Batak v R

1. [1]

   THE COURT: The central issue in this appeal is whether it is possible to make out a charge of accessory before the fact to constructive murder on the basis of the accused being an accessory before the fact to a foundational offence. The question arises in the following context. At around 3:45am on 2 April 2019 two men broke into an apartment in Five Dock in the inner west of Sydney in order to steal drugs and money. Two people resided in the apartment: Sargon Odisho and John Odisho. Sargon Odisho was a drug dealer. The two men were not directly related despite their common surname. Also present in the apartment that night was John Odisho’s girlfriend, Ms Larissa Mitchell-Wiszniewski. Each intruder was armed with a handgun. Sargon Odisho also had a handgun. A confrontation occurred. Shots were fired by one of the intruders and by Sargon Odisho. John Odisho was shot in the head by a bullet fired by the intruder. He died later that day. Sargon Odisho was struck by two bullets. One of the intruders, Cengiz Coskun, was struck in his lower left flank. The identity of the other intruder remains unknown.

2. [2]

   The applicant in this matter, Cem Batak, was not present at the robbery. A short time earlier that night he had supplied Coskun with a loaded Glock pistol and a high visibility (or “high vis”) shirt for use in the home invasion. The applicant was charged with two offences: the foundational offence of attempting to rob Sargon Odisho of drugs and money whilst armed with a dangerous weapon (contrary to s 97(2) of the Crimes Act 1900 (NSW) (the Act)) and the constructive murder of John Odisho (contrary to s 18 of the Act). The trial occurred before a jury in April and May 2022, presided over by R A Hulme J. The applicant was convicted on both counts. The trial judge imposed a sentence of 14 years imprisonment, with a non-parole period of 10 years and six months, for the constructive murder offence, and two years imprisonment in relation to the attempted robbery offence, to be served concurrently: see R v Batak (No 5) [2022] NSWSC 1217 (SJ).

3. [3]

   Coskun was separately tried before a jury and the same trial judge. He was convicted of the same two offences as Batak and sentenced to 34 years imprisonment: R v Coskun (No 5) [2022] NSWSC 1216. An appeal from his conviction and sentence was heard and dismissed by this Court as currently constituted, that decision being handed down on the same day as this one: Coskun v R [2024] NSWCCA 67. The evidence given in the two matters differed somewhat, and each appeal has been determined by reference to the evidence relevant to the matter in question.

4. [4]

   The applicant appeals his conviction on four grounds:

5. [5]

   Ground 1 raises a matter of law and is advanced as a matter of right: s 5(1)(a), Criminal Appeal Act 1912 (NSW). The Crown submitted, and the applicant did not dispute, that leave to appeal was required in relation to grounds 2-4 pursuant to s 5(1)(b) of the Criminal Appeal Act. The application raises issues of significance for which leave should be granted, save in relation to ground 3.

6. [6]

   The issues raised by grounds 1 and 2 overlap and it is convenient to address them together. The appeal should be upheld with respect to the murder conviction (only) on the basis of ground 1. Ground 2 is not made out. Ground 3 raises a distinct issue for which leave to appeal should be refused on the basis of r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 (NSW). Ground 4 was founded upon success on grounds 1 or 2, but sought to turn success on either of those grounds into a complaint of unreasonable verdict – an attempt which should be rejected. For reasons explained at the end of this judgment a retrial on the murder charge should be ordered.

7. [7]

   Before turning to considering the grounds it is appropriate to explain the factual context of the appeal.

Background

1. [8]

   The following summary is taken in part from the sentencing judgment of the trial judge and more generally from the evidence that was before the jury.

2. [9]

   The applicant and Coskun had been friends since school but had not been in close contact in the months leading up to the shooting. The applicant’s phone number was given to Coskun by a mutual acquaintance, Abdulsamed Sari, on 16 March 2019. The two were in frequent contact from then on, with phone records showing at least 77 calls between 17 March 2019 and 2 April 2019. There was a significant amount of contact between them on 20 and 22 March and the morning of 23 March 2019. They met on a number of occasions, often in parks and at night.

3. [10]

   After midnight on 2 April 2019 the two met at the applicant’s unit. Prior to arriving they exchanged WhatsApp and text messages, which included Coskun asking the applicant to bring two high vis work shirts. The messages were as follows:

4. [11]

   The applicant had once worked as a sub-contractor for a business called Quantum Transport Solutions and had been provided with yellow high visibility short-sleeved work shirts.

5. [12]

   At their meeting the applicant supplied Coskun with at least one high vis work shirt and a handgun, which the applicant would later describe in an intercepted phone conversation as a mini Glock with an “extended clip”. Coskun then left the applicant’s apartment. He and the other intruder arrived at Sargon Odisho’s apartment around 3:45am. They entered through the balcony of Unit 103, which they had reached by climbing over fencing and on top of the housing around a fire hydrant which was below the balcony. They were both wearing gloves and face coverings, and Coskun was wearing the high vis shirt supplied by the applicant.

6. [13]

   John Odisho and Ms Mitchell-Wiszniewski were asleep in the master bedroom and were woken up by noise in the hallway. Ms Mitchell-Wiszniewski then heard Sargon Odisho say something like, “I don’t have” and “I don’t know” in a distressed manner. As John Odisho went to investigate the conflict, someone began pushing on the bedroom door. Ms Mitchell-Wiszniewski saw a gun through the doorway, recalling that it “looked like a black handgun”.

7. [14]

   John Odisho then left the master bedroom. One of the intruders who was wearing all black – therefore likely not Coskun, who was wearing the high vis shirt – entered the room. He pointed a silver gun at Ms Mitchell-Wiszniewski’s head for a short time. She described it in this way: “Quite large. It wasn’t a small handgun, it was a decent sized handgun”. The intruder then left the bedroom and Ms Mitchell-Wiszniewski said she immediately heard several shots fired.

8. [15]

   There was disagreement about precisely what occurred at this point. What is clear is that one of the intruders fired 10 rounds from a .40 calibre weapon into Sargon Odisho’s bedroom from the hallway. Two bullets entered the wall adjacent to the door. Other rounds were fired towards the door, when it must have been in a partially open position, while the rest were fired straight into the room. One of those bullets struck John Odisho in the head. Two bullets struck Sargon Odisho.

9. [16]

   Ballistics reports showed that Sargon Odisho discharged his .38 Smith & Wesson handgun six times from inside the bedroom towards the hallway. Two shots penetrated the wall adjacent to the door in the vicinity of where two of the .40 calibre bullets had entered the wall. Three shots went into the hallway unimpeded and struck the opposite wall. Another shot was the one that struck Coskun in the left flank.

10. [17]

    Coskun and the unknown man then left the apartment over the balcony and ran down East Street. Coskun returned to his car and made a phone call to Mr Sari, telling him that he had been badly hurt. They agreed that Coskun would drive himself to Auburn Hospital, where Mr Sari would come to meet him.

11. [18]

    Back in the apartment, after the shooting had stopped Sargon Odisho yelled for Ms Mitchell-Wiszniewski to call an ambulance and told her that John had been shot. Emergency services arrived at the apartment and attempted to keep John Odisho alive. He died later that day.

12. [19]

    Only one gun had been fired by the intruders, being the .40 calibre handgun. The trial judge found in sentencing that both the intruders were armed and that it was Coskun who carried and fired the .40 calibre handgun.

13. [20]

    The police obtained warrants allowing them to intercept phone calls made by the applicant and to place listening devices in his home and car. Evidence was tendered of a number of recorded conversations involving the applicant.

14. [21]

    One notable conversation recorded by a listening device occurred on 28 June 2019 between the applicant and two males named Yalim and Karaman. There was difficulty in distinguishing between the other two males when one of them was speaking, and they were designated just as “Y/K” in the transcript. Some of the conversation was in Turkish but has been translated. The transcript included the following (Exhibit BP; emphasis added):

15. [22]

    The trial judge concluded that the phrase “we loaded it up” referred to loading the gun (SJ [44]).

16. [23]

    In a subsequent conversation on 18 July 2019 the applicant’s wife asked him, “what about when they find the gun. What happens then?”. He told her that it had been “wiped down completely” on the days preceding the robbery.

17. [24]

    In another recorded conversation, on 2 August 2019, the applicant was again discussing the events in question with an acquaintance, and said:

18. [25]

    The applicant declined to be interviewed by the police. He did not give evidence at his trial, nor call any witnesses.

19. [26]

    The applicant’s case was that he had not given Coskun one of the applicant’s own guns but rather was storing guns belonging to Coskun in his garage. It was said that on the night in question Coskun had attended and retrieved his own gun. He argued that there was no evidence he had been told the gun was to be used in an attempted robbery. He relied on evidence given by Mr Sari. Mr Sari gave evidence that the applicant had been storing guns for Coskun. Mr Sari’s evidence was challenged by the Crown, which obtained leave to cross-examine him pursuant to s 38 of the Evidence Act 1995 (NSW). The applicant sought to dismiss the contents of the recorded conversations which undercut those arguments as merely him big-noting himself.

20. [27]

    The jury obviously did not accept either the applicants’ arguments or Mr Sari’s evidence on the issue, taking account of the clear and repeated admissions by the applicant in the recorded conversations that the Glock given to Coskun was “my gun”. The trial judge was satisfied on sentencing that the handgun belonged to the applicant, and that he gave it to Coskun knowing it was for use in the proposed robbery (SJ [35] and [50]).

Grounds 1 and 2 – accessory before the fact to constructive murder

1. [28]

   By grounds 1 and 2 the applicant challenges the legal basis upon which the case against him for the murder of John Odisho was left to the jury and, alternatively, the correctness of the directions given to the jury as to the elements of the offence, in circumstances where the Crown alleged that he was liable for the crime as an accessory before the fact. The issues raised are complex and overlapping. Our consideration of those issues is structured as follows:

   1. (1)

      the Crown’s pathway to liability for murder (at [29]-[40]);

   2. (2)

      the trial judge’s directions as to the elements of the offences (at [41]-[43]);

   3. (3)

      the applicant’s arguments as to accessorial liability and constructive murder (at [44]-[49]);

   4. (4)

      the evolution of accessorial liability and principles of complicity (at [50]-[96]);

   5. (5)

      the doctrine of constructive murder in this State (at [97]-[133]);

   6. (6)

      the decision in R v Sharah (1992) 30 NSWLR 292 (at [134]-[156]);

   7. (7)

      accessorial liability and constructive murder (at [157]-[193]);

   8. (8)

      summary of conclusions on accessorial liability (at [194]-[196]);

   9. (9)

      other attacks on the directions as to the elements of the offences (at [197]-[206]).

2. [29]

   The indictment of the applicant as presented at trial was framed in this way:

3. [30]

   With the relevant portions rendered in bold font, s 18(1)(a) of the Crimes Act provides as follows:

4. [31]

   The section identifies two categories of murder, namely (proceeding just on the text) where an act or omission of the accused caused the death charged, and was done:

   1. (1)

      with reckless indifference to human life or with intent to kill or inflict grievous bodily harm; or

   2. (2)

      in an attempt to commit, or during or immediately after the commission, by either the accused, or some accomplice with him or her, of a foundational crime of the identified degree of seriousness.

5. [32]

   The second category, constructive murder (previously known as “felony murder”), is what is at issue here. A distinctive feature of the second category is that, in contrast to the first, no particular mental state is required as regards causing the death. In that sense constructive murder involves a type of strict liability. If the death of another is caused in connection with the actual or attempted commission of a crime by the accused or an accomplice, being a crime of the requisite seriousness (the “foundational offence”), then the accused is liable for the murder although they may have had no intent to cause, nor recklessness as to causing, death or really serious injury. Here the foundational offence was that charged in count 2, being an offence of attempted robbery whilst armed with a dangerous weapon. That offence carries a maximum penalty of 25 years imprisonment.

6. [33]

   Whilst the charges were framed as against a principal, the indictment invoked s 346 of the Act relating to liability as an accessory before the fact as regards both counts. The section provides:

7. [34]

   Although there is no definition of an accessory before the fact within s 346 or elsewhere in the Crimes Act, at common law the term encompasses an individual who incited, moved, procured, aided, counselled, hired, or commanded the principal prior to the commission of the crime, with knowledge that it was to be committed.

8. [35]

   Prior to the empanelment of the jury, the applicant applied to quash the indictment or permanently stay the prosecution. The trial judge refused the application: R v Batak [2022] NSWSC 424 (Stay J). When the application was argued, as his Honour explained in his ruling at [13]-[21], the Crown had proposed to rely on three alternative pathways to the applicant being liable for murder:

   1. (1)

      a joint criminal enterprise (JCE) pathway, namely that the applicant was a participant in a JCE with Coskun to the foundational offence of armed robbery under s 97(2); that the acts of Coskun in committing that offence could be attributed to him pursuant to the doctrine of JCE; and that as such he was guilty of constructive murder just as Coskun was;

   2. (2)

      an extended joint criminal enterprise (EJCE) pathway, namely that the applicant was a participant in a JCE with Coskun to commit another identified offence, and that the applicant foresaw the possible commission of an act involving the intentional infliction of death or grievous bodily harm;

   3. (3)

      an accessory before the fact pathway, whereby the applicant intentionally encouraged and assisted the commission of the foundational s 97(2) offence by provision of a gun (this was later extended to include the high vis shirt), knowing that it was to be used for such an offence, and where the Crown further contended that the applicant contemplated the possibility that the gun could be discharged in the commission of the robbery, resulting in grievous bodily harm or death.

