Moussa v R

Background

1. The Crown case against the appellant in relation to both counts on the indictment was brought on the basis that the appellant was involved in a joint criminal enterprise with the deceased to set fire to the house at Oatlands, as a result of which fire the deceased had died. The fire occurred on 22 November 2011. It was the Crown case that the appellant had driven the deceased to the house and that he had participated in the crime in various ways, including as a lookout.
2. The house in question was the subject of a contract for sale due for completion on 5 December 2011. Prior to the fire, the purchaser had requested the vendor's consent for the contract to be rescinded and, when that request was refused, had requested that a new contract be drawn up adding another person as purchaser. The vendor had agreed to the second request about a week before the fire occurred but the new contractual arrangement had not yet been put in place at the time of the fire on 22 November 2011. After the fire, the purchase was not completed.
3. There was considerable fire damage to the house and the forensic investigation confirmed the presence of an accelerant (petrol). There were two main areas of fire damage: the first in the lounge room at the northern end of the house and the second in the sunroom, laundry and a bedroom at the southern end of the house. Evidence given by a fire investigator who attended the scene on the night of the accident was that the description given by witnesses of an explosion and vibration indicated a "petrol vapour explosion" (T 368-369). He described such an explosion as one that occurs where a quantity of liquid petrol is applied in an area; an amount of it is evaporated; and it forms a vapour. He said that there is a point where there is enough petrol vapour in conjunction with the oxygen in that area to create a significant explosive force (or instantaneous force of energy) when ignition is applied (T 369). He said that it was possible that there could be inter-communication between the vapour from one area to another area where vapour was being emitted (so as to 'flash across'), which could account for witnesses to having heard two fire explosions. His view was that a petrol vapour explosion had probably happened in both areas (see T 379).
4. The deceased was found lying face up on the floor at the southern end of the lounge room and was extensively burnt. The appellant also suffered burns. Based on the burns that the appellant had suffered, it was the fire investigator's opinion that he was definitely not inside the lounge room at the time of the explosion (or he would have suffered the same consequence as the deceased) (T 384); that he was probably near the only exit (the front door); and that the force of the explosion would have almost pushed him out of the house. However, he also said that the appellant could have been near the rear door or "somewhere in the home near a point of egress" (T 384).
5. Neighbours who heard the explosions gave evidence of seeing the appellant outside the house, naked and running around screaming and yelling. They observed that he was burnt, with his skin blistering and falling off him. He said to various people at the scene that his mate, Paul, was inside the house. He told fire fighters that his friend was "inside", "in the middle" of the house and that he was "gone" (T 156 - Mr Midivaine; T 167 - Mr Rood).
6. One of the neighbours gave evidence of having seen the appellant in the street on three different occasions prior to the fire (T 149-150), but this was denied by the appellant.
7. Parked outside the premises on the evening of the fire was a vehicle registered to the appellant's mother, Mrs Samira Moussa, bearing a stolen rear numberplate (the numberplate recorded as having been stolen about a month earlier - T 219). In the boot of the car was a "large red plastic jerry can" inside a dark coloured garbage bag. There was evidence from a police officer that when he opened the lid of the jerry can he could immediately smell petrol (T 269). Documents in the name of the appellant were found in the car. There was forensic evidence about DNA recovered from the car that matched or partially matched the appellant's DNA (T 402-403, 408) and there was mixed DNA from the black plastic bag found in the boot in respect of which neither the appellant nor the deceased could be excluded as contributors (T 404).
8. The deceased's father gave evidence that at ten to seven on the evening of 22 November 2011 his son had received a telephone call and had a telephone conversation, after which his son had told him that he was "going out for a little while with Fat Cat", who he understood to be his son's "good mate", Chris (the appellant) (see T 444). He said that about a quarter of an hour later Chris arrived and his son left, saying that he would not be long.
9. Telephone records established contact between the deceased and the appellant at 16:20:20 and 16:40:35 on 22 November 2011 (T 482-483; Exhibit P).
10. When arrested, the appellant exercised his right to silence. A formal demand was made requesting the identity of the driver or passenger of the car involved and the appellant said that he had driven the car and the deceased had been the passenger (T 451-452). In that conversation, evidence of which was led at the request of the defence (T 442), the appellant said: Paul and I were not supposed to be there. I did not get told nothing. Found out on the way.
11. Asked about the petrol, he said that he did not know anything; that Paul (the deceased) got a phone call and that Paul did not say anything.
12. A warrant for a listening device was obtained and that device was installed in the appellant's hospital room. In evidence was a transcription of a conversation recorded on that device between the appellant and his brother on 29 January 2012, parts of which were in Arabic (and translated into English) (T 483-485; Exhibits Q, R). In that conversation, among other things, the appellant's brother told the appellant that the best thing was to say he did not remember anything (advice the appellant's brother attributed to a police officer friend, though that officer denied having given any such advice). The appellant told his brother, first, that there was nothing in the boot and then that there was "petrol, paint and that" (T 508-9). In oral evidence at the trial, the appellant's brother said that in an inaudible section of the recording the appellant told him that the deceased had placed the petrol in the boot of the car.
