It is necessary to identify the case the Crown sought to make at trial. Obviously, what follows ought not be taken as representing any findings of fact; the facts as stated are those asserted by the Crown in the evidence in the trial, drawn largely from an uncontentious Summary of Trial prepared on behalf of the Director.
All offences were alleged to have been committed in January 2013. The Crown alleged that the respondent and Mr Lan were jointly engaged in a criminal enterprise of the unlawful manufacture of a large commercial quantity of methylamphetamine in a house in Ryde. Part of the manufacture took place in a bathroom in the house. Early in the morning of 4 January there was a fire in the house, almost completely contained in the bathroom, where a gas cylinder was connected by a pipe or hose to a ring burner. The central knob of the ring burner was slightly to the left of the "off" position. The valve of the gas cylinder to which the ring burner was connected was loose, and appeared to be partially open. On the ring burner was a cooking pot containing a liquid substance which, on the Crown case, was methylamphetamine or a substance proposed to be made into methylamphetamine. On top of the cooking pot was a burning mattress. Also in the bathroom was a pistol-shaped cigarette lighter. The respondent was present in the house, as was Mr Lan, who was naked and severely burned. The respondent attempted to prevent police officers opening the front door of the house.
Mr Lan was taken by ambulance to hospital, where he died on 14 January. The medical cause of death was severe hypoxic brain injury caused by smoke inhalation, or burn wounds (causes of death given variously by different medical practitioners).
The only evidence of the cause of the fire was that given by Detective Sergeant Agius, of the Forensic Services Group of the NSW Police Force. Detective Sergeant Agius was not able to say with certainty that, prior to the fire, the ring burner was lit. That the valve of the gas cylinder was loose indicated that gas could escape from the ring without it being ignited. However, ignition in those circumstances without human intervention would be very uncommon.
Detective Sergeant Agius was not able to determine the cause of the fire. That was, in part, because of the introduction of the mattress, which he assumed to have been brought in, after the fire had begun, with a view to stifling or smothering, or at least impeding the spread of, the flames. Although he was unable to determine the process that started the fire, he canvassed several possibilities. These included (but were not limited to):
heat from the gas ring igniting an object (on the assumption that the gas ring had been ignited);
ignition of vapours by the gas ring (again, on the assumption that the gas ring had been ignited);
ignition of vapours with the cigarette lighter;
ignition of vapours by a spark caused by an electric fan or by a spark from the light switch.
Detective Sergeant Agius considered that there was a less than 5 per cent chance that the last of these explained the fire. There was no evidence that the cause was an explosion of vapours or gas. Although Detective Sergeant Agius acknowledged that there was no observable evidence that the ring burner was alight prior to the fire, it is a clear inference from the opinions he expressed, and from all of the circumstances, that that was the case. I will proceed on the basis that the ring burner was ignited, and that either the first or the second of the alternatives above was the cause of the fire, and that the ignition was the result of some human act. The act of igniting the gas ring was therefore the act that ultimately caused Mr Lan's death. It is of some significance (as will later appear) that this was the act upon which the Crown relied, for the purposes of the counts of murder and manslaughter as the act causing death. The Crown was not able to say, with any degree of certainty, who had actually done the act that ignited the burner. It was a fair - indeed, virtually inevitable - inference that it was either the respondent or Mr Lan. But that was as far as the Crown was able to go in fixing the actual responsibility for the ignition on one or the other of the participants in the criminal venture. There was, importantly, no evidence on which it could be concluded beyond reasonable doubt that the act of igniting the ring burner was that of the respondent. Indeed, having regard to his injuries, it is more likely that it was Mr Lan who took the step that caused the ring burner to ignite. It is appropriate to signal here that the inability of the Crown to prove that it was the respondent who ignited the burner is of fundamental importance to the Crown case on murder and manslaughter, and to the issues in this appeal. If the Crown could prove that the act of ignition was done by the respondent, the case against her would be a relatively simple one of constructive murder, or of manslaughter by an unlawful and dangerous act. The significance of the Crown's inability to prove that critical fact will be discussed below.
Expert evidence was given in the Crown case of the process of manufacture used in the premises. It is not necessary to go into the detail. It is sufficient to say that the process involved dissolving, in acetone and over heat, a substance containing a low level of methylamphetamine, for the purpose of extracting the methylamphetamine. Acetone is a flammable solvent. Heating flammable solvents generates flammable vapours which expand to fill a space. Once the concentration of vapours reaches an ignitable level it can explode if initiated by ignition. A combustible gas mixture, such as acetone in the air, can be ignited by a spark from electrical appliances, or by naked flames. The concentration of vapour depends, in part, on the space available; hence, an ignitable concentration is likely to be reached more quickly in a smaller space. In the experience of the expert, explosions or fires in clandestine methylamphetamine laboratories are usually caused during the evaporation of a flammable solvent.
It is unnecessary to detail the evidence that implicated the respondent in the drug manufacturing enterprise, or the firearms possession, which resulted in her conviction on those charges.
[2]
The appeal
To explain how the Crown case on appeal was put, it is necessary to begin by mentioning some legal principles, statutory and common law.
[3]
Murder
Section 18 of the Crimes Act 1900 (NSW) defines murder as follows:
"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."
There are, therefore, in s 18(1)(a), four categories of murder. Three of the categories are defined by reference to the state of mind of the accused person at the time of the act or omission that causes death: that is, murder is committed when the act (or omission) causing death was done (or omitted):
(i) with reckless indifference to human life;
(ii) with intent to kill;
(iii) with intent to inflict grievous bodily harm,
For the purposes of this case, those three categories of murder can be put to one side.
The fourth category is different. An act that causes death is held to be murder when the act (or omission) is done (or omitted) by the accused or an accomplice of the accused, in the course of the commission or attempted commission, or immediately after the commission, of a crime punishable by imprisonment for life or for 25 years. This is an offence formerly known as "felony murder", more commonly now known as "constructive murder". In cases of felony murder or constructive murder it is usual to refer to the crime in relation to which the death occurred as "the foundational crime". I will adopt this terminology.
[4]
Manslaughter
Two categories of manslaughter are recognised by the criminal law: voluntary manslaughter and involuntary manslaughter: Wilson v The Queen [1992] HCA 31; 174 CLR 313; Lavender v The Queen [2005] HCA 37; 222 CLR 67; Lane v R [2013] NSWCCA 317.
Voluntary manslaughter plays no part in the present matter. It can be put to one side. Involuntary manslaughter, in turn, is of two kinds - manslaughter by criminal negligence, and manslaughter by an unlawful and dangerous act. It is the second of these upon which the Crown relies. In order to qualify as an unlawful and dangerous act for the purposes of this category of manslaughter, it is necessary that the act causing death be:
unlawful - that is criminally unlawful; and
dangerous, in the sense that, objectively, it carries with it an appreciable risk of serious injury.
