Special Bulletin 33 — August 2017
IL v The Queen  HCA 27
Constructive murder — Crimes Act 1900, s 18(1) — self-killing — criminal responsibility — joint criminal enterprise — liability for acts of the co-offender — whether the act of deceased causing death attributable to the co-offender — R v Sharah (1992) 30 NSWLR 292 — malice
IL stood trial before a jury on a charge of murder and, in the alternative, a charge of manslaughter as well as other drug charges arising from the same facts. She pleaded not guilty to all counts. At the end of the Crown case, the trial judge directed the jury to return a verdict of not guilty on the charges of murder and manslaughter. The jury did so and the trial continued in respect of the other counts on the indictment in respect of which she was ultimately found guilty.
The Crown appealed against the directed verdicts of acquittal pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001. The Court of Criminal Appeal allowed the Crown appeal and ordered a re-trial of the murder and the alternative manslaughter counts: R v IL  NSWCCA 51.
IL appealed to the High Court which, by majority, allowed the appeal, set aside the orders of the Court of Criminal Appeal and dismissed the Crown appeal to that court. The majority Justices (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) held that s 18 of the Crimes Act (Murder and manslaughter defined) did not cover the situation where the person committing the act causing death was the deceased. The dissenting Justices were Gageler and Gordon JJ.
The Crown case at trial was that IL and Mr Lan were jointly involved in the manufacture of a large commercial quantity of methylamphetamine in the bathroom and kitchen of a suburban house. The process of manufacture involved heating a liquid substance in a cooking pot on a gas ring burner that was connected to a gas cylinder. The refining process took place in the bathroom.
On 4 January 2013, there was a fire in the house which was almost completely contained in the bathroom. When police attended they found a burning mattress on the pot. IL was present as was Mr Lan, who was severely burned. Mr Lan was taken to the hospital and died 10 days later as result of the injuries he suffered in the fire. Investigations at the scene found that the connection to the cylinder was loose and gas could have escaped. It was inferred by police that the ring burner had been ignited, causing the fire, but there was no evidence as to who lit the burner. There was a real possibility that it was Mr Lan.
The Crown case was that IL was liable for murder by reason of her involvement in a joint criminal enterprise with the deceased to commit an offence (the manufacture of a large commercial quantity of methylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985) punishable by imprisonment for life, during the commission of which Mr Lan was killed. The Crown argued that, in carrying out the joint enterprise, the acts of one of the participants were the acts of the other. Therefore, it did not matter who lit the ring burner. Similarly, the case of manslaughter was based upon IL’s involvement in a joint enterprise with Mr Lan to commit an act that was unlawful and dangerous.
The trial judge held that the criminal liability of IL was derivative and, if she was liable for murder, it was as a principal in the second degree. As Mr Lan could not be convicted of his own murder, then IL could not be guilty as a principal in the second degree for his death. There was no evidence of IL foreseeing the possibility that some person might be injured or might die in the course of the manufacture of methylamphetamine. There was no evidence that both IL and Mr Lan acted together in lighting the ring burner, the act causing death. The judge held, therefore, there was no prima facie case for murder or manslaughter and directed the jury to acquit IL of those counts.
The Court of Criminal Appeal held that in respect of the charge of murder, the trial judge erred in finding that the Crown had to prove a foresight of injury or death arising from the manufacture of the drug. What the Crown had to prove was that IL foresaw that the ring burner would be lit in the course of the joint enterprise. The principles of joint criminal enterprise applied to the manufacture of the drug and not to the death of Mr Lan. IL’s liability was not derivative but direct because of her participation in an offence for which the penalty was life imprisonment.
In respect of the charge of manslaughter, the court held that the Crown had to prove that the lighting of the ring burner, the act causing death, was both unlawful and dangerous. The judge’s reasoning was in error because it was not necessary for the Crown to prove that both IL and Mr Lan acted together in lighting the burner. All that was necessary to prove was that IL contemplated the lighting of the ring burner as an incident in the manufacture of the drug.
