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Supreme Court of Victoria - Court of Appeal |
Last Updated: 2 March 2021
COURT OF APPEAL
S EAPCR 2020 0166
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JUDGES:
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WHERE
HELD:
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DATE
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DATE
OF JUDGMENT:
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ORIGINATING
PROCESS:
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Case stated, Tinney J, Supreme Court of Victoria,
26 August 2020
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MEDIUM
NEUTRAL CITATION:
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CRIMINAL LAW – Case stated - Referred questions of law – Complicity - Statutory murder – Act of violence causing death – Fatal act committed ‘in the course or furtherance’ of crime of violence (foundational offence) – Accused participated in foundational offence – Co-offender committed act of violence causing death – Co-offender charged with common law murder - Accused charged with statutory murder as secondary party - Statutory complicity provisions – Necessary to prove that accused ‘involved in’ statutory murder - Whether sufficient to prove accused’s involvement in foundational offence – Necessary also to prove accused’s awareness of probability that s 3A murder would be committed — Questions answered accordingly — DPP v Perry (2016) 50 VR 686; [2016] VSCA 152, Duca v The Queen [2020] VSCA 209 considered — Crimes Act 1958 ss 3A, 323, 324, Criminal Procedure Act 2009 s 302.
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APPEARANCES:
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Counsel
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Solicitors
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For the Crown
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Ms K Churchill
with Ms A Roodenburg |
Ms A Hogan, Solicitor for Public Prosecutions
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For the Accused
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Mr M Gumbleton
with Ms C Dwyer |
Emma Turnbull Lawyers
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MAXWELL P
T FORREST JA:
Summary
1 At common law, a person (A) who by deliberate act causes the death of another person (B) is only guilty of the offence of murder if the act is done with the intention to kill B or cause B really serious injury. By contrast, a person can be found guilty of murder under s 3A of the Crimes Act 1958 (the ‘Act’) without proof of any such intention, where the death is caused by an act of violence done ‘in the course or furtherance’ of a crime of violence (as defined).
2 Liability for murder under s 3A — ‘statutory murder’ — thus depends on proof of a nexus between the act causing death and the crime of violence, the existence of which is the precondition of liability. In this context, the crime of violence is conventionally referred to as ‘the foundational offence’.
3 In the present case, the accused, Eshan Hansen[1] (‘EH’), is alleged to have agreed with his two co-accused, Adam Bitar[2] (‘Bitar’) and Haidar Odom[3] (‘Odom’), to commit the offence of intentionally cause injury using baseball bats. Their intended victim was Marius Kato[4] (‘Kato’). The Crown case is that, in the course of the commission of the offence of causing injury, Bitar shot and killed Kato.
4 Bitar is charged with common law murder. The case against EH, however, is that the killing of Kato amounted to statutory murder. That is, Kato’s death was the result of an act of violence (by Bitar) committed ‘in the course or furtherance’ of the foundational offence of intentionally causing injury.
5 Although EH did not commit the act of violence causing death, the Crown case is that he was complicit in the offence of statutory murder. The questions before this Court concern what has to be proved in order to establish EH’s guilt, as a secondary party to the statutory murder.
6 As will appear, the questions come to the Court in the form of a case stated, pursuant to s 302(2) of the Criminal Procedure Act 2009. This is, in our respectful view, a most appropriate use of the case stated procedure, as it enables questions of law of fundamental importance to the trial to be determined — on the basis of assumed facts — before the trial commences. We were informed by counsel that the resolution of those questions would determine whether the prosecution can proceed with the charge of statutory murder against EH.
7 The competing positions can be stated shortly. The prosecution contends that, for EH to be guilty of statutory murder as a secondary party, it is necessary only to prove his complicity in the foundational offence. That is, once it is established that EH participated, or agreed to participate, in the commission of that offence, then he is liable — without further proof — for the act of violence committed by his co-offender during the commission of the foundational offence.
8 The defence submission is that EH could only be liable as a secondary party if it were proved that he was complicit in both the foundational offence and the statutory murder offence. That is, it would need to be shown — in the language of ss 323 and 324 of the Act — that he was ‘involved in’ the commission of the offence under s 3A.
