R v IL (No 2)

1. [1]

   IL (the accused) is charged with a number of offences. By count 1, the indictment alleges that she manufactured a large commercial quantity of a prohibited drug (6.7 kg of methylamphetamine). Count 2(a) is an allegation that she murdered Zhi Min Lan and count 2(b) is an alternative count alleging the manslaughter of Mr Lan. Counts 3 to 6 are four allegations that she was in possession of prohibited weapons or pistols.

2. [2]

   The accused was charged after police and fire fighters attended residential premises at Quarry Road, Ryde (“the premises”) in response to a house fire. The accused was present at the premises along with the victim of the alleged homicide. The accused was suffering from symptoms consistent with minor smoke inhalation. Mr Lan had suffered severe burns, was taken to hospital and died some days later. Police and fire fighters discovered that the fire was contained largely, if not completely, within the bathroom of the premises. Next to the toilet there was a gas cylinder which was connected by a pipe or hose to a ring burner. Elsewhere within the premises the police discovered a large number of items consistent with the manufacture of methylamphetamine on a relatively large scale. For reasons that are unexplained, there was no analysis done of the items within the bathroom.

3. [3]

   At the conclusion of the Crown case, counsel for the accused made an application that the jury be directed to return verdicts of not guilty in respect of the charges of murder and manslaughter.

4. [4]

   The prosecution brings its case of murder on the basis of constructive murder pursuant to s 18 of the Crimes Act 1900 (NSW). To do so, it must also rely on the principle of common purpose or joint criminal enterprise. The learned Crown Prosecutor concedes, fairly and properly, that he cannot establish that the act causing death was the act of the accused and cannot establish, whoever did it, that the act was done with an intention to kill, inflict grievous bodily harm or with reckless indifference to human life.

5. [5]

   In essence, and at risk of oversimplifying its case, the prosecution says that the accused and the deceased were jointly involved in the manufacture of a large commercial quantity of drugs (an offence carrying a maximum penalty of 25 years or life), that each was responsible for the other's acts in carrying out that common criminal design and that the fire that killed the deceased occurred in the course of that criminal enterprise. By virtue of principles of common purpose, it need not prove that the accused did the act causing death because she is responsible also for the acts of (in this case) the deceased. By calling into aid the murder felony rule (constructive murder), it need not prove the specific intention ordinarily associated with the crime of murder. Accordingly, the accused is said to be guilty of murder.

6. [6]

   The case may be unique in Australian legal history. Neither counsel has pointed me to any case where the prosecution has attempted to establish murder in similar circumstances. Even in the case most closely related on its facts, the foundational offence involved an act of violence (conspiracy to cause an explosion at the Turkish Consulate in Melbourne): R v Demirian [1989] VR 97; 33 A Crim R 441.

7. [7]

   The prosecution has drawn my attention to one case, prosecuted in the NSW District Court, where a death from an explosion in a clandestine laboratory resulted in one participant being charged with the manslaughter of the other: R v Dagger (District Court (NSW), 21 November 2012, unrep) (Judge Haesler). I will return to discuss that case but for present purposes I note that (i) the Crown did not seek to rely on the murder felony rule, (ii) the accused was charged with an offence that did not involve specific intention and (iii) the judgment to which I have been referred related to an application to quash the indictment and did not involve the question of whether there was a prima facie case based on the evidence adduced at the trial.

Some relevant legal principles

1. [8]

   Before turning to the respective arguments of counsel it is appropriate to sketch at least some of the relevant legal landscape.

2. [9]

   In R v R (1989) 44 A Crim R 404; 18 NSWLR 74, the NSW Court of Criminal Appeal resolved the question of when a trial Judge has the power to direct a jury to return a verdict of not guilty. Gleeson CJ (with whom Maxwell and Wood JJ agreed) rejected a line of authorities that suggested the existence of such a power when a trial Judge formed the view that a verdict of guilty would be unsafe and unsatisfactory. The Court accepted that the narrower view was correct and held that that;

3. [10]

   The power to intervene if the verdict in unsafe or unsatisfactory (ie unreasonable and unable to be supported on the evidence) is reserved to the Court of Criminal Appeal.

4. [11]

   In a case based on circumstantial evidence, it has been held that the question of whether the Crown has negatived all other reasonable inferences consistent with innocence is a question for the jury, not the trial Judge on an application for a directed verdict (R v JMR (1991) 57 A Crim R 39).

