[2005] HCA 37
Mitchell & Ors v The King (2023) 97 ALJR 172
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Catchwords
[2005] HCA 37
Mitchell & Ors v The King (2023) 97 ALJR 172
Judgment (6 paragraphs)
[1]
Introduction
This judgment explains the bases upon which I indicated to counsel that I would direct the jury in a murder trial about the elements of the offence alleged against one of the accused, Ms Sherene Rizk. The trial was aborted well before the delivery of any summing-up (see: R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202). Furthermore, I believe that it is at the least likely that the recent judgment of the High Court of Australia in Mitchell & Ors v The King (2023) 97 ALJR 172; [2023] HCA 5, supersedes the thoughts underpinning my rulings. For those two reasons, I shall not be expansive.
[2]
Background
The background is that five persons were accused of having committed the offence of murder against Mr Luke Lembryk (the deceased) on 7 December 2019. There were other ancillary offences variously alleged against different accused persons. They appeared before me in a single joint trial.
The allegation in short was that, some months before his death, the deceased had met Ms Lisa Price on a dating app. Whilst at his home, and after having consumed cocaine provided by him, she saw that he possessed a significant sum of cash. Ms Price identified the deceased as a suitable target for a robbery. She informed others of that, including Ms Rizk.
Eventually, Mr Joseph Nehme, Mr Viliami Taufahema, and Mr Bilal Rahim agreed that they would commit a robbery in company upon the deceased. They attended his home in hours of darkness, and Mr Nehme and Mr Taufahema entered, Mr Rahim waiting outside. Ms Lisa Anne Price was not physically present, although she was directing the three men as to which apartment to enter, by way of the FaceTime app on her mobile phone.
The deceased resisted being robbed. He was fatally stabbed by either Mr Nehme or Mr Taufahema. The mother of the deceased was also in the home, and she was brutalised as well.
[3]
Legal doctrines
The Crown case for murder against each of those four accused can be summarised as follows. They entered into a basic joint criminal enterprise to commit a robbery in company, in that they all agreed to the commission of that offence, at which three of them were present, and to which one of them (Ms Price) agreed, and at which she was perhaps, "constructively present".
Each of them also foresaw the possibility of a wounding occurring during the course of that agreed offence. In fact, the robbery was unsuccessful, although the deceased was assaulted with intent that he be robbed. That offence occurred pursuant to the basic joint criminal enterprise.
Furthermore, the fatal injury was a wounding. The Crown assertion was that such an outcome - in the sense of there being a breaking to the skin of a person that extended below the topmost layer - was foreseen as a possibility by each accused person, and yet they maintained their commitment to the assault with intent to rob in company.
As a result of the doctrine of extended joint criminal enterprise, that foresight of the possibility of the final element of the offence meant that each of those four accused was guilty of assault with intent to rob in company with wounding.
Pursuant to s 98 of the Crimes Act 1900 (NSW), that offence is relevantly as follows:
Whosoever, … being in company with another person, … assaults with intent to rob, any person, and … at the time of … such …assault, wounds… such person, shall be liable to imprisonment for 25 years.
The Crown case relied upon that offence as providing a foundation for an allegation of constructive murder, pursuant to s 18 of the Crimes Act (for that reason, I shall refer to the assault with intent to rob in company with wounding as "the foundational offence").
That section is relevantly as follows:
18 Murder and manslaughter defined
(1)
(a) Murder shall be taken to have been committed where the act of the accused, … causing the death charged, was … done … during … the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
…
As can be seen, the only criterion in New South Wales for an offence being a foundational offence is its maximum penalty. Because the offence of assault with intent to rob in company with wounding carries a maximum penalty of imprisonment for 25 years, it is a foundational offence as defined.
The Crown case for murder in short was that the act causing death was the stabbing of the deceased; that it was performed during the commission of the fatal offence; and that, as against each of those four accused, it was either committed by him (in the case of Mr Nehme or Mr Taufahema) or by an accomplice of each accused.
To summarise then: the Crown case against those four accused relied upon a combination of basic joint criminal enterprise, with regard to all elements but one, of one of the foundational offences described in the offence-creating provision; extended joint criminal enterprise with regard to wounding, the final element of the foundational offence; and constructive murder on the basis that a foundational offence as defined could be established against each accused.
The case against Ms Rizk, however, was posited differently by the Crown. It is to be recalled that she was alleged neither to be at the scene (like Mr Nehme, Mr Taufahema, and Mr Rahim) nor actively involved in the commission of the foundational offence from afar, but in a certain sense present even so (like Ms Price). Instead, as the count on the indictment against her made clear, the allegation was that she had been an accessory before the fact to murder. The Crown case in that regard was constructed as follows.
Ms Rizk had allegedly strapped a machete across the back of Mr Nehme, prior to him riding on his motorcycle to the scene, because it would have been impossible for him to hold such an implement in his hands whilst safely manipulating the handlebars. When she did so, she was aware that Mr Nehme was going to engage in an assault with intent to rob in company. With that knowledge of the elements of the offence that was to be committed, she intentionally assisted him to do so, by the strapping on of the weapon. Finally, she foresaw the possibility of a wounding, not least because of the inherent nature of the assistance that she was providing.
The Crown thesis was therefore that, by way of an analogue of the doctrine of extended joint criminal enterprise that has long been held to apply to accessories before the fact, she was guilty of the foundational offence. Thereafter, s 18 "automatically" rendered her guilty of murder, just as it did the other accused.
In support of the proposition that an analogue of extended joint criminal enterprise could apply to an accessory before the fact, reliance was placed by the Crown upon the seminal decision of Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3, on the facts of which, it is to be recalled, the appellant had not been present at the scene of the murder in question. And yet he was inculpated by way of his foresight of possibilities.
