R v DJD and Murdoch

Summary of the Crown case

1. More specifically, the Crown relevantly alleges that the two accused, DJD and Mr Murdoch, along with three others murdered the deceased, Kevin Kourtis, on the basis of constructive murder under s 18(1)(a) of the Crimes Act. The Crown case is that the accused are culpable because they were each a participant in a joint criminal enterprise with others to assault Mr Kourtis with intent to rob in company while armed with a dangerous weapon (which carries a maximum penalty of 25 years imprisonment and is the offence in count 1), and the deceased was killed during or immediately after the commission of that offence by one or other of the participants in the enterprise.
2. Some of the more pertinent aspects of the Crown case can be outlined briefly as follows.
3. Kevin Kourtis dealt in prohibited drugs in small quantities and lived at a house in Riverstone, NSW, with a female, Ms McKenzie, and her boyfriend. The deceased's girlfriend, Ms Howlett, also stayed at his house from time to time. Mr Kourtis was known to DPD. On one occasion between March and the end of April, the two of them argued in Mr Kourtis's garage about the price of ice and on a different occasion DPD woke the deceased up when he was asleep on his lounge at home. After that, Mr Kourtis would not let DPD into his home.
4. [redacted]
5. The five participants all arrived in the vehicle at a street near where the deceased lived. They all walked into the street where Mr Kourtis lived and gathered in a circle on the road near his house for a period of roughly 20 seconds. [redacted].
6. In response to knocking, the deceased opened the door a fraction and then tried to shut it again. However, the five participants pushed the deceased backwards and entered his house. One of the participants was carrying a 30 cm silver knife. The deceased was pushed back into the kitchen by at least three of Shillingsworth, DPD, DJD and Murdoch. Noises were then heard coming from the kitchen and one witness described hearing a ruckus.
7. During this time, SP approached Ms Howlett in the loungeroom and stood over her and said, "don't call the coppers". He then grabbed her phone to check she had not called, and took about $200 from her wallet. After a few minutes, Shillingsworth came into the loungeroom and asked Ms Howlett "where's the shit", to which she responded she did not know what he was talking about and he said "you better not be lying to me".
8. After hearing the "ruckus" downstairs, Ms McKenzie, who was upstairs, was approached by DPD and another participant in her bedroom. DPD was carrying a gun. Ms McKenzie recognised him although his face was partially covered. When Ms McKenzie asked him what he was doing, DPD replied "Kevin's a dog. Kevin's a dog. Kevin's a dog". At some point, the participant accompanying DPD told him "we have to go" and that participant went downstairs.
9. DPD stayed upstairs. At this point, his face mask was down to his chin, and Ms McKenzie saw his face unobstructed. She said, "What are you going to do? Hit me with it?". DPD moved towards her, and she raised her hands and said, "go on, point it at me". DPD raised the rifle so that the tip of it was touching her mouth and pushed her head into the door frame with the gun. DPD then left the upstairs bedroom, and Ms McKenzie remained in the bedroom, where she heard DPD asking Mr Kourtis for the keys to the quad bike.
10. Eventually, all the participants left the deceased's premises.
11. A neighbour had called the police and, soon after, a number of police officers attended the deceased's residence. They saw drug paraphernalia and tools scattered throughout and, in the kitchen, observed the deceased lying with a pool of blood near his head and blood spattered across the kitchen. Police commenced CPR on the deceased in the kitchen, shortly before the ambulance crew arrived. At 01:14am on 24 May 2020, after a 20-minute period of treatment by ambulance crew, the deceased was pronounced dead.
12. All five participants were eventually arrested.
13. An autopsy on the deceased was completed and the cause of death was identified as "stab wound to the chest" and the injuries included: 1. soft tissue swelling in the region of the parietal scalp without underlying skull or facial fracture; 2. seven stab wounds including one in the left upper chest, three in the abdomen, and three in the trunk; 3. two areas of laceration on the right parietal scalp; 4. blunt force injury of the mouth, including laceration of the lips and the avulsion of two teeth; and 5. defence type injuries including two incised wounds in the first web of the right hand, two in the dorsal aspect of the left hand, and a superficial laceration on the posterior left hand overlying the second metacarpophalangeal joint.
14. There were extensive enquiries, searches and examinations undertaken by police and relevant aspects of those are relied upon by the Crown.
15. The Crown conceded that it could not establish which of the accused inflicted the fatal stab wounds.

Submissions

1. The initial hearing of this application occurred before the High Court's judgment in Mitchell v The King [2023] HCA 5 was handed down on 8 March 2023. That judgment and a number of issues raised by the Bench caused Mr Coady of counsel, who appears for DJD, and Ms Carroll, who appears for Mr Murdoch, to adopt revised positions, as did the Crown.