9. [36]

   One of the arguments made by the applicant on his stay application was that “the three-fold bases of liability for murder, all of which are based on complex principles of complicity, will result in a very complicated series of directions and will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to follow” (quoted in Stay J [22]). His Honour accepted that “[t]he multiple forms of liability proposed by the Crown create a considerable degree of complexity and potential for confusion” (ibid [26]). However, his Honour subsequently announced his ruling rejecting the stay application, giving “a short preview of my observations on this issue” when doing so (ibid [30]). Subsequently, and prior to his Honour delivering his full reasons for the ruling, the Crown indicated that its case on count 1 would be confined to an assertion that the accused was liable as an accessory before the fact, that is, it would only rely on its third pathway.

10. [37]

    On the stay application the applicant also advanced three bases upon which he said that the case against him for murder was incapable of proof: (1) that he was not present when John Odisho was shot and so the act causing death was not done by him or by some accomplice “with him”; (2) that there was no act of his causing death; and (3) that the Crown could not prove his agreement to commit the foundational offence. Although those contentions were originally put against all three proposed pathways, his Honour noted that since the Crown had proceeded only on the third, his reasons for rejecting the three bases would be confined to that pathway, namely, an accessory before the fact to constructive murder. To some extent these arguments are echoed in the case made by the applicant on appeal.

11. [38]

    As to the first of the three contentions the trial judge ruled (Stay J [35]) that:

12. [39]

    As to the second and third contentions, his Honour observed that, regardless of whether the applicant changed his mind, the evidence available to the Crown from an intercepted conversation between the applicant and another – in which the applicant was recorded stating that he had agreed to commit the armed robbery with Coskun – was sufficient for the Crown to make out a case that the applicant had agreed with Coskun to carry out an offence of robbery whilst armed with a dangerous weapon (ibid [43]-[44]). His Honour concluded that there was “implicit acquiescence” by the applicant to a joint criminal enterprise being carried out by Coskun and another person. He held that principles of criminal complicity did not exclude inculpation of the applicant in circumstances where the person with whom he was complicit, to the applicant’s knowledge, engaged another person to assist in carrying out the venture he had agreed to, counselled, or procured (ibid [47]-[48]). His Honour was of the view that the identity of the shooter or gun was immaterial, since the discharge of any gun was an act within the realms of the agreement or the contemplated possible acts incidental to the joint criminal enterprise.

13. [40]

    Consistently with the foreshadowed narrowing, the Crown opened its case against the applicant to the jury as one relying upon constructive murder and accessorial liability. The Crown case was that the applicant, knowing that an armed robbery was to be committed and having initially agreed to participate, supplied a loaded firearm, being a dangerous weapon, together with a high vis shirt, to Coskun for use during the commission of the robbery by Coskun and a second person. Coskun, or perhaps the second unidentified intruder, subsequently shot and killed John Odisho in the course of attempting to rob Sargon Odisho of drugs and cash whilst armed with the loaded firearm.

14. [41]

    The jury was directed with respect to what the Crown had to prove if it was to establish its case, prior to the commencement of the closing addresses of counsel, in three written documents, marked respectively as MFI 66, 71 and 72. MFI 66 was the “elements document” and is of most significance for current purposes. His Honour’s oral directions to the jury on the elements were not materially different to the contents of MFI 66. It is useful to extract the document in full (the text in bold font mirrors the original):

15. [42]

    The fifth element is of particular significance in this appeal. It is founded upon the identification of elements of a charge of constructive murder by Carruthers J in Sharah at 297. The trial judge had himself earlier expressed doubt as to that statement of elements: R v Batcheldor [2014] NSWCCA 252; (2014) 249 A Crim R 461 at [128]-[132]. However, his Honour considered himself bound to follow Sharah, as he noted in his stay judgment at [38].

16. [43]

    In another of the written directions to the jury, MFI 72 (also explained orally), the trial judge directed the jury as to the requirement for unanimity as to the nature of the assistance provided by the applicant to Coskun. The jury was told that its members had to agree that the assistance provided by the applicant to Coskun was to supply the loaded gun, or the high visibility shirts, or both. His Honour explained that it was not open to be satisfied of the element concerning the provision of assistance if some jurors accepted one type of assistance had been given, and others a different type of assistance; there had to be unanimity as to the assistance provided.

17. [44]

    The applicant argues that the law does not recognise or provide for a person to be liable to a charge of constructive murder, pursuant to s 18(1)(a), on the basis of being an accessory before the fact to a relevant foundational offence. He asserts that the Crown’s chosen pathway to establishing his liability for murder was not one available under the law of this State. He advanced five contentions in support of that overarching claim, as follows:

    1. (1)

       the doctrine of constructive murder applies only to the person who committed the act causing death, and to any participant in a joint criminal enterprise to commit the foundational offence;

    2. (2)

       derivative liability does not operate such that the act of the principal is attributed to the accessory;

    3. (3)

       the knowledge required of the accessory to constructive murder is incapable of formulation;

    4. (4)

       the decision of Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 (Johns HC) is not persuasive or binding authority to establish liability for constructive murder as against an accessory before the fact; and

    5. (5)

       there is no offence of accessory before the fact to a constructive murder.

18. [45]

    The applicant contends that, for liability for constructive murder to arise under s 18(1)(a), the act causing death must be done by either the accused or an accomplice who was present and part of a joint criminal enterprise to commit the foundational offence. If that construction of s 18(1)(a) is correct, the applicant – who neither discharged the fatal shot nor was present at the scene of the shooting as an accomplice – cannot be liable for constructive murder. He contends that nothing in the law of accessorial liability changes that statutory reality. He relies upon a decision of Wright J in R v DJD and Murdoch [2023] NSWSC 222; (2023) 111 NSWLR 193, at [43]-[47], as authority for that construction of s 18(1)(a), which he submits is consistent with the common law rule as expressed in Mitchell v The King [2023] HCA 5; (2023) 276 CLR 299.

19. [46]

    The applicant submits that nothing in the doctrine of accessorial liability operates to extend constructive murder such that it is capable of attributing liability for the act of the principal that caused death to the person who was an accessory before the fact to the foundational offence. He argues that to establish an accessory before the fact offence against an accused person, the Crown must prove that the accessory assisted the principal in some way to commit the particular serious indictable offence, in this case, murder. On that basis, s 346 does not render an accessory liable for any serious indictable offence the principal might commit, but only for the particular offence the accessory counselled or aided.

20. [47]

    To construe s 346 as operating more widely than that – and thus to expose the accessory to liability for any crime the principal might commit in the course of committing or attempting to commit the crime encouraged by the accessory – would be absurd, in the applicant’s submission. One example given by the applicant to illustrate the argument is that of an accessory who encourages the principal to commit an armed robbery with an offensive weapon, where the weapon was an imitation firearm incapable of discharging a projectile by explosive means. He points to the unfairness and absurdity of holding the accessory liable for murder where, in the course of fleeing the scene, the principal ran down and killed a pedestrian. The contention is that accessorial liability cannot extend so far as to render the accessory liable for the death of the pedestrian, because constructive liability must be confined in its operation to ensure that the moral culpability and legal liability of the accessory is proportionate.

21. [48]

    Further, the applicant submitted that proof of the relevant state of knowledge would be too undemanding if an accessory was made legally liable for an offence that they had no knowledge would or might be committed. In this regard, the correctness of the decision of Sharah, insofar as that decision accepted that it was necessary and sufficient that the accused foresaw the possibility that the firing of a gun may occur, was disputed.

22. [49]

    The Crown disputes that s 18(1)(a) should be properly construed such as to confine liability for constructive murder to those persons present at the scene. The Crown submits that, consistent with the common law, the conviction of an accessory before the fact to constructive murder is open where the accused has knowledge of the facts and circumstances necessary to constitute the foundational crime, with there being no requirement of foresight or contemplation of the actual outcome. The Crown was also critical of Sharah, seeking relevantly to confine it to its facts.

23. [50]

    Before considering the arguments advanced before the Court and determining this ground there is some value in examining the origins of the jurisprudence relating to accessorial liability and constructive murder and the development of these historically vexed doctrines over time. Although both doctrines have been addressed in statute in New South Wales, the common law rules that identify and define accessories before the fact, principals in the first degree and principals in the second degree, and those that delineate the scope of the application of the constructive murder doctrine, remain influential in marking out the substantive limits of liability under these doctrines. An understanding of the operation of the common law rules is the necessary background against which the statutory provisions fall to be construed.

24. [51]

    The concept of an accessory before the fact is an ancient one, and the doctrine of accessorial liability is one of long standing, first glimpsed in Britain under Roman rule. In Russell on Crime1 the author referred to the Roman concept of noxal surrender, which was retained and expanded by English law. The concept was that where the crime involved the death of a man (the male gender only being referred to) not only the perpetrator of a crime was guilty but also those inanimate objects associated with its commission. Thus a cart or piece of timber or other object tainted with guilt for the killing was handed over to the monarch to be dealt with under the sovereign’s direction. In Russell on Crime this rule was said to be the origin of principles of accessorial liability (at p 19):

25. [52]

    Accessorial liability was referred to in the Statute of Westminster 1275, 3 Edw 1 c 5. It was explained by Sir Edward Coke in The Institutes of the Laws of England of 1797, where he said: [1]

26. [53]

    That formula expressed concepts that continue into the present of commanding or providing aid to the principal. Sir Edward Coke divided accessories into two categories, before the fact and after the fact. An accessory before the fact commanded or aided the principal, that being to “… incite, procure, set on, or stir up any other to doe the fact, and are not present when the fact is done” (ibid). The word “force” was said to “properly signifieth the furnishing of a weapon of force to doe the fact, and by force whereof the fact is committed, and he that furnisheth it is not present when the fact is done” (ibid). The notion of aid as given by Sir Edward Coke (ibid):

27. [54]

    Despite that distinction Sir Edward observed that “both principalls and accessaries are generally charged alike, without any distinction” (at 1 Inst 183). The “fact” referred to when speaking of an accessory before, at or after the fact is the offence for which the accessory is said to be liable.

28. [55]

    Section 346 of the Crimes Act is a modern statutory expression of that doctrine, dealing with accessorial liability for a serious indictable offence. It provides for “every accessory before the fact” to be “indicted, convicted, and sentenced, as a principal in the offence”, without distinction. So, too, is s 351 of the Act which addresses accessorial liability for a minor indictable offence. [2]

29. [56]

    As examples of the application of the doctrine, consideration of some earlier authorities is instructive. The Victorian decision of R v Russell [1933] VLR 59 is of some significance. It concerned a man who stood by whilst his wife drowned their children. Cussen ACJ explained (at 67):

30. [57]

    The “general idea” of the accessory before the fact being “linked in purpose” with the principal and, by his or her conduct, rendering the offence committed more likely of commission, is found frequently in cases decided after Russell.

31. [58]

    In Johnson v Youden [1950] 1 KB 544, involving three persons who aided and abetted another to commit a statutory offence, Lord Goddard CJ held (at 546):

32. [59]

    That statement has been frequently referred to with approval, including in Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 3 All ER 1140. The House of Lords there considered a case arising from “The Troubles” in Northern Ireland. A member of the Ulster Volunteer Force, a loyalist paramilitary group, was convicted of two offences connected with an attempt to bomb a Catholic-owned hotel. Maxwell was indicted as a principal, but the case against him was that he was an accessory before the fact to offences under the Explosive Substances Act 1883 (UK) of having possession of a bomb with intent and placing a bomb with intent. Maxwell’s role in the affair was to drive his car ahead of another car, containing three men, to guide them to the location of the hotel. Once the two cars had reached the location Maxwell continued driving and went home. The second car stopped and one of its occupants ran across the road to the hotel and threw a pipe bomb into its hallway. Maxwell disputed his conviction for the bombing, arguing that in guiding the occupants of the second car to the scene he had had no knowledge of what the men were to do, although he was aware a paramilitary operation was to be carried out. The House of Lords dismissed his appeal, citing what was said by Lord Goddard CJ in Youden with approval: at 1144 per Viscount Dilhorne, 1146 per Lord Hailsham of St Marylebone, and 1150 per Lord Scarman.

33. [60]

    The leading Australian authority is Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, the judgments in which refer approvingly to R v Russell, Youden and Maxwell. The appellant there had been convicted, as an accessory before the fact, of five counts of culpable driving causing death and one count of culpable driving causing grievous bodily harm. The appellant had owned a truck that was in a defective condition with malfunctioning brakes. He procured an employee of his – the principal – to drive the truck to deliver a load of coal. When descending a steep incline, the driver lost control of the truck and collided with other vehicles, causing the deaths and injury which were the subject of the charges. Giorgianni was charged pursuant to s 52A of the Act (as that section then was) operating together with s 351 of the Act, a provision that is the equivalent of s 346 relevant to the commission of misdemeanours (as then called). The section then provided:

34. [61]

    Mason J stated that “[i]t has been recognized that provisions such as s. 351 do not themselves create substantive offences but are declaratory of the common law and procedural in nature” (at 490, citations omitted; see also Gibbs CJ at 480; Wilson, Deane and Dawson JJ at 500).