5. [12]

   However, the Crown properly accepts that if there is no evidence capable of establishing an essential intermediate fact in the circumstantial case, a verdict of not guilty might properly be directed (T 400).

6. [13]

   In R v Staines [1999] NSWSC 1101, Greg James J directed an acquittal where his Honour formed the view that the evidence was not capable of negativing self-defence.

7. [14]

   As I have said, the prosecution relies upon to two different principles of criminal liability, each of which extends the liability of an accused person beyond the ordinary reach of the criminal law. The first of those principles is the principle of constructive murder under s 18, a concept well known to the law as “felony murder”. Section 18 provides:

8. [15]

   The principle is to the effect that if somebody is killed while an accused person commits a crime carrying a maximum penalty of 25 years or life imprisonment, the accused is liable to be convicted of murder even though it cannot be established that the accused acted with the specific intention ordinarily required to establish murder (that is, an intention to kill, an intention to inflict grievous bodily harm, or an act done with reckless indifference to human life). Constructive murder alleviates the necessity for the Crown to prove specific intention. It does not affect the requirement of proof that there be a voluntary act and that the act causes the death of the victim.

9. [16]

   The second principle of criminal liability upon which the prosecution relies is the concept of common purpose, or as it is sometimes and interchangeably described, joint criminal enterprise: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 113. As I have said, it is necessary for the Crown to rely on that principle because it is not able to prove that any act of the accused caused the death of the deceased.

10. [17]

    The principle was explained in McAuliffe v The Queen (at 114) as follows:

11. [18]

    In Clayton v The Queen [2006] HCA 58; 168 A Crim R 174; 81 ALJR 439 at [3] the High Court declined an invitation to revisit these principles. The Court reiterated the following principle at [17]:

The Crown opening

1. [19]

   The learned Crown Prosecutor opened the case on 18 November 2014 and explained the basis upon which the Crown sought to establish the murder charge (T 28-31):

2. [20]

   The Crown's opening statement that the murder count is an “unusual sort of charge” was a masterpiece of understatement. In fact, neither counsel has been able to provide me with any authority in which a co-offender was particularised as the “victim” of a murder charge arising out of the joint commission of an agreed criminal enterprise.

3. [21]

   Nor have I been taken to any previous murder case where the prosecution has sought to establish (i) the voluntary act causing death by reliance on the principles of common purpose and (ii) the intention required for liability in murder by calling in aid the murder felony rule (constructive murder).

Demirian, Ryan and US authorities

1. [22]

   A somewhat analogous case is the Victorian case of R v Demirian [1989] VR 97; 33 A Crim R 441. In that case the applicant to the Victorian Court of Appeal had been convicted of conspiracy to cause an explosion likely to endanger life (count one) and murder (count two). The deceased and the applicant had conspired together to cause an explosion in the Turkish Consulate in Melbourne. The deceased entered the car park of the building with the bomb with the intention of executing the plan. As he was doing so, and in circumstances that were not clear, the bomb detonated prematurely. The deceased was killed in the explosion. The murder felony rule had been abolished in Victoria and replaced with s 3A(1) of the Crimes Act 1958 (VIC) which provided:

2. [23]

   The case at trial had been put in two ways, neither of which relied on s 3A(1). Rather, the case was put on the basis of common purpose and, alternatively, on the basis of what was described by the trial judge as “murder by recklessness”. It is unnecessary to dwell on the errors that the Court of Appeal found in the directions other than to note that McGarvie and O'Bryan JJ held (at 105-108) that, because the deceased could not be convicted of his own murder, the applicant could not be guilty as an accessory or principle in the second degree. The accused makes a similar submission in the present case.

3. [24]

   Their Honour's discussion of constructive murder came in the context of whether there should be an order for a re-trial. An important part of the Victorian court's analysis in R v Demirian arose from the discussion by Barwick CJ in Ryan v The Queen [1967] HCA 2; 121 CLR 205. In particular, their Honours (at 110) placed reliance on the following passage of the former Chief Justice (at 121 CLR 218):

4. [25]

   Their Honours went on (at 111) to refer to White v Ridley [1978] HCA 38; 140 CLR 342 at 352 where Stephen J again “emphasised the importance of identifying the act relied on to constitute the crime”.

