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Supreme Court 2 December 2014

R v IL (No 2)

[2014] NSWSC 1710

HomicideDrugs
CRIMINAL LAW CONSTRUCTIVE MURDER MURDER FELONY RULE JOINT CRIMINAL ENTERPRISE INTERACTION OF PRINCIPLES OFFENDER KILLED IN FIRE

Citation: R v IL (No 2) [2014] NSWSC 1710
Court: Supreme Court of New South Wales
Date: 2 December 2014
Judge: Hamill J

Background

The accused, referred to as IL, was charged with multiple offences following a house fire at residential premises in Ryde. When police and fire fighters arrived, they found IL present with smoke inhalation symptoms and another person, the deceased, who had suffered severe burns. The deceased was taken to hospital and died some days later. The fire was contained largely within the bathroom, where a gas cylinder connected to a ring burner was found, and the rest of the premises contained items consistent with large-scale methylamphetamine manufacture.

The prosecution alleged that IL and the deceased were engaged in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, an offence carrying a maximum penalty of 25 years or life imprisonment. On that basis, the Crown charged IL with murder under the constructive murder (or "felony murder") rule in s 18 of the Crimes Act 1900 (NSW), with manslaughter as an alternative count.

At the close of the Crown case, IL's counsel applied for a directed verdict of not guilty on both the murder and manslaughter charges. The Crown conceded it could not establish that any act of IL caused the death, nor that whoever did the act had any specific murderous intention. The Crown's case therefore depended entirely on combining the constructive murder rule with the doctrine of common purpose or joint criminal enterprise.

  • Whether a directed verdict of not guilty was appropriate on the murder and manslaughter counts.
  • Whether the doctrine of joint criminal enterprise (common purpose) could extend the accused's liability to acts committed by the deceased co-offender that caused the deceased's own death.
  • Whether constructive murder under s 18 of the Crimes Act 1900 could apply where it was the deceased himself who may have performed the act causing his own death.
  • Whether the chain of causation was broken by the voluntary act of the deceased, applying principles from Burns v The Queen (2012) 246 CLR 334.
  • Whether a co-offender who dies can logically be held liable for their own homicide, and what consequence that has for derivative liability.

Decision

Hamill J described the prosecution's case as potentially unique in Australian legal history. The Crown's theory required stacking two liability-extending doctrines: first, constructive murder, which removes the need to prove a specific murderous intent where a death occurs during the commission of a serious offence; and second, joint criminal enterprise, which attributes to each participant the acts of co-offenders done in furtherance of the common purpose. The difficulty was that both doctrines were being applied simultaneously and in an unusual direction, namely to render IL responsible for an act that may have been performed by the deceased himself.

On the joint enterprise point, Hamill J held that the doctrine does not operate without limit. A fundamental feature of derivative liability is that the principal offender must themselves be guilty of an offence. Since a person cannot be guilty of their own homicide, the deceased could not be treated as a principal in a scheme that would render him criminally liable for killing himself. The common purpose doctrine therefore could not carry the Crown's case.

On causation, Hamill J applied the High Court's reasoning in Burns v The Queen, which confirmed that the voluntary and informed act of an adult of sound mind breaks the chain of causation. There was no evidence to exclude the possibility that the fire was caused by the deceased's own voluntary act, and no evidence of any vitiating factor such as mistake or intimidation. Accordingly, the evidence was incapable of establishing that IL's participation in the drug manufacturing enterprise caused the death.

In a postscript, Hamill J noted that the causation analysis, which had been decisive on the manslaughter count, applied equally to the murder count. The directed verdict was extended to the murder charge on that basis as well.

Orders Made

• The jury will be directed to acquit the accused of manslaughter
• The jury will be directed to acquit the accused of murder

Key Takeaways

  • The joint criminal enterprise doctrine does not render a participant liable for an act committed by a co-offender where that co-offender cannot themselves be guilty of the relevant offence. A person cannot be a principal in their own homicide, which means derivative liability cannot be established on that foundation.

  • Constructive murder under s 18 of the Crimes Act 1900 (NSW) still requires proof that an act caused the deceased's death. The felony murder rule alleviates the need to prove specific intent but does not remove the requirement of causation.

  • Under Burns v The Queen (2012) 246 CLR 334, the voluntary and informed act of a competent adult breaks the causal chain for the purposes of homicide. Where there is no evidence excluding the possibility that the deceased's own voluntary act caused his death, causation cannot be established against a co-accused.

  • A directed verdict of not guilty is available at trial only where there is no evidence on which a properly directed jury could lawfully convict. Assessing whether the Crown has negatived all reasonable inferences consistent with innocence in a circumstantial case generally remains a jury question, but the absence of evidence on an essential element justifies judicial intervention.

  • This decision appears to be the first in Australian legal history where a prosecution attempted to establish murder by combining the felony murder rule with the common purpose doctrine in circumstances where the deceased co-offender may have caused his own death.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18 (murder and manslaughter defined)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Crimes Act 1958 (Vic)

Cases
- Burns v The Queen [2012] HCA 35; 246 CLR 334
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
- Clayton v The Queen [2006] HCA 58; 168 A Crim R 174
- The Queen v Lavender [2005] HCA 37; 222 CLR 67
- Johns v The Queen [1980] HCA 3; 143 CLR 108
- R v Demirian [1989] VR 97; 33 A Crim R 441
- R v Kennedy (No 2) [2008] AC 269
- R v R (1989) 44 A Crim R 404; 18 NSWLR 74
- R v JMR (1991) 57 A Crim R 39
- R v Phan [2001] NSWCCA 29; 53 NSWLR 480
- Batcheldor v R [2014] NSWCCA 252
- Penza and Di Maria v R [2013] NSWCCA 21
- R v Dagger (District Court (NSW), 21 November 2012, unrep)
- R v Sharah (1992) 30 NSWLR 292
- R v Spathis [2001] NSWCCA 476
- Hong v R [2009] NSWCCA 242
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Jacobs [2004] NSWCCA 462; 151 A Crim R 452