13. In his evidence at the trial, the appellant denied that he had agreed with the deceased to damage the house by fire; denied that he had lit the fire; and denied that he had had a prior conversation with the deceased about the house at Oatlands before 22 November 2011 (T 554-555). He said that he became aware that the deceased intended to do something to a house while they were together in his mother's car sometime after 7.30pm (T 555). He confirmed that he drove to the deceased's house; said that he did not get out of the car (T 558); said he saw the deceased walk out of the house and saw he was carrying a few things "like jackets" and that the deceased quickly turned and walked back inside his house and came back out a minute later (T 559).
14. The appellant said that when the deceased got into the car he said "I need you to drop me off somewhere" and that "I have a job to do" and "Don't worry. You just need to drop me off" (T 560-562). He said that the deceased directed him where to drive (T 561-562) and that, when the deceased jumped into the car, he noticed that the deceased had a red jerry can in between his legs (T 563). He said that while driving he asked the deceased "What's that" and that the deceased said: Don't worry, I just need you to drop me off … I've got a job to do. All I need you to do is drop me off.
15. The appellant's evidence was that when he and the deceased arrived at the street where the house was the deceased told him to pull over and to wait there; that the deceased went towards the back of the car; and that he got out to see what the deceased was doing and saw him putting a different set of numberplates on the car (T 564-565). The appellant also said that the deceased said to him: I got asked to burn this house. … Don't worry, man. You just need to drop me off. No-one lives here. No-one is home. Don't worry about it. You'll be all right (T 565) and that the deceased was apologising and saying sorry for putting the appellant in that position (T 566).
16. The appellant said that the deceased then told him to come with him towards the house and that he did; that the deceased went into the house and that he (the appellant) stayed outside waiting. He said that he was thinking what he could say to persuade the deceased "not to go through with it" (T 567, 570). The appellant said that while he was standing at the door he did not see where the deceased was in the house and could not see into the house as it was dark. He said that the deceased came out and walked towards the car; that he followed him and that they got into the car, where the deceased told him to do a U-turn and then to pull over (T 571). He said the deceased took the jerry can and went towards the house (T 572); that he tried to convince him to leave (T 573); that he was standing near the doorway at the front of the house where the deceased told him to stay and that he saw the deceased walk into the front of the house into the front lounge but that he could not see where he went (T 574).
17. According to the appellant, the deceased returned about ten minutes later and walked back towards the car with the jerry can; the appellant followed him, was told to open the boot of the car, which he did, and saw the deceased put the jerry can into the boot (T 575-576). He said he told the deceased he was scared and asked to leave (T 577); that the deceased told him to wait there; and that the deceased then walked back to the house. The appellant said that he waited for a period of time between one and ten minutes and then went back into the house with the intention of trying to convince the deceased to leave (T 578). He said he took a step into the front of the house; saw the deceased in the middle of the front room with his back towards him; and then in about two seconds "the house went up" and he saw a "fireball" which hit him as he was in the doorway and knocked him to the ground. He said he remembered "blacking out" and waking up; that he got up and ran out then turned around to try and save the deceased, at which point he saw the deceased in the middle of the room (T 579-580).
18. In cross-examination, the appellant agreed that he did not simply drop the deceased off but that he stayed, knowing that the deceased was going to burn the house down (T 601-602). He could not exclude the possibility that while he was in the car the deceased had handed to him the double-sided tape after the deceased had used it to affix the stolen licence plate to the rear of the vehicle (T 608). He agreed that the petrol was going to be used to set the fire and that he had allowed the deceased to put the can back in the car after the petrol had been poured in the house, with the intention of driving away after the fire had been set (T 637). He denied that he was working with the appellant or acting as a lookout (T 617-618, 622) but agreed that: he had made it possible for the house to be set on fire by driving the deceased to the house (T 637); he had accompanied the deceased to the house three times during that night; and, on the third time, he knew that the deceased was going to light the fire and went inside the house (T 622-623). He also agreed that in the recorded conversation he had had with his brother he had asked about the contents of the boot of the car because he knew there were things in the boot that implicated him in the offence.

Closing submissions/directions as to the manslaughter charge

1. The Crown prosecutor addressed the jury on the manslaughter charge in the following terms: The accused, members of the jury, you may think, in his own mind, has determined "I didn't set the fire, therefore I am not responsible for what happened" and that may be the way he has tried to deal with the death of his friend. "I didn't set the fire, I didn't kill him." Members of the jury, at the very beginning of this trial the Crown made it perfectly clear to you there has never been any suggestion that this accused intended his friend to die. But the accused played an essential role in the setting of the fire to number 4. If he had not driven Paul Ribbons and the container of petrol to the house, the fire could not have occurred. Paul Ribbons died as a result of that fire being set and whilst you may understand, on a human level, why the accused has tried to rationalise things in his mind, in the way he has given his evidence to you, members of the jury, it is your job to apply the principles of law, the principles of law his Honour will give you to the facts as you find them.
