Kassab and Moustafa v The Queen [2014] VSCA 270 (30 October 2014)

KHALED MOUSTAFA
	Applicant
v

THE QUEEN
	Respondent

	S APCR 2014 0020

ALI KASSAB
	Applicant
v

THE QUEEN
	Respondent

JUDGES:	REDLICH, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2014
DATE OF ORDERS:	26 September 2014
DATE OF REASONS:	30 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 270
JUDGMENT APPEALED FROM:	The Queen v Kassab & Moustafa [2013] VSC 379 (T Forrest J)

CRIMINAL LAW – Appeal – Conviction — Applicants each charged with two murders —Two shooting deaths — Applicants convicted of defensive homicide for one death — Applicants acquitted with respect to second death — Whether conviction of applicant Kassab unsafe and unsatisfactory — Applicant Moustafa convicted as aider and abettor —Whether conviction unsafe and unsatisfactory — Whether possible to aid and abet defensive homicide

APPEARANCES:	Counsel	Solicitors

For the Applicant Moustafa	Mr D A Dann	Galbally & O’Bryan

For the Applicant Kassab	Mr T Alexander with Ms N Hassan	Garde-Wilson Lawyers

For the Crown	Mr T Gyorffy QC with Ms S M K Borg	Mr C Hyland, Solicitor for Public Prosecutions

1 Both applicants faced trial in the Supreme Court relating to the shooting deaths of two men at Brunswick on 18 August 2011. They have sought leave to appeal against resulting convictions for defensive homicide.

2 The first charge on the indictment alleged the murder of Omar Taha (‘Taha’); and the second alleged the murder of Ahmad Mohamad (‘Mohamad’). On 20 May 2013, a jury acquitted each applicant of the murder of Taha, but found them both guilty of the alternative offence of defensive homicide. The jury returned verdicts of not guilty of murder, and of the alternatives of defensive homicide and manslaughter, on the charge relating to Mohamad.

3 The applicant Ali Kassab (‘Kassab’) sought to maintain a single ground of appeal which claims that, ‘The jury’s verdict of guilty is unsafe and unsatisfactory in that it was not supported by the evidence’.

4 Initially, Khaled Moustafa (‘Moustafa’) sought to press two grounds. Following the oral hearing of his application in this Court, however, by way of a supplementary written submission, counsel for Moustafa sought leave to add a third ground. We would grant leave to add the further ground. Thus the grounds that Moustafa seeks to agitate are as follows:

5 For reasons that follow, we would dismiss Kassab’s application. We would, however, grant Moustafa’s application for leave to appeal conviction, allow the appeal, quash the conviction for defensive homicide, and order that a judgment and verdict of acquittal be entered.

6 At about 2:30pm on 18 August 2011, Taha and Mohamad were fatally shot in the office and adjoining corridor of panel beating premises in Brunswick, CBD Smash Repairs (‘CBD’). The two deceased men, Mohamad and Taha, were proprietors of CBD.

7 Kassab and Moustafa were good friends. The deceased Mohamad was Moustafa’s cousin.

8 In the months leading up to the shootings, the relationship between Moustafa and Mohamad had become strained. Moustafa believed Mohamad had stolen substantial sums of money from him, and thought that Mohamad was tardy in making payment for a car that he had sold to him. Further, Moustafa ran a small business buying damaged prestige cars, repairing them, and on-selling them. Two of his cars had been at CBD for some months, but little work had been done on them. This fact further strained the relationship between Moustafa and Mohamad.

9 On 17 August 2011, there was a meeting at Moustafa’s home. Among the several people in attendance was Ahmed Aboueid, who was a joint proprietor of CBD. Moustafa aired his grievances about Mohamad, and suggested confronting Mohamad and Taha the following day. Kassab agreed to accompany him, and Moustafa arranged for a number of people to congregate outside CBD at the time of the confrontation.

10 The next day, 18 August 2011, Abdul Atik picked up Kassab and Moustafa, and the three drove to CBD. Several men assembled outside the CBD premises. Apart from Moustafa, Kassab and Atik, the group included Abdul Saad, Omar Saad and Peter Bonanzunga.

11 Kassab and Moustafa entered the premises. Mohamad then arrived. He greeted some of the group and went inside.

12 We pause to briefly describe CBD’s premises.[1] They were located in an industrial area in Florence Street, Brunswick. The building in which the business was situated is north facing, with a roller door in the northern facade. There is also an entry door (made up of twin doors) for pedestrian access (‘the front door’) in the northern facade. It is situated to the eastern side of the roller door and leads to a passage which runs along the western wall of an area set aside for a ‘prayer room’, kitchenette and office. Immediately inside the roller door is the main workshop area, which extends the length of the building and finishes with another roller door at the southern end. In the north-eastern section of the building is the prayer room, kitchenette and office area. Towards the south-eastern corner of the building is a ‘low bake oven’ and spray room. In the south-western corner is the ‘paint room’, used for storing paint.

13 The office may be entered via two doors. Entry through the front door leads into a passage that separates the general office area from the greater workshop area by the passage’s western wall. Walking along the passage in a southerly direction towards the office leads to a door in the office’s northern wall. There is also a door in the office’s western wall, at the junction with the southern wall, which permits entry into the office through the workshop. (As will become clear, this door was found to have a bullet hole in it from a .357 revolver — fired from the workshop side into the office — and a broken lock.)

14 A third door at the north-eastern end of the office leads into the kitchenette. Heading back north out of the kitchenette is the prayer room. Access to the kitchenette, and thence the prayer room, however, can only be gained from the office, so that anyone wishing to enter the kitchen area and prayer room from outside the building could only do so by first going through the office.

15 The office is rectangular in shape, the longer walls being the northern and southern walls, and the shorter walls of the rectangle being the eastern and western walls. Sergeant Mark Chandler, a ballistics expert, examined the door located on the western wall towards the southern end. It had a bullet hole. The bullet had travelled from the outside of the office towards the inside (in an easterly direction, inclining southwards). There was also other damage to that door. Sergeant Chandler said that on the ‘office side’ of the door the ‘lock and retaining screws were missing from the lock area and just the internal part of the lock, the metal framing, was all that was left on the door’, consistently with ‘the lock being torn from where it was originally located’ when the door was forced inwards. Located within the office was a desk with a return, the desk angled in such a way as to from a ‘V’ shape, with the point of the ‘V’ pointing toward the northern wall. Behind the desk, closer to the southern wall, was a chair. There was a cupboard on the southern wall. Other furniture included three chairs on the eastern side of the office, and one on the western side.

16 Precisely what happened after Mohamad entered the premises is, in a number of respects, unclear.

17 It is tolerably clear from the objective evidence, however, that a .357 revolver was fired five times inside the CBD premises. Four shots were fired within the office, and one from outside the office door, penetrating the office door into the office. It is also tolerably clear that a further two shots were fired from a 9mm semi-automatic pistol. Neither the .357 revolver, nor the 9mm semi-automatic pistol, has been found.

