The High Court has allowed an appeal from a decision of the NSW Court of Criminal Appeal on the intersection of constructive homicide and joint criminal enterprise. The appellant and victim were involved in the manufacture of methamphetamine, during the course of which a fire was sparked by a gas burner killed the victim. The constructive murder portion of Section 18(1) of the Crimes Act 1900 (NSW) provides that

[m]urder shall be taken to have been committed where the act of the accused … causing the death charged, was done  … during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years

The appellant was tried on one count of drug manufacturing, one count of murder (Count 2a) and in the alternative, one count of unlawfully causing the death of the victim (Count 2b). At trial, the Crown could not exclude the possibility that the accused caused his own death, but contended that the appellant was nonetheless guilty of constructive homicide because the victim died in the course of committing Count One, which here carried a penalty of life imprisonment. At the conclusion of the trial, the trial judge, Hamill J, directed the jury to acquit the appellant of Counts 2a and 2b on the basis that the principles of common purpose and constructive murder could not interact to make the appellant liable for murder. The NSWCCA overturned that ruling, holding that it did not matter whether the appellant foresaw the victim’s death or the fire itself, whether lighting the burner was a joint act, or whether the defendant foresaw the victim would probably be harmed.

Five members of the High Court allowed the appeal in two judgments (Kiefel CJ, Keane and Edelman JJ, and Bell and Nettle JJ), with Gageler J and Gordon J both dissenting.

The joint judges (Kiefel CJ, Keane and Edelman JJ) held that the appeal should be allowed on the first ground: s 18 is not engaged if a person kills him or herself intentionally or in the course of committing a crime, and the prosecution’s case depended on the assumption that it did apply in the case of self-killing: ‘[p]roperly construed, s 18 is not engaged in a circumstance in which a deceased accomplice killed himself or herself. It was, therefore, not engaged in this case. Questions of attribution need not arise’ (at [6]). After examining the common law and statutory origins of the rule in the present section (see at [7]ff), the joint judges concluded that these origins as well as the text and context of the section confirm that s 18 is not engaged by self-killing: the original liability was death, the language of intention includes the phrase ‘upon some person’, and sub-s (2)(b) on misfortune uses the term ‘another’; all of which indicate the section is concerned with killing another person (see at [24]). Section 18 did not create any new offences related to self-killing, and the section cannot be engaged by attributing to another person an act which caused a self-killing: at [25]. Finally, the joint judges noted that while this conclusion was sufficient to allow the appeal, their Honours also noted that they agreed with the assumption of the parties here that the usual rules of attribution of joint enterprise liability apply to s 18, namely that the attribution of acts means one person will be personally responsible for the acts of another where both hold a common criminal purpose as was held by the majority in Osland v The Queen [1998] HCA 75 (at [26]–[40]). Because the joint judges allowed the appeal on the first ground, their Honours did not consider the second ground arguments on whether the killing was ‘malicious’ within the meaning of s 18(2)(a).

Bell and Nettle JJ also held that the appeal should be allowed, not because s 18 did not apply to self-killing, but because of the limits of the common law doctrine of joint criminal enterprise. Their Honours noted that the definition of constructive murder first, did not require that the act causing the death be an act of violence, and secondly, that while the natural meaning of the language in s 18 points to the act which causes death being ‘the act of the accused’, the proper construction of s 18 imports the common law rules of complicity (at [60]):

Thus, an accused may be found guilty of murder even if he or she did not commit the act which caused the death charged provided the act was committed by an accomplice of the accused in the course of carrying out a joint criminal enterprise to which both were parties. In the result, it is the common law doctrine of joint criminal enterprise liability which is determinative of the outcome of this appeal.

After reviewing the categories of joint criminal enterprise (see at [61]–[63]), Bell and Nettle JJ held that the NSWCCA erred in interpreting the doctrine of joint criminal enterprise as rendering the accused liable for all acts within the scope of the common purpose, whether or not those acts amount to a crime: while the case law often emphasises that an accused is liable for ‘acts’ committed by another participant, the more specific meaning is ‘acts constituting the actus reus of a crime’ (at [65], and see [70]–[77] on the correct reading of those authorities). Here, the prosecution could not negative the reasonable possibility that the deceased lit the burner and caused his own death: as the trial judge concluded, given that self-killing is not an offence the appellant could not be liable for the death (at [78]). Here, the deceased’s act of lighting the burner was not the actus reus of a crime of murder or manslaughter, and the appellant was not liable for the death via the doctrine of joint criminal enterprise (at [80]). Turning to the Crown’s contention that because each participant in a joint criminal enterprise is considered as the agent of every other participant, the doctrine operates to effectively make the appellant the lighter of the burner ring, even if the deceased had lit it (at [81]), Bell and Nettle JJ rejected that argument on the basis that it confused liability for an act with the doing of the act itself: it is an attribution of legal responsibility for an agent’s act, and ‘does not in a physical sense transmogrify the act done by the agent into an act done by the principal’ (at [82], and see the discussion of the case law on this point at [83]–[88]). Finally, Bell and Nettle JJ noted that while the above was sufficient to allow the appeal and it was unnecessary to consider the arguments on maliciousness and foresight, their Honours noted that noting in argument in this appeal ‘dissuaded us from the view expressed in Aubrey v The Queen [2017] HCA 18‘ (at [89]–[90]).

