185 He then gave a general direction in relation to constructive murder:
"… murder is committed where the act causing the death of the deceased, is done during the commission by the accused, or some accomplice with him, of a crime punishable by imprisonment for 25 years and here the Crown relies upon proof of the crimes charged in count 2 and/or count 3. Each of those crimes charged in those counts, is in a category punishable by imprisonment for 25 years."
186 This was first applied to the foundational offence, which was the subject of Count 2:
"To establish the crime of murder here the Crown must prove the following:
1. That there was a common purpose shared by the accused in company, to rob Shane Cole.
2. That during the course of that robbery in company, grievous bodily harm was inflicted upon Shane Cole.
3. That the infliction of such grievous bodily harm was a contingency, that is a possible happening, which the accused had in mind might occur during the robbery in company. Might occur.
The Crown does not have to prove that it was necessarily the accused whose case you are considering, who personally inflicted the grievous bodily harm. It is sufficient that the harm was occasioned either by that accused, or by another party to the enterprise. Provided the infliction of that harm was a possible happening which the accused, whose case you are considering, had in mind as something that might occur during the robbery.
4. The Crown has to prove that the infliction of that harm caused the death of Shane Cole. The Crown does not have to prove, members of the jury, that the act, or acts causing death was, or were done with an intent to kill, or indeed with intent to cause grievous bodily harm. But it must prove that such act, or acts, were voluntary not accidental. And it must prove that such act, or acts, was or were done, during the commission of robbery in company. When I say that it has to prove that the acts were voluntary, by that I mean that the act, or acts were conscious, deliberate, as opposed to accidental. I will come back to this question of causation in just a moment. But they are the elements that have to be proved, based upon the foundational crime charged in the second count."
187 His Honour next applied the general direction in relation to the foundational crime charged in the third count, explaining that:
"The elements to be proved are the following:
1. That there was a common purpose, shared in company, to rob Shane Phillips;
2. That during the course of that robbery in company the accused or another party to that enterprise wounded Shane Phillips and during the course of that robbery in company with wounding the accused or another party to that enterprise caused grievous bodily harm to Shane Cole causing his death; and
3. That the infliction of grievous bodily harm to Shane Cole during the robbery in company with wounding of Shane Phillips was a possible happening, a possible happening which the accused whose case you are considering contemplated might occur."
188 The Appellants submitted that the present was not a case where constructive murder (or felony murder as it was previously known) was available. This submission turns upon the proper interpretation of s 18 of the Crimes Act 1900.
189 It was asserted that, on its natural reading, the opening words to the section "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" govern the section, and mean that murder can only be established where it was the act or omission of the accused that caused the death.
190 It was further asserted that the category of constructive murder, which is brought within the section (in addition to cases of specific intention or reckless indifference to human life) by the closing words "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 for life or for 25 years, are directed to the commission of the foundational crime, and not to the act causing death.
191 At the outset it is to be observed that the first proposition that was advanced is somewhat startling, since if it is correct, then in a case of joint enterprise, where the parties shared an intention to kill or inflict grievous bodily harm, murder would only be committed by the accused whose act in fact brings about the death.
192 Such a proposition would fly in the face of long standing authority that a person may be found guilty of murder, although he or she did not commit the act bringing about death, so long as that person was acting in concert with the perpetrator. That was recognised in Osland v The Queen (1998) 197 CLR 316 at 341 to 351 and in McAuliffe v The Queen (1995) 183 CLR 108, and there are numerous examples in the case law, including for example R v Mohan [1967] AC 187 where offenders acting in concert have been convicted of murder, even thought the Crown is not able to prove which of them carried out the act causing death.
193 Prior to 1883, murder in New South Wales, was murder as defined in the common law. In the 13th Century, homicide was culpable if the death occurred during the commission of an unlawful act. In Foster's Discourse of Homicide in 1762, the felony murder rule was relaxed to the extent that it was confined to the case of a killing in the course of an act with intent to commit a felony.
194 This strict approach is illustrated by the case of R v Horsey (1862) 3 F & F 287; 176 ER 129 where the accused was charged with murder after setting fire to a stack of straw. There was no evidence that the accused had any idea of the presence of the deceased, who was sleeping in the stack and who was burned to death. The trial judge, Baron Bramwell, instructed the jury that where an accused, in the course of committing a felony, caused the death of a human being, that was murder, even though he did not intend it.
195 This approach was criticised by those who disliked making death, occasioned during the course of a felony, murder when violence was neither likely nor intended.
