Moussa v R

1. [1]

   WARD JA: On 1 October 2014, following a trial in the District Court before Colefax SC DCJ and a jury of twelve, the appellant (Christopher Moussa) was convicted of one count of intentionally damaging a property at Oatlands by means of fire while in the company of Paul Ribbons (contrary to s 195(1A)(b) of the Crimes Act 1900 (NSW)) and one count of manslaughter (contrary to s 18(1)(b) of that Act) by causing the death of Paul Ribbons. He had pleaded not guilty to both counts.

2. [2]

   The appellant, who sustained serious injuries in the incident and is now severely disabled, was sentenced on 23 January 2015 to a sentence of 2 years’ imprisonment for each count, to be served totally concurrently, which the sentencing judge directed be wholly suspended. He appealed solely from his conviction for manslaughter. At the hearing of the appeal, the appellant did not press all of his grounds of appeal as originally framed and sought leave to amend ground 1 of the grounds of appeal, having raised for the first time in submissions before this Court that his conviction for manslaughter was untenable because, in effect, the offence of which the appellant was convicted was not the act of the deceased killing another person but the act of the deceased killing himself. Leave was granted for that purpose.

3. [3]

   The grounds of appeal that were ultimately pressed on the hearing of the appeal were as follows:

4. [4]

   Since ground 1 raised an issue in respect of which the High Court had granted special leave shortly after judgment in the present matter was reserved (in IL v R [2017] HCA 27; IL v The Queen [2017] HCATrans 65 (4 April 2017)) and since no prejudice was likely to be suffered by the appellant by reference to delay in the determination of his appeal (his sentence for manslaughter having been wholly suspended and being served totally concurrently with his sentence for the arson count, against which there was no appeal), this Court has awaited the outcome of the High Court’s decision in IL before proceeding to determine the appellant’s appeal. Once that decision was handed down, further brief submissions were invited from the parties in the present case, the upshot of which is that the Crown accepts (based on the reasoning of the plurality in IL) that the appeal should succeed and that the appellant’s conviction for manslaughter should be quashed.

Background

1. [5]

   The Crown case against the appellant in relation to both counts on the indictment was brought on the basis that the appellant was involved in a joint criminal enterprise with the deceased to set fire to the house at Oatlands, as a result of which fire the deceased had died. The fire occurred on 22 November 2011. It was the Crown case that the appellant had driven the deceased to the house and that he had participated in the crime in various ways, including as a lookout.

2. [6]

   The house in question was the subject of a contract for sale due for completion on 5 December 2011. Prior to the fire, the purchaser had requested the vendor’s consent for the contract to be rescinded and, when that request was refused, had requested that a new contract be drawn up adding another person as purchaser. The vendor had agreed to the second request about a week before the fire occurred but the new contractual arrangement had not yet been put in place at the time of the fire on 22 November 2011. After the fire, the purchase was not completed.

3. [7]

   There was considerable fire damage to the house and the forensic investigation confirmed the presence of an accelerant (petrol). There were two main areas of fire damage: the first in the lounge room at the northern end of the house and the second in the sunroom, laundry and a bedroom at the southern end of the house. Evidence given by a fire investigator who attended the scene on the night of the accident was that the description given by witnesses of an explosion and vibration indicated a “petrol vapour explosion” (T 368-369). He described such an explosion as one that occurs where a quantity of liquid petrol is applied in an area; an amount of it is evaporated; and it forms a vapour. He said that there is a point where there is enough petrol vapour in conjunction with the oxygen in that area to create a significant explosive force (or instantaneous force of energy) when ignition is applied (T 369). He said that it was possible that there could be inter-communication between the vapour from one area to another area where vapour was being emitted (so as to ‘flash across’), which could account for witnesses to having heard two fire explosions. His view was that a petrol vapour explosion had probably happened in both areas (see T 379).

4. [8]

   The deceased was found lying face up on the floor at the southern end of the lounge room and was extensively burnt. The appellant also suffered burns. Based on the burns that the appellant had suffered, it was the fire investigator’s opinion that he was definitely not inside the lounge room at the time of the explosion (or he would have suffered the same consequence as the deceased) (T 384); that he was probably near the only exit (the front door); and that the force of the explosion would have almost pushed him out of the house. However, he also said that the appellant could have been near the rear door or “somewhere in the home near a point of egress” (T 384).

