Citation: R v Nehme, Price, Rahim, Taufahema and Rizk (No 3) [2023] NSWSC 844
Court: Supreme Court of New South Wales
Date: 24 February 2023
Judge(s): Button J
Background
This judgment is the third in a series arising from a murder trial involving five accused. Button J delivered it to explain the reasoning behind directions he had proposed to give the jury about the elements the Crown needed to prove on a charge of constructive murder. The trial was ultimately aborted before it reached summing-up or verdicts, so the rulings were contingent and subject to possible revisitation.
The case concerned a charge of constructive murder under s 18 of the Crimes Act 1900 (NSW). The central factual feature was that the act causing death (the wounding of the deceased) was also the final element of the foundational offence underlying the constructive murder charge. This overlap between the foundational offence and the act causing death was the source of the legal controversy.
Counsel for two of the accused advanced competing arguments about what mental elements the Crown was required to prove, particularly in the context of extended joint criminal enterprise. Button J resolved those arguments at the pre-trial stage and delivered this judgment to record his reasoning.
Legal Issues
- Whether, in a constructive murder case where the act causing death is also an element of the foundational offence, the Crown must prove a mental element beyond mere foresight of the possibility of that act occurring (relying on R v Sharah)
- Whether the wording of s 18 of the Crimes Act 1900 (NSW) requires a mental element directed at the nature of the act causing death, not merely its consequence
- Whether extended joint criminal enterprise requires an accused to have foreseen the possibility of a specific weapon or mechanism being used to inflict the wounding, rather than merely the consequence of wounding
Decision
On the Sharah argument: Button J rejected the submission that R v Sharah (1992) 30 NSWLR 292 required proof of some additional mental element beyond foresight of the possibility of wounding. His Honour distinguished Sharah on the basis that in that case the act causing death was entirely separate from the foundational offence: the victim, the mechanism of injury, and the offence itself were all distinct from the constructive murder. Here, by contrast, the wounding was simultaneously the foundational offence element and the act causing death. The doctrine of constructive murder therefore operated, in Button J's view, "automatically" once the elements of the foundational offence were established, consistently with the analysis in R v Batcheldor v R; Walsh v R [2014] NSWCCA 252.
On the s 18 mental element argument: Button J also rejected the submission that s 18 independently required a mental element directed at the nature of the act causing death, as distinct from its consequence in the form of a wounding. To impose such a requirement would, in his Honour's view, undermine Parliament's long-established objective in constructive murder provisions: to attach murder liability to persons proven to have engaged in serious offending closely connected with the act causing death.
On the specificity of foresight: Button J rejected the further argument that an accused must have foreseen the use of a weapon or some specific mechanism of wounding. His Honour reasoned that the relevant element of the foundational offence was the consequence of "wounding," not the act of stabbing or cutting. A wound can be inflicted without a weapon, and the particular foundational offence relied upon by the Crown did not require that any person be armed. Following R v Suteski [2002] NSWCCA 509, the focus of extended joint criminal enterprise is on foresight of the possibility of elements, not of particular implements or methods by which those elements are brought about.
Caveat regarding subsequent authority: Button J acknowledged at the conclusion of the judgment that his reasoning was not informed by the High Court's decision in Mitchell & Ors v The King [2023] HCA 5, handed down on 8 March 2023, days after this ruling. He noted the open question of whether R v Sharah remains good law in New South Wales, given arguments that it may have been implicitly overruled by the High Court.
Orders Made
No orders were made in this decision.
Key Takeaways
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Where the act causing death is also an element of the foundational offence in a constructive murder charge, the Supreme Court held that no additional mental element beyond foresight of possibility (as required for extended joint criminal enterprise) needed to be proven against an accused.
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R v Sharah (1992) 30 NSWLR 292 was distinguished as a case where the foundational offence stood entirely apart from the act causing death; its reasoning about additional mental elements does not automatically extend to cases where the two overlap.
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Under the approach adopted in R v Suteski [2002] NSWCCA 509, extended joint criminal enterprise requires foresight of the possibility of elements or consequences (such as wounding), not of the specific weapon or physical mechanism used to bring those consequences about.
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Section 18 of the Crimes Act 1900 (NSW) does not, on Button J's analysis, impose an independent requirement for a mental element directed at the nature of the act causing death, as opposed to the consequence constituting the offence element.
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The continued authority of R v Sharah in New South Wales is left as an open question, with Button J expressly noting that the High Court's decision in Mitchell & Ors v The King [2023] HCA 5 may have implicitly overruled it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 98
Cases
- R v Sharah (1992) 30 NSWLR 292
- R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202
- R v Nehme, Price, Rahim, Taufahema and Rizk (No 2) [2023] NSWSC 843
- R v Batcheldor v R; Walsh v R [2014] NSWCCA 252
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- Mitchell & Ors v The King (2023) 97 ALJR 172; [2023] HCA 5