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Supreme Court 11 November 2003

REGINA v LEW

[2003] NSWSC 1073

Assault & violenceHomicideTheft & property
FELONY MURDER ELMENTS NATURE OF FORESEEN POSSIBILITY

Citation: REGINA v LEW [2003] NSWSC 1073
Court: Supreme Court of New South Wales (Common Law Division)
Date: 11 November 2003
Judge(s): Adams J

Background

The accused was charged with murder as an absent accomplice in connection with an armed robbery on a hotel manager. The Crown alleged he played a planning role but was not physically present when the acts causing death occurred. Two bases for the murder conviction were advanced: complicity in grievous bodily harm, and the doctrine known as felony murder.

Felony murder, under s 18(1)(a) of the Crimes Act 1900 (NSW), arises where a death is caused during or immediately after the commission of a serious crime (one carrying a maximum penalty of life or 25 years imprisonment) by the accused or an accomplice acting "with him or her." The accused's counsel applied to have the felony murder ground withdrawn from the jury, arguing that the phrase "with him or her" required the accused to have been physically present at the scene.

The court also had to consider whether the underlying offence, if limited to the use of a trolley pole rather than a firearm or knife, carried a sufficiently serious maximum penalty to qualify as the predicate offence for felony murder.

  • Whether the words "with him or her" in s 18(1)(a) of the Crimes Act 1900 require the accused to be physically present at the scene when the acts causing death take place.
  • Whether an absent accomplice can be convicted of felony murder.
  • Whether, if the jury rejected awareness of a gun or knife, the use of a trolley pole could still ground a qualifying offence carrying a maximum of life or 25 years imprisonment.
  • Whether there was sufficient evidence that the accused foresaw the possibility of wounding or grievous bodily harm arising from use of the trolley pole.

Decision

Adams J rejected the defence submission that physical presence was required. His Honour held that the word "accomplice" carries its ordinary English meaning of "partner in crime" or "confederate," and that the preposition "with" in the statute reflects the relationship between co-offenders, not a requirement of spatial proximity at the time of the offence.

The defence had relied on R v Sharah (1992) 30 NSWLR 292, in which directions at trial referred to an accomplice as someone "present at the time." Adams J found that those observations were directed at the particular facts in that case, where all participants happened to be present, and were not intended to establish a general rule requiring physical co-presence as an element of felony murder.

On the second issue, Adams J accepted that the jury would only reach the felony murder question if not satisfied the accused knew the others intended to bring a gun or knife, since that knowledge would support a conventional murder conviction. He then considered whether use of a trolley pole could ground a qualifying offence. A trolley pole was not a "dangerous weapon" for the purposes of the aggravated robbery provision under s 97(2), which carries a 25-year maximum, making that particular limb unavailable.

However, Adams J held it was reasonably open to the jury to conclude that the accused foresaw the possibility that striking a person hard enough to render them unconscious could cause at least wounding within the meaning of s 98 of the Crimes Act, which does carry a qualifying maximum penalty. On that basis, the felony murder ground was available and the application to withdraw it from the jury was refused.

Orders Made

No formal orders were recorded in this decision. The judgment records only that the application to withdraw the felony murder count from the jury was rejected.

Key Takeaways

  • Under s 18(1)(a) of the Crimes Act 1900 (NSW), an absent accomplice can be convicted of felony murder. Adams J held the phrase "with him or her" describes the accused's relationship to the principal offender as a co-offender, not a requirement of physical co-presence at the scene.
  • The observations in R v Sharah (1992) 30 NSWLR 292 referring to an accomplice as someone "present at the time" were confined to the facts of that case and do not establish physical presence as a general element of felony murder under the provision.
  • A qualifying predicate offence for felony murder must carry a maximum penalty of life imprisonment or 25 years. Where the only weapon known to the accused was a trolley pole (not a "dangerous weapon" under s 4 of the Act), the aggravated robbery provision in s 97(2) was unavailable.
  • Sufficient evidence existed to leave the jury to consider whether use of a trolley pole to render a victim unconscious carried a foreseeable possibility of wounding, which could engage s 98 as a qualifying predicate offence carrying the required penalty threshold.
  • Foresight of a "possible risk" of serious injury or wounding, rather than certainty or probability, was the relevant mental element considered by the court in assessing whether felony murder was available on the facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a) (felony murder)
- Crimes Act 1900 (NSW), s 97(2) (robbery with dangerous weapon, aggravated)
- Crimes Act 1900 (NSW), s 98 (robbery with wounding or grievous bodily harm)
- Crimes Act 1900 (NSW), s 4 (definition of "dangerous weapon")

Cases
- R v Sharah (1992) 30 NSWLR 292 (Court of Criminal Appeal)