5. [9]

   Neighbours who heard the explosions gave evidence of seeing the appellant outside the house, naked and running around screaming and yelling. They observed that he was burnt, with his skin blistering and falling off him. He said to various people at the scene that his mate, Paul, was inside the house. He told fire fighters that his friend was “inside”, “in the middle” of the house and that he was “gone” (T 156 – Mr Midivaine; T 167 – Mr Rood).

6. [10]

   One of the neighbours gave evidence of having seen the appellant in the street on three different occasions prior to the fire (T 149-150), but this was denied by the appellant.

7. [11]

   Parked outside the premises on the evening of the fire was a vehicle registered to the appellant’s mother, Mrs Samira Moussa, bearing a stolen rear numberplate (the numberplate recorded as having been stolen about a month earlier – T 219). In the boot of the car was a “large red plastic jerry can” inside a dark coloured garbage bag. There was evidence from a police officer that when he opened the lid of the jerry can he could immediately smell petrol (T 269). Documents in the name of the appellant were found in the car. There was forensic evidence about DNA recovered from the car that matched or partially matched the appellant’s DNA (T 402-403, 408) and there was mixed DNA from the black plastic bag found in the boot in respect of which neither the appellant nor the deceased could be excluded as contributors (T 404).

8. [12]

   The deceased’s father gave evidence that at ten to seven on the evening of 22 November 2011 his son had received a telephone call and had a telephone conversation, after which his son had told him that he was “going out for a little while with Fat Cat”, who he understood to be his son’s “good mate”, Chris (the appellant) (see T 444). He said that about a quarter of an hour later Chris arrived and his son left, saying that he would not be long.

9. [13]

   Telephone records established contact between the deceased and the appellant at 16:20:20 and 16:40:35 on 22 November 2011 (T 482-483; Exhibit P).

10. [14]

    When arrested, the appellant exercised his right to silence. A formal demand was made requesting the identity of the driver or passenger of the car involved and the appellant said that he had driven the car and the deceased had been the passenger (T 451-452). In that conversation, evidence of which was led at the request of the defence (T 442), the appellant said:

11. [15]

    Asked about the petrol, he said that he did not know anything; that Paul (the deceased) got a phone call and that Paul did not say anything.

12. [16]

    A warrant for a listening device was obtained and that device was installed in the appellant’s hospital room. In evidence was a transcription of a conversation recorded on that device between the appellant and his brother on 29 January 2012, parts of which were in Arabic (and translated into English) (T 483-485; Exhibits Q, R). In that conversation, among other things, the appellant’s brother told the appellant that the best thing was to say he did not remember anything (advice the appellant’s brother attributed to a police officer friend, though that officer denied having given any such advice). The appellant told his brother, first, that there was nothing in the boot and then that there was “petrol, paint and that” (T 508-9). In oral evidence at the trial, the appellant’s brother said that in an inaudible section of the recording the appellant told him that the deceased had placed the petrol in the boot of the car.

13. [17]

    In his evidence at the trial, the appellant denied that he had agreed with the deceased to damage the house by fire; denied that he had lit the fire; and denied that he had had a prior conversation with the deceased about the house at Oatlands before 22 November 2011 (T 554-555). He said that he became aware that the deceased intended to do something to a house while they were together in his mother’s car sometime after 7.30pm (T 555). He confirmed that he drove to the deceased’s house; said that he did not get out of the car (T 558); said he saw the deceased walk out of the house and saw he was carrying a few things “like jackets” and that the deceased quickly turned and walked back inside his house and came back out a minute later (T 559).

