Likiardopoulos v The Queen; DPP v Likiardopoulos [2010] VSCA 344

Likiardopoulos v The Queen; DPP v Likiardopoulos [2010] VSCA 344 - VSCA 2010 case summary — Zoe

[51]

If a number of persons engage in a joint enterprise to commit a crime and in fact, commit it, then all of them are guilty of the crime regardless of what part each played in the commission.

In order to find Dimitrios Likiardopoulos guilty of murder by operation of this doctrine, the Crown must prove to your satisfaction beyond reasonable doubt, one; that two or more people reached an agreement to pursue a joint criminal enterprise and that that remained in existence at the time the offence was committed. Two; that the accused participated in that joint criminal enterprise in some way. Three; that in accordance with the agreement one or more of the parties to the agreement performed all of the acts necessary to commit the offence charged and that the accused had the state of mind required for the commission of the offence at the time he entered the agreement.

The first element the Crown must prove is that the accused made an agreement with others; here, Hakan Aydin, Shalendra Singh and Johnny Likiardopoulos, to pursue a joint criminal enterprise; and here to inflict really serious injury upon Christopher O'Brien and that the agreement remained in existence; it remained on foot. The Crown does not have to prove that he entered into an agreement with all of those people, but it has to be at least with one of those people and it has to be with any of those persons whose act you are considering, the accused must have entered into an agreement with that person. Do you understand? So when I am referring from time to time with the others, I am talking about the others being the people that the accused man entered into an agreement with.

The second element the Crown must prove is that the accused participated in the joint criminal enterprise in some way. Here the Crown allege that by striking Christopher O'Brien to the mouth twice, causing the two teeth to be dislodged as asserted by Shalendra Singh and Hakan Aydin, and by slapping and kicking him as asserted by Paul Gavagan and Daniela Veselinovic, the accused man was physically engaged in the beating of Christopher O'Brien.

The third element that the Crown must prove is that in accordance with that agreement, that the parties to the agreement between them, performed all of the acts necessary to commit murder. That is, in striking, hitting and punching the deceased they did so with the intention to kill or to cause really serious injury to him and that the acts were done without lawful justification or excuse and that the acts were conscious, voluntary and deliberate, and in that way that such acts were the cause of the death of the deceased.

The fourth element which the Crown must prove is that the accused had the state of mind necessary to commit murder. That is, that Dimitrios Likiardopoulos intended either to kill or to inflict really serious injury to Christopher O'Brien. Here the Crown says that you would be satisfied that at all relevant times, Dimitrios Likiardopoulos' intention was to inflict really serious injury to Christopher O'Brien. Do you understand?

So as to the first element, the Crown must prove that the accused made an agreement with the other people to pursue a joint criminal enterprise and the agreement must have remained in existence; that is, must have been on foot at the time that Christopher O'Brien was killed. Such an agreement may be expressly stated or it may be inferred from the circumstances. Such an agreement might be the result of a carefully worked out plan or it might be made without a word spoken and on the spur of the moment.

In this case as I understand it, the Crown says that you can infer from the evidence that there was an agreement between Hakan Aydin, Johnny Likiardopoulos and Shalendra Singh and that the accused was at least intending to inflict really serious injury to Christopher O'Brien. The Crown say that because if you look at all the facts and circumstances of the case as you find them to be, that they were all acting with the one mind, and that was to inflict a severe beating on Christopher O'Brien.

The second part of the element requires that the agreement must be in existence when the murder was committed. If there is a possibility that the agreement has been called off or that Dimitrios Likiardopoulos has withdrawn from the agreement, then that first element will not be met.

As to the second element, the Crown must prove that the accused participated in the joint criminal enterprise in some way. Thus you must be satisfied that the accused engaged in some conduct, and here it is alleged that by kicking and punching Christopher O'Brien the accused contributed to the commission of the crime.

The third element which the Crown must prove, is that in accordance with the agreement the parties to the agreement did between them all of the acts necessary to commit murder, and there are two parts to this element.

First, you must be satisfied that all of the necessary acts were committed by the parties to the agreement. That means that you must be satisfied that Christopher O'Brien was kicked, punched, slapped, beaten by the parties to the agreement with the intention to kill or to cause him really serious injury, and that those acts were a cause of death and that they were performed without lawful justification or excuse, and that the persons performing those acts each did so consciously, voluntarily and deliberately.

You do not need to find that each party to the agreement committed each of those acts. Even if they only played a minor role, this part of the second element will be satisfied as long as all of the necessary acts have been committed by the parties to the agreement.

The second part of that element requires that the commission of the offence is within the scope of the agreement. To determine whether the acts alleged are within the scope of the agreement, you simply look at the nature of the agreement at the time it was entered into, and the Crown here allege that the agreement was to at least cause really serious injury to Christopher O'Brien, because the Crown says that he was to be subjected to a severe beating because he had stolen that mobile phone.