35. [62]

    Two principal issues were raised before the High Court, both of which are of potential relevance to the current matter. The first was whether Giorgianni could be charged with the driving offences under s 52A when he had not been driving the vehicle but was charged as an accessory before the fact, pursuant to s 351 of the Act. The Court held that he could. Gibbs CJ indicated that the question was whether the provision “reveals any intention to exclude the ordinary rules governing the liability of a secondary party, as a person who has aided, abetted, counselled or procured the commission of a crime is now called” (at 477). The Court found that there was no such intention: Gibbs CJ at 478-479, Mason J at 492 and Wilson, Deane and Dawson JJ at 501-503. Gibbs CJ explained (at 478):

36. [63]

    Mason J explained how a contrary intention might be manifest (at 491, citations largely omitted):

37. [64]

    The second principal issue was “whether a person may be convicted of an offence against s. 52A … on the footing that he aided, abetted, counselled or procured the commission of that offence, if it is not proved that he knew all the circumstances which made what was done an offence” (quoting Gibbs CJ at 479). The trial judge in the case had directed the jury that it was sufficient that Giorgianni knew that the brakes were defective and could fail or was reckless to whether or not that was so (see at 477). The High Court held that recklessness did not suffice and upheld the appeal on that basis.

38. [65]

    Gibbs CJ summarised his view as follows (at 488-489):

39. [66]

    Similarly, Wilson, Deane and Dawson JJ said (at 504-505):

40. [67]

    As that quotation illustrates – and as is implicit in the very notion of being an accessory before the fact – the required knowledge of the essential facts which make what was done a crime may be knowledge in advance of the offence being carried out, being knowledge by the accessory of the intention of the principal to carry out the offence.

41. [68]

    A sub-issue considered by the High Court was whether or not the requisite actual knowledge extended to Giorgianni foreseeing the harm caused, that is death or grievous bodily harm. The Court held that knowledge of the consequence was not required. We return to this issue below.

42. [69]

    More generally, Mason J explained the nature of accessorial liability in terms which are instructive (at 493, citations omitted):

43. [70]

    Gibbs CJ similarly stated that “the person charged as a secondary party should in some way be ‘linked in purpose with the person actually committing the crime’” (at 480, quoting R v Russell). Thus for accessorial liability to arise on the basis of being an accessory before or at the fact it is not necessary that there be any agreement between the parties that the crime will be carried out – in contrast to what is required for the doctrines of JCE or EJCE to apply (as to which, see below). However, in circumstances where the accessory can only be liable if they actually know of the intent to carry out the offence and then intentionally assist the principal, even if there is no agreement between them they are still linked in purpose. The distinction between there being an agreement and being linked in purpose is a fine one. To some extent that point is illustrated by consideration of Johns HC.

44. [71]

    This case was a particular focus of the submissions in this matter. It is a case that is very similar in some respects to the present appeal, although the applicant disputes its applicability to the questions raised by him. Johns had agreed to drive another man, Watson, to Kings Cross, where Watson planned to meet an associate, Dodge, and rob another individual, Morriss, of a substantial sum of cash and jewellery. Johns was to hold the property after the robbery until such time as Watson could get away. Johns had been aware at the time that he drove Watson to Kings Cross that Watson went habitually armed with a pistol that was, on the particular occasion, likely to be loaded. During the course of the drive, Watson told Johns that the target of the robbery, Morriss, was himself always armed, and that he, Watson, would not stand for any “mucking around if it came to a showdown”. Johns was aware that Watson was quick-tempered and capable of violence.

45. [72]

    Johns drove Watson to Kings Cross where Watson joined Dodge. Dodge had a car and he and Watson drove off to another location to confront Morriss. Johns waited for Watson’s return. When he did return, Watson told Johns that he had not gotten the property and “it had gone bad”. Johns discovered the following day that Morriss had had neither valuables nor a gun, but there had been a struggle with the would-be robbers, during which Morriss was shot dead. Johns, who was alleged by the Crown to have been an accessory before the fact, was indicted as a principal pursuant to ss 18(1)(a) and 346 of the Act, and convicted of murder and assault with intent to rob whilst armed. His appeal to this Court against conviction and, separately, sentence, was dismissed: R v Johns [1978] 1 NSWLR 282 (Johns CCA).

46. [73]

    The Crown had put its case in terms relying on both categories of murder addressed in s 18(1) of the Act. As to the first category, the Crown case was that (Johns CCA at 294):

47. [74]

    As to the second pathway, relying on constructive murder, the trial judge summarised the Crown case as follows (ibid at 294-295):

48. [75]

    Both pathways relied on JCE – the first pathway involving a JCE encompassing the possible use of a weapon with an intent to kill, and the second involving a joint enterprise to carry out the foundational offence, but where the Crown contended that the parties together foresaw the possibility of the weapon being discharged. Thus the trial judge gave the jury the following direction (quoted in Johns CCA at 292):

49. [76]

    The directions and convictions were upheld by a majority of this Court. Johns then sought leave to appeal to the High Court on both conviction and sentence. Leave was granted but the appeal refused. Two key questions arose as to the convictions concerning the doctrine of common purpose (ie JCE). Those questions, and the Court’s resolution of them, were summarised in the subsequent decision of McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 as follows (at 114-115, citations omitted):

50. [77]

    The Court went on to explain in McAuliffe (at 115) that Johns HC had applied JCE and not EJCE:

51. [78]

    The applicant in this matter submitted that Johns HC “is not authority for the proposition that accessorial liability principles for an accessory before the fact can be relied upon to prove constructive murder”. He submitted that Johns HC was “a case where an accessory before the fact was properly convicted in circumstances where EJCE principles were applied”. Save for the fact that the decision is best understood as based upon JCE rather than EJCE (as the High Court explained in the passage just quoted from McAuliffe – cf Batcheldor at [128]), the applicant’s submission is correct. That does not mean the case is of no significance for current purposes.

52. [79]

    Johns had been charged in reliance on s 346 of the Act and was described throughout the judgments in both Johns CCA and Johns HC as an accessory before the fact. Further, a key part of his argument was that JCE principles could not found liability for a person whose role was being an accessory before the fact. The references to him being an accessory before the fact are best understood as describing his role and not the legal basis of his liability. That basis was JCE – ie the doctrine of common purpose – on either of the two Crown pathways. The point was made in the joint judgment of Mason, Murphy and Wilson JJ (at 125, emphasis added):

53. [80]

    At the time Johns HC was decided the more careful delineation in the language of present jurisprudence was not undertaken, and terms such as common design, joint enterprise, accessory, or acting in concert were sometimes used more or less interchangeably. It is important not to be misled by the language of the earlier decided cases – it is often the factual scenarios and principles stated which are most informative when considering the bases of criminal liability. In Johns a person who was in fact an accessory before the fact was held liable for murder where one of the two pathways to that verdict was put as constructive murder. That fact tends to undermine an argument that such persons cannot be liable for constructive murder, whilst noting that the legal basis of liability there was different to the pathway articulated in the current case.

54. [81]

    In one respect Johns HC might be thought to support a requirement – consistently with what was said in Sharah, as addressed below – that for such persons to be liable they must at least foresee the possibility of the use of the weapon and/or of death. That is so because that is how the jury was directed in the case as regards the constructive pathway murder (see above at [74]). However, whether or not such a direction was required was not at issue in either this Court or the High Court. Further, as shall also be explained below, that part of the direction requiring foresight of the possibility of death on the constructive murder pathway was not consistent with R v Surridge (1942) 42 SR (NSW) 278.

55. [82]

    Johns HC was affirmed and built upon in McAuliffe in 1995. There a unanimous bench of the High Court gave what is generally regarded as one of the classic statements of the law of criminal complicity with respect to issues of joint criminal enterprise and extended joint criminal enterprise, stating (at 113–114, citations omitted):

56. [83]

    The Court noted what had been said in Johns as to liability for murder extending to an accessory before the fact where death was a possible consequence of the criminal venture, and went on to extend that principle to the situation where one party foresees a crime other than the planned crime but does not agree to that crime, yet continues to participate nevertheless (at 117-118) – that being the doctrine of EJCE. The Court said of such a case that (at 118):

57. [84]

    In an influential judgment three years later, in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, McHugh J distinguished relevant doctrines of accessorial liability under the heading “Criminal complicity”. His Honour said (citations omitted):

58. [85]

    In Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 six members of the High Court declined an invitation to reconsider McAuliffe with respect to EJCE. Notably, in so doing those judges explained something of the relationship between that doctrine and being liable as an accessory, reaffirming the distinct existence of the bases of liability:

59. [86]

    In Miller v The Queen [2016] HCA 30; (2016) 259 CLR 380 the High Court was again asked to review the doctrine of extended joint criminal enterprise, and to abandon or confine it, in light of a joint decision of the United Kingdom Supreme Court and the Privy Council in R v Jogee [2017] AC 387. A majority of six members of the High Court declined that further request, with Gageler J dissenting. In the joint judgment of five members of the Court, with which Keane J agreed, their Honours referred to various reviews of the law of criminal complicity, noting that some States, including New South Wales, had chosen not to adopt recommendations for change. They said that “[i]n light of this history, it is not appropriate for this Court to now decide to abandon extended joint criminal enterprise liability and require, in the case of joint criminal enterprise liability, proof of intention in line with Jogee” (at [43]).

60. [87]

    Both Clayton and Miller illustrate that the High Court regards the various doctrines of criminal complicity as distinct but interlinked, and that there is reason to be cautious in seeking to reform them in a piecemeal fashion.

61. [88]

    As can be seen, the criminal doctrines of liability and complicity are complex and overlapping. Some of the distinctions involved are fine ones. In the interests of clarity it is useful to summarise relevant aspects of the doctrines and how they differ.

62. [89]

    As explained by McHugh J in Osland, a principal in the first degree is a person who took part in the commission of the crime; either alone or with others. Thus a person who stabs another causing a wound is a principal in the first degree to an offence involving wounding; two persons together, where one holds the victim while another wields the knife to stab the victim, will each be a principal in the first degree to wounding and equally liable.

63. [90]

    Pursuant to the doctrine of joint criminal enterprise, others who did not necessarily participate in all the acts constituting the offence may also be liable. At the heart of that doctrine is an ongoing agreement to carry out conduct constituting an offence, albeit that the agreement may be unspoken but implied, and may arise essentially contemporaneously with carrying out the offence. Liability extends to a crime incidental to the intended conduct “if the parties contemplate its commission as a possible incident of the execution of their agreement”: Miller at [4] and [19]. The doctrine involves attribution of the acts of the parties to the agreement to each other – ie the actus reus of the crime – insofar as they are carrying out the agreement: Osland at [73] and [79]; IL v The Queen [2017] HCA 27; (2017) 262 CLR 268 at [30] and [40]; Mitchell at [55]. In that sense it involves a form of agency: IL at [81]-[83]; Mitchell at [55]. It does not involve the attribution of mens rea between the parties: note Osland at [81] and [93]. Thus liability is primary and not derivative. The difference was explained by Kiefel CJ, Keane and Edelman JJ in IL as follows (at [34]):

64. [91]

    Because the acts of other parties are attributed to the accused, that person may be liable for a crime which by themselves they are not capable of committing – thus a husband who coerced his wife into an act of vaginal bestiality could be liable for the crime of bestiality although he could not have performed the act himself: IL at [35]-[38] and [83]-[84]. And because liability is primary, the accused can be liable even though the other party or parties to the agreement are not guilty of any offence (such as the wife in that example, who likely had a defence of duress).

65. [92]

    The doctrine of extended joint criminal enterprise covers the situation where there is agreement to carry out a crime but that agreement does not encompass carrying out some further incidental crime. The accused may be liable for that incidental crime if they foresee that commission of that crime is a possibility and, with that foresight, continue to participate in the enterprise. For example, a participant in armed robbery may be liable for injury being inflicted on a victim by another participant if they foresaw that a weapon might be used even if they had all expressly agreed that it would not be: eg McAuliffe at 115. In Mitchell, Gordon, Edelman and Steward JJ stated that the nature of liability for EJCE differs from that for JCE. It does not involve agency or attribution of acts because the relevant acts were not part of what was agreed between the parties; liability is secondary and derivative (at [61]). The “liability of the accused is derived from, and dependent upon, the criminal liability of another for the foreseen crime that was not part of the agreement” (ibid).

66. [93]

    In that respect, EJCE is similar to accessorial liability for accessories before or at the fact. A person who counsels, procures, aids or abets another commit a crime can also be liable for that crime. This type of liability differs from JCE in that it is not necessary for the Crown to establish any express or implied agreement to carry out the crime. As noted above (at [70]), however, where accessorial liability for accessories before the fact depends on establishing that the accused knew of the principal’s intention to carry out the crime and with that knowledge encouraged or assisted them – such that they are linked in purpose – in most cases it would also be possible to infer that there was agreement between them that the crime be carried out. And an agreement manifesting a JCE may itself be inferred from the parties’ conduct without the need for any express words: Miller at [4]. Nevertheless, the High Court has made clear that the doctrines of JCE and accessorial liability are distinct. A party may be liable under more than one doctrine. Thus the presence of agreement does not preclude the prosecution asserting that the person is liable as an accessory.

67. [94]

    Liability of accessories is secondary and derivative: Osland at [71]. It does not involve attribution of the acts of the principal to the accessory. Rather, it involves attribution of the principal’s liability: IL at [34]. It depends upon the principal being guilty of the offence, even if they have not actually been charged with it. Thus the accused will not be liable as an accessory if, for example, the prosecution cannot negative the principal having some basis for avoiding liability, such as a lack of criminal responsibility (eg if they were a child) or if they had a defence (such as the wife acting under duress of the husband in the bestiality example). The derivative nature of the liability is consistent with the point made in Clayton at [20], by reference to the writing of Professor Simester, that “liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime”.

