BELL AND NETTLE JJ. The appellant was tried in the Supreme Court of New South Wales on one count of manufacturing a large commercial quantity of a prohibited drug, namely 6.7 kilograms of methylamphetamine (Count 1); one count of murder (Count 2a); in the alternative, one count of unlawfully causing the death of Zhi Min Lan ("the deceased") (Count 2b); and four offences relating to the unlawful possession of firearms. The Crown alleged that the appellant committed the offence charged by Count 1 by participating with the deceased in a joint criminal enterprise to manufacture the methylamphetamine. In relation to Counts 2a and 2b, the Crown alleged that, although the evidence could not exclude the possibility that the deceased was killed accidently as a result of his own act, the appellant was guilty of his murder, or alternatively manslaughter, pursuant to s 18(1) of the Crimes Act 1900 (NSW) by reason that the act which caused the deceased's death was committed in the course of the joint criminal enterprise to manufacture the methylamphetamine, an offence punishable by imprisonment for life, and was therefore an act of the appellant as a participant in that enterprise.
At the conclusion of the Crown case, the trial judge (Hamill J) directed the jury to acquit the appellant of Counts 2a and 2b. On appeal by the Crown pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the Court of Criminal Appeal (Simpson JA, R A Hulme and Bellew JJ agreeing) held that the directed verdicts of acquittal should be quashed and that there should be a new trial on those counts.
The question for decision in this appeal is whether the trial judge was correct to direct the jury to acquit the appellant of the counts of murder and manslaughter charged by Counts 2a and 2b. For the reasons which follow, the question should be answered affirmatively and the appeal should be allowed.
Relevant statutory provisions
To the extent that is relevant, ss 24 and 33 of the Drug Misuse and Trafficking Act 1985 (NSW) provide as follows:
"24 Manufacture and production of prohibited drugs
...
(2) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
...
33 Penalties for offences involving commercial quantities or cultivation for a commercial purpose
(1) This section applies to the following offences:
(a) an offence under section 23(1A) or (2), 24(2) or 25(2) or (2A),
...
(2) The penalty for an offence is:
(a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, ...
(3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is:
(a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or
(b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both.
(4) In this section:
large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1."
Section 18 of the Crimes Act defines murder, including that known as constructive or "felony" murder, thus:
"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.
(b) Every other punishable homicide shall be taken to be manslaughter.
(2)
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only."
The trial
The evidence adduced at trial established that, on 4 January 2013, emergency services officers were called by a neighbour to attend a fire that had broken out in residential premises owned by the appellant in the Sydney suburb of Ryde. Upon the officers' arrival, the appellant attempted to block their entry into the premises. After gaining entry, the officers treated the deceased and the appellant for injuries suffered in the fire. The deceased's injuries were severe and he died in hospital on 14 January 2013 without regaining consciousness.
Police found that a process of evaporation and purification had been set up at the premises to allow for the refinement of raw methylamphetamine which had been manufactured at another location. It appeared to be a serious commercial venture. The bathroom was equipped with a gas burner, liquid petroleum gas bottle and large cooking pot. The kitchen was equipped to be used in the same way. Various quantities of methylamphetamine, totalling more than six kilograms, were found in differing degrees of purity, indicating that the process of refinement had been ongoing. There were also funnels, sieves, buckets, latex gloves, thermometers, a vacuum flask and pump, and other equipment which converted the bathroom into an "ad hoc meth lab", as well as evidence, in the form of empty tins and bottles, that more than 70 litres of acetone had been kept at the premises. This equipment and evidence suggested that the premises were used for the singular purpose of refining methylamphetamine.
On further searches of the premises, police found three pistols, a prohibited weapon and cash in the sum of $328,000, in circumstances indicating that the cash belonged to the deceased. Police also discovered a sum of $16,900 in cash and 15 grams of methylamphetamine in the appellant's locked bedroom in her home in Hurstville. From those facts and circumstances, it was concluded that the appellant was paid for her involvement in the manufacture of methylamphetamine at the Ryde premises.
