Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 332
Court: Supreme Court of New South Wales
Date: 12 March 2018
Judge(s): Harrison J
Background
Four accused were tried for the murder of a man referred to as Mr Vollmost. The Crown alleged that all four pursued the deceased to residential premises at South Windsor with the intention of inflicting grievous bodily harm upon him. The deceased retreated to a shed on the property, where the fatal injuries were inflicted.
The evidence suggested that either Mr Davies or Mr Bentley directly inflicted the fatal injuries. Mr Davies gave evidence that the deceased had produced a sawn-off shotgun in the shed, and that Mr Bentley punched and kicked him in response. Mr Tilley, by contrast, was standing in the driveway at the relevant time, guarding another individual, and did not enter the shed until after the fatal injuries had been inflicted.
Before summing up to the jury, senior counsel for Mr Tilley raised three questions about the directions of law to be given. Harrison J delivered these reasons to resolve those questions.
Legal Issues
- Whether the jury should be directed that an accused who did not personally inflict the fatal injuries can only be convicted of murder under a joint criminal enterprise if the co-accused who did act were not acting in self-defence
- Whether the jury should be directed that the Crown must establish each accused was aware that an extendable baton was taken to the premises, in the context of extended joint criminal enterprise, given that the cause of death was uncertain
- Whether constructive (felony) murder should be left to the jury, where the Crown could not establish that the deceased was alive when the accused attempted to detain him
Decision
Self-defence and joint criminal enterprise
Harrison J held that self-defence was required to be left to the jury in relation to all accused, including those who did not personally inflict the fatal injuries. His Honour accepted that the reference in Clayton v The Queen to the possibility that death or serious injury might be inflicted "otherwise than in self-defence" supports the proposition that whether the physical actors were acting in self-defence remains relevant to the liability of non-physical participants. On the attribution principles confirmed by the High Court in Osland v The Queen and IL v The Queen, what is attributed between co-offenders acting in concert is the acts themselves, not the liability. It followed that if the acts of the physical perpetrators were done in self-defence, they were not unlawful acts, and a co-participant could not be convicted of murder on the basis of those acts.
Extended joint criminal enterprise and the baton
Because the cause of death was uncertain, and the jury might conclude the deceased was killed by the extendable baton rather than by punching and kicking, the extended joint criminal enterprise direction required the jury to be satisfied that each co-accused was aware that Mr Davies had the baton at the time he left the vehicle or entered the shed. Harrison J confirmed this direction was appropriate: if the use of the baton was an unexpected escalation that a particular accused did not foresee, that accused could not be found guilty of extended joint criminal enterprise murder on that basis.
Constructive (felony) murder
Harrison J rejected the submission that constructive murder (also called felony murder) should be withheld from the jury. The argument was that, because the deceased's condition at the time he was to be moved was unknown, there was no evidence of an intention to detain a living person. His Honour reasoned that the attempt to commit the underlying offence of specially aggravated detention commenced when the accused arrived at the premises and continued until frustrated by the deceased's death. The act of arriving in numbers and chasing the deceased into the shed was capable of evidencing an intention to detain him, making the question one properly left to the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under the attribution principles established in Osland v The Queen and affirmed in IL v The Queen, what is attributed between co-offenders in a joint criminal enterprise is the acts of each participant, not their individual liability or the actus reus of a notional offence.
- A co-accused who did not personally inflict fatal injuries cannot be convicted of murder on a joint criminal enterprise basis where the physical acts causing death were lawful, as where those acts were committed in self-defence. The self-defence issue therefore remains relevant to the liability of all participants, not only those who delivered the fatal blows.
- In an extended joint criminal enterprise case where the cause of death is uncertain, a direction that each accused must have foreseen the specific manner in which death was caused (here, the use of a baton) is required before that accused can be convicted on that basis.
- Constructive murder can be left to the jury where an attempt to commit the underlying serious offence arguably commenced before death, even if the precise condition of the deceased at the time of the attempt is unclear. The attempt offence may continue up until it is frustrated by the victim's death.
- The High Court's non-criticism of specific jury directions in earlier cases does not automatically render those same directions appropriate in cases with different factual circumstances.
Legislation and Cases Referenced
Cases:
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27
- Hawi v R (2014) 244 A Crim R 159; [2014] NSWCCA 83
- Clayton v The Queen (2006) 81 ALJR 439; [2006] HCA 58
- R v Sharah (1992) 30 NSWLR 292
- Taufahema v R [2007] NSWCCA 33
Legislation: No specific legislation was identified in the provided text.