68. [95]

    That liability of the accessory is secondary and derivative also means that they may be liable for an offence which they did not commit themselves, and may have been incapable of committing. Thus in Giorgianni the accused could properly be charged with culpable driving causing death even though he was not driving (or even in) the truck in question when it relevantly was driven.

69. [96]

    Since McAuliffe the doctrines of JCE and EJCE have tended to become more commonly chosen prosecution pathways to guilt in cases involving criminal complicity to commit crimes than accessorial liability. EJCE may be available as a pathway to liability where accessorial liability is not available (and that is one of the reasons it has regularly been attacked in the High Court). If an accused merely foresaw that commission of a particular crime was a possible outcome of a particular course proposed by another party to the JCE then the accused could be liable under EJCE, but could not be liable as an accessory because they would not have the required actual knowledge of the intent to carry out the crime.

70. [97]

    The constructive murder rule – historically the felony murder rule – is a part of the common law that operated to render an accused person who killed another in the course of committing a felony, guilty of murder, even though the act causing death was not accompanied by one of the states of mind ordinarily required to establish a charge of murder. Sir Edward Coke in The Institutes of the Laws of England gave an example of the operation of the rule, where a thief, shooting at a chicken with intent to steal it, shot a man instead, and was at law guilty of murder. [3] That was so as the act of shooting was committed with the felonious intent of stealing the bird, the theft of domestic fowls being a felony in eighteenth century England. As that example suggests, the application of the constructive murder rule was strict. Similarly, in R v Horsey (1862) 176 ER 129 a person who set alight a stack of straw – that being a felony at the time – was found guilty of murder because a person who had been asleep in the stack died in the fire, even though the person’s presence was not known to the arsonist.

71. [98]

    The application of the rule could be harsh. Thus a key issue over time has been what sort of crime will be sufficient for the rule to apply. Windeyer J explained the common law evolution in Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 240-241:

72. [99]

    In New South Wales there was an attempt to address the rule in statute in 1873, with it ultimately entering State legislation via s 9 of the Criminal Law Amendment Act 1883 (NSW). Section 9 provided (emphasis added):

73. [100]

    This provision is the predecessor of s 18(1)(a) of the Crimes Act, introduced in 1900. It set the threshold for application of the rule by reference to the character of the foundational act (“obviously dangerous to life”) or by reference to the seriousness of the foundational offence as indicated by the potential punishment (“a crime punishable by death or penal servitude for life”). In this way it ameliorated the common law. The phrase “an act obviously dangerous to life” was omitted from s 18(1)(a) of the Act in 1974 by s 5(a) of the Crimes and Other Acts (Amendment) Act 1974 (NSW). Other jurisdictions retain provisions referencing an act of violence (Victoria and South Australia) or one likely to endanger human life (Queensland and Western Australia). The reference in s 18(1)(a) to “a crime punishable by death or penal servitude for life” was also altered over time, with the present qualifying feature of offences carrying life or 25 years imprisonment taking effect in 1989.

74. [101]

    As Windeyer J noted in Ryan at 241, Sir Alfred Stephen and Alexander Oliver, the parliamentary drafters, indicated in their commentary on the 1883 Act that the provision dealing with murder was not intended to alter the common law other than in relation to banishing the expression “malice aforethought”. Consistently with those pronouncements, s 9 of the 1883 Criminal Law Amendment Act, and its successor, s 18(1)(a) of the Crimes Act, have been more recently referred to as “a restatement of the common law relating to murder and manslaughter”: IL at [7] per Kiefel CJ, Keane and Edelman JJ, see also at [21]; Gageler J at [94], [110] and [118]; Gordon J at [130]; note also R v Downs (1985) 3 NSWLR 312 at 314-318. 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”: IL at [7] per Kiefel CJ, Keane and Edelman JJ; cf Ryan at 221 per Barwick CJ; contra DJD at [30]-[31].

75. [102]

    Consistently with that understanding, it has been held that common law principles of complicity apply to s 18. In an important case decided in this Court in 1942, Surridge, the three accused persons were convicted of murder. The deceased had been violently set upon and robbed, and then left seriously injured. He died soon after. The evidence indicated that two of the accused, Mrs Surridge and Harris, took part in the assault, and the third accused, Mr Surridge, having been present at the time, subsequently assisted to carry the severely injured victim to a nearby waste ground. This Court concluded that Mr Surridge was properly convicted of murder. Jordan CJ, speaking for the Court, said the following (at 282-283; citations omitted):

76. [103]

    Eighty years ago, when Surridge was decided, the boundaries between accessorial liability and JCE were not so clearly delineated as they have come to be. Nevertheless, in substance Jordan CJ can be seen to be applying the doctrine of JCE. The application of that common law doctrine was seen to be possible despite the wording of s 18.

77. [104]

    An important point emerges from the last paragraph quoted. If the accused is party to a JCE to carry out a relevant foundational conduct or offence (then expressed to encompass an act obviously dangerous to life or a crime punishable by death or life imprisonment), it is implicit in the paragraph both that the acts of the killer can be attributed to other participants in the JCE, and that no further mental element is required as regards the death. If the accused was liable for the foundational conduct or offence, and death resulted in the course of that conduct/offence by the action of another participant, then they could be found guilty of constructive murder. There is no suggestion that, for example, it was necessary to establish that the accused foresaw the possibility of death occurring in the course of the conduct/offence.

78. [105]

    That paragraph of the reasoning of Jordan CJ in Surridge was substantially quoted, with approval, by Kiefel CJ, Keane and Edelman JJ in IL at [27]. Gageler J referred to the case with approval – whilst also appearing to approve Sharah – in the same case at [102] (we discuss his Honour’s analysis further below). Gordon J expressly approved that aspect of Jordan CJ’s reasoning (at [150], citations omitted):

79. [106]

    Furthermore, in Mitchell the joint judgment of Gageler, Gleeson and Jagot JJ accepted the same principle, albeit they cited the South Australian case of R v R (1995) 63 SASR 417 – which is discussed below – in support. Their Honours said that at common law, for constructive murder, it “was sufficient … that the act causing death was done by any participant in the commission of an agreed foundational felony involving violence or danger, irrespective of the intention or foresight of any of them that the act causing death would or might be done” (at [37], see also at [44]).

80. [107]

    An argument not dissimilar to some of the applicant’s arguments in this case was made in R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452, to the effect that constructive murder could not be found against someone who did not do the act causing the death in question. The legal basis of liability in that case was JCE. The argument was rejected. Wood CJ at CL, speaking for this Court, held that “[t]he wording of s 18 did not alter the operation of the common law rules of complicity” (at [200]). He explained:

81. [108]

    The issue arose again in the High Court in IL in 2017. The case concerned an appellant who had been convicted of murder following the death in an explosion of her accomplice in a joint criminal enterprise to manufacture methylamphetamine. Either the appellant, or the deceased, had ignited a burner during the distillation process, causing an explosion in which the accomplice was killed. The Crown attributed liability to the appellant through the doctrine of constructive murder, the foundational offence being one of manufacturing a large commercial quantity of a prohibited drug. A majority of the High Court ultimately quashed the conviction, as the possibility that the deceased had caused the explosion and thus killed himself meant that the constructive murder rule did not apply, as self-killing, or felo de se, is not a crime. In the judgment of Kiefel CJ, Keane and Edelman JJ, their Honours said (at [26]-[29], citations omitted, emphasis added):

82. [109]

    Similarly Bell and Nettle JJ said (at [60], emphasis added):

83. [110]

    Thus both this Court and the High Court have made clear that the common law principles of complicity can and do apply to s 18(1)(a), despite its particular wording relating to “accomplices”. Further, consistently with those principles, both courts have also held that the acts of one party to a JCE to commit the foundational offence for the purposes of a constructive murder charge can be attributed to the others.

84. [111]

    In the current case, the first of the applicant’s five key propositions (outlined above at [44]) is that the doctrine of constructive murder applies only to the person who committed the act causing death and to any participant in a joint criminal enterprise to commit the foundational offence. This argument is founded upon the text of s 18(1)(a). The nature and significance of the argument was somewhat unclear. The applicant argued that “it is critical (and uncontroversial) to observe that s 18(1)(a) requires that the act causing death be done by the accused” (emphasis in the original). On its face that seems to exclude the application of even JCE principles to the section. But the applicant seemed to accept that the act or omission causing death for the purposes of a constructive murder charge can be attributed to a participant in a JCE to commit the foundational offence. It may be that this first proposition was simply one way of putting the applicant’s overall conclusion that accessorial liability is not consistent with the nature of constructive murder.

85. [112]

    As explained in the first issue addressed in Giorgianni, the question of whether or not accessorial liability is implicitly excluded by the statutory offence in question is a matter of statutory construction, where the starting point under the Crimes Act is the presumption that those principles do apply (see above at [62]-[63]). The applicant here sought to argue that accessorial liability was excluded at least for constructive murder. Leaving aside the applicant’s arguments based on coherence and Giorgianni relating to the particular interaction between constructive murder and liability as an accessory before the fact – which are discussed below – there is no necessary reason why principles of accessorial liability cannot work together with a charge under s 18(1)(a). It has not been doubted that a person can be liable for the first category of murder based on accessorial liability (Johns HC would no doubt have been argued differently were it otherwise).

86. [113]

    The argument that accessorial liability does not involve attribution of the acts of the principal to the accused in the way that JCE does not exclude the potential for such liability to arise. For accessorial liability it is not the acts of the principal which are attributed to the accused but the liability of the principal for having committed the crime. It is the very nature of being an accessory before the fact that the accused is not said to have assisted at the scene of the crime. Thus, as noted, a person can be held liable for, say, a driving offence even though not even present in the vehicle when it was driven.

87. [114]

    True it is that cases such as Surridge, Jacobs and IL involved the doctrine of JCE, which does involve the attribution of acts. Wood CJ at CL in Jacobs and Bell and Nettle JJ in IL spoke of the common law principles of criminal complicity. Speaking generally, those principles encompass accessorial liability as much as JCE and EJCE. McHugh J’s leading discussion in Osland, for instance, is under the heading “Criminal complicity”. That being said, those cases did not address the interaction between constructive murder and principles of accessorial liability, as opposed to the doctrine of JCE.

88. [115]

    The Crown referred to two old Australian cases which it submitted involved charging an accessory before the fact with constructive murder, both involving then illegal abortions leading to death of the woman undergoing the abortion: R v Radalyski [1899] 24 VLR 687; R v Brown and Brian [1949] VLR 177. In Radalyski, the conviction of a person who was charged as one of two “accessories before the fact”, having “counselled” the abortion, was upheld. In Brown and Brian the Court noted that the appellant in Radalyski “had been convicted as an accessory” (at 182). The Full Court of the Victorian Supreme Court said this in Radalyski (at 691-692):

89. [116]

    That being said, the Court did not expressly address what the accessory needed to know in advance. Moreover, the Court noted that there was evidence that the deceased may have died by the principal covering her mouth to stifle her screams. The Court said of this possible means of death that (at 693):

90. [117]

    The reference to what those involved “must have known” is not inconsistent with recognising some requirement of foresight of the possibility of death.

91. [118]

    In Brown and Brian it appears that the defendant Brian had been charged as an accessory by procuring the abortion. The convictions were overturned for reasons not relevant here. The Full Court indicated in obiter that it considered the appropriate verdict in Brian’s case would have been manslaughter, seemingly because the foundational offence was not one that satisfied the common law requirement for felony murder that it be violent or dangerous.

92. [119]

    The applicant submitted that both cases should be understood as having been determined based on JCE. Even accepting that the relevant doctrines were not so clearly delineated as now, there does not appear to be any particular reason to treat them – and particularly Radalyski – as not involving liability based upon being an accessory before the fact. The applicant sought to rely on the fact that Stephen J had referred to Radalyski in Johns HC at 121-122, but his Honour’s discussion does not suggest that the case must be understood as one involving JCE. However, neither of these cases directly addressed the present issue relating to whether principles of accessorial liability are compatible with the doctrine of constructive murder.

93. [120]

    The applicant made an ambitious submission that this Court was bound by what King CJ, relevantly speaking for five judges in the Full of the South Australian Supreme Court, said about the law of New South Wales in R v R in 1995 (at 421):

94. [121]

    The applicant effectively argued that, in line with this analysis, this Court was bound to treat constructive murder in this State as a creature of statute, and thus was bound to give effect to the language referring to the accused causing the death charged in the connection with an actual or attempted commission of a foundational offence by the accused or an accomplice. That submission cannot be reconciled with the cases discussed above. And the statement by King CJ misunderstands that, as the cases set out above indicate, s 18(1)(a) does reflect the common law with respect to constructive murder, save in relation to what suffices for the foundational conduct/offence and in relation to the issue of malice aforethought. It is notable that King CJ did not refer to Surridge, Ryan or Downs. In any event, his Honour’s statement was based upon his analysis of what the High Court determined in Johns, and this Court is not bound by another intermediate appellate court’s understanding of a High Court decision that is binding on both courts: Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609 at [98]. This Court has already explained that the view expressed in R v R, just quoted, is not correct: Batcheldor at [76].