The process of refining the methylamphetamine involved dissolving a solute (containing raw methylamphetamine) in a solvent (acetone) over a low heat. Acetone is flammable and, when heated, the liquid generates flammable vapours. Once the concentration of flammable vapours reaches a certain level, the vapours may explode if exposed to a source of ignition. A spark from an electrical appliance or a naked flame can operate as a source of ignition. An ardent concentration of vapours is likely to be reached more quickly when the evaporation process is undertaken in a confined space.
The Crown case on Count 1, relating to the manufacture of the methylamphetamine, was based on evidence of the appellant's ownership of the Ryde premises; her purchase of eight litres of acetone from a hardware store on 1 January 2013; her presence at the premises at the time of the fire; and what was said to be a consciousness of guilt demonstrated by her trying to bar entry by emergency services officers to the premises. The appellant also gave evidence that she had taken two gas bottles, similar to the ones found in the bathroom, to a service station and filled them, and that she had stirred a pot of methylamphetamine in the kitchen early in the morning of 4 January 2013. The Crown contended that, because of the amount of items associated with the manufacture of drugs located at the premises, anyone who entered the premises would have appreciated that they were being used for the manufacture of drugs and, for that reason, the appellant must have understood that the premises were being used for that purpose. This evidence was said to establish, at least, that the appellant was involved in the manufacture of methylamphetamine by permitting it to occur at premises she owned.
The Crown case on Counts 2a and 2b, murder and manslaughter respectively, was that the fire, and thus the deceased's death, was caused by the lighting of the gas ring burner in the small and inadequately ventilated bathroom in circumstances which created an objectively appreciable risk of serious injury. The Crown did not allege, however, and could not prove, that it was the appellant who lit the gas ring burner. The Crown argued instead that, because the appellant was a participant with the deceased in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine - being an offence punishable by life imprisonment - the appellant was criminally liable, for the purposes of s 18(1) of the Crimes Act, for all acts committed in the course of carrying out that enterprise. It followed in the Crown's contention that, although it could have been the deceased who lit the gas ring burner, the appellant was criminally liable for the consequence of it having been so lit and thus for the deceased's death.
At the close of the Crown case, the appellant moved for directed verdicts of not guilty in respect of Counts 2a and 2b. For reasons which the trial judge published on 2 December 2014, his Honour acceded to that application and so directed the jury. Thereafter, the trial continued to conclusion on 9 December 2014 when the jury brought in verdicts of guilty on each of the remaining counts.
The trial judge's reasons for the directed verdicts
The trial judge considered that there was a flaw in the Crown's argument arising from a misunderstanding of the true effect of the doctrine of common purpose. As his Honour observed, in McAuliffe v The Queen this Court explained that if one or other of the parties to an understanding or arrangement comprising a joint criminal enterprise to commit a crime 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 participant in its commission. The trial judge was persuaded by a submission of the appellant's counsel that any criminal liability that the appellant may have had for the death of the deceased according to the doctrine of common purpose would be "derivative" and, since the deceased had not committed a crime by killing himself, the appellant could not be convicted of murder or manslaughter as a principal in the second degree. As his Honour explained:
"Properly analysed, if the [appellant] is liable for murder, she is liable as a principal in the second degree. ... The deceased could not be convicted of his own murder. The offence of suicide was long ago abolished and [in any event] there is no evidence capable of establishing that he acted with the requisite specific intent."
Thus, the trial judge concluded:
"I do not accept that the combination of principles of common purpose and constructive murder work together to make [the appellant] liable to conviction for murder in the circumstances of the present case. Whether the situation may be different where the deceased person was not the one who committed the act or where the death was of an innocent victim is not necessary to decide in the circumstances of this case."
His Honour further concluded that there was insufficient evidence to support a verdict of guilty in relation to the alternative charge of manslaughter.