5. [26]

   Before returning to R v Demirian, it is worth remembering the following observation of Barwick CJ Ryan v the Queen (at 219):

6. [27]

   I note that comment, not to adopt his Honour's implicit criticism of the Crown in that case. In the present case, it is quite clear that the Crown has no case for murder apart from the possibility of establishing the crime by means of constructive murder. That is because there is no evidence that the accused (or, for that matter, the deceased co-offender) acted with an intention to kill or inflict grievous bodily harm or with reckless indifference to human life. On the contrary, everything points to this being a misadventure, albeit a misadventure in the course of committing a crime carrying a maximum penalty of 25 years or life. However, I paused over that comment by Barwick CJ because it seems to me that this, too, is a case where there is a need identify and focus with real precision upon the act that the Crown seeks to establish as the act causing death. In this case, the act selected by the Crown is the act of lighting the ring burner.

7. [28]

   I also observe that in the case of Penza and Di Maria v R [2013] NSWCCA 21, Hoeben JA reiterated (at [159]-[161]) the importance of focussing on the precise act causing death and relied on the seminal reasoning of Barwick CJ in Ryan v The Queen. It is unnecessary to dwell on Penza and Di Maria because it was decided on the basis that the verdict was unreasonable and (at [167]) that the trial judge misdirected the jury by effectively taking away the issue of whether the act causing death was a voluntary act. That case involved a shooting murder and there was a dispute as to whether the accused jointly agreed to commit an armed robbery or whether the victim produced a gun which discharged accidently. However, the reasoning in the case provides a cogent example of the need to focus with precision on the act causing death.

8. [29]

   Returning to R v Demirian, I note that it was decided before the decision in McAuliffe v The Queen and Clayton v The Queen. However, it was decided after Johns v The Queen [1980] HCA 3; 143 CLR 108 and the Court made reference to that authority (for example at 116). The case was decided by reference to principles of accessorial liability and agency. The Court quashed the conviction for reasons that are currently not relevant. However, in deciding whether to order a re-trial the Court embarked on an extensive analysis of the murder felony rule and analysed a number of cases from the United States. This occurred because (119):

9. [30]

   The analysis is thorough and helpful and I set it out in full:

10. [31]

    In more recent times, convictions have been obtained in California in not dissimilar circumstances (The People v James (1998) 62 Cal App 4th 244, White v Chrones (D Cal, EDCV 06-329, 21 September 2009), The People v Schaefer (2004) 118 Cal App 4th 893). These cases were not subject to argument and must be treated with the same reserve of which McGarvie and O'Bryan JJ spoke in 1989. They are cases decided under different criminal statutes and in the context of a substantially different legal system. References in the cases (for example, White v Chrones) to “strict liability” and “inherent dangerousness” are difficult to reconcile with the common law and statute law of New South Wales. The offences were described as “second-degree felony murder” which is not an offence known to the law of New South Wales (although the elements appear to fit within s 18).

Constructive murder under s 18 does not require an offence of violence

1. [32]

   A peculiarity in the version of the murder felony rule as created in s 18 of the Crimes Act is that the foundational offence is not required to be an offence of violence. This distinguishes it from the Victorian provision [s 3A(1)] considered in R v Demirian and the current formulation of that section which was amended in 1991. It is also a departure from the common law which required the felony to be an offence involving violence or at least to be “dangerous to life and likely in itself to cause death”. See also s 302(1)(b) Criminal Code (Qld) 1899 and the analysis of the development of the law in Ryan v The Queen at 240-241 (Windeyer J).

2. [33]

   The second reading speech introducing the amendment that led to the omission of the words “of an act obviously dangerous to life” shows that the purpose of the amendment was to foster certainty. The then Minister of Justice said that “three different lines of interpretation have been applied by the courts to this concept, and the committee is unanimously of the opinion that, according to which of these lines is adopted, the concept either unnecessarily increases the Crowns difficulties of proof, or is mere surplusage, or operates with unreasonable harshness against the accused” (New South Wales Legislative Assembly Parliamentary Debates (Hansard), 13 March 1974 at 1355-6).

3. [34]

   The New South Wales Law Reform Commission's Report on Complicity [129] (2010) recommended at [5.83] an amendment to s 18 to provide that the foundational offence was one that, viewed objectively, was likely to endanger human life.

