R v IL [2014] NSWSC 1710 | Case summary

Supreme Court of NSW|2014-11-28|Before: Hamill J

JUDGMENT

IL (the accused) is charged with a number of offences. By count 1, the indictment alleges that she manufactured a large commercial quantity of a prohibited drug (6.7 kg of methylamphetamine). Count 2(a) is an allegation that she murdered Zhi Min Lan and count 2(b) is an alternative count alleging the manslaughter of Mr Lan. Counts 3 to 6 are four allegations that she was in possession of prohibited weapons or pistols.
The accused was charged after police and fire fighters attended residential premises at Quarry Road, Ryde ("the premises") in response to a house fire. The accused was present at the premises along with the victim of the alleged homicide. The accused was suffering from symptoms consistent with minor smoke inhalation. Mr Lan had suffered severe burns, was taken to hospital and died some days later. Police and fire fighters discovered that the fire was contained largely, if not completely, within the bathroom of the premises. Next to the toilet there was a gas cylinder which was connected by a pipe or hose to a ring burner. Elsewhere within the premises the police discovered a large number of items consistent with the manufacture of methylamphetamine on a relatively large scale. For reasons that are unexplained, there was no analysis done of the items within the bathroom.
At the conclusion of the Crown case, counsel for the accused made an application that the jury be directed to return verdicts of not guilty in respect of the charges of murder and manslaughter.
The prosecution brings its case of murder on the basis of constructive murder pursuant to s 18 of the Crimes Act 1900 (NSW). To do so, it must also rely on the principle of common purpose or joint criminal enterprise. The learned Crown Prosecutor concedes, fairly and properly, that he cannot establish that the act causing death was the act of the accused and cannot establish, whoever did it, that the act was done with an intention to kill, inflict grievous bodily harm or with reckless indifference to human life.
In essence, and at risk of oversimplifying its case, the prosecution says that the accused and the deceased were jointly involved in the manufacture of a large commercial quantity of drugs (an offence carrying a maximum penalty of 25 years or life), that each was responsible for the other's acts in carrying out that common criminal design and that the fire that killed the deceased occurred in the course of that criminal enterprise. By virtue of principles of common purpose, it need not prove that the accused did the act causing death because she is responsible also for the acts of (in this case) the deceased. By calling into aid the murder felony rule (constructive murder), it need not prove the specific intention ordinarily associated with the crime of murder. Accordingly, the accused is said to be guilty of murder.
The case may be unique in Australian legal history. Neither counsel has pointed me to any case where the prosecution has attempted to establish murder in similar circumstances. Even in the case most closely related on its facts, the foundational offence involved an act of violence (conspiracy to cause an explosion at the Turkish Consulate in Melbourne): R v Demirian [1989] VR 97; 33 A Crim R 441.
The prosecution has drawn my attention to one case, prosecuted in the NSW District Court, where a death from an explosion in a clandestine laboratory resulted in one participant being charged with the manslaughter of the other: R v Dagger (District Court (NSW), 21 November 2012, unrep) (Judge Haesler). I will return to discuss that case but for present purposes I note that (i) the Crown did not seek to rely on the murder felony rule, (ii) the accused was charged with an offence that did not involve specific intention and (iii) the judgment to which I have been referred related to an application to quash the indictment and did not involve the question of whether there was a prima facie case based on the evidence adduced at the trial.

Some relevant legal principles

Before turning to the respective arguments of counsel it is appropriate to sketch at least some of the relevant legal landscape.

The role of the jury and the power to direct a verdict of not guilty

In R v R (1989) 44 A Crim R 404; 18 NSWLR 74, the NSW Court of Criminal Appeal resolved the question of when a trial Judge has the power to direct a jury to return a verdict of not guilty. Gleeson CJ (with whom Maxwell and Wood JJ agreed) rejected a line of authorities that suggested the existence of such a power when a trial Judge formed the view that a verdict of guilty would be unsafe and unsatisfactory. The Court accepted that the narrower view was correct and held that that; "a judge should only direct an acquittal if [they conclude] that there is no evidence upon which a jury properly directed could properly convict. It is sometimes expressed by saying that the question is whether there is evidence on which the accused could lawfully be convicted."
The power to intervene if the verdict in unsafe or unsatisfactory (ie unreasonable and unable to be supported on the evidence) is reserved to the Court of Criminal Appeal.
In a case based on circumstantial evidence, it has been held that the question of whether the Crown has negatived all other reasonable inferences consistent with innocence is a question for the jury, not the trial Judge on an application for a directed verdict (R v JMR (1991) 57 A Crim R 39).
However, the Crown properly accepts that if there is no evidence capable of establishing an essential intermediate fact in the circumstantial case, a verdict of not guilty might properly be directed (T 400).
In R v Staines [1999] NSWSC 1101, Greg James J directed an acquittal where his Honour formed the view that the evidence was not capable of negativing self-defence.

Constructive murder and the principle of common purpose

As I have said, the prosecution relies upon to two different principles of criminal liability, each of which extends the liability of an accused person beyond the ordinary reach of the criminal law. The first of those principles is the principle of constructive murder under s 18, a concept well known to the law as "felony murder". Section 18 provides: "18 Murder and manslaughter defined (1) (a) Murder shall be 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 or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or 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. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only."
The principle is to the effect that if somebody is killed while an accused person commits a crime carrying a maximum penalty of 25 years or life imprisonment, the accused is liable to be convicted of murder even though it cannot be established that the accused acted with the specific intention ordinarily required to establish murder (that is, an intention to kill, an intention to inflict grievous bodily harm, or an act done with reckless indifference to human life). Constructive murder alleviates the necessity for the Crown to prove specific intention. It does not affect the requirement of proof that there be a voluntary act and that the act causes the death of the victim.
The second principle of criminal liability upon which the prosecution relies is the concept of common purpose, or as it is sometimes and interchangeably described, joint criminal enterprise: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 113. As I have said, it is necessary for the Crown to rely on that principle because it is not able to prove that any act of the accused caused the death of the deceased.
The principle was explained in McAuliffe v The Queen (at 114) as follows: "The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose."
In Clayton v The Queen [2006] HCA 58; 168 A Crim R 174; 81 ALJR 439 at [3] the High Court declined an invitation to revisit these principles. The Court reiterated the following principle at [17]: "A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder."