Proceedings in the Court of Criminal Appeal
In the Court of Criminal Appeal, Simpson JA, with whom R A Hulme and Bellew JJ agreed, held that the trial judge erred in treating the liability of a passive participant for acts committed by a co-participant in the course of a joint criminal enterprise as derivative, and by focussing on whether the deceased's death was within the scope of the joint criminal enterprise or contemplated by the participants. Her Honour stated that:
"The correct question is whether the ignition of the ring burner was within that scope [of the enterprise] or contemplation; if it was, both participants were responsible for it, and liable for its consequences."
It followed, her Honour held, that the trial judge was incorrect to direct a verdict of acquittal on the count of murder and, because the lighting of the gas ring burner was an unlawful and dangerous act for which the appellant was criminally liable, the trial judge was also incorrect to direct a verdict of acquittal on the count of manslaughter.
Constructive murder
Section 18 of the Crimes Act is poorly drafted and, for that reason, difficult to construe. It assists, however, to break down the provision into its constituent parts. For present purposes, the relevant part of s 18(1)(a) is that which defines constructive murder as having been committed by an accused "where the act of the accused ... causing the death charged, was done ... during ... the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years".
There are two points to note about that definition. First, unlike the common law felony murder rule from which the definition of constructive murder derives, and unlike most statutory formulations enacted in other States, the act which causes the death charged need not be an act of violence. It is sufficient, for the purpose of s 18(1)(a), that the act causing death be done during the commission of a crime punishable by imprisonment for life or 25 years. Secondly, although the natural and ordinary meaning of the terms of s 18 is that the act which causes the death charged must be "the act of the accused" (even though the crime punishable by imprisonment for life or 25 years' imprisonment, during which the act causing death was done, may be committed either by the accused or by some accomplice with the accused), it has long been held that, upon its proper construction, s 18 relevantly imports common law rules of complicity. Thus, an accused may be found guilty of murder even if he or she did not commit the act which caused the death charged provided the act was committed by an accomplice of the accused in the course of carrying out a joint criminal enterprise to which both were parties. In the result, it is the common law doctrine of joint criminal enterprise liability which is determinative of the outcome of this appeal.
Joint criminal enterprise liability
At its base, the common law doctrine of joint criminal enterprise liability, or "common purpose" or "concert" as it may equally be called, is that:
"if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime." (emphasis added)
The doctrine also has a further dimension which extends to any other crime committed by a party to the understanding or arrangement in the course of carrying out the understanding or arrangement if that other crime is within the scope of the understanding or arrangement. Thus, as was explained by Stephen J in Johns v The Queen:
"The criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture. As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated, and both approves of it and in some way encourages it thereby becomes an accessory before the fact ... His knowledge, coupled with his actions, involves him in complicity in that crime. But if, in carrying out that contemplated crime, another crime is committed there arises the question of the complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity, the scope of that common purpose determining whether the accessory before the fact to the original crime is also to share in complicity in the other crime. If the scope of the purpose common both to the principal offender and to the accessory is found to include the other crime, the accessory will be fixed with criminal responsibility for it."
There is then also a third dimension of joint criminal enterprise liability usually called "extended common purpose" or "extended concert" which was considered by this Court in McAuliffe and more recently in Miller v The Queen, which extends to crimes that, although not within the scope of the understanding or arrangement, are foreseen as possibly being committed in the course of carrying out the understanding or arrangement, and are then committed by one of the participants when carrying out the understanding or arrangement. The doctrine of extended common purpose is not in issue in this appeal and, for present purposes, need not be considered further. Nonetheless, it should be observed that the doctrine of common purpose and the doctrine of extended common purpose are at one in attributing criminal liability to one participant for a crime committed by another participant in the course of carrying out their joint criminal enterprise.