4. [35]

   The matter was also subject to a detailed discussion in the article “Some Aspects of Constructive Murder in NSW”, Button and Babb, (2007) 31 Crim LJ 234. The article details some of the surprising outcomes that could arise in various hypothetical circumstances. As far as I can see, the article did not address the situation where the co-offender was killed as a result of his or her own act. The learned authors said that the law was in “urgent need of reform” but considered “that in the current political climate, that is most unlikely.”

5. [36]

   The call for reform has been ignored. I approach the case on the basis of the law as it stands. To put it in the blunt but effective language of the learned Crown Prosecutor's written submissions:

Possible conflict in the authorities as to proofs required for constructive murder

1. [37]

   In R v Sharah (1992) 30 NSWLR 292 Carruthers J (with whom Gleeson CJ and Smart agreed) set out (at 297F) the elements required to be proved in a murder felony case where the foundational offence was armed robbery with wounding (s 98 Crimes Act):

2. [38]

   It will be seen, from the emboldened portion of the above passage, that the Court held that a requirement for constructive murder was that the accused adverted to the possibility that the accomplice would shoot the victim. This accorded with the approach taken in R v Johns [1978] 1 NSWLR 282 at 287, 290 (Street CJ) and 294-295 (Begg J). The Court of Criminal Appeal applied the approach of Carruthers J in R v Spathis [2001] NSWCCA 476 [315] (Carruthers J, Hedyon and Smart AJ agreeing) and R v Jacobs [2004] NSWCCA 462; 151 A Crim R 452 at [223]. The Criminal Trials Bench Book published by the NSW Judicial Commission also adopts that approach at [5-1120]. However, the former Chief Justice’s Foreward should be borne in mind:

3. [39]

   The “[importing] of a limited mental or fault element for constructive murder” was questioned in the NSW Law Reform Commission Report 129 published in December 2010 [5.34]. It has also been the focus of a recent decision of the Court of Criminal Appeal in Batcheldor v R [2014] NSWCCA 252. Hidden J (with whom Bathurst CJ agreed) discussed the authorities and at [79] questioned whether third element set out by Carruthers J in Sharah was required:

4. [40]

   In his additional comments (with which the Chief Justice also agreed) RA Hulme J explained that it appeared that the element of advertence had been imported into constructive murder from the requirements of proof in the common purposes cases. His Honour made the following comments:

5. [41]

   While their Honour's questioned the necessity for the element of advertence, the Court did not specifically overrule the decision in Sharah. Hidden J at [76] said (in a slightly different context) that “the decisions in Johns and Sharah have settled the law in this State”. In any event, unless the decision in Sharah is clearly overruled, trial Judges are bound to apply it.

6. [42]

   Taking the prosecution case at its highest, there is no evidence capable of supporting an inference that the accused in this case contemplated the possibility that somebody might be injured, let alone that they might die, in the course of the manufacturing process. However, these considerations and this possible conflict in the case law are not determinative of the application in the present case.

The foundational offence in the present case

1. [43]

   The foundational offence for the purpose of application of constructive murder in the present case is an offence of manufacturing a large commercial quantity of methylamphetamine. The offence created by s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) is the offence of manufacturing a commercial quantity. By s 33(2) this offence carries a maximum penalty of 20 years. However, by s 33(3) where the court is satisfied that the amount of the drug is not less than the large commercial quantity, the maximum penalty is imprisonment for life.

2. [44]

   In spite of the statutory framework, the accused concedes that the foundational offence relied upon by the Crown is “a crime punishable by imprisonment for life or for 25 years”.

3. [45]

   The Crown accepts that it must establish that the accused was aware of the possibility that the manufacture was in an amount exceeding the large commercial quantity. By Schedule 1, a large commercial quantity of methylamphetamine is 1.0kg.

Accessorial and derivative liability

1. [46]

   In Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 the respondent (Victorian Director of Public Prosecutions) invited the High Court to “sweep away all of the out-dated distinctions between principals and accessories in favour of a single coherent principle underlying the law of complicity”. The High Court declined the invitation at [27] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and [42-]-[43] (Heydon J). Heydon J alluded to the “radicalism of that submission”. The whole Court was of the opinion that it was unnecessary and inappropriate to deal with the issue because the appellant's argument failed on other grounds.

