchell at [55]. It does not involve the attribution of mens rea between the parties: note Osland at [81] and [93]. Thus liability is primary and not derivative. The difference was explained by Kiefel CJ, Keane and Edelman JJ in IL as follows (at [34]): "Liability which is primary can involve attribution of the acts of another. But the liability remains personal to the accused. Liability which is derivative depends upon attribution to the accused of the liability of another. If the other is not liable then the accused cannot be liable."
4. Because the acts of other parties are attributed to the accused, that person may be liable for a crime which by themselves they are not capable of committing - thus a husband who coerced his wife into an act of vaginal bestiality could be liable for the crime of bestiality although he could not have performed the act himself: IL at [35]-[38] and [83]-[84]. And because liability is primary, the accused can be liable even though the other party or parties to the agreement are not guilty of any offence (such as the wife in that example, who likely had a defence of duress).

The doctrine of constructive murder in this State

1. The constructive murder rule - historically the felony murder rule - is a part of the common law that operated to render an accused person who killed another in the course of committing a felony, guilty of murder, even though the act causing death was not accompanied by one of the states of mind ordinarily required to establish a charge of murder. Sir Edward Coke in The Institutes of the Laws of England gave an example of the operation of the rule, where a thief, shooting at a chicken with intent to steal it, shot a man instead, and was at law guilty of murder. [3] That was so as the act of shooting was committed with the felonious intent of stealing the bird, the theft of domestic fowls being a felony in eighteenth century England. As that example suggests, the application of the constructive murder rule was strict. Similarly, in R v Horsey (1862) 176 ER 129 a person who set alight a stack of straw - that being a felony at the time - was found guilty of murder because a person who had been asleep in the stack died in the fire, even though the person's presence was not known to the arsonist.
2. The application of the rule could be harsh. Thus a key issue over time has been what sort of crime will be sufficient for the rule to apply. Windeyer J explained the common law evolution in Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 240-241: "There was a time when a man was guilty of murder, and punished accordingly, if while doing any unlawful act he happened to kill another man, however unexpectedly and unintentionally. This harsh rule became gradually mitigated. By the eighteenth century, although a man who in the course of committing a crime unintentionally killed another might still for that reason be guilty of murder, this was only when the crime was a felony. By the middle of the nineteenth century doubts had begun to be expressed about this doctrine. … The generally accepted rule of the common law today is, however, that an unintended killing in the course of or in connexion with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person. That I take to be now the general law in places where the question is governed by common-law rules. In New South Wales, however, the modification of the common law of felony-murder did not await the gradual, and for a time questionable, results of judicial decisions. A notable change was made by statute."

The applicant's proposition that s 18(1)(a) only applies to the killer or a participant in a JCE

1. In the current case, the first of the applicant's five key propositions (outlined above at [44]) is that the doctrine of constructive murder applies only to the person who committed the act causing death and to any participant in a joint criminal enterprise to commit the foundational offence. This argument is founded upon the text of s 18(1)(a). The nature and significance of the argument was somewhat unclear. The applicant argued that "it is critical (and uncontroversial) to observe that s 18(1)(a) requires that the act causing death be done by the accused" (emphasis in the original). On its face that seems to exclude the application of even JCE principles to the section. But the applicant seemed to accept that the act or omission causing death for the purposes of a constructive murder charge can be attributed to a participant in a JCE to commit the foundational offence. It may be that this first proposition was simply one way of putting the applicant's overall conclusion that accessorial liability is not consistent with the nature of constructive murder.
2. As explained in the first issue addressed in Giorgianni, the question of whether or not accessorial liability is implicitly excluded by the statutory offence in question is a matter of statutory construction, where the starting point under the Crimes Act is the presumption that those principles do apply (see above at [62]-[63]). The applicant here sought to argue that accessorial liability was excluded at least for constructive murder. Leaving aside the applicant's arguments based on coherence and Giorgianni relating to the particular interaction between constructive murder and liability as an accessory before the fact - which are discussed below - there is no necessary reason why principles of accessorial liability cannot work together with a charge under s 18(1)(a). It has not been doubted that a person can be liable for the first category of murder based on accessorial liability (Johns HC would no doubt have been argued differently were it otherwise).
3. The argument that accessorial liability does not involve attribution of the acts of the principal to the accused in the way that JCE does not exclude the potential for such liability to arise. For accessorial liability it is not the acts of the principal which are attributed to the accused but the liability of the principal for having committed the crime. It is the very nature of being an accessory before the fact that the accused is not said to have assisted at the scene of the crime. Thus, as noted, a person can be held liable for, say, a driving offence even though not even present in the vehicle when it was driven.