Provided you are satisfied that the parties to the agreement between them did all the acts that were necessary to commit murder, and that the commission of that offence, that is the murder was within the scope of the agreement, the agreement being to beat him severely with the intention to cause really serious injury, then that element will be met.

The fourth element which the Crown must prove is that the accused had the necessary state of mind to commit murder when he entered into the agreement, that is he must have intended to kill or to at least inflict really serious injury to Christopher O'Brien. I always speak in terms of the intention to kill or to inflict really serious injury, because either of those two elements are essential to found the crime of murder, but you will appreciate here that the Crown is saying really that it is an intention to inflict really serious injury, and if you are satisfied of that, that is sufficient for the purposes of murder. Do you follow?

The accused must himself, must have had that intention, he must have been of that state of mind, and that is that he must have intended that really serious injury be inflicted to Christopher O'Brien. It is not sufficient to prove that other parties to the agreement had that state of mind at the time of entering into the agreement, the accused must also have had it.

[53]

Now, there is evidence before you that the accused man was not always present during the course of the attack on Christopher O'Brien. Daniela Veselinovic says he was not there at the start; and other witnesses have him in other rooms of the house at various times; and Paul Gavagan says that he was called to the house and that he saw Christopher O'Brien sitting with a towel over his head when he was sitting in the chair, and that he rang the accused and he went to collect the accused from Mulgrave and brought him back to the house at Heatherton Road.

He then says, I think, at that point Christopher O'Brien was coming out of the bathroom and Paul Gavagan said that the accused then made certain statements to him about what he had done to the accused (sic), and you will recall also Daniela Veselinovic's evidence that at the time that he had been brought out of the bathroom, and he fell onto her feet, that after that point various assaults were perpetrated on Christopher O'Brien, including the accused man striking him and that the accused man was present at that time.

The law says the accused's presence or absence whilst the deceased was being attacked does not determine his liability. If you are satisfied that Dimitrios Likiardopoulos was participating in a joint criminal enterprise; that is, in a common purpose to inflict really serious injury to Christopher O'Brien or to inflict injury less than really serious injury to Christopher O'Brien, then it does not matter that he was not present throughout.

The issue is whether he was a party to the agreement, pursuant to which the acts were done, either with the intention of causing really serious injury, murder, or with the intention of causing injury less than really serious injury, manslaughter. That is, you look to the purpose of the conduct and whether he was a party to it. So that evidence of Dimitrios Likiardopoulos's whereabouts, including his absence from the house, is relevant in determining whether he was participating in a common purpose; that is, in the joint criminal enterprise.

The question to be determined is, that is, the question you ask yourself is: am I satisfied beyond reasonable doubt that what was done to the deceased was done with the agreement or complicity of Dimitrios Likiardopoulos in the pursuit of a purpose which he had in common with those who inflicted the injuries? If your answer to that question is 'Yes', then the accused is liable, irrespective of whether he was present in the room while Christopher O'Brien was being attacked or elsewhere in the house or, indeed, in another suburb.

So you look to see if he was, if you like, if there was a unity of purpose; if he was ad idem with the common purpose of those who were doing the acts to Christopher O'Brien. Whether that be to inflict really serious injury or to inflict injury less than really serious injury. Do you understand?

So you ask yourself the question, 'Am I satisfied beyond reasonable doubt that what was done to the deceased was done with the agreement of Dimitrios Likiardopoulos in pursuit of a purpose that he had in common' whether that purpose be to inflict really serious injury or injury less than really serious injury, with those who inflicted the injuries; with those who performed the acts. If you answer to that question is, 'Yes' then the accused is liable, irrespective of whether he was present in the room when Christopher O'Brien was being attacked, or elsewhere in the house or indeed, in another suburb.

However, you would look at that evidence of whether the accused was present in the house or in the room where Christopher O'Brien was being attacked, or in another suburb to determine that issue of whether he was ad idem with the others in acting in pursuit of the common purpose. But the fact that he is not present does not determine the issue of liability.

[102]

The law says if someone [counsels or procures] another to commit an offence then they will be equally guilty of that offence, regardless of the fact that they did not commit the crime themselves. This is one of the situations where the law holds the person responsible for the actions of other people.

In order for Dimitrios Likiardopoulos to be guilty of committing murder by counselling and procuring, there are three elements, each of which the Crown must prove to your satisfaction beyond reasonable doubt. The first element the Crown must prove is that someone committed the offence of murder, that somebody murdered Christopher O'Brien, and throughout these directions I will call that person, that is the person who committed the offence of murder, whoever that be, the principal offender.