95. [122]

    The decision in R v R does nevertheless have some significance for current purposes. The case involved an armed robbery by two men in which one of them stabbed and killed a man. At the time of the offence constructive murder in that State was still governed by the common law. The trial judge directed the jury that it “would be no defence” for the companion to say that he did not intend to use his knife or expect the perpetrator to do so. It is apparent that the prosecutor alleged a JCE between the two men to commit the armed robbery. The companion, “G”, argued on appeal that the direction was erroneous as he could only be held liable if he contemplated that the other man, “R”, would or might inflict a fatal stab wound. In that regard G’s counsel sought to rely on Johns HC. King CJ rejected the argument. His Honour referred to a line of prior authority which he saw as standing against it (at 420):

96. [123]

    The decisions in the line of authority just cited in the last paragraph quoted can be characterised, upon review, as involving the doctrine of JCE as now understood, although the language of accessory is sometimes used. Even so, that authority is consistent with and supportive of the implicit conclusion of Jordan CJ in Surridge that if an accused is a party to a joint enterprise to commit the foundational conduct/crime in the course of which death results, then that person can be liable for constructive murder without more being established as to their understanding or intent. For example, in R v Jackson (1857) 7 Cox’s CC 357, at 360, the following was said by Bramwell B:

97. [124]

    In R v R King CJ continued (at 420-421):

98. [125]

    Mr David’s argument could also have been answered by invocation of Surridge but, as noted, that case was not cited. It is not entirely clear why King CJ felt it necessary to distinguish Johns in the manner quoted above at [116]. It may be because of the directions given by the trial judge in Johns, as referred to above at [81]. However, that was not the focus of the argument in that case in either this Court or the High Court. In any event, the decision in R v R manifests that the policy of the law which underlies constructive murder – that those who undertake sufficiently dangerous crimes may be liable for murder if death results in the course of the crime – also applies to other participants in the felony. The fact that King CJ referred to Giorgianni as consonant with that understanding suggests his Honour did not see that principle as depending just on aspects of the doctrine of JCE. That being said, the issue of liability based upon being an accessory before the fact was not analysed in the case.

99. [126]

    The High Court considered a case of constructive murder from South Australia last year, in Mitchell. The applicable law was ss 11 and 12A of the Criminal Law Consolidation Act 1935 (SA). Section 11 provides for an offence of murder and s 12A for a version of constructive murder, in terms different to the law in this State:

100. [127]

     As can be seen, s 12A differs significantly from s 18(1)(a) of the Crimes Act, both in requiring an intentional act of violence, which is not required in this State, and in setting a significantly lower threshold of seriousness for the foundational offence – being one punishable by 10 years imprisonment in that State, as opposed to the 25 years required here.

101. [128]

     In that case the Crown alleged that each of the four appellants, together with a fifth man, had agreed to a JCE involving breaking into a house and stealing the cannabis being grown there. The deceased lived at that house and was assaulted and killed in the course of the break-in and theft being carried out. The Crown had relied on two pathways to guilt, the second of which was constructive murder. That pathway was founded on EJCE: the Crown accepted that the appellants had not agreed to the act of violence that occurred (thus JCE did not apply) but alleged that each of the appellants had foreseen the possibility that in carrying out the enterprise one of the five men might perpetrate an intentional act of violence.

102. [129]

     The High Court unanimously held that this pathway to liability was not available for the purposes of s 12A. Three judgments were delivered. For Kiefel CJ, the core concern was that once it was accepted (as her Honour considered it should be) that the “intentional act of violence” required by s 12A should be broadly construed and did not require that the act of violence in question be the cause of the death, then mere foresight of the possibility of such an act occurring “cannot be a sufficient mental element for murder according to the principle” of EJCE (at [29]). Her Honour concluded that EJCE could not apply to s 12A. That was so “largely as a matter of the construction of that provision”, but also “because constructive crimes should be confined so far as possible in their operation” (at [30], citing Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 327).

103. [130]

     The joint judgment of Gageler, Gleeson and Jagot JJ saw the issue as turning on “the capacity of the common law doctrine [of EJCE] to operate harmoniously with the relevant statutory structure and statutory purpose” (at [34]). As already noted, their Honours explained that at common law every participant in a JCE to commit a foundational offence could be liable for constructive murder “independent of any intention or foresight of any of them that the act which in fact caused death would or might be done” (quoting [44], see also [37]). However, the South Australian Parliament had departed from that principle. Although the “intentional act of violence” could be an act of any participant in a JCE, it was necessary that the accused in question have the intention that the act of violence be committed (at [40]-[41]; we note that this view reflects the principle that JCE involves the attribution of acts, but not mens rea, of participants – see above at [90]). In this context the application of the doctrine of EJCE was not consistent with the statutory provision. Their Honours explained at [44]:

104. [131]

     That conclusion was reinforced by the point, made similarly to Kiefel CJ, that “(1) the judicial development of the criminal law has for the most part been, and should continue to be, towards a closer correlation between moral culpability and legal responsibility; and (2) the scope of constructive crime should be confined to what is truly unavoidable” (at [46], again citing Wilson).

105. [132]

     The reasoning in the second joint judgment of Gordon, Edelman and Steward JJ was similar to that in the first joint judgment. Their Honours noted that the modifications of the common law introduced by s 12A “had the effect of amending and restricting the operation of constructive murder” (at [99]), creating a particular pathway to a murder conviction based upon “the conduct and state of mind of the primary offender, who committed the act and thus caused the death”, where the acts of that offender could potentially be attributed to any other participant in a JCE (at [75]). But there was “nothing in either the text, context, or purpose of s 12A to suggest that it was intended to create a new pathway to murder that combined the deeming element of constructive murder with the deeming elements of extended joint criminal enterprise” (at [97]). Implicit in this judgment, again, was a concern not to expand the operation of constructive murder (see at [100]-[103]).

106. [133]

     The judgments of all members of the Court turned on issues of construing the particular statutory provision and the particular pathway it constructed to liability for constructive murder. That is not surprising given that s 12A was a “statutory replacement” of the common law (see Mitchell at [39], quoting the parliamentary debate). All members of the Court saw the statutory requirement for infliction of “an intentional act of violence” as significant. That requirement is not present in s 18(1)(a), which is much closer to the common law doctrine. The judgments reflect the point made in Giorgianni that common law principles of complicity may implicitly be excluded by the terms or nature of any particular statutory offence. Because the case turned on the wording of the distinct South Australian provision it does not relevantly aid understanding of the common law nor directly inform construction of s 18(1)(a) of the Act. That being said, the points that constructive crime in general should be confined so far as possible, and that constructive murder should not be expanded, are of broader application and do have potential relevance here.

107. [134]

     In Sharah, decided in 1992, the principal judgment was given by Carruthers J, with whom Gleeson CJ and Smart J agreed. The case concerned an armed robbery by two people in which a victim of the robbery was killed. The accused, Sharah, had been acting together with his co-offender in an armed hold-up, during which the co-offender discharged a shotgun and killed the victim. Sharah was charged with murder and with armed robbery with wounding, contrary to s 98 of the Act. The Crown relied upon two pathways for the murder charge:

     1. (1)

        “common purpose” murder, which seems to have involved an allegation of what would now be called EJCE, on the basis that Sharah foresaw the possibility of really serious injury or death being inflicted;

     2. (2)

        alternatively “felony murder”, where the felony was either of robbery in company with arms and wounding (being count 2), or robbery with striking and wounding.

108. [135]

     As regards the latter pathway, the trial judge directed the jury that the Crown did not have to prove any intention to injure, but only that the gunman’s act causing death was done by him during or immediately after the commission by the accused or an accomplice with him of a crime punishable by penal servitude of 25 years, or in an attempt by him or an accomplice to commit such a crime (see at 299-300). Those directions were not challenged at first instance, as the only issue at trial was whether the identification of Sharah as the second robber was reliable.

109. [136]

     On appeal to this Court, the relevant complaint made about the judge’s directions as to both murder pathways was this: “his Honour should have specifically directed the jury that it was necessary for the Crown to prove that the appellant knew, or alternatively contemplated as a possibility, that the gun was loaded and actually authorised its use if necessary” (at 301, emphasis added). In other words, in essence Sharah argued that he could only be liable if use of the gun was part of the joint criminal enterprise. That argument was rejected on the basis of what would now be called EJCE. Carruthers J held that it “is well-established that there are two classes of common purpose murder”, where the second was when the accused “contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm” (at 301). Thus, having referred to relevant case law, Sharah’s argument was rejected (at 303-304):

110. [137]

     Earlier in the judgment, when beginning to address the relevant grounds, Carruthers J said the following (at 297):

111. [138]

     The third element listed in relation to felony murder has been controversial. In this case the fifth element that the trial judge directed the jury was required to establish the applicant’s liability for murder was based upon it. Both parties challenged the Sharah third element, to different effect. The applicant submitted, in substance, that it was “plainly wrong” because it set too low a threshold as to the mental element required of a person in his position. He said that the “effect of Giorgianni is that an accessory before the fact is required to know and intend all of the elements comprising the offence to be committed”, whereas the trial judge’s fifth element direction “diminished the requirement of actual knowledge to mere recklessness”. This argument was thus based upon the particular nature of liability as an accessory before the fact. It should be noted, however, that that doctrine was not addressed in Sharah, which was concerned with liability under JCE or EJCE. Conversely, the Crown submitted that what was said in this respect in Sharah “was not intended to lay down a general rule as to the elements that must be proved in every case of constructive murder” but, alternatively, if it was to be so understood then it was “plainly wrong”.

112. [139]

     The Crown suggested prior to the hearing that a five member bench be constituted in light of that argument. It was not possible to do so given the date listed for the hearing, and neither party sought an adjournment. However, as was indicated to the parties at the commencement of the hearing, that did not limit their ability to submit that the decision was plainly wrong.

113. [140]

     In the event, however, it is not necessary to reach that conclusion when the decision is properly understood. Carruthers J’s statement of the elements was obiter, not ratio. As such, this Court is not bound to follow it subject only to considering whether it was plainly wrong. It was obiter because it was not necessary for his Honour to articulate the elements in that way in order to address the argument in question raised by Sharah, which related to whether it was necessary to show that he had actually authorised the use of the gun if necessary. As shown, that argument was answered by invocation and explanation of the doctrine of EJCE (as now called). Relatedly, there is nothing in the judgment to suggest that the issue relating to how all the elements for constructive murder should be articulated was the subject of argument. So much is implicit in his Honour’s rather tentative introduction of the topic, stating “may I presume to set out what I believe to be (consistent with the most recent authorities) the elements which it was necessary for the Crown to prove”. As McHugh J has explained: “Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue”: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [79]; see further eg CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13]-[14]; Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; (2017) 94 NSWLR 36 at [87].

114. [141]

     The first of the stated elements for felony murder set out in Sharah referred to the first foundational offence at issue there, being robbery in company with arms and wounding contrary to s 98 of the Act. But, as has been pointed out, the statement of the first element does not include any reference to a purpose involving wounding: DJD at [62]. A possible explanation of the stated third element, thus, may be that it was intended in some way to complement the first in that regard. That might explain why the element was explained in terms of the discharge of the gun by the co-accused (where the second element established wounding), rather than in terms relating to the foresight of death or grievous bodily harm. If so understood, the third element was directed in substance to making out the foundational offence, in the circumstances of that case, for the purposes of the constructive murder charge. That understanding is consistent with the fact that when Carruthers J went on to identify the elements for the foundational s 98 charge, the third element he identified there was in similar – though admittedly not identical – terms: “that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur” (at 298). That being said, as explained below, in fact Carruthers J seems to have drawn the supposed third element from the direction given in Johns.

115. [142]

     The trial judge in this matter, R A Hulme J, expressed doubts about the third element from Sharah in Batcheldor in 2014, with the agreement of Bathurst CJ. However, it was not necessary to resolve the issue in that case. His Honour said the following, in terms consistent with the point just made:

116. [143]

     In any event – and leaving aside issues of possible liability as an accessory before the fact – in our view it is not generally required to make out the third stated element for “felony murder” set out in Sharah at 297 in order to establish constructive murder pursuant to s 18(1)(a) of the Act. Specifically, it is not necessary when the doctrine of JCE is relied upon. Any suggestion to the contrary in Sharah should no longer be followed.

117. [144]

     To begin with, any such suggestion would be contrary to the indication by Jordan CJ in Surridge that if the accused is party to a JCE to carry out a relevant foundational offence, no further mental element is required as regards the death (see above at [102]-[104]). That case was not cited in Sharah – an absence which reinforces that the matter was not at issue. Subsequently to Sharah, that principle has been reaffirmed by seven members of the High Court in the last seven years, in IL and Mitchell (see above at [105]). These reasons, alone, are sufficient to reject the third element as a generic requirement.

118. [145]

     Further, it is difficult both to identify quite what the third element is and to found it on principle. The element was expressed in Sharah as involving foresight by the accused of the contingency of the weapon being discharged by the co-offender during or immediately after the armed robbery, whether or not fired intentionally. The foresight said to be required was not expressed in terms relating to the foresight of death or grievous bodily harm. Why the discharge of the weapon should be seen as sufficient was not explained. A constructive murder charge could arise even if the weapon involved in the armed robbery with wounding was not the cause of the death but, say, the deceased was killed running away into traffic in order to escape. Moreover, how would such an element be applied where the foundational offence did not involve use of a weapon, such as the offence at issue in IL, being manufacture or production of a large commercial quantity of a prohibited drug? These examples illustrate that one of the features of constructive murder is that a principal can be liable in circumstances where death or grievous bodily was not intended, not foreseen, and not even subjectively considered as a possibility.