2. Having referred to the examples the trial judge had earlier given of joint criminal enterprise, the Crown prosecutor went on to say: Members of the jury, when you carefully consider all the evidence, the Crown submits that you will be satisfied beyond a reasonable doubt that this accused, unlike the mum who drove to the convenience store, knew what was going to happen when he got to Prince Street and he certainly, at the latest, knew about it before it was set. And he still did things to assist. He had the petrol in his car and he had the means of escape. If he had left the fire could not have taken place. He positioned his car for the quick getaway, he allowed the petrol to be put back into his car, if you accept his evidence on that. And even on his evidence, members of the jury, he knew what was going to happen before it happened. He had been there, outside the house, while, the Crown says, a review was conducted, he had been outside the house while the petrol pour was happening and he went back to the house and was inside it when the fire was lit. His actions, members of the jury, speak louder than his words to you today. His actions are consistent with those of a person planning [sic] a role (T 11).
3. The defence case was, in essence, that the appellant had not agreed to damage the house by fire (there being no evidence that he had participated in any planning) and that, rather than being part of a joint criminal enterprise, the appellant was trying to stop his friend from burning down the house. His case was that he only learnt of the deceased's intention after he picked him up. The defence argued that there had only been one point of ignition (the further ignition having been caused by the petrol vapour in another room) and noted that the mechanism by which the fire was started had not been identified in the evidence.
4. On 22 September 2014 the primary judge responded to a request from the jury for more information regarding a joint criminal enterprise as follows: In relation to the joint criminal enterprise request, I will give you a broad answer. I will give you a theoretical explanation of what a joint criminal enterprise is. I will give you a couple of examples of what is a joint criminal enterprise and what is not. Those examples are totally unrelated to this case… A joint criminal enterprise exists where two or more people reach an understanding or an arrangement which is the equivalent of an agreement that between them they will commit a crime. That understanding or arrangement doesn't have to be an express agreement or express discussion. It could be inferred from looking at all the surrounding circumstances. The agreement or the understanding doesn't need to have been reached at any particular time before the crime was committed. You can have the agreement to commit the crime and the commission of the crime occurring virtually together. In some cases there will be an agreement well in advance of what is done. A joint criminal enterprise means that if the agreed crime is committed by one or other of the parties to the agreement, or if all of them played some part in committing the agreed crime, then all of the parties to the agreement are equally guilty of the crime regardless of the part played by any one of them (T 207).
5. The examples given by his Honour were as follows: Let me give you an example. If three men decide to rob a bank and one drove the vehicle containing the other two to the bank, another one stood outside as a lookout, but it was only the third who entered the bank and took the money, all three of them are guilty or robbery even though only one of them actually entered the bank and took the money because they had all agreed to participate in the robbery. Contrast that with a mother who drives her two adolescent sons to a corner shop. Unknown to her, each of her sons was armed with a knife and between the two of them they had agreed to rob the shop. When they entered the shop the young men robbed the shopkeeper and ran back to the car where their mother was waiting. She was taken by surprise, there was a lot of commotion carrying on, and she drives off with the two young men. The two men have been involved in a joint criminal enterprise because there was an agreement, but the mother, although she was involved in a sense in what happened, hadn't been party to any agreement so she was not involved in the joint criminal enterprise (T 207-208).
6. In summing up, the primary judge repeated the explanation earlier given to jury reminding the jury of the two examples (T 14-15) and then said: Let me turn now to the present case. The Crown's case is that Paul Ribbons and Christopher Moussa drove to that house in Princes [sic] Street with an agreed intention that Paul Ribbons would set fire to it. The Crown does not rely on any express conversation between Paul Ribbons and Christopher Moussa to prove the existence of that agreement or understanding, but says you will infer its existence from the objective facts from what each of them did. And the Crown says that you will come to this conclusion that there was a joint criminal enterprise even if Christopher Moussa was a reluctant participant in it. (T 15).
7. After reminding the jury of the appellant's version of events (that he was in a very difficult position; that he was in a state of shock when he first saw the jerry can; that he did not know what the deceased was up to until they got to the house "when the truth of the plan was first clearly revealed to me" and that he acted in an irrational and unwise way not in his own best interests but driven by concern for his friend, and as an act of a friend) (T 17), the trial judge said: If Mr Moussa were trying to stop Mr Ribbons from laying that fire, there could be no joint criminal enterprise giving rise to counts 1 or 2. So what the case boils down to, members of the jury, is whether, looking at the objective facts that the Crown points you to, you are satisfied beyond a reasonable doubt that there was a joint criminal enterprise at some point, whether it be weeks before or once they parked in Prince Street, to set fire to that house. If Mr Moussa's version that he did not know anything really about it until he got there and he took steps to dissuade his friend, if that version leaves you with a reasonable doubt, you must acquit him. (T 17).