The Crown opening

The learned Crown Prosecutor opened the case on 18 November 2014 and explained the basis upon which the Crown sought to establish the murder charge (T 28-31): "Count 2 is a charge of murder, but it's a very particular charge. It's quite different from what is alleged in most cases of murder. In this case the person who died was Mr Lan, with whom we say she was at least in this joint criminal enterprise. There is a particular name for this sort of a charge, it's referred to either as felony murder or constructive murder, and here, the liability for the charge of murder is based upon the foundation crime for the offence. The foundation crime is the joint criminal enterprise to manufacture a large commercial quantity. In other words, it is a condition precedent to find the accused guilty on count 2 that you must find that she was in a joint criminal enterprise in count 1. That is why the indictment reads that way. Because if you don't find count 1 proved beyond reasonable doubt you don't move to count 2. Because of the principles of joint criminal enterprise where each person is responsible for the acts of the other in it, the accused is responsible not only for her acts but for those of the deceased. Because this is an unusual sort of charge, I am going to give you an example of the way it normally comes before the Court. When I say normally, it's not this case, but just to introduce you to the concept that we are talking about here of constructive murder. Supposing that two people agree that they are going to go to a petrol station at midnight and commit an armed robbery. One of them has the gun, it's loaded, and the other one knows that. They both go together. They go together for the purposes of robbing the store at gunpoint of whatever might be in the cash register. At some stage during the armed robbery the gun goes off and the attendant is killed. The second robber, the one who didn't have the gun, can't turn around and say, not my fault, I did not have the gun, the other person did, because under the principles of joint criminal enterprise, he knew if he went in there for the purpose of committing armed robbery, if he knew that there was a gun, which he could probably see, he knew that it was loaded, it had to be on the cards, all things considered, that the gun would be used during that enterprise. And so he's equally liable as the other one. That is the sort of concept we are talking about here. That is why it's called constructive murder. In this particular case you have got a joint criminal enterprise to manufacture the large commercial quantity. You have got the use of dangerous and flammable chemicals. It's called a clan lab or clandestine laboratory because it was set up for the manufacture of this particular drug. It's in her house. She has got a receipt for acetone. That is the solvent. And you have got in this case, we would say, a place basically unsuitable for the purpose, because it does not have the sorts of equipment, and whatever that you might expect that you would need if you were going to if you could lawfully conduct this operation. So we say that the process of evaporation was occurring in the bathroom because of the burner and the gas bottle. So we say that lighting the burner, and it doesn't matter who lit the burner, begins a process of evaporation; you're applying heat to a body of stuff with a solvent in it; you're entering on the process of evaporation. It is necessarily going to be the case that at some stage the fumes are going to enter the air. The burner is a naked flame; if the vapour can't escape, then it is likely to ignite. The Crown says that in this case the accused knew that the process involved acetone because she purchased it, or at least a quantity of it, she was aware of the fact that the manufacture, certainly in coming in there because of the smell, she was aware of the process happening in the bathroom because it was the only one in the house. It was readily obvious that the whole house had been set up for the purposes of manufacturing. We also say that the risks were known in this case. We're going to ask you to specifically look at the bathroom itself. We're going to direct your attention to a couple of holes in the ceiling, one of which goes right through. There is going to be a suggestion about whether it was open to the weather or whether, in fact, there was an extraction or exhaust fan there. That's a matter that I will be raising with Detective Sergeant Agius who is the first witness. In any event, whether there was a hole there or whether there was an extraction fan there, you might think that the purpose of either of those things was to allow flammable gases to escape, in which case she must have been aware that there was a possibility of the build up of those gases. He dies as a consequence of the fire. We don't at this stage don't know how. The situation is that there was a fire in the bathroom at some stage and you will see that the suggestion is that in order to perhaps smother the fire, a mattress was brought in. It didn't smother the fire, it actually increased it, because of the substance that the mattress was made out of, and you will see the burnt out [remnants] in the bathroom itself. We say that if in all those circumstances you accept beyond reasonable doubt, you come to the conclusion about those matters, then you'll find her liable for the first count. If not, you then move to 2B, which is really a charge of manslaughter. Briefly, this is what is called manslaughter by an unlawful and dangerous act. Essentially here, the manufacture of methylamphetamine is unlawful. It is made, so it is prohibited under the Drugs Misuse and Trafficking Act. We also say it is inherently dangerous because of the process of manufacture which is crystallisation which involves the heating of this solvent and vaporisation and so forth. We would say, again it is a matter for you, that these clan labs or clandestine lab streets set up, if you like, in a residential house, are of their nature highly suspect because they deal in things like flammable solvents. This particular house lacked the sophisticated equipment required to safely manage the process of manufacture. They, for example, used a naked flame. They didn't have proper ventilation. There wasn't any proper storage of chemicals. It was a suburban house, not a properly constituted laboratory. It was, quite frankly, a mess inside. These are the sorts of things you will have to look at and consider on that aspect of whether it was inherently dangerous on that third count."
The Crown's opening statement that the murder count is an "unusual sort of charge" was a masterpiece of understatement. In fact, neither counsel has been able to provide me with any authority in which a co-offender was particularised as the "victim" of a murder charge arising out of the joint commission of an agreed criminal enterprise.
Nor have I been taken to any previous murder case where the prosecution has sought to establish (i) the voluntary act causing death by reliance on the principles of common purpose and (ii) the intention required for liability in murder by calling in aid the murder felony rule (constructive murder).

