R v DJD and Murdoch

Additional comments

Finally and for the sake of completeness, given the submission originally made on this application, the following additional observations can be made.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.
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.
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.
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.
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.
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."
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.
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] .
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".
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.
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.
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.
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."
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."
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.
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.
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."
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.
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.
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."
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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (15)

Cited By (3)