18 Kassab received two gunshot wounds. One shot was to the thigh from the .357 revolver. Significantly, however, he was also shot in the upper arm — almost certainly with the 9mm semi-automatic pistol — sustaining what was described as a ‘through-and-through’ wound. A consultant surgeon, Brett Knowles, who performed surgery on Kassab, gave evidence that the angle of the wound in the arm suggested that, if Kassab had been standing in an upright position when shot, as a matter of common sense the gun would have had to have been angled upward. We note also that a fragment from a 9mm bullet was removed from a cornice at the southern end of the office, lending further support to the notion that the 9mm pistol was fired at an upward angle.

19 The fatal shot to the deceased Taha came from the .357 revolver. He was shot in the face at close range. The bullet struck the tip of his nose and his jaw, and passed downwards through his upper chest, lodging in his abdomen. Taha died inside the office essentially from blood loss. A forensic pathologist, Melissa Baker, who had carried out a post mortem examination of Taha, observed stippling surrounding the bullet wound in his face, which is ‘caused by fragments of unburnt powder within the projectile cartridge impacting the skin’. As a ‘rough rule of thumb’, the distance the barrel of the gun would have had to have been from Taha’s face to cause the stippling was ‘two to three barrel lengths’. In cross-examination, Dr Baker said that the gun was ‘clearly above the head on the left-hand side of the head’ when fired.

20 Not only did Kassab receive a wound from the 9mm semi-automatic pistol, but it was that weapon that killed Mohamad. He received a shot to the chest, which proved fatal. The ballistics expert, Sergeant Chandler, gave evidence that Mohamad was shot from a range further away than 30 to 40 centimetres, but it was impossible to be more precise about the distance. Mohamad died in an ambulance on the way to hospital. The forensic pathologist, Melissa Baker, had carried out a post mortem examination of Mohamad. She gave the cause of death as acute blood loss following a gunshot wound to the chest. In particular, she said that ‘exploration of the wound revealed complete transection of the left common carotid artery and a defect in the wall of the right common carotid artery with a large amount of bleeding into soft tissues around the arteries of the aorta’.

21 It was impossible to establish the order in which the seven shots — five from the .357 revolver and two from the 9mm pistol — were fired.

22 As to the five shots from the .357 revolver, one shot from the revolver lodged in Kassab’s leg; and a second shot had had been discharged into Taha. A third shot had gone through the divider panel of the desk in the office, and damaged the skirting board of the eastern wall; and a fourth shot (the trajectory of which could not be established) had left a bullet fragment near the northern wall of the office. The fifth shot had come from outside the office and through the office door on the western wall at the southern end, lodging in a cupboard against the southern wall of the office. According to the ballistics expert, Sergeant Chandler, the bullet in Kassab’s leg; the bullet in Taha; the bullet that had travelled through the divider panel of the desk and lodged in the eastern wall; the bullet that had come from outside the office and lodged in the cupboard against the southern wall; and the bullet fragment found near the northern wall; had all come from the same revolver.

23 At the risk of repetition, two shots were, as we have said, fired from a 9mm semi-automatic pistol. Two spent 9mm Parabellum cartridge cases were found in the office. Two 9mm bullets caused injury — the first being the non-fatal ‘through and through’ wound to Kassab’s arm; and the second being the fatal would to Mohamad’s chest. Further, two 9mm bullets were found — the first in the cornice on the southern wall; and the second had entered Mohamad’s chest. The overwhelming probability is that the bullet that had gone through Kassab’s arm was the bullet that had travelled in a south-westerly direction and had lodged in the cornice on the southern wall of the office. According to the ballistics expert, that shot could have been discharged in an upward trajectory, although it was impossible to say at what height or at what angle the hand holding the pistol was when that shot was fired. Sergeant Chandler gave evidence that the bullet in the cornice, and the bullet that killed Mohamad, had both come from the same 9mm pistol. He also said that the two fired cartridge cases had been fired from the same pistol. And although Sergeant Chandler could not state categorically that the two 9mm bullets in the cornice and Mohamad’s chest had come from the two fired 9mm cartridge cases, there was no evidence to suggest the presence of two 9mm pistols.

24 As already observed, neither the .357 revolver nor the 9mm semi-automatic pistol was recovered. A third firearm, however, a .22 Phoenix long rifle calibre pistol, was.

25 Sergeant Chandler gave evidence that he found a .22 Phoenix long rifle calibre pistol on the floor of the office. There was no magazine in the pistol, and there was no cartridge in the pistol’s chamber. The safety catch of the pistol was in the ‘fire’ position and the hammer was in the uncocked position. Sergeant Chandler said that the gun had not been discharged, because the bore was clean of deposits. He also found a magazine for the Phoenix on the floor of the office. The magazine contained five .22 long rifle calibre Winchester Subsonic brand cartridges (the capacity of the magazine being 10 cartridges). Under a chair next to the eastern wall a .22 cartridge was also found. The rim of the cartridge showed a light firing pin indentation which is caused by the firing pin striking with insufficient force to cause the cartridge to be ignited and the bullet to fire. Sergeant Chandler concluded that there had been an unsuccessful attempt to fire the cartridge. Further, one of the unfired cartridges in the magazine also showed light firing pin strike indentation, indicating that there had been an unsuccessful attempt to fire that cartridge. He said that a cartridge may be ejected by racking the pistol’s slide back and forth.

26 DNA was located on the two spent 9mm cartridges found in the office. The irresistible inference was that it was Taha’s DNA. Doctor Yuet Meng Chang, a scientist with the Biology Division of the Victoria Police Forensic Science Centre, gave evidence that a male DNA profile matching Taha was obtained, with a ‘likelihood ratio’ being 350 billion. Doctor Chang gave further evidence that DNA, consistent with being Taha’s, was also found on the three unfired 9mm Parabellum cartridges on the floor of the office, observing that the DNA on the cartridges came from one person, and that ‘Taha is not excluded as the source of the DNA detected’.

27 With respect to the single unfired .22 cartridge found in the office, Dr Chang gave evidence that DNA obtained from it indicated ‘contribution from at least two people’, and that Taha ‘is not exclude as a contributor’.

28 The trigger guard and trigger of the .22 pistol yielded DNA from at least two contributors. Doctor Chang said that Kassab could not be excluded as a contributor, and there was ‘moderate support’ for the proposition that the mixture of DNA detected ‘originated from Kassab and another person chosen at random from the Australian Caucasion population’. Both Taha and Mohamad were, however, excluded as contributors, and ‘Moustafa is inconclusive’. Further, the pistol grip of the .22 pistol had DNA from at least four contributors.

29 Evidence was also given by a forensic scientist, Harald Wrobel, concerning deposits of gunshot residue (‘GSR’). GSR was located on Moustafa’s hands. Based on the GSR on his hands and clothing, Mr Wrobel opined that Moustafa ‘would either have to have discharged a firearm or have been in very close proximity when a firearm was discharged’, at a point ‘about three metres the way the firearm was discharged and a metre out’. In other words, he was no more than about a metre off to the side of the muzzle when the firearm was discharged.

30 With respect to Taha, Mr Wrobel was unable to say whether he had fired a gun. The number of GSR particles on Taha’s hands was ‘extremely low’. If another had his hands over Taha’s at the time Taha fired a gun, that would interfere with the deposit of GSR on Taha’s hands.

31 Similarly, Mr Wrobel could not say whether Mohamad had fired a gun. There was no GSR on his hands, but his medical treatment both at the scene and in hospital impeded the collection of GSR.