8. As to the elements of the two charges, the trial judge provided the jury with a document (MFI 34) and explained, in relation to count 2 (the manslaughter count), that there were four elements to be proved. In the written document, after the definition of "manslaughter" and the note that it was not the Crown case that the appellant acted with the intention of killing or inflicting any serious harm upon the deceased, those elements were set out as follows: 1. The death of Paul Ribbons was caused by an act of Christopher Moussa. • The Crown must prove beyond reasonable doubt that an intentional act of either this accused or Paul Ribbons done in the pursuance of a joint criminal enterprise caused the death of Paul Ribbons. • The intentional doing of an act may be inferred. 2. Either the accused or Paul Ribbons intended to commit the act that caused death • The Crown must prove beyond reasonable doubt that the act of either this accused or Paul Ribbons was intentional and pursuant to a joint criminal enterprise • Intention may be inferred. 3. The act of this accused or Paul Ribbons pursuant to a joint criminal enterprise was unlawful • The Crown must prove beyond reasonable doubt that either this accused's act or that of Paul Ribbons pursuant to a joint criminal enterprise was unlawful • The joint criminal enterprise may be inferred • The intention [sic] or deliberate setting fire to a house property is an unlawful act 4. The act of the accused or Paul Ribbons was dangerous. • The Crown must prove beyond reasonable doubt that the act pursuant to a joint criminal enterprise of the accused or Paul Ribbons was not only unlawful but also dangerous • An act is dangerous if a reasonable person in the position of the accused or Paul Ribbons at the time the act was committed would have realised that the act exposed another person, whether it be the deceased or not, to risk of serious injury. It does not matter whether the accused or Paul Ribbons believed that his act was dangerous. The test is whether a reasonable person, that is an ordinary person of the community, in the position of the accused or Paul Ribbons, would have realised or appreciated that the act was dangerous.
9. In explaining the first of those elements, his Honour noted that: So if there is a joint criminal enterprise to light the fire, that is, Mr Moussa and Mr Ribbons agreed that the fire would be lit and it was Ribbons who lit the fire, then they are both liable. So if Ribbons dies from lighting a match but Mr Moussa was part of a joint criminal enterprise, he is as liable for the death as Paul Ribbons who struck the match (T 21). (my emphasis)
10. As to the fourth element, his Honour said: And fourthly, and most importantly, the act of the accused or Paul Ribbons was dangerous. A dangerous act is one if a reasonable person in the person in the position of Paul Ribbons at the time the act was committed would have realised that the act exposed another person, whether it be the deceased or not, to a risk of serious injury. The test is whether a reasonable person in the position of Paul Ribbons would have realised that the act was dangerous. Members of the jury, I do not think many of you would have much difficulty in appreciating that to pour a quantity of petrol and to then set it alight with a match is one which was dangerous - but that is not for me to tell you. The standard is what an ordinary member of the community would think (T 21). (my emphasis)

Amended ground 1 - manslaughter verdict unsupportable

1. The appellant does not dispute that there was evidence for the jury to find that he was involved in a joint criminal enterprise to damage the house in question by setting it on fire and that the enterprise contemplated the use of petrol as an accelerant. To that extent, the appellant appears to accept that his liability was co-extensive with that of the deceased for all the acts the deceased undertook in setting fire to the premises, that is, in committing the agreed crime of intentionally damaging property by means of fire. There is thus no challenge to the arson conviction.
2. However, as adverted to earlier, in the course of oral argument on the appeal the appellant articulated for the first time the proposition that the manslaughter verdict could not be supported in circumstances where the offence for which a participant in a joint criminal enterprise (in this case, the appellant) is said to be liable (in this case, the unlawful killing of the deceased) is not an act of the perpetrator (the deceased) causing the death of another but an act of the perpetrator causing the perpetrator's own death. Section 18(1)(a) of the Crimes Act 1900 (NSW) sets out the elements of the offence of murder and section 18(1)(b) provides that "[e]very other punishable homicide shall be taken to be manslaughter." The appellant argues that where the accused's physical co-venturer does the act that causes his death the accused cannot be held liable for manslaughter because there is an absence of an element of the offence, namely a homicide (AT 1.41). The appellant accepts that, on the principles of co-extensive liability, he may become liable for the perpetrator killing himself but says that liability is not a punishable homicide (AT 2.50-3.2). The appellant argues that what is attributed to the appellant under the principles relating to participation in a joint criminal enterprise is the act and the consequence of the perpetrator causing his own death and that does not amount to homicide (AT 4.45).
3. The appellant accepts that this argument was not advanced at first instance (nor was it articulated in the original grounds of appeal). It was not advanced in the original written submissions filed prior to the hearing of the appeal. It was first raised, though it was not then suggested that any amendment to the grounds of appeal would be necessary, in reply submissions filed on 20 October 2016 in advance of the 24 October 2016 hearing in this Court. The Crown did not submit that, if it were given the opportunity to file supplementary written submissions, there would be any prejudice in leave being granted for the proposed amendment. Directions were made for the filing of an amended notice of appeal and the Crown was given the opportunity to file supplementary written submissions in relation to the matters raised in the appellant's oral submissions and the new ground of appeal. Leave to raise that ground should be granted.