2. Mr Coady originally relied on what had been said by the Court of Criminal Appeal in R v Sharah (1992) 30 NSWLR 292 in relation to the elements of "felony murder", which in substance only required the Crown to prove that the use of a knife by one participant was a contingency that each relevant accused had in mind, rather than an agreement that this might occur.
3. The Crown referred to the legislative history of s 18 of the Crimes Act and submitted that the terms of s 18(1)(a) do not require the act causing death to be an element of the foundational offence nor did they import any requirement that an accomplice acting in concert with an accused needed to contemplate the mechanism by which death occurs.
4. It was also contended that the High Court has consistently confirmed that the state of mind necessary to establish constructive murder under s 18 in relation to the physical perpetrator of the act causing death is the state of mind necessary to prove the foundational offence, together with proof that the act causing death was voluntary, even where the fatal act is not an element of the foundational offence.
5. The Crown also submitted, more specifically in relation to Sharah, that Carruthers J's comments to the effect that the elements of "felony murder" in that case included that the act causing death was foreseen by the appellant were merely obiter dicta because the directions on constructive murder were not in issue in that case. In addition, it was contended that there are compelling reasons for this Court to depart from what was said in Sharah. The Crown noted that Sharah in this regard had been recently doubted and referred to the comments of Gordon J in IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 and Batcheldor v R & Walsh v R [2014] NSWCCA 252; 249 A Crim R 461. The Crown did, however, note that the status of the comments in Sharah are "is problematic having regard to what was said by Simpson J in R v IL [2016] NSWCCA 51 at [34]-[37]".
6. In their later submissions after Mitchell, Mr Coady and Ms Carroll both contended that the elements which the Crown were required to prove beyond reasonable doubt in order to establish that each accused was guilty of murder, in this particular case, were, in substance: 1. the accused was a participant in a joint criminal enterprise to commit the foundational offence under s 97(2) of the Crimes Act; 2. during or immediately after the commission of the foundational offence, a participant in the joint criminal enterprise caused the death of Kevin Kourtis by stabbing him with a knife; and 3. each relevant accused agreed to a possible wounding, or a possible use of a knife, in the commission of the foundational offence.
7. It was submitted in effect that the element of agreement to wounding or use of a knife was required in order for the act causing death to be attributed to the accused in accordance with the relevant principles of complicity when the Crown could not prove which participant or participants in the joint criminal enterprise of assaulting Mr Kourtis with intent to rob in company armed with a dangerous weapon actually stabbed him causing his death. This was said, in effect, to follow from terms of s 18(1)(a) of the Crimes Act in the particular circumstances of the present case. It was also said to be consistent with the approach of the High Court in Mitchell to the South Australian statutory equivalent of s 18(1)(a).
8. In relation to Mitchell, the Crown submitted that the dispositive issue was narrow, namely that extended joint criminal enterprise could not be relied upon in the context of s 12A of of the Criminal Law Consolidation Act 1935 (SA), and the decision should not be understood as altering the law in relation to the scope of acts which may come within the constructive murder provision of s 18(1)(a) of the Crimes Act.
9. In the final form of its submissions, the Crown put forward two positions. Its primary position was, in effect, that the Crown was only required to establish both the existence of the joint criminal enterprise and participation in it by the accused and, once that had been established, the only additional requirement for the accused to be found guilty of murder was that the deceased died by a voluntary act of one of the accomplices committed during or immediately after the foundational offence.
10. In support of this primary position, it was submitted that s 18(1)(a) permits a broader attribution of acts than s 12A of the South Australian statute because: s 18(1)(a) does not contain the words "intentional act of violence"; the words "of an act obviously dangerous to human life" were removed from the section in 1974; and, s 18(1)(a) "incorporates constructive liability of an accomplice within the terms of the section".
11. The Crown's secondary position was that, to the extent that the reasoning in Mitchell might require the act causing death to fall within the scope of the foundational joint criminal enterprise before responsibility for murder could be attributed to an accomplice, any agreement would not need to extend it to the precise manner in which the act causing death occurred and it would be sufficient for the scope of the agreement to extend to acts of the same general nature. This approach was illustrated by reference to a number of cases: R v Ryan and Walker [1966] VR 553, Betts (1930) 22 Cr App R 148 at 155; R v Dowdle (1900) 26 VLR 637 at 639; R v Kalinowski (1930) 31 SR (NSW) 377 at 380; R v Solomon [1959] Qd R 123 at 126-7. The Crown also referred to the later South Australian decision of R v R (1995) SASR 417 and the analysis of that decision in Mitchell at [102] - [103].

Consideration

1. For the purposes of the present case, s 18 of the Crimes Act relevantly provides: "(1)(a) Murder shall be taken to have been committed where the act of the accused … causing the death charged, was … done … during or immediately after the commission, by the accused, or some accomplice with him … of a crime punishable by imprisonment … for 25 years."