In this matter, it is apparent that the Court of Criminal Appeal proceeded on the basis that the doctrine of joint criminal enterprise liability renders an accused liable for all acts within the scope of the enterprise committed by a co‑participant in the course of carrying out the enterprise, whether or not those acts amount to a crime. Hence, as Simpson JA reasoned:
"The Crown case on murder was that [the deceased's] death was caused by an act of the [appellant], in the course of the commission, or attempted commission, of an offence of manufacturing a large commercial quantity of methylamphetamine. However, as has been noted above, because the Crown was unable to nominate any act or event that caused the ignition of the ring burner, it was unable to nominate any specific act of the [appellant] that caused [the deceased's] death. The Crown therefore relied upon principles of law relating to joint criminal enterprise, particularly those with respect to fixing one participant with criminal liability for the acts (or omissions), within the scope of their agreement, of another participant, or other participants. ...
It was, thus, the Crown case that, because the [appellant] and [the deceased] were engaged in a joint criminal enterprise, the [appellant] was equally responsible for the act of ignition whichever of the two actually did it; that, in effect, if it were [the deceased's] act that caused the ignition of the ring burner that act was, on the principles stated in Johns and McAuliffe, the [appellant's] act. Since the [appellant] was thus responsible for the act causing death, and it was an act done in the course of the commission of an offence punishable by imprisonment for life, the [appellant] was guilty of the murder of [the deceased].
...
There was no real dispute that the Crown could make out a case that the [appellant] and [the deceased] were engaged in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug. There could have been no real dispute that each bore criminal liability for all of the acts of the other that were within the scope of that joint criminal enterprise, or were contemplated by it. Plainly, the act of lighting the ring burner was such an act. Whichever of the [appellant] and [the deceased] did that act, the other was equally liable for it." (emphasis added)
With respect, however, that is not so. Although it is not infrequently, and in a sense not inaccurately, stated in the authorities that a participant in a joint criminal enterprise is criminally liable for acts committed by a co-participant in the course of carrying out the enterprise, a careful examination of those authorities shows that such references are invariably to acts that are identified, expressly or by necessary implication, as comprising the actus reus of a crime. And logically it could not be otherwise, given, as has been seen, that the essence of joint criminal enterprise liability is that two or more participants in a joint criminal enterprise who between them do all the things that are necessary to constitute a crime are equally liable for the acts which constitute the actus reus of that crime. Thus, by definition, joint criminal enterprise liability is limited to participation in acts constituting the actus reus of a crime and has nothing to say about liability for acts which are not the actus reus of a crime or are incapable of constituting the actus reus of a crime.
Of course, that does not mean that the liability of one participant for the actus reus of a crime committed by another participant in the course of carrying out their joint criminal enterprise is derivative of the other participant's liability for committing the act constituting the offence. As was established in Osland v The Queen, the liability of each participant in a joint criminal enterprise for acts committed in the course of the enterprise is direct, primary liability. Rather, the foregoing observations emphasise that the purpose of the doctrine of joint criminal enterprise liability in this respect is, and is only, to attribute liability for crimes incidental to the enterprise. For that reason, it is not open under the doctrine of joint criminal enterprise liability to attribute criminal liability to one participant in a joint criminal enterprise for an act committed by another participant in the course of carrying out the enterprise unless the act is or is part of the actus reus of a crime.
By way of illustration of the point, if two persons enter into an arrangement to commit an armed robbery of a bank with a dangerous weapon, and pursuant to that arrangement one participant in the enterprise is to wait in a car keeping a lookout while the co-participant goes directly across a busy street to the bank to effect the robbery, and, in crossing the street, the latter participant walks in front of a bus and is killed, although the act of walking across the street was done in furtherance of the joint criminal enterprise, the participant who waited in the car is not guilty of the murder or manslaughter of the co‑participant: the act of the co-participant in walking across the street was not the, or part of the, actus reus of the crime of murder or manslaughter.
Equally, if two persons enter into an arrangement to break into a dwelling with a dangerous weapon with an intent to commit a serious indictable offence, and one participant in the enterprise falls from the roof while attempting to gain entry to the dwelling via a second-storey window and is killed, although the act of attempting to access the dwelling was done in furtherance of the joint criminal enterprise, the other participant is not guilty of the murder or manslaughter of the co-participant: the act of climbing on the roof did not amount to the actus reus of the crime of murder or manslaughter.
