IL v The Queen [2017] HCA 27: Is Participation in a Joint Criminal Enterprise Enough for Constructive Homicide?

Today (9 August 2017) the High Court allowed an appeal in IL v The Queen [2017] HCA 27. The appeal was allowed by majority, and involved the manufacture of a large commercial quantity of a prohibited drug, and murder or manslaughter. In particular the facts concerned the question of whether participation in a joint criminal enterprise could lead to a case for constructive homicide, despite there being no actual action on the part of the defendant in the murder or manslaughter. This issue of no actual action on the part of the defendant has previously caused controversy.

Facts of the Case

On 4 January 2013, there was a fire in a house in Ryde. This fire was caused by the burning of a ring burner, connected to a gas cylinder by a pipe in a poorly ventilated bathroom. On this ring burner was placed a pot containing a prohibited drug, namely methamphetamine, or a substance that was being made into methamphetamine. On top of this pot was placed a burning mattress. When police arrived on the scene, the applicant IL tried to prevent police from entering the house. Due to the fire, IL's co-participant in the enterprise died from his injuries. Following this, the respondent, IL, was charged with the following offences: the manufacture of a large commercial quantity (6.7 grams) of a prohibited drug, namely methamphetamine, secondly the murder or manslaughter of the deceased, and four other offences relating to the unlawful possession of firearms.

Appeals

On first instance, in the NSW Supreme Court, the Crown case against IL was based on allegations of constructive murder, or involuntary manslaughter by an unlawful or dangerous act. These counts were based on IL being part of a joint criminal enterprise with the deceased. According to the Crown, IL was liable for all acts contemplated by the joint criminal enterprise, and the Crown relied on the category of murder in Section 18(1) of the Crimes Act 1900 (NSW), which refers to felony or constructive murder. At trial the relevant question as determined by Justice Hamill was whether IL had contemplated a fire causing fatal injury, and it was held that there was not enough proof to show that IL was the person who had lit the ring burner, and therefore the charge based on constructive murder was not made out. On this basis, jury returned verdicts of not guilty on the charges of murder and manslaughter, but they found IL guilty of the other offences. IL was sentenced to imprisonment for 11 ½ years, with a non-parole period of 7 ½ years.

The Crown appeal was unanimously allowed by the NSW Court of Criminal Appeal ('the CCA'), who held that the relevant and correct question was whether the ignition of the ring burner was within the scope of the joint enterprise, and if so, both participants were liable for it. The CCA held that IL’s liability was not derivative from the joint criminal enterprise but rather, was co-extensive and therefore the liability was for all acts undertaken with the deceased in the drug manufacturing enterprise.

Decision of the High Court

The appellant IL appealed to the High Court by grant of special leave, and by majority the Court allowed the appeal. The majority held that Section 18(1) of the Crimes Act 1900 (NSW) is not engaged if the deceased kills themselves, and three justices allowed the appeal on these grounds. Two justices allowed the appeal, holding that it was not open to attribute criminal liability to one member of a joint criminal enterprise for an act committed by another member in the enterprise, and if the deceased was the person who lit the wring burner, that action is not the actual action (actus reus) of the crime of murder or manslaughter.

Therefore by majority, the orders of the Supreme Court of NSW made on 8 April 2016 were set aside, and instead it was ordered that the appeal to the CCA be dismissed.

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Crimes Act 1900 (NSW), as published on Timebase LawOne.

IL v The Queen [2017] HCA 27, and judgement summary.

R v IL [2016] NSWCCA 51.