9 Since — by definition — statutory murder is an offence committed in the course of the carrying out of another offence, the case against EH would have to satisfy the requirements of either s 323(b) or (d). It follows, the defence contends, that in addition to his participation in the foundational offence, EH would need to be shown to have been ‘aware that it was probable’ that, in the course of the commission of that offence, an act of violence would be committed which would cause death.
10 For reasons which follow, we consider that the defence submission should be upheld, and the questions answered accordingly. The conclusion that proof is required of EH’s involvement in both the foundational offence and the statutory murder offence is consistent with principle, with the legislative history of s 3A and with the clear legislative intention expressed in ss 323 and 324 as to the available bases of complicity.
Questions reserved
11 The questions of law reserved for determination by this Court are as follows:
(a) only the crime the necessary elements of which include violence for which a person upon first conviction may be sentenced to a term of imprisonment of 10 years or more (‘the foundational crime’); or(b) both the foundational crime and the act of violence that caused death?
12 The circumstances giving rise to the reservation of the questions are set out in Annexure A to the Case Stated. The facts there stated are to be treated as assumed facts for the purposes of this Court’s consideration of the reserved questions.[5] Annexure A is in these terms:[6]
By indictment No C1912447.2, Eshan Hansen (‘the accused’) ... and Adam Bitar (‘Bitar’) ... are charged with the murder of Marius Kato (‘Kato’).The accused, Bitar and a third person, Haidar Odom, who is now a prosecution witness, entered into an agreement to assault Kato with the use of baseball bats with the intention of causing injury to Kato.
Pursuant to the agreement, Odom drove the accused and Bitar to the vicinity of Kato’s home. Upon the arrival home of Kato, Odom drove his vehicle alongside Kato’s vehicle. The accused and Bitar, each armed with a baseball bat, alighted from the vehicle and commenced to attack Kato using the baseball bats, consistent with the agreement.
Kato ran away from the scene of the attack upon him, for a distance of approximately 300 metres along the street. He was pursued by the accused and Bitar. Odom followed along in the vehicle.
Kato ran into the front yard of a private property, seeking refuge. The accused and Bitar followed him into the front yard and came close to Kato. Bitar produced a handgun which he then discharged on three occasions into the body of Kato, causing his death. There was a gap after the first shot before the other two shots. After the first shot was fired, the accused re-entered the vehicle being driven by Odom, telling Odom to wait for Bitar. He was joined in the vehicle shortly afterwards by Bitar.
Neither the accused nor Odom was aware that Bitar was carrying a firearm before it was produced and discharged.
Following the attack, all three men departed the scene in the motor vehicle being driven by Odom.
Background to the reservation of questions of law
Bitar is charged with common law murder (Charge 1). The accused is charged with statutory murder pursuant to s 3A of the Crimes Act 1958 (Charge 2). The foundational crime for the purpose of the charge of s 3A murder is intentionally causing injury (Charge 3). The trial of Bitar and the accused is listed to proceed on 15 February 2021.
In written submissions filed on 22 June 2020, the prosecution indicated that it sought a pre-trial ruling pursuant to s 199 of the Criminal Procedure Act 2009 (‘the Act’) as to ‘what it is required to prove in order for an accused person to be found guilty of the offence of statutory murder, pursuant to s 3A of the Crimes Act 1958’. The defence filed written submissions on 20 July 2020. The matter came on for hearing on 17 August 2020.
On 17 August 2020, the accused applied for the Court to reserve a question of law pursuant to s 302 of the Act. The prosecution agreed to that course being followed. The Court initially ruled against that application on 18 August 2020 and proceeded to hear submissions on the pre-trial issue. Upon further consideration of the matter, the Court determined on 26 August 2020 to reserve questions of law for determination by the Court of Appeal.
As revealed by the written and oral submissions, it was the contention of the prosecution that if complicity by the accused in the foundational crime could be proved, the act of violence by Bitar which caused the death would be attributed to the accused without the need for anything else to be proved as long as it occurred in the course or furtherance of the foundational crime. The defence position, on the other hand, was that before