Again, if two persons enter into an arrangement to cultivate a large commercial quantity of opium plants and one participant in the enterprise is killed as a result of some mechanical failure of the tractor used to cultivate the opium crop, the other participant is not guilty of the murder or manslaughter of the co-participant: the use of the tractor was not the actus reus of the crime of murder or manslaughter.
Despite that being so, before this Court, the Crown invoked passages from the reasons for judgment of Street CJ in Johns in the New South Wales Court of Criminal Appeal, and from the judgments of Barwick CJ and Mason, Murphy and Wilson JJ in Johns in this Court, as establishing that the doctrine of joint criminal enterprise liability does impose "liability for acts and not liability for crimes". It was also contended that the judgment of McHugh J in Osland makes clear that the doctrine of joint criminal enterprise liability renders participants in a joint criminal enterprise liable for all acts within the scope of the enterprise that are committed in the course of carrying out the enterprise regardless of whether the acts constitute the actus reus or part of the actus reus of a crime.
So to construe those judgments misunderstands the essential effect of them. In the passage from the judgment of Street CJ in Johns to which the Crown referred, his Honour stated:
"A principal in the second degree may be held liable pursuant to the doctrine of common purpose, if the particular actus reus, whilst differing from that directly and specifically intended by the principals, was nevertheless one that the jury regard as within the contemplation of the parties as an act which might be done in the course of carrying out their primary criminal intention. This can be described, alternatively, as an act contemplated by the principals as a possible incident of the particular venture upon which they embarked". (emphasis added)
It is true that Barwick CJ in this Court spoke in terms of acts, as opposed to acts comprising the actus reus of a crime. In the passage relied upon by the Crown in this appeal, his Honour stated:
"The participants in a common design are liable for all acts done by any of them in the execution of the design which can be held fairly to fall within the ambit of the common design."
But it needs to be understood that this passage follows immediately after Barwick CJ's approval of the judgment of this Court in Brennan v The King, which speaks unmistakably in terms of participants in a joint criminal enterprise being liable for an offence or unlawful act committed in the course of carrying out the venture. It is, therefore, necessarily implicit in Barwick CJ's subsequent reference to "all acts" that such acts are limited to those which comprise an offence.
The relevant passage from the judgment of Mason, Murphy and Wilson JJ in Johns also makes clear that the doctrine of joint criminal enterprise liability is concerned with acts by which a crime is committed:
"The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability."
In Osland, it was not in issue that Mrs Osland and her son David had agreed to kill Mr Frank Osland, nor that Frank Osland had been killed pursuant to that agreement. In each case the issue was whether self-defence and provocation had been negatived. The jury convicted Mrs Osland but were unable to agree on whether David should be acquitted on the ground of self-defence. Mrs Osland appealed against conviction on the ground inter alia of inconsistency of verdicts. It was held that there was no inconsistency: David's acts in delivering the fatal blows were consistent with him having acted in self-defence and in accordance with the agreement with his mother, whereas Mrs Osland was not acting in self-defence. As McHugh J explained, the liability of each party to a joint criminal enterprise for crimes committed in the course of that enterprise is direct or primary liability, not derivative or secondary liability: "they are all equally liable for the acts that constitute the actus reus of the crime" (emphasis added). Hence, although a participant whose act causes death may have a defence to the homicide, the other participant in the joint criminal enterprise cannot escape liability. David's acts which constituted the actus reus of the unlawful homicide charged against Mrs Osland were acts for which she was responsible and, unlike her son, she could not call in aid a legal justification for their commission. Admittedly, at one point in McHugh J's reasoning, his Honour stated that "it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert". But, immediately after that statement, his Honour reiterated:
"If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity." (emphasis added)
The point was further emphasised later in his Honour's reasons in observations concerning the decision of the Full Court of the Supreme Court of Victoria in R v Demirian. In that case, the accused had entered into an arrangement with an accomplice to place and detonate a bomb so as to destroy a building, but, in the course of carrying out the arrangement, the accomplice had accidentally detonated the bomb, thereby killing himself. On those facts, a majority of the Full Court held that the accused could not be convicted as a principal in the first degree in respect of the accomplice's murder, because, although acting in concert with the accomplice and, subject to proof by the prosecution, present at the scene when the accomplice detonated the bomb, the accused himself did not detonate the bomb. Their Honours took the law to be that parties acting in concert to commit a crime who were present when the crime was committed were not liable as principals unless they actually committed the act or one of the acts that constituted the actus reus of the crime; they were liable otherwise only as accessories. As was later demonstrated in Osland, however, that was not so. As McHugh J stated:
"Counsel for the appellant relied on R v Demirian where a majority of the Full Court of the Supreme Court of Victoria said that, even if it could have been established that the accused in that case was present at the scene of a bomb explosion and was acting in concert with the person who exploded the bomb, the accused could not have been convicted as a principal in the first degree. Upon the facts of that case, the statement may be correct. However, it is plain that their Honours were seeking to lay down a general proposition. In my opinion it is not an accurate statement of the modern law." (emphasis added; footnote omitted)
His Honour continued:
"Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime." (emphasis added)
As each of those passages of McHugh J's judgment affirms, in order to engage the doctrine of joint criminal enterprise liability, the participants in the joint criminal enterprise must do between them all things necessary to constitute the crime; and so, in order to render a participant in a joint criminal enterprise criminally liable for an act of homicide committed by a co-participant in the course of the enterprise, the act causing death must constitute the actus reus of a crime involving the unlawful killing of the deceased. Evidently, that is why McHugh J observed that, apart from principle, upon the facts of Demirian it was possible that the accused could not have been convicted as a principal in the murder of the accomplice. At the time of Demirian, the crime of suicide had been abolished in Victoria and so the accomplice's act of killing himself was not the actus reus of a crime.
The actus reus of the crime for which the appellant was liable
In this case, it was accepted that the Crown could not negative the reasonable possibility that it was the deceased who lit the gas ring burner which sparked the fire that caused his death. It followed that the Crown could not exclude as a reasonable possibility that the deceased had killed himself by his own act. And, as the trial judge observed in the course of his ruling on the directed verdicts, it is no longer an offence to kill oneself in the State of New South Wales. As was earlier noted, the trial judge reasoned that the liability of a participant in a joint criminal enterprise for an offence committed by another participant in the course of the enterprise is secondary or derivative liability, and therefore, because the deceased committed no crime in killing himself, the appellant could not be held liable for the killing. And as Simpson JA observed in the Court of Criminal Appeal, that process of reasoning was erroneous because the liability of a participant in a joint criminal enterprise for a crime committed by another participant in the course of that enterprise is direct or primary liability. But, although the trial judge's process of reasoning was incorrect in that respect, his Honour's conclusion was correct. To explain why that is so it is necessary to digress.
At common law, murder included self-murder, or suicide as it is now more often called, and self-murder included not only the intentional taking of one's own life but also the doing of a felonious act which unintentionally caused one's own death. Thus, in R v Russell, it was held by a majority of the Court for Crown Cases Reserved that the act of a woman in taking arsenic to procure her own miscarriage and thereby killing herself, though that self-killing was not her intention, was felo de se or self-murder. The decision in Russell was later doubted. The argument in Russell had relied upon the ancient common law conception of implied malice aforethought that, if an act were malum in se, it was no excuse that the actor did not intend all its consequences. That was at odds with subsequent 19th century developments that confined the common law felony murder rule so that an act causing death committed in the course of a felony was not considered murder unless the act involved violence or danger to some person and early 20th century cases, also involving illegal abortion procedures, in which it was held that it was not murder to cause a woman's death in the course of procuring her miscarriage if the act were done with her consent and without it being considered that the act would, or would likely, cause her death. But the authority of Russell was followed and there is no reason to doubt that it formed part of the common law in New South Wales. To a large extent, the common law of murder was replaced in New South Wales by s 9 of the Criminal Law Amendment Act 1883 (NSW), the legislative forebear of s 18(1) of the Crimes Act. Like s 18(1), s 9 defined murder by reference to various categories of acts causing death which at common law gave rise to murder. In its terms it did not include acts of self-murder but nor did it abrogate common law rules to which it was not specifically directed. Hence, it is arguable that the common law rule that it was murder to kill oneself intentionally, or unintentionally by an act committed in the course or furtherance of a felony, continued to apply in New South Wales, with provision for attempted suicide to be dealt with summarily, until the rule was abrogated by the enactment of s 31A of the Crimes Act in 1983. Certainly from that point, however, suicide or self-murder ceased to be a crime in New South Wales; and self-manslaughter was never a crime, even at common law.
