IL v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Keane,Edelman JJ.,Bell,Nettle JJ.,Gageler J.,Gordon J.
• Judgment Date: 09 August 2017
• Neutral Citation: [2017] HCA 27
• Docket Number: S270/2016
• Date: 09 August 2017

[2017] HCA 27

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

S270/2016

IL

Appellant

and

The Queen

Respondent

Representation

B J Rigg SC with R C Pontello for the appellant (instructed by Benjamin & Leonardo Criminal Defence Lawyers)

S C Dowling SC with H R Roberts for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Crimes Act 1900 (NSW), s 18.

Criminal law — Murder and manslaughter — Where appellant and deceased engaged in joint criminal enterprise — Where act causing death committed in course of joint criminal enterprise — Where Crown could not exclude possibility that deceased had committed act causing death — Where appellant charged with murder or manslaughter of deceased — Whether s 18(1) of Crimes Act 1900 (NSW) encompasses self-killing.

Criminal law — Joint criminal enterprise liability — Whether acts or liability for actus reus of crimes committed in course of joint criminal enterprise attributed to co-participant — Whether act of deceased causing death attributable to appellant.

Words and phrases — “attribution of acts”, “complicity”, “constructive murder”, “derivative liability”, “felo de se”, “felony murder”, “joint criminal enterprise liability”, “primary liability”, “rules of attribution”, “self-murder”, “suicide”.

Kiefel CJ, Keane AND Edelman JJ.

The legal issue on this appeal

1 The background, facts, and legislative provisions are set out in the judgment of Bell and Nettle JJ. We agree that the appeal should be allowed on the first ground of appeal. We also agree with the orders that their Honours propose. However, we reach the conclusion that the appeal should be allowed on the first ground for different reasons. The offences of murder and manslaughter in s 18 of the Crimes Act 1900 (NSW) require that one person kill another person. Section 18 is not engaged if a person kills himself or herself intentionally. Nor is it engaged if the person kills himself or herself in the course of committing a crime punishable by imprisonment for life or for 25 years or by an unlawful and dangerous act. This conclusion is sufficient to allow the appeal on the first ground. It is unnecessary to consider the second ground of appeal or the notice of contention, which concerned whether the killing was “malicious” within s 18(2)(a).

2 Since we conclude that murder in s 18 does not apply to circumstances involving self-killing, it is not strictly necessary for us to consider the operation of the rules of attribution when co-offenders act in concert. It suffices to observe that we agree with the assumption upon which this case was conducted by the parties, namely, that when two or more persons act in concert to effect a common criminal purpose, it is the acts of each person to effect their common purpose which are attributed to the others. The decision of this Court in Osland v The Queen1 establishes that it is the acts which are attributed in this scenario, it is not the liability. Nor is it the actus reus of a notional offence.

The way this issue arises

3 As Bell and Nettle JJ explain, the Crown's case was that the appellant and the deceased were participants in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug, methylamphetamine. A ring burner attached to a gas cylinder was lit in a small and inadequately ventilated room during the commission of that crime, causing a fire which led to the death of the deceased. The Crown relied upon the category of murder in s 18(1)(a) of the Crimes Act, commonly referred to as “felony murder” or “constructive murder”, in support of its case that the appellant murdered the deceased. That was the focus of submissions on this appeal. Alternatively, the Crown alleged that the appellant was guilty of manslaughter of the deceased by an unlawful and

dangerous act. Section 18 is set out later in these reasons but, in summary, the elements of that section relevant to this appeal concerning the proof of murder are the following: (1) an “act of the accused … causing the death charged”; (2) which “was done … during … the commission, by the accused, or some accomplice … of a crime”; and (3) the crime is one which is punishable by imprisonment for life or for 25 years.

4 The Crown's case in respect of those three requirements was that: (1) the act of the accused was the lighting of the ring burner which caused the death of the appellant's co-participant; (2) that act was done during the commission by the appellant, or the co-participant, of the crime of manufacture or production of a large commercial quantity of a prohibited drug contrary to s 24 of the Drug Misuse and Trafficking Act 1985 (NSW); and (3) that crime is punishable by imprisonment for life (s 33(3)(a)).

