R v IL

1. [1]

   SIMPSON JA: On 18 November 2014 the respondent was arraigned in the Supreme Court on an indictment that contained six counts. The first count charged her with manufacturing a large commercial quantity of a prohibited drug (methylamphetamine). The second count charged her with the murder and, alternatively, the manslaughter, of Zhi Min Lan. The third, fourth, fifth and sixth counts charged unauthorised possession of various firearms or weapons.

2. [2]

   A jury was empanelled and a trial proceeded. With respect to the count of murder, the Crown case was that the act causing death was done in the course of the commission, or attempted commission, of the drug manufacturing offence – the basis of murder that has come to be known as “constructive murder” and will be explained and discussed below. The manslaughter count was similarly based.

3. [3]

   On 2 December 2014 the trial judge directed the jury to return verdicts of not guilty on the murder and manslaughter counts, which the jury duly did. The trial proceeded on the remaining counts. On 9 December 2014 the jury returned verdicts of guilty on each of those counts.

4. [4]

   The Director of Public Prosecutions (“the Director”) now appeals, pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”), against the acquittal of the respondent on the murder and manslaughter counts. Section 107(2) permits the Director (or the Attorney General) to appeal against (inter alia) the acquittal of a person by a jury at the direction of the trial judge. Such an appeal is confined to grounds that involve “question[s] of law alone”.

5. [5]

   Section 111(1)(b) of the Appeal and Review Act imposes a prohibition on publication of any matter that identifies an acquitted person the subject of a s 107(2) appeal, unless publication is authorised by an order of this Court (or, in the event of a retrial, the court of trial). No such order has been sought or made. The respondent will therefore be referred to by a pseudonym.

6. [6]

   The issues raised by the appeal involve consideration of certain principles of law with respect to the offences of murder and manslaughter and of offences committed in the pursuit of a joint criminal enterprise. Some difficult questions arise. The response made on behalf of the respondent calls for consideration of an even more difficult question, the proper construction of s 18(2)(a) of the Crimes Act 1900 (NSW), and the effect (if any) of the repeal (in 2008) of s 5 of the same Act (which, when in force, defined “maliciously”).

Background

1. [7]

   It is necessary to identify the case the Crown sought to make at trial. Obviously, what follows ought not be taken as representing any findings of fact; the facts as stated are those asserted by the Crown in the evidence in the trial, drawn largely from an uncontentious Summary of Trial prepared on behalf of the Director.

2. [8]

   All offences were alleged to have been committed in January 2013. The Crown alleged that the respondent and Mr Lan were jointly engaged in a criminal enterprise of the unlawful manufacture of a large commercial quantity of methylamphetamine in a house in Ryde. Part of the manufacture took place in a bathroom in the house. Early in the morning of 4 January there was a fire in the house, almost completely contained in the bathroom, where a gas cylinder was connected by a pipe or hose to a ring burner. The central knob of the ring burner was slightly to the left of the “off” position. The valve of the gas cylinder to which the ring burner was connected was loose, and appeared to be partially open. On the ring burner was a cooking pot containing a liquid substance which, on the Crown case, was methylamphetamine or a substance proposed to be made into methylamphetamine. On top of the cooking pot was a burning mattress. Also in the bathroom was a pistol-shaped cigarette lighter. The respondent was present in the house, as was Mr Lan, who was naked and severely burned. The respondent attempted to prevent police officers opening the front door of the house.

3. [9]

   Mr Lan was taken by ambulance to hospital, where he died on 14 January. The medical cause of death was severe hypoxic brain injury caused by smoke inhalation, or burn wounds (causes of death given variously by different medical practitioners).

4. [10]

   The only evidence of the cause of the fire was that given by Detective Sergeant Agius, of the Forensic Services Group of the NSW Police Force. Detective Sergeant Agius was not able to say with certainty that, prior to the fire, the ring burner was lit. That the valve of the gas cylinder was loose indicated that gas could escape from the ring without it being ignited. However, ignition in those circumstances without human intervention would be very uncommon.

5. [11]

   Detective Sergeant Agius was not able to determine the cause of the fire. That was, in part, because of the introduction of the mattress, which he assumed to have been brought in, after the fire had begun, with a view to stifling or smothering, or at least impeding the spread of, the flames. Although he was unable to determine the process that started the fire, he canvassed several possibilities. These included (but were not limited to):

6. [12]

   Expert evidence was given in the Crown case of the process of manufacture used in the premises. It is not necessary to go into the detail. It is sufficient to say that the process involved dissolving, in acetone and over heat, a substance containing a low level of methylamphetamine, for the purpose of extracting the methylamphetamine. Acetone is a flammable solvent. Heating flammable solvents generates flammable vapours which expand to fill a space. Once the concentration of vapours reaches an ignitable level it can explode if initiated by ignition. A combustible gas mixture, such as acetone in the air, can be ignited by a spark from electrical appliances, or by naked flames. The concentration of vapour depends, in part, on the space available; hence, an ignitable concentration is likely to be reached more quickly in a smaller space. In the experience of the expert, explosions or fires in clandestine methylamphetamine laboratories are usually caused during the evaporation of a flammable solvent.