2. The form of murder captured by these words in s 18(1)(a) has become known as "constructive murder". The common law doctrine of felony murder has been replaced in New South Wales by s 18(1)(a) and reference to the position at common law is not of any particular assistance in the case such as the present: Ryan v The Queen (1967) 121 CLR 205 (Ryan) at 221 (Barwick CJ); [1967] HCA 2 at [37].
3. The application of s 18(1)(a) involves essentially a question of statutory construction and the application of the statute so construed to the facts of the particular case: Ryan at 220, [36].
4. The relevant terms of s 18(1)(a) on their natural meaning and as they have been construed establish that guilt in relation to constructive murder in a case such as the present turns, not upon any intention or recklessness on the part of the accused, but upon: 1. the commission by the accused or an accomplice of an offence punishable by imprisonment for 25 years, often called the "foundational offence"; and 2. the act causing the death of the deceased being: 1. a voluntary or willed act: Ryan v The Queen (1967) 121 CLR 205 (Ryan) at 213 (Barwick CJ), 241 (Windeyer J); [1967] HCA 2; and 2. an act done during or immediately after the commission of the foundational offence; and 3. an act of the accused or which is to be attributed to the accused by the common law principles of complicity: R v Jacobs and Mehajer [2004] NSWCCA 462 (Jacobs) at [189]-[203], [205], [208], [215]-[216] (Wood CJ at CL, Sperling and Kirby JJ agreeing); 151 A Crim R 452.
5. This approach is consistent with what was said by Gageler J in IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 at [94]: "Murder under the second limb of s 18(1)(a) is constructive murder. Murder under that limb is 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 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'. Except for its identification of the foundational crime (as enacted in 1900 as an act obviously dangerous to life or as a crime punishable by death or penal servitude for life but as amended since 1989 as a crime punishable by imprisonment for life or for 25 years), the second limb of s 18(1)(a) replicates the common law crime of felony murder as understood in 1883. The common law moved on, ultimately to hold that 'an unintended killing in the course of or in connexion with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person'. The statute did not." (footnotes omitted)
6. It is also consistent with Gordon J's comment in IL at [169].
7. The Crown's primary position as I understood it was that the element identified above in [32(2)(c)] above was not a necessary element that the Crown was required to prove in respect of constructive murder and that it was sufficient if the act causing death was done by an accomplice of the accused in the foundational offence. This was maintained, even though the Crown acknowledged that it could not prove beyond reasonable doubt which of the accused did the act which caused the death of deceased.
8. The wording of s 18(1)(a) does not support the Crown's primary position that once it has been established that the accused committed or was an accomplice in committing the foundational offence by reason of participation in a joint criminal enterprise, the only additional requirement for the accused to be found guilty of murder was that the deceased died by a voluntary act of one of the accomplices committed during or immediately after the foundational offence.
9. The Crown could not point to any binding authority to support the construction of s 18(1)(a) which the Crown relied on as its primary position. It can be noted that in R v Surridge (1942) 42 SR (NSW) 278, Jordan CJ (Halse Rogers and Maxwell JJ concurring) held at 283, in relation to constructive murder under s 18(1)(a) (as it was at that time): "it is necessary, in order that the person who is an accomplice only may be guilty of murder, that it should have been within the common purpose of both that an act obviously dangerous to life, or a crime punishable by death or penal servitude for life, should be committed, and the cause of the death must have been something done by the other in an attempt to commit or during or immediately after the commission of that act or crime."
10. The context to this statement was, however, that the Court of Criminal Appeal also held, in Surridge at 282: "it was quite open to the jury upon this evidence to find that it was part of a purpose common to William Surridge as well as to the other three to rob Hofmann and to use any violence, without any limitation as to its quantum, which might be necessary to overcome his resistance, and that William Surridge was present at least for the purpose of rendering assistance if assistance should be necessary."
11. In light of this finding, it appears that in Surridge the acts of the accomplices which caused the death of the deceased in that case could be attributed to the accused, Surridge, under the common law principles of complicity, including the doctrine of joint criminal enterprise. Thus, Surridge does not provide support for a contention that, where the act of another person causes the death of the deceased but that act cannot be attributed to an accused under the principles of complicity, the guilt of an accused for constructive murder can be established if all that is proved is the accused was a participant in a joint criminal enterprise to commit the foundational offence and the voluntary act of another participant caused the death of the deceased.