Whether an act causing death is dangerous in the requisite sense, as explained in Wilson, for the purposes of this category of manslaughter, is a question to be determined by the jury. Whether the act asserted by the Crown as the act causing death is unlawful in the requisite sense is, of course, a matter for direction by the trial judge.
[5]
Joint criminal enterprise
The law of criminal complicity has its complexities, which, in Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 the High Court was invited (but declined) "to sweep away" ([27]). For present purposes, the relevant principles were stated in Johns (TS) v The Queen [1980] HCA 3; 143 CLR 108 and restated in McAuliffe v The Queen [1995] HCA 37; 183 CLR 108, and adopted in Likiardopoulos.
The statements of principle in Johns are succinct. Barwick CJ said:
"… The participants in a common design are liable for all acts done by any of them in the execution of the design which can be held fairly to fall within the ambit of the common design. In deciding upon the extent of that ambit, all those contingencies which can be held to have been in the contemplation of the participants, or which in the circumstances ought necessarily to have been in such contemplation, will fall within the scope of the common design."
Mason, Murphy and Wilson JJ said:
"The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability."
The statement of principle in McAuliffe is as follows:
"12 The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime … 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 … 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.
13 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 …" (internal citations omitted)
Those principles were affirmed in Gillard v The Queen [2003] HCA 64; 219 CLR 1 and Clayton v The Queen [2006] HCA 58; 231 ALR 500. The plurality in Clayton (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ) said:
"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." (italics in original, internal citation omitted)
The second quoted paragraph from McAuliffe, and [17] of Clayton state the doctrine known in Australia as "extended joint criminal enterprise" which involves fixing a participant in a joint criminal enterprise with liability for offences committed by one participant that were not within the common intention, where the possibility of such an offence was within the foresight, or contemplation of the other participant (or participants).
That doctrine (extended joint criminal enterprise) does not arise for consideration in the present case. An understanding of the principles stated in Johns is sufficient. I mention the extension merely to emphasise that, in this case, there is no allegation of an offence over and beyond that (drug manufacture) being committed by either of the participants.
[6]
The murder count
It is only the category of murder known as constructive murder that is applicable to the present case. (I have mentioned the other categories in order to explain a distinction to be drawn between certain of the authorities on which reliance was placed both before the primary judge, and before this Court.) The Crown's allegation that the respondent was engaged, with Mr Lan, in a joint criminal enterprise to manufacture a large commercial quantity of the prohibited drug, methylamphetamine, provides the basis for its case that the respondent was guilty of constructive murder. Manufacture of a large commercial quantity of a prohibited drug is a crime that is, by s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), punishable by imprisonment for life, and thus capable of being a "foundational crime" for constructive murder. The Crown case on murder was that Mr Lan's death was caused by an act of the respondent, in the course of the commission, or attempted commission, of an offence of manufacturing a large commercial quantity of methylamphetamine. However, as has been noted above, because the Crown was unable to nominate any act or event that caused the ignition of the ring burner, it was unable to nominate any specific act of the respondent that caused Mr Lan's death. The Crown therefore relied upon principles of law relating to joint criminal enterprise, particularly those with respect to fixing one participant with criminal liability for the acts (or omissions), within the scope of their agreement, of another participant, or other participants. I will return to this.
It was, thus, the Crown case that, because the respondent and Mr Lan were engaged in a joint criminal enterprise, the respondent was equally responsible for the act of ignition whichever of the two actually did it; that, in effect, if it were Mr Lan's act that caused the ignition of the ring burner that act was, on the principles stated in Johns and McAuliffe, the respondent's act. Since the respondent was thus responsible for the act causing death, and it was an act done in the course of the commission of an offence punishable by imprisonment for life, the respondent was guilty of the murder of Mr Lan.
[7]
Application of the principles of joint criminal enterprise
The application of the principles of joint criminal enterprise is not limited to prosecutions for murder, although each of the cases mentioned (see [20] above] involved a charge of murder. There is an important point of distinction between those cases, and the present. In each case (Johns, McAuliffe, and Likiardopoulos) the accused person was charged with murder as a direct result of his participation in a joint criminal enterprise, the scope of which included the use of violence that might result in the death of the victim.
In Johns, the appellant was charged as an accessory before the fact of murder; he was a party to an agreement, with two others, to an assault and armed robbery of another man. As a consequence of the assault and robbery, the victim was killed. Although he was not present at the time of the infliction of the violence on the victim, his participation in the agreement was sufficient to fix him with criminal liability for "an act contemplated as a possible incident of the originally planned particular venture" (p 131).
Similarly, in McAuliffe, the two appellants were parties to an agreement with another man to assault a stranger. Two of the participants were armed, with, respectively, a hammer and a baton or stick. They encountered two men in a beachside park near a cliff and attacked them violently. One of the victims fell over the cliff, and died of injuries he then sustained. The two appellants were held to have been properly convicted of murder on the principles stated. From the facts of the case, and the judgment of the High Court, it is clear that the appellants were held to have been rightly convicted of murder because the infliction of (at least) grievous bodily harm was, in the circumstances, within the contemplation of the appellants.
The circumstances in Likiardopoulos were not dissimilar. Likiardopoulos was party to a joint criminal enterprise, with several others, to assault the victim. The assaults took place over two days, and, as a result, the victim died. Likiardopoulos was not shown to have been present throughout. No single act could be identified as the act causing death. Nevertheless, Likiardopoulos was convicted of murder on McAuliffe principles, and the conviction was upheld in the High Court.
None of these prosecutions proceeded upon an allegation of constructive murder. Each of those accused was charged with one of the categories of murder that depends upon proof that an act causing death was done with specific intent, either to kill, or to cause grievous bodily harm, or with reckless indifference to human life. Each was guilty because the act causing death was committed in the course of a joint criminal enterprise in which death or the infliction of grievous bodily harm was taken to be within the scope of the enterprise, or within the contemplation of the perpetrators.
In the present case however, the Crown could not realistically proceed on the basis that death or the infliction of grievous bodily harm was within the scope of the joint criminal enterprise of drug manufacturing, nor that either was within the contemplation of the parties to that enterprise, the respondent and Mr Lan. In order to fix the respondent with liability for murder, the Crown was forced to rely on the final category of murder, constructive murder.