The South Australian decision in R v R

1. The applicant made an ambitious submission that this Court was bound by what King CJ, relevantly speaking for five judges in the Full of the South Australian Supreme Court, said about the law of New South Wales in R v R in 1995 (at 421): "Johns was decided in accordance with the law of New South Wales. The felony murder rule does not form part of the law of that State. An equivalent rule is enacted by s18 of the Crimes Act 1900 (NSW) in relation to crimes punishable by penal servitude for life, but it is confined to the commission of the crime 'by the accused, or some accomplice with him' (emphasis added). Section 18 therefore had no application to the factual situation in Johns as the appellant in that case was not with the actual perpetrator but was an accessory before the fact. The restriction of the liability of the accessory to acts which were within his contemplation, has no application in South Australia to a murder committed in the course of the commission of a felony."
2. The applicant effectively argued that, in line with this analysis, this Court was bound to treat constructive murder in this State as a creature of statute, and thus was bound to give effect to the language referring to the accused causing the death charged in the connection with an actual or attempted commission of a foundational offence by the accused or an accomplice. That submission cannot be reconciled with the cases discussed above. And the statement by King CJ misunderstands that, as the cases set out above indicate, s 18(1)(a) does reflect the common law with respect to constructive murder, save in relation to what suffices for the foundational conduct/offence and in relation to the issue of malice aforethought. It is notable that King CJ did not refer to Surridge, Ryan or Downs. In any event, his Honour's statement was based upon his analysis of what the High Court determined in Johns, and this Court is not bound by another intermediate appellate court's understanding of a High Court decision that is binding on both courts: Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609 at [98]. This Court has already explained that the view expressed in R v R, just quoted, is not correct: Batcheldor at [76].
3. The decision in R v R does nevertheless have some significance for current purposes. The case involved an armed robbery by two men in which one of them stabbed and killed a man. At the time of the offence constructive murder in that State was still governed by the common law. The trial judge directed the jury that it "would be no defence" for the companion to say that he did not intend to use his knife or expect the perpetrator to do so. It is apparent that the prosecutor alleged a JCE between the two men to commit the armed robbery. The companion, "G", argued on appeal that the direction was erroneous as he could only be held liable if he contemplated that the other man, "R", would or might inflict a fatal stab wound. In that regard G's counsel sought to rely on Johns HC. King CJ rejected the argument. His Honour referred to a line of prior authority which he saw as standing against it (at 420): "In R v McBride (1984) 34 SASR 433, the Full Court had to consider an argument that the participant in the felony who is not the actual perpetrator of the fatal violence is guilty of murder only if he has agreed or consented to the fatal violence or had in contemplation that such violence might be used. I find the reasons expressed by the members of the Court somewhat confusing but it is clear that the Court rejected that argument and upheld a direction that if two persons are engaged in armed robbery, only one of them holding a gun which kills the victim, then both are guilty of murder. Mr David QC challenged the correctness of that decision and five judges have sat on this appeal because of that challenge. The decision in R v McBride was in accordance with established authority. The leading case is the decision of the English Court of Criminal Appeal in R v Betts (1930) 22 Cr App R 148. In that case it was held that a principal in the second degree to the crime of robbery with violence, was guilty of murder when the principal in the first degree, contrary to the accessory's expectation, inflicted violence to such a degree as to cause death. In R v Solomon [1959] Qd R 123 at 126-7 Philp J, citing R v Betts, said: 'By the common law if the victim of robbery, which is a felony involving violence, be killed in the course of the robbery all parties to the robbery are guilty of murder. The probability or possibility that homicide would or would not be done is irrelevant. The fact that the homicide occurred independently of the exercise of the will of one of the accomplices would not exonerate him.' That statement of the common law is supported by Stephen, A Digest of the Criminal Law (7th ed, 1926), p 225; R v Jackson (1857) 7 Cox's CC 357; R v Rubens (1909) 2 Cr App R 163; R v Murray [1924] VLR 374; R v Appleby (1940) 28 Cr App R 1; R v Ryan [1966] VR 553 esp at 563-7; R v Grant (1954) 38 Cr App R 107."