12. The New South Wales Law Reform Commission Report 129 Complicity (December 2010) states, at par 5.33: "In its traditional form, the rule has made accomplices liable for constructive murder on the basis of their complicity in the foundational offence, rather than in the act causing the death." (footnotes omitted)
13. In support of this proposition, the Commission referred to the passage from Surridge at 283, which has been quoted above, but did not note the circumstances in that case referred to at 282. In addition, the Commission relied upon a South Australian decision, R v R (1995) 63 SASR 417. That case was recently commented upon by the High Court in Mitchell, by Gordon, Edelman and Steward JJ in the following terms: "102. The only authority which the respondent pointed to as an attempt to justify the existence of this new pathway to murder was the decision of the Full Court of the Supreme Court of South Australia in R v R. In that case, the trial judge had directed the jury to the effect that a party to an agreement to commit a robbery would be guilty of constructive murder if the scope of the agreement to rob included violence and a danger to life. The trial judge recognised that the attribution would occur because, by agreement, the person "joins in" the "violent and dangerous crime". In the course of his reasoning dismissing the appeals, however, King CJ (with whom the other Justices agreed) said that the act of the actual perpetrator would be attributed to the other parties to the agreement even if the act was "unintended" by, and not within the "contemplation" of, the other parties to the agreement. 103. The statement by King CJ is consistent with the long‑standing authority discussed earlier in these reasons if it is taken to mean that an act of violence within the scope of an agreement will be attributed to all parties, even if they could not have foreseen that it would cause death. But if it is taken to mean that at common law a party to an agreement to commit a felony may have an act attributed to them which was not within the scope of their agreement simply on the basis that, no matter how remote the act, a participant must "accept responsibility for what occurs in the course of [the agreed] felony", then the statement is contrary to the long‑established principles of common law constructive murder. Indeed, if the statement were read in that way, it would also go further than the double fiction of constructive, constructive murder because it would not even require foresight of the elements of the offence of murder." (footnotes omitted)
14. Understood in the manner outlined by the three Justices at [103], R v R does not provide support for the proposition in par 5.33 of the Complicity report, or for the Crown's primary position.
15. The terms of s 18(1)(a) render an accused criminally liable for murder only if it is "the act of the accused" which is the act "causing the death charged". Thus, in accordance with the Court of Criminal Appeal's decision in Jacobs, an accused who did not physically do the act causing death can be liable for constructive murder if that act can be attributed to the accused under the principles of criminal complicity.
16. In effect, the Crown's primary position involved reading the words "by the accused, or some accomplice of the accused" as applying to "the act … causing death" rather than to "the commission … of a crime punishable by imprisonment … for 25 years". Such a reading is inconsistent with the express words of the provision which are: "where the act of the accused … causing the death charged, was … done … during or immediately after the commission, by the accused, or some accomplice with him …, of a crime punishable by imprisonment … for 25 years".
17. It is also inconsistent with the approach to the construction of a statute creating constructive liability for murder, such as s 18(1)(a) of the Crimes Act, referred to by the High Court in Mitchell. At [30], Kiefel CJ held in effect that in construing a provision which creates a constructive crime, the approach to be taken was that: "… constructive crimes should be confined so far as possible in their operation. They should be so limited in view of the development of the law "towards a closer correlation between moral culpability and legal responsibility." (footnote omitted)
18. To a similar effect were the comments of Gageler, Gleeson and Jagot JJ at [46]: "Two overarching and overlapping considerations of legal policy lend support to that conclusion. Expressed normatively in language drawn from the majority in Wilson v The Queen, they are that: (1) the judicial development of the criminal law has for the most part been, and should continue to be, towards a closer correlation between moral culpability and legal responsibility; and (2) the scope of constructive crime should be confined to what is truly unavoidable." (footnote omitted)
19. The unambiguous text of s 18(1)(a) makes plain that the act "causing the death charged" must be "the act of the accused". In my view, this is the proper construction of s 18(1)(a). Nonetheless, on this construction, the acts of an accomplice in the foundational offence can be attributed to the accused, in accordance with the principles of complicity in an appropriate case as held in Jacobs, so as to become acts of the accused for the purposes of s 18(1)(a).
20. Given the way in which the Crown has put its case and the principles of complicity as set out, for example, by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [69]-[95], on the proper construction of s 18(1)(a), in order for the act causing death to be attributed to the relevant accused in the circumstances of the present case, the accused: 1. must have agreed to the possibility that some form of force or violence (without determining at this point what that might be) accompany the commission of the foundational offence if necessary; and 2. must have participated in the joint criminal enterprise.
21. The Crown's secondary position and both the accused's positions address this construction and application of s 18(1)(a). The essential issue between the parties on this construction was the degree of specificity of the possible form of force or violence to which the accused must have agreed in relation to the joint criminal enterprise to commit the foundational offence.
22. As noted above, Mr Coady submitted that there must be agreement to the possible use of a knife and Ms Carroll submitted that the agreement should be to possible wounding. By way of contrast, the Crown contended in effect that the required agreement would be that the robbery would, if necessary, be accompanied by force or violence.