R v Sharah (1992) 30 NSWLR 292 was a case in which the Crown relied (unnecessarily, in the view of Carruthers J, with whom Gleeson CJ and Smart J agreed) on alternative categories of murder - first, that the death was an incident in the course of the carrying out of a joint criminal enterprise (armed robbery) and therefore within McAuliffe principles; and, second, constructive murder. The Crown case was that Sharah took part with another man in an armed robbery with wounding, in the course of which the victim was killed. In those circumstances, it could readily be conceded that death or the infliction of grievous bodily harm was within the scope of the enterprise, or within the contemplation of the parties to it. However, the Crown also maintained the alternative basis of liability - constructive murder. Armed robbery with wounding was an offence punishable by imprisonment for 25 years, and therefore qualified as a foundational crime for constructive murder.
Carruthers J set out the elements it was necessary for the Crown to prove, both for "common purpose murder" and "felony [constructive] murder". With respect to the latter, his Honour stated the elements as follows:
"(i) that there was a common purpose between the appellant and [the co-offender] in company to rob [another man] whilst [the co-offender] 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 [the co-offender] wounded [the other man] and during the course of such armed robbery with wounding or immediately thereafter, [the co-offender] discharged the gun causing the death of [the victim];
(iii) that the discharge of the gun by [the co-offender] during or immediately after the armed robbery with wounding of [the other man], 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."
It may be (and has been) questioned whether the third element was necessary, when regard is had to s 18 of the Crimes Act. In Batcheldor v R; Walsh v R [2014] NSWCCA 252, R A Hulme J (with whom Bathurst CJ expressly agreed) considered that the third element (foresight of the discharge of the gun) was an unnecessary importation into the offence of constructive murder. Foresight is an element of the concept of extended joint criminal enterprise, and necessary to render a participant in the joint criminal enterprise liable for acts of other participants; it had not previously been a requirement of constructive murder under s 18 (Batcheldor, at [128]-[132]).
However, Sharah has never been overruled and, accordingly, remains a binding authority (on trial judges) for NSW. (It also remains a binding authority for this Court, unless the Court is satisfied that the decision was plainly wrong and that there are compelling reasons to depart from the earlier decisions (Gett v Tabet [2009] NSWCA 76; 254 ALR 504).
In this case, the principles stated above relating to joint criminal enterprise have no direct application to the counts of murder or manslaughter. By that I mean this: the respondent was not charged with either murder or manslaughter as a consequence of her participation in a joint criminal enterprise of which one of the contemplated incidents was the death of, or the infliction of grievous bodily harm on, Mr Lan (or somebody else). Rather, the principles are applicable to the foundational crime, drug manufacture. They are relied on by the Crown in order to fix the respondent with liability for the act of ignition of the burner, whichever of the two participants actually did that act.
There was no real dispute that the Crown could make out a case that the respondent and Mr Lan were engaged in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug. There could have been no real dispute that each bore criminal liability for all of the acts of the other that were within the scope of that joint criminal enterprise, or were contemplated by it. Plainly, the act of lighting the ring burner was such an act. Whichever of the respondent and Mr Lan did that act, the other was equally liable for it.
It would be erroneous, however, to go on to say that, because the Crown could not establish that Mr Lan's death was within the scope of the criminal enterprise of drug manufacturing, or within the contemplation of the participants in that enterprise, the respondent was not liable for conviction for that death. That is because the relevance of the principles stops at the point at which the respondent can be held liable for ignition of the ring burner, whether the specific act of ignition was committed by herself or by Mr Lan. It is the ignition of the burner (not Mr Lan's death) that has to be shown to be within the scope of the criminal enterprise. There could be no dispute that it was. If it is shown that either the respondent or Mr Lan did the act that ignited the burner, and if it can further be shown that it was the ignition of the burner that caused the fire that, in turn, caused Mr Lan's death, then the respondent can be convicted of murder.
It would be necessary to direct the jury that, to convict the respondent of murder, they would have to be satisfied:
that the respondent and Mr Lan were participants in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug;
that it was within the scope of that agreement, or was contemplated by the participants, that the ring burner would be ignited;
that the ring burner was in fact ignited;
that, as a result of the ignition of the ring burner, the fire began;
that Mr Lan's death was caused by the fire.
If all of those matters were proved, the act causing death was done either in an attempt to commit, or during the commission, by the respondent or her accomplice (Mr Lan), of a crime punishable by imprisonment for life.
[8]
The approach taken by the trial judge
The trial judge reviewed the principles relevant to constructive murder and criminal complicity. Specifically, he noted the elements of constructive murder (felony murder) stated by Carruthers J in Sharah, and also the questions raised about the third of those elements by R A Hulme J in Batcheldor. As to those, he said:
"42 Taking the prosecution case at its highest, there is no evidence capable of supporting an inference that the [respondent] contemplated the possibility that somebody might be injured, let alone that they might die, in the course of the manufacturing process."
He went on, however, immediately to say that that was not determinative.
The trial judge went on to say:
"73 None of the evidence is capable of establishing that the fire or explosion was a deliberate act on the part of either [Mr Lan] or [the respondent]. The evidence of their respective injuries suggests that it was [Mr Lan], rather than [the respondent], who committed the act or omission that led to the fire …
74 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 [Mr Lan] and/or [the respondent]."
After referring to the passage in McAuliffe in which it was stated that if one or other or both of the parties do 'all those things which are necessary to constitute the crime' they are all equally guilty of the crime. His Honour said:
"80 In this case, the crime of which [the respondent] is alleged to be guilty is the crime of murder. It cannot be said that [Mr Lan] did all those things necessary to constitute that crime in accordance with the agreement.
81 The Crown eschews reliance on what was described in Clayton v The Queen [[2006] HCA 58; 168 A Crim R 174; 81 ALJR 439] (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.
82 I accept the submission of [counsel for the respondent] that the criminal liability of [the respondent] is derivative. Properly analysed, if [the respondent] 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). [Mr Lan] could not be convicted of his own murder …
83 The situation may be different if an innocent third party had been killed. Central to my decision is the fact that the victim (deceased) is the person who committed the act leading to death. He cannot be guilty of his own murder and thus the derivative liability of [the respondent] cannot be established.
…
85 I do not accept that the combination of principles of common purpose and constructive murder work together to make [the respondent] liable to conviction for murder in the circumstances of the present case. Whether the situation may be different where the deceased person was not the one who committed the act or where the death was of an innocent victim is not necessarily to decide in the circumstances of this case."
[9]
The grounds of appeal
The grounds of appeal were pleaded as follows:
"Ground 1: The learned trial Judge erred by not applying the correct test when determining that there was no prima facie case of constructive murder on count 2a [the murder count] by -
deciding that the criminal liability of the respondent was derivative in a constructive murder charge.
finding that the accused was a principal in the second degree to the large commercial manufacturing charge, and that as a result of the derivative liability, she could not be guilty of constructive murder of the deceased who was the principal in the first degree to the large commercial manufacturing offence.
holding that it cannot be said that the deceased did all those things necessary to constitute the crime of murder.