4. A key part of the appellant's submissions (at AT 3.10) was that the judgment of this Court in IL v R [2016] NSWCCA 51 (IL) at [70] was wrong. By the time of the hearing of the appeal, a special leave hearing had been listed before the High Court in relation to the correctness of that decision. After the hearing of the appeal, the High Court granted leave to appeal from the decision in IL on the following ground: Ground (iii) The Court below erred in determining for both the murder and manslaughter charges that if the deceased physically did the act which caused his death this was irrelevant; and/or in not requiring a sufficient connection between the accused and the act causing death if this was the case.
5. The High Court (by majority) in due course allowed the appeal (IL v The Queen [2017] HCA 27) and, as noted earlier, the parties were invited to make further brief written submissions regarding the impact of the High Court's decision in IL on this case.

IL

1. IL was a case in which there was a joint criminal enterprise to manufacture methylamphetamine involving the use of flammable solvents that created a highly flammable vapour which was ignited when a gas ring burner was lit, causing a fire. One of the participants to the joint criminal enterprise was killed in the fire and the survivor (IL) was charged, amongst other counts, with murder and (in the alternative) manslaughter. The trial judge directed the jury to return verdicts of not guilty in relation to those counts. The Crown relied on constructive murder for the charge of murder and involuntary manslaughter by an unlawful and dangerous act for the charge of manslaughter, relying on the principles of joint criminal enterprise. Relevantly, the trial judge said (at [97]-[98]): While it is open to the jury in the present case to find that the act of [Mr Lan] was an act in furtherance of the common purpose alleged by the Crown, there is no evidence to suggest that [the respondent] and [Mr Lan] acted together in lighting the burner. The case is not analogous to the situation (not resolved by the High Court) [in Burns v The Queen [2012] HCA 35; 246 CLR 334, to which his Honour had earlier referred]) where two drug users inject one another with a dangerous drug. The evidence is not capable of excluding the possibility that it was the act of [Mr Lan] that caused his own death. There is no evidence that [Mr Lan] was not acting voluntarily. There is no evidence that he was other than a fully informed and responsible adult.
2. In this Court, Simpson J, as her Honour then was, with whose judgment RA Hulme and Bellew JJ agreed, said at [70], that: … For the purposes of the joint criminal enterprise relied upon by the Crown, it was not necessary for the Crown to show that the respondent and Mr Lan "acted together in lighting the burner". All that was necessary to show was, as I have indicated above in relation to the murder count, that lighting the burner (by one or other of them) was an incident within the contemplation of the respondent in her participation in the commission of the drug manufacturing offence. It may well have been the act of Mr Lan that caused the ignition of the burner, and, if so, that was an act that caused his own death. But the liability of the respondent alleged by the Crown was not derivative; it was, in effect, co-extensive with that of Mr Lan for all acts he undertook in the course of the drug manufacturing enterprise (just as the liability of Mr Lan for all acts undertaken by the respondent was co-extensive with hers).
3. The Court of Criminal Appeal held that it was erroneous for the trial judge to have directed the jury to acquit on the manslaughter charge and that the trial judge had erred in directing the jury to return a verdict of not guilty in relation to the charge of constructive murder. In the reasons the trial judge gave for so directing the jury, the trial judge had said: Taking the prosecution case at its highest, there is no evidence capable of supporting an inference that the [respondent] contemplated the possibility that somebody might be injured, let alone that they might die, in the course of the manufacturing process. [at [42]] In this case, the crime of which [the respondent] is alleged to be guilty is the crime of murder. It cannot be said that [Mr Lan] did all those things necessary to constitute that crime in accordance with the agreement. [at [80]] The situation may be different if an innocent third party had been killed. Central to my decision is the fact that the victim (deceased) is the person who committed the act leading to death. He cannot be guilty of his own murder and thus the derivative liability of [the respondent] cannot be established. [at [83]] I do not accept that the combination of principles of common purpose and constructive murder work together to make [the respondent] 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. [at [85]]
4. The error subsequently identified in that reasoning process was identified by the Court of Criminal Appeal (at [60]-[64]) as follows: Paragraph [42] of the judgment reveals error in the reasoning process. In that paragraph the trial judge misapprehended the third element stated by Carruthers J in Sharah. What was there said to be a necessary element was foresight of the discharge of a gun by the co-offender during the course of the armed robbery. (That was the act that caused death.) Translating that to the facts of the present case, what the third element of Sharah required was foresight of the ignition of the burner. As I have endeavoured to point out above, the relevant question was not whether the respondent contemplated injury to, or death of, Mr Lan, the relevant question on the issue of joint criminal enterprise was whether the respondent contemplated the possibility that the ring burner would be ignited - that is, was it within the scope of the joint criminal enterprise? If it was, and if the ring burner was ignited by the respondent or Mr Lan, it was an act committed by one or other of the participants within the scope of that enterprise, and was to be treated as the act of both participants, and it was the act that caused death. Paragraphs [80], [83] and [85] of the judgment are indicative of the same error as I have just identified in [42]. In [80] the trial judge applied the test for joint criminal liability taken from McAuliffe, not to the crime (drug manufacture) in which the respondent was alleged to have been a joint participant, but to the crime of murder. The