R v Ng [2002] VSC 561

R v Ng [2002] VSC 561 - VSC 2002 case summary — Zoe

[11]

At common law it was, at one time, murder to cause death in the course of committing any unlawful act. Later, it was only so if the unlawful act was a felony, hence felony murder, or constructive murder. The common law position has been changed in most if not all common law jurisdictions in relatively recent times. In England, felony murder was abolished in 1957. In Vaillancourt, (1987) 2 SCR 636 in 1987, the Canadian Supreme Court struck down the provision for a modified felony murder in the Canadian Criminal code as violating the Canadian Charter of Rights and Freedoms. Section 3A was inserted in the Victorian Crimes Act in 1981. The common law position before then was examined by the Victorian Full Court in R v Ryan and Walker [1966] VicRp 76; [1966] VR 553, and by the High Court in Ryan v The Queen [1967] HCA 2; (1969) 121 CLR 205. In Ryan and Walker, the trial judge had directed the jury that a verdict of murder might be found on either of two bases, namely express malice or felony murder. In Ryan, the High Court dealt with a case under the New South Wales statute modified form of felony murder. The trial judge had directed the jury that a verdict of murder might be found in alternative ways, the fourth alternative arising under the statute. In R v Butcher [1986] VR 4, the Court of Criminal Appeal noted aspects of the history of felony murder and the introduction of s.3A. In Butcher, the prosecution case at trial had been that the accused had had the intention to kill the deceased or do grievous bodily harm. It also relied upon s.3A. The Court's main focus was on the words in the section: "by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence". The report sets out part of the charge of the trial judge. He referred to the third way in which the accused could be convicted of murder, that third way involving s.3A. He had earlier dealt with the first two ways - an intentional stabbing with an intent to kill and an intentional stabbing with an intent to do serious bodily harm.

[13]

The law deals in various ways, and for different reasons depending on the gravity of the consequences, with the issue of how criminal liability can arise. Because an accused must know the case he or she has to meet, the narrowing of options is important at the stage of the framing of the charge. The need for an appropriate level of certainty has to be balanced against the need for an appropriate level of flexibility. The rules governing the formulation of charges in presentments are framed keeping in mind the need for such a balance. The procedures for dealing with charges in the course of a trial and for taking a verdict or verdicts must also be governed by the need for such a balance. How that matters can also be seen as important in relation to what is said to a jury as to how it goes about arriving at a unanimous verdict. Juries are routinely told that they are not required to arrive at their verdict by the same process of reasoning, and that some evidence and some arguments will appeal to some jurors and not others. The prosecution case on murder or manslaughter is often put in several ways involving several elements. The jury is not told that they must all be satisfied of guilt in the same way. See R v Power [1960] VicRp 60; [1960] VR 373 at 374, and R v Clarke [1986] 643 at 661. But in certain situations, they are told that they must be unanimous both as to end result and as to the means taken to get to that end result. See R v Beach (1994) 75 A Crim R 447. In the sphere of complicity, there is a potential for various difficulties arising. Much may depend upon how the prosecution puts the case. It is oversimplifying the position to say first that, where criminal liability can be established on different bases, it can be necessary to require that the jury be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt, and secondly that not to require agreement on alternate bases of criminal liability will be acceptable if the alternate bases do not involve materially different issues or consequences. Thatcher v R (1987) 39 DLR (4th) 275, R v Gianetto (1997) 1 Cr App R 1 at 8-9, R v Leivers [1998] QCA 99; (1998) 101 A Crim R 175, and R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101

[14]

I have found the decision of the Court of Appeal in R v Satalich [2001] VSCA 106; (2001) 124 A Crim R 335 helpful, but not all one way. The Court was concerned to review the appropriateness of the procedure adopted by a trial judge. The prosecution case was that there had been a drug trafficking offence under s.71 of the Drugs, Poisons and Controlled Substances Act. There were two counts alleged. On the first count, simply trafficking over a period in February was alleged. On the second count, trafficking over a period in March was alleged, but with a separate paragraph averring that the trafficking was of not less than a commercial quantity. The trial judge sought from the jury a verdict as to both counts, and an answer separately as to whether the trafficking on the second count was of not less than a commercial quantity. The jury returned a verdict of guilty on both, but could not agree on the answer to the question. The trial judge accepted the verdict and took it upon himself to determine the question of whether or not there was a commercial quantity. The court concluded that the procedure was incorrect. It was also criticised as being cumbersome. In Satalich at 347, Winneke P noted that Parliament sought to cope with drug trafficking, which was capable of taking so many forms, by prescribing a single genus of offending and then providing a number of circumstances in which different penalties depended upon the gravity of the circumstances. Parliament was thereby to be treated as creating a separate offence for each of the circumstances provided for, with the circumstance having to be proved beyond reasonable doubt to the satisfaction of the jury. He concluded that the trial judge had erroneously assumed jurisdiction to determine himself whether the critical circumstance existed. While the decision in Satalich is not on the point directly before me, it contains material helpful by way of analogy. In Satalich, there were found to be different offences within a single genus. The fact of different penalties for different circumstances was a consideration. The circumstance that mattered had to be decided by the jury, not by the judge. Cumbersomeness was a consideration

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