Demirian, Ryan and US authorities

A somewhat analogous case is the Victorian case of R v Demirian [1989] VR 97; 33 A Crim R 441. In that case the applicant to the Victorian Court of Appeal had been convicted of conspiracy to cause an explosion likely to endanger life (count one) and murder (count two). The deceased and the applicant had conspired together to cause an explosion in the Turkish Consulate in Melbourne. The deceased entered the car park of the building with the bomb with the intention of executing the plan. As he was doing so, and in circumstances that were not clear, the bomb detonated prematurely. The deceased was killed in the explosion. The murder felony rule had been abolished in Victoria and replaced with s 3A(1) of the Crimes Act 1958 (VIC) which provided: "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 life imprisonment 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."
The case at trial had been put in two ways, neither of which relied on s 3A(1). Rather, the case was put on the basis of common purpose and, alternatively, on the basis of what was described by the trial judge as "murder by recklessness". It is unnecessary to dwell on the errors that the Court of Appeal found in the directions other than to note that McGarvie and O'Bryan JJ held (at 105-108) that, because the deceased could not be convicted of his own murder, the applicant could not be guilty as an accessory or principle in the second degree. The accused makes a similar submission in the present case.
Their Honour's discussion of constructive murder came in the context of whether there should be an order for a re-trial. An important part of the Victorian court's analysis in R v Demirian arose from the discussion by Barwick CJ in Ryan v The Queen [1967] HCA 2; 121 CLR 205. In particular, their Honours (at 110) placed reliance on the following passage of the former Chief Justice (at 121 CLR 218): "Whilst, of course, all the happenings of the evening antecedent to the discharge of the gun might be regarded for the purpose of deciding whether some act of the applicant which caused the death of the deceased qualified under one or more of the conditions of culpability for murder which are set out in section 18, they could not, in my opinion, be regarded in the aggregate as the act of the accused causing death. Such a course, in my opinion, not merely lacks the requisite precision, but fails to provide a subject of which one or more of the said conditions or concomitants could be predicated. 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. Thus, at the most, the jury could choose the presentation of the gun in the circumstances or its subsequent discharge as the act causing death."
Their Honours went on (at 111) to refer to White v Ridley [1978] HCA 38; 140 CLR 342 at 352 where Stephen J again "emphasised the importance of identifying the act relied on to constitute the crime".
Before returning to R v Demirian, it is worth remembering the following observation of Barwick CJ Ryan v the Queen (at 219): "I must first observe that no specific attention was paid to the identification of the act causing death. Ordinarily, there would be little need to spend much time on this question. But on occasions, of which the instant case affords an instance, that clearly was not merely the first question to be resolved, but one which required specific and close consideration. The Crown insistence in this case upon 'felony murder', where an element of the felony was a wounding by the accused, considerably underscored this necessity."
I note that comment, not to adopt his Honour's implicit criticism of the Crown in that case. In the present case, it is quite clear that the Crown has no case for murder apart from the possibility of establishing the crime by means of constructive murder. That is because there is no evidence that the accused (or, for that matter, the deceased co-offender) acted with an intention to kill or inflict grievous bodily harm or with reckless indifference to human life. On the contrary, everything points to this being a misadventure, albeit a misadventure in the course of committing a crime carrying a maximum penalty of 25 years or life. However, I paused over that comment by Barwick CJ because it seems to me that this, too, is a case where there is a need identify and focus with real precision upon the act that the Crown seeks to establish as the act causing death. In this case, the act selected by the Crown is the act of lighting the ring burner.
I also observe that in the case of Penza and Di Maria v R [2013] NSWCCA 21, Hoeben JA reiterated (at [159]-[161]) the importance of focussing on the precise act causing death and relied on the seminal reasoning of Barwick CJ in Ryan v The Queen. It is unnecessary to dwell on Penza and Di Maria because it was decided on the basis that the verdict was unreasonable and (at [167]) that the trial judge misdirected the jury by effectively taking away the issue of whether the act causing death was a voluntary act. That case involved a shooting murder and there was a dispute as to whether the accused jointly agreed to commit an armed robbery or whether the victim produced a gun which discharged accidently. However, the reasoning in the case provides a cogent example of the need to focus with precision on the act causing death.
Returning to R v Demirian, I note that it was decided before the decision in McAuliffe v The Queen and Clayton v The Queen. However, it was decided after Johns v The Queen [1980] HCA 3; 143 CLR 108 and the Court made reference to that authority (for example at 116). The case was decided by reference to principles of accessorial liability and agency. The Court quashed the conviction for reasons that are currently not relevant. However, in deciding whether to order a re-trial the Court embarked on an extensive analysis of the murder felony rule and analysed a number of cases from the United States. This occurred because (119): "The only cases drawn to the attention of the Court where a party had killed himself in the course of committing a crime and another party to that crime had been charged with murder as a result, were cases decided in the United States of America."
The analysis is thorough and helpful and I set it out in full: "The cases have to be treated with some reserve because the decisions involve reliance on a form of felony murder rule much wider than the common law rule or the statutory rules which apply in Australia. Some of the decisions depend on statutory provisions or principles of law not applicable in Victoria. The felony murder rule was developed because it was regarded as being in the public interest. It is a flexible and adaptable concept. The cases in the United States provide a useful indication of judicial views upon whether the public interest requires that the law should treat an accomplice as guilty of murder when another accomplice accidentally kills himself or herself during the commission of a serious crime. The case in which it was held that another party to the crime was guilty of murder was Commonwealth v Bolish (No 1) 381 Pa 500 (1955). The prosecution case was that Bolish had instigated Flynn to burn a house. The evidence was that volatile material which Flynn was heating to start the fire exploded prematurely and he was badly burned and died soon after. Bolish was convicted of murder and arson. It was common ground that he was properly convicted of arson. On appeal to the Supreme Court (Pennsylvania) the majority held that the conviction of murder was justified by the law. The majority saw the question as whether the felony murder doctrine applied to the death of an accomplice which resulted from the accomplice's own act in the perpetration of arson (at 509). Authorities were cited for the proposition that where another person is killed in the course or furtherance of a felony not only the person who does the killing but the others taking part in the felony are guilty of murder (at 512-515). The majority took the view that the public interest which required that an arsonist be liable for murder if the fire killed an occupant of the building, a fireman or a member of the public, required the same result where the fire killed an accomplice (at 519). Because there had been unrelated errors at the trial a new trial was ordered. Bolish was again convicted of murder. There was a further appeal and the majority on that occasion upheld the conviction, applying the same principle. Commonwealth v Bolish (No 2) 391 Pa 530 (1958) . In each appeal the majority proceeded on the basis that Bolish was present at the house when the explosion occurred. In each appeal there was a strongly argued dissent by Musmanno J. In People v Ferlin 265 P 230 (1928) the Supreme Court (California) considered a similar factual situation, affirming the trial judge's order for a new trial following the conviction for murder and affirming also the conviction for arson. In deciding that the conviction of Ferlin for murder was wrong the court reasoned that as it could not be seriously contended that the deceased was guilty of murder in accidentally killing himself it could not be said that Ferlin was guilty of murder because of that accidental killing. The court also held that it could not be said that Ferlin and the deceased had a common design that the deceased should accidentally kill himself, emphasising that his death was not in furtherance of the objective of the conspiracy but entirely opposed to it. In comparable circumstances in People v La Barbera 287 NYS 257 (1936) Harris J of the Supreme Court (New York) dismissed a murder indictment. The Penal Law of the State define homicide as the killing of one human being by act, procurement or omission of another. It was held that as the deceased had killed himself it was not the act of another and he did not commit homicide. If the deceased did not commit homicide his associates in crime had not committed homicide. In People v Jennings 52 Cal Rptr 329 (1966) a District Court of Appeal (California) in dealing with a similar case held (at 332): '... that it is not murder for an accomplice to kill himself accidentally while engaged in the commission of the crime of arson, and consequently his principal may not be charged with such offense inasmuch as the act of accidentally killing one's self does not constitute an 'unlawful killing' within the meaning of Penal Code, s 187, particularly in view of the rule that the felony-murder doctrine was enacted for the protection of the public, and not for the benefit of the lawbreaker.' The American cases have been decided in the context of the felony murder rule which attributes constructive malice to those carrying out the felony. As the decisions in Commonwealth v Bolish demonstrate, there was in most jurisdictions little conceptual difficulty involved in extending the felony murder rule to cover the death of a co-felon. The fact that for one reason or another the rule was not so extended in the majority of cases seems to reflect a judicial view that the public interest, regarded as requiring that the rule extend to the unintentional killing of a member of the public, did not require it to extend to the case of a co-felon who had unintentionally killed himself. There is force in the comment made by Norval Morris, borrowing from Cardozo, that cases such as Commonwealth v Bolish illustrate the tendency of a principle to expand itself to the limit of its logic. (1956) 105 University of Pennsylvania Law Review 50 'The Felon's Responsibility for the Lethal Act of Others' at 80, n 127. The policy behind the felony murder rule is stated by P Gillies, Criminal Law, p 494: 'The rationale of the felony murder rule is that it operates to deter people who are minded to commit felonies, when resistance from other people will be encouraged, from resorting to force, or at least it encourages such people to moderate the force used. In short, it affects a situation in which the felon acts at his or her peril. Stephen J explained the justification for felony murder in the case of Serné (1887) 16 Cox CC 311 at 313, thus: "when a person [begins] doing wicked acts for his own base purposes, he [risks] his own life as well as that of others ... If a man begins attacking the human body ... he must take the consequences if he goes further than he intended when he began ...' We agree with the comment of C Howard on the decision in Commonwealth v Bolish: ' ... there can be little doubt that the felony murder rule was never intended to impose responsibility on D for the accidental death of one of his co-felons; and it is difficult to see what purpose is served by such an extension of the law: Criminal Law, p 64.' The fact that Parliament abolished the common law felony murder rule in 1981 and replaced it with s 3A(1) of the Crimes Act, without specifically referring to the killing of one accomplice by another, suggests that Parliament did not see a need for such an extension. The cases have to be treated with some reserve because the decisions involve reliance on a form of felony murder rule much wider than the common law rule or the statutory rules which apply in Australia. Some of the decisions depend on statutory provisions or principles of law not applicable in Victoria. The felony murder rule was developed because it was regarded as being in the public interest. It is a flexible and adaptable concept. The cases in the United States provide a useful indication of judicial views upon whether the public interest requires that the law should treat an accomplice as guilty of murder when another accomplice accidentally kills himself or herself during the commission of a serious crime."
In more recent times, convictions have been obtained in California in not dissimilar circumstances (The People v James (1998) 62 Cal App 4th 244, White v Chrones (D Cal, EDCV 06-329, 21 September 2009), The People v Schaefer (2004) 118 Cal App 4th 893). These cases were not subject to argument and must be treated with the same reserve of which McGarvie and O'Bryan JJ spoke in 1989. They are cases decided under different criminal statutes and in the context of a substantially different legal system. References in the cases (for example, White v Chrones) to "strict liability" and "inherent dangerousness" are difficult to reconcile with the common law and statute law of New South Wales. The offences were described as "second-degree felony murder" which is not an offence known to the law of New South Wales (although the elements appear to fit within s 18).