The High Court's decision in Mitchell

1. The High Court considered a case of constructive murder from South Australia last year, in Mitchell. The applicable law was ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). Section 11 provides for an offence of murder and s 12A for a version of constructive murder, in terms different to the law in this State: 12A - Causing death by an intentional act of violence A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.
2. As can be seen, s 12A differs significantly from s 18(1)(a) of the Crimes Act, both in requiring an intentional act of violence, which is not required in this State, and in setting a significantly lower threshold of seriousness for the foundational offence - being one punishable by 10 years imprisonment in that State, as opposed to the 25 years required here.
3. In that case the Crown alleged that each of the four appellants, together with a fifth man, had agreed to a JCE involving breaking into a house and stealing the cannabis being grown there. The deceased lived at that house and was assaulted and killed in the course of the break-in and theft being carried out. The Crown had relied on two pathways to guilt, the second of which was constructive murder. That pathway was founded on EJCE: the Crown accepted that the appellants had not agreed to the act of violence that occurred (thus JCE did not apply) but alleged that each of the appellants had foreseen the possibility that in carrying out the enterprise one of the five men might perpetrate an intentional act of violence.
4. The High Court unanimously held that this pathway to liability was not available for the purposes of s 12A. Three judgments were delivered. For Kiefel CJ, the core concern was that once it was accepted (as her Honour considered it should be) that the "intentional act of violence" required by s 12A should be broadly construed and did not require that the act of violence in question be the cause of the death, then mere foresight of the possibility of such an act occurring "cannot be a sufficient mental element for murder according to the principle" of EJCE (at [29]). Her Honour concluded that EJCE could not apply to s 12A. That was so "largely as a matter of the construction of that provision", but also "because constructive crimes should be confined so far as possible in their operation" (at [30], citing Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 327).

The decision in Sharah

1. In Sharah, decided in 1992, the principal judgment was given by Carruthers J, with whom Gleeson CJ and Smart J agreed. The case concerned an armed robbery by two people in which a victim of the robbery was killed. The accused, Sharah, had been acting together with his co-offender in an armed hold-up, during which the co-offender discharged a shotgun and killed the victim. Sharah was charged with murder and with armed robbery with wounding, contrary to s 98 of the Act. The Crown relied upon two pathways for the murder charge: 1. "common purpose" murder, which seems to have involved an allegation of what would now be called EJCE, on the basis that Sharah foresaw the possibility of really serious injury or death being inflicted; 2. alternatively "felony murder", where the felony was either of robbery in company with arms and wounding (being count 2), or robbery with striking and wounding.
2. As regards the latter pathway, the trial judge directed the jury that the Crown did not have to prove any intention to injure, but only that the gunman's act causing death was done by him during or immediately after the commission by the accused or an accomplice with him of a crime punishable by penal servitude of 25 years, or in an attempt by him or an accomplice to commit such a crime (see at 299-300). Those directions were not challenged at first instance, as the only issue at trial was whether the identification of Sharah as the second robber was reliable.
3. On appeal to this Court, the relevant complaint made about the judge's directions as to both murder pathways was this: "his Honour should have specifically directed the jury that it was necessary for the Crown to prove that the appellant knew, or alternatively contemplated as a possibility, that the gun was loaded and actually authorised its use if necessary" (at 301, emphasis added). In other words, in essence Sharah argued that he could only be liable if use of the gun was part of the joint criminal enterprise. That argument was rejected on the basis of what would now be called EJCE. Carruthers J held that it "is well-established that there are two classes of common purpose murder", where the second was when the accused "contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm" (at 301). Thus, having referred to relevant case law, Sharah's argument was rejected (at 303-304): "Thus authority establishes that in the instant case, it was sufficient for the Crown to prove common purpose murder if the appellant participated in the unlawful common purpose realising (without agreeing to such conduct being used) that Attard may kill or inflict serious injury with the loaded gun. The appellant's submission that the Crown must prove that the appellant actually authorised the use of the gun if necessary cannot stand with this authority and must be rejected."

