R v Galas & Ors

2 Section 3A provides:

3A. Unintentional killing in the course or furtherance of a crime of violence

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

3 Robert D'Amico ("the deceased") was shot dead on 2 September 2003 at the house in Tullamarine where the deceased was living with a David Walker. Police investigations led to their interviewing the three accused in November 2003. Each of the three when interviewed spoke of the botched execution of a run-through at the house aimed at obtaining money and cannabis. Four men had been involved, but the fourth had left for overseas and had remained overseas. Items taken along by the four men to achieve the planned run-through included: a gun and other weapons to be used to intimidate; balaclavas to be used to provide disguise; and, bags in which to take away the cannabis. What the accused told the police included: that the front door of the house had been forced in; that the deceased had been told to lie on the floor by the accused Galas who was holding a loaded gun; that the deceased did as he was told; that Galas then set about tying the arms of the deceased behind his back with duct tape; that Galas was still holding the gun as he was engaged in stripping off tape to bind the deceased; and, that the gun discharged. Once the gun was discharged, all four men ran out of the house. Nothing was taken. The deceased died shortly thereafter from the bullet discharged by Galas. The accounts of the three accused were substantially supported by the evidence of David Walker and forensic and other evidence.

4 A "Crown Opening" document was lodged pursuant to Section 6 of the Crimes (Criminal Trials) Act 1999. Paragraph 14 reads as follows:

"Alternatively if the jury are not satisfied beyond reasonable doubt of the intentional murder of D'Amico then the prosecution says all accused are guilty of murder pursuant to Section 3A Crimes Act 1958. Section 3A involves the unintentional causing death of another. The prosecution says unintentional includes in the context of this trial an accidental shooting by GALAS.

The "act of violence" relied upon the prosecution pursuant to section 3A Crimes Act 1958 by GALAS involves:

- having in his possession a loaded firearm (handgun).

- using the firearm to intimidate the deceased, including having the firearm in his hand when subduing the deceased (pushing him to the ground).

- tying the deceased up (whilst the deceased was on his stomach and on the floor) whilst holding the firearm in his hand in close proximity to the deceased.

The totality of particulars alleged by the prosecution forming part of an "act of violence" may alter depending on the evidence given at trial."

5 In each of the Defence Responses lodged of the accused Galas and Muhaidat, it was stated that issue was taken with the allegation that the death of the deceased was caused by an "act of violence" as particularized in paragraph 14 of the Crown Opening. Mr Lindner of Counsel for the accused Galas submitted that the Crown was obliged to elect as to which of the alleged four acts was the foundation of the Crown case.

6 In a further document provided to me, headed "Outline of Crown Submissions", in which references were made to Ryan v The Queen [1916] HCA 13; (1967) 21 CLR 205 and R v Butcher [1986] VicRp 4; [1986] VR 43, this shorter formulation was provided by the Prosecution:

"An act of violence" includes the circumstances surrounding the act which causes death. The act of violence here includes not just the firing of the weapon but taking a loaded firearm to the house for the purpose of an armed robbery, for the purpose of intimidating/subduing the victim, to enable the victim to be tied up, and to hold the loaded firearm in close proximity to the victim whilst in the process of tying him up."

7 In an outline of preliminary submissions prepared by Mr Lindner, this was put: "It is for the prosecution to prove the act causing death, not for the defence to suggest an alternative act (Myers v R [1997] HCA 43; (1997) 71 ALJR 1488 at 1489: "An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of [t]he (sic) specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. (Ryan v R [1967] HCA 2; (1967) 121 CLR 205 at 217-8).""

8 Those last two paragraphs focus on the subject of the required degree of specificity of the act causing death. How specific must be the "particular act"? Can it include circumstances surrounding it? Can a death be seen to be caused only by one act, or can it be by a combination of acts? How specific as to the act must the prosecution case be required to be? In preliminary discussions, I expressed concern, based on my analysis of what had been said in Ryan and Butcher, as to the two extremes, of either insisting on a very high level of particularity, or permitting a very low level of particularity.

9 In the prosecution opening address to the jury, Ms Pullen S.C., who appeared with Mr Walsh of Counsel, said that the act of violence "includes and involves Mr Galas having in his possession a loaded firearm when he was confronting Mr D'Amico, using the firearm to intimidate Mr D'Amico, including having the firearm in his hand when he was subduing him on the floor, pushing him to the ground and tying the deceased up whilst he was on his stomach on the floor, whilst he had the firearm in his hand, in close proximity to Mr D'Amico and having his finger on the trigger."

10 In the opening and closing addresses of defence counsel, the jury was told, put shortly, that it would be an issue for the jury to determine as to what was the act of violence causing death, the defence position being that the act was not as put by the prosecution but was simply the accidental discharge of the firearm.

11 In the closing address of Ms Pullen said the prosecution case was that the act of violence was "the presenting of a loaded firearm to Mr D'Amico and while tying him up and subduing him the firearm discharges". Despite submissions that I should require the prosecution to be more specific, I declined to make any order accordingly.

12 In R v Bekhazi [2001] VSCA 178; (2001) 3 VR 321, Vincent JA said at 332: "...a distinction is recognised in the criminal law between actions and acts. An action in this sense is simply a manifestation of some other process or application of force. An act, on the other hand, derives its character from the physical, perceptual and legal concepts within which an action occurs." I adopt those propositions and would add the comment that it is because of that special character in the criminal law of "an act", that care must be taken in interpreting quotations from authorities, which refer to "particular act" and the like. By way of example, in the judgment of Kirby J in Arulthilakan v R [2003] HCA 74; (2003) 203 ALR 259, there are references to an "immediate act" at 277, an "identified intentional act" at 278 and an "independent act" at 279. In the majority reasons at 264-265 it was said the jury should have been told that, as a matter of law, the "conduct" was capable of being regarded as an act of violence. The "conduct" had just been described as:

"...Escalante presented his knife for the purpose of threatening, or intimidating, or stabbing the owner of the mobile telephone."

13 Like Arulthilakan, Butcher was a stabbing case. At page 56 in Butcher, it was said that:

"...in our opinion, it was open to the jury to find that exhibiting the knife, pointing it at the stomach of his victim when he was only a few feet away, whilst at the same time demanding his money, was an "act of violence..."

The italics are mine. That conclusion was stated after the Full Court had referred to Ryan, a shooting case. In Ryan at page 218, Barwick CJ referred to the inappropriateness of looking at all antecedent happenings because of the lack of requisite precision. He then said:

"The earliest act of the applicant which, in my opinion, could have been selected by the jury as the act causing death was the presentation of the gun towards the back of the deceased after, at the applicant's bidding, he had turned around to enable his hands to be tied behind him."

Barwick CJ then referred to the prospect of the "presentation in the setting of its circumstances" being seen by the jury to have been the cause of death, stressing that the choice of the act causing death was essentially a matter for the jury.

14 In Ryan, Taylor and Owen JJ at 231, referred to the death being caused by a combination of acts, including the loading and cocking of the rifle, failing to apply the safety catch, the presenting of the rifle with the finger on the trigger in circumstances in which an attempt at resistance might well have been expected, and pressing the trigger. Again, the italics are mine. They went on to say that it was impossible to isolate the act of pressing the trigger from the other circumstances and argue that it alone caused the wounding and death.

15 In the circumstances, I was satisfied that it was in accordance with high authority for the issue of what was the act of violence causing death to be left to the jury as it was left, as a combination of acts, and without the prosecution being required to elect to isolate a particular act.