7. [13]

   It is unnecessary to detail the evidence that implicated the respondent in the drug manufacturing enterprise, or the firearms possession, which resulted in her conviction on those charges.

The appeal

1. [14]

   To explain how the Crown case on appeal was put, it is necessary to begin by mentioning some legal principles, statutory and common law.

2. [15]

   Section 18 of the Crimes Act 1900 (NSW) defines murder as follows:

3. [16]

   There are, therefore, in s 18(1)(a), four categories of murder. Three of the categories are defined by reference to the state of mind of the accused person at the time of the act or omission that causes death: that is, murder is committed when the act (or omission) causing death was done (or omitted):

4. [17]

   The fourth category is different. An act that causes death is held to be murder when the act (or omission) is done (or omitted) by the accused or an accomplice of the accused, in the course of the commission or attempted commission, or immediately after the commission, of a crime punishable by imprisonment for life or for 25 years. This is an offence formerly known as “felony murder”, more commonly now known as “constructive murder”. In cases of felony murder or constructive murder it is usual to refer to the crime in relation to which the death occurred as “the foundational crime”. I will adopt this terminology.

5. [18]

   Two categories of manslaughter are recognised by the criminal law: voluntary manslaughter and involuntary manslaughter: Wilson v The Queen [1992] HCA 31; 174 CLR 313; Lavender v The Queen [2005] HCA 37; 222 CLR 67; Lane v R [2013] NSWCCA 317.

6. [19]

   Voluntary manslaughter plays no part in the present matter. It can be put to one side. Involuntary manslaughter, in turn, is of two kinds – manslaughter by criminal negligence, and manslaughter by an unlawful and dangerous act. It is the second of these upon which the Crown relies. In order to qualify as an unlawful and dangerous act for the purposes of this category of manslaughter, it is necessary that the act causing death be:

7. [20]

   The law of criminal complicity has its complexities, which, in Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 the High Court was invited (but declined) “to sweep away” ([27]). For present purposes, the relevant principles were stated in Johns (TS) v The Queen [1980] HCA 3; 143 CLR 108 and restated in McAuliffe v The Queen [1995] HCA 37; 183 CLR 108, and adopted in Likiardopoulos.

8. [21]

   The statements of principle in Johns are succinct. Barwick CJ said:

9. [22]

   The statement of principle in McAuliffe is as follows:

10. [23]

    Those principles were affirmed in Gillard v The Queen [2003] HCA 64; 219 CLR 1 and Clayton v The Queen [2006] HCA 58; 231 ALR 500. The plurality in Clayton (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ) said:

11. [24]

    The second quoted paragraph from McAuliffe, and [17] of Clayton state the doctrine known in Australia as “extended joint criminal enterprise” which involves fixing a participant in a joint criminal enterprise with liability for offences committed by one participant that were not within the common intention, where the possibility of such an offence was within the foresight, or contemplation of the other participant (or participants).

12. [25]

    That doctrine (extended joint criminal enterprise) does not arise for consideration in the present case. An understanding of the principles stated in Johns is sufficient. I mention the extension merely to emphasise that, in this case, there is no allegation of an offence over and beyond that (drug manufacture) being committed by either of the participants.

13. [26]

    It is only the category of murder known as constructive murder that is applicable to the present case. (I have mentioned the other categories in order to explain a distinction to be drawn between certain of the authorities on which reliance was placed both before the primary judge, and before this Court.) The Crown’s allegation that the respondent was engaged, with Mr Lan, in a joint criminal enterprise to manufacture a large commercial quantity of the prohibited drug, methylamphetamine, provides the basis for its case that the respondent was guilty of constructive murder. Manufacture of a large commercial quantity of a prohibited drug is a crime that is, by s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), punishable by imprisonment for life, and thus capable of being a “foundational crime” for constructive murder. The Crown case on murder was that Mr Lan’s death was caused by an act of the respondent, in the course of the commission, or attempted commission, of an offence of manufacturing a large commercial quantity of methylamphetamine. However, as has been noted above, because the Crown was unable to nominate any act or event that caused the ignition of the ring burner, it was unable to nominate any specific act of the respondent that caused Mr Lan’s death. The Crown therefore relied upon principles of law relating to joint criminal enterprise, particularly those with respect to fixing one participant with criminal liability for the acts (or omissions), within the scope of their agreement, of another participant, or other participants. I will return to this.