119. [146]

     In a subsequent decision in this Court Carruthers J made a more encompassing statement connected to this issue, saying that the “critical question always must be whether the act causing death was within the contemplation of the accessory in his role as a principal in the original criminal enterprise”: R v Spathis [2001] NSWCCA 476 at [315]. Even if that broader statement was accepted as the relevant requirement, why that should be required for the person not responsible for the killing where it is not required for the person who caused the death was not explained. Such a result is anomalous – hence the principle established in Surridge.

120. [147]

     As for founding the third element in principle, it seems to have been derived in some unstated way from the principle of EJCE, where foresight of the possibility of another offence being committed is required and suffices to establish liability for that other offence. Why a principle of EJCE should be imported into the liability of a person said to be liable under a JCE was not explained.

121. [148]

     In Sharah the only authority relevantly invoked by Carruthers J for the third element was “the judgments of this Court in R v Johns [1978] 1 NSWLR 282, particularly at 294-295, where Begg J quotes with approval the directions of the trial judge”. As noted at [74] and [81] above, the trial judge did state in his directions in that case that the jury should consider where “in the course of [the foundational offence] Watson fired the pistol, whether or not accidentally and whether or not in furtherance of the common design, so long as it was a contingency which they had in mind” (emphasis added). Reliance on the trial judge’s direction in that regard is a thin foundation for this supposed requirement. Whilst it is true that the trial judge’s directions were upheld in this Court and the High Court, as noted above the issue in question here was not the subject of consideration in either court.

122. [149]

     The NSW Law Reform Commission, relevantly comprised of leading criminal lawyers, addressed constructive murder in its report number 129, in 2010, entitled Complicity. It explained – correctly in our view – that the third Sharah element, if understood to be generic, was inconsistent with the law applied till that point (at [5.37], citation omitted):

123. [150]

     The third element has subsequently been doubted. The scepticism of R A Hulme J expressed in Batcheldor, with the agreement of Bathurst CJ, has already been noted. In the same case Hidden J – with whom the other two judges also agreed – said that “it is not apparent that that additional direction was required” (at [79]). In IL, in this Court, Simpson J similarly stated that it “may be (and has been) questioned whether the third element was necessary, when regard is had to s 18 of the Crimes Act”: R v IL [2016] NSWCCA 51 at [36], with R A Hulme and Bellew JJ agreeing. However, her Honour added that Sharah “has never been overruled and, accordingly, remains a binding authority”, adding that this Court would need to be persuaded that it was plainly wrong to overrule it (ibid at [37]). For the reasons explained above at [140], we respectfully disagree with the suggestion that it is necessary to meet that standard of persuasion.

124. [151]

     The issue was referred to when IL went to the High Court, where a majority of the Court overruled this Court’s decision on different grounds. Kiefel CJ, Keane and Edelman JJ referred to the Sharah and Batcheldor tension at [89], but said that the resolution of the difference could await another day. Bell and Nettle JJ similarly said that “it is unnecessary to consider whether the Crown must also establish foresight of the act causing death” (in a footnote at [60]). Gageler J said the following (at [102], citations partially omitted):

125. [152]

     His Honour was in dissent in that case but that does not affect the analysis just quoted. However, as noted above, subsequently his Honour stated in Mitchell, as a member of the first joint judgment, that at common law it “was sufficient … that the act causing death was done by any participant in the commission of an agreed foundational felony involving violence or danger, irrespective of the intention or foresight of any of them that the act causing death would or might be done” (at [37], see also at [44]). Moreover, it is true that the particular circumstances of Surridge involved a common purpose “to use any violence, without any limitation as to its quantum” (quoting Jordan CJ at 282). However, Jordan CJ’s explanation of the law at 282-283 (quoted above at [102]), including in particular the paragraph directed to the category of constructive murder, was an articulation of principle expressed in general terms. In our respectful view, thus, we do not understand it to depend upon the particular common purpose in that case.

126. [153]

     Finally, in IL, the issue was addressed directly by Gordon J. Her Honour, too, was in dissent. Again, we do not consider that undermines the force of the analysis. Her Honour relevantly said this (citations omitted):

127. [154]

     We respectfully agree.

128. [155]

     In this case, as noted, the trial judge considered it necessary to direct the jury in terms consistent with the third element identified in Sharah, manifest in the fifth element in his Honour’s directions given in this case (set out above at [41]). That was so despite his Honour’s own previously expressed doubts about Sharah. It follows from the above that we consider his Honour erred in considering himself bound to give the fifth direction. That error does not establish a miscarriage of justice, where such is required: note Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [10]-[14]. That the jury was told it needed to find an additional, unnecessary element to be established could cause no prejudice or practical injustice to the applicant: note HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2]; Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585 at [74]. Doing so made the obtaining of a conviction more difficult for the prosecution, not easier.

129. [156]

     In sum, to the extent that ground 2 of the application relates to the fifth element directed by the trial judge, although error has been established no miscarriage of justice has been made out. Challenges to the second and fourth elements of the directions are addressed below.

130. [157]

     The issue that remains to be considered with respect to ground 1 is whether it was open to the Crown to pursue a conviction under s 18(1)(a) based on accessorial liability as an accessory before the fact.

131. [158]

     As explained above (at [44]), the applicant’s argument to the contrary was captured in five propositions. We have already addressed the first proposition, namely the argument that the doctrine of constructive murder applies only to the person who committed the act causing death, and to any participant in a joint criminal enterprise to commit the foundational offence (see above at [111]-[116]). As explained there, that proposition does not greatly advance debate. It tends towards being a statement of conclusion.

132. [159]

     The applicant’s second proposition was that accessorial liability does not operate on the basis that the act of the principal is attributed to the accessory. That proposition is correct (see above at [88]-[95]). As explained, accessorial liability is secondary and derivative. That means it “depends upon attribution to the accused of the liability of another” (IL at [34]). As the applicant himself submitted, “the accessory is fixed with liability for the principal offender’s crime, by reason of the intentional encouragement or assistance they provided to the commission of that crime”. That being so, the applicant’s second proposition does not establish that liability as an accessory before the fact is inconsistent with liability for constructive murder. The attribution of acts is not necessary to found this type of liability. If the principal to the foundational offence is liable for constructive murder then – subject to consideration of the applicant’s remaining arguments – it is open to attribute that liability to an accessory before the fact to the foundational offence.

133. [160]

     The applicant’s fourth proposition was that the decision in Johns HC is not persuasive or binding authority to establish liability for constructive murder as against an accessory before the fact. For the reasons set out above at [71]-[78], we agree with that proposition insofar as that case is best understood as turning on the doctrine of JCE rather than accessorial liability as an accessory before the fact. That being said, the case makes clear that a person who is in fact an accessory before the fact can be liable for constructive murder, a point which raises a question as to whether or not the difference between the legal doctrines of accessory before the fact and JCE should lead to a different outcome – a matter which we address below.

134. [161]

     The applicant’s third proposition was that the knowledge required by the accessory to constructive murder is incapable of formulation, and his fifth proposition was there is no offence of accessory before the fact to a constructive murder. The latter point is in the nature of a conclusion. In support of these propositions, the applicant gave considerable emphasis to the High Court’s decision in Mitchell. For the reasons explained above at [126]-[133], we do not consider that that case lends support to the applicant’s case in the way claimed, save for the important point about limiting constructive criminal liability. That raises issues of policy, to which we will turn shortly. The other High Court case which was central to the applicant’s argument was Giorgianni, which was said to raise an issue of coherence.

135. [162]

     The nub of the applicant’s arguments on this issue was as follows:

136. [163]

     The Crown’s position on this issue was not wholly inconsistent with the applicant’s arguments. In a supplementary written submission it said this:

137. [164]

     That crystallisation of the Crown’s position reflected what had been put orally by senior counsel for the Crown, as illustrated in the following exchanges:

138. [165]

     The Crown thus expressly accepted that Giorgianni requires that an accessory before the fact to a constructive murder charge have knowledge in advance of the act or omission causing death as being at least a possibility. It then distinguishes two sub-categories of case: those where the foundational offence includes in its elements the act causing death, and those where it does not. There is at least one borderline issue with that distinction: the foundational offence might involve, say, wounding, but it is not the wounding which causes the death. In any event, having drawn the distinction, for the first sub-category the Crown seems to accept that the accessory before the fact must have actual knowledge of the principal’s intent to commit that offence, consistently with Giorgianni principles. Yet for the second sub-category it suggests that the necessary knowledge is that “the act causing death [is] one of the possible ways in which the acts constituting the foundational crime may be carried out” (to quote the Crown’s supplementary written submission).

139. [166]

     This submission of the Crown sits in some kind of halfway house which appears to be much the same as the Sharah third element, even though the Crown itself sought to challenge that element. The Crown accepts that some type of advance understanding by the accessory is required with respect to the act causing death – in contrast to the Surridge position as regards a party to a JCE to commit the foundational offence. Yet the Crown then suggests a mens rea requirement which requires less than the actual knowledge required by Giorgianni. That position is arguably consistent with what was said in Radalyski – quoted above at [116] – to the effect that the persons attempting the felony “must have known” that certain events might occur which could lead to death. However, mere knowledge that carrying out the act or omission causing death was one of a range of possibilities is inconsistent with Giorgianni. For example, Wilson, Deane and Dawson JJ said the following in that case (at 506):

140. [167]

     If the act causing death is one of the elements that must be foreseen – that is, one of the “acts which constitute” the offence (to quote the joint judgment) – then Giorgianni suggests that the accessory before the fact must have counselled or aided (etc) the principal with the intention of aiding the commission of the offence of constructive murder, including the element of the act causing death. The Crown’s submission, like the third element in Sharah, appears to muddy the waters with the introduction of language of foresight of a possibility, where that would suffice where EJCE is invoked, but not where accessorial liability is involved. On this view of the law, there is much to be said for the applicant’s argument that liability as an accessory before the fact does not sit coherently with constructive murder pursuant to s 18(1)(a), such that the doctrine must be taken implicitly to be excluded by the statutory provision.

141. [168]

     The Crown argued that “it’s not a prediction it’s an awareness and that is knowledge of what can happen. It can’t be that it’s going to happen”. The latter statement manifests the fact that it relevantly makes no sense to have knowledge in advance of what was going to happen – that is, what the principal intended to do – because that is contrary to the very nature of constructive murder, which captures circumstances where there was no mental element on the part of the killer as to the act or omission causing death. Presumptively, the act or omission causing death was not part of the principal’s plan. It is the other, first, category of murder which addresses circumstances where the principal had an intent to kill or inflict grievous bodily harm or a reckless indifference to human life.

142. [169]

     If the act or omission causing death is something to which Giorgianni principles apply, then it is not apparent how a subjective appreciation of the mere possibility of that act/omission could suffice. The High Court made clear that recklessness is not a sufficient mental state for an accessory. To reiterate how Gibbs CJ put it, for example, no-one may be convicted as an accessory unless it is shown that “knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender” (at 488-489). Or as the joint judgment said, the accessory “need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it” (at 506). Yet for constructive murder, presumptively, the principal did not intend the act or omission causing death (certainly the principal need not have so intended). And the accessory thus could not have, by participating, aimed at the commission of the act or omission causing death, because it was not part of the plan, and constructive murder was not an offence which the accessory was encouraging or assisting.

143. [170]

     That the accessory may have appreciated the possibility that an act or omission causing death would occur in the course of the planned offence can be said to involve some moral culpability. It is a similar type of culpability to that which Australian law accepts under the doctrine of EJCE. But it is the same type of culpability as would exist if, say, Mr Giorgianni had appreciated that it was possible that the brakes on his truck were defective such that it would be dangerous to drive and yet still let his employee drive it. And that does not suffice for accessorial liability. As the joint judgment in that case stated (at 506-507):

144. [171]

     There may be room for argument about whether the act or omission causing death is one of the elements that must be foreseen. The Crown expressly conceded that it was (see the last two sentences quoted above at [164]). Even so, it is worth examining the point.

145. [172]

     In Giorgianni, as explained above, the accused was charged as an accessory before the fact to five counts of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm. The High Court held that it was not necessary that the accessory have actual knowledge in advance of the result of the dangerous driving, that is the death and grievous bodily harm. The joint judgment of Wilson, Deane and Dawson JJ addressed the issue as follows (at 502-503, citations omitted):

146. [173]

     Mason J explained (at 495):

147. [174]

     For constructive murder, can the death, and the act or omission causing it, be characterised just as one relevant result of the principal carrying out, or attempting to carry out, the foundational offence? It could be argued that for the principal no fault, beyond connection to the foundational offence, need attach to that act or omission. On that understanding, it could be argued that there is a coherent basis for liability to exist in an accessory before the fact in relation to constructive murder. On that basis, as stated in Radalyski in 1899, “if a person while endeavouring to commit a felony by some means or other kills another person he is responsible for the murder”, and “an accessory before the fact as such once established in that character stands in the same position as the principal offender” (at 691-692).

148. [175]

     However, we do not accept that characterisation. As noted, the Crown itself did not attempt to persuade the Court of such a characterisation.

149. [176]

     The issue here is different from involuntary manslaughter of the kind discussed by Wilson, Deane and Dawson JJ, including by reference to Reg v Creamer [1966] 1 QB 72. The examples given involve the intentional commission of an unlawful and dangerous act, where that act causes death even though death was not foreseen or intended. Liability for manslaughter arises from the very same act which was unlawful and dangerous which the principal intended to commit. As the English Court of Criminal Appeal went on to state in Creamer (at 82), “[t]he act intended is the same whether or not death results”.

