Citation: R v Nehme, Price, Rahim, Taufahema and Rizk (No 2) [2023] NSWSC 843
Court: Supreme Court of New South Wales
Date: 27 February 2023
Judge(s): Button J
Background
Five accused persons faced trial for the murder of a man who was targeted for robbery after being identified as carrying a large sum of cash. Three accused attended the victim's home and carried out the assault; one accused directed events remotely via FaceTime from elsewhere; and one accused, Ms Rizk, was alleged only to have assisted a co-accused before the events occurred.
The Crown alleged that Ms Rizk, prior to the offending, strapped a machete across the back of one of the principal offenders before he rode his motorcycle to the scene. On that basis, the Crown charged her not as a principal or joint participant, but as an accessory before the fact to murder.
The trial was ultimately aborted before summing-up, following the delivery of the High Court's decision in Mitchell & Ors v The King on 8 March 2023. Button J published this judgment to explain the pre-trial rulings he had made concerning the legal framework that would have applied to Ms Rizk's case.
Legal Issues
- Whether the doctrine of extended joint criminal enterprise (foresight of possibility of a further offence) can be combined with constructive murder under s 18 of the Crimes Act 1900 (NSW) to establish murder liability.
- Whether an analogue of extended joint criminal enterprise applies to accessories before the fact, such that an accessory's foresight of possible wounding could found liability for a foundational offence under s 18.
- Whether the words "some accomplice with him or her" in s 18(1)(a) of the Crimes Act require the accomplice to be physically present at the scene of the offending, or whether an accessory before the fact suffices.
Decision
Combining extended joint criminal enterprise with constructive murder
Senior counsel for Ms Rizk argued that layering extended joint criminal enterprise onto constructive murder represented an impermissible double extension of criminal liability. Button J rejected this submission, relying on the New South Wales Court of Criminal Appeal decision in R v Sharah (1992) as binding authority approving precisely such a combination.
Accessoryship before the fact and extended joint criminal enterprise
The Crown argued that the same foresight-of-possibility principle recognised for accessories before the fact in Johns v The Queen (1980) could apply here: Ms Rizk had allegedly assisted the principal knowing a robbery was planned, and had foreseen the possibility of a wounding. Button J accepted this construction as arguable, treating it as an established analogue of extended joint criminal enterprise applied to accessories before the fact.
The "accomplice with him or her" question
The more novel issue was whether s 18(1)(a), which refers to a crime committed by "some accomplice with him or her," limits constructive murder liability to persons physically present at the scene. Button J rejected a geographical limitation for four reasons. He found no authority in New South Wales supporting such a restriction; there was no parliamentary debate suggesting the Criminal Law Amendment Act 1883 (NSW) was intended to cut back the pre-existing common law of felony murder in that way; other Supreme Court trial judges had reached the same conclusion in R v Lew and R v Batak; and he considered it incongruous that liability for murder should turn on whether an accessory happened to be at the scene or merely nearby.
Superseded by Mitchell v The King
Button J expressed the view that much of this reasoning was likely overtaken by the High Court's decision in Mitchell & Ors v The King, delivered shortly after the pre-trial rulings were made and before any summing-up was delivered. He noted in particular that the High Court's emphasis on confining constructive murder "so far as possible" called into question several of the conclusions he had reached. The judgment was published to record his thinking at the time the rulings were made, not as authoritative guidance going forward.
Orders Made
No orders were made in this decision.
Key Takeaways
- Button J held, applying R v Sharah as binding authority, that combining extended joint criminal enterprise with constructive murder under s 18 of the Crimes Act 1900 (NSW) is not impermissible as a matter of double extension of liability.
- An analogue of extended joint criminal enterprise has been recognised as applying to accessories before the fact: foresight of the possibility of a further crime can, in principle, found liability for a foundational offence that in turn supports a constructive murder charge.
- The words "some accomplice with him or her" in s 18(1)(a) were held, on the reasoning in this case, not to require the accomplice's physical presence at the scene; an accessory before the fact may satisfy that description.
- Sufficient reason existed to doubt whether those rulings remained sound after the High Court's decision in Mitchell & Ors v The King, which emphasised that constructive murder should be confined so far as possible; Button J frankly acknowledged the rulings were based on an incomplete understanding of that intersection.
- The decision is expressly described as a record of the court's pre-trial thinking in a trial that was aborted, and Button J noted the High Court's subsequent authority likely supersedes it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 98
- Criminal Law Amendment Act 1883 (NSW)
Cases
- Mitchell & Ors v The King (2023) 97 ALJR 172; [2023] HCA 5
- Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3
- R v Sharah (1992) 30 NSWLR 292
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- R v Lew [2023] NSWSC 1073
- R v Batak [2022] NSWSC 424
- R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202