23. The degree of specificity required in respect of the accused's agreement as to the possible use of violence will depend on the circumstances of each individual case. Nonetheless, where an offence may be accompanied by some form of violence and the participants in a joint criminal enterprise to commit that offence have no reason to be specific about the particular form of violence, in my view there does not have to be agreement to the specific type of violent act actually done before that act can be attributed to other participants in the joint criminal enterprise. For example, if the parties to an assault with intent to rob in company armed with a dangerous weapon agree to the use of force or violence accompanying the commission of that offence, if necessary, then for the purposes of attribution of an act of one of the participants to the other, it should not matter whether the violence actually used was by way of shooting, wounding with a knife or screwdriver, hitting with a heavy vase found at the scene, or bashing the deceased. In such a case, it is the possible use of force or violence generally not the particular type of violence which was agreed to and which gives rise to the attribution of the acts to the participants who agreed.
24. This conclusion is consistent with the comments and examples referred to by the High Court in Mitchell. These include what was noted by Kiefel CJ when discussing the application of the doctrine of joint criminal enterprise in the context of s 12A of the South Australian Criminal Law Consolidation Act. The Chief Justice held at [19]; "The principle of joint criminal enterprise has been held to apply to common law felony murder and to constructive murder under s 12 A. As to the latter, in Arulthilakan v The Queen [(2003) 78 ALJR 257; 203 ALR 259] the application of the principle does not appear to have been doubted. The co-accused of the two appellants stabbed and killed a person in the course of the robbery. Both appellants were aware that he was in possession of the knife which was used. It was observed that the plan was to 'roll' the deceased. That involved robbery accompanied if necessary by force and the use of force was therefore within the scope of the agreement." (footnotes omitted)
25. In addition, Gordon, Edelman and Steward JJ (with which Gageler, Gleeson and Jagot JJ agreed at [48]) said at [108] of Mitchell: "Where, in the case of joint criminal enterprise, an accused is alleged under s 12A to be a party to an agreement to commit the major indictable offence alleged by the prosecution, it would require a jury to be satisfied beyond reasonable doubt that the accused was a party to an agreement to commit that major indictable offence and that the agreement included the possible commission of an intentional act of violence of the same general nature as that which caused the death." (footnote omitted)
26. The additional element referred to by the three Justices as being agreement to "the possible commission of an intentional act of violence of the same general nature as that which caused the death" reflects, in part, the wording of s 12A which requires that the death be caused by an "intentional act of violence". Nonetheless, the formulation adopted also indicates that the agreement required does not have to be to the specific act of violence which actually occurred.
27. For all of these reasons, in the context of s 18(1)(a) of the Crimes Act and in the circumstances of this case, in order for the act of the participant who stabbed Mr Kourtis to be attributed to each of the accused, the Crown is required to prove beyond reasonable doubt that the accused was a participant in the joint criminal enterprise to commit the foundational offence and also agreed that the foundational offence would, if necessary, be accompanied by force or violence. The Crown does not have to prove that each accused agreed specifically to the possible use of a knife or to the possible wounding of the deceased accompanying the commission of the foundational offence.

Additional comments

1. Finally and for the sake of completeness, given the submission originally made on this application, the following additional observations can be made. The terms of s 18(1)(a) do not support there being an additional element that, if the act of some accomplice is relied upon as the act causing death, the accused must have had the contingency in mind that the accomplice would by some act cause the death of the deceased. This was in effect what one of the accused initially contended on the present application. This additional element was said to be based on what was said by Carruthers J (Gleeson CJ and Smart J agreeing) in R v Sharah (1992) 30 NSWLR 292 at 297E-298B in relation to the elements that were said to be required to be proved in that case in relation to constructive murder or "felony murder" based on extended joint criminal enterprise.
2. In Sharah, at 297F, it had been held in effect that, in order to establish that an accused was guilty of constructive murder, the Crown was required to prove in such a case that (using more current terminology): 1. the accused was party to a joint criminal enterprise to commit the foundational offence; 2. during (or immediately after) the commission of the foundational offence, an act of the accomplice of the accused in the foundational offence caused the death of the deceased; and 3. the act causing death was a contingency which the accused had in mind whether or not the act was intentional and whether or not in furtherance of the joint criminal enterprise.
3. What occurred in Sharah was that the appellant, with another man by the name of Attard who was holding a loaded double-barrelled sawn-off shot gun, burst into a paint contracting business and ordered those in the shop to lie on the floor while Attard pointed the gun at them and the appellant took envelopes containing the pay for employees of the business from a filing cabinet. As the offenders were leaving the shop, Attard struck the owner of the business, John, on the side of his head with the gun, wounding him. A scuffle ensued and the appellant left the shop taking the money with him. The scuffle moved outside the shop, into the shop next door and involved the owner of the business, his sons and Attard. The appellant entered the shop next door and he and Attard continued the struggle and at this time Attard pointed the gun at one of the sons of the business owner and the gun discharged. As a result, the son, Nick, was fatally shot. When questioned by police, the appellant said, inter alia, "no-one was meant to get hurt. I've never been involved in a shooting before. … I went back to help my mate and it all went wrong. I didn't even have a gun" and the defence case at trial was confined to the appellant denying any involvement in the armed robbery based on the unreliability of the identification evidence.