Constructive murder under s 18 does not require an offence of violence

A peculiarity in the version of the murder felony rule as created in s 18 of the Crimes Act is that the foundational offence is not required to be an offence of violence. This distinguishes it from the Victorian provision [s 3A(1)] considered in R v Demirian and the current formulation of that section which was amended in 1991. It is also a departure from the common law which required the felony to be an offence involving violence or at least to be "dangerous to life and likely in itself to cause death". See also s 302(1)(b) Criminal Code (Qld) 1899 and the analysis of the development of the law in Ryan v The Queen at 240-241 (Windeyer J).
The second reading speech introducing the amendment that led to the omission of the words "of an act obviously dangerous to life" shows that the purpose of the amendment was to foster certainty. The then Minister of Justice said that "three different lines of interpretation have been applied by the courts to this concept, and the committee is unanimously of the opinion that, according to which of these lines is adopted, the concept either unnecessarily increases the Crowns difficulties of proof, or is mere surplusage, or operates with unreasonable harshness against the accused" (New South Wales Legislative Assembly Parliamentary Debates (Hansard), 13 March 1974 at 1355-6).
The New South Wales Law Reform Commission's Report on Complicity [129] (2010) recommended at [5.83] an amendment to s 18 to provide that the foundational offence was one that, viewed objectively, was likely to endanger human life.
The matter was also subject to a detailed discussion in the article "Some Aspects of Constructive Murder in NSW", Button and Babb, (2007) 31 Crim LJ 234. The article details some of the surprising outcomes that could arise in various hypothetical circumstances. As far as I can see, the article did not address the situation where the co-offender was killed as a result of his or her own act. The learned authors said that the law was in "urgent need of reform" but considered "that in the current political climate, that is most unlikely."
The call for reform has been ignored. I approach the case on the basis of the law as it stands. To put it in the blunt but effective language of the learned Crown Prosecutor's written submissions: "... those who engage in the commission of a crime carrying a penalty of 25 years or more should be held accountable for murder if the plan goes wrong. What the legislature is in fact saying is that those who create the conditions that activate this crime have to wear the consequences of having done so, and that is why the Crown does not have to prove intent. There is no element of violence in this offence."

Possible conflict in the authorities as to proofs required for constructive murder

In R v Sharah (1992) 30 NSWLR 292 Carruthers J (with whom Gleeson CJ and Smart agreed) set out (at 297F) the elements required to be proved in a murder felony case where the foundational offence was armed robbery with wounding (s 98 Crimes Act): "As to felony-murder (upon the assumption that the foundational crime was the offence under s 98) 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, F armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun; (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." [My emphasis]
It will be seen, from the emboldened portion of the above passage, that the Court held that a requirement for constructive murder was that the accused adverted to the possibility that the accomplice would shoot the victim. This accorded with the approach taken in R v Johns [1978] 1 NSWLR 282 at 287, 290 (Street CJ) and 294-295 (Begg J). The Court of Criminal Appeal applied the approach of Carruthers J in R v Spathis [2001] NSWCCA 476 [315] (Carruthers J, Hedyon and Smart AJ agreeing) and R v Jacobs [2004] NSWCCA 462; 151 A Crim R 452 at [223]. The Criminal Trials Bench Book published by the NSW Judicial Commission also adopts that approach at [5-1120]. However, the former Chief Justice's Foreward should be borne in mind: "It is appropriate to reiterate that the Bench Book does not contain an authoritative statement of the law." See also the comments of Spigelman CJ in Hong v R [2009] NSWCCA 242 at [31]-[35].
The "[importing] of a limited mental or fault element for constructive murder" was questioned in the NSW Law Reform Commission Report 129 published in December 2010 [5.34]. It has also been the focus of a recent decision of the Court of Criminal Appeal in Batcheldor v R [2014] NSWCCA 252. Hidden J (with whom Bathurst CJ agreed) discussed the authorities and at [79] questioned whether third element set out by Carruthers J in Sharah was required: "However, the issue does not end there. In Johns the focus was upon the complicity of the secondary parties, especially the accessory before the fact, in the murder. The judgments did not deal in terms with the foundational offence of armed assault with intent to rob with wounding. However, in Sharah Carruthers J did address the offence of armed robbery with wounding, as follows (at 297-8): 'In relation to the s 98 count, 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 shotgun; (ii) that during the course of the armed robbery Attard wounded John; (iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur.' This, of course, is in accordance with the statement of principle in the judgment of Street CJ in Johns which I have quoted above. To establish the appellant's guilt of the armed robbery with wounding it was necessary to establish not just that a wounding occurred, but also that the appellant contemplated a wounding as a possible incident of the criminal enterprise. Of course, if that were established his complicity in the murder (on the basis of constructive murder) would necessarily follow."
In his additional comments (with which the Chief Justice also agreed) RA Hulme J explained that it appeared that the element of advertence had been imported into constructive murder from the requirements of proof in the common purposes cases. His Honour made the following comments: "129. It is important to bear in mind that the foundational offence in Johns was armed assault with intent to rob with wounding (s 98 of the Crimes Act). The case is authority for the proposition that on the facts of that case an accessory before the fact, like a principal in the second degree, must be shown to have contemplated the possibility of the principal offender discharging his weapon in order to be liable for the foundational offence. If so, and regardless of whether the discharge of the weapon was intentional or accidental (but as to the latter, see Penza and Di Maria v Regina [2013] NSWCCA 21 at [167]), it would follow that a participant in either of those capacities would be liable for murder on a felony/constructive murder basis. Without foresight of the possibility of the weapon being discharged, the accessory before the fact and the principal in the second degree would not have foreseen the possibility of a wounding and would be not be guilty of the foundational offence, but merely of assault with intent to rob whilst armed (s 97), an offence that does not qualify as a foundational offence for constructive murder. 130. In Sharah, Carruthers J set out the elements of 'felony murder'. (Hidden J has quoted them out at [69].) His Honour cited the judgment of Begg J in Johns but added an element over and above those that were approved in Johns. He held that it was necessary for the Crown to prove all of the elements of the foundational offence and that the appellant foresaw a contingency that during or after the commission of that offence (including the wounding) that the gun would be discharged. For convenience I will repeat the third element (Sharah at 297F): '(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.' ... 132. The resolution of Ground 8 does not depend upon what was said in Sharah. Like Johns, this is a case in which proof of the liability of Ms Batcheldor for the foundational offence was all that was required to establish the mental element for constructive murder. The Crown conceded that there was a deficiency in the directions given as to the elements of the foundational offence. For the reasons given by Hidden J, I accept that this concession was well-founded."
While their Honour's questioned the necessity for the element of advertence, the Court did not specifically overrule the decision in Sharah. Hidden J at [76] said (in a slightly different context) that "the decisions in Johns and Sharah have settled the law in this State". In any event, unless the decision in Sharah is clearly overruled, trial Judges are bound to apply it.
Taking the prosecution case at its highest, there is no evidence capable of supporting an inference that the accused in this case contemplated the possibility that somebody might be injured, let alone that they might die, in the course of the manufacturing process. However, these considerations and this possible conflict in the case law are not determinative of the application in the present case.

The foundational offence in the present case

The foundational offence for the purpose of application of constructive murder in the present case is an offence of manufacturing a large commercial quantity of methylamphetamine. The offence created by s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is the offence of manufacturing a commercial quantity. By s 33(2) this offence carries a maximum penalty of 20 years. However, by s 33(3) where the court is satisfied that the amount of the drug is not less than the large commercial quantity, the maximum penalty is imprisonment for life.
In spite of the statutory framework, the accused concedes that the foundational offence relied upon by the Crown is "a crime punishable by imprisonment for life or for 25 years".
The Crown accepts that it must establish that the accused was aware of the possibility that the manufacture was in an amount exceeding the large commercial quantity. By Schedule 1, a large commercial quantity of methylamphetamine is 1.0kg.