196 Stephen J expressed his dislike of the strict approach in R v Serne (1887) 16 Cox CC 311 when instructing the jury:
"…Now when it is said that murder means killing a man by an act done in the commission of a felony, there mere words cover a case like this, that is to say, a case where a man gives another a push with an intention of stealing his watch, and the person so pushed , having a weak heart, or some other internal disorder, dies. To take another very old illustration, it was said that if a man shot at a fowl with intent to steal it, and accidentally killed a man, he was to be accounted guilty of murder, because the act was done in the commission of a felony. I very much doubt, however, whether that is really the law, or whether the Court for the Consideration of Crown Cases Reserved would hold it to be so. …In my opinion the definition of the law which makes it murder to kill by an act done in the commission of a felony might and ought to be narrowed…I think that, instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death done for the purpose of committing a felony which caused death, should be murder. As an illustration of this, suppose that a man, intending to commit a rape upon a woman, but without the least wish to kill her, squeezed her by the throat to overpower her, and in so doing killed her, that would be murder…If a man once begins attacking the human body in such a way, he must take the consequences if he goes further than he intended when he began…If a person chose, for some wicked purpose of his own to sink a boat at sea, and thereby caused the deaths of the occupants, it matters nothing whether at the time of committing the act he hoped that the people would be picked up by a passing vessel. He is as much guilty of murder, if the people are drowned, as if he had flung every person into the water with his own hand."
197 In New South Wales, the strict rule was ameliorated in 1883 in the Criminal Law Amendment Act. Section 9 of that Act expressly defined murder in the following terms:
"9. Whosoever commits the crime of murder shall be liable to suffer death and murder shall be taken to be where the act of the accused or thing by him 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 during or immediately after the commission by the accused or some accomplice with him of an act obviously dangerous to life or a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be Manslaughter."
198 This definition was reproduced in s 18(1)(a) of the Crimes Act 1900. Smart J in R v Downs [1985] 3 NSWLR 312 noted that in the 1883 Act the legislature had been at pains to specify (in s 9) any change to the common law concerning murder. Lee J pointed out in the same case (at 316) that the various acts resulting in death described in s 18(1)(a) were themselves all acts which at common law gave rise to murder. Relevantly his Honour at 318 stated:
"In one respect, the terms of the section brought about a difference from the common law of murder and that was in regard to a killing during the commission of a felony. The accidental taking of life by a person committing (or about to commit) a felony of any kind was at one time murder at common law, but, as pointed out earlier, this was ameliorated as time when by and the felony had to be one dangerous to life and likely to cause death. Under s 18(1)(a) it would amount to murder if the felony was one punishable by penal servitude for life. This matter is dealt with at some length by Windeyer J in Ryan v The Queen (1967) 121 CLR 205 at 240-241. The definition of murder at common law was thus replaced by a definition in accordance with the subsection, but the subsection did no more than attach to an act of homicide states of mind (intent to kill or inflict grievous bodily harm, or reckless indifference) or descriptions (obviously dangerous to human life, or committed during or immediately after a felony punishable by death or penal servitude for life) which would, in any event, at common law have made the act of homicide murder."
199 As is discussed later in these reasons, it is a principle of long standing that a person may be found guilty of murder although he or she did not commit the act or acts which physically caused the death of the victim, provided that the or she was acting in concert with the perpetrator.
200 The wording of s 18 did not alter the operation of the common law rules of complicity. It is a general rule of statutory interpretation that a basic common law doctrine is not to be disturbed unless the statute expressly requires that result.
201 In their commentary on the Act, the draftsmen, Sir Alfred Stephen and Alexander Oliver, noted in their Criminal Law Manual published at the time (at 199):
"The accidental taking of life, by a person committing (or about to commit) a felony of any kind is by the Common Law murder. Under the ninth section it will not amount to that crime, unless the felony was a capital one, or punishable by penal servitude for life. Such last-mentioned act or crime, attempted or committed, may, within the last member of this section, be either by the accused or by an accomplice with him."
202 Later they said:
"So far, it is believed that in effect the English and the Colonial law are the same. But in one particular there is an important difference. The accidental taking of life, by a person committing (or about to commit) a felony of any kind, is by the Common Law murder. Under the ninth section it will not amount to that crime, unless the felony was a capital one, or punishable by penal servitude for life."