32 Kassab gave evidence that he was shot twice with the same gun, the .357 revolver. The evidence of Mr Wrobel cast considerable doubt on that claim. Having examined GSR deposited on the left arm of a garment, a ‘hoodie’, that Kassab had been wearing when shot in the left arm, Mr Wrobel concluded that ‘the likelihood of the 9 millimetre causing the bullet hole would be extremely high’. Further, examination of the left leg of pants that Kassab had been wearing when shot in the left leg, showed a different propellant present to that on the left arm of the hoodie. Additionally, a .357 bullet had been surgically removed from Kassab’s leg.

33 We should interpolate that GSR was also found on the clothing of an employee of CBD, Ahmed Aboueid. Mr Wrobel thought it ‘very unlikely’, that the amount of GSR on Aboueid’s clothes would have come from walking into a room after guns had been fired. It was more likely that he had fired a gun, or had been in ‘very close proximity to a gun being fired’. The importance of this evidence was that Aboueid maintained throughout his involvement with police that he had been in the spray booth when the shots were fired. Police went to Aboueid's house in February 2013 and arrested him. He was interviewed under full caution. The position that Aboueid maintained during the record of interview was that at all relevant times, he was in the spray oven. Police put various inconsistencies in Aboueid’s account to him, and drew his attention to Mr Wrobel’s findings concerning GSR. Aboueid continued to deny, however, that he either discharged a firearm or was in close proximity to one being discharged.

34 It is also worthwhile pausing to note that there was evidence that Aboueid had made a 000 emergency call after the shootings. A male — claimed to be a CBD employee Jovanovski (although he denied it was him) — could be heard in the background of the recording of the call to say, ‘You’ve killed him man’ or similar. Having been played the tape of the 000 emergency call by police — the tape having been enhanced by technical experts — in his record of interview Aboueid asserted that what he heard the voice say was, ‘You’re a fucking good man’.

35 Suggestions were also made that Aboueid disposed of the 9mm pistol, had deleted CCTV footage and had tried to influence witnesses. The defence position about Aboueid is set out in the summary of the address of Kassab’s counsel in the trial judge’s charge to the jury:

36 The prosecution’s hypotheses about what occurred inside the premises, as put to the jury by the prosecutor in his final address, were encapsulated by the trial judge in his charge as follows:

37 The prosecution case was that Moustafa provided the .357 revolver to Kassab before they travelled to CBD. Atik gave evidence that Moustafa had a black silk bag which he took to CBD, although there was no direct evidence as to the bag’s contents. Further, the prosecution theorised that the .22 pistol was conveyed to the premises by Kassab secreted within a Gucci wallet. Again, however, there was no direct evidence that this was so.

38 Atik remained outside CBD during the time that the shots were fired. Kassab came out of the premises wounded. Atik and others saw Moustafa take the black bag from the back seat of the car. He then removed a gun ‘like one of those the cowboys use in the movies’ from ‘somewhere around his waist, close to his waist’, and put it in the bag. Moustafa then gave the bag to Atik and said (in Kassab’s presence), ‘Give this to Johnny [Pugliano]’.

39 When first spoken to by police, Moustafa lied. He said he had not been at CBD, and said he collected the wounded Kassab directly from Kassab’s factory in Campbellfield. He lied about meeting Atik and Kassab before going to CBD, and he failed to mention Atik’s involvement.

40 In evidence given at the trial, Kassab denied that Moustafa gave him the revolver. He maintained that he took the gun from Taha after a struggle during which he and Taha were shot. He denied seeing Moustafa carrying a black bag.

41 From the objective evidence it can be concluded with some confidence that the 9mm semi-automatic pistol was initially in Taha’s control. His DNA on the spent cartridge cases is consistent with him having loaded the weapon. As we have observed, one bullet fired from the 9mm semi-automatic pistol lodged in Mohamad’s chest and killed him. Although the prosecution case at trial was that Moustafa had fired that shot, and despite Mr Wrobel’s opinion that Moustafa ‘would either have to have discharged a firearm or have been in very close proximity when a firearm was discharged’, in our view the purely objective evidence does not permit any conclusion to safely be drawn as to who had control of the 9mm pistol at the time Mohamad was shot.

42 It was unclear who had control of the .22 long barrel pistol, or who had attempted to fire it. Although it is likely that Kassab’s DNA was on the area of the trigger guard, since he had been wounded and bled in the office, no inference could be safely drawn that he had handled it. A sample at the site of the pistol grip of the .22 gave up mixed DNA profile, with at least four contributors.

43 In our view it is likely that the shot from the .357 revolver fired through the office door was fired before the other four shots, since it was fired from the outside in, and the other four shots were fired from this gun within the office. Additionally, the lock on the door was damaged, consistently with it having been forced inwards.

44 Kassab gave sworn evidence. In brief summary, he said that he was aware that Moustafa suspected Mohamad of stealing some of his money. On 18 August, Moustafa told Kassab he was going to go past Taha’s place and pick up his two cars and the money owed to him. Kassab then spoke to Atik, who said he would pick him up. After Atik picked up Kassab, they then picked up Moustafa, and Atik drove them both to CBD. When they arrived, they were met by Mohamad, who invited them in. They went in through the roller door which was open, and then into the office. There were two desks in the office. Taha was behind a desk on the right hand side. Moustafa introduced Taha to Kassab, and then went to get a chair from another room. They sat down with Mohamad behind them, and Taha was standing behind his desk. Moustafa and Mohamad argued about the cars and money. Kassab heard a ‘click’ from behind him. He turned around and Taha had a gun and had ‘just gone off his head’. Taha came around his desk with a gun, ‘like a cowboy gun’. Kassab put his hands up and tried to calm Taha down, but the gun went off hitting Kassab in the left arm. Kassab grabbed Taha’s right arm with his right hand, thinking that Taha was going to kill him. They were fighting, rolling around underneath the desk. Both were holding the gun. The gun went off again and hit Kassab in the leg. Very quickly after Kassab was shot in the leg, the gun again went off and hit Taha in the face. Taha was ‘screaming, yelling, swearing’. Kassab has ‘grabbed the gun’ and Taha ‘let go’ of it. Kassab was crawling towards the door of the office in pain, when a gun went off from the door to the other room. He did not see who fired it. Kassab did not see what kind of gun it was, he ‘just seen (sic.) someone fire the gun’. He got to the door, and ‘let a shot off into the door’, and told him to ‘back off’. Kassab hopped toward the roller door and saw it was closed. Moustafa came and opened the roller door. Kassab started ‘blacking out and fainting’, and handed Moustafa the gun that he had taken from Taha.

45 When cross-examined, Kassab admitted he had been carrying a Gucci wallet when he went to CBD. Further, he said that he went to CBD wearing work gloves. When Taha shot Kassab the first time, he had his arms up in line with his shoulders with palms facing outwards. Taha was standing less than a metre away when he shot Kassab. The shot made Kassab’s left arm feel very weak and hot. When Kassab and Taha were fighting over the gun, they were rolling around on the floor underneath the front of the desk in the office. The period of time between the first shot and the second shot was about 20 to 30 seconds, and the time between Kassab and Taha standing up and fighting and falling to the floor was 10 or 15 seconds. Kassab was on the floor when he was shot in the leg. When Taha was shot in the face, Kassab had both his hands above his head and out from his head, fighting for the gun. They were both under the desk. Kassab fired a ‘parting’ shot as he came out of the office toward the door of the office.