Accessorial liability and constructive murder

1. The issue that remains to be considered with respect to ground 1 is whether it was open to the Crown to pursue a conviction under s 18(1)(a) based on accessorial liability as an accessory before the fact.
2. As explained above (at [44]), the applicant's argument to the contrary was captured in five propositions. We have already addressed the first proposition, namely the argument that the doctrine of constructive murder applies only to the person who committed the act causing death, and to any participant in a joint criminal enterprise to commit the foundational offence (see above at [111]-[116]). As explained there, that proposition does not greatly advance debate. It tends towards being a statement of conclusion.
3. The applicant's second proposition was that accessorial liability does not operate on the basis that the act of the principal is attributed to the accessory. That proposition is correct (see above at [88]-[95]). As explained, accessorial liability is secondary and derivative. That means it "depends upon attribution to the accused of the liability of another" (IL at [34]). As the applicant himself submitted, "the accessory is fixed with liability for the principal offender's crime, by reason of the intentional encouragement or assistance they provided to the commission of that crime". That being so, the applicant's second proposition does not establish that liability as an accessory before the fact is inconsistent with liability for constructive murder. The attribution of acts is not necessary to found this type of liability. If the principal to the foundational offence is liable for constructive murder then - subject to consideration of the applicant's remaining arguments - it is open to attribute that liability to an accessory before the fact to the foundational offence.
4. The applicant's fourth proposition was that the decision in Johns HC is not persuasive or binding authority to establish liability for constructive murder as against an accessory before the fact. For the reasons set out above at [71]-[78], we agree with that proposition insofar as that case is best understood as turning on the doctrine of JCE rather than accessorial liability as an accessory before the fact. That being said, the case makes clear that a person who is in fact an accessory before the fact can be liable for constructive murder, a point which raises a question as to whether or not the difference between the legal doctrines of accessory before the fact and JCE should lead to a different outcome - a matter which we address below.