14. [27]

    It was, thus, the Crown case that, because the respondent and Mr Lan were engaged in a joint criminal enterprise, the respondent was equally responsible for the act of ignition whichever of the two actually did it; that, in effect, if it were Mr Lan’s act that caused the ignition of the ring burner that act was, on the principles stated in Johns and McAuliffe, the respondent’s act. Since the respondent was thus responsible for the act causing death, and it was an act done in the course of the commission of an offence punishable by imprisonment for life, the respondent was guilty of the murder of Mr Lan.

15. [28]

    The application of the principles of joint criminal enterprise is not limited to prosecutions for murder, although each of the cases mentioned (see [20] above] involved a charge of murder. There is an important point of distinction between those cases, and the present. In each case (Johns, McAuliffe, and Likiardopoulos) the accused person was charged with murder as a direct result of his participation in a joint criminal enterprise, the scope of which included the use of violence that might result in the death of the victim.

16. [29]

    In Johns, the appellant was charged as an accessory before the fact of murder; he was a party to an agreement, with two others, to an assault and armed robbery of another man. As a consequence of the assault and robbery, the victim was killed. Although he was not present at the time of the infliction of the violence on the victim, his participation in the agreement was sufficient to fix him with criminal liability for “an act contemplated as a possible incident of the originally planned particular venture” (p 131).

17. [30]

    Similarly, in McAuliffe, the two appellants were parties to an agreement with another man to assault a stranger. Two of the participants were armed, with, respectively, a hammer and a baton or stick. They encountered two men in a beachside park near a cliff and attacked them violently. One of the victims fell over the cliff, and died of injuries he then sustained. The two appellants were held to have been properly convicted of murder on the principles stated. From the facts of the case, and the judgment of the High Court, it is clear that the appellants were held to have been rightly convicted of murder because the infliction of (at least) grievous bodily harm was, in the circumstances, within the contemplation of the appellants.

18. [31]

    The circumstances in Likiardopoulos were not dissimilar. Likiardopoulos was party to a joint criminal enterprise, with several others, to assault the victim. The assaults took place over two days, and, as a result, the victim died. Likiardopoulos was not shown to have been present throughout. No single act could be identified as the act causing death. Nevertheless, Likiardopoulos was convicted of murder on McAuliffe principles, and the conviction was upheld in the High Court.

19. [32]

    None of these prosecutions proceeded upon an allegation of constructive murder. Each of those accused was charged with one of the categories of murder that depends upon proof that an act causing death was done with specific intent, either to kill, or to cause grievous bodily harm, or with reckless indifference to human life. Each was guilty because the act causing death was committed in the course of a joint criminal enterprise in which death or the infliction of grievous bodily harm was taken to be within the scope of the enterprise, or within the contemplation of the perpetrators.

20. [33]

    In the present case however, the Crown could not realistically proceed on the basis that death or the infliction of grievous bodily harm was within the scope of the joint criminal enterprise of drug manufacturing, nor that either was within the contemplation of the parties to that enterprise, the respondent and Mr Lan. In order to fix the respondent with liability for murder, the Crown was forced to rely on the final category of murder, constructive murder.

21. [34]

    R v Sharah (1992) 30 NSWLR 292 was a case in which the Crown relied (unnecessarily, in the view of Carruthers J, with whom Gleeson CJ and Smart J agreed) on alternative categories of murder – first, that the death was an incident in the course of the carrying out of a joint criminal enterprise (armed robbery) and therefore within McAuliffe principles; and, second, constructive murder. The Crown case was that Sharah took part with another man in an armed robbery with wounding, in the course of which the victim was killed. In those circumstances, it could readily be conceded that death or the infliction of grievous bodily harm was within the scope of the enterprise, or within the contemplation of the parties to it. However, the Crown also maintained the alternative basis of liability – constructive murder. Armed robbery with wounding was an offence punishable by imprisonment for 25 years, and therefore qualified as a foundational crime for constructive murder.

22. [35]

    Carruthers J set out the elements it was necessary for the Crown to prove, both for “common purpose murder” and “felony [constructive] murder”. With respect to the latter, his Honour stated the elements as follows:

23. [36]

    It may be (and has been) questioned whether the third element was necessary, when regard is had to s 18 of the Crimes Act. In Batcheldor v R; Walsh v R [2014] NSWCCA 252, R A Hulme J (with whom Bathurst CJ expressly agreed) considered that the third element (foresight of the discharge of the gun) was an unnecessary importation into the offence of constructive murder. Foresight is an element of the concept of extended joint criminal enterprise, and necessary to render a participant in the joint criminal enterprise liable for acts of other participants; it had not previously been a requirement of constructive murder under s 18 (Batcheldor, at [128]-[132]).

24. [37]

    However, Sharah has never been overruled and, accordingly, remains a binding authority (on trial judges) for NSW. (It also remains a binding authority for this Court, unless the Court is satisfied that the decision was plainly wrong and that there are compelling reasons to depart from the earlier decisions (Gett v Tabet [2009] NSWCA 76; 254 ALR 504).