Accessorial and derivative liability

In Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 the respondent (Victorian Director of Public Prosecutions) invited the High Court to "sweep away all of the out-dated distinctions between principals and accessories in favour of a single coherent principle underlying the law of complicity". The High Court declined the invitation at [27] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and [42-]-[43] (Heydon J). Heydon J alluded to the "radicalism of that submission". The whole Court was of the opinion that it was unnecessary and inappropriate to deal with the issue because the appellant's argument failed on other grounds.
The appellant had argued [24] that he could not be guilty of murder based on an "accessorial case" because the Crown had accepted pleas of guilty to less serious offences in relation to the principal offenders. The Court rejected that submission. What the Crown had to prove was not that the principals had been convicted of murder, but that the evidence supported the fact that they were guilty of murder (at [24]). The joint judgment at [22]-[23] explained "the common law distinctions between categories of participation namely principals, accessories before the fact, accessories at the fact [ie principals in the second degree] and accessories after the fact".
A person present at the scene of a crime assisting or encouraging its commission is described as a principal in the second degree or (in earlier times and sometimes still) as an accessory at the fact. The criminal liability of such an offender is derivative and she cannot be guilty of the crime unless the principal is guilty of that crime. As the High Court explained in Likiardopoulos, this does not turn on the conviction of the principal but on the evidence establishing the guilt of the principal offenders.
The principle that the liability of a principal in the second degree is derivative is fundamental and was explained in R v Phan [2001] NSWCCA 29; 53 NSWLR 480 by Wood CJ at CL at [68]: "It needs to be borne in mind that the liability of a principal in the first degree is primary (Osland at para 72) and is not derived from that of another principal, while that of a principal in the second degree is derivative and depends upon the guilt of the principal in the first degree being established; Dunn (1930) 30 SR (NSW) 210 and Osland at p 71."

Mutual drug use and supply cases

Another series of analogous cases are those involving allegations of manslaughter arising from either the supply of drugs or mutual drug use. There is a series of cases in England, and a Scottish case which takes a different approach. These cases were collected and considered by the High Court in the case of Burns v The Queen [2012] HCA 35; 246 CLR 334.
In Burns v The Queen, the accused was convicted of manslaughter in circumstances where she had supplied methadone to the deceased who died after injecting the drug. The Crown case was put in the alternative - manslaughter by unlawful and dangerous act or criminal negligence. The NSW Court of Criminal Appeal dismissed an appeal against the conviction. The High Court quashed the conviction and entered a verdict of acquittal.
French CJ said: "11. There may be a case for specific legislation to cover culpable drug induced homicide. It is undesirable to strain the criteria for liability for involuntary manslaughter at common law in order to cover drug-related deaths at the margins of those criteria. 12. The application of the common law criterion of unlawful and dangerous act to drug supply and injection cases in the United Kingdom has varied and evolved, reflecting the difficulties which particular cases can throw up. R v Cato concerned consensual but unlawful injection of a user which resulted in his death and was sufficient to establish liability without a separate consideration of dangerousness. The consent of the deceased was not a defence and there was no suggestion that it might be relevant to causation. In R v Dalby the accused supplied a drug to the deceased who injected himself. The Court of Appeal identified as a 'difficulty' the fact that the supply of the drug was not an act which caused 'direct' harm. The Court said: 'the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous.' Dalby was 'explained' in Goodfellow as 'intending to say... that there must be no fresh intervening cause between the act and the death.' R v Dias resembled Dalby. The accused had handed a syringe containing heroin to the deceased who self-injected and died. Holding that the supply of the heroin was not an 'unlawful and dangerous act', the Court of Appeal said that the deceased was an adult who could decide for himself whether or not to inject the heroin: 'His own action in injecting himself might well have been seen as an intervening act between the supply of the drug by the defendant and the death of [the deceased].' 13. Dalby and Dias were referred to with approval by the House of Lords in R v Kennedy (No 2) [31]. There, their Lordships said [32]: 'the act of supplying, without more, could not harm the deceased in any physical way, let alone cause his death.' That observation was underpinned by a particular view of the criminal law as generally assuming the existence of free will: 'generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act'. That view was supported by reference to statements by Glanville Williams and Hart and Honoreè, which are quoted in the joint judgment. Exceptions were acknowledged in the case of young people, those not fully responsible for their acts, the vulnerable and those subject to circumstances of duress, necessity, deception and mistake. The exceptions were treated by their Lordships as matters relevant to causation. They were also at least arguably relevant to whether the supply of drugs to another creates, by reason of an attribute or condition or circumstance of the other, "an appreciable risk of serious injury". 14. The House of Lords in Kennedy (No 2) was asked the question: 'When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?' The answer given by their Lordships was: 'In the case of a fully-informed and responsible adult, never.' The absolute character of that answer directs attention to the cautious oxymoron 'never say never'. It is as much applicable to the law as other spheres of life and more so when it relates to an apparently normative statement based upon a narrow factual hypothesis. The joint judgment in this case however applies the proposition, which I accept, that underpins the reasoning in Royall v The Queen: 'that the voluntary and informed act of an adult negatives causal connection'. ... 47. As explained in the joint reasons and noted above, it was not open to exclude as a reasonable possibility that the deceased injected himself with the methadone and that his decision to do so was voluntary. For present purposes therefore, the existence of a duty of care relevant to criminal negligence must be determined on the hypothesis, which cannot be excluded, that the deceased did so inject himself. That possibility, which cannot be excluded, marks a point of distinction between this case and cases in which the accused has created a danger to other people, for example by starting a fire, and thereafter failing to take any steps to remove the danger or warn those at risk of the danger. 48. If the deceased had ingested the drug himself and had rebuffed a suggestion that an ambulance be called, there could be no basis to support a finding that Mrs Burns owed a duty to him. On that hypothesis, which cannot be excluded, the deceased had created the danger to himself. While Mrs Burns may well have been under a strong moral duty to take positive steps to dissuade him from leaving until medical assistance could be called, there was, in the circumstances, no legal duty, breach of which would support a finding of criminal negligence. For these reasons, and the reasons given in the joint judgment, I agree that there should not be a new trial."
Gummow, Hayne, Kiefel and Bell JJ spoke about the issue of causation: "86. The analysis of the causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach. 87. The deceased was a sane adult. It is not suggested that his decision to take the methadone was vitiated by mistake or duress. His ability to reason as to the wisdom of taking methadone is likely to have been affected by the drugs that he had already taken but this is not to deny that his act was voluntary and informed. It was informed because he knew that he was taking methadone. He chose to take methadone not knowing what effect that drug would have in combination with the drugs he had already taken. A foolish decision to take a prohibited drug not knowing its likely effects is nonetheless the drug taker's voluntary and informed decision."

The evidence

The evidence is relatively confined and, in general terms, consists of: 1. The observations and findings made by police and fire fighters at the premises during their search and examination on 4 and 5 January 2013. 2. The results of the forensic and scientific analysis (fingerprints, DNA and chemical/drug) of various items of evidence found during the search. 3. The finding of a sum of money at other premises where the accused was living. 4. Evidence establishing the accused's ownership of the premises and two cars that were parked outside of the premises. 5. Expert opinion evidence as to the possible causes of the fire and conclusions that can be drawn from the chemicals and drugs found at the premises. 6. Statements made by the accused to investigating police. 7. The observations of two neighbours as to smelling unusual odours emanating from the vicinity of the premises.
Twenty six witnesses gave evidence in the Crown case and there are twenty five prosecution exhibits. I have considered all of the evidence and examined the inferences that arise from the material.

Firearms and cash

It is unnecessary for present purposes to detail the evidence relating to the firearms charges (counts 3, 4, 5 and 6). Four items were found at the premises, either within the house or in one of the cars outside, that fall within the definition of pistol (three) or prohibited weapon (one, a 20 round magazine). There are certificates that show that neither IL nor Mr Lan were authorised to own the firearms. The guns that bore serial numbers were not registered. As the owner of the premises or car in which the firearms were located, there is an onus on IL to prove that she did not know (or could not reasonably have known) that the firearms were there or that she was not in possession of the firearms (s 4A Firearms Act 1996 (NSW)).
As I understand it, the residual relevance of the firearms is that they indicate the existence of a criminal enterprise consistent with that alleged by the Crown. A similar inference can be drawn from the finding of a large sum of cash ($346,812.55). Most of that cash was found at the premises but the total also included a significant sum ($16,900) found at IL's residence.