Crown never alleged that the respondent was a party to a joint criminal enterprise that contemplated death or injury. The principles of joint criminal enterprise were applicable to the foundational crime of drug manufacture. To repeat, if the ignition of the burner was within the scope of that enterprise, then the respondent and Mr Lan were both liable for it. In observing (at [83]) that Mr Lan could not be guilty of his own murder, the trial judge was drawing on what he regarded as a "somewhat analogous case", R v Deminan [1989] VicRp 10, [1989] VR97,33 A Crim R 441. In that case the victim of an alleged offence had been party to a conspiracy with the person accused of his murder to cause an explosion in a consulate in Melbourne In the course of the execution of the plan, the bomb detonated prematurely, killing one of the conspirators (the victim). The surviving conspirator was charged with murder. Although an appeal was upheld on other grounds, two judges of the Court of Appeal held that, because the victim could not be convicted of his own murder, the accused person could not be guilty as an accessory or principal in the second degree. As I have attempted to indicate, to focus upon whether injury or death was within the scope of the enterprise, or contemplated by the participants, is to deflect attention from the correct question. The correct question is whether the ignition of the ring burner was within that scope or contemplation, if it was, both participants were responsible for it, and liable for its consequences. Moreover, it was incorrect to characterise the Crown's case against the respondent on murder as "derivative". The Crown case was that, by reason of her participation in a crime punishable by imprisonment for life, she was directly liable in murder (for a death caused by an act done in an attempt to commit or during the commission of that offence).
5. The act of lighting the burner used in manufacturing the methylamphetamine which ignited the flammable vapour was held to be plainly an act within the scope of the joint criminal enterprise and as such, both the participants were equally liable for that act regardless of which person actually performed it (at [39], [70]).
6. The reasoning in IL in the Court of Criminal Appeal was consistent with dicta in an earlier case involving the death of a person caused by an explosion that occurred in the course of a joint criminal enterprise (CLD v R [2015] NSWCCA 114 (CLD)).
7. In CLD, the principal question for determination on the appeal was whether the Crown had to prove the actual source of ignition in order to characterise the relevant act as dangerous. The respondent sought to uphold the acquittal on the basis that the Crown case was deficient, because it was "necessary to show the act of ignition to be able to assess foreseeability in the context of dangerousness". The Court of Criminal Appeal said (at [33]-[34]), that: [T]he requirement that the respondent's act be "dangerous" called for an objective assessment of whether the act of manufacture carried an appreciable risk of serious injury: Burns v The Queen at [9] per French CJ and [75] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. That involved a prospective evaluation of the likelihood that in the circumstances in which the extraction activity was being undertaken there could be a build-up of flammable toluene vapours that could be exposed to an ignition source resulting in an explosion and fire. The flaw in the respondent's argument is that it focussed too narrowly on the source of ignition, as distinct from the fact of ignition however caused. The assessment of an appreciable risk of serious injury was not confined to the ex-ante probability, that is the probability before the event, of the actual source of ignition emerging and causing such an explosion and fire. All of the possible sources of ignition that might have made that activity "dangerous" had to be considered. It was then necessary to address whether a reasonable person in the position of the respondent would have realised that those sources existed and meant, because of the flammable air mixture and the probability of ignition, that the extraction activity (involving the evaporation of toluene in an inadequately ventilated space) carried with it an appreciable risk of serious injury. It was not necessary that the precise cause of ignition be foreseeable, it was sufficient that ignition, whatever the precipitating cause, be foreseeable.
8. The Court held (at [35]) that it was not necessary for the Crown to identify the source of the ignition for the explosion to have been foreseeable as an incident of the joint enterprise. Irrespective of the source of ignition, it was open to a jury to find the accused causally responsible for the deceased's death (at [40]-[47]).
9. In the present case, the appellant ultimately accepted that upholding his amended ground 1 would require a departure from the reasoning of this Court in CLD (AT 10.10). He had not alerted the Court in advance to such a contention. In all the circumstances therefore, this Court considered it appropriate to await the determination by the High Court of the appeal in IL.
10. The High Court allowed IL's appeal. The plurality decision was given by Kiefel CJ, Keane and Edelman JJ (at [1]-[41]). Their Honours summarised their findings as follows (at [1]-[2]): The offences of murder and manslaughter in s 18 of the Crimes Act 1900 (NSW) require that one person kill another person. Section 18 is not engaged if a person kills himself or herself intentionally. Nor is it engaged if the person kills himself or herself in the course of committing a crime punishable by imprisonment for life or for 25 years or by an unlawful and dangerous act. … Since we conclude that murder in s 18 does not apply to circumstances involving self-killing, it is not strictly necessary for us to consider the operation of the rules of attribution when co-offenders act in concert. It suffices to observe that we agree with the assumption upon which this case was conducted by the parties, namely, that when two or more persons act in concert to effect a common criminal purpose, it is the acts of each person to effect their common purpose which are attributed to the others. The decision of this Court in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 established that it is the acts which are attributed in this scenario, it is not the liability. Nor is it the actus reus of a notional offence. (emphasis in original).