25. [38]

    In this case, the principles stated above relating to joint criminal enterprise have no direct application to the counts of murder or manslaughter. By that I mean this: the respondent was not charged with either murder or manslaughter as a consequence of her participation in a joint criminal enterprise of which one of the contemplated incidents was the death of, or the infliction of grievous bodily harm on, Mr Lan (or somebody else). Rather, the principles are applicable to the foundational crime, drug manufacture. They are relied on by the Crown in order to fix the respondent with liability for the act of ignition of the burner, whichever of the two participants actually did that act.

26. [39]

    There was no real dispute that the Crown could make out a case that the respondent and Mr Lan were engaged in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug. There could have been no real dispute that each bore criminal liability for all of the acts of the other that were within the scope of that joint criminal enterprise, or were contemplated by it. Plainly, the act of lighting the ring burner was such an act. Whichever of the respondent and Mr Lan did that act, the other was equally liable for it.

27. [40]

    It would be erroneous, however, to go on to say that, because the Crown could not establish that Mr Lan’s death was within the scope of the criminal enterprise of drug manufacturing, or within the contemplation of the participants in that enterprise, the respondent was not liable for conviction for that death. That is because the relevance of the principles stops at the point at which the respondent can be held liable for ignition of the ring burner, whether the specific act of ignition was committed by herself or by Mr Lan. It is the ignition of the burner (not Mr Lan’s death) that has to be shown to be within the scope of the criminal enterprise. There could be no dispute that it was. If it is shown that either the respondent or Mr Lan did the act that ignited the burner, and if it can further be shown that it was the ignition of the burner that caused the fire that, in turn, caused Mr Lan’s death, then the respondent can be convicted of murder.

28. [41]

    It would be necessary to direct the jury that, to convict the respondent of murder, they would have to be satisfied:

29. [42]

    If all of those matters were proved, the act causing death was done either in an attempt to commit, or during the commission, by the respondent or her accomplice (Mr Lan), of a crime punishable by imprisonment for life.

30. [43]

    The trial judge reviewed the principles relevant to constructive murder and criminal complicity. Specifically, he noted the elements of constructive murder (felony murder) stated by Carruthers J in Sharah, and also the questions raised about the third of those elements by R A Hulme J in Batcheldor. As to those, he said:

31. [44]

    The trial judge went on to say:

The grounds of appeal

1. [45]

   The grounds of appeal were pleaded as follows:

2. [46]

   As mentioned above, by s 107(2) of the Appeal and Review Act, an appeal against an acquittal by direction lies only on a ground that involves a question of law alone.

3. [47]

   On behalf of the respondent it was contended that the grounds pleaded do not raise question[s] of law alone. If that is the case, the appeal is incompetent and this Court lacks jurisdiction to deal with it. It is for this reason that I have set out above the precise terms of the grounds pleaded.

4. [48]

   Senior counsel for the respondent raised a number of points in support of her contention. First, she referred to the decision of this Court in R v JS [2007] NSWCCA 272; 175 A Crim R 108, in which Spigelman CJ pointed out that the formulation “a question of law alone” is more restrictive than the formulation (found in some other statutes) “question of law”, and also held that a notice of appeal should identify with some precision the “question of law alone” said to be involved in the appeal. She submitted that the notice of appeal in this case also fails to comply with the requirement of specificity.

5. [49]

   In my opinion, neither criticism can be sustained. There are two grounds of appeal, each quite specific, identifying asserted errors of law in the approach taken by the trial judge, and, in each case, asserting failure to apply the correct test to the question whether there was a prima facie case of the relevant offence (murder or manslaughter), and specifying the respects in which the approach taken by the trial judge was erroneous.

6. [50]

   Identification of the correct test to be applied to the determination of an issue such as the existence (or otherwise) of a prima facie case in a criminal proceeding, like the construction of a statute (as in JS) involves a question of law alone. The first proposition advanced on behalf of the respondent must be rejected.

7. [51]

   Next, senior counsel argued that no error in a question of law has been identified. In written submissions, she called in aid the asserted lack of specificity (which I have already rejected) and argued that:

8. [52]

   Whether error of law has been established is, of course, a different question. A notice of appeal may plainly identify a statement of law upon which the trial judge acted, without succeeding in establishing that that statement was erroneous.

9. [53]

   The next proposition was that:

10. [54]

    This, presumably, was a reference to the three particulars of the error asserted in Ground 1, and two particulars of the error asserted in Ground 2. It appears that the complaint would not have been made had the five separate asserted errors been pleaded as five separate grounds. If that is the proposition, I would reject it as no more than a pleading point. The question is whether either (or both) of the two grounds identifies a question (or questions) of law alone. Paragraphs (a)-(c) of Ground 1, and paragraphs (a) and (b) of Ground 2 specify the basis upon which error of law is asserted – they are, no doubt, included in order to meet the requirement of specificity or particularity.

