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Court of Criminal Appeal 4 October 2017

Moussa v R

[2017] NSWCCA 237

Homicide
CRIMINAL LAW APPEAL JOINT CRIMINAL ENTERPRISE MANSLAUGHTER WHERE DECEASED’S ACT CAUSES OWN DEATH KILLING

Citation: Moussa v R [2017] NSWCCA 237
Court: Court of Criminal Appeal, NSW
Date: 4 October 2017
Judge(s): Ward JA; Fagan J; N Adams J

Background

The appellant was convicted in the District Court of one count of arson and one count of manslaughter following a fire at a residential property in Oatlands on 22 November 2011. The Crown case was that the appellant participated in a joint criminal enterprise with the deceased to set fire to the house, acting as a driver and lookout while the deceased set the fire using petrol. A petrol vapour explosion killed the deceased and left the appellant severely injured.

At trial, the prosecution did not allege that the appellant personally caused the deceased's death. Rather, the conviction for manslaughter rested on the joint criminal enterprise: the deceased's own act in igniting the petrol was attributed to the appellant as a co-participant. The appellant received a wholly suspended sentence of two years for each count, to be served concurrently, and appealed solely against his manslaughter conviction.

The central issue, raised for the first time before the Court of Criminal Appeal, was whether a manslaughter conviction can be sustained where the death resulted from the deceased's own act rather than any act of a third party.

  • Whether a manslaughter conviction under s 18(1)(b) of the Crimes Act 1900 (NSW) can be maintained where the person who died caused his own death.
  • Whether, in the context of a joint criminal enterprise, the deceased's act of self-killing can be attributed to a co-offender so as to constitute an unlawful homicide by that co-offender.
  • Whether the trial judge erred in directing the jury that the appellant was "as liable" for the death of the deceased as the deceased himself.

Decision

The Court of Criminal Appeal allowed the appeal and quashed the manslaughter conviction, following the High Court's decision in IL v The Queen [2017] HCA 27, which was handed down after the present appeal was heard but before judgment was delivered. The Court had deliberately awaited the High Court's ruling given the overlap in issues, and no prejudice to the appellant arose from the delay because his manslaughter sentence was wholly suspended and concurrent with the arson sentence.

All three judges agreed that IL v The Queen was determinative. In that decision, the High Court held (by majority, though on different reasoning paths) that s 18 of the Crimes Act 1900 does not create an offence of self-killing. Accordingly, where the only causative act was the deceased causing his own death, that act cannot constitute the actus reus (the physical element) of murder or manslaughter under s 18.

Ward JA noted that the plurality in IL (Kiefel CJ, Keane and Edelman JJ) and the minority (Bell and Nettle JJ) agreed on at least one proposition: a person who kills himself does not commit murder or manslaughter under s 18. The judges in the minority differed from the plurality on how acts committed in a joint criminal enterprise should be assessed, but the shared holding was sufficient to bind the Court of Criminal Appeal. The Crown properly conceded this point.

Because the facts of the present appeal were closely analogous to those in IL, the conviction could not stand. The trial judge's direction that the appellant was "as liable" for the death as the deceased himself was also identified as an error, and leave was granted to press that ground.

Orders Made

  • Leave granted to bring ground 2(a) of the amended grounds of appeal.
  • Appeal allowed.
  • Appellant's conviction for manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 quashed.

Key Takeaways

  • Section 18 of the Crimes Act 1900 (NSW) does not encompass self-killing: the High Court in IL v The Queen held that a person who causes only his own death does not commit murder or manslaughter under that provision.
  • Where the sole causative act of death in an alleged joint criminal enterprise is the deceased's own act of self-killing, that act cannot constitute the actus reus of manslaughter, regardless of whether the act is attributed to a co-participant.
  • A conviction for manslaughter based on joint criminal enterprise requires that the relevant unlawful act be capable of founding the offence; attribution of an act to a co-offender does not transform a self-killing into an unlawful homicide under s 18.
  • Although IL v The Queen produced no single ratio decidendi accepted by a majority of all seven justices, the Court of Criminal Appeal confirmed it was bound by the result, or holding, of that decision.
  • A trial direction telling a jury that an accused is "as liable" for the death as the person who physically caused it was found to be an error in circumstances where the physical cause was the deceased's own conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 195(1A)(b)
- Criminal Appeal Rules (NSW), r 4

Cases
- IL v The Queen [2017] HCA 27
- IL v The Queen [2017] HCATrans 65
- IL v R [2016] NSWCCA 51
- ARS v R [2011] NSWCCA 266
- CLD v R [2015] NSWCCA 114
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16