Accordingly, assuming it were the deceased's act of lighting the gas ring burner which caused the deceased's death, that act was not the actus reus of a crime of murder or manslaughter; or, to put it another way, the deceased and the appellant did not do between them all the things necessary to constitute a crime of murder or manslaughter. It follows that the appellant could not properly be considered liable for the deceased's death pursuant to the doctrine of joint criminal enterprise liability. It would have been a very different case, however, if a third party had been killed.
The Crown contended in the course of argument before this Court that, according to the doctrine of joint criminal enterprise liability, each participant in a joint criminal enterprise is considered to be the agent of each other participant for the purpose of committing acts within the scope of the understanding or arrangement, and consequently that, although it is to be assumed that the deceased may have lit the gas ring burner which caused his death, by operation of the doctrine the appellant is to be taken to have done that act herself through the agency of the deceased. It followed, it was contended, that the act of lighting the gas ring burner which caused the deceased's death was a crime because it was an act done, or which must be taken to have been done, by the appellant in the course of manufacturing the methylamphetamine, and so was an act causing death to which s 18(1) of the Crimes Act applied.
That contention should be rejected. It confuses liability for an act committed by an agent with the doing of the act itself. Agency attributes legal responsibility for an act done by an agent, within the scope of his or her authority, to the agent's principal. It does not in a physical sense transmogrify the act done by the agent into an act done by the principal. For that reason, where in the criminal law it is recognised that an accused may commit an offence by a "non-responsible" (or partially responsible) agent, the act of the agent remains in fact the act of the agent. It is the act of the agent, as was committed by the agent, and not such an act as if it had been committed by the principal, that is to be assessed to determine whether the act comprised the actus reus of an offence. As has been observed by Professor Gillies:
"The courts have never pretended that the defendant incriminated pursuant to [the doctrine of innocent agency] has personally perpetrated the criminal act ... Rather, it is the offender's classification as a constructive principal which has represented the enduring element of fiction in the doctrine."
The point may be illustrated by reference to three of the authorities mentioned by McHugh J in Osland in his Honour's consideration of the law relating to criminal offending by means of an innocent agent. In the first of those cases, Bourne, a husband was found guilty of bestiality as a principal in the second degree on the basis that he compelled his wife to have sexual intercourse per vaginam with a dog. The wife was not charged with an offence, and it was assumed that, if she had been charged, she would have been entitled to an acquittal on the ground of duress. But it was held that the husband was rightly convicted as a principal because:
"if this woman had been charged herself with committing the offence, she could have set up the plea of duress, not as showing that no offence had been committed, but as showing that she had no mens rea because her will was overborne by threats of imprisonment [by the husband] or violence so that she would be excused from punishment. But the offence ... does not depend upon consent; it depends on the act, and if an act of buggery [sic] is committed, the felony is committed."
The significance of that for present purposes is that the actus reus of the crime was the wife's act in having sexual intercourse with the dog. There was no suggestion that, because the husband had coerced the wife into performing that act, the husband was somehow to be taken as himself having had sexual intercourse with the animal. Nor, obviously, could he have done so per vaginam, that being the manner in which the offence was said to have been committed.