4. At trial, the charge of murder against the appellant, Mr Sharah, had been put in a number of ways by the Crown including: 1. "common purpose murder" which involved, in effect, the contention that the appellant was guilty of murder on the basis of extended joint criminal enterprise: Sharah at 296E; and 2. "felony murder" which involved, in effect, the contention that the appellant was guilty based on constructive murder as a result of an accomplice's act causing the death of the deceased during or immediately after the commission of the foundational offence of armed robbery with wounding under s 98 of the Crimes Act: Sharah at 296E-F. The basis on which the foundational offence was said to have been committed was, in effect, extended joint criminal enterprise.
5. The appellant was convicted on one count of murder and one count of armed robbery with wounding. The appellant appealed against his convictions on a number of grounds but the relevant grounds for present purposes were grounds five and six which were in the following terms: "His Honour the trial judge erred in his directions to the jury regarding common purpose liability for murder"; and, "His Honour the trial judge erred in his directions to the jury regarding common purpose liability for armed robbery with wounding" (respectively): at 296E. It can be observed that these grounds did not relate to the constructive (or felony) murder aspect of that case.
6. In the course of considering grounds five and six, Carruthers J set out at 297E-8B what he said he believed to be the elements which were necessary for the Crown to prove in relation to both ways in which the murder count was put. The accused for whom Mr Coady appears only relied upon what was said in this passage in relation to the elements of felony murder (or constructive murder) which was in the following terms: "As to felony-murder (upon the assumption that the foundational crime was the offence under s 98 [of the Crimes Act]) it was incumbent upon the Crown to prove beyond reasonable doubt: (i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shot gun; (ii) that during the course of the armed robbery Attard wounded John and during the course of such armed robbery with wounding or immediately thereafter, Attard discharged the gun causing the death of Nick; (iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose. As to the final element, see especially the judgments of this Court in R v Johns [1978] 1 NSWLR 282, particularly at 294 - 295, where Begg J quotes with approval the directions of the trial judge."
7. There are a number of difficulties with the precise formulation of the elements by Carruthers J in relation to constructive (or felony) murder. First, if element (i) was proved it would only establish that the appellant was party to a joint criminal enterprise to commit an offence of robbery in company armed with an offensive weapon, for which the maximum penalty was less than 25 years and which was not the foundational offence under s 98, namely robbery in company armed with an offensive weapon with wounding. Secondly, element (ii) refers to the act causing death as occurring during or immediately after "such armed robbery with wounding" whereas wounding was not mentioned in element (i) and there was no element relating to murder to the effect that the appellant was a participant in an extended joint criminal enterprise to commit "such armed robbery with wounding". Thirdly, element (iii) does not appear to be required by the terms of s 18(1)(a) of the Crimes Act and there was no explanation why, on the proper construction of that provision, the Crown was required to establish in relation to constructive murder in that case the element in par (iii) in addition to the elements that: (1) the accused committed the foundational offence under s 98 with his accomplice; and, (2) the accomplice's voluntary act done during or immediately after the commission of the foundational offence caused the death of the deceased. Fourthly, the requirement in element (iii) that the accused had the discharge of the gun as a contingency in his mind is framed in terms appropriate for proof of an offence based on extended joint criminal enterprise and does not otherwise appear to have any relevant foundation.
8. In addition, there have been other criticisms or questions that have arisen in relation to these elements as formulated in Sharah by various Courts, including the High Court [1] and the Court of Criminal Appeal [2] .
9. The accused's original submission in essence was that an element to the effect of element (iii) in the passage quoted was required in every case of constructive murder, including the present, because Carruthers J's statement of the elements was binding on this Court as Sharah had not been overruled. Attention was drawn to Simpson J's express statement in R v IL [2016] NSWCCA 51 at [37] that "Sharah has never been overruled and, accordingly, remains a binding authority (on trial judges) for NSW".
10. As with any decision of an intermediate appellate court, Sharah is binding on lower courts in accordance with the doctrine of stare decisis, but only in relation to what that case actually decided. In so far as the elements of constructive murder set out in Sharah were not a necessary part of the decision they would not be binding, although as obiter dicta they may deserve great weight: Hill v Zuda Pty Ltd [2022] HCA 21 at [26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ); 96 ALJR 540. Accordingly, it was necessary to consider whether the comments of Carruthers J, as relied upon by the accused, were necessary for the decision in Sharah or were obiter dicta and, if obiter dicta, whether the weight to be given to them in the circumstances of the present case made it appropriate to apply them.