Ground 2: The learned trial Judge erred by not applying the correct test when determining that there was no prima facie case of manslaughter on count 2b [the manslaughter count] by holding that -
there was no evidence to suggest that the Respondent and the Deceased were acting together in lighting the burner.
the evidence was not capable of excluding the possibility that it was the act of the Deceased that caused his own death."
[10]
Question of law alone?
As mentioned above, by s 107(2) of the Appeal and Review Act, an appeal against an acquittal by direction lies only on a ground that involves a question of law alone.
On behalf of the respondent it was contended that the grounds pleaded do not raise question[s] of law alone. If that is the case, the appeal is incompetent and this Court lacks jurisdiction to deal with it. It is for this reason that I have set out above the precise terms of the grounds pleaded.
Senior counsel for the respondent raised a number of points in support of her contention. First, she referred to the decision of this Court in R v JS [2007] NSWCCA 272; 175 A Crim R 108, in which Spigelman CJ pointed out that the formulation "a question of law alone" is more restrictive than the formulation (found in some other statutes) "question of law", and also held that a notice of appeal should identify with some precision the "question of law alone" said to be involved in the appeal. She submitted that the notice of appeal in this case also fails to comply with the requirement of specificity.
In my opinion, neither criticism can be sustained. There are two grounds of appeal, each quite specific, identifying asserted errors of law in the approach taken by the trial judge, and, in each case, asserting failure to apply the correct test to the question whether there was a prima facie case of the relevant offence (murder or manslaughter), and specifying the respects in which the approach taken by the trial judge was erroneous.
Identification of the correct test to be applied to the determination of an issue such as the existence (or otherwise) of a prima facie case in a criminal proceeding, like the construction of a statute (as in JS) involves a question of law alone. The first proposition advanced on behalf of the respondent must be rejected.
Next, senior counsel argued that no error in a question of law has been identified. In written submissions, she called in aid the asserted lack of specificity (which I have already rejected) and argued that:
"The absence of sufficient particularisation in the notice is … symptomatic of the incapacity of these grounds to come within the restrictive terms of s 107(2) of [the Appeal and Review Act]."
This, she acknowledged, does not raise a jurisdictional issue, but, rather, exposed the absence of any identification of error in a question of law. For reasons to be given below, that should be rejected.
Whether error of law has been established is, of course, a different question. A notice of appeal may plainly identify a statement of law upon which the trial judge acted, without succeeding in establishing that that statement was erroneous.
The next proposition was that:
"It is antithetical to the requisite precision … and the need for identification of the legal proposition at the heart of each ground … to suggest that there might be found multiple questions of law in a single ground."
This, presumably, was a reference to the three particulars of the error asserted in Ground 1, and two particulars of the error asserted in Ground 2. It appears that the complaint would not have been made had the five separate asserted errors been pleaded as five separate grounds. If that is the proposition, I would reject it as no more than a pleading point. The question is whether either (or both) of the two grounds identifies a question (or questions) of law alone. Paragraphs (a)-(c) of Ground 1, and paragraphs (a) and (b) of Ground 2 specify the basis upon which error of law is asserted - they are, no doubt, included in order to meet the requirement of specificity or particularity.
Senior counsel quite properly drew a distinction between articulation and application of the correct test; the former, she accepted, involves a question of law alone; the latter, she contended, a question of mixed fact and law, and therefore outside the appeal permitted by s 107(2).
So much may be accepted: see R v PL [2012] NSWCCA 31 (conveniently referred to as "PL (No 2)") at [37].
Examination of the grounds reveals that the complaint made, in each case, concerns the legal principle to be applied. In the case of paragraph (a) of Ground 1, the complaint raises a clear question of law: is criminal liability for constructive murder derivative or direct? (I hold below that it is direct, and that, therefore, the error asserted has been established, but that is immaterial to the jurisdictional question.) In the case of paragraph (b) of Ground 1, the complaint, properly understood, is that the finding that the respondent could not be guilty of constructive murder was a direct result of the incorrect statement of legal principle identified in paragraph (a) of Ground 1. Paragraph (b) of Ground 1 asserts a legally incorrect reasoning process, in part as a result of the error asserted in paragraph (a). Paragraph (c) of Ground 1, properly understood, complains that an irrelevant consideration was taken into account, the irrelevant consideration being that it could not be said that Mr Lan did all those things necessary to constitute the crime of murder. Taking into account any irrelevant considerations is an error or law. Each paragraph of Ground 1 specifies an asserted error of law in the trial judge's reasoning process.
A similar analysis may be applied to Ground 2. Paragraph (a) of Ground 2 is a "no evidence" ground, clearly a question of law alone. Moreover, the fact of which his Honour found there was no evidence was that the respondent and Mr Lan were acting together in lighting the burner. That, too, is an irrelevant consideration, and therefore discloses - if made out - error in law in the approach to the issue. A relevant question would be whether there was evidence that the respondent and Mr Lan were acting together in the drug manufacturing enterprise, and whether the ignition of the burner was an act within the scope of that enterprise. Paragraph (b) of Ground 2 may be treated in the same way as paragraph (c) of Ground 1. It was not to the point - and therefore an irrelevant consideration - that the evidence was not capable of excluding the possibility that Mr Lan did the act that caused his death.
In my opinion, each of the two grounds identifies a question of law alone, explicated by the specification of where the asserted error lies, or how it is exposed. This Court has jurisdiction to determine the appeal.
[11]
The substance of the appeal: has the Crown established error of law?
[12]
(i) murder
Paragraph [42] of the judgment reveals error in the reasoning process. In that paragraph the trial judge misapprehended the third element stated by Carruthers J in Sharah. What was there said to be a necessary element was foresight of the discharge of a gun by the co-offender during the course of the armed robbery. (That was the act that caused death.) Translating that to the facts of the present case, what the third element of Sharah required was foresight of the ignition of the burner. As I have endeavoured to point out above, the relevant question was not whether the respondent contemplated injury to, or death of, Mr Lan; the relevant question on the issue of joint criminal enterprise was whether the respondent contemplated the possibility that the ring burner would be ignited - that is, was it within the scope of the joint criminal enterprise? If it was, and if the ring burner was ignited by the respondent or Mr Lan, it was an act committed by one or other of the participants within the scope of that enterprise, and was to be treated as the act of both participants; and it was the act that caused death.
