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Supreme Court 15 March 2023

R v DJD and Murdoch

[2023] NSWSC 222

Also reported as (2023) 111 NSWLR 193
Homicide
CRIME PRE TRIAL ISSUE MURDER CONSTRUCTIVE MURDER

Citation: R v DJD and Murdoch [2023] NSWSC 222
Court: Supreme Court of New South Wales
Date: 15 March 2023
Judge(s): Wright J

Background

Two accused, DJD and Murdoch, were charged with murder along with three co-participants following the fatal stabbing of Kevin Kourtis at his home in Riverstone, NSW, in May 2020. The Crown's case was that all five participants entered the deceased's home as part of a joint criminal enterprise to assault him with intent to rob, while one of them was armed with a .22 calibre rifle. During or immediately after that robbery, the deceased was stabbed seven times and died from a stab wound to the chest.

The Crown conceded it could not prove which of the five participants had actually inflicted the fatal stab wounds. The prosecution therefore relied on the doctrine of constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW), which allows a murder conviction where death results from an act done during or immediately after the commission of a serious foundational offence, without requiring proof that the accused personally caused the death.

Before trial, DJD and Murdoch raised a pre-trial issue under s 139(2) of the Criminal Procedure Act 1986 (NSW), asking the court to determine precisely what elements the Crown was required to prove to establish their guilt for murder in these circumstances. In particular, the question was whether the Crown needed to prove the accused had agreed that the commission of the foundational offence would, if necessary, be accompanied by force or violence.

  • What are the elements the Crown must prove beyond reasonable doubt to establish constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW) in the context of a joint criminal enterprise?
  • Where the Crown cannot identify which participant in the enterprise delivered the fatal blow, does the Crown need to prove each accused agreed to the possible use of a knife, or wounding, during or immediately after the foundational offence?
  • What is the effect of the High Court's decision in Mitchell v The King [2023] HCA 5 on the elements of constructive murder, including any prior observations in R v Sharah (1992) and R v Johns [1978]?

Decision

Wright J resolved the pre-trial issue in the context of a joint criminal enterprise where the identity of the actual killer could not be established. His Honour considered the High Court's recent decision in Mitchell v The King [2023] HCA 5, which was handed down during the course of submissions and caused all parties to revise their positions. The Crown had originally submitted that constructive murder under s 18 required no proof that an accomplice contemplated the mechanism by which death occurred, but that position was substantially affected by Mitchell.

Drawing on Mitchell and the broader case law, Wright J concluded that agreement to the use of force or violence is a necessary element of constructive murder in the joint enterprise context. It is not sufficient for the Crown to prove only that the use of a knife was a contingency which the accused had in mind. The distinction matters: agreement to the possible use of force or violence during the foundational offence is a higher threshold than mere foresight or contemplation.

His Honour also addressed the earlier NSW authorities. He characterised observations in R v Sharah and R v Johns, to the extent they suggested a lower standard of mere contingency in the accused's mind, as attempts to identify the issues for the jury in those particular cases rather than as statements of general principle. Those observations do not, on Wright J's analysis, lay down a general rule about the elements of constructive murder.

Orders Made

No formal orders were made in this decision. Wright J ruled on the pre-trial issue and indicated that further submissions would be sought from the parties as to the precise terms in which the elements would be expressed for the purposes of jury directions.

Key Takeaways

  • In a constructive murder case arising from a joint criminal enterprise, where the Crown cannot prove which participant delivered the fatal blow, the prosecution must establish that each accused agreed that the foundational offence would, if necessary, be accompanied by force or violence. Mere foresight that a knife might be used is insufficient.
  • The Supreme Court applied Mitchell v The King [2023] HCA 5, confirmed that this High Court decision materially affected the elements required to establish constructive murder under s 18(1)(a) of the Crimes Act 1900 (NSW) in a joint enterprise setting.
  • Wright J set out four elements the Crown must prove: (1) participation in a joint criminal enterprise to commit the foundational offence; (2) agreement as part of that enterprise that force or violence would be used if necessary; (3) the death of the deceased; and (4) that the fatal act was a voluntary act of a participant done during or immediately after the foundational offence.
  • Earlier observations in R v Sharah (1992) and R v Johns [1978] suggesting that a mere contingency in the accused's mind could suffice were characterised as case-specific directions rather than statements of general principle, and were not followed to the extent they might suggest a lower threshold.
  • Under s 18(1)(a) of the Crimes Act 1900 (NSW), the act causing death need not itself be an element of the foundational offence, but the accused's agreement to the possible use of force or violence remains a necessary element where the Crown relies on joint criminal enterprise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 97(2), 98 and 111(3)
- Criminal Procedure Act 1986 (NSW), ss 3(g) and 139(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Law Consolidation Act 1935 (SA), s 12A

Cases:
- Mitchell v The King [2023] HCA 5
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2
- Batcheldor v R & Walsh v R [2014] NSWCCA 252; 249 A Crim R 461
- R v IL [2016] NSWCCA 51
- R v Sharah (1992) 30 NSWLR 292
- R v Johns [1978] 1 NSWLR 282
- R v Jacobs and Mehajer [2004] NSWCCA 462; 151 A Crim R 452
- R v Kalinowski (1930) 31 SR (NSW) 377
- R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202
- R v Ryan and Walker [1966] VR 553
- R v Surridge (1942) 42 SR (NSW) 278
- R v Solomon [1959] Qd R 133
- R v Dowdle (1900) 26 VLR 637
- R v R (1995) SASR 417
- Betts (1930) 22 Cr App R 148
- Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540