11. At [24]-[25], the plurality noted: Consistently with its origins in the common law, the text and context of s 18 also confirm that the concern of the section was not with the killing of oneself. First, when it was enacted s 18 was immediately followed by the penalty in s 19, which provided that the person who commits murder "shall be liable to suffer death". That plainly indicated that the "murder" the section was concerned with was the killing of another person. Secondly, the instance of murder involving "intent to kill or inflict grievous bodily harm upon some person" (emphasis added) contemplated that "some person" was some person other than the person causing the death. Indeed, on a literal reading of s 18(1) the "person" whose death is caused is differentiated from the "accused" and the "accomplice". The language in which s 18(1) is cast does not contemplate that the accomplice of the accused might be the person whose death was caused by the accused or the accomplice. Thirdly, s 18(2)(b) is an express acknowledgement that the punishment or forfeiture in relation to killing, other than by misfortune, is concerned with the killing, by murder or manslaughter, of "another". The short point is that the murder "taken to have been committed" and "[e]very other punishable homicide" taken to be manslaughter to which s 18 refers require the killing by one person of another. Section 18 is not concerned with the circumstance of a person who kills himself or herself intentionally. Nor is it concerned with a person who kills himself or herself accidentally. It follows that the offence of murder is not committed where a person kills himself or herself in an attempt to commit, or during or immediately after the commission of, a relevant crime. Nor is the offence of manslaughter committed when a person kills himself or herself in some other way. Section 18 did not create such new offences. Nor could the section be engaged, and such offences created, by attributing to another person an act which caused a self-killing. (footnote omitted)
12. Bell and Nettle JJ (at [42]-[91]) concurred in the outcome but for different reasons. Their Honours considered (at [65]) that: [J]oint 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. noting (at [79]-[80]) that: [I]t 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. (footnotes omitted)
13. In separate decisions, Gageler J (at [92]-128]) and Gordon J (at [129]-[176]) each dissented. However, both their Honours agreed with the plurality's view that the acts of each participant are attributed to the others under the joint criminal enterprise doctrine. Gageler J noted (at [103]): The nature and extent of the criminal responsibility attributed by operation of the common law doctrine of joint criminal enterprise has long been obscure, but was squarely addressed in Osland v The Queen. On my understanding of the reasoning of the majority in that case, the effect of the operation of the doctrine is to attribute to the accused primary (as distinct from derivative) criminal responsibility for the physical act of the accomplice, and to do so whether or not the act of the accomplice was one which the accused was physically capable of performing and whether or not the act of the accomplice amounted to an element of a crime committed by the accomplice. (footnotes omitted) and at [106]: Osland was unchallenged in this case. My understanding of Osland accords with the explanation given by Kiefel CJ, Keane and Edelman JJ. That understanding prevents me from acceding to the view of Bell and Nettle JJ that Lan's lighting of the ring burner was not an "act" of IL if IL contemplated Lan lighting the ring burner as an incident of executing their joint enterprise of manufacturing methylamphetamine.
14. Gordon J said (at [153]-[154]): The consequence of applying [the common law principles of complicity] is that the accused (IL) is responsible for all of the steps taken by Mr Lan towards manufacturing the methylamphetamine, including the lighting of the burner. Once that is recognised, the question whether Mr Lan could have been liable for homicide does not arise. First, as noted above, Osland makes it clear that IL's liability for constructive murder would be primary, not derivative. Thus, Mr Lan's liability or otherwise for murder is irrelevant. Second, consideration of the question whether Mr Lan could have been liable for homicide distracts attention from the relevant statutory question. The statutory question is not answered by observing that s 18(1)(a) requires the death of a person other than the person who did the act. Once it is understood that Mr Lan's act of lighting the burner was "the act of the accused" - that is, the act of IL - then that act did cause the death of another.
15. In their supplementary submissions in this case (dated 29 August 2017), the Crown (while demurring from the appellant's proposition as to the ratio of IL) accepts (at [4]) that, consistently with the reasoning of the plurality at [1] and [24]-[25] (see above at [47]-[48]), the appeal must be allowed and the conviction for manslaughter quashed.
16. Ground 1 of the amended grounds of appeals should be upheld.

Ground 2 - Summing up

1. As grounds 2(a) and 2(b) relate to the trial judge's summing up and were not the subject of complaint at trial, leave is necessary pursuant to r 4 of the Criminal Appeal Rules. Leave should only be granted if the appellant can demonstrate that there has been a miscarriage of justice (ARS v R [2011] NSWCCA 266 at [146]-[148] (Bathurst CJ, James and Johnson JJ agreeing)).
2. It follows from the High Court's decision in IL that the trial judge's direction that "if Ribbons dies from lighting a match but the appellant was part of a joint criminal enterprise, he is as liable for the death as Paul Ribbons who struck the match" was erroneous as a matter of law and resulted in a miscarriage of justice. Leave should be granted to bring ground 2(a) of the amended grounds of appeal and that ground should be upheld.