Paragraphs [80], [83] and [85] of the judgment are indicative of the same error as I have just identified in [42]. In [80] the trial judge applied the test for joint criminal liability taken from McAuliffe, not to the crime (drug manufacture) in which the respondent was alleged to have been a joint participant, but to the crime of murder. The Crown never alleged that the respondent was a party to a joint criminal enterprise that contemplated death or injury. The principles of joint criminal enterprise were applicable to the foundational crime of drug manufacture. To repeat, if the ignition of the burner was within the scope of that enterprise, then the respondent and Mr Lan were both liable for it.
In observing (at [83]) that Mr Lan could not be guilty of his own murder, the trial judge was drawing on what he regarded as a "somewhat analogous case", R v Demirian [1989] VR 97; 33 A Crim R 441. In that case the victim of an alleged offence had been party to a conspiracy with the person accused of his murder to cause an explosion in a consulate in Melbourne. In the course of the execution of the plan, the bomb detonated prematurely, killing one of the conspirators (the victim). The surviving conspirator was charged with murder. Although an appeal was upheld on other grounds, two judges of the Court of Appeal held that, because the victim could not be convicted of his own murder, the accused person could not be guilty as an accessory or principal in the second degree.
As I have attempted to indicate, to focus upon whether injury or death was within the scope of the enterprise, or contemplated by the participants, is to deflect attention from the correct question. The correct question is whether the ignition of the ring burner was within that scope or contemplation; if it was, both participants were responsible for it, and liable for its consequences.
Moreover, it was incorrect to characterise the Crown's case against the respondent on murder as "derivative". The Crown case was that, by reason of her participation in a crime punishable by imprisonment for life, she was directly liable in murder (for a death caused by an act done in an attempt to commit or during the commission of that offence).
It was, in my opinion, incorrect for the trial judge to direct a verdict of acquittal on the count of murder.
[13]
(ii) manslaughter
The Crown case on manslaughter by unlawful and dangerous act also depended upon the principles of joint criminal enterprise. As set out above, it is necessary that the Crown show that the act causing death was both unlawful (criminal) and dangerous.
[14]
The act causing death
As stated above, the act causing death was identified, for the purposes of the Crown case, as the ignition (or lighting) of the ring burner in the bathroom. Igniting a ring burner is not, on its face, a criminal act. However, the Crown argued that the ignition of a ring burner in the course of, or for the preparation of, the manufacture of a prohibited drug, is a criminal act. No argument was advanced to contradict that proposition. It is in accord with the conclusion of this Court in R v CLD [2015] NSWCCA 114. The act of ignition in those circumstances was an unlawful act.
There was, in the evidence in this case, ample basis for a conclusion that the ignition of a ring burner in a domestic bathroom in the course of illegal drug manufacturing was a dangerous act. The expert evidence concerning the process of manufacture, outlined above, is ample to establish that.
The reasons given by the trial judge for directing a verdict of not guilty on the manslaughter count appear to be similar to those given for the directed verdict on the murder count, and are sufficiently contained in two paragraphs of the judgment, as follows:
"97 While it is open to the jury in the present case to find that the act of [Mr Lan] was an act in furtherance of the common purpose alleged by the Crown, there is no evidence to suggest that [the respondent] and [Mr Lan] acted together in lighting the burner. The case is not analogous to the situation (not resolved by the High Court [in Burns v The Queen [2012] HCA 35; 246 CLR 334, to which his Honour had earlier referred]) where two drug users inject one another with a dangerous drug.
98 The evidence is not capable of excluding the possibility that it was the act of [Mr Lan] that caused his own death. There is no evidence that [Mr Lan] was not acting voluntarily. There is no evidence that he was other than a fully informed and responsible adult."
(The last sentence of the extract is a reference to a decision of the House of Lords in R v Kennedy (No 2) [2008] AC 269.)
There is error disclosed in this reasoning. For the purposes of the joint criminal enterprise relied upon by the Crown, it was not necessary for the Crown to show that the respondent and Mr Lan "acted together in lighting the burner". All that was necessary to show was, as I have indicated above in relation to the murder count, that lighting the burner (by one or other of them) was an incident within the contemplation of the respondent in her participation in the commission of the drug manufacturing offence. It may well have been the act of Mr Lan that caused the ignition of the burner, and, if so, that was an act that caused his own death. But the liability of the respondent alleged by the Crown was not derivative; it was, in effect, co-extensive with that of Mr Lan for all acts he undertook in the course of the drug manufacturing enterprise (just as the liability of Mr Lan for all acts undertaken by the respondent was co-extensive with hers).
In my opinion it was erroneous to direct the jury to acquit on the manslaughter charge.
[15]
Disposition
The orders available to this Court on an appeal under s 107(2) are set out in sub-ss (5) and (6) of the Appeal and Review Act. This Court may affirm or quash the acquittal (sub-s (5)); if it quashes the acquittal, it may order a new trial in such manner as it thinks fit (sub-s (6)). The logical consequence of the conclusions that, in respect of the murder and manslaughter counts, a wrong test was applied, resulting in acquittals that were erroneous in law, is an order in each case quashing the acquittal. It will then be necessary to consider whether, pursuant to sub-s (6), to order a new trial.
That is a discretionary decision. Senior counsel for the respondent raised an interesting, and novel, argument against an order for a new trial on the count of murder. (The argument does not apply to the count of manslaughter.)
The argument depended upon the terms of s 18(2)(a) of the Crimes Act, set out above. To repeat, s 18(2)(a) provides:
"(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."
The exception for acts or omissions for which the accused had lawful cause or excuse can be put to one side. It has no present application. The central proposition advanced on behalf of the respondent was that, on no view of the meaning of "malicious", could it be said that the act that caused Mr Lan's death was malicious. Although it was never clearly articulated, it seems that the consequential proposition advanced was that, since the Crown could not establish that the act that caused Mr Lan's death was done maliciously, it would be futile for this Court to order a new trial on the count of murder since any such trial would necessarily result in the respondent's acquittal. If the central proposition is correct, futility of ordering a new trial would be a powerful discretionary reason for declining to do so, and for affirming the acquittal. Alternatively, the argument may have been directed to the proposition that the acquittal on the murder count was justified for a reason other than that given by the trial judge, and therefore should be affirmed. The argument in support of the consequential proposition was raised for the first time in response to the Director's appeal.