11. [55]

    Senior counsel quite properly drew a distinction between articulation and application of the correct test; the former, she accepted, involves a question of law alone; the latter, she contended, a question of mixed fact and law, and therefore outside the appeal permitted by s 107(2).

12. [56]

    So much may be accepted: see R v PL [2012] NSWCCA 31 (conveniently referred to as “PL (No 2)”) at [37].

13. [57]

    Examination of the grounds reveals that the complaint made, in each case, concerns the legal principle to be applied. In the case of paragraph (a) of Ground 1, the complaint raises a clear question of law: is criminal liability for constructive murder derivative or direct? (I hold below that it is direct, and that, therefore, the error asserted has been established, but that is immaterial to the jurisdictional question.) In the case of paragraph (b) of Ground 1, the complaint, properly understood, is that the finding that the respondent could not be guilty of constructive murder was a direct result of the incorrect statement of legal principle identified in paragraph (a) of Ground 1. Paragraph (b) of Ground 1 asserts a legally incorrect reasoning process, in part as a result of the error asserted in paragraph (a). Paragraph (c) of Ground 1, properly understood, complains that an irrelevant consideration was taken into account, the irrelevant consideration being that it could not be said that Mr Lan did all those things necessary to constitute the crime of murder. Taking into account any irrelevant considerations is an error or law. Each paragraph of Ground 1 specifies an asserted error of law in the trial judge’s reasoning process.

14. [58]

    A similar analysis may be applied to Ground 2. Paragraph (a) of Ground 2 is a “no evidence” ground, clearly a question of law alone. Moreover, the fact of which his Honour found there was no evidence was that the respondent and Mr Lan were acting together in lighting the burner. That, too, is an irrelevant consideration, and therefore discloses – if made out – error in law in the approach to the issue. A relevant question would be whether there was evidence that the respondent and Mr Lan were acting together in the drug manufacturing enterprise, and whether the ignition of the burner was an act within the scope of that enterprise. Paragraph (b) of Ground 2 may be treated in the same way as paragraph (c) of Ground 1. It was not to the point – and therefore an irrelevant consideration – that the evidence was not capable of excluding the possibility that Mr Lan did the act that caused his death.

15. [59]

    In my opinion, each of the two grounds identifies a question of law alone, explicated by the specification of where the asserted error lies, or how it is exposed. This Court has jurisdiction to determine the appeal.

16. [60]

    Paragraph [42] of the judgment reveals error in the reasoning process. In that paragraph the trial judge misapprehended the third element stated by Carruthers J in Sharah. What was there said to be a necessary element was foresight of the discharge of a gun by the co-offender during the course of the armed robbery. (That was the act that caused death.) Translating that to the facts of the present case, what the third element of Sharah required was foresight of the ignition of the burner. As I have endeavoured to point out above, the relevant question was not whether the respondent contemplated injury to, or death of, Mr Lan; the relevant question on the issue of joint criminal enterprise was whether the respondent contemplated the possibility that the ring burner would be ignited – that is, was it within the scope of the joint criminal enterprise? If it was, and if the ring burner was ignited by the respondent or Mr Lan, it was an act committed by one or other of the participants within the scope of that enterprise, and was to be treated as the act of both participants; and it was the act that caused death.

17. [61]

    Paragraphs [80], [83] and [85] of the judgment are indicative of the same error as I have just identified in [42]. In [80] the trial judge applied the test for joint criminal liability taken from McAuliffe, not to the crime (drug manufacture) in which the respondent was alleged to have been a joint participant, but to the crime of murder. The Crown never alleged that the respondent was a party to a joint criminal enterprise that contemplated death or injury. The principles of joint criminal enterprise were applicable to the foundational crime of drug manufacture. To repeat, if the ignition of the burner was within the scope of that enterprise, then the respondent and Mr Lan were both liable for it.

18. [62]

    In observing (at [83]) that Mr Lan could not be guilty of his own murder, the trial judge was drawing on what he regarded as a “somewhat analogous case”, R v Demirian [1989] VR 97; 33 A Crim R 441. In that case the victim of an alleged offence had been party to a conspiracy with the person accused of his murder to cause an explosion in a consulate in Melbourne. In the course of the execution of the plan, the bomb detonated prematurely, killing one of the conspirators (the victim). The surviving conspirator was charged with murder. Although an appeal was upheld on other grounds, two judges of the Court of Appeal held that, because the victim could not be convicted of his own murder, the accused person could not be guilty as an accessory or principal in the second degree.