150. [177]

     That is not necessarily so for constructive murder under s 18(1)(a). What is required there is commission of the requisite form of foundational offence, but where during or immediately after or in an attempt to commit that offence an act or omission occurs causing death. As the Crown recognised, that act or omission may have been directly connected to commission of the foundational offence or may have been merely incidental to it. On the face of s 18(1)(a) it is set out as a distinct requirement: “where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was … done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime” of the requisite kind. Indeed, the section makes clear that the foundational offence may already have been completed when the act or omission causing death occurs, as it may occur “immediately after” that offence. Unlike the involuntary manslaughter example, it is not merely one particular result of the foundational unlawful act. It may be an entirely distinct act or omission.

151. [178]

     For constructive murder an act causing the death must be a voluntary act by the person concerned: Ryan at 231 per Taylor and Owen JJ; 244-245 per Windeyer J; cf Menzies J at 234-235; note Barwick CJ at 223-226. That point indicates that it is a distinct element of practical significance. Ryan illustrates that there may be room for argument as to quite what the act causing death is. In that case a question arose as to whether it was just the pulling of the trigger on a firearm or, more broadly, the accused choosing to be in a position where he was pointing a pistol at a person whilst undertaking a robbery. That the characterisation of the act causing death may be contestable does not alter the need to establish a voluntary act causing death, where an act is involved.

152. [179]

     Illustrating the necessity to establish the distinct act or omission by the person concerned, in this case the fourth element that the trial judge directed the jury they must be satisfied of was that “during the attempt to commit the crime of robbery whilst armed with a dangerous weapon, a shot was fired by either Cengiz Coskun or the unknown male which caused the death of John Odisho”. The Crown did not suggest this direction was unnecessary.

153. [180]

     The distinct element of an act or omission causing death means that constructive murder is not an offence which is (necessarily) complete prior to the subsequent result, in contrast to what Mason J said in Giorgianni of the dangerous driving charges. The charges at issue there did require proof of a particular consequence of the dangerous driving – death or grievous bodily harm. Justice Mason said (at 495) that:

154. [181]

     For constructive murder death is not merely a consequence, let alone a natural and probable consequence, of the foundational offence. It is the result of an act or omission causing death, where that is not necessarily inherent in the foundational offence. Similarly, the joint judgment in Giorgianni quoted Blackstone saying that “he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other”. The act causing death may be a distinct action leading to a distinct offence; it does not merely ensue upon the foundational offence.

155. [182]

     True it is that that act causing death need not involve fault, in the sense of the principal intending to cause, or being reckless to causing, death or grievous bodily harm. But that is no answer. In Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 the High Court considered civil accessorial liability for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). Under that Act a corporation could be liable for misleading conduct even if not aware of the facts which made the conduct misleading. The statute created accessorial liability for individuals in terms which the High Court construed as invoking criminal law notions, consistently with Giorgianni. On that basis the Court held that an accessory could only be held liable for the misleading conduct if they had knowledge of the essential matters which made the conduct a contravention of the Act. That was taken to mean that the accessory – in contrast to the principal – had to have knowledge of the facts rendering the conduct misleading. The case illustrates that the fact that the principal may be liable without the need to establish some relevant state of mind does not detract from the need to establish that the accessory has knowledge of the essential matters which go to make up the offence.

156. [183]

     In sum, a charge of constructive murder under s 18(1)(a) of the Act involves proof not only of the foundational offence but of a distinct element of there being an act or omission causing death. To make out liability against a person based on being an accessory before the fact, consistently with the principles articulated in Giorgianni, it would be necessary for the prosecution to show that the accessory knew all the essential facts which made what was done a crime, and then intentionally aided, abetted, counselled or procured the acts of the principal. One of the essential facts for constructive murder – that is, one of the elements of the offence – is that an act or omission occurs causing death. Giorgianni would thus require knowledge in the accessory before the fact of an intent do so such an act. Yet if there was such a plan it would fall within the first category of murder under s 18(1)(a). The very point of constructive murder is that there is no need to establish intent or recklessness as to causing death or grievous bodily harm. To require foresight of the act causing death is inconsistent with the notion of constructive murder. That being so, liability as an accessory before the fact cannot work together coherently with liability for constructive murder. It is a case where “the application of sections dealing with aiding and abetting [are] excluded by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created” (quoting Mallan v Lee at 216; see also Giorgianni at 491). That basis of criminal complicitly implicitly is thus excluded by the section.

157. [184]

     Recognising that this conclusion may be contestable, it is appropriate to go on to consider matters of policy and principle.

158. [185]

     The policy behind the doctrine of constructive murder is clear. If a person undertakes or attempts to undertake a sufficiently serious crime, and a person is killed in connection with so doing, then the person should be held liable for the death. That policy of the law is longstanding.

159. [186]

     The effect of the offence of constructive murder is to impose liability on the principal where the infliction of death or grievous bodily harm was not intended or foreseen. Further, a participant in a JCE to commit the foundational offence may be liable for constructive murder without the prosecution needing to establish any mens rea in the participants in relation to the act or omission causing death. That that is so is established by Surridge, the High Court statements in IL and Mitchell, R v R, and the numerous authorities cited in R v R going back to at least 1857 (see above at [122]-[123]). We have rejected above the view that Sharah establishes some generic requirement to the contrary.

160. [187]

     In this context, a reasonable argument can be made that to require an accessory before the fact to have some such mens rea would be anomalous. In Mitchell, the first joint judgment identified that it would be anomalous that the participant in a JCE who did the “intentional act of violence” required by the South Australian provision had to have acted with intention, but for another participant it was sufficient merely to have foreseen that possibility as creating liability in them (at [44]). Here, it can be argued that the anomaly would be the other way around: a higher requirement of mens rea would be imposed on the accessory than would be imposed on either the principal or any other participant in a JCE to commit the foundational offence.

161. [188]

     That argument can be further reinforced by the point made above that the difference between liability under the doctrine of JCE and liability as an accessory before the fact is very fine (see above at [70] and [93]). The former depends upon establishing an agreement to carry out the offence in question, which agreement may be unspoken but implied in and inferred from all the circumstances. The latter involves providing assistance to the carrying out of the offence, where such assistance means the principal and the offender can be said to be linked in purpose. However, no actual agreement is required for accessorial liability. Even so, it is difficult to say that there is a significant difference in the moral culpability of a person who (say) provides a gun knowing it is to be used in a robbery but without actually agreeing that that is to be done, and someone who supplies the gun with positive agreement with the co-offender that it is to be so used.

162. [189]

     These arguments have some force. However, we consider that their force is outweighed by two overlapping responses. First, to the extent that an extra mens rea element would be required for an accessory before the fact (rendering the offence incoherent) that is so as result of basal principle relating to the nature of the doctrine of accessorial liability. That the difference between that doctrine and JCE is very fine has not prevented the High Court from maintaining that the doctrines are distinct: see eg Clayton at [20]. The Court has perceived a difference between liability as an aider and abettor, which is said to be “grounded in the secondary party’s contribution to another’s crime”, and liability for JCE and EJCE, where it is said that “the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture”: ibid; see also Miller at [34]. An accessory’s contribution to the foundational offence cannot be characterised as a contribution to the offence of constructive murder when that crime involves the distinct additional element of an act or omission causing death.

163. [190]

     Secondly, insofar as it might be said that these matters are balanced, the policy of the law manifest recently in Mitchell is significant. All three judgments in that case reiterated or echoed the statements adopted by a majority of the High Court some thirty years ago, namely, that the law should develop “towards a closer correlation between moral culpability and legal responsibility”, and “the scope of constructive crime ‘should be confined to what is truly unavoidable’”: Wilson at 327. Insofar as there are open legal questions here, the law should incline against extending constructive liability for murder.

164. [191]

     It can be argued that development of the law here should be left to the Parliament. That view was significant when, in Miller, a majority of the High Court declined to overturn the doctrine of EJCE (at [41]-[43]). The majority noted there that a number of law reform bodies – including the NSW Law Reform Commission – had recommended changes to the law of constructive murder, but such changes had not been adopted by relevant parliaments. That point was apposite in a context where the common law on EJCE had, by the time of Miller, been clear for an extended period. Here, neither the common law nor cases dealing specifically with s 18(1)(a) are clear on the issue in question. No case was cited by either side which directly engaged with the point.

165. [192]

     As has been explained above, the great majority of cases dealing with the type of issue that arises here are actually cases best characterised as involving JCE, including Johns. It is true that the Crown can call in aid Radalyski and, perhaps, Brown and Brian (see above at [115]-[116]). But those cases did not grapple directly with the sorts of issues raised here, and were decided long before clear distinctions have been drawn between accessorial liability, JCE and EJCE in the way that has occurred in this country in the last 45 years. Where the law is not clear, to assert that legal change should be left to the Parliament is to beg the question as to what the law is. The Crown did not argue that this Court should not uphold ground 1 because to do so would overturn a settled understanding of the law.

166. [193]

     Thus legal policy and principle in the end weigh against accepting the possibility of liability as an accessory before the fact to constructive murder.

167. [194]

     The fifth element in the directions of the trial judge would not have been needed if this case had been run on the basis that the applicant was part of a JCE to commit the foundational offence charged in count 2. Sharah did not require to the contrary.

168. [195]

     But the case was not run on the basis of any such JCE existing. The Crown had initially proposed to run such a case, as one of three pathways to liability, but at trial opted not to proceed with that version of its case (see above at [35]). As a consequence, no part of the trial judge’s directions to the jury required them to find that there was an agreement between the applicant and Coskun to commit the foundational offence. That this Court may consider that there was plentiful evidence to infer such an agreement cannot overcome the fact that to make out liability under a JCE would have required the jury to consider and determine the issue. Unsurprisingly, the Crown did not seek to invoke the proviso if ground 1 was made out.

169. [196]

     Ground 1 of the applicant’s appeal is made out. As asserted there, it was an error of law to permit constructive murder to be left to the jury on the basis of accessorial liability. We address the consequences of this conclusion below. Lest this matter go any further, it is appropriate to determine the other grounds of appeal, noting that ground 3 challenges both convictions.

170. [197]

     Under ground 2 the applicant takes issue not only with the fifth element set out in the directions of the trial judge (quoted above at [41]), as addressed above, but also with the second and fourth elements. He contends that:

     1. (1)

        the direction as to the second element is wrong as it made conviction possible on the basis of assistance with “preparations”; referred to “armed robbery” rather than “armed robbery with a dangerous weapon”; and failed to allow for the possibility of the jury accepting only that a high visibility shirt had been provided to Coskun, thus leading to an acquittal;

     2. (2)

        the directions as to the fourth element are wrong as it could only be satisfied upon proof that Coskun, and not the unidentified second intruder, had discharged the fatal shot;

     3. (3)

        the directions as a whole were inadequate to convey to the jury the knowledge and intention that the applicant had to have when the assistance was given to Coskun.

171. [198]

     In considering these complaints, it is important to undertake the analysis in the context of the trial as it was conducted before the jury: Beattie v R [2021] NSWCCA 291 at [26]. It cannot be undertaken in a vacuum, divorced from the reality of the trial proceedings as experienced by the jury.

172. [199]

     In that regard, the applicant’s criticisms of the directions given with respect to element 2 tend to do just that, and take the directions absent the context in which they were given. What was said by the trial judge, both orally and in MFI 66, with respect to element 2 constitutes part of a whole. The written direction used the phrase “intentionally assisted … in the preparations”, but in the context of the whole there could have been no doubt that the “assistance” given in the “preparations” was the provision by the applicant of a loaded gun and/or the items of clothing, with knowledge that the items were to be used in carrying out a robbery with a dangerous weapon. The directions given in relation to element 1 referred to and defined the nature of the foundational offence (being count 2) by reference to the use of a dangerous weapon, set out in the oral and written directions in accordance with the definitions given by s 4 of the Crimes Act and s 4 of the Firearms Act 1996 (NSW) as “a gun capable of propelling a projectile by means of an explosive”. The directions given with respect to element 3 similarly referred to the assistance provided by the applicant as assistance knowing that it was “intended to steal property from someone by the threat of force while armed with a dangerous weapon”.

173. [200]

     That was the case opened to the jury by the Crown, and evidence given during the trial went to the nature of the gun used to discharge both the fatal shot and that which wounded Sargon Odisho. It was clear across the whole of the summing up that to prove element 2, the Crown had to establish that the assistance given by the applicant to Coskun, as particularised by the Crown and delineated by his Honour in the summing up, was done directly to aid him in the commission of a s 97(2) offence, the elements of which were specifically and repeatedly given. A great deal of the ballistics and other evidence led at trial had been directed to the question of the firearm and its capacity to discharge a projectile by explosive means, and that evidence was addressed during the course of the summing up.

174. [201]

     When referring to the question of the ownership of the gun, his Honour told the jury:

175. [202]

     Similarly, the unanimity direction concerning the nature of the assistance – the gun, the clothing or both – emphasised this. There was no suggestion that some other sort of weapon, such as an imitation pistol, had been used.

176. [203]

     In the context of the trial, and against the whole of the summing up and directions given to the jury, it was abundantly clear that the Crown had to prove that the applicant materially aided the principal by the provision of a gun or clothing or both, knowing at the time of giving the aid that it was to facilitate the commission of a robbery whilst armed with a dangerous weapon, that is, a gun that met the relevant definition in the Firearms Act. We see no error in the directions given with respect to element 2. Much less has the direction occasioned a miscarriage of justice: Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 34; Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351.