[4]
Submissions for Ms Rizk, and my responses to them
During a lengthy voir dire that was conducted before the formal arraignment of all accused and the empanelment of the jury, senior counsel for Ms Rizk made a number of submissions about the doctrines summarised above (commencing at page 178 line 37 of the trial transcript (hereafter, expressed as TT 178.37)).
The first was that combining extended joint criminal enterprise and constructive murder was an unavailable melding of two doctrines that themselves significantly extend criminal liability. The well-known inability of the Crown to rely upon a combination of the common law offence of conspiracy and the doctrine of attempt was relied upon as an example of the refusal of the criminal law to extend liability too far.
I rejected that submission, on the basis of the authority of the New South Wales Court of Criminal Appeal in R v Sharah (1992) 30 NSWLR 292. That seemed to me to be an example of such a melding that had been approved by Gleeson CJ, Carruthers and Smart JJ and that was binding upon me (TT 189. 30).
Separately, the submission was that, in truth, even if Ms Rizk had strapped a machete across the back of Mr Nehme, that could not constitute being an accessory before the fact to the alleged foundational offence. Rather, it could only constitute being an accessory before the fact to an offence, some element of which was being armed. It was said that, as a practical matter, it was impossible to conceive of circumstances in which a person who had available to themselves an item such as a machete, during an assault with intent to rob in company, could not be thought of as being armed.
It was also said that, if the offence that Ms Rizk had allegedly knowingly and intentionally assisted did not feature as an element the assisted principal being armed, there was an inevitable "mismatch" between that offence and her alleged state of mind, bearing in mind the act of assistance that she was alleged to have committed: providing Mr Nehme with a way to arm himself with an offensive weapon (TT 180.30).
I did not in terms reject that submission. Rather, I suggested to senior counsel that such a submission could be made in support of a verdict by direction at the close of the Crown case; in the alternative, as needs be, perhaps it could be made as a submission about the evidence to the jury in final address (TT 190.15).
Having said that, I did not accept that I had any power to direct the Crown as to which of the various foundational offences to be found in s 98 it could or should rely upon. And I believed that that limitation upon my role applied even in the factually unusual circumstances of an accessory before the fact allegedly knowingly and intentionally assisting the principal to be armed, despite being armed not being an element of the alleged foundational offence.
For the same reason, I did not accept that I should direct the jury in due course that Ms Rizk, as accessory before the fact, needed to have a mental element (whether knowledge, intention, or otherwise) to do with the commission of an offence that featured the use of arms. My analysis was that, in order to be guilty of an offence, speaking generally an accessory before the fact, with knowledge of the elements of the primary offence to be committed, must have intentionally encouraged or assisted the principal to commit that offence. And yet, to repeat: the foundational offence relied upon by the Crown did not feature an element of being armed (TT 189.10).
Finally, senior counsel submitted that the phrase "or some accomplice with him or her" in s 18 of the Crimes Act has real work to do (TT 205.40). The submission was that that statutory formulation restricts the doctrine of constructive murder to the actual principal in the first degree, or accessories (I use that term generically) who are physically present at the scene. In other words, the preposition "with" must be read geographically or spatially, not as connoting a relationship between the principal and the accessory, which could encompass inculpation by way of constructive murder of an accessory who was not physically at the scene. The well-known principal of construction that ambiguous criminal legislation should be read in favour of the liberty of the subject was relied upon.
I respectfully rejected that submission as well, for the following reasons.
First, that phrase has been part of the statutory criminal law of New South Wales since 1883: see generally The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37. And yet I was taken to no authority of any court of this State, including the Court of Criminal Appeal, that supports that limitation.
Secondly, on the assumption that such a geographical reading would have constituted a limitation on the pre-existing common law of murder (including felony murder) by way of the Criminal Law Amendment Act 1883 (NSW), one would have expected discussion of it in the Second Reading speech, and debate about it in the Parliament of the colony of New South Wales. And yet it seems that there was none.
Thirdly, judgments of trial judges of this Court are to opposite effect: see R v Lew [2023] NSWSC 1073 and R v Batak [2022] NSWSC 424. Whilst not strictly binding on me as a matter of judicial hierarchy, they are persuasive, and one would only decline to follow them with caution. Quite apart from that, I agreed with them in any event.
Fourthly, I did not accept that the objectively determined intention of Parliament was to make such a significant doctrine of inculpation as constructive murder turn upon the caprice of whether an accessory happened to be at the scene (guilty of murder, and as at 1883 subject to a mandatory penalty of death, expect for vice-regal pardon), or around the corner, 50 metres away (not guilty of that offence).
[5]
Reflection and conclusion
The above summarises all of the reasons why I respectfully rejected most of the submissions of senior counsel for Ms Rizk, and deferred the rest of them as inappropriate for resolution at the pre-trial stage. All of my rulings on those topics had been provided before arraignment and empanelment, which occurred on 28 February 2023.
Subsequently of course, on 8 March 2023, the High Court delivered its judgment in Mitchell v The King. It was the delivery of that judgment that led me to abort the trial, with the agreement of all parties. And it suffices to say that I respectfully think that that judgment calls into question many if not most of the pre-trial decisions I made with regard to Ms Rizk. That is because those decisions were based on an incomplete understanding on my part of the intersection between constructive murder and other doctrines, and the extent to which the former should be "confined so far as possible": see, in particular, the judgment of Kiefel CJ at [30].
In any event, the preceding paragraphs set out my thinking as it stood at the conclusion of the pre-trial arguments relating to Ms Rizk.
[6]
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Decision last updated: 26 April 2024