The essential proposition advanced on behalf of the respondent, as I understand it, may be reformulated in the following way:
to come within s 18(1)(a), the act that causes death must be shown by the Crown to have been done maliciously;
there was no evidence that the ignition of the ring burner was done maliciously;
accordingly, the Crown is unable to succeed in proving an essential element of its case;
the consequence is that (although for a reason other than those given by the trial judge) the acquittal ought to be affirmed;
alternatively
if the acquittal at first instance was incorrectly entered because it was given on an erroneous legal basis, this Court should nevertheless decline to order a new trial (on the basis that a new trial would be, at least, a futility, or, at worst, an abuse of process).
The argument hinges on the meaning of "maliciously" as it appears in s 18(2)(a). One complicating circumstance immediately emerges. In 1901, when s 18 was enacted (not precisely in its present form, but not different in a way that is material to the present argument), the Crimes Act contained, in s 5, an extended definition of "maliciously". It could not be said that the definition cast a great deal of light on the question of the meaning of the word, or the concept. Section 5 was in the following terms:
"Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and every indictment and charge where malice is by law an ingredient of the crime."
The drafting of s 5 has been the subject of adverse comment. In Mraz v The Queen [1955] HCA 59; 93 CLR 493 Fullagar J described it (so far as relevant to that case) as:
"… a mere question-begging definition, saying no more than that 'every act done of malice … shall be taken to have been done maliciously'."
Thirty five years later, in R v Coleman (1990) 19 NSWLR 467, Hunt J (as he then was) said:
"… it should be stated (yet again) that the definition of 'maliciously' in s 5 is not a happily drafted one."
His Honour went on to note the possible meanings that could be assigned to the various alternatives set out in the section.
Section 5, when in force, was of general application. It has been observed that, so far as it related to murder within s 18, s 5 had no operation to any of the categories mentioned above other than the fourth, that is constructive (felony) murder: Royall v The Queen [1991] HCA 27; 172 CLR 378 at 454 per McHugh J; Coleman at 474 per Hunt J.
That was because the other categories of murder specified in s 18 were provable by evidence that the accused person had the relevant state of mind - reckless indifference to human life, intent to kill, or intent to inflict grievous bodily harm. The necessity to prove the relevant state of mind left no room for proof of a further, alternative or different, state of mind called "malice".
By the Crimes Amendment Act 2007 (NSW), s 5 was omitted from the Crimes Act with effect from 27 September 2008: see Sch 1, cl 2. By the same amending Act, cl 65 was inserted into Sch 11 of the Crimes Act. Schedule 11 deals with "Savings and Transitional Provisions". Clause 65 provides:
"The repeal of section 5 of this Act by the Crimes Amendment Act 2007 does not affect the operation of any provision of this Act (including a repealed provision) that refers to 'malicious' or 'maliciously' or of any indictment or charge in which malice is by law an ingredient of the crime."
The repeal of s 5 took place in the context of a general modernisation of provisions of the Crimes Act that had included "malice" as a fault element. From many such provisions (but not including s 18), the words "maliciously" and "malice" were omitted, and either "recklessly" or "intentionally" (or their noun counterparts) substituted. In his second reading speech in support of the proposed repeal, the Attorney General explained the revision as follows:
"The bill removes the archaic fault element of 'maliciously' from the Crimes Act and replaces it with the more modern fault elements of 'recklessly' and 'intentionally' where appropriate …"
He read out cl 5 of the Bill and went on:
"Members can imagine the difficulty in explaining this archaic formulation to juries who may be required to determine very serious cases based on this definition. The confusing and outdated nature of the definition has been raised by several judicial officers over a period of 50 years. For example, as long ago as 1955, the Honourable Justice Fullagar of the High Court in Mraz v R (1955) 93 CLR 493 described the definition of malice in the Crimes Act as 'a mere question-begging definition'. The term 'recklessly' which will largely replace 'maliciously' is well-known to the criminal law and it is not proposed to codify or define this term at this time." (New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 September 2007 at 2318)
(Notwithstanding that stated intention, less than two months later, the legislation inserted s 4A into the Crimes Act. Section 4A is as follows:
"4A Recklessness
For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.")
acts done with indifference to human life or suffering (and without lawful cause or excuse);
acts done with intent to injure either a person or a corporate body (in property or otherwise) (and without lawful cause or excuse) (although it is difficult to see how an act done with intent to injure could be seen as other than malicious);
acts done recklessly or wantonly.
(cf Coleman, p 472).
Thus, an act that comes within any of those descriptions (but done without malice) is, by s 5, taken to have been done maliciously.
In Coleman, Hunt J explained "recklessness" (at 475) in the following way:
"… in statutory offences other than murder, the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm - but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted." (italics in original; quoted by Beazley JA (as the President then was) in Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 at [68])
These conclusions bring the debate back to the identification of the act relied upon by the Crown as the act causing death. That, it will be remembered (see [11]), was the act of igniting the ring burner. (That, in the circumstances of this case, where that act was an integral, but possibly relatively minor, part of the whole enterprise, might be an oversimplified approach. A more nuanced approach would suggest that Mr Lan's death was not caused by a single act, but was a result of a series of acts, culminating in the ignition of the burner, the series of acts including all of the acts involved in the preparation for the manufacture, and the manufacture, of the drugs. However, for present purposes, it is necessary to adhere to the manner in which the Crown presented its case in the Supreme Court.)
Once the issues are so stated, in my opinion the outcome is clear. At the very least, it would be open to a jury to conclude that the ignition of the ring burner, in the circumstances in which it took place, was done recklessly. (An act done recklessly is expressly within s 5.) It does not appear that s 5 requires the Crown to prove that an act done recklessly (or wantonly) was also done without lawful cause or excuse, as is necessary with respect to the first and second categories of non-malicious acts that are taken to have been done maliciously; but, even if the absence of lawful cause or excuse is a requirement, it is not an issue in the present case, because there can be no suggestion that, in the circumstances, the act was done otherwise than without lawful cause or excuse. In case it is necessary to explain why it would be open to a jury to conclude that that act was done recklessly, reference may be made to some of the circumstances. A plainly dangerous chemical operation was being undertaken, in a confined space, in wholly unsuitable premises, with primitive equipment. That emerges clearly from the expert evidence in the trial.
Ironically, perhaps, my conclusion concerning the interpretation of "malicious" in s 18(2)(a) does not depart in any material way from that proposed on behalf of the respondent. In written submissions the following was put:
"60. The respondent submits that with s 5 of the Crimes Act repealed, an act is not malicious within s 18(2) unless it is proved to be intentional or reckless as to consequences: R v Coleman … R v Cunningham [1957] 2 QB 396.