46 Moustafa did not give evidence. He had, however, participated in a record of interview with police on 18 August 2011. The interview fell into two parts. In the first part of the interview, Moustafa said that he picked Kassab up from work and went to the panel shop to pick up two of his cars. He asked for his cars or the money that he had paid for them. Taha did not want to give the cars or the money back, and he pulled out a black gun and began waving it around. Moustafa ducked down and Taha just started shooting. After the shots stopped they left, and he saw that Kassab was dragging himself. He helped Kassab to the car and then drove him to the hospital straight away. Moustafa said that there were workers inside the panel shop and people outside. He said he did not see anyone else injured. Moustafa said a shot just missed his face and he ducked. He said he stayed down until the shots ceased and he crawled out of the office. Neither he nor Kassab took guns. Taha had a big black gun and Mohamad had something but he did not see what it was. He said it must have been a gun. Moustafa said he drove Kassab to hospital the hospital. He said he got a scratch from the table when he ducked down quickly, and he had blood on him from when he was helping Kassab.

47 The interview was interrupted so that forensic samples could be obtained. Moustafa was then asked for a more detailed account. In brief summary, in the second part of the interview he told police that he went to the panel shop to see how his cars were going and to speak to Mohamad and Taha. He had transferred a BMW X5 to Mohamad but Mohamad still had not paid him. Moustafa wanted to see what was going on, and whether Mohamad was going to pay him or give the car back. He said that as soon as he and Kassab arrived Mohamad was outside. They shook hands and said hello. He said, ‘Let's go inside, sit down and talk’. Taha was already in the office. When they went in Moustafa sat down, Taha was standing up, and Mohamad was sitting down at the far end. Moustafa asked what was going on and asked that they give him his car or his money. Mohamad was saying, ‘Just relax, just relax, you don't need to get into trouble’. Moustafa said that they were not there with anything and did not go there to hit them. Taha then got up, pulled out a gun and started ‘swinging it around’, saying ‘Listen, I got (sic.) nothing to do with this, your problem’. Moustafa was sitting down, and Mohamad was standing right in front of him. Mohamad ‘had his hands in his pocket the whole time and had something in his pocket’. Moustafa and Mohamad had been ‘really good friends’ but they had ‘drifted off’. As soon as Moustafa said, ‘Don't pull a gun, what’s wrong with ya? Fuck, man. Relax.’, Taha ‘just shot’ and ‘just missed’ Moustafa, who jumped and ducked. That was when he scratched himself. Moustafa did not know what happened after that. He heard four or five gunshots. Moustafa was behind a chair. He went to walk out. Moustafa then looked back and he saw Kassab whom he dragged out and put into the car. He said they did not come with any weapons. They did not intend to do anything. Moustafa just wanted the car or the money. He said that he almost died.

49 Both applicants were, as we have said, convicted of defensive homicide. Both argue that it was not open to the jury to convict. Moustafa further contends that it was not possible that he be convicted of defensive homicide on the basis that he aided and abetted Kassab, and submits that the judge erred in directing the jury on the issue of aiding and abetting. It is thus necessary to discuss the elements of this somewhat unique offence.[2]

50 Defensive homicide was introduced by the Crimes (Homicide) Act 2005 (‘the Act’).[3] Several changes were effected by the Act. So far as is presently relevant, first, provocation was abolished as a partial defence to murder. Secondly, self-defence was codified for the offences of murder[4] and manslaughter,[5] with the concomitant introduction of the offence of defensive homicide.[6] These changes were intended to implement so called ‘key legislative recommendations’[7] made by the Victorian Law Reform Commission.[8]

51 Until the Act came into force, the law of self-defence was as laid down by the High Court in Zecevic.[9] The Zecevic test for self-defence had both a subjective and objective component. For the prosecution to negative self-defence it needed to prove that the accused did not believe it was necessary to do what he or she did, or that there were no reasonable grounds for that belief.

52 Despite recognising that the Zecevic test is ‘straightforward’,[10] and that ‘[t]his test is usually quite simple for the jury to apply’,[11] the Victorian Law Reform Commission recommended change. Quite remarkably, the Commission observed that, ‘[w]hile the current test for self-defence is clear, simple and easily understood, the Commission shares concern that in practice, the law is at risk of being interpreted and applied unfairly’.[12] Thus, in accordance with the Commission’s recommendations, the acknowledged ‘straightforward’ common law model of self-defence was replaced with a convoluted statutory defence.

53 Section 9AC of the Crimes Act 1958 provides that a person is not guilty of murder if ‘he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury’.

54 Although s 9AC does not make this as clear as it might, it may be assumed that the expression ‘conduct that would otherwise constitute murder’ must be a reference to the act causing death accompanied by the requisite mental element for murder, that is, an intention to kill or cause really serious injury, or foresight of the probability that death or really serious physical injury would result.

55 The mental element is wholly subjective, that is, a belief in the accused that the conduct is necessary to defend himself or herself or another from the infliction of death or really serious injury.

56 Defensive homicide arises by virtue of s 9AD of the Crimes Act 1958 where the accused kills another in circumstances that ‘but for section 9AC, would constitute murder ... if he or she did not have reasonable grounds for the belief referred to in that section’. Hence a person is liable to be convicted of defensive homicide where he or she —

• believing the conduct to be necessary to defend himself or herself or another from the infliction of death or really serious injury;

57 Since its introduction, defensive homicide has created many practical difficulties for trial judges and juries. Thus, in a typical case where both murder and manslaughter are open, trial judges have been required to direct on self-defence for murder under s 9AC (with the possible verdict of defensive homicide arising under s 9AD), but direct differently for self-defence as it applies to manslaughter under s 9AE.

58 In Babic,[13] this Court (Ashley, Neave and Harper JJA) considered the difficulties connected with the interpretation of s 9AD. A form of jury direction was suggested. It was said:[14]

59 No case of which we are aware has hitherto dealt with the circumstances where a person may be regarded by the law as complicit with the principal offender in the crime of defensive homicide, whether as a joint principal or as an aider and abettor.[15] In this case, Moustafa was convicted of defensive homicide on the basis that he aided and abetted Kassab. Given the nature of the offence of defensive homicide, there are a number conceptual difficulties connected with fixing Moustafa with criminal liability for Kassab’s acts.

60 Defensive homicide is an offence, but its physical and mental elements are only established where there has been the partial failure of a defence. A principal falls to be convicted of defensive homicide when the prosecution has proved beyond reasonable doubt that he (or she) has performed the act or acts causing death with the intention requisite for murder, has failed to disprove that when performing the acts causing death with murderous intent the accused believed the conduct necessary to defend himself (or herself or another) from the infliction of death or really serious injury, but has proved that there were no reasonable grounds for any such belief that the accused had that the conduct was necessary to defend himself (or herself or another) from the infliction of death or really serious injury was not held on reasonable grounds. In order to be fixed with criminal liability as an aider and abettor, what must Moustafa’s state of knowledge have been concerning the essential facts (in particular, Kassab’s intent); and what must Moustafa’s intention have been?

