R v Ng [2002] VSC 561

5. The ruling was made before the scheduled trial of the accused, Shane Edward Ng. He had been charged with the murder on 14 November 2000 of Cameron Rudd. The deceased, a taxi driver, was found shot once in the head. The accused, after he had been arrested, told the police that he had shot the deceased. He gave his version of events. He said that he had a loaded gun. He planned to rob the deceased. He asked the deceased to drive to a distant spot. The deceased did so. The accused then demanded money from the deceased. He pointed his gun at the deceased. The deceased went to grab the gun. The accused jumped back. The gun went off. The accused then removed the body from the taxi. He took the wallet of the deceased. He drove off. He abandoned the taxi.

8. The presentment contains one count of murder. On the back of the presentment there is the endorsement: "contrary to section 3A of the Crimes Act 1958 and to Common law".

Section 3A of the Crimes Act 1958 is in these terms: 3A (1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally. (2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

12. The occasion for my ruling as I have arose in this way. I was given a list of issues as to which I was to be called upon to provide pre-trial rulings. I was first asked to, and did, hear argument on and make a ruling as to the admissibility of a police interview and related material. I was then told that a ruling was sought on a matter not on the list. I was told by Mr Montgomery, counsel for the accused, that the accused wanted to plead not guilty to "common law murder" but to plead guilty to "3A murder". Mr Montgomery put to me that a "3A murder" was a statutory offence, totally separate from "common law murder", that it should be so charged on the presentment, and that it was a classic jury question as to whether there was an intentional killing or not. Ms Pullen, prosecuting, submitted that all aspects of the process, including presentment, arraignment and questions for jury should be treated on the basis that there was one offence, not two. I was told that neither counsel was aware of any authority directly on the point. I indicated that I would prefer to carry out some research overnight. The next morning, I said to counsel that, like them, I could find no direct authority. I said that I had formed a preliminary view. It was that I did not consider that the presentment had to be changed. However, in the circumstances of this case, I was minded to allow the accused to be arraigned as on two separate charges, and for a verdict to be taken as on two separate charges.

15. Mr Montgomery indicated that he would go along with what I proposed. Ms Pullen sought to persuade me that it was not an option open to me to arraign and take verdicts as on two separate charges.

18. Ms Pullen put to me that there was only one crime of murder, as provided for in Sections 3 and 3A of the Crimes Act. She argued that s.3A, through the words "as though he had killed that person intentionally", was applicable to that one crime. Murder can be committed in four ways: with an intent to kill; with an intent to cause really serious injury; under S.3A; and by way of reckless murder. There is no penalty specific to a murder under s.3A. The penalty is that for murder. A murder under s.3A is not an alternative. A verdict of murder under s.3A is a verdict effectively of an intention to kill, on the wording of s.3A. After there is such a verdict, it becomes a sentencing issue. Ms Pullen argued that the trial judge should not take separate verdicts from a jury, or special verdicts, that is a verdict under s.3A or otherwise. She took me to the decisions of R v Satalich [2001] VSCA 106; (2001) 124 A Crim R 335 and R v Butcher [1986] VR 4. She argued that Satalich was authority for the proposition that separate verdicts should not be taken. In Butcher there was only the one count of murder, although it was put that the common law and s.3A applied. The trial judge had proceeded accordingly. The Court of Appeal did not disagree. Ms Pullen argued that the trial judge would have to make a finding on the intention issue for sentencing. It was not a matter that the jurors should be turning their minds to. The one verdict to be taken from the jury should be whether the accused was guilty or not guilty of murder.

21. I do accept that there is only one crime of murder with only one penalty. I accept that the formulation of ss. 3 and 3A confirms that that is so. I do accept that there is not a s.3A alternative to "common law murder", in the sense that alternative crimes and verdicts are commonly referred to. So long as it is clear from the presentment that s.3A is being relied on, one charge of murder will suffice. I accept that it would be appropriate to proceed, by arraigning the accused on one count, and taking a verdict on one count. I do not accept that it is the only correct way to proceed. In the circumstances of this case, I consider that it preferable to proceed by arraigning the accused and taking verdicts as on two counts.

24. 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.

27. There are statutory provisions in other Australian states as to a modified felony murder in terms similar to, but sufficiently different to matter from, the Victorian section. At times, the expression "statutory murder" is used as to the modified version, just as "constructive murder" was used to describe felony murder. The analysis in Butcher of s.3A relative to the nature of an act of violence has been referred to with commendation in decisions in South Australia in R & G [1995] SASC 4997; (1995) 63 SASR 417, R v Maurangi & Rivett [2000] SASC 347; (2000) 117 A Crim R 446 and R v NJA [2001] SASC 341, [2002] SASC 113 and in Queensland in R v Breeze [1999] QCA 303; (1999) 106 A Crim R 441. I have not been able to find in the reports of Ryan and Walker, Ryan and Butcher, or in the later interstate cases, a direct reference to how the verdict was taken, whether by one question or more than one. I have assumed it was only with one, given that there is no reference to more than one. Nor could I find any indication as to what, if anything, the trial judge said to the jury as to their having to be unanimous as to which way they came to a verdict. No issue as to how the trial judge dealt with the process appears to have been raised on the hearing of the appeals. That may be seen to be an important consideration in favour of leaving only a verdict on the one charge of murder for the jury. But it does not mean that a trial judge is precluded from leaving a verdict as on two charges in appropriate circumstances.

30. 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

33. 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

36. On the question of the form of the presentment, as noted earlier, I did not hear argument in full. I believe that it is clear from Butcher and the other interstate cases to which I have referred that there is no analogous support for a conclusion that separate counts must be included in the presentment. What matters at that stage is that an accused should know what case he has to meet. Given the endorsement on the presentment in this case, there was no scope for uncertainty on the part of the accused as to what the case against him was.

39. Having reviewed carefully the several cases dealing with "statutory modified felony murder'" as well as some other cases involving considerations as to offences of the same genus with different circumstances, it seems to me that s.3A murder is "sui generis". There is only one crime, with more than one way of committing it. The circumstance that differentiates common law murder from a s.3A murder is a pretty fundamental one. It is whether or not there was murderous intent. The relative importance, in any particular case, of the differentiating circumstance will vary. In the instant case, it is of particular importance. I am satisfied that it should be decided by the jury. That can be done relatively readily. I can perceive no cumbersomeness or other obvious disadvantage in proceeding to obtain verdicts as on two counts. Proceeding in that way will also have the virtue of meaning that I will not have to direct the jury as to the basis upon which they must be unanimous. I am not able to accept that the statutory formulation precludes my moulding the procedure to maximally involve the jury in deciding the factual basis. I am not suggesting that the procedure that I propose should be adopted in this case is the only option. I am only ruling that it is the most appropriate procedure in the circumstances of this case.