14. [18]

    The appellant said that when the deceased got into the car he said “I need you to drop me off somewhere” and that “I have a job to do” and “Don’t worry. You just need to drop me off” (T 560-562). He said that the deceased directed him where to drive (T 561-562) and that, when the deceased jumped into the car, he noticed that the deceased had a red jerry can in between his legs (T 563). He said that while driving he asked the deceased “What’s that” and that the deceased said:

15. [19]

    The appellant’s evidence was that when he and the deceased arrived at the street where the house was the deceased told him to pull over and to wait there; that the deceased went towards the back of the car; and that he got out to see what the deceased was doing and saw him putting a different set of numberplates on the car (T 564-565). The appellant also said that the deceased said to him:

16. [20]

    The appellant said that the deceased then told him to come with him towards the house and that he did; that the deceased went into the house and that he (the appellant) stayed outside waiting. He said that he was thinking what he could say to persuade the deceased “not to go through with it” (T 567, 570). The appellant said that while he was standing at the door he did not see where the deceased was in the house and could not see into the house as it was dark. He said that the deceased came out and walked towards the car; that he followed him and that they got into the car, where the deceased told him to do a U-turn and then to pull over (T 571). He said the deceased took the jerry can and went towards the house (T 572); that he tried to convince him to leave (T 573); that he was standing near the doorway at the front of the house where the deceased told him to stay and that he saw the deceased walk into the front of the house into the front lounge but that he could not see where he went (T 574).

17. [21]

    According to the appellant, the deceased returned about ten minutes later and walked back towards the car with the jerry can; the appellant followed him, was told to open the boot of the car, which he did, and saw the deceased put the jerry can into the boot (T 575-576). He said he told the deceased he was scared and asked to leave (T 577); that the deceased told him to wait there; and that the deceased then walked back to the house. The appellant said that he waited for a period of time between one and ten minutes and then went back into the house with the intention of trying to convince the deceased to leave (T 578). He said he took a step into the front of the house; saw the deceased in the middle of the front room with his back towards him; and then in about two seconds “the house went up” and he saw a “fireball” which hit him as he was in the doorway and knocked him to the ground. He said he remembered “blacking out” and waking up; that he got up and ran out then turned around to try and save the deceased, at which point he saw the deceased in the middle of the room (T 579-580).

18. [22]

    In cross-examination, the appellant agreed that he did not simply drop the deceased off but that he stayed, knowing that the deceased was going to burn the house down (T 601-602). He could not exclude the possibility that while he was in the car the deceased had handed to him the double-sided tape after the deceased had used it to affix the stolen licence plate to the rear of the vehicle (T 608). He agreed that the petrol was going to be used to set the fire and that he had allowed the deceased to put the can back in the car after the petrol had been poured in the house, with the intention of driving away after the fire had been set (T 637). He denied that he was working with the appellant or acting as a lookout (T 617-618, 622) but agreed that: he had made it possible for the house to be set on fire by driving the deceased to the house (T 637); he had accompanied the deceased to the house three times during that night; and, on the third time, he knew that the deceased was going to light the fire and went inside the house (T 622-623). He also agreed that in the recorded conversation he had had with his brother he had asked about the contents of the boot of the car because he knew there were things in the boot that implicated him in the offence.

Closing submissions/directions as to the manslaughter charge

1. [23]

   The Crown prosecutor addressed the jury on the manslaughter charge in the following terms:

2. [24]

   Having referred to the examples the trial judge had earlier given of joint criminal enterprise, the Crown prosecutor went on to say:

3. [25]

   The defence case was, in essence, that the appellant had not agreed to damage the house by fire (there being no evidence that he had participated in any planning) and that, rather than being part of a joint criminal enterprise, the appellant was trying to stop his friend from burning down the house. His case was that he only learnt of the deceased’s intention after he picked him up. The defence argued that there had only been one point of ignition (the further ignition having been caused by the petrol vapour in another room) and noted that the mechanism by which the fire was started had not been identified in the evidence.

4. [26]

   On 22 September 2014 the primary judge responded to a request from the jury for more information regarding a joint criminal enterprise as follows:

5. [27]

   The examples given by his Honour were as follows:

6. [28]

   In summing up, the primary judge repeated the explanation earlier given to jury reminding the jury of the two examples (T 14-15) and then said:

7. [29]

   After reminding the jury of the appellant’s version of events (that he was in a very difficult position; that he was in a state of shock when he first saw the jerry can; that he did not know what the deceased was up to until they got to the house “when the truth of the plan was first clearly revealed to me” and that he acted in an irrational and unwise way not in his own best interests but driven by concern for his friend, and as an act of a friend) (T 17), the trial judge said:

8. [30]

   As to the elements of the two charges, the trial judge provided the jury with a document (MFI 34) and explained, in relation to count 2 (the manslaughter count), that there were four elements to be proved. In the written document, after the definition of “manslaughter” and the note that it was not the Crown case that the appellant acted with the intention of killing or inflicting any serious harm upon the deceased, those elements were set out as follows:

9. [31]

   In explaining the first of those elements, his Honour noted that:

10. [32]

    As to the fourth element, his Honour said:

Amended ground 1 – manslaughter verdict unsupportable

1. [33]

   The appellant does not dispute that there was evidence for the jury to find that he was involved in a joint criminal enterprise to damage the house in question by setting it on fire and that the enterprise contemplated the use of petrol as an accelerant. To that extent, the appellant appears to accept that his liability was co-extensive with that of the deceased for all the acts the deceased undertook in setting fire to the premises, that is, in committing the agreed crime of intentionally damaging property by means of fire. There is thus no challenge to the arson conviction.

2. [34]

   However, as adverted to earlier, in the course of oral argument on the appeal the appellant articulated for the first time the proposition that the manslaughter verdict could not be supported in circumstances where the offence for which a participant in a joint criminal enterprise (in this case, the appellant) is said to be liable (in this case, the unlawful killing of the deceased) is not an act of the perpetrator (the deceased) causing the death of another but an act of the perpetrator causing the perpetrator’s own death. Section 18(1)(a) of the Crimes Act 1900 (NSW) sets out the elements of the offence of murder and section 18(1)(b) provides that “[e]very other punishable homicide shall be taken to be manslaughter.” The appellant argues that where the accused’s physical co-venturer does the act that causes his death the accused cannot be held liable for manslaughter because there is an absence of an element of the offence, namely a homicide (AT 1.41). The appellant accepts that, on the principles of co-extensive liability, he may become liable for the perpetrator killing himself but says that liability is not a punishable homicide (AT 2.50-3.2). The appellant argues that what is attributed to the appellant under the principles relating to participation in a joint criminal enterprise is the act and the consequence of the perpetrator causing his own death and that does not amount to homicide (AT 4.45).

3. [35]

   The appellant accepts that this argument was not advanced at first instance (nor was it articulated in the original grounds of appeal). It was not advanced in the original written submissions filed prior to the hearing of the appeal. It was first raised, though it was not then suggested that any amendment to the grounds of appeal would be necessary, in reply submissions filed on 20 October 2016 in advance of the 24 October 2016 hearing in this Court. The Crown did not submit that, if it were given the opportunity to file supplementary written submissions, there would be any prejudice in leave being granted for the proposed amendment. Directions were made for the filing of an amended notice of appeal and the Crown was given the opportunity to file supplementary written submissions in relation to the matters raised in the appellant’s oral submissions and the new ground of appeal. Leave to raise that ground should be granted.

4. [36]

   A key part of the appellant’s submissions (at AT 3.10) was that the judgment of this Court in IL v R [2016] NSWCCA 51 (IL) at [70] was wrong. By the time of the hearing of the appeal, a special leave hearing had been listed before the High Court in relation to the correctness of that decision. After the hearing of the appeal, the High Court granted leave to appeal from the decision in IL on the following ground:

5. [37]

   The High Court (by majority) in due course allowed the appeal (IL v The Queen [2017] HCA 27) and, as noted earlier, the parties were invited to make further brief written submissions regarding the impact of the High Court’s decision in IL on this case.

6. [38]

   IL was a case in which there was a joint criminal enterprise to manufacture methylamphetamine involving the use of flammable solvents that created a highly flammable vapour which was ignited when a gas ring burner was lit, causing a fire. One of the participants to the joint criminal enterprise was killed in the fire and the survivor (IL) was charged, amongst other counts, with murder and (in the alternative) manslaughter. The trial judge directed the jury to return verdicts of not guilty in relation to those counts. The Crown relied on constructive murder for the charge of murder and involuntary manslaughter by an unlawful and dangerous act for the charge of manslaughter, relying on the principles of joint criminal enterprise. Relevantly, the trial judge said (at [97]-[98]):

7. [39]