Gageler J held that the NSWCCA was correct to hold that constructive murder was an available verdict on the basis that the text and history of s 18 effectively replicates the 1883 definition of the common law crime of felony murder, which extended to killing by an unintentional act in the course of committing certain crimes that did not involve killing (at [92]–[94]). His Honour stated, at [97]:

Constructive murder, like other constructive crime, ‘should be confined to what is truly unavoidable’. Had I been able to see any path of reasoning to the conclusion that Lan’s assumed lighting of the ring burner resulting in his own death did not make IL the constructive murderer of Lan, I would have felt justified in taking that path to allow the appeal. Regrettably, I cannot. The Court of Criminal Appeal’s holding that constructive murder was an available verdict in this case was, I am convinced, the inexorable result of the statutory assimilation and perpetuation of an outmoded common law doctrine. Together with Gordon J, I would therefore dismiss IL’s appeal to this Court.

Gageler J directed his dissent to explaining why his Honour could not take up the reasoning adopted by the joint judges or Bell and Nettle JJ. Turning first to whether the deceased’s lighting of the burner was an ‘act’ of IL, Gageler J interpreted the majority’s reasoning in Osland to mean that an accused had primary criminal responsibility for the ‘physical act’ of an accomplice, whether or not that act amounted to a crime committed by the accomplice (at [103]). For Gageler J, this reading accorded with that of the joint judges, but prevented Gageler J from agreeing with Bell and Nettle JJ’s view that the deceased’s lighting was not an ‘act’ of IL if IL contemplated that the deceased might light the burner as an incident of manufacturing methamphetamine (at [106]). Gageler J then considered the issue of self-killing, concluding that the deceased’s killing of himself did not preclude the possibility of constructive murder. While reading the text of s 18 absent historical context might support the view that the sections distinguish an accused, a deceased and an accomplice involved in the foundational crime, that reading ‘runs counter to the accepted view that the statutory definition replicated the definition of murder as understood at common law in 1883’ (at [108]–[110]). The contrast in the language between the limbs ‘is to be understood against the background that whether a person had committed murder and whether a person was able to be tried and punished for murder were treated at common law as distinct questions’: at [110]. After reviewing that background in detail (at [111]ff) and emphasising that murder at common law included self-murder, which in turn included either intentional or unintentional self-killing in the course of committing another felony, Gageler J concluded (at [121]) that:

There may accordingly be room for doubt as to whether an act by which a person unintentionally causes his or her own death in the course of committing a foundational crime now constitutes constructive self-murder. This is not the case in which to resolve that doubt. That is because the criminal responsibility of IL for the constructive murder of Lan does not depend on whether Lan was a constructive murderer of himself. The act of Lan in lighting the ring burner was for the purpose of s 18(1)(a) the act of IL. The prosecution case against IL is not one of constructive self-murder, but one of constructive murder of an accomplice with the accused in the foundational crime.

Finally, Gageler J held that manslaughter was available as an alternative to murder, specifically manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury (at [125]). Here, lighting the ring burner was unlawful as an incident of manufacturing methylamphetamine, and it was open to the jury to conclude that the deceased and IL knew this was a dangerous act that carried an appreciable risk f serious injury (at [126]). While the common law does not recognise ‘self-manslaughter’, and the deceased could not be guilty of his own manslaughter, that does not provide an answer to the case against IL, who had primary criminal responsibility for the deceased’s act: ‘he common law doctrine of joint criminal enterprise, which applies to attribute responsibility for the act of Lan to IL for the purpose of constructive murder, applies also to attribute responsibility for that act to IL for the purpose of involuntary manslaughter.’ (at [127]).

Gordon J also dissented. Her Honour noted that while the constructive murder limb of s 18 is ‘harsh’, it remains on the statute books and must be applied on its terms (at [143]), which, for Gordon J, extended to acts done by other parties in carrying out of that enterprise (at [149]–[150]), here, the act of lighting the ring burner to manufacture drugs which also led to the deceased’s death, an act for which IL was also responsible (at [151]). For Gordon J, distinguishing between an act and the actus reus was ‘not useful’ in interpreting s 18 because that distinction departs from the words used in the provision (at [152]). Moreover, the common law principles of complicity here go to the foundational offence (rather than the act causing death), meaning that IL is responsible for all the steps taken by the deceased towards manufacturing the drugs (at [153]). The result, for Gordon J, is that (at [154]):

Once that is recognised, the question whether Mr Lan could have been liable for homicide does not arise. First, as noted above, Osland makes it clear that IL’s liability for constructive murder would be primary, not derivative. Thus, Mr Lan’s liability or otherwise for murder is irrelevant. Second, consideration of the question whether Mr Lan could have been liable for homicide distracts attention from the relevant statutory question. The statutory question is not answered by observing that s 18(1)(a) requires the death of a person other than the person who did the act. Once it is understood that Mr Lan’s act of lighting the burner was ‘the act of the accused’ – that is, the act of IL – then that act did cause the death of another.

Emphasising that constructive murder is not a separate offence, but rather one method of establishing the offence of murder under s 18 (at [155]), Gordon J concluded by demonstrating that this reading was consistent with the common law rule of felony murder and the approach of New South Wales courts generally (see details at [156]–[166]). Turning to the conclusions of the NSWCCA on malice, Gordon J noted that s 18 merely reformulated the element of malice, and that in the instance of constructive murder, malice is established once the mental element of the foundational offence is (at [167]–[169]). Finally, Gordon J noted that while the alternative charge of manslaughter could be open in a case of constructive murder, in these circumstances it was unnecessary, specifically because the act relied on was done in the course of committing the foundational offence, and that act was done by one of the parties of the joint criminal enterprise to commit that offence (at [171], and see [172]ff).