62 In our view, the verdict of defensive homicide returned in the case of Kassab is not unsafe and unsatisfactory.

63 Faced with a claim that a verdict is unsafe and unsatisfactory, the Court is required to ask whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.[16] In determining whether it was open to the jury to be satisfied of guilt, the Court must carry out its own independent assessment of the evidence. Further, in determining whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, the real question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[17] It is insufficient to show that there was material which might have led the jury to fail of satisfaction of guilt beyond reasonable doubt.[18]

64 The applicant contended that it was impossible for the jury to determine beyond reasonable doubt what occurred within the office and to construct a version of events from which a verdict of defensive homicide could be reached. It was submitted that the evidence was not capable of supporting a conviction because, first, the essential facts necessary for the prosecution to prove the elements of defensive homicide could not be (and were not) established to the criminal standard; or, secondly, it was not possible for the jury to exclude an hypothesis which was consistent with the innocence of the applicant, in that the death occurred in circumstances of self-defence. Counsel argued that the facts about which the jury could be satisfied ‘could not be assembled in such a way that the jury could have been satisfied that the elements of defensive homicide had been made out’. Alternatively, it was submitted that a case for self-defence was equally open on the evidence, and thus the innocence of the applicant could not be displaced. The jury verdict, it was argued, ‘was a “best guess” about what occurred and no more than mere speculation’.

65 In particular, it was submitted that the verdict of defensive homicide means that the jury must have been satisfied that:

66 The applicant accepted that there was sufficient evidence for the jury to be satisfied of the first two matters, but submitted that the jury could not be satisfied beyond reasonable doubt of the third, fourth and fifth of those matters. Seven propositions were advanced:

(1) Shots were fired from within the office: there were two guns, and it is likely that there were two unsuccessful attempts to fire shots from a third gun.

(3) It is impossible to establish who controlled which gun at any particular point in time.

67 Kassab gave evidence in his own defence. He claimed that he was shot twice with the .357 revolver while he struggled with Taha. He had hold of the gun — or at least, was jointly holding the gun — when Taha was fatally shot. In our view, it was open to the jury to accept part of Kassab’s evidence while rejecting other parts. Thus it was open to the jury to accept that Kassab was in control of the .357 revolver at the time Taha was shot in the face, whilst rejecting Kassab’s evidence that the fatal shot was fired by accident in the course of a struggle for the gun (that is, that the act that caused death was not a conscious and voluntary act).

68 A reasonable interpretation of the evidence is that — no matter who first produced the .357 revolver — there was a struggle for the gun, during which Kassab received a bullet wound to the left leg. The objective evidence is also capable of supporting the view that Kassab retained possession of the revolver after being shot. The presence of what is almost certainly Taha’s DNA on unspent cartridge cases on the floor of the office, together with his DNA on two fired cartridge cases in the near location, strongly supports the inference that Taha had loaded the 9mm pistol, and had possession of it within the office. It also seems probable that Kassab fired a shot through the office door, and that the door was forced open from the workshop side, causing the damage to the lock. Thus, the evidence strongly suggests that, despite having received a disabling wound to the thigh, Kassab followed Taha into the office, where Taha received the fatal wound.

69 Moreover, the passage of the .357 bullet from above Taha’s head and downward through his body strongly suggests that Taha was supine at the time the fatal shot was fired, and that Kassab was standing over him with the barrel of the gun two to three barrel lengths away from Taha’s face when the gun discharged. Kassab’s position standing over Taha is also supported by the ‘through and through’ wound in Kassab’s left arm, caused by the 9mm bullet which lodged in the cornice. (Kassab’s evidence that the wound to the left arm was caused by the .357 could readily be rejected by the jury, based on the objective evidence.)

70 It thus follows, in our view, that it was open to the jury to conclude that Kassab had ample opportunity to disengage from Taha after receiving the wound to the thigh, but chose instead to pursue Taha into the office. The jury could well have concluded that, having forced his way into the office armed with the .357, Kassab sought to engage with Taha, who was behind the desk when shot. Based on his failure to withdraw after initially being shot, and on his pursuit of Taha, it was open to the jury to conclude that when he shot Taha in the face at close range, Kassab had an intention to kill or cause really serious injury (or, at the least, foresaw the probability that death or really serious injury would result); and, although he subjectively believed the conduct to be necessary to defend himself from the infliction of death or really serious injury, objectively he did not have reasonable grounds for that belief.

71 For these reasons, the verdict of defensive homicide in Kassab’s case is not unsafe and unsatisfactory.

72 Essentially the grounds of appeal in Moustafa’s case assert that it was not open to the jury to convict of defensive homicide on the basis that he aided and abetted Kassab’s crime, and that the trial judge erred in his directions to the jury as to the ‘essential circumstances’ which the applicant ‘had to know or believe existed’ in order to be guilty as an aider and abettor of defensive homicide. In summary, it is contended that:

• the jury were misdirected as to the evidence that was properly available in direct proof of the applicant’s guilt as an aider and abettor — ground 1;

• with respect to the evidence that was properly available in direct proof of the aiding and abetting case as to defensive homicide a jury acting reasonably could not have been satisfied beyond reasonable doubt — ground 2; and

• the jury were misdirected as to the knowledge required by the aider and abettor for the crime of defensive homicide — ground 3.

73 At trial, the prosecution’s case with respect to the killing of Taha was ‘murder or nothing’. The applicant’s case relied on self-defence. Neither party proposed an hypothesis consistent with defensive homicide. Indeed, early in the trial the judge queried whether defensive homicide was open.

74 Initially the prosecution’s case for murder was put on the alternative basis of joint criminal enterprise or aiding and abetting. The joint enterprise case involved the allegation that the applicant and Kassab had formulated a plan that they would attend CBD with a view to recovering stolen money. If there was no agreement reached on recovery of the money, or if they encountered any resistance from Mohamad and Taha, then the plan was to shoot and kill Taha and Mohamad. Prior to the final addresses of counsel, however, the trial judge ruled that defensive homicide could not be put on the basis of joint enterprise basis, but only on the basis of aiding and abetting.

75 In the result, the prosecutor’s only submission to the jury concerning defensive homicide was that, with respect to both killings, they were cases of murder, not defensive homicide. The prosecutor did not endeavour to articulate any basis upon which the applicant could be found guilty of defensive homicide, let alone seek to identify which of the applicant’s acts were relied on with respect to aiding and abetting Kassab in the defensive homicide of Taha.

76 Counsel for the applicant in this Court drew attention to the fact that, when directing the jury as to aiding and abetting, and in identifying what acts were relied upon by the prosecution for the aiding and abetting case, the trial judge dealt with murder, defensive homicide and manslaughter together. The jury were directed that they could consider alternative charges of defensive homicide and manslaughter with respect to both Taha’s and Mohamad’s killings. It was submitted that in the judge’s directions there was no discrimination as between the acts that the jury could use to convict the applicant as an aider and abettor for the alleged murder of Taha, and those acts that could be relied upon to convict the applicant of the defensive homicide of Taha. Counsel argued that such discrimination was required.