The second case, R v Cogan, concerned a husband, Leak, who had forced his wife to have sexual intercourse with another man, Cogan. The husband was convicted of aiding and abetting the rape of his wife but Cogan was acquitted of the rape by reason that the jury were not satisfied that he knew that the wife was not consenting. Notwithstanding that the husband's appeal was against his conviction for aiding and abetting, it was observed that he could equally have been convicted as a principal and if he had been so indicted:
"[i]t would have been no defence for him to submit that if Cogan was an 'innocent' agent, he was necessarily in the old terminology of the law a principal in the first degree, which was a legal impossibility as a man cannot rape his own wife during cohabitation. The law no longer concerns itself with niceties of degrees in participation in crime; but even if it did [the husband] would still be guilty. The reason a man cannot by his own physical act rape his wife during cohabitation is because the law presumes consent from the marriage ceremony ... There is no such presumption when a man procures a drunken friend to do the physical act for him."
The significance of that observation for present purposes is that it was not considered, for the purpose of the husband's criminal liability as a principal, that Cogan's act of rape was in any sense converted into an act committed by the husband. Rather, to the contrary, it was Cogan's act an act of non-consensual sexual penetration of a woman by a man other than the woman's husband that comprised the actus reus of the crime, and the husband was guilty by reason of procuring that act to be committed. Had that not been so more precisely, had Cogan's act been treated as if the act of penetration had been committed by the husband himself the husband would have had a complete defence to the charge as the law then stood in England.
The third case was R v Austin, concerning a father who forcibly took possession of his child from his wife. Four other men who assisted the father in locating the wife and child and in taking possession of the child were charged with aiding and abetting an offence of child stealing contrary to s 56 of the Offences against the Person Act 1861 (UK). The four men contended that, although they had deliberately aided and abetted the father, they had not committed an offence because the father had not acted unlawfully within the meaning of s 56. That section provided in substance that a person who unlawfully by force takes any child under 14 years of age with the intent of depriving any parent of the child's possession is guilty of an offence "[p]rovided, that no person who shall have claimed any right to the possession of such child ... shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child". The Court of Appeal held that the effect of s 56 was that the taking of the child was "unlawful" but that the proviso operated to protect the father as a person claiming a right of possession of the child. That did not protect the father's aiders and abettors against the unlawfulness of the father's act.
In the result, it was the father's unlawful, albeit protected, act which comprised the actus reus of the offence in relation to which the aiders and abettors were convicted and it was that act, not some act which they were deemed or somehow supposed to have committed themselves, for which they were held criminally liable. That stands in contrast to the situation in this case, where an act of the deceased causing his own death was not unlawful and was thus incapable of constituting the actus reus of the offence of murder with which the appellant was charged.
Malice and foresight of incidental crime
What has been said to this point is sufficient to resolve the appeal. Counsel for the appellant accepted that was so, but urged the Court to confine the doctrine of joint criminal enterprise liability on a broader basis relating to the foresight of any incidental crime and also to hold that, perforce of s 18(2)(a) of the Crimes Act, an act cannot fall within the scope of s 18(1) unless the act is malicious. It is unnecessary to take up those arguments. So far as foresight of incidental crimes is concerned, it is sufficient to note that what was said by Carruthers J in R v Sharah about the need to prove foresight of the possibility of an outcome has been subsequently questioned by the New South Wales Court of Criminal Appeal in Batcheldor v The Queen and was questioned by the Court of Criminal Appeal below. For this Court, the resolution of that difference can await another day.
As to malice, it should be recorded that nothing advanced in argument in this appeal has dissuaded us from the view recently expressed in Aubrey v The Queen that the effect of s 18(1) is to replace the common law concept of malice aforethought with a list of matters that would previously have established malice aforethought; and, consequently, that in a case in which the Crown is able to prove an act of the kind described in s 18(1), s 18(2)(a) (which excludes from the definition in s 18(1) any act or omission which was not malicious) has no role to play.
Conclusion
For these reasons, the appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside. In lieu thereof, it should be ordered that the appeal to the Court of Criminal Appeal be dismissed.