61. Alternatively, the respondent submits an act is not malicious unless it is an act of serious violence or one which clearly endangers life, in accordance with the common law attribution of malice in felony murder." (italics added)
[16]
Amendments
05 May 2016 - [68] - typographical error corrected
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: 05 May 2016
467
R v Cunningham [1957] 2 QB 396
R v Demirian [1989] VR 97; 33 A Crim R 441
R v JS [2007] NSWCCA 272; 175 A Crim R 108
R v PL [2012] NSWCCA 31
R v Rushworth (1992) 95 Cr App R 252
R v Safwan (1986) 8 NSWLR 97
R v Sharah (1992) 30 NSWLR 292
Royall v The Queen [1991] HCA 27; 172 CLR 378
Wilson v The Queen [1992] HCA 31; 174 CLR 313
Texts Cited: C S Kenny, Outlines of Criminal Law, (1st ed 1902, Cambridge University Press)
Category: Principal judgment
Parties: Regina (Appellant)
IL (Respondent)
Representation: Counsel:
P G Ingram SC (Appellant)
B J Rigg SC/R C Pontello (Respondent)
Solicitors:
C Hyland - Solicitor for Public Prosecutions (Appellant)
Benjamin and Leonardo Criminal Defence Lawyers (Respondent)
File Number(s): 2013/3683
Publication restriction: Non-publication of any matter that may lead to the identification of the respondent (Crimes (Appeal and Review) Act 2001 (NSW), s 111(1)(b))
Decision under appeal Court or tribunal: Supreme Court
Citation: [2014] NSWSC 1710
Date of Decision: 02 December 2014
Before: Hamill J
File Number(s): 2013/3683
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 4 January 2013, there was a fire in a house in Ryde. The fire was almost completely contained in the bathroom where a gas cylinder was connected by a pipe or hose to a ring burner. On the ring burner there was a cooking pot containing a liquid substance which, on the Crown case, was methylamphetamine or a substance proposed to be made into methamphetamine. On top of the cooking pot was a burning mattress. At the time of the fire, the respondent was present in the house with Mr Zhi Min Lan. Mr Lan was severely burned and later died of his injuries.
On 18 November 2014, the respondent was arraigned in the Supreme Court on an indictment that contained six counts. The first count charged her with manufacturing a large commercial quantity of methylamphetamine. The second count charged her with the murder of Mr Lan or alternatively, the manslaughter of Mr Lan. The third, fourth, fifth and sixth counts charged the respondent with the unauthorised possession of various firearms. The respondent pleaded not guilty to all 6 counts.
At trial, the Crown relied on the category of murder known as constructive murder. The Crown could not and did not seek to nominate any specific act or event which caused the ignition of the ring burner. The Crown therefore relied on the principles of joint criminal enterprise. The Crown alleged that the respondent was engaged, with Mr Lan, in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. Under s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), the manufacture of a large commercial quantity of a prohibited drug is punishable by imprisonment for life and therefore is capable of being a foundational crime for constructive murder. The Crown argued that because the respondent and Mr Lan were engaged in a joint criminal enterprise, the respondent was equally responsible for the act of ignition.
In relation to the manslaughter charge, the Crown relied on involuntary manslaughter by an unlawful and dangerous act. The Crown case on manslaughter also depended on the principles of joint criminal enterprise. The Crown alleged that the act causing death (the ignition of the ring burner) was both unlawful and dangerous.
At the close of the Crown case, the trial judge directed the jury to return verdicts of not guilty in respect of the charges of murder and manslaughter. The jury duly did so. The trial proceeded on the remaining counts and on 9 December 2014, the jury returned verdicts of guilty on each of the remaining counts.
Pursuant to s 107(2) of the Crimes (Appeal and Review Act) 2001 (NSW), the Crown appealed against the directed verdict of acquittal of the respondent on the murder and manslaughter counts.
On appeal, the Crown argued that the trial judge erred by not applying the correct test when determining that there was no prima facie case of constructive murder. Additionally, the Crown argued that the trial judge did not apply the correct test when determining that there was no prima facie case of involuntary manslaughter by an unlawful and dangerous act.
In response, the respondent contended that the Court lacked jurisdiction to determine the appeal because the grounds of appeal did not raise questions of law alone. The respondent also raised an argument against an order for a new trial on the count of murder. The respondent relied on the terms of s 18(2)(a) of the Crimes Act 1900 (NSW) and submitted that on no view of the meaning of "malicious" could it be said that the act that caused Mr Lan's death was malicious.
Held
Simpson JA (RA Hulme J and Bellew J agreeing) allowing the appeal and quashing the acquittal of the respondent on the murder and manslaughter charges:
(1) Both grounds of appeal identified a question of law alone: [59]
(2) In relation to the murder charge, it was not necessary to show that the respondent contemplated injury to or the death of Mr Lan. The principles of joint criminal enterprise were applicable to the foundational crime of drug manufacture. The relevant question was therefore whether the ignition of the ring burner was within the scope of that enterprise, or contemplated by the participants: [60], [61], [62], [63], [64].
R v Sharah (1992) 30 NSWLR 292 considered;
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 considered;
R v Dermirian [1989] VR 97; 33 A Crim R 441 distinguished.
(3) In relation to the manslaughter charge, it was not necessary to show that the respondent and Mr Lan acted together in lighting the burner. All that was necessary to show was that the ignition or lighting of the burner was an incident within the contemplation of the respondent in her participation in the commission of the drug manufacturing offence: [70]
(4) (a) Whether "malicious" in s 18(2)(a) of the Crimes Act 1900 (NSW) is to be interpreted in light of the now repealed s 5 or absent that light, it would be open to a jury to conclude that the act causing death, the ignition or lighting of the ring burner was malicious: [92], [93], [95], [98]-[104].
(b) Although the definition of "maliciously" initially contained in s 5 of the Crimes Act 1900 (NSW) was repealed with effect from 27 September 2008 (Crimes Amendment Act 2007 (NSW), Sch 1, cl 2) its effect in relation to charges of murder is preserved by Sch 11, cl 65.
R v Coleman (1990) 19 NSWLR 467 considered;
Mraz v The Queen [1955] HCA 59; 93 CLR 493 considered;
R v Cunningham [1957] 2 QB 396 considered;
R v Rushworth (1992) 95 Cr App R 252 considered;
R v Safwan (1986) 8 NSWLR 97 considered;
Crimes Act 1900 (NSW) ss 4A, 5, 18(2)(a), Sch 11, cl 65 referred to.
The consequences of the repeal of s 5, without the deletion of the concept of "malicious" from s 18(2)(a), has been regarded as something of a mystery. In Chen v R [2013] NSWCCA 116, at [62] Button J labelled "remarkable" the fact that the concept of malice remained in s 18, after the deletion of the statutory definition. Button J said:
"I know of no decision of this Court as to what s 18(2)(a) should now be taken to mean."