3. Ground 2(b) of the amended grounds of appeal is no longer pressed (appellant's supplementary submissions of 24 August 2017). It will be treated as abandoned.
4. Since writing the above I have read the observations of Fagan J with which N Adams J agrees and I also agree.

Orders

1. The following orders should be made: 1. Leave is granted to the appellant to bring ground 2(a) of the amended grounds of appeal. 2. Appeal allowed. 3. Quash the appellant's conviction for manslaughter contrary to s 18(1)(b) of the Crimes Act 1900.
2. FAGAN J: I agree with Ward JA that grounds 1 and 2(a) must be upheld and that the appellant's conviction for manslaughter must be quashed, applying the High Court's decision in IL v The Queen [2017] HCA 27.
3. The case against the appellant was left to the jury on the basis they could find him guilty of manslaughter by unlawful and dangerous act where the relevant act was of the deceased himself and was attributed to the appellant on the basis of their participation in a joint criminal enterprise. That was in accordance with the law as it had been declared by this Court current to the date of the trial.
4. The accused in IL v The Queen had been charged with murder and in the alternative manslaughter (by an expressly pleaded alternative count). The holding of the High Court by majority (five of the seven justices) was that the trial judge had correctly directed acquittal on both counts. This was not supported by a ratio decidendi or rule common to the judgments of the justices who formed the majority. In distinguishing the holding in the case from the ratio decidendi or rule I refer to McHugh J's discussion of the terminology in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [58]-[61].
5. Kiefel CJ, Keane and Edelman JJ held that s 18 of the Crimes Act 1900 (NSW) does not create an offence of murder or manslaughter where the deceased killed himself or herself.
6. At [40] their Honours accepted that Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75: was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime. Gageler and Gordon JJ in separate judgments concurred in this understanding of the principles settled by Osland v The Queen.
7. Nevertheless, Kiefel CJ, Keane and Edelman JJ considered that attribution to an accused of an act by which a co-participant in a joint criminal enterprise kills himself or herself cannot engage s 18 of the Crimes Act to constitute murder or manslaughter. At [25] their Honours said: Section 18 is not concerned with the circumstance of a person who kills himself or herself intentionally. Nor is it concerned with a person who kills himself or herself accidentally. It follows that the offence of murder is not committed where a person kills himself or herself in an attempt to commit, or during or immediately after the commission of, a relevant crime. Nor is the offence of manslaughter committed when a person kills himself or herself in some other way. Section 18 did not create such new offences. Nor could the section be engaged, and such offences created, by attributing to another person an act which caused a self-killing.
8. Bell and Nettle JJ expressed a minority view on the subject of attribution of acts between participants in a joint criminal enterprise. Their Honours said (at [82]): It is the act of the agent [in IL v The Queen, as here, the deceased], as was committed by the agent, and not such an act as if it had been committed by the principal [the accused], that is to be assessed to determine whether the act comprised the actus reus of an offence.
9. Whilst differing over the principle of attribution, Bell and Nettle JJ supported Kiefel CJ, Keane and Edelman JJ with respect to the ultimate holding in the appeal, on the basis that when the act which caused death was assessed for its criminality "as was committed by the agent" (the deceased himself) and "not as if it had been committed by the principal" (the accused), there was no murder or manslaughter because s 18 of the Crimes Act does not create an offence of self-killing. At [88] their Honours characterised the case before the court as one: … 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.
10. The common ground between the joint judgment of Kiefel CJ, Keane and Edelman JJ on the one hand and that of Bell and Nettle JJ on the other, is limited to acceptance that a person killing himself does not commit murder or manslaughter contrary s 18 of the Crimes Act. The respective reasons are disparate, where the causative act was committed in the course of a joint criminal enterprise of the deceased and the accused, as to why the act is not attributed to the accused in such a way as to constitute an unlawful homicide by the accused. One view is that s 18 is simply not engaged by a self killing, to whomever the act causing death may be attributed. The other is that the act causing death is assessed for its criminality as an act of the person who commits it, not as an act attributed to a co-offender in a joint criminal enterprise.
11. Notwithstanding the absence of a single ratio decidendi or rule assented to by a majority of the seven justices, this Court must follow the holding (or result) of IL v The Queen. It is determinative of the present appeal where the facts are closely similar in all material respects. The Crown rightly conceded this.
12. N ADAMS J: I agree with Ward JA and Fagan J that grounds 1 and 2(a) must be upheld in light of the decision in IL v The Queen [2017] HCA 27. As Fagan J has noted, although Bell and Nettle JJ expressed a minority view on the question of attribution between participants in a joint criminal enterprise, their Honours were in agreement with Kiefel CJ, Keane and Edelman JJ to the extent that their Honours all accepted that self-killing does not come within the terms of s 18 of the Crimes Act 1900 (NSW). Based on that aspect of the decision in IL v The Queen, I am satisfied that the Crown's concession should be accepted, the appeal should be allowed and the appellant's conviction for manslaughter quashed.

Amendments 06 October 2017 - Amendment to counsel's name on coversheet 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: 06 October 2017