2. [47]

   The appellant had argued [24] that he could not be guilty of murder based on an “accessorial case” because the Crown had accepted pleas of guilty to less serious offences in relation to the principal offenders. The Court rejected that submission. What the Crown had to prove was not that the principals had been convicted of murder, but that the evidence supported the fact that they were guilty of murder (at [24]). The joint judgment at [22]-[23] explained “the common law distinctions between categories of participation namely principals, accessories before the fact, accessories at the fact [ie principals in the second degree] and accessories after the fact”.

3. [48]

   A person present at the scene of a crime assisting or encouraging its commission is described as a principal in the second degree or (in earlier times and sometimes still) as an accessory at the fact. The criminal liability of such an offender is derivative and she cannot be guilty of the crime unless the principal is guilty of that crime. As the High Court explained in Likiardopoulos, this does not turn on the conviction of the principal but on the evidence establishing the guilt of the principal offenders.

4. [49]

   The principle that the liability of a principal in the second degree is derivative is fundamental and was explained in R v Phan [2001] NSWCCA 29; 53 NSWLR 480 by Wood CJ at CL at [68]:

Mutual drug use and supply cases

1. [50]

   Another series of analogous cases are those involving allegations of manslaughter arising from either the supply of drugs or mutual drug use. There is a series of cases in England, and a Scottish case which takes a different approach. These cases were collected and considered by the High Court in the case of Burns v The Queen [2012] HCA 35; 246 CLR 334.

2. [51]

   In Burns v The Queen, the accused was convicted of manslaughter in circumstances where she had supplied methadone to the deceased who died after injecting the drug. The Crown case was put in the alternative - manslaughter by unlawful and dangerous act or criminal negligence. The NSW Court of Criminal Appeal dismissed an appeal against the conviction. The High Court quashed the conviction and entered a verdict of acquittal.

3. [52]

   French CJ said:

4. [53]

   Gummow, Hayne, Kiefel and Bell JJ spoke about the issue of causation:

The evidence

1. [54]

   The evidence is relatively confined and, in general terms, consists of:

2. [55]

   Twenty six witnesses gave evidence in the Crown case and there are twenty five prosecution exhibits. I have considered all of the evidence and examined the inferences that arise from the material.

3. [56]

   It is unnecessary for present purposes to detail the evidence relating to the firearms charges (counts 3, 4, 5 and 6). Four items were found at the premises, either within the house or in one of the cars outside, that fall within the definition of pistol (three) or prohibited weapon (one, a 20 round magazine). There are certificates that show that neither IL nor Mr Lan were authorised to own the firearms. The guns that bore serial numbers were not registered. As the owner of the premises or car in which the firearms were located, there is an onus on IL to prove that she did not know (or could not reasonably have known) that the firearms were there or that she was not in possession of the firearms (s 4A Firearms Act 1996 (NSW)).

4. [57]

   As I understand it, the residual relevance of the firearms is that they indicate the existence of a criminal enterprise consistent with that alleged by the Crown. A similar inference can be drawn from the finding of a large sum of cash ($346,812.55). Most of that cash was found at the premises but the total also included a significant sum ($16,900) found at IL's residence.

5. [58]

   A forensic chemist, Dr Coghlan, gave uncontested evidence that in his opinion the premises were being used for the final stage of the manufacture of methylamphetamine. In short, the process involved the purification of the base product (which was manufactured elsewhere). The purification was done by means of an evaporation process. The product was placed in a solvent (in this case, acetone) with a little water and heat was applied until the liquid reached boiling point. As the liquid evaporated, impurities were removed and the amount of pure methylamphetamine increased in the substance that remained. After the boiling process the mixture of solid and liquid was allowed to cool, seemingly to room temperature and then in a fridge in the kitchen. The solid was then drained from liquid or removed by using a sieve or similar item. It was then allowed to dry.

6. [59]

   The evidence that the premises were being used for drug manufacture is extremely strong. The issue does not seem to be in contest. In point form, the material located at the premises included:

7. [60]

   The evidence allows an inference to be drawn that IL was somehow involved in the manufacturing process. This evidence includes:

8. [61]

   The evidence showed that there was a gas bottle and gas burner in the bathroom along with a pot containing a liquid. For reasons which are unexplained, the pot and the liquid were not subject to analysis.