19. [63]

    As I have attempted to indicate, to focus upon whether injury or death was within the scope of the enterprise, or contemplated by the participants, is to deflect attention from the correct question. The correct question is whether the ignition of the ring burner was within that scope or contemplation; if it was, both participants were responsible for it, and liable for its consequences.

20. [64]

    Moreover, it was incorrect to characterise the Crown’s case against the respondent on murder as “derivative”. The Crown case was that, by reason of her participation in a crime punishable by imprisonment for life, she was directly liable in murder (for a death caused by an act done in an attempt to commit or during the commission of that offence).

21. [65]

    It was, in my opinion, incorrect for the trial judge to direct a verdict of acquittal on the count of murder.

22. [66]

    The Crown case on manslaughter by unlawful and dangerous act also depended upon the principles of joint criminal enterprise. As set out above, it is necessary that the Crown show that the act causing death was both unlawful (criminal) and dangerous.

23. [67]

    As stated above, the act causing death was identified, for the purposes of the Crown case, as the ignition (or lighting) of the ring burner in the bathroom. Igniting a ring burner is not, on its face, a criminal act. However, the Crown argued that the ignition of a ring burner in the course of, or for the preparation of, the manufacture of a prohibited drug, is a criminal act. No argument was advanced to contradict that proposition. It is in accord with the conclusion of this Court in R v CLD [2015] NSWCCA 114. The act of ignition in those circumstances was an unlawful act.

24. [68]

    There was, in the evidence in this case, ample basis for a conclusion that the ignition of a ring burner in a domestic bathroom in the course of illegal drug manufacturing was a dangerous act. The expert evidence concerning the process of manufacture, outlined above, is ample to establish that.

25. [69]

    The reasons given by the trial judge for directing a verdict of not guilty on the manslaughter count appear to be similar to those given for the directed verdict on the murder count, and are sufficiently contained in two paragraphs of the judgment, as follows:

26. [70]

    There is error disclosed in this reasoning. For the purposes of the joint criminal enterprise relied upon by the Crown, it was not necessary for the Crown to show that the respondent and Mr Lan “acted together in lighting the burner”. All that was necessary to show was, as I have indicated above in relation to the murder count, that lighting the burner (by one or other of them) was an incident within the contemplation of the respondent in her participation in the commission of the drug manufacturing offence. It may well have been the act of Mr Lan that caused the ignition of the burner, and, if so, that was an act that caused his own death. But the liability of the respondent alleged by the Crown was not derivative; it was, in effect, co-extensive with that of Mr Lan for all acts he undertook in the course of the drug manufacturing enterprise (just as the liability of Mr Lan for all acts undertaken by the respondent was co-extensive with hers).

27. [71]

    In my opinion it was erroneous to direct the jury to acquit on the manslaughter charge.

28. [72]

    The orders available to this Court on an appeal under s 107(2) are set out in sub-ss (5) and (6) of the Appeal and Review Act. This Court may affirm or quash the acquittal (sub-s (5)); if it quashes the acquittal, it may order a new trial in such manner as it thinks fit (sub-s (6)). The logical consequence of the conclusions that, in respect of the murder and manslaughter counts, a wrong test was applied, resulting in acquittals that were erroneous in law, is an order in each case quashing the acquittal. It will then be necessary to consider whether, pursuant to sub-s (6), to order a new trial.

29. [73]

    That is a discretionary decision. Senior counsel for the respondent raised an interesting, and novel, argument against an order for a new trial on the count of murder. (The argument does not apply to the count of manslaughter.)

30. [74]

    The argument depended upon the terms of s 18(2)(a) of the Crimes Act, set out above. To repeat, s 18(2)(a) provides:

31. [75]

    The exception for acts or omissions for which the accused had lawful cause or excuse can be put to one side. It has no present application. The central proposition advanced on behalf of the respondent was that, on no view of the meaning of “malicious”, could it be said that the act that caused Mr Lan’s death was malicious. Although it was never clearly articulated, it seems that the consequential proposition advanced was that, since the Crown could not establish that the act that caused Mr Lan’s death was done maliciously, it would be futile for this Court to order a new trial on the count of murder since any such trial would necessarily result in the respondent’s acquittal. If the central proposition is correct, futility of ordering a new trial would be a powerful discretionary reason for declining to do so, and for affirming the acquittal. Alternatively, the argument may have been directed to the proposition that the acquittal on the murder count was justified for a reason other than that given by the trial judge, and therefore should be affirmed. The argument in support of the consequential proposition was raised for the first time in response to the Director’s appeal.