77 It was further submitted that a number of the acts relied upon by the prosecution for the case of aiding and abetting murder were not properly available in proof of the case of aiding and abetting defensive homicide. Counsel argued that a number of the acts occurred at a time prior to any point when it could be said that either the applicant or Kassab had a belief that they were facing the threat of death or really serious injury. On the evidence, it was submitted, a belief in the threat of death or really serious injury could only have arisen at a time inside the office when Taha produced a firearm. Notwithstanding that this was so, the prosecution had submitted that the following acts took place prior to the time when there is any XX evidence of a threat of death or really serious injury arising:

78 Counsel submitted that the identification of item (a) is ‘particularly problematic’. The only alleged agreement that had been articulated by the prosecution was the alleged agreement that lay at the heart of the case of joint enterprise case for murder. It was pointed out that the prosecutor had not referred to any agreement when putting the aiding and abetting case for murder, and had conceded that joint enterprise was not properly available for the charge of defensive homicide. Counsel submitted that the situation became ‘even more problematic’ when it is appreciated that item (d) — which embraces items (b) and (c) — was couched in terms of that earlier alleged agreement. Hence, it was argued that the only alleged agreement that had been articulated by the prosecution was not available for the jury’s consideration of the aiding and abetting case for defensive homicide. Moreover, item (b) involved the alleged provision of the pistol. Again, on the evidence, this alleged act occurred well before the threat of death or really serious injury could be said to have arisen.

79 It was submitted that there is a significant risk that in reaching the guilty verdict on the charge of defensive homicide the jury relied on the earlier identified acts and the earlier alleged agreement. The risk is heightened when regard is had to the dearth of evidence as to the applicant’s conduct at the time of the shooting of Taha, or his knowledge of what Kassab was doing. Indeed, so counsel submitted, apart from the applicant’s version in the record of interview there was no direct evidence as to his conduct at the time of the Taha’s shooting. Further, counsel argued that there is the further risk that the impermissible use of the evidence of the earlier acts and alleged agreement led the jury to reach an illegitimate compromise verdict. That further risk is increased when regard is had to the way the cases were put by both the prosecution and defence; the not guilty verdicts with respect to the killing of Mohamad; and the jury’s 11 days of deliberation.

80 After the completion of oral argument, counsel delivered further written submissions at the invitation of the Court. Counsel for the applicant submitted that the circumstances that an aider and abettor must know, or believe existed, involve those facts that go to make out the elements of the offence, including the requisite state of mind for the particular offence committed by the principal offender. In this case, Kassab’s state of mind for defensive homicide would involve not only an intention to kill or cause really serious injury, but also a subjective belief — not based on reasonable grounds — that it was necessary to shoot Taha in self-defence (at least in the sense that the prosecution was unable to negative that belief). It was necessary, so it was submitted, for the aider and abettor to have the requisite belief as to self-defence, otherwise it could not be said that he had knowledge or a belief as to all the facts and circumstances that go to make up the crime of defensive homicide.

81 It was submitted that the trial judge was of the view that the knowledge required to be established for an aider and abettor to murder was indistinguishable from the knowledge required to be established for an aider and abettor to defensive homicide. The effect of the directions ultimately given by the trial judge as to the knowledge required for an aider and abettor to defensive homicide could be understood to be that at the relevant time the aider and abettor knew that the principal was not acting in self-defence. It was submitted that such a state of knowledge would not be consistent with a knowledge or belief in the essential circumstances that go to make up the crime of defensive homicide including the relevant state of mind of the principal. Moreover, counsel submitted that whilst the trial judge said it would be absurd if the prosecution had to establish that the aider and abettor knew that the principal had belief in self-defence, that this is the effect of the unusual nature of the crime of defensive homicide. That this would involve a ‘more torturous’ set of considerations for a jury is again, so it was put, the effect of the unusual nature of this crime of defensive homicide and the requirement that the prosecution establish knowledge by the aider and abettor of the essential facts which go to make up the crime. Counsel argued that one reading of the trial judge’s directions as to the element of knowledge suggests that the aider and abettor would not have to engage with the state of mind of the principal at all.

82 The applicant’s counsel acknowledged that the resolution of these issues is made more difficult in circumstances where the question of what the aider and abettor must know of the principal’s state of mind was apparently left open in Le Broc.[19]

83 Counsel was constrained to concede that no issue was raised by the applicant’s counsel as to the way in which the aiding and abetting case on the charge of defensive homicide was left to the jury. Having regard to the way both sides put their cases, however, including that neither side addressed a possible factual foundation for a verdict of defensive homicide, conviction for that offence was never the subject of any real focus by either the prosecution or the defence. In any event, it was submitted, the guilty verdict is unsafe and unsatisfactory since there is an unacceptable risk that the verdict was (at least in part) based on the evidence of the earlier acts and the alleged agreement, when such evidence was not properly available in direct proof of the applicant’s guilt as an aider and abettor.

84 In written submissions delivered after the oral hearing of these applications, the respondent acknowledged that ‘a person generally cannot intentionally assist or encourage a person to commit an offence unless he or she is aware of the essential facts that constitute the offence’. For aiding and abetting, ‘the accused must intentionally help, encourage or convey to the principal offender that he assents to and concurs with the commission of the offence’.

85 It was submitted that Moustafa, through his presence, actions and words, encouraged Kassab to kill or really seriously injure Omar Taha, and that:

• Kassab, armed with a .357 calibre revolver, shot Taha at close range (which is evidence of an intention to kill or really seriously injure Taha).

• Moustafa knew the essential circumstances that establish the offence of murder — being a conscious, voluntary and deliberate act intending to cause the death or really serious injury of a person which in fact causes the death of that person.

• Moustafa knew that at the time Kassab pointed the .357 revolver at Taha, Kassab believed his conduct was necessary to defend himself from the infliction of death or really serious injury by Taha.

• However, Moustafa also knew that Kassab did not have a reasonable ground for the belief referred to, as Kassab could have protected himself from death or really serious injury simply by running out of the factory and away from Taha.

86 Counsel for the respondent relied on several matter which, they submitted, showed Moustafa assisted or encouraged Kassab to shoot Taha in the circumstances outlined above:

87 It was further submitted that Moustafa’s presence while the above events occurred ‘would permit the jury to infer that he was aware of these facts’, and the jury could conclude that he knew that:

88 As we have earlier observed, no similar analysis was essayed by the prosecutor at trial. The prosecution case was that Moustafa had been complicit with Kassab in Taha’s murder.

89 On the cases presented at trial, it is clear that Moustafa could only have been liable for conviction of defensive homicide with respect to Taha’s death as an aider and abettor; and, self-evidently, only if a person is capable in law of aiding and abetting the offence of defensive homicide.[20] As we have said, there are conceptual difficulties attached to fixing a secondary offender with liability for a principal offender’s commission of the offence of defensive homicide.

90 By virtue of s 323 of the Crimes Act 1958, a person ‘who aids, abets, counsels or procures the commission of an indictable offence may be tried or indicted and punished as a principal offender’.

91 The ordinary meaning of ‘aid’ is ‘to give help, support or assistance to’; and ‘abet’ means ‘to incite, instigate or encourage’.[21] (A ‘counsellor’ is one who advises or solicits the principal offender prior to the offence;[22] and a ‘procurer’ is one who causes the offence to be committed.[23]) In Russell,[24] Cussen ACJ observed that words such as aiding and abetting and counselling an procuring are all ‘instances of one general idea, that the person charged as a principal is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission’.[25]

92 Giorgianni [26] is authority for the proposition that before a person is liable as an aider and abettor for the offence of the principal, there are at least two aspects of the aider and abettor’s state of mind which must be established. First, the aider and abettor must must intentionally assist or encourage the principal offender. Secondly, the aider and abettor must know at least of all the matters which constitute the physical elements of the offence committed by the principal offender.