Evidence of drug manufacture at the premises

A forensic chemist, Dr Coghlan, gave uncontested evidence that in his opinion the premises were being used for the final stage of the manufacture of methylamphetamine. In short, the process involved the purification of the base product (which was manufactured elsewhere). The purification was done by means of an evaporation process. The product was placed in a solvent (in this case, acetone) with a little water and heat was applied until the liquid reached boiling point. As the liquid evaporated, impurities were removed and the amount of pure methylamphetamine increased in the substance that remained. After the boiling process the mixture of solid and liquid was allowed to cool, seemingly to room temperature and then in a fridge in the kitchen. The solid was then drained from liquid or removed by using a sieve or similar item. It was then allowed to dry.
The evidence that the premises were being used for drug manufacture is extremely strong. The issue does not seem to be in contest. In point form, the material located at the premises included: 1. In excess of 6 kg of methylamphetamine in solid form (crystals, salts or powder) in varying purities. Dr Coghlan said that where the purity of substance was high (over 80%); it suggested that the substance had gone through the extraction or evaporation process. Where the substance was of low purity (below 20%); it suggested that the substance was yet to undergo the purifying evaporation process or (in one case) that the purified substance had been "cut" in preparation for sale. 2. Evidence of more than 70 litres of acetone. Most of this was comprised of empty (already used) tins and bottles of acetone. There were a few full (unused) bottles remaining but most of the solvent had already been used. 3. Various receptacles containing a combination of liquids and solids. When drained the solids contained a percentage of methylamphetamine which varied from item to item. Some (those with low purities of the drug) indicated that the process was in its early stage with heat yet to be applied. Others (those with a high purity of drug) suggested that the process had already occurred and that the substance was in the process of cooling. 4. Various liquids also tested positive for low purities of methylamphetamine. The presence of methylamphetamine suggested that these liquids had been used in the evaporation process. 5. A number of utensils that would typically be used in the extraction process. These included large metal pots, sieves, a Buchner funnel and associated vacuum flask and pump, plastic buckets, latex gloves, thermometers and a gas burner. There were also chopsticks, which can be used to control the boiling process. Many of these items were found with the liquid and/or solid substances containing methylamphetamine.

Evidence connecting IL to the drug manufacture

The evidence allows an inference to be drawn that IL was somehow involved in the manufacturing process. This evidence includes: (i) Her ownership of the premises. (ii) Her presence at the premises at the time of the fire. (iii) A Bunnings Warehouse receipt dated 1 January 2013 was found in a Prada handbag containing personal items connected with IL. The receipt included the purchase of two 4 litre containers of Acetone. (iv) DNA was located on a latex glove found within the premises which contained a mixture of DNA. IL could not be excluded as the minor contributor to the mixture of DNA on the glove. (v) The material associated with the manufacture was throughout the house. The Crown says that it would be difficult, if not impossible, for a person present at the premises to be oblivious to the process.

Evidence of drug manufacture in the bathroom

The evidence showed that there was a gas bottle and gas burner in the bathroom along with a pot containing a liquid. For reasons which are unexplained, the pot and the liquid were not subject to analysis.
Dr Coghlan gave evidence that he was "unable to say what process was occurring in the bathroom".
The Crown says that the evidence of the other things found in the house, and the unusual circumstance that there was a gas bottle and burner in the bathroom, allows the jury to draw an inference that something was happening in the bathroom that constituted part of the manufacturing process. He relies, amongst other things, on the evidence of Dr Coghlan that "we find gas burners all the time at labs".
While I accept the Crown's submission, the fact is that the failure to test the items in the bathroom is a remarkable and significant oversight on the part of the investigators. The Crown Prosecutor suggested (T 398) that "it seems that there was, to put it kindly, a misunderstanding between two different agencies as to who was to assume responsibility for this."