Giorgianni and coherence

1. The nub of the applicant's arguments on this issue was as follows: "The effect of Giorgianni is that an accessory before the fact is required to know and intend all of the elements comprising the offence to be committed. In this case that is the offence of murder, not simply the offence of attempted armed robbery with a dangerous weapon. … Viewed in the context of an allegation of constructive murder, even if it be assumed that the accessory was (as here) an accessory to the felony, the accessory could not be taken to know and intend the additional act giving rise to death. That additional act is not necessarily consequential upon the matters which are known and intended by the accessory in the same way that death might result from dangerous driving or an unlawful act likely to cause serious injury. Nor is the additional act that gives rise to the death necessarily unlawful."
2. The Crown's position on this issue was not wholly inconsistent with the applicant's arguments. In a supplementary written submission it said this: "In a case of constructive murder, the character of the relevant acts is defined by s 18(1)(a) as a foundational offence (with the attendant mens rea) and an act causing death. In some cases of constructive murder, the foundational offence itself may include in its elements the act causing death (such as an act of wounding, in a foundational offence which includes wounding, leading to death). In such a case, the knowledge required to be proved in the accessory will in substance comprise the acts which made the foundational offence a crime. In other cases, the commission of the act causing death may be additional to the commission of the acts which comprise the elements of the foundational offence. In such a case, although no additional mens rea is required of the principal, the accessory must intentionally assist with the commission of the offence with knowledge of the act causing death as one of the possible ways in which the acts constituting the foundational crime may be carried out. In this case that was knowledge of the use of the loaded firearm to effect the robbery, which included knowledge or awareness that its use may involve discharging it."
3. That crystallisation of the Crown's position reflected what had been put orally by senior counsel for the Crown, as illustrated in the following exchanges: "CROWN: I understand, I hope, what your Honour is putting but the crime that is committed is the foundational offence and well it's an attempt to commit the foundational offence in fact and an act causing death, there could be complete coincidence in the actus reus with the actus reus of the foundational offence and the act causing death. IERACE J: Which isn't the case here? CROWN: It's not, no, there isn't a complete coincidence with the actus reus because the crime could be committed without the discharge of the weapon. IERACE J: So what's the minimum knowledge that's required beyond the elements of the foundational offence in this case? CROWN: Awareness that the facts and circumstances with which he is intentionally assisting mean that the act causing death is one of the possible acts that could occur, and I appreciate that I am using the word possible, but what the accessory is doing is intentionally assisting with this crime. So he's linked in purpose with the principal, he is intentionally assisting him to carry out a foundational offence which includes having a loaded firearm and we say that using the word possibility here doesn't import - we're not talking about recklessness, we're talking about actual knowledge of all the facts and circumstances but it's just that as a matter of language or logic there's a number of possible ways that the offence could happen. … KIRK JA: Why do you need it, and to ask a second question what's the foundation in the case law for this requirement; is it Sharah? CROWN: It's not Sharah your Honour no. KIRK JA: It's the Crown's current version of what the law should be. CROWN: It's intended to be consistent with the way in which the knowledge requirement is expressed in Giorgianni and Blundell [referring to Blundell v R [2019] NSWCCA 3; (2019) 279 A Crim R 372] that is to make knowledge of the acts which go to make up the crime committed by the principal. KIRK JA: That's why you seem to be falling between two stools, at least as I currently see it, because you're saying it's not actually knowledge that's required, but I'm giving you something because knowledge is required. CROWN: I understand the criticism but we say it is knowledge in terms of facts and circumstances; it's not a prediction it's an awareness and that is knowledge of what can happen. It can't be that it's going to happen. … CROWN: The difficulty is the requirement emerging from Giorgianni for knowledge of the matters or the facts and circumstances or the acts which constitute the crime with which he is alleged to have assisted. So that crime includes the act causing death."

Arguments of policy and principle

1. The policy behind the doctrine of constructive murder is clear. If a person undertakes or attempts to undertake a sufficiently serious crime, and a person is killed in connection with so doing, then the person should be held liable for the death. That policy of the law is longstanding.
2. The effect of the offence of constructive murder is to impose liability on the principal where the infliction of death or grievous bodily harm was not intended or foreseen. Further, a participant in a JCE to commit the foundational offence may be liable for constructive murder without the prosecution needing to establish any mens rea in the participants in relation to the act or omission causing death. That that is so is established by Surridge, the High Court statements in IL and Mitchell, R v R, and the numerous authorities cited in R v R going back to at least 1857 (see above at [122]-[123]). We have rejected above the view that Sharah establishes some generic requirement to the contrary.
3. In this context, a reasonable argument can be made that to require an accessory before the fact to have some such mens rea would be anomalous. In Mitchell, the first joint judgment identified that it would be anomalous that the participant in a JCE who did the "intentional act of violence" required by the South Australian provision had to have acted with intention, but for another participant it was sufficient merely to have foreseen that possibility as creating liability in them (at [44]). Here, it can be argued that the anomaly would be the other way around: a higher requirement of mens rea would be imposed on the accessory than would be imposed on either the principal or any other participant in a JCE to commit the foundational offence.
4. That argument can be further reinforced by the point made above that the difference between liability under the doctrine of JCE and liability as an accessory before the fact is very fine (see above at [70] and [93]). The former depends upon establishing an agreement to carry out the offence in question, which agreement may be unspoken but implied in and inferred from all the circumstances. The latter involves providing assistance to the carrying out of the offence, where such assistance means the principal and the offender can be said to be linked in purpose. However, no actual agreement is required for accessorial liability. Even so, it is difficult to say that there is a significant difference in the moral culpability of a person who (say) provides a gun knowing it is to be used in a robbery but without actually agreeing that that is to be done, and someone who supplies the gun with positive agreement with the co-offender that it is to be so used.