93 In Giorgianni, the appellant was convicted of five counts of culpable driving causing death and one count of culpable driving causing grievous bodily harm, in breach of s 52A of the Crimes Act 1900 (NSW). Culpable driving was an offence of strict liability. Section 351 of the Crimes Act 1900 (NSW) — which is in similar terms to s 323 of the Crimes Act 1958 — provided that, ‘Any person who aids, abets, counsels, or procures, the commission of any misdemeanour ... may be indicted, convicted, and punished as a principal offender’. It seems that the appellant leased and operated a prime-mover and trailer. The prosecution case was that the appellant procured the act of culpable driving by having an employee drive the prime-mover in circumstances where the appellant was aware, after maintenance recently undertaken, that the prime-mover’s brakes were defective. Following brake failure, the employee driver lost control of the prime-mover and ultimately collided with two cars, causing the death of five people and serious injury to another. On appeal, the High Court considered the essential features of aiding and abetting. Having observed that the offence created by s 52A did ‘not require the prosecution to prove any state of mind on the part of the driver’,[27] Wilson, Deane and Dawson JJ spelled out what the prosecution was required to establish before the appellant could be guilty as a secondary offender:[28]

94 It is important to recognise that Giorgianni was concerned with an offence of strict liability. Thus, although in that case the prosecution was not required to prove any state of mind on the part of the driver whose offence was aided and abetted, the prosecution was not relieved of the necessity of proving intention on the part of the secondary participant in the crime. Wilson, Deane and Dawson JJ said:[41]

95 In Stokes and Difford,[46] Stokes, with the encouragement of Difford, had mounted a savage attack on another prisoner in a prison yard, causing the victim catastrophic brain injuries. Stokes was convicted by a jury of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. Difford was convicted as an aider and abettor of the lesser offence of maliciously inflicting grievous bodily harm. On appeal, Difford claimed that the trial judge had misdirected the jury as to the state of mind which the prosecution had to establish on his part in order to prove that he was an accessory to the crime committed by Stokes. Hunt J (with whom Wood and McInerney JJ agreed) said:[47]

As Hunt J later still explained, ‘maliciously’ does not ‘have any stronger meaning than an intention to cause some physical injury’.[49] What is of particular significance for present purposes, however, is that it was made clear that an aider and abettor must be ‘aware also of the existence of any state of mind on the part of the principal offender’ which the prosecution is required to prove in order to show that the crime was committed by the principal offender.

97 Giorgianni and Stokes and Difford were both considered in Le Broc.[50] In that case the applicant had been charged, together with a co-accused, with one count of recklessly causing serious injury. The co-accused pleaded guilty to that charge. At trial the applicant’s defence was that, although he had initially punched the victim to the face, that punch had not caused any serious injury. Rather, the serious injuries suffered by the victim were caused by the co-accused alone, and the applicant neither acted in concert with, nor aided and abetted, the co-accused in inflicting those injuries.

98 When charging the jury, the judge directed that it was a necessary in proof of aiding and abetting recklessly causing serious injury that the accused foresaw the probability that serious injury would occur. Seeking leave to appeal, the applicant’s counsel submitted that, whilst foresight of probability of causing serious injury was the correct test of mens rea for a principal offender, it was not the appropriate test for aiding and abetting such an offence. Instead, the prosecution must establish that the accused knew or believed that what he was assisting or encouraging was something which went to make up the facts which constituted the offence. It was not sufficient that the aider and abettor’s knowledge or belief extended only to the possibility — or even the probability — that the acts which he was assisting or encouraging were such as to constitute the factual ingredients of the offence. It was submitted that, in particular, the jury should have been directed to the effect that, for the purposes of aiding and abetting, the prosecution must prove beyond reasonable doubt not only that the applicant intentionally assisted or encouraged the principal to cause serious injury but that he knew or believed that, by his actions, serious injury would be caused. Thus, so it was argued, to be guilty as an aider and abettor, the applicant must have known or believed that the principal, in doing what he did would — not, would probably — cause serious injury.

99 The Court (Phillips CJ, Batt JA and Cummins AJA), having expressed the view that Giorgianni did not support the applicant’s contentions, said:[51]

100 With respect, it is accurate to say that in Stokes and Difford Hunt J rejected defence submissions that the prosecution had to establish that the alleged accessory intended to encourage the principal to inflict grievous bodily harm, or knew that the principal intended to inflict grievous bodily harm upon the victim. But it must also be borne steadily in mind that in that case, as a result of the judge having removed from the jury’s consideration with respect to the secondary offender the count of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm, the aider and abettor faced only the simple form of the offence. That may explain, in our view, why it was held to be sufficient that at the time he was aiding and abetting the principal’s offence, the aider and abettor knew or was aware of the principal offender’s intention to do the act which caused the grievous bodily harm (but not that it would in fact cause such harm), and that that act would be done by the principal offender maliciously (in the sense that he had an intent to cause some physical injury).

101 In Likiardopoulos,[52] a case of murder, the victim was held captive at a house for two days, where he was ‘viciously, cruelly and repeatedly attacked’ by a number of persons. The attacks included the victim being punched to the head and face; kicked in the body; assaulted with weapons, including ashtrays, sticks, and a hammer (the hammer being used along his spine, neck, elbows and ankles); forced to drink household detergent; forced to eat chilli flakes; and subjected to humiliating and degrading acts. Not all of the attackers were always in the house throughout the entire period. At different times assailants slept. Upon waking, they characteristically consumed drugs and alcohol, at the same time further attacking the victim. The appellant was not present in the near vicinity at all times when the victim was attacked. At times he slept, and for a time he was not in the house. He also used drugs, sometimes when in the presence of the victim while the victim was under attack. Ultimately the victim died as a result of his protracted mistreatment. Pleas of guilty to manslaughter were accepted by the prosecution with respect to two of the attackers; and pleas of guilty to being accessories after the fact to manslaughter were accepted from another three. The appellant was convicted of murder following a trial.

102 At trial, the prosecution put its case of murder against the appellant in two alternative ways — first, that he acted together with others in a joint criminal enterprise to beat the victim with the intention of inflicting really serious injury; and, secondly, that he counselled and procured others to beat the victim with that intention. It did not matter whether he had performed any acts of assault, or that he had not always been immediately present when the victim was being attacked. On appeal, it was contended that the judge’s directions on joint criminal enterprise, and counselling and procuring, were wrong. Of particular relevance for present purposes, it was contended that the judge erred in directing the jury that liability by way of counselling and procuring did not require that the accused knew or believed that death would result from the acts of the principal or principals, and in leaving to the jury this form of derivative liability for murder when none of the alleged principals had been convicted of murder and the prosecution had accepted pleas of guilty from those offenders to offences other than murder. Counsel contended that the trial judge erred by directing the jury that the applicant need not know or believe that death will result from the acts of the principal(s). The applicant’s counsel submitted that the jury should have been charged that the applicant ‘must be shown to have intentionally counselled or procured the principal(s) to assault the deceased knowing or believing that the actions of the principal(s) would cause death’. It was submitted that the actus reus was not just the assault(s), but assault(s) causing death.