   In this Court, Simpson J, as her Honour then was, with whose judgment RA Hulme and Bellew JJ agreed, said at [70], that:

8. [40]

   The Court of Criminal Appeal held that it was erroneous for the trial judge to have directed the jury to acquit on the manslaughter charge and that the trial judge had erred in directing the jury to return a verdict of not guilty in relation to the charge of constructive murder. In the reasons the trial judge gave for so directing the jury, the trial judge had said:

9. [41]

   The error subsequently identified in that reasoning process was identified by the Court of Criminal Appeal (at [60]-[64]) as follows:

10. [42]

    The act of lighting the burner used in manufacturing the methylamphetamine which ignited the flammable vapour was held to be plainly an act within the scope of the joint criminal enterprise and as such, both the participants were equally liable for that act regardless of which person actually performed it (at [39], [70]).

11. [43]

    The reasoning in IL in the Court of Criminal Appeal was consistent with dicta in an earlier case involving the death of a person caused by an explosion that occurred in the course of a joint criminal enterprise (CLD v R [2015] NSWCCA 114 (CLD)).

12. [44]

    In CLD, the principal question for determination on the appeal was whether the Crown had to prove the actual source of ignition in order to characterise the relevant act as dangerous. The respondent sought to uphold the acquittal on the basis that the Crown case was deficient, because it was “necessary to show the act of ignition to be able to assess foreseeability in the context of dangerousness”. The Court of Criminal Appeal said (at [33]-[34]), that:

13. [45]

    The Court held (at [35]) that it was not necessary for the Crown to identify the source of the ignition for the explosion to have been foreseeable as an incident of the joint enterprise. Irrespective of the source of ignition, it was open to a jury to find the accused causally responsible for the deceased’s death (at [40]-[47]).

14. [46]

    In the present case, the appellant ultimately accepted that upholding his amended ground 1 would require a departure from the reasoning of this Court in CLD (AT 10.10). He had not alerted the Court in advance to such a contention. In all the circumstances therefore, this Court considered it appropriate to await the determination by the High Court of the appeal in IL.

15. [47]

    The High Court allowed IL’s appeal. The plurality decision was given by Kiefel CJ, Keane and Edelman JJ (at [1]–[41]). Their Honours summarised their findings as follows (at [1]–[2]):

16. [48]

    At [24]-[25], the plurality noted:

17. [49]

    Bell and Nettle JJ (at [42]-[91]) concurred in the outcome but for different reasons. Their Honours considered (at [65]) that:

18. [50]

    In separate decisions, Gageler J (at [92]-128]) and Gordon J (at [129]-[176]) each dissented. However, both their Honours agreed with the plurality’s view that the acts of each participant are attributed to the others under the joint criminal enterprise doctrine. Gageler J noted (at [103]):

19. [51]

    Gordon J said (at [153]-[154]):

20. [52]

    In their supplementary submissions in this case (dated 29 August 2017), the Crown (while demurring from the appellant’s proposition as to the ratio of IL) accepts (at [4]) that, consistently with the reasoning of the plurality at [1] and [24]-[25] (see above at [47]-[48]), the appeal must be allowed and the conviction for manslaughter quashed.

21. [53]

    Ground 1 of the amended grounds of appeals should be upheld.

Ground 2 – Summing up

1. [54]

   As grounds 2(a) and 2(b) relate to the trial judge’s summing up and were not the subject of complaint at trial, leave is necessary pursuant to r 4 of the Criminal Appeal Rules. Leave should only be granted if the appellant can demonstrate that there has been a miscarriage of justice (ARS v R [2011] NSWCCA 266 at [146]-[148] (Bathurst CJ, James and Johnson JJ agreeing)).

2. [55]

   It follows from the High Court’s decision in IL that the trial judge’s direction that “if Ribbons dies from lighting a match but the appellant was part of a joint criminal enterprise, he is as liable for the death as Paul Ribbons who struck the match” was erroneous as a matter of law and resulted in a miscarriage of justice. Leave should be granted to bring ground 2(a) of the amended grounds of appeal and that ground should be upheld.

3. [56]

   Ground 2(b) of the amended grounds of appeal is no longer pressed (appellant’s supplementary submissions of 24 August 2017). It will be treated as abandoned.