32. [76]

    The essential proposition advanced on behalf of the respondent, as I understand it, may be reformulated in the following way:

33. [77]

    The argument hinges on the meaning of “maliciously” as it appears in s 18(2)(a). One complicating circumstance immediately emerges. In 1901, when s 18 was enacted (not precisely in its present form, but not different in a way that is material to the present argument), the Crimes Act contained, in s 5, an extended definition of “maliciously”. It could not be said that the definition cast a great deal of light on the question of the meaning of the word, or the concept. Section 5 was in the following terms:

34. [78]

    The drafting of s 5 has been the subject of adverse comment. In Mraz v The Queen [1955] HCA 59; 93 CLR 493 Fullagar J described it (so far as relevant to that case) as:

35. [79]

    Thirty five years later, in R v Coleman (1990) 19 NSWLR 467, Hunt J (as he then was) said:

36. [80]

    Section 5, when in force, was of general application. It has been observed that, so far as it related to murder within s 18, s 5 had no operation to any of the categories mentioned above other than the fourth, that is constructive (felony) murder: Royall v The Queen [1991] HCA 27; 172 CLR 378 at 454 per McHugh J; Coleman at 474 per Hunt J.

37. [81]

    That was because the other categories of murder specified in s 18 were provable by evidence that the accused person had the relevant state of mind – reckless indifference to human life, intent to kill, or intent to inflict grievous bodily harm. The necessity to prove the relevant state of mind left no room for proof of a further, alternative or different, state of mind called “malice”.

38. [82]

    By the Crimes Amendment Act 2007 (NSW), s 5 was omitted from the Crimes Act with effect from 27 September 2008: see Sch 1, cl 2. By the same amending Act, cl 65 was inserted into Sch 11 of the Crimes Act. Schedule 11 deals with “Savings and Transitional Provisions”. Clause 65 provides:

39. [83]

    The repeal of s 5 took place in the context of a general modernisation of provisions of the Crimes Act that had included “malice” as a fault element. From many such provisions (but not including s 18), the words “maliciously” and “malice” were omitted, and either “recklessly” or “intentionally” (or their noun counterparts) substituted. In his second reading speech in support of the proposed repeal, the Attorney General explained the revision as follows:

40. [84]

    The consequences of the repeal of s 5, without the deletion of the concept of “malicious” from s 18(2)(a), has been regarded as something of a mystery. In Chen v R [2013] NSWCCA 116, at [62] Button J labelled “remarkable” the fact that the concept of malice remained in s 18, after the deletion of the statutory definition. Button J said:

41. [85]

    In my opinion, cl 65 is of significance, as I will explain shortly.

42. [86]

    It was not initially clear whether the respondent’s position was that the repeal of s 5 wrought a change in the proper construction to be attributed to s 18(2)(a), or that “malicious” in that context retained its original meaning even after the repeal. That question was eventually clarified during the course of oral argument, when senior counsel said:

43. [87]

    I am unable to accept that proposition. Some meaning must be given to cl 65 of Sch 11, opaque as it might appear to be.

44. [88]

    In my opinion, the answer is to be found in the Attorney General’s second reading speech. The repeal of s 5 took place in the context of the general (but not complete) excision of “malice” and “maliciously” from the Crimes Act, and their replacement with less “archaic” language. For some reason, “malice” in s 18(2)(a) escaped that scalpel – hence, what I read as the preservation (in cl 65) of s 5 for the specific purpose of s 18(2)(a) (and any other provisions that contained references to “malice” that also escaped the legislative scalpel). If that is correct, “malicious” in s 18(2)(a) is to be read and interpreted as though s 5 had not been repealed.

45. [89]

    It is then necessary to attempt to understand what “malicious” means in s 18(2)(a), in such light as the definition provided by s 5 casts.

46. [90]

    As mentioned, Hunt J in Coleman pointed out the various ways in which s 5 might be read. Unwise as it might seem to attempt an analysis or deconstruction of s 5, I see no way to avoid that potentially unrewarding exercise.

47. [91]

    In my opinion, the purpose of s 5 was to adopt and then extend the ordinary understanding of “malice”. Adoption of the ordinary meaning follows from the use of the word “malice” itself in the opening phrase. The fact that “malice” is twice used in the definition of “maliciously” indicates that it was used, and intended to be understood, in its conventional legal sense. I will return to consider what that conventional sense is. Omitting the subordinate clauses, the section would have read:

48. [92]

    It seems to me that the effect of s 5 is to declare that acts done with a variety of states of mind (other than those that come within the ordinary understanding of “malice”) are to be taken to have been done maliciously. Broken up into its component parts, the section begins by stating (tautologically) that:

49. [93]

    In Coleman, Hunt J explained “recklessness” (at 475) in the following way:

50. [94]

    These conclusions bring the debate back to the identification of the act relied upon by the Crown as the act causing death. That, it will be remembered (see [11]), was the act of igniting the ring burner. (That, in the circumstances of this case, where that act was an integral, but possibly relatively minor, part of the whole enterprise, might be an oversimplified approach. A more nuanced approach would suggest that Mr Lan’s death was not caused by a single act, but was a result of a series of acts, culminating in the ignition of the burner, the series of acts including all of the acts involved in the preparation for the manufacture, and the manufacture, of the drugs. However, for present purposes, it is necessary to adhere to the manner in which the Crown presented its case in the Supreme Court.)