It may be that Button J's attention was not drawn to Sch 11, cl 65. However, in Batcheldor, Hidden J (who expressly referred to cl 65) endorsed Button J's observation.
In my opinion, cl 65 is of significance, as I will explain shortly.
It was not initially clear whether the respondent's position was that the repeal of s 5 wrought a change in the proper construction to be attributed to s 18(2)(a), or that "malicious" in that context retained its original meaning even after the repeal. That question was eventually clarified during the course of oral argument, when senior counsel said:
"However, what needs to be grappled with in my submission is, what maliciousness means now that s 5 has been repealed."
I take this to be an assertion that s 18(2)(a), since 2008, has a meaning different from that which it had prior to 2008.
I am unable to accept that proposition. Some meaning must be given to cl 65 of Sch 11, opaque as it might appear to be.
In my opinion, the answer is to be found in the Attorney General's second reading speech. The repeal of s 5 took place in the context of the general (but not complete) excision of "malice" and "maliciously" from the Crimes Act, and their replacement with less "archaic" language. For some reason, "malice" in s 18(2)(a) escaped that scalpel - hence, what I read as the preservation (in cl 65) of s 5 for the specific purpose of s 18(2)(a) (and any other provisions that contained references to "malice" that also escaped the legislative scalpel). If that is correct, "malicious" in s 18(2)(a) is to be read and interpreted as though s 5 had not been repealed.
It is then necessary to attempt to understand what "malicious" means in s 18(2)(a), in such light as the definition provided by s 5 casts.
As mentioned, Hunt J in Coleman pointed out the various ways in which s 5 might be read. Unwise as it might seem to attempt an analysis or deconstruction of s 5, I see no way to avoid that potentially unrewarding exercise.
In my opinion, the purpose of s 5 was to adopt and then extend the ordinary understanding of "malice". Adoption of the ordinary meaning follows from the use of the word "malice" itself in the opening phrase. The fact that "malice" is twice used in the definition of "maliciously" indicates that it was used, and intended to be understood, in its conventional legal sense. I will return to consider what that conventional sense is. Omitting the subordinate clauses, the section would have read:
"Every act done of malice … shall be taken to have been done maliciously …"
This is in accord with what Fullagar J said in Mraz. The concept is then, by the subordinate clauses, extended to acts done:
"… without malice, but with indifference to human life or suffering, or with intent to injure … in property or otherwise … and … without lawful cause or excuse, or done recklessly or wantonly …",
which acts are also:
"… taken to have been done maliciously …"
It seems to me that the effect of s 5 is to declare that acts done with a variety of states of mind (other than those that come within the ordinary understanding of "malice") are to be taken to have been done maliciously. Broken up into its component parts, the section begins by stating (tautologically) that:
"Every act done of malice … and without lawful cause or excuse … shall be taken to have been done maliciously."
The section goes on to declare that certain acts done without malice shall nevertheless be taken to have been done maliciously. Those acts are:
It would clearly be open to a jury to conclude that the ignition of the burner was done recklessly (even without the explanation given by s 4A, inserted in 2008).
If I am wrong in concluding that cl 65 of Sch 11 preserves, for the purposes of s 18(2)(a), the application of s 5, then a question remains as to the meaning of "malicious" in that subsection, absent the enlightening glow of s 5. "Malicious" then must be given its conventional, legal, meaning. In R v Cunningham [1957] 2 QB 396, it was held:
"In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured …"
These words were taken from C S Kenny, Outlines of Criminal Law, (1st ed 1902, Cambridge University Press) (repeated in the 1952 edition), and expressly endorsed by the court. The court summarised by saying:
"In our opinion the word 'maliciously' in a statutory crime postulates foresight of consequence."
In Coleman, it was held that it was not necessary for the Crown to prove that foresight was of the probability of consequences; foresight of the possibility was sufficient.
In R v Rushworth (1992) 95 Cr App R 252, it was held that a direction to a jury that a defendant was acting maliciously if he was acting deliberately and was aware that some physical harm might, not would, result was correct.
R v Safwan (1986) 8 NSWLR 97 concerned the adequacy of directions given to a jury in respect of the meaning of "maliciously" as the word appeared in s 33 of the Crimes Act as it then stood. Section 33 created various offences of wounding, infliction of grievous bodily harm, shooting or attempting to discharge loaded weapons at any person, in each case done maliciously, and with one of a number of specified intentions. The trial judge directed the jury in terms of s 5. He interpolated an explanation of "malice" by saying "that is, with evil intent …". This Court (Street CJ, Lee and McInerney JJ) approved the explanation, but considered that the direction could have been simplified by deletion of parts of s 5 not applicable to that case. The direction their Honours preferred was:
"… every act done of malice; that is, with evil intent, or with intent to injure some person or persons, and in such case without lawful cause or excuse, shall be taken to have been done maliciously within the meaning of the Act."
It is apparent that their Honours were construing "malice" as it appeared in s 5, but without the expansionary content of s 5 - in other words, the explanation given to "malice" was an explanation of that word in its conventional, legal, sense.
While the words "of evil intent" might now seem dated - even "archaic" - what can be accepted is that the word "malice" and its counterparts are to be given a broad meaning. They are well able to encompass a dangerous act undertaken in the course of an illegal drug manufacturing enterprise in inadequate premises.
Accordingly, whether "malicious" in s 18(2)(a) is to be interpreted in the light of s 5, or absent that light, the respondent's submission must fail.
In these circumstances, I have concluded that the respondent has established no discretionary basis for taking either of the courses proposed, either of which would result in the affirmation of the acquittal on the murder charge.
The Director also sought an order for a new trial. Although it may not strictly be necessary to do so (since once the acquittals are quashed, the charges have not been disposed of), s 107(6) of the Appeal and Review Act makes specific provision for such a course, and, accordingly, I propose that the Court make such an order.
The orders I propose are:
1. The verdict of the Supreme Court of 2 December 2014, pursuant to which the respondent was acquitted of the murder of Zhi Min Lan is quashed.
2. The verdict of the Supreme Court of 2 December 2014, pursuant to which the respondent was acquitted of the manslaughter of Zhi Min Lan is quashed.
3. There be a new trial on the charges of murder and manslaughter.
R A HULME J: I agree with Simpson JA. I would only add that I have no doubt about the correctness of her Honour's primary view that cl 65 of Sch 11 preserves, for the purposes of s 18(2)(a), the application of the repealed s 5. If it were otherwise I am unable to discern to what end that particular provision was inserted into the "Savings and Transitional Provisions" Schedule of the Crimes Act.
BELLEW J: I agree with Simpson JA. I also agree with the additional observations of R A Hulme J.