203 There is nothing in the amended provision to disclose any intention to alter the common law principles of complicity. All that the Act did was to require a capital felony or one involving punishment by penal servitude for life, and to that extent, but only to that extent, it parted from the common law: cf R v Burke [1983] 2 NSWLR 93 per Miles J at 103.
204 While the Appellant sought to call in aid the rule of statutory interpretation noted by Hodges J in Craig Williamson Pty Limited v Barrowcliff [1915] VLR 450 at 452 to the effect that a statute should be construed as far as possible so as to give the same meaning to words wherever those words appear in the instrument, more relevant is the rule noted in Saraswati v The Queen (1991) 65 ALJR 402 per McHugh J at 410:
"Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction "that would promote the purpose or object underlying the Act" over a construction "that would not promote that purpose or object": cf Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 261-2 … Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes."
205 In this instance it is perfectly clear that the reference to "the accused" when used twice in s 18 is a reference to the accused who is on trial and is not intended to give rise to the consequence that it must be his act, rather than the act of a person acting in concert, which causes death.
206 It is equally clear that the 1883 Act was passed to ameliorate the harsh common law approach to felony murder, and was not intended to restrict the principles of complicity, which were well entrenched in the 19th Century, so as to confine culpability for felony murder to the case of the offender whose act caused death.
207 Later amendments to the Crimes Act do not require any different approach. By Act No. 50 of 1974 the words "of an act obviously dangerous to life or" were omitted from s18. The Second Reading Speech of the Minister (Hansard, 1974 at 1355-6, 1829) indicates it was thought that the concept either unnecessarily increased the Crown's difficulty of proof to an absurd degree, or was mere surplusage because the selection already included the concept of an act done with reckless indifference to human life, or operated with undue harshness against an accused. By Act No. 218 of 1989 the class of felony that came within the section was extended to those that attracted a maximum sentence of imprisonment for 25 years. The amendments also changed the maximum sentence for a number of offences from penal servitude for life to one of 25 years; for example, robbery with wounding.
208 The limited authority that exists in this regard also does not support the conclusion for which the Appellants contend.
209 In R v Surridge and Anor (1942) 42 SR (NSW) 278, the victim, who had visited a prostitute, was assaulted by a number of persons intent on robbing him. The prostitute hit him on the side of the head after he objected to the presence of another female who had entered the room and rifled through his pockets taking his money. The prostitute then left the house and brought back her husband, the Appellant, and another man. A witness saw both men go into the house, heard sounds of violence coming from within and then saw the two men carry the victim around the corner to a vacant allotment. He died sixteen days later from his injuries.
210 On appeal this Court considered the question, whether "it was necessary to direct the jury that if they found that [the Appellant] was an accomplice of those who committed the actual acts of violence they must or might return a verdict of manslaughter only". Jordan CJ (with whom Halse Rogers and Maxwell JJ agreed) said (at 282):
"The following considerations are material in considering whether an accomplice has incurred liability to conviction upon a charge of murder. At common law, killing constituted murder in two classes of case which, stated broadly, were (1) where the killing was intentional, and (2) where it was done unintentionally in the course of committing certain crimes which did not necessarily involve killing. This distinction is maintained in the definition of murder contained in s 18, which provides that murder shall be taken to have been committed only in two classes of case which, stated broadly, were (1) where the killing was intentional, and (2) where it was done unintentionally in the course of committing certain crimes which did not necessarily involve killing. This distinction is maintained in the definition of murder contained in s 18, which provides that murder shall be taken to have been committed only in two classes of cases, (1) where what caused the death was done or omitted (a) with reckless indifference to human life, or (b) with intent to kill or inflict grievous bodily harm, or (2) where it is done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with in, (a) of an act obviously dangerous to life, or (b) of a crime punishable by death or penal servitude for life. Every other punishable homicide shall be taken to be manslaughter.
The special mention of an accomplice in the second group does not exclude accomplices from liability for murder for killings incurred in the first group."
211 Speaking of an agreement between two or more persons falling into the second class of cases, Jordan CJ said (at 283):
"If, however, their agreement does not involve the doing of something in the first group, it is necessary, in order that the person who is an accomplice only may be guilty of murder, that it should have been within the common purpose of both that an act obviously dangerous to life, or a crime punishable by death or penal servitude for life, should be committed, and the cause of the death must have been something done by the other in an attempt to commit or during or immediately after the commission of that act or crime.
In my opinion, upon the evidence given in the present case, there is nothing in s 18 of the Crimes Act , 1900, which prevented the conviction of [the Appellant] of murder if the jury took the view that he was an accomplice only…"