103 The Court (Buchanan, Ashley and Tate JJA) rejected these submissions, principally relying upon Giorgianni, Stokes and Difford and Le Broc.[53] Again, however, there seems little or no recognition of the fact that the secondary offender in Stokes and Difford faced the simple form of the offence, whereas the principal was convicted of the form of the offence that required intent to cause grievous bodily harm.

104 In Mallan v Lee,[54] Dixon J recognised that in the case of offences created by statute, the capacity to aid and abet a statutory offence might be excluded by the wording of the provision creating the offence, or by the general tenor or policy of the statute.

106 As the cases show, there are some substantive offences which, by their nature, are inherently incapable of commission by way of complicity. Defensive homicide is such an offence. In our view, it is impossible, as a matter of law, to aid and abet the offence of defensive homicide. As a matter of theory, were it possible to aid and abet defensive homicide, in order to do so, the aider and abettor would have to have intentionally participated in the principal offence, and, as part of that participation, would at least have to have had knowledge of the physical elements which go to make up the offence of defensive homicide, including the principal’s intention.

107 In the context of the present case, if, contrary to our conclusions, it were possible to aid and abet defensive homicide, before Moustafa could be found guilty of the offence, at the very least the evidence would need to be capable of satisfying the jury that Moustafa assisted or encouraged Kassab to shoot Taha, in circumstances where Moustafa knew or believed that:

• the act causing death — the gunshot to Kassab’s face — was a conscious, voluntary and deliberate act on Kassab’s part (and not, as Kassab claimed at trial, an accidental shooting in the course of a struggle);

• when he so shot Taha in the face, Kassab had the intention to kill or cause really serious bodily injury, or foresaw that death or really serious bodily injury would result.

We do not find it necessary to express a view as to whether it was necessary for Moustafa to know or believe that Kassab shot Taha believing that what he did was necessary to defend himself or another from the infliction of death or really serious injury.

108 If, contrary to our view, it is possible to aid and abet defensive homicide, in our opinion, a verdict of defensive homicide against Moustafa — on the basis that he aided and abetted Kassab — could not have been open on the facts.

109 It borders on the surreal to suggest that, in the particular circumstances of this case, a properly instructed jury could ever have legitimately inferred that Moustafa assisted or encouraged Kassab to shoot Taha with the intention of killing him or causing really serious injury (or foreseeing the probability that death or really serious injury would be caused). Nor could such a jury infer that Moustafa was aware of facts which would support a belief on his part or that of Kassab that it was necessary for Kassab to do what he did to defend himself (or another) from the infliction of death or really serious injury, still less that there were no reasonable grounds for that belief. In our opinion it simply was not open to a jury to make the necessary findings. As we have said, there was a dearth of evidence as to what Moustafa knew Kassab or Taha were doing at the time of the shooting. For these reasons, Moustafa’s conviction for defensive homicide cannot stand.

110 In light of these conclusions, it is unnecessary to consider the submissions directed to the claimed inadequacies of the judge’s directions to the jury.

111 Given that there has been a substantial miscarriage of justice, the Court must determine whether to order a retrial or whether to enter a judgment and verdict of acquittal.

112 In their written case, counsel for the respondent made the untenable submission that if the Court concluded that there was no evidence to support Moustafa’s having aided and abetted Kassab’s offence of defensive homicide, then the verdict of defensive homicide against Moustafa should be set aside and a conviction for murder substituted pursuant to s 277(1)(c) of the Criminal Procedure Act 2009. The Court pointed out that, since Moustafa had been acquitted by the jury of murder, there appeared to be insurmountable difficulties in the way of that submission. Counsel for the respondent were invited to seek the views of the Director, so as to ensure that, should that remarkable submission be maintained, it was maintained with the imprimatur of the Director.

113 Further written submissions were later received from counsel for the respondent. Relying on Pearce,[65] they did not concede that it was not open to retry Moustafa for murder, but submitted that, ‘in the circumstances of this case, including impending repeal of the offence of defensive homicide [the respondent] does not pursue a retrial on murder’. It was further submitted that, should the Court find that there has been an error of law which has resulted in a substantial miscarriage of justice, then the applicant should be retried on defensive homicide.

114 Counsel for the applicant submitted that there ought be a judgment and verdict of acquittal entered. In the alternative, it was submitted that the Court, in the exercise of discretion, should neither order a retrial either for defensive homicide nor manslaughter.

115 We have come to the conclusion that a retrial cannot be ordered, since Moustafa could not aid and abet defensive homicide; and even if he could, the evidence in the present case would not be sufficient to enable such a verdict to be returned.

116 For much the same reasons, the state of the evidence does not leave open a case of manslaughter against Moustafa, on the basis that he aided and abetted Kassab in the unlawful killing of Taha. Any charge of manslaughter would necessarily have to be based on an unlawful and dangerous act. There is evidence from which it might be concluded that Moustafa gave the revolver to Kassab shortly before they entered the CBD premises. The prosecution’s case would have to depend on the notion that Moustafa assisted and encouraged Kassab by giving him a loaded revolver knowing that it may be used in some fashion. Beyond that, however, the evidence would not permit any inferences to be properly drawn that Moustafa actually assisted or encouraged the unlawful and dangerous act that caused death (whether that be the pointing of the revolver, which made Taha wrestle for the gun, causing it to discharge; or whether that be the deliberate firing of the weapon at Taha by Kassab). In our view, no viable case of manslaughter is available, so that it would not be proper to order a retrial limited to a charge of manslaughter.

117 The conviction for defensive homicide should be set aside and a judgment and verdict of acquittal entered.

^[1] To aid comprehension, a plan of the premises, which was part of Exhibit 1 at trial, is set out in the Appendix.

^[2] Upon its proclamation, s 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, will abolish defensive homicide. Section 8 inserts a new transitional provision, s 623, into the Crimes Act 1958, the practical effect of which is to make defensive homicide unavailable for any offence committed after the commencement of s 3.

^[3] The Act came into effect on 23 November 2005, and applies only to offences alleged to have been committed on or after that date: Crimes Act 1958, s 603.

^[7] Crimes (Homicide) Bill, Second Reading, Parliamentary Debates, Legislative Assembly, 6 October 2005, p 1349.

^[8] Victorian Law Reform Commission, Defences to Homicide, Final Report, No 94 (2004), (‘VLRC report’).

^[15] In McEwan v R; Robb v R; Dambitis v R [2013] VSCA 329, three men charged with murder based on joint criminal enterprise were convicted respectively of murder, defensive homicide and manslaughter. One of the claims made on the appeal was that the verdicts — based as they were on joint criminal enterprise — were inconsistent. The Court did not directly consider, however, the circumstances where a person could be complicit as a secondary offender in a crime of defensive homicide committed by a principal.

^[20] It is also clear that the jury must have rejected the prosecution’s theory that Moustafa was culpable in the shooting of Mohomad.

Supreme Court of Victoria - Court of Appeal

Kassab and Moustafa v The Queen [2014] VSCA 270 (30 October 2014)