Summary of conclusions on accessorial liability

1. The fifth element in the directions of the trial judge would not have been needed if this case had been run on the basis that the applicant was part of a JCE to commit the foundational offence charged in count 2. Sharah did not require to the contrary.
2. But the case was not run on the basis of any such JCE existing. The Crown had initially proposed to run such a case, as one of three pathways to liability, but at trial opted not to proceed with that version of its case (see above at [35]). As a consequence, no part of the trial judge's directions to the jury required them to find that there was an agreement between the applicant and Coskun to commit the foundational offence. That this Court may consider that there was plentiful evidence to infer such an agreement cannot overcome the fact that to make out liability under a JCE would have required the jury to consider and determine the issue. Unsurprisingly, the Crown did not seek to invoke the proviso if ground 1 was made out.
3. Ground 1 of the applicant's appeal is made out. As asserted there, it was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability. We address the consequences of this conclusion below. Lest this matter go any further, it is appropriate to determine the other grounds of appeal, noting that ground 3 challenges both convictions.

Other attacks on the directions as to the elements of the offences

1. Under ground 2 the applicant takes issue not only with the fifth element set out in the directions of the trial judge (quoted above at [41]), as addressed above, but also with the second and fourth elements. He contends that: 1. the direction as to the second element is wrong as it made conviction possible on the basis of assistance with "preparations"; referred to "armed robbery" rather than "armed robbery with a dangerous weapon"; and failed to allow for the possibility of the jury accepting only that a high visibility shirt had been provided to Coskun, thus leading to an acquittal; 2. the directions as to the fourth element are wrong as it could only be satisfied upon proof that Coskun, and not the unidentified second intruder, had discharged the fatal shot; 3. the directions as a whole were inadequate to convey to the jury the knowledge and intention that the applicant had to have when the assistance was given to Coskun.
2. In considering these complaints, it is important to undertake the analysis in the context of the trial as it was conducted before the jury: Beattie v R [2021] NSWCCA 291 at [26]. It cannot be undertaken in a vacuum, divorced from the reality of the trial proceedings as experienced by the jury.
3. In that regard, the applicant's criticisms of the directions given with respect to element 2 tend to do just that, and take the directions absent the context in which they were given. What was said by the trial judge, both orally and in MFI 66, with respect to element 2 constitutes part of a whole. The written direction used the phrase "intentionally assisted … in the preparations", but in the context of the whole there could have been no doubt that the "assistance" given in the "preparations" was the provision by the applicant of a loaded gun and/or the items of clothing, with knowledge that the items were to be used in carrying out a robbery with a dangerous weapon. The directions given in relation to element 1 referred to and defined the nature of the foundational offence (being count 2) by reference to the use of a dangerous weapon, set out in the oral and written directions in accordance with the definitions given by s 4 of the Crimes Act and s 4 of the Firearms Act 1996 (NSW) as "a gun capable of propelling a projectile by means of an explosive". The directions given with respect to element 3 similarly referred to the assistance provided by the applicant as assistance knowing that it was "intended to steal property from someone by the threat of force while armed with a dangerous weapon".