The second element the Crown must prove is that the accused knew or believed in the essential circumstances needed to establish the crime of murder.

The third element the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit murder.

Before you can find Dimitrios Likiardopoulos guilty of murder by counselling or procuring, you must be satisfied of all of those three elements beyond reasonable doubt. Now, I will explain them to you in more detail.

The first element is that the Crown must prove that someone committed the offence of murder. This requires you to be satisfied that all of the elements of the crime of murder have proved beyond reasonable doubt, in respect of the acts performed by the others, and it does not matter if it is one or all of them or any number of them. This is looking at the acts performed by the others.

That is, the Crown must satisfy you that whomever performed those acts, the principal offender, killed Mr O'Brien by a conscious, voluntary and deliberate act done with the intention of either killing him or inflicting really serious injury to him, and done without lawful justification or excuse.

The second element which the Crown must prove is that the accused knew all of the essential circumstances needed to establish the offence of murder, or believed that those essential circumstances existed. The essential circumstances that are needed to establish murder are: that the principal offender or offenders, being the persons who committed the acts or acts on Mr O'Brien, had at least the intention to really seriously injure him and, as I said, they performed those acts consciously, voluntarily and deliberately, and without lawful justification or excuse.

The accused does not need to know or even believe that death will result from those acts. It is sufficient if he knew that the principal offender, that is, the person or persons who committed those acts was going to commit those acts which, ultimately, caused death and he knew that with the necessary state of mind; that is, that he intended that the acts be inflicted with the intention of really serious injury.

The Crown says here that you would be satisfied that he knew those principal offenders were going to commit those acts; that is, that they were going to administer the severe beating to Christopher O'Brien and that they were going to do so with the intention to inflict really serious injury, because he was present at the time when that was being done.

The third element which the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit murder, and in this case it is that the Crown alleges that Mr Likiardopoulos did this by what is called 'counselling and procuring'. A person counsels or procures the commission of an offence if he urges, advises or solicits the principal offender; that is, the actors, the people performing the acts, to commit the offence. Or he encourages or supports him or them to commit it, and this can be done by words or actions or both; and for this element to be met, you do not need to be satisfied that Mr Likiardopoulos's words or actions caused the principal offender to commit the crime. A person can counsel or procure someone to commit an offence even if the other person already intended to commit that offence. You follow?

So even if any of the actors intended to inflict really serious injury to Christopher O'Brien, if you are satisfied that Mr Likiardopoulos's words and actions by directing them, exhorting them, encouraging them, telling them to strike Mr O'Brien, to hit at Mr O'Brien; if you are satisfied that those words encouraged them to commit the offence, then that is sufficient for the purposes of counselling and procuring, irrespective of whether the actor intended to do it themselves in any event.

You also do not need to be satisfied that the principal offender was actually assisted or encouraged by the accused's behaviour. As long as the accused endeavoured to assist or encourage him, in the circumstances where the principal offender, that the actor or actors could potentially have been assisted or encouraged, then this element will be met. In other words, you do not have to be satisfied that they were, in fact, encouraged or egged on by Mr Likiardopoulos because, as it says, they may have been going to do it themselves, in any event. You only have to be satisfied that it was his intention to encourage and assist them to inflict really serious injury to Mr O'Brien.

But you must be satisfied that Mr Likiardopoulos intentionally counselled or procured the commission of murder; that is, you must be satisfied that by saying and doing what he did he intended to assist and/or encourage the principal offender to commit the offence. That does not mean that you should find that Mr Likiardopoulos intended that Mr O'Brien should die; this element is satisfied if you find that the accused intended to assist or encourage the actors to commit the conduct which, ultimately, caused death. So assisted or encouraged; that is - and this is where the Crown relies upon him - directing, telling the ringleader, [the prosecutor] has described him, assisting or encouraging those that were performing the acts on Mr O'Brien; that he was assisting and encouraging them to perform those acts. He does not have to intend that that conduct, ultimately, caused Mr O'Brien's death.

In this case, it is alleged that Mr Likiardopoulos counselled or procured the actors to commit murder by exhorting, directing and encouraging and urging them to do acts with the intention of causing really serious injury to Mr O'Brien. It is only if you are satisfied beyond reasonable doubt that Mr Likiardopoulos intentionally or assisted or encouraged those people who were assaulting Mr O'Brien to commit those acts with the intention of really causing serious injury to Mr O'Brien, by counselling and procuring the commission of that offence, that that element will be met.

So to summarise, before you can find the accused guilty of committing murder by counselling and procuring, the Crown must prove to your satisfaction beyond reasonable doubt that someone committed murder; that the accused knew or believed in the essential circumstances needed to establish the crime of murder and that the accused intentionally assisted or encouraged the principal offender or offenders to commit murder by counselling or procuring the commission of that crime.

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