9. [62]

   Dr Coghlan gave evidence that he was “unable to say what process was occurring in the bathroom”.

10. [63]

    The Crown says that the evidence of the other things found in the house, and the unusual circumstance that there was a gas bottle and burner in the bathroom, allows the jury to draw an inference that something was happening in the bathroom that constituted part of the manufacturing process. He relies, amongst other things, on the evidence of Dr Coghlan that “we find gas burners all the time at labs”.

11. [64]

    While I accept the Crown's submission, the fact is that the failure to test the items in the bathroom is a remarkable and significant oversight on the part of the investigators. The Crown Prosecutor suggested (T 398) that “it seems that there was, to put it kindly, a misunderstanding between two different agencies as to who was to assume responsibility for this.”

12. [65]

    There is a similar lack of evidence in relation to the cause and origin of the fire. After the Crown Prosecutor referred to the misunderstanding between the agencies he went on (T 398) “your Honour will see I think on the firsthand that Spouszta, who was the Fire Officer, didn't do the excavation he must have assumed the police were, and I think vice versa.” An excavation is a forensic process whereby layers of the debris within a fire site are removed layer by layer “so that you can find the lowest level of burning and identify any other pieces of evidence that may indicate what the cause of the fire was” (T 228). This was not done in the present case.

13. [66]

    The first witness in the trial was Detective Sergeant Agius. He gave evidence of the inspection he carried out at the premises on 5 January 2013. A folder of photographs that he took became exhibit A. Based on his experience in investigating fires, he gave evidence of his opinions as to the possible processes and cause(s) of the fire. The centrepiece of his evidence was (T60-61):

14. [67]

    In terms of the process that caused the ignition of the fire, Mr Agius said “there were numerous scenarios that could not be excluded” (T67). He went on (T69-72):

15. [68]

    In cross-examination (T79) he was asked:

16. [69]

    He was also cross-examined about the possibility of a gas leak causing the fire (T79):

17. [70]

    A photograph of the control of the gas unit (Ex A, photograph 73) is ambiguous as to whether the unit was on or off. Using a clock face to describe the photograph, the “off position” is at 12 o'clock while the “on” position is at 9 o'clock. The switch is at around 11:45. It is clearly not in the “off” position but it is closer to that position than it is to the “on” position. Mr Agius was asked about this:

18. [71]

    The first fire fighters into the premises were Scott Tipping and Christopher Hughes. Mr Tipping gave evidence that he saw “a cooking pot with an unknown substance in it, well alight next to a gas cylinder” (T207). The pot can be seen in photographs 67-68 in Ex 1. Mr Hughes said he could see no fuel sources other than the gas cylinder (T224).

19. [72]

    Benjamin Spouszta is a fire investigator with Fire and Rescue New South Wales. He did not enter the bathroom to undertake an excavation of the site to determine the cause of the fire (T228). He gave evidence as to various departures from safety standards and (T231):

20. [73]

    None of the evidence is capable of establishing that the fire or explosion was a deliberate act on the part of either the deceased or the accused. The evidence of their respective injuries suggests that it was the deceased, rather than the accused, who committed the act or omission that led to the fire. As to that matter, it is the Crown case that the act causing death was the lighting of the ring burner (T 30, 394, 400).

21. [74]

    There is nothing in the evidence that would allow an inference to be drawn that the fire was deliberately set. It was, on any rational view of the evidence, a misadventure caused by incompetence or carelessness on the part of the deceased and/or the accused.

Directed verdict of not guilty: murder

1. [75]

   The starting point, as has been emphasised in cases such as Ryan v The Queen and Penza and Di Maria, is to identify with precision the act that the jury might find caused the death of Mr Lan. Ultimately, that is a jury question. However, it is not sufficient simply to put the case on the basis that “the whole conduct of the [accused] from the inception of [her] exploit as the act causing death” (Ryan at 220; Royall v The Queen [1991] HCA 27; 172 CLR 378 at 386 (Mason CJ)).

2. [76]

   In the present case, the Crown Prosecutor identifies the lighting of the ring burner as the act causing the death. Of course, there is a preliminary problem arising from the evidence of the Crown's own expert that he cannot say whether the burner was in fact alight. That, in itself, may be sufficient to compel a directed verdict. However, I will proceed on the basis of an acceptance of the Crown's submission that the jury might draw an inference that the burner was alight in spite of the evidence of Mr Agius.