Ground 3 - complaint about directions relating to lack of past convictions

1. The trial judge directed the jury as to the applicant's absence of a criminal record: "The next subject is the accused's lack of a criminal record. You have heard [the officer in charge of the investigation] answer a question in cross-examination to the effect that the accused has no prior convictions. In other words, he has got no criminal record. There is no dispute about this so there is no reason why you would not accept it. Counsel for the accused has submitted, in effect, that this is something you can take into account in the accused's favour, and I can tell you that that is a submission that you are entitled to consider."
2. The applicant submits that the direction concerned his good character and that it was inadequate for that purpose, since evidence of his good character was "eminently relevant to the question of whether he would have aided and abetted an armed robbery with a dangerous weapon or, worse, murder".
3. The alleged inadequacy was not the subject of objection and therefore leave to raise the point is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
4. The issue of a good character direction was first raised by the parties in the pre-trial phase, in the context of a contested application by the Crown to admit evidence of a tendency by the applicant to engage in the business of committing drug rips for profit. Counsel for the defence informed the Court that a good character direction would not be sought. On day 15 of the trial, in a different context, the Crown informed the Court: "the Crown has previously articulated that, if [the applicant] was trying to adduce evidence that would otherwise suggest he was a person of good character that went beyond the issue of his lack of criminal record, the Crown would be raising matters that relate to his bad character, and they relate to the fact that, around this time, he is dealing in drugs, he is threatening to shoot people and, on the surveillance device log … the Crown would draw your Honour's attention to a recording of [the applicant] where he is threatening to go and shoot the new partner of his ex-wife."
5. The issue arose again on the last day of the Crown case, by which time it appears that the applicant's counsel had foreshadowed that he would seek a direction of that nature. The trial judge engaged with counsel for the applicant: "HIS HONOUR: Another matter we might talk about while we are waiting, that direction on character, what am I supposed to say? There is evidence that [the applicant] has no criminal record. What can the jury do about that? Infer that he is a person of good character and therefore is unlikely to have done what the Crown alleges? The jury might think, well, hang on, we've heard evidence of his involvement in other activities and it is not conceded, as you have told us, that he has been involved in drug supply. HUGHES: Your Honour, the Crown wishes to refer to the drug rips conversation and assert that that is evidence that goes against the proposition that the man is a person of good character. My only submission in relation to it, your Honour, is he was 28 years old, he was 26 years old at the time of the offence and he'd never been convicted of a criminal offence. You will listen to the material and make your own mind up about whether he might have had some involvement in minor criminal activity but that is what I will be submitting. HIS HONOUR: Am I supposed to say you can therefore take into account that he is of good character or just take into account those features-- HUGHES: No criminal conviction. It is a limited-- HIS HONOUR: --that you have mentioned and they are matters that can be taken into account? HUGHES: That's right. In that sense it is a limited character direction. Mr Hughes relies upon the fact that he had no criminal convictions at the time but, beyond that, I am not going to say anything beyond that, your Honour. CROWN PROSECUTOR: Mr Hughes wouldn't be able to say anything beyond that because, in my submission, he would be precluded from saying anything about his activities being limited to the small time dealing because if good character had been relied upon in full, the Crown would have led other evidence of significant drug-- HIS HONOUR: I accept that, but there is evidence as to his lack of conviction. CROWN PROSECUTOR: Yes. HIS HONOUR: And that, Mr Hughes would say, is a relevant matter for them to take into account. CROWN PROSECUTOR: Yes, only that, yes."