5 There was no dispute that requirements (2) and (3) were satisfied. However, the Crown could not prove whether it was the appellant or the deceased who lit the ring burner. So the Crown submitted at trial that even if it were the deceased who lit the ring burner, his act could be attributed to the appellant with the result that his act could be the “act of the accused” for the purposes of murder or manslaughter under s 18 of the Crimes Act. The Crown relied upon rules of attribution commonly known as “joint enterprise liability”.

6 The most elementary difficulty with the Crown case is the assumption upon which it was based, that s 18 applied in a case of self-killing. Properly construed, s 18 is not engaged in a circumstance in which a deceased accomplice killed himself or herself. It was, therefore, not engaged in this case. Questions of attribution need not arise.

The origins of s 18 of the Crimes Act

7 Section 18(1) of the Crimes Act originated in s 9 of the Criminal Law Amendment Act 1883 (NSW) 2. In Ryan v The Queen3, Windeyer J quoted with approval the comment from two Draftsmen of that Act, Sir Alfred Stephen and Alexander Oliver 4, that apart from banishing the expression “malice aforethought”, the New South Wales definition of murder did not otherwise alter

the common law. Section 9 of the 1883 Act (later s 18(1) of the Crimes Act) was therefore intended to be a restatement of the common law relating to murder and manslaughter “but shorn of some of the extravagances of malice aforethought and constructive malice” 5. In order to understand the operation of s 18, it is necessary, therefore, to appreciate what was meant by murder and manslaughter at common law.

8 The common law position prior to 1883 was that a homicide which was neither justifiable nor excusable was a felony. For centuries, the common law had divided the felony of homicide into three categories. As Blackstone explained in 1769, the first category was felo de se. This was a “peculiar species of felony, a felony committed on oneself” 6. Blackstone continued 7:

“The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt, which divide the offence into manslaughter, and murder.” (emphasis in original)

9 In the 1800 edition of his manuscript, Hale drew the same distinction. He wrote of the basic division between a felony “which concerns the loss of life happening to a man's self” and a felony concerned with the loss of life “happening to another” 8. Hale explained that the first of these, involving a voluntary act, was felo de se (ie suicide) 9.

10 In the 1817 edition of Sir Edward Coke's Institutes, the distinction between self-killing and the killing of another was reiterated. Although using the looser language of “murder of a man's self” interchangeably with felo de se10, it

was plain that Sir Edward Coke treated self-killing separately from murder. However, in A History of the Criminal Law of England, Sir James Fitzjames Stephen sought to assimilate suicide and murder despite recognising the distinction in Sir Edward Coke's writing between the two offences 11. This was apparently for the rhetorical purpose of agitating for the exclusion of felo de se from homicides altogether 12. Nevertheless, even Stephen was forced to recognise differences between felo de se and murder. For instance, he contrasted accessories to suicide and accessories to murder when he said that the “abetment of suicide may, under circumstances, be as great a moral offence as the abetment of murder” (emphasis added) but that the abetment of suicide involves much less public danger than the abetment of murder 13.

11 In 1824, in the eighth edition of Hawkins' A Treatise of the Pleas of the Crown14, felonious homicide was again divided into the same three categories, separating self-killing and murder:

“[(1)] felo de se, or felonious homicide of a man's self; [(2)] murder, which is the killing of another with malice aforethought, either express or implied; and [(3)] manslaughter, which is the killing of another without premeditation or malice aforethought.”

12 The same distinction was reflected in the results of the decided cases for two centuries. Almost without exception, arguments which attempted to treat felo de se as a type of murder, based on the inaccurate and loose language of “self-murder”, were consistently rejected by the courts. In 1660, in R v Ward15, the crime of felo de se was held not to be murder and therefore capable of being pardoned. The view which prevailed in that case was that “ felo de se and murder

are distinct things, and distinctly treated of by all authors” 16. The same point was made in Tombes v Ethrington17.

13 In 1832, in R v Russell18, the Crown argued that a prisoner could be tried as an accessory before the fact of “self-murder” where the self-killing was in the course of a felonious act. Nine judges of the Court held that although the prisoner was an accessory before the fact of the offence of felo de se, neither by the preceding common law...