Section 18 of the Crimes Act 1900
Kiefel CJ, Keane and Edelman JJ in a joint judgment held that the appeal should be allowed. The Crown case failed because it could not disprove the possibility that Mr Lan lit the burner and, therefore, caused his own death.
After an extensive review of common law cases concerned with murder and felo de se (self-murder), their Honours turned to construe s 18 of the Crimes Act 1900 in the light of that background. They found that under the common law of 1883, on which the section was based, there was no case where a person had been held liable for murder based upon the death of a co-offender who unintentionally killed himself during the course of the commission of a joint criminal enterprise: at . They construed s 18 as being concerned, not with the killing of oneself, but the killing of “some person”, that is, a person other than the person doing the act causing death: at . Section 18 is not engaged if the person kills himself or herself intentionally or accidentally. Nor is it engaged where a person kills himself or herself during the course of the commission of a crime that is punishable by imprisonment for life or 25 years: at .
Bell and Nettle JJ in a joint judgment also held that the appeal should be allowed. Their Honours held that, even if the notion of felo de se existed at common law and was incorporated initially into s 18, since suicide or self-murder was no longer a crime after the enactment of s 31A of the Crimes Act, self-murder was no longer criminal at the time of the killing of Mr Lan: at . Therefore, if Mr Lan lit the gas ring and caused his own death, that was not the actus reus of a crime in NSW. The two participants in the joint venture did not between them do all things necessary to commit the crime or murder or manslaughter: at .
Four of the Justices held that malice as referred to in s 18(2)(a) has no independent role to play in constructive murder once the mental element of the foundational offence is established: Bell and Nettle JJ at , Gageler J at  and Gordon J at . Kiefel CJ, Keane and Edelman JJ found it unnecessary to consider the malice issue: at .
Joint criminal enterprise — Osland and Sharah
Because Kiefel CJ, Keane and Edelman JJ held that s 18 was not engaged, they did not have to consider questions of the attribution of acts under the doctrine of joint criminal liability: at . They accepted that had the explosion killed a child standing outside the house, IL could have been charged under s 18 with the murder of the child even had she not lit the burner: at . However, their Honours stressed that the law in that regard had been made clear by McHugh J in Osland v The Queen (1998) 197 CLR 316. Accordingly, it was the acts of one participant in a joint enterprise that were attributed to another participant and not the liability of the person committing the acts: at . So, in cases of an innocent agent, it is the acts of the agent that are attributed to the principal who is guilty because of the necessary mens rea: at .
Having considered Osland v The Queen and other cases concerning liability under a joint criminal enterprise, Kiefel CJ, Keane and Edelman JJ stated at :
In summary, the decision of the majority of this Court in Osland resolved much confusion that had existed in the context of the primary liability of an accused person based upon the attribution of acts done in the course of a joint criminal enterprise. That decision was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime.
Bell and Nettle JJ stressed that in a joint criminal enterprise the only acts committed by one participant that are attributed to another participant are those acts that comprise the actus reus of the commission of a crime: at . So that if an act committed by a participant in the enterprise is not part of the commission of a crime it is not attributed to another participant. In Osland v The Queen, it was the son’s acts in killing the father that were attributed to the mother: at . Their Honours noted that there were questions arising about the correctness of the decision in R v Sharah (1992) 30 NSWLR 292 but did not feel the need to consider the issue in this case: at .
Gageler J, who dissented as to the outcome, nevertheless accepted the view of Kiefel CJ, Keane and Edelman JJ as to the operation of Osland v The Queen (see ) and that the lighting of the gas ring by Mr Lan was the act of IL. His Honour was of the view that R v Sharah was correctly decided and consistent with R v Surridge (1942) 42 SR (NSW) 278 at 283: at .
Gordon J was also in dissent as to the outcome of the appeal. Her Honour took the view that distinguishing between an act and the actus reus of a crime is not useful when considering the application of s 18(1)(a): at . Such an approach is a departure from the words of the statute. Further, R v Sharah should not be followed in so far that it concluded that in felony (constructive) murder cases it was necessary for the accomplice to have a foresight of the consequences bringing about the death of the deceased: at .