Evidence of the cause of the fire or explosion

There is a similar lack of evidence in relation to the cause and origin of the fire. After the Crown Prosecutor referred to the misunderstanding between the agencies he went on (T 398) "your Honour will see I think on the firsthand that Spouszta, who was the Fire Officer, didn't do the excavation he must have assumed the police were, and I think vice versa." An excavation is a forensic process whereby layers of the debris within a fire site are removed layer by layer "so that you can find the lowest level of burning and identify any other pieces of evidence that may indicate what the cause of the fire was" (T 228). This was not done in the present case.
The first witness in the trial was Detective Sergeant Agius. He gave evidence of the inspection he carried out at the premises on 5 January 2013. A folder of photographs that he took became exhibit A. Based on his experience in investigating fires, he gave evidence of his opinions as to the possible processes and cause(s) of the fire. The centrepiece of his evidence was (T60-61): "My opinions and conclusions are as follows: The fire commenced in the bathroom. It is unable to be determined what process caused the ignition of the fire due to the numerous possibilities. These possibilities include, but cannot be limited to, heat from the ignited gas ring igniting an object, ignition of vapours by the gas ring, ignition of vapours with the lighter, ignition of vapours by spark caused by an electric fan or a part arc in the light switch. ... In my opinion there is no evidence to suggest a vapour or gas explosion. I'm unable to determine if the fire is accidental or deliberate."
In terms of the process that caused the ignition of the fire, Mr Agius said "there were numerous scenarios that could not be excluded" (T67). He went on (T69-72): "Q. Now, I'm going to take you to the last page of your statement, this is part of paragraph 38, sergeant, where you raise a number of possibilities? A. Yes. Q. About the fire. The first is that the ignited gas ring ignited an object? A. Yes. Q. That's, I suggest to you, on the very top of page 22? A. Yes. Q. Is that so? A. Yes, that's correct. Q. The gas ring that we're talking about, that is the one on the floor? A. Yes. Q. On which when you come in there's a pot and so forth? A. That's correct. Q. Is there any evidence then that has ignited any object there? A. There were objects surrounding that gas ring, being the plastic bucket and various other items which can't be excluded from being in that close proximity to it, just due to the fact mattress placed on top and removed items and there was debris, but there was nothing that excluded that possibility. Q. If the mattress was brought in for the purposes of smothering the fire, then it may be, may it not, that things were moved slightly where they were in the bathroom? A. That's correct. Q. The second possibility that you give is the ignition of vapours by the gas ring? A. Yes, that's correct. Q. So basically we're saying both that first one and the second one, the gas ring is on, it is burning? A. Yes, that's correct. Q. The third possibility that you give is ignition of vapours with the lighter. Do I assume when you use the term "lighter" that you're referring to that gun on the floor in the shape of a gun but it is a lighter? A. That's correct. Q. Does this possibility that you raise there presume, in fact, that then the burner is not on; it's off? A. It may have not been ignited, yes. Q. Is that because, I mean, in terms of the burner itself, are you able to give me some sort of idea about the diameter of it? A. It was about 38, 35 centimetres in diameter. Q. Does that mean that if it were on, that would be the primary source of ignition? A. Yes. The burner itself did exhibit on a sign on it, saying it had auto ignition; although when I tested that, it wasn't operating again but that could have been due to exposure to high heat and fire in general. The large amount of the water in the environment and debris could have contaminated and stopped that feature from working, so. Q. So lastly, you raise two possibilities, and I will just read it here, there is ignition of vapours by spark arc, you put in brackets electric fan arc in light switch; correct? A. Yes. Q. So we understand what you mean by that, the electric fan, what you're referring to then, what we have previously been discussing as being on the floor of the bathroom, that thing that has fallen down? A. Yes, that's correct. Q. Parting arc and a light switch, does that mean the light switch that turns the light in the room on and off? A. Yes, that is correct. Q. In terms of those possibilities, for either of them to be the case, are you making an assumption or not that the gas burner is off? A. Yes, I am. And I am also assuming that there's vapours within the room from a volatile liquid that could have been ignited. Q. In terms of the light switch itself, I don't think that we have a photograph of that in the series that you have taken there? A. No, there isn't. Q. Can you, for the record, tell us where it was located. A. It was a two gang switch, means it had two switches on it and it was located on the, looking at the door jam from the outside, on the right hand side, standard type sort of midway. Q. So it's on the inside of the bathroom? A. Yes, on the inside. Q. Did you examine it at all? A. Yes I did. I did look at the light switch. Q. I will come back to that. The other possibility that you raise is some sort of a spark in the electric fan, that is the exhaust fan that is in the cavity in the roof; right? A. Sorry, can you repeat that question? Q. The other possibility you have raised here concerns the electric fan, the exhaust fan as I understand it that you are saying was in the ceiling, in that rectangular cavity? A. That is correct. Q. If either of those possibilities were the case, would you expect to see any evidence of it? A. I would, if the light switch was an ignition point, I would have expected to have found some thermal damage to the light switch itself. And more than likely evidence of a vapour sole explosion. Although, you can have an ignition of vapours without an explosion. Just a quick - where the vapours reach their flash point where they are ignited. So I didn't see any signs that that was there, but I can't exclude that. Q. You are only talking now about the light switch, or about the fan as well? A. In regards to the damage to the fan, it suffered thermal damage from being up high within the compartment, where the heat is going to naturally accumulate, because hot air rises, hot gases rise, which is going to cause thermal damage to that fan. So any evidence that that had been an ignition point is going to be destroyed by that thermal damage through the progression of the fire. Q. In terms of the light switch being a possible cause, that is the arcing there? A. Yes. Q. How likely or unlikely is that scenario then in your view? A. In my view, based on what I saw, I think it's highly unlikely that that was an ignition scenario. Q. Does that translate into any percentage, or something like that? A. In my experience, and from what I know about compartment fire investigation and electrics playing a part in that, I would say probably less than a 5 per cent chance in this ignition scenario. Q. What about the electric fan or the exhaust fan? A. Again based on the absence of evidence of a vapour explosion, seeing that it's highly mounted, you would have needed a for the room to have a higher level of vapour for it to encapsulate the whole compartment. I think it's a highly unlikely scenario that that has occurred. Q. Does that have the same percentage attaching to it or not? A. Probably lower. Less than 5 per cent."
In cross-examination (T79) he was asked: "Q. Detective, you didn't observe any evidence that the gas ring burner was lit prior to the ignition of the fire; correct? A. Not that it was alight, no."
He was also cross-examined about the possibility of a gas leak causing the fire (T79): "Q. In paragraph 31 of your statement you say: "The LPG tank valve was loose and felt to be partially open"? A. Yes. Q. Well was the tank valve itself loose? A. The valve knob would probably be a more accurate description than as in the control knob that opens the valve and closes it, and felt loose. It wasn't firmly shut. Q. But as a general proposition, loose gas fittings are potentially dangerous, aren't they? A. The actual knob being loose, I don't think would be dangerous. If the valve itself was loose in the body, yes gas could escape, but in this case the knob itself was loose and, as in my meaning, it wasn't firmly shut. Q. Can that partially loose valve result in gas leaking from the LPG tank without being ignited? A. In this case, it would gas would have been it wasn't firmly shut, so gas would have been travelling through the hose to the ring. And yes, gas could escape from that ring without being ignited. Q. And can it ignite without the intervention, without any human act, for example an electrical fault? A. It can, but it's very uncommon."
A photograph of the control of the gas unit (Ex A, photograph 73) is ambiguous as to whether the unit was on or off. Using a clock face to describe the photograph, the "off position" is at 12 o'clock while the "on" position is at 9 o'clock. The switch is at around 11:45. It is clearly not in the "off" position but it is closer to that position than it is to the "on" position. Mr Agius was asked about this: "Q. Back to photograph number 73 Detective, the control knob, as you have told us is situated slightly left of the 'off' position? A. Yes, that's correct. Q. Detective, did you conduct any tests of the ring burner to see if gas would flow past the control knob to the element with the knob slightly left of 'off'? A. I didn't on this specific burner. It had been exposed to hazardous materials and asbestos, so I couldn't conduct experiments on this burner, although I have tried various other burners, and until the ring is in the total 'off' position some gas will still exit the burner."
The first fire fighters into the premises were Scott Tipping and Christopher Hughes. Mr Tipping gave evidence that he saw "a cooking pot with an unknown substance in it, well alight next to a gas cylinder" (T207). The pot can be seen in photographs 67-68 in Ex 1. Mr Hughes said he could see no fuel sources other than the gas cylinder (T224).
Benjamin Spouszta is a fire investigator with Fire and Rescue New South Wales. He did not enter the bathroom to undertake an excavation of the site to determine the cause of the fire (T228). He gave evidence as to various departures from safety standards and (T231): "Clandestine drug laboratories by their very nature are highly volatile and likely to ignite in a variety of normally benign environments. Accidental ignition is far more likely in these circumstances than what would normally be found within a properly regulated commercial or domestic situation."
None of the evidence is capable of establishing that the fire or explosion was a deliberate act on the part of either the deceased or the accused. The evidence of their respective injuries suggests that it was the deceased, rather than the accused, who committed the act or omission that led to the fire. As to that matter, it is the Crown case that the act causing death was the lighting of the ring burner (T 30, 394, 400).
There is nothing in the evidence that would allow an inference to be drawn that the fire was deliberately set. It was, on any rational view of the evidence, a misadventure caused by incompetence or carelessness on the part of the deceased and/or the accused.

Directed verdict of not guilty: murder

The starting point, as has been emphasised in cases such as Ryan v The Queen and Penza and Di Maria, is to identify with precision the act that the jury might find caused the death of Mr Lan. Ultimately, that is a jury question. However, it is not sufficient simply to put the case on the basis that "the whole conduct of the [accused] from the inception of [her] exploit as the act causing death" (Ryan at 220; Royall v The Queen [1991] HCA 27; 172 CLR 378 at 386 (Mason CJ)).
In the present case, the Crown Prosecutor identifies the lighting of the ring burner as the act causing the death. Of course, there is a preliminary problem arising from the evidence of the Crown's own expert that he cannot say whether the burner was in fact alight. That, in itself, may be sufficient to compel a directed verdict. However, I will proceed on the basis of an acceptance of the Crown's submission that the jury might draw an inference that the burner was alight in spite of the evidence of Mr Agius.
The Crown concedes that it cannot establish who (if anybody) lit the burner. In other words, the case will be put to the jury on the basis that it may have been the deceased himself who lit the burner. Once this is accepted, the question that arises is whether the act of the deceased can be attributed to the accused and on what legal basis.
The Crown says that it is as simple as applying principles of common purpose or joint criminal enterprise. In other words, if the act of lighting burner was an act in furtherance of the common purpose, the accused is criminally responsible for that act. The defence says that, once it is accepted that the act causing death was the act of the deceased himself (or that this possibility cannot be excluded), the criminal liability of the accused for murder is derivative and, because the deceased cannot be guilty of his own murder, the accused cannot be guilty as a principal in the second degree.
There is a flaw in the Crown's argument concerning the applicability of the principles of common purpose. In McAuliffe v The Queen the High Court explained the operation of the principle. The liability of one offender for the actions of the other was not put as an open-ended proposition whereby each is simply held to be responsible for every act committed by the other. Rather, it was explained (at 114): "If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission."
In this case, the crime of which IL is alleged to be guilty is the crime of murder. It cannot be said that the deceased did all those things necessary to constitute that crime in accordance with the agreement.
The Crown eschews reliance on what was described in Clayton v The Queen (at [14] and [20]) as "extended common purpose" (which makes the parties to the agreement liable for "any other crime falling within the scope of the common purpose" (McAuliffe at 114). The Crown says that it is unnecessary to rely on that principle because the act of lighting the burner was an act done in furtherance of the agreement to manufacture drugs. In any event, for extended common purpose to apply, it is necessary to establish "foresight of the possibility" that the other party would act with the requisite intent to commit the crime (in this case murder or manslaughter) said to be within the scope of the common purpose. That is clearly not this case.
I accept the submission of Mr Pontello that the criminal liability of the accused is derivative. Properly analysed, if the accused is liable for murder, she is liable as a principal in the second degree. That is, she was present at the scene and (allegedly) "aiding and abetting" the commission of the crime (of manufacture). The deceased could not be convicted of his own murder. The offence of suicide was long ago abolished and there is no evidence capable of establishing that he acted with the requisite specific intent. This approach accords with the approach taken by the Victorian Court of Appeal in R v Demirian.
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 accused cannot be established.
As Mr Pontello submitted (T 388-390, 402), the structure of s 18 may also be important. The first reference to "the accused" in s 18 is in reference to the act causing death. Thus, the act must be hers (or one for which she is responsible by operation of the law). When the accused is mentioned in the constructive murder part of the section, the reference is to an act done "by the accused, or some accomplice with him or her". Mr Pontello submitted (T 402): "I make the submission again that where the accused is first referred to in s18 as having committed the act [causing] the death charged, that means the accused committed the act either himself or herself, or pursuant to common law principles of complicity as discussed."
I do not accept that the combination of principles of common purpose and constructive murder work together to make IL 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.
I have reached the conclusion that there is no evidence capable of establishing the charge of murder. Accordingly I propose to direct the jury to acquit.
In those circumstances, it is unnecessary for me now to deal with the second part of the accused's submission, which concerns the question of causation. I will deal with that in considering the application for a directed verdict on the alternative charge of manslaughter.