177. [204]

     The complaint concerning element 4 is founded on the contention that any liability attributed to the applicant depended upon it being established that Coskun, and not the unidentified second man, was the shooter. It did not. Coskun went with a second individual to carry out a robbery whilst armed with a dangerous weapon; that was the joint criminal enterprise in which each took part. Under common law principles of complicity, each was responsible for the act of the other as principals in the first degree; the acts of shooting at Sargon Odisho and John Odisho were attributed to each. It was immaterial whether it was Coskun who discharged the shots or the second man; each was equally liable for the shooting. In providing the assistance the Crown alleged he provided, the applicant did so knowing that a robbery was to be committed, utilising a loaded gun, and that Coskun was to be accompanied by another person who would supply the place that the applicant had initially agreed to take. The applicant’s liability derived from that of Coskun, and Coskun was liable for the shootings whether he depressed the trigger or his unidentified co-offender did. That principle was related by the plurality in Mitchell (at [65], citation omitted):

178. [205]

     The overwhelming weight of the evidence – the ballistics evidence, the evidence as to the trajectory of bullets, the crime scene evidence concerning the confined nature of the area in which the shooter and the occupiers of the apartment were located when the shots were discharged, and the evidence of the gunshot injuries sustained by Coskun – all pointed very strongly to Coskun having in fact been the shooter. It was not, however, essential that the jury concluded he was for liability to attach to the applicant.

179. [206]

     Ground 2 is not made out.

Ground 3 – complaint about directions relating to lack of past convictions

1. [207]

   The trial judge directed the jury as to the applicant’s absence of a criminal record:

2. [208]

   The applicant submits that the direction concerned his good character and that it was inadequate for that purpose, since evidence of his good character was “eminently relevant to the question of whether he would have aided and abetted an armed robbery with a dangerous weapon or, worse, murder”.

3. [209]

   The alleged inadequacy was not the subject of objection and therefore leave to raise the point is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

4. [210]

   The issue of a good character direction was first raised by the parties in the pre-trial phase, in the context of a contested application by the Crown to admit evidence of a tendency by the applicant to engage in the business of committing drug rips for profit. Counsel for the defence informed the Court that a good character direction would not be sought. On day 15 of the trial, in a different context, the Crown informed the Court:

5. [211]

   The issue arose again on the last day of the Crown case, by which time it appears that the applicant’s counsel had foreshadowed that he would seek a direction of that nature. The trial judge engaged with counsel for the applicant:

6. [212]

   The respondent submits that defence counsel, in his closing address, did not ultimately raise good character, even in this limited sense. Rather, the absence of criminal convictions was applied by the defence only to counter the effect of the intercepted phone calls that were relied upon by the Crown as tendency evidence, as is apparent from the following excerpts, which are the only references in the defence closing address to the applicant’s absence of criminal convictions or good character:

7. [213]

   Evidence of good character can be relied upon by the jury to determine whether they are satisfied of the guilt of the accused. When given, the standard direction on good character informs the jury that it is available for that purpose: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 per Hayne J at [151] and [156]. However, there is no rule of law that in every case in which evidence of good character is given, the trial judge must give a direction as to how it is to be used: Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 per the Court at 333; Melbourne per Hayne J at [157]; [Decision Restricted] [2022] NSWCCA 259 per Beech-Jones CJ at CL at [36].

8. [214]

   It is apparent from the exchanges between defence counsel and the trial judge that the direction sought was, at its highest, one of limited good character, based on the simple fact that the applicant had no prior convictions.

9. [215]

   To the extent that the direction given could be characterised as one involving the applicant’s good character, this was not a case where it was appropriate to direct the jury that, if they were satisfied that the accused was a person of good character, it was open to them to reason that he was less likely to have committed the offences. Had counsel for the applicant sought such a direction, the Crown foreshadowed that it would call further evidence of the applicant’s bad character. The jury then would have received a direction concerning contested good character.

10. [216]

    The direction, as given, reflected the understanding between the trial judge and the parties as to the limited nature of the purpose for which it was being sought, which was consistent with how the defence referenced the applicant’s absence of criminal convictions in his closing address and the absence of complaint by defence counsel to the direction.

11. [217]

    Accordingly, we would refuse the leave to raise this ground that is required by r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 4 – unreasonable verdict

1. [218]

   Ground 4 asserts that the verdict on count 1 was unreasonable, or cannot be supported, having regard to the evidence. In this case the unreasonable verdict ground was put in a very particular way, being relevantly as follows:

2. [219]

   As senior counsel for the applicant accepted in oral submissions, the significance of ground 4 being raised in this case was that it was “another way of saying if we win on ground 1 there should be an acquittal, because it also means that guilt wasn’t established beyond reasonable doubt”.

3. [220]

   One issue with the applicant’s argument is that the charge in count 1 of the indictment presented to the jury was murder contrary to ss 18(1)(a) and 346 of the Crimes Act (see above at [29]). True it is that the latter provision refers to the liability of an accessory before the fact. But the same provision was invoked in Johns where, as explained above, liability was made out based on the doctrine of JCE where Johns was in fact an accessory before the fact but that was not the basis of his liability. Thus the invocation of s 346 in this indictment should not be regarded as having limited the Crown to relying just on accessorial liability. Moreover, the applicant was charged with murder, not constructive murder. Different pathways to a conviction were and are open under the indictment as framed at trial. The applicant did not contend to the contrary.

4. [221]

   It was thus open to the Crown to have relied on at least a JCE pathway, as it initially proposed to do. It is neither necessary nor appropriate to consider whether an EJCE pathway would be open to the Crown on a retrial in light of Mitchell – that is a matter of some complexity and was not the subject of any significant argument in this Court. As we discuss below, a strong potential case can be made against the applicant based on at least on the doctrine of JCE. Indeed, the difference between that case and the case actually made to the jury is slight. Although the applicant submitted that a conviction “for murder would not be open on the evidence on any other basis”, the applicant did not argue that on all of the evidence it could not have been open to the jury to be satisfied of his guilt of murder beyond reasonable doubt in terms of JCE, if that pathway had been raised and the subject of appropriate directions.

5. [222]

   In substance, the applicant is seeking to turn a legal argument about the unavailability of the one chosen pathway into a conclusion that the jury verdict was unreasonable. The relevant appeal ground under s 6(1) of the Criminal Appeal Act is that the verdict was “unreasonable, or cannot be supported, having regard to the evidence”. The question that an appellate court must ask itself as regards that ground is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493. The applicant’s argument in effect is that because the conviction cannot be upheld, based on the trial as it was run, that necessarily means the verdict was unreasonable and there must be an acquittal.

6. [223]

   The reference to being guilty in M means guilt of the offence charged. When another type of appeal ground is upheld it means that the trial has gone wrong in some way, implying that any retrial is to be conducted on a different basis. The fact that the trial has gone wrong does not of itself mean that the jury’s verdict was unreasonable or cannot be supported having regard to the evidence. Were it otherwise, the first limb of s 6(1) would tend to swallow the other two, and would undermine the power of the appellate court to order a retrial pursuant to s 8(1) of the Criminal Appeal Act. Exercise of that power depends on the court being persuaded that “having regard to all the circumstances, such miscarriage of justice [as has occurred] can be more adequately remedied by an order for a retrial than by any other order which the court is empowered to make”.

7. [224]

   The problem here is that the Crown pursued one pathway to guilt which, upon analysis, was not open. Not dissimilarly, in The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 an appeal had been upheld on various grounds which included that a foundational offence was not known to the law (see at [48]). Yet a majority of the High Court ordered a retrial. Even closer to the case at hand is Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282. In that case – conversely to the current matter – the Crown pursued a JCE pathway that was not available, where it could have asserted accessorial liability (see at [4]-[6] and [42]). The High Court held that the proviso could not be relied upon but ordered a retrial. Whilst the argument put here was not advanced there, we do not consider that cases such as that one and this must automatically result in an acquittal based upon characterising the result as unreasonable because a wrong legal pathway was advanced by the prosecution. Rather, such issues are to be assessed in considering whether or not the Court should exercise its discretion under s 8 to order a retrial. That issue is addressed below.

8. [225]

   Ground 4 is rejected.

Conclusion and orders

1. [226]

   The applicant has made out ground 1, alone. As a consequence the conviction on count 1 for murder cannot stand. The conviction on count 2, for the foundational offence, is unaffected.

2. [227]

   The question then is whether a retrial on count 1 should be ordered in the Court’s discretion having regard to s 8(1) of the Criminal Appeal Act. A range of factors may be relevant to the exercise of that discretion: see eg Castagna v R [2019] NSWCCA 114 at [190]-[204].

3. [228]

   The charge of murder – even for someone not present at the scene – is a very serious one. There is a substantial public interest in a person charged with such an offence being tried before a properly directed jury: note Taufahema at [49]-[51].

4. [229]

   There appears to be a strong potential case against the applicant for murder based on JCE. The core facts of the matter are outlined above at [8]-[25], and the facts found by the trial judge for sentencing were set out at more length in his Honour’s sentencing judgment. The key additional requirement for a JCE pathway would be establishing an agreement between the applicant and Coskun that the foundational offence would be committed. There was strong evidence indicating such an agreement. Notably, the conversation involving the applicant recorded on 28 June 2019, and set out at length above at [21], is evidence of the following: that on the night in question Coskun had explained the planned break-in and theft to the applicant; the applicant supplied Coskun with a loaded Glock “extended clip” handgun and a high vis shirt; that the applicant was himself going to participate in the robbery but pulled out at the last minute; the applicant supplied the gun and shirt because he needed money; and that even after the applicant pulled out of participating himself, Coskun said “I’ll get something out of it and I’ll bring it to ya”.

5. [230]

   This is not a case where the applicant “would be called upon to meet a quite different case to that presented against him at trial”: cf Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 519; see also Taufahema at [67]-[68]. As already noted, there is only a fine difference between the pathway advocated below and a JCE route. As the Crown submitted, such a case would not require a substantial amendment to the indictment: cf Parker at 520. As noted, the situation here is the converse of that considered in Handlen, in which a retrial was ordered.

6. [231]

   It is true that the Crown made a deliberate decision to confine its case to accessorial liability, disavowing reliance on JCE. But here, as in Taufahema, what “has happened may be regrettable and undesirable, but it is not sinister” (see at [68]). The Crown’s decision was made after it had proposed to pursue three different pathways, one of which was JCE (see above at [35]). The applicant himself had sought a stay in part on that basis, arguing that such an approach “will result in a very complicated series of directions and will be extremely difficult for a jury of laypersons, unused to the subject matter of the criminal justice system, to follow”, and would “jeopardise the safety of any verdict” (quoted in Stay J [22]). In his ruling on the stay application, the trial judge indicated that “[t]he multiple forms of liability proposed by the Crown create a considerable degree of complexity and potential for confusion” (ibid [26]). The Crown’s choice was thus made taking account of submissions made by the applicant and with the benefit of a large hint from the trial judge (which had been given prior to his Honour delivering reasons).

7. [232]

   Moreover, it is also relevant that the legal issues raised in this case are difficult and fine ones. This is not a case where it can be said that the Crown should be fixed with the result of some forensic decision made with full knowledge of the consequences. Incidentally, if the Crown had persisted with maintaining three pathways, where one was unavailable, the verdict would still have had to be overturned, just as it was in Mitchell (where one of two pathways was not available at law). A retrial was ordered in Mitchell.

8. [233]

   The applicant has been in custody since 21 August 2019. The sentence imposed on him was 14 years, with a non-parole period of 10 years and six months. He has over nine years left to serve of his head sentence. It cannot be said then a retrial could lead to no further punishment. Further, two years of that detention were served concurrently for both counts on the indictment. A trial some five years after the events in question is not an inordinate delay.

9. [234]

   In all the circumstances a retrial on count 1 should be ordered.

10. [235]

    A question then arguably arises as to whether the sentence for count 2 should also be set aside, in light of the fact that the trial judge said the following in sentencing the applicant for that offence (SJ [128])

11. [236]

    As that paragraph illustrates, sentencing for the foundational offence could not have been, and was not, separated from sentencing for the murder charge. In a further supplementary submission the Crown indicated that in the event that the conviction on count 1 was quashed it did not seek that the sentence on count 2 also be quashed, taking account of the following matters in particular: the two counts concern different victims; the sentence on count 2 was made wholly concurrent with that for count 1; and the sentence on count 1 expired more than two years ago. Given the Crown’s position the issue need not be considered further.

12. [237]

    A conceivable issue arises as to whether it is necessary or appropriate to address issues of bail in circumstances where the applicant’s conviction is quashed, a retrial is ordered, and he is no longer imprisoned under sentence: cf Bail Act 2013 (NSW), s 12(2). For the avoidance of doubt an order will be made refusing bail, doing so without prejudice to any future bail application in the Supreme Court.

13. [238]

    The orders of the Court will be as follows:

    1. (1)

       To the extent necessary grant leave to appeal, other than with respect to ground 3.

    2. (2)

       Dismiss the appeal with respect to count 2 on the indictment.

    3. (3)

       Uphold the appeal with respect to count 1 on the indictment.

    4. (4)

       Quash the applicant’s conviction on count 1.

    5. (5)

       A retrial is on count 1 is to be had.

    6. (6)

       The matter is listed in the arraignment list of the Supreme Court on Friday 7 June 2024 to fix a fresh trial date.

    7. (7)

       Pending any application for release, bail is refused.