3. [77]

   The Crown concedes that it cannot establish who (if anybody) lit the burner. In other words, the case will be put to the jury on the basis that it may have been the deceased himself who lit the burner. Once this is accepted, the question that arises is whether the act of the deceased can be attributed to the accused and on what legal basis.

4. [78]

   The Crown says that it is as simple as applying principles of common purpose or joint criminal enterprise. In other words, if the act of lighting burner was an act in furtherance of the common purpose, the accused is criminally responsible for that act. The defence says that, once it is accepted that the act causing death was the act of the deceased himself (or that this possibility cannot be excluded), the criminal liability of the accused for murder is derivative and, because the deceased cannot be guilty of his own murder, the accused cannot be guilty as a principal in the second degree.

5. [79]

   There is a flaw in the Crown's argument concerning the applicability of the principles of common purpose. In McAuliffe v The Queen the High Court explained the operation of the principle. The liability of one offender for the actions of the other was not put as an open-ended proposition whereby each is simply held to be responsible for every act committed by the other. Rather, it was explained (at 114):

6. [80]

   In this case, the crime of which IL is alleged to be guilty is the crime of murder. It cannot be said that the deceased did all those things necessary to constitute that crime in accordance with the agreement.

7. [81]

   The Crown eschews reliance on what was described in Clayton v The Queen (at [14] and [20]) as “extended common purpose” (which makes the parties to the agreement liable for “any other crime falling within the scope of the common purpose” (McAuliffe at 114). The Crown says that it is unnecessary to rely on that principle because the act of lighting the burner was an act done in furtherance of the agreement to manufacture drugs. In any event, for extended common purpose to apply, it is necessary to establish “foresight of the possibility” that the other party would act with the requisite intent to commit the crime (in this case murder or manslaughter) said to be within the scope of the common purpose. That is clearly not this case.

8. [82]

   I accept the submission of Mr Pontello that the criminal liability of the accused is derivative. Properly analysed, if the accused is liable for murder, she is liable as a principal in the second degree. That is, she was present at the scene and (allegedly) “aiding and abetting” the commission of the crime (of manufacture). The deceased could not be convicted of his own murder. The offence of suicide was long ago abolished and there is no evidence capable of establishing that he acted with the requisite specific intent. This approach accords with the approach taken by the Victorian Court of Appeal in R v Demirian.

9. [83]

   The situation may be different if an innocent third party had been killed. Central to my decision is the fact that the victim (deceased) is the person who committed the act leading to death. He cannot be guilty of his own murder and thus the derivative liability of the accused cannot be established.

10. [84]

    As Mr Pontello submitted (T 388-390, 402), the structure of s 18 may also be important. The first reference to “the accused” in s 18 is in reference to the act causing death. Thus, the act must be hers (or one for which she is responsible by operation of the law). When the accused is mentioned in the constructive murder part of the section, the reference is to an act done “by the accused, or some accomplice with him or her”. Mr Pontello submitted (T 402):

11. [85]

    I do not accept that the combination of principles of common purpose and constructive murder work together to make IL liable to conviction for murder in the circumstances of the present case. Whether the situation may be different where the deceased person was not the one who committed the act or where the death was of an innocent victim is not necessary to decide in the circumstances of this case.

12. [86]

    I have reached the conclusion that there is no evidence capable of establishing the charge of murder. Accordingly I propose to direct the jury to acquit.

13. [87]

    In those circumstances, it is unnecessary for me now to deal with the second part of the accused's submission, which concerns the question of causation. I will deal with that in considering the application for a directed verdict on the alternative charge of manslaughter.

Directed verdict: manslaughter

1. [88]

   The Crown's case for manslaughter is based on an allegation of manslaughter by unlawful and dangerous act. The elements of this form of the offence have been discussed in cases such as Wilson v The Queen [1992] HCA 31; 174 CLR 313 and The Queen v Lavender [2005] HCA 37; 222 CLR 67. The relevant act causing death must be both unlawful and also dangerous. Dangerousness is an objective concept. It must be established that, objectively, the act carried with it an appreciable risk of serious injury (see Wilson v The Queen at 333 (Mason CJ, Toohey, Gaudron and McHugh JJ)).