11. In this context, it was important to identify the circumstances in which Carruthers J's list of the elements for constructive murder based on extended joint criminal enterprise might apply. In Sharah: the foundational offence was armed robbery with wounding under s 98; extended joint criminal enterprise was relied upon to establish the foundational offence in respect of the appellant because the evidence did not support the finding that the appellant agreed to the wounding or use of the weapon as part of the joint criminal enterprise; and, the person wounded was not the deceased who was killed but the deceased was killed using the "offensive weapon" referred to in the foundational offence. In the present case, the circumstances are quite different: the foundational offence was assault with intent to rob in company armed with a dangerous weapon under s 97(2); extended joint criminal enterprise was not relied upon to establish the foundational offence; and, the person assaulted was also the deceased but was not killed using the "dangerous weapon" referred to in the foundational offence. These different circumstances have the consequence that the elements identified in Sharah could not have been directly applied in the present case. In particular, it was difficult to perceive what element in the present case could correspond with element (i) in Sharah, which did not identify the foundational offence. Furthermore, element (iii) depended on the precise and different circumstances in Sharah for which there was no direct equivalent in the present case.
12. Next, it could be observed that the comments in Sharah were made in relation to the Crown's case based on constructive (or felony) murder when the fifth and sixth grounds of appeal were being considered. Those grounds, however, only related to "directions to the jury regarding common purpose liability for murder" and "common purpose liability for armed robbery with wounding" and not constructive (or felony) murder. The comments in relation to constructive (or felony) murder in Sharah were not necessary for the decision in relation to either ground five or six. In that sense, the comments were obiter dicta.
13. It was also relevant that Carruthers J did not purport to be giving a definitive ruling on the elements that must be proved in every case of constructive murder. His Honour's identification of elements (i), (ii) and (iii), among others, were prefaced by the following comment at 297C: "Before I turn to those parts of the summing-up which were impugned by counsel for the appellant, may I presume to set out what I believe to be (consistent with the most recent authorities) the elements which it was necessary for the Crown to prove in relation to both limbs of the first count. I acknowledge that there is no rigidity as to the terminology by which the elements may be expressed."
14. The elements of constructive murder identified in Sharah were said to be based on Begg J's approval of the directions of the trial judge in R v Johns [1978] 1 NSWLR 282 at 294-295. Those directions by the trial judge in Johns could also not be said to be an attempt to state in definitive terms the elements which must be proved by the Crown in every case of constructive murder. When the directions, relevant parts of which are quoted at 294F - 295C in Johns, are reviewed it is manifest that they were a summary of the Crown's contentions put to the jury and directions based on the specific factual and legal issues raised by the parties during that trial. They were not intended to be a statement of generally applicable principles in relation to constructive murder. Indeed, Begg J expressly accepted them simply as being an accurate reflection of the issues that had been put to the jury in that particular case. His Honour explained in Johns at 295C: "I have set out these directions at some length, because they indicate the issues which were put to the jury so far as they are relevant to the ground at present being dealt with. I believe that the summing up conveyed a precise and accurate indication of the issues that arose at the trial. In my view, there is no mis-direction."
15. Furthermore, in Sharah, Carruthers J set out at length the trial judge's directions in relation to "felony murder" at 299F-300G. Nowhere in those directions did the trial judge give a direction to the effect of element (iii) proposed by Carruthers J, namely, that the Crown was required to prove beyond reasonable doubt that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind. Nonetheless, it was concluded by Carruthers J at 304C-D that the trial judge's "directions upon the elements of both limbs under the first count [of murder] were in my view adequate". This is difficult to reconcile with the inclusion of element (iii) as something which the Crown was required to prove beyond reasonable doubt to establish constructive murder.
16. Perhaps most importantly in light of the High Court's very recent decision in Mitchell, the Crown in Sharah relied on extended joint criminal enterprise to establish the guilt of the appellant for the foundational offence of armed robbery with wounding under s 98 of the Crimes Act and thus also his guilt for constructive murder. Extended joint criminal enterprise itself can be said to involve a form of constructive criminal responsibility since it gives rise only to secondary or derivative liability: Mitchell at [61]. In this regard, it is fundamentally different from joint criminal enterprise which gives rise to primary liability: Mitchell at [55]. Thus, the constructive murder aspect of Sharah which relied in effect on extended joint criminal enterprise could be said to involve a case of "constructive, constructive murder" to adopt the language of Gordon, Edelman and Steward JJ in Mitchell, eg at [52]. All of the Justices in the High Court in that case agreed that, on the proper construction of s 12A of the Criminal Law Consolidation Act 1935 (SA), which created the South Australian version of constructive murder, the doctrine of extended joint criminal enterprise could not be combined with or applied in relation to constructive murder within s 12A: Mitchell at [30], [42]-[46], [52], [97] and [104]. It was held in effect that to do so would effectively create a new doctrine of constructive, constructive murder which should not be permitted since constructive crimes should be confined so far as possible in their operation: Mitchell at [30], [46]; and it would be extraordinary if, without any textual mandate to do so, s 12A were interpreted as creating such a new pathway to murder, by combining constructive murder with extended joint criminal enterprise: Mitchell at [101]. If a similar approach is taken to the construction of s 18(1)(a) of the Crimes Act, it leads to the conclusion that an accused's liability for constructive murder could be established by application of the doctrine of joint criminal enterprise but not by the application of the doctrine of extended joint criminal enterprise. On this construction of s 18(1)(a), the constructive (or felony) murder aspect of Sharah would never be available, as it relied on the application of extended joint criminal enterprise to establish liability for constructive murder. In these circumstances, Carruthers J's list of elements in Sharah in relation to "felony murder" based on extended joint criminal enterprise would have no relevance since such a basis for criminal responsibility for murder is not available. This reasoning is consistent with the approach recently taken by Button J in R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202.