4. [57]

   Since writing the above I have read the observations of Fagan J with which N Adams J agrees and I also agree.

Orders

1. [58]

   The following orders should be made:

   1. (1)

      Leave is granted to the appellant to bring ground 2(a) of the amended grounds of appeal.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the appellant’s conviction for manslaughter contrary to s 18(1)(b) of the Crimes Act 1900.

2. [59]

   FAGAN J: I agree with Ward JA that grounds 1 and 2(a) must be upheld and that the appellant’s conviction for manslaughter must be quashed, applying the High Court’s decision in IL v The Queen [2017] HCA 27.

3. [60]

   The case against the appellant was left to the jury on the basis they could find him guilty of manslaughter by unlawful and dangerous act where the relevant act was of the deceased himself and was attributed to the appellant on the basis of their participation in a joint criminal enterprise. That was in accordance with the law as it had been declared by this Court current to the date of the trial.

4. [61]

   The accused in IL v The Queen had been charged with murder and in the alternative manslaughter (by an expressly pleaded alternative count). The holding of the High Court by majority (five of the seven justices) was that the trial judge had correctly directed acquittal on both counts. This was not supported by a ratio decidendi or rule common to the judgments of the justices who formed the majority. In distinguishing the holding in the case from the ratio decidendi or rule I refer to McHugh J’s discussion of the terminology in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [58]–[61].

5. [62]

   Kiefel CJ, Keane and Edelman JJ held that s 18 of the Crimes Act 1900 (NSW) does not create an offence of murder or manslaughter where the deceased killed himself or herself.

6. [63]

   At [40] their Honours accepted that Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75:

7. [64]

   Nevertheless, Kiefel CJ, Keane and Edelman JJ considered that attribution to an accused of an act by which a co-participant in a joint criminal enterprise kills himself or herself cannot engage s 18 of the Crimes Act to constitute murder or manslaughter. At [25] their Honours said:

8. [65]

   Bell and Nettle JJ expressed a minority view on the subject of attribution of acts between participants in a joint criminal enterprise. Their Honours said (at [82]):

9. [66]

   Whilst differing over the principle of attribution, Bell and Nettle JJ supported Kiefel CJ, Keane and Edelman JJ with respect to the ultimate holding in the appeal, on the basis that when the act which caused death was assessed for its criminality “as was committed by the agent” (the deceased himself) and “not as if it had been committed by the principal” (the accused), there was no murder or manslaughter because s 18 of the Crimes Act does not create an offence of self-killing. At [88] their Honours characterised the case before the court as one:

10. [67]

    The common ground between the joint judgment of Kiefel CJ, Keane and Edelman JJ on the one hand and that of Bell and Nettle JJ on the other, is limited to acceptance that a person killing himself does not commit murder or manslaughter contrary s 18 of the Crimes Act. The respective reasons are disparate, where the causative act was committed in the course of a joint criminal enterprise of the deceased and the accused, as to why the act is not attributed to the accused in such a way as to constitute an unlawful homicide by the accused. One view is that s 18 is simply not engaged by a self killing, to whomever the act causing death may be attributed. The other is that the act causing death is assessed for its criminality as an act of the person who commits it, not as an act attributed to a co-offender in a joint criminal enterprise.

11. [68]

    Notwithstanding the absence of a single ratio decidendi or rule assented to by a majority of the seven justices, this Court must follow the holding (or result) of IL v The Queen. It is determinative of the present appeal where the facts are closely similar in all material respects. The Crown rightly conceded this.

12. [69]

    N ADAMS J: I agree with Ward JA and Fagan J that grounds 1 and 2(a) must be upheld in light of the decision in IL v The Queen [2017] HCA 27. As Fagan J has noted, although Bell and Nettle JJ expressed a minority view on the question of attribution between participants in a joint criminal enterprise, their Honours were in agreement with Kiefel CJ, Keane and Edelman JJ to the extent that their Honours all accepted that self-killing does not come within the terms of s 18 of the Crimes Act 1900 (NSW). Based on that aspect of the decision in IL v The Queen, I am satisfied that the Crown’s concession should be accepted, the appeal should be allowed and the appellant’s conviction for manslaughter quashed.