2. [89]

   The Crown relied on the judgment of Judge Haesler SC in R v Dagger. However, that was an application to quash an indictment or to permanently stay the proceedings. Different considerations arose. His Honour noted (at p 14) that there was only a limited amount of factual material before him and (at p 15) contemplated a number of possibilities that might arise once the evidence was adduced. These included, at one extreme, that the deceased was solely responsible for the manufacture and (thus) his own death and, at the other, that the deceased was simply a casual visitor to the premises. I also agree with Mr Pontello that the reference (at p 9) to R v Cramp [1999] NSWCCA 324; 110 A Crim R 198 as authority for the proposition that “ordinary principles of joint criminal enterprise can make one co-offender liable for the acts of another even if the co-offender suffers as a result of his own action” is inapposite, if not misconceived, in a case such as the present. The so called “co-offender” (deceased) in R v Cramp was a 16 year old who the appellant provided with alcohol and encouraged to drive at excessive speed. She was not the “fully-informed and responsible adult” of whom the House of Lords spoke in R v Kennedy (No 2) [2008] AC 269. In R v Cramp, the appellant was not liable for conviction of manslaughter on the basis of the child's act but because of his acts in allowing her to drive, in encouraging her to speed and in providing her with alcohol. I am unable to derive very much assistance from the judgment refusing to stay the indictment in R v Dagger.

3. [90]

   In the present case, the prosecution alleges that the accused and the deceased were together involved in an activity that was unlawful and objectively dangerous. It may be that to establish the charge of manslaughter, the Crown does not need to focus with such precision on the act that gives rise to derivative liability for constructive murder.

4. [91]

   However, even accepting that to be so, if the act causing death was the act of the deceased, a question arises as to causation. Earlier in this judgment, I outlined the circumstances in which the High Court entered a verdict of acquittal in the case of Burns v The Queen. In the present case, the accused submits that the act relied upon by the Crown was an act that was committed by the deceased himself. It is more correct to say that the learned Crown Prosecutor concedes that it cannot prove who committed that act.

5. [92]

   Again, I will put to one side the deficiencies in the investigation of the cause of the fire and the activity in the bathroom and the problems in proving that the burner was alight at the time of the fire (as to which see above at [68] and the cross-examination of Mr Agius at T 79).

6. [93]

   In Burns v The Queen, the joint judgment noted at [88]:

7. [94]

   Their Honours went on (at [90] and [92]) to explain that the evidence as to how the methadone was taken was unclear. It those circumstances it was not appropriate to order a re-trial to allow the Crown to conduct a case that was different to the case presented at trial. This was not because of the unfairness in allowing that course but because the evidence would not have permitted a finding that the appellant and the deceased had acted together in injecting the methadone.

8. [95]

   The joint judgment at [81] noted the reference by the House of Lords (in R v Kennedy (No 2) at 275) to the following observation of Professor Williams in his article “Finis for Novus Actus”, Cambridge Law Journal, Vol 48 (1989) 391 at 392.

9. [96]

   Their Honours concluded at [86]:

10. [97]

    While it is open to the jury in the present case to find that the act of the deceased was an act in furtherance of the common purpose alleged by the Crown, there is no evidence to suggest that the accused and the deceased acted together in lighting the burner. The case is not analogous to the situation (not resolved by the High Court) where two drug users inject one another with a dangerous drug.

11. [98]

    The evidence is not capable of excluding the possibility that it was the act of the deceased that caused his own death. There is no evidence that the deceased was not acting voluntarily. There is no evidence that he was other than a fully informed and responsible adult.

12. [99]

    I have therefore concluded that there is no evidence capable of establishing the guilt of the accused in relation to the alternative charge of manslaughter and the jury will be directed accordingly.

Post script

1. [100]

   Since delivering this judgment on 2 December 2014, I have formed the view that the causation issue that led me to direct a verdict of acquittal in relation to the manslaughter charge is equally applicable to the murder charge. This point had been made in a footnote in Mr Pontello's helpful written submissions and his submission was directed to both forms of homicide charged in the second count. The High Court's decision in Burns v The Queen arose in relation to a manslaughter charge but was not restricted to cases of manslaughter (see [86] where the joint reasons referred to “the analysis of causation of homicide in Royall v The Queen is posited on an acceptance that the voluntary and informed act of an adult negatives causal connection.”).