Directed verdict: manslaughter

The Crown's case for manslaughter is based on an allegation of manslaughter by unlawful and dangerous act. The elements of this form of the offence have been discussed in cases such as Wilson v The Queen [1992] HCA 31; 174 CLR 313 and The Queen v Lavender [2005] HCA 37; 222 CLR 67. The relevant act causing death must be both unlawful and also dangerous. Dangerousness is an objective concept. It must be established that, objectively, the act carried with it an appreciable risk of serious injury (see Wilson v The Queen at 333 (Mason CJ, Toohey, Gaudron and McHugh JJ)).
The Crown relied on the judgment of Judge Haesler SC in R v Dagger. However, that was an application to quash an indictment or to permanently stay the proceedings. Different considerations arose. His Honour noted (at p 14) that there was only a limited amount of factual material before him and (at p 15) contemplated a number of possibilities that might arise once the evidence was adduced. These included, at one extreme, that the deceased was solely responsible for the manufacture and (thus) his own death and, at the other, that the deceased was simply a casual visitor to the premises. I also agree with Mr Pontello that the reference (at p 9) to R v Cramp [1999] NSWCCA 324; 110 A Crim R 198 as authority for the proposition that "ordinary principles of joint criminal enterprise can make one co-offender liable for the acts of another even if the co-offender suffers as a result of his own action" is inapposite, if not misconceived, in a case such as the present. The so called "co-offender" (deceased) in R v Cramp was a 16 year old who the appellant provided with alcohol and encouraged to drive at excessive speed. She was not the "fully-informed and responsible adult" of whom the House of Lords spoke in R v Kennedy (No 2) [2008] AC 269. In R v Cramp, the appellant was not liable for conviction of manslaughter on the basis of the child's act but because of his acts in allowing her to drive, in encouraging her to speed and in providing her with alcohol. I am unable to derive very much assistance from the judgment refusing to stay the indictment in R v Dagger.
In the present case, the prosecution alleges that the accused and the deceased were together involved in an activity that was unlawful and objectively dangerous. It may be that to establish the charge of manslaughter, the Crown does not need to focus with such precision on the act that gives rise to derivative liability for constructive murder.
However, even accepting that to be so, if the act causing death was the act of the deceased, a question arises as to causation. Earlier in this judgment, I outlined the circumstances in which the High Court entered a verdict of acquittal in the case of Burns v The Queen. In the present case, the accused submits that the act relied upon by the Crown was an act that was committed by the deceased himself. It is more correct to say that the learned Crown Prosecutor concedes that it cannot prove who committed that act.
Again, I will put to one side the deficiencies in the investigation of the cause of the fire and the activity in the bathroom and the problems in proving that the burner was alight at the time of the fire (as to which see above at [68] and the cross-examination of Mr Agius at T 79).
In Burns v The Queen, the joint judgment noted at [88]: "The Crown submitted that the appropriate consequential order was for a new trial at which it should be permitted to present a case on manslaughter by unlawful and dangerous act based on the appellant's alleged complicity in injecting the deceased with methadone. This appeal is not the occasion to consider the responsibility for manslaughter, of a person who assists an adult at the adult's request with the administration of a prohibited drug. Nor is it necessary to consider whether the Crown should be permitted to run a new case relying on a different unlawful act. This is because the evidence at the trial was not capable of establishing the appellant's complicity in injecting, or assisting to inject, the deceased with the drug. The Court of Criminal Appeal's conclusion to the contrary was based upon a misunderstanding of a concession made by the appellant".
Their Honours went on (at [90] and [92]) to explain that the evidence as to how the methadone was taken was unclear. It those circumstances it was not appropriate to order a re-trial to allow the Crown to conduct a case that was different to the case presented at trial. This was not because of the unfairness in allowing that course but because the evidence would not have permitted a finding that the appellant and the deceased had acted together in injecting the methadone.
The joint judgment at [81] noted the reference by the House of Lords (in R v Kennedy (No 2) at 275) to the following observation of Professor Williams in his article "Finis for Novus Actus", Cambridge Law Journal, Vol 48 (1989) 391 at 392. "I may suggest reasons to you for doing something; I may urge you to do it, tell you I will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before."
Their Honours concluded at [86]: "The analysis of the causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection. Absent intimidation, mistake or other vitiating factor, what an adult of sound mind does is not in law treated as having been caused by another. The introduction of the concept of the predictable response of the sane adult actor would radically change the rationale for and the nature of the causal inquiry. Neither party invited this Court to endorse that approach."
While it is open to the jury in the present case to find that the act of the deceased was an act in furtherance of the common purpose alleged by the Crown, there is no evidence to suggest that the accused and the deceased acted together in lighting the burner. The case is not analogous to the situation (not resolved by the High Court) 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 the deceased that caused his own death. There is no evidence that the deceased was not acting voluntarily. There is no evidence that he was other than a fully informed and responsible adult.
I have therefore concluded that there is no evidence capable of establishing the guilt of the accused in relation to the alternative charge of manslaughter and the jury will be directed accordingly.

Post script

Since delivering this judgment on 2 December 2014, I have formed the view that the causation issue that led me to direct a verdict of acquittal in relation to the manslaughter charge is equally applicable to the murder charge. This point had been made in a footnote in Mr Pontello's helpful written submissions and his submission was directed to both forms of homicide charged in the second count. The High Court's decision in Burns v The Queen arose in relation to a manslaughter charge but was not restricted to cases of manslaughter (see [86] where the joint reasons referred to "the analysis of causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection.").

Amendments 14 February 2017 - summary, coversheet and paragraphs [1], [56], [50] and [80] - replaced accused's name with "IL" 14 February 2017 - paragraphs [57] and [60] - replaced accused's name with "IL" 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: 08 December 2022

(Crimes (Appeal and Review) Act 2001(NSW)

(2007) 31 Crim LJ 234

R v IL

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