51. [95]

    Once the issues are so stated, in my opinion the outcome is clear. At the very least, it would be open to a jury to conclude that the ignition of the ring burner, in the circumstances in which it took place, was done recklessly. (An act done recklessly is expressly within s 5.) It does not appear that s 5 requires the Crown to prove that an act done recklessly (or wantonly) was also done without lawful cause or excuse, as is necessary with respect to the first and second categories of non-malicious acts that are taken to have been done maliciously; but, even if the absence of lawful cause or excuse is a requirement, it is not an issue in the present case, because there can be no suggestion that, in the circumstances, the act was done otherwise than without lawful cause or excuse. In case it is necessary to explain why it would be open to a jury to conclude that that act was done recklessly, reference may be made to some of the circumstances. A plainly dangerous chemical operation was being undertaken, in a confined space, in wholly unsuitable premises, with primitive equipment. That emerges clearly from the expert evidence in the trial.

52. [96]

    Ironically, perhaps, my conclusion concerning the interpretation of “malicious” in s 18(2)(a) does not depart in any material way from that proposed on behalf of the respondent. In written submissions the following was put:

53. [97]

    It would clearly be open to a jury to conclude that the ignition of the burner was done recklessly (even without the explanation given by s 4A, inserted in 2008).

54. [98]

    If I am wrong in concluding that cl 65 of Sch 11 preserves, for the purposes of s 18(2)(a), the application of s 5, then a question remains as to the meaning of “malicious” in that subsection, absent the enlightening glow of s 5. “Malicious” then must be given its conventional, legal, meaning. In R v Cunningham [1957] 2 QB 396, it was held:

55. [99]

    In R v Rushworth (1992) 95 Cr App R 252, it was held that a direction to a jury that a defendant was acting maliciously if he was acting deliberately and was aware that some physical harm might, not would, result was correct.

56. [100]

    R v Safwan (1986) 8 NSWLR 97 concerned the adequacy of directions given to a jury in respect of the meaning of “maliciously” as the word appeared in s 33 of the Crimes Act as it then stood. Section 33 created various offences of wounding, infliction of grievous bodily harm, shooting or attempting to discharge loaded weapons at any person, in each case done maliciously, and with one of a number of specified intentions. The trial judge directed the jury in terms of s 5. He interpolated an explanation of “malice” by saying “that is, with evil intent …”. This Court (Street CJ, Lee and McInerney JJ) approved the explanation, but considered that the direction could have been simplified by deletion of parts of s 5 not applicable to that case. The direction their Honours preferred was:

57. [101]

    It is apparent that their Honours were construing “malice” as it appeared in s 5, but without the expansionary content of s 5 – in other words, the explanation given to “malice” was an explanation of that word in its conventional, legal, sense.

58. [102]

    While the words “of evil intent” might now seem dated – even “archaic” – what can be accepted is that the word “malice” and its counterparts are to be given a broad meaning. They are well able to encompass a dangerous act undertaken in the course of an illegal drug manufacturing enterprise in inadequate premises.

59. [103]

    Accordingly, whether “malicious” in s 18(2)(a) is to be interpreted in the light of s 5, or absent that light, the respondent’s submission must fail.

60. [104]

    In these circumstances, I have concluded that the respondent has established no discretionary basis for taking either of the courses proposed, either of which would result in the affirmation of the acquittal on the murder charge.

61. [105]

    The Director also sought an order for a new trial. Although it may not strictly be necessary to do so (since once the acquittals are quashed, the charges have not been disposed of), s 107(6) of the Appeal and Review Act makes specific provision for such a course, and, accordingly, I propose that the Court make such an order.

62. [106]

    The orders I propose are:

    1. (1)

       The verdict of the Supreme Court of 2 December 2014, pursuant to which the respondent was acquitted of the murder of Zhi Min Lan is quashed.

    2. (2)

       The verdict of the Supreme Court of 2 December 2014, pursuant to which the respondent was acquitted of the manslaughter of Zhi Min Lan is quashed.

    3. (3)

       There be a new trial on the charges of murder and manslaughter.

63. [107]

    R A HULME J: I agree with Simpson JA. I would only add that I have no doubt about the correctness of her Honour’s primary view that cl 65 of Sch 11 preserves, for the purposes of s 18(2)(a), the application of the repealed s 5. If it were otherwise I am unable to discern to what end that particular provision was inserted into the “Savings and Transitional Provisions” Schedule of the Crimes Act.

64. [108]

    BELLEW J: I agree with Simpson JA. I also agree with the additional observations of R A Hulme J.