Ground 4 - unreasonable verdict

1. Ground 4 asserts that the verdict on count 1 was unreasonable, or cannot be supported, having regard to the evidence. In this case the unreasonable verdict ground was put in a very particular way, being relevantly as follows: "If the Court is of the view that accessory before the fact cannot be combined with constructive murder, the verdict was unreasonable because: (1) The offence charged was murder, which is an offence known to the law. (2) The basis of the derivative liability coupled with constructive murder relied upon by the Crown was not properly available to prove murder as a matter of law. (3) The Crown did not contend for conviction on any other basis. (4) A conviction for murder would not be open on the evidence on any other basis (including extended JCE which it is argued is not available where the offence prosecuted is constructive murder: see Mitchell v The King and R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202)."
2. As senior counsel for the applicant accepted in oral submissions, the significance of ground 4 being raised in this case was that it was "another way of saying if we win on ground 1 there should be an acquittal, because it also means that guilt wasn't established beyond reasonable doubt".
3. One issue with the applicant's argument is that the charge in count 1 of the indictment presented to the jury was murder contrary to ss 18(1)(a) and 346 of the Crimes Act (see above at [29]). True it is that the latter provision refers to the liability of an accessory before the fact. But the same provision was invoked in Johns where, as explained above, liability was made out based on the doctrine of JCE where Johns was in fact an accessory before the fact but that was not the basis of his liability. Thus the invocation of s 346 in this indictment should not be regarded as having limited the Crown to relying just on accessorial liability. Moreover, the applicant was charged with murder, not constructive murder. Different pathways to a conviction were and are open under the indictment as framed at trial. The applicant did not contend to the contrary.
4. It was thus open to the Crown to have relied on at least a JCE pathway, as it initially proposed to do. It is neither necessary nor appropriate to consider whether an EJCE pathway would be open to the Crown on a retrial in light of Mitchell - that is a matter of some complexity and was not the subject of any significant argument in this Court. As we discuss below, a strong potential case can be made against the applicant based on at least on the doctrine of JCE. Indeed, the difference between that case and the case actually made to the jury is slight. Although the applicant submitted that a conviction "for murder would not be open on the evidence on any other basis", the applicant did not argue that on all of the evidence it could not have been open to the jury to be satisfied of his guilt of murder beyond reasonable doubt in terms of JCE, if that pathway had been raised and the subject of appropriate directions.

Conclusion and orders

1. The applicant has made out ground 1, alone. As a consequence the conviction on count 1 for murder cannot stand. The conviction on count 2, for the foundational offence, is unaffected.
2. The question then is whether a retrial on count 1 should be ordered in the Court's discretion having regard to s 8(1) of the Criminal Appeal Act. A range of factors may be relevant to the exercise of that discretion: see eg Castagna v R [2019] NSWCCA 114 at [190]-[204].
3. The charge of murder - even for someone not present at the scene - is a very serious one. There is a substantial public interest in a person charged with such an offence being tried before a properly directed jury: note Taufahema at [49]-[51].
4. There appears to be a strong potential case against the applicant for murder based on JCE. The core facts of the matter are outlined above at [8]-[25], and the facts found by the trial judge for sentencing were set out at more length in his Honour's sentencing judgment. The key additional requirement for a JCE pathway would be establishing an agreement between the applicant and Coskun that the foundational offence would be committed. There was strong evidence indicating such an agreement. Notably, the conversation involving the applicant recorded on 28 June 2019, and set out at length above at [21], is evidence of the following: that on the night in question Coskun had explained the planned break-in and theft to the applicant; the applicant supplied Coskun with a loaded Glock "extended clip" handgun and a high vis shirt; that the applicant was himself going to participate in the robbery but pulled out at the last minute; the applicant supplied the gun and shirt because he needed money; and that even after the applicant pulled out of participating himself, Coskun said "I'll get something out of it and I'll bring it to ya".
5. This is not a case where the applicant "would be called upon to meet a quite different case to that presented against him at trial": cf Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 519; see also Taufahema at [67]-[68]. As already noted, there is only a fine difference between the pathway advocated below and a JCE route. As the Crown submitted, such a case would not require a substantial amendment to the indictment: cf Parker at 520. As noted, the situation here is the converse of that considered in Handlen, in which a retrial was ordered.

Endnotes

1. JW Cecil Turner MC LLD, Russell on Crime (Stevens & Sons London, 12th ed, 1964).
2. Sir Edward Coke, The Third Part of the Institutes of the Laws of England Concerning High Treason and Other Pleas of the Crown and Criminal Causes (W Clarke & Sons, 1797), at 1 Inst 181.
3. Criminal offences were formerly divided into felonies, misdemeanours, and common law misdemeanours. The first two categories rested on the extent of the maximum penalty prescribed for the offence. Felonies and misdemeanours were abolished in 1999 by the introduction of s 580E of the Crimes Act. The equivalents in modern statutory language are, respectively, serious indictable offences and minor indictable offences: s 580E(4). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2024