17. Furthermore, even if after Mitchell, Sharah did remain binding authority for the proposition that in cases where constructive murder based on extended joint criminal enterprise is in issue, there is apparently contrary or conflicting authority from the same Court. The Court of Criminal Appeal has held in relation to the application of element (iii) for constructive murder identified in Sharah that "it is not apparent that that additional direction [element (iii)] was required": Batcheldor v R [2014] NSWCCA 252 at [79] (Hidden J, Bathurst CJ and R A Hulme J agreeing). It appears that Batcheldor was another case where liability for the foundational offence for the purposes of constructive murder was based on extended joint criminal enterprise: Batcheldor at [80]. Hidden J, proceeding on the assumption that constructive murder under s18(1)(a) could be based on a foundational offence established by relying on extended joint criminal enterprise, confirmed that element (iii) in Sharah was not a necessary element of constructive murder when he continued in that same paragraph: "The complicity of the appellant [in Sharah] in the [foundational] s 98 offence through his contemplation that someone might be wounded, whoever that person might be, whether it might be one person or more than one, and by whatever means, was sufficient to establish his guilt of murder."
18. As has already been noted, in the present case, unlike in Sharah, the Crown does not rely on an offence under s 98 as the foundational offence nor does it rely on extended joint criminal enterprise to establish the accused's involvement in the foundational offence under s 97(2) or to prove the offence of murder. In these circumstances, there is no principle established in any applicable authority, nor is there any requirement derived from the proper construction of s 18(1)(a), for the Crown to prove that the accused had in contemplation any use of the firearm or the knife in order to establish constructive murder.
19. In short, the differences between the factual and legal circumstances in Sharah compared to the present case were so substantial that it would have been appropriate and necessary to distinguish Sharah for the purposes of the present case, even if Sharah otherwise remained binding after Mitchell.
20. For all of these reasons, it was to be concluded that the Crown in this case was not required to prove beyond reasonable doubt as an element of constructive murder the additional element (said to correspond to element (iii) in Sharah) proposed by the accused, namely: "the use of the knife by one of the participants during or immediately before or after the assault with intent to rob in company with a dangerous weapon, was a contingency which the accused had in mind, whether or not the knife was used intentionally and whether or not in furtherance of the common purpose."
21. Comments such as those by Carruthers J in Sharah and Begg J in Johns, to the extent that they remain potentially relevant after Mitchell, can be more appropriately understood as not laying down any general rule as to what elements are required to be proved by the Crown when reliance is placed on constructive murder under s 18(1)(a), but rather as attempts to identify the issues to be determined by the jury in those particular cases in light of the way in which the trials were conducted and the way in which the issues were actually framed by the parties.

Conclusion and ruling

1. In my view, on the proper construction of s 18(1)(a) of the Crimes Act and in the particular circumstances of the present case where the Crown cannot establish beyond reasonable doubt which of the participants in the joint criminal enterprise actually stabbed the deceased, the elements which the Crown must prove beyond reasonable doubt in relation to constructive murder are to the following effect: 1. The accused committed an offence punishable by imprisonment for 25 years by being a participant in a joint criminal enterprise to commit an assault with intent to rob Kevin Kourtis in company when one of the participants was armed with a dangerous weapon, being a shortened .22 calibre rifle (the foundational offence). 2. As part of the joint criminal enterprise to commit the foundational offence, the accused agreed that the foundational offence would, if necessary, be accompanied by force or violence. 3. Kevin Kourtis died. 4. The act causing Mr Kourtis's death was; 1. a voluntary or willed act of the accused or another participant in the joint criminal enterprise; and 2. an act of force or violence done during or immediately after the commission of the foundational offence.
2. Further submissions will be sought from the parties as to the precise terms in which these elements are to be expressed for the purposes of the directions to the jury.

Endnotes

1. IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 at [166] (Gordon J).
2. Batcheldor v R [2014] NSWCCA 252 at [79] (Hidden J, Bathurst CJ and R A Hulme J agreeing) [128]-[132] (R A Hulme J, Bathurst CJ agreeing); 249 A Crim R 461.

Amendments 17 April 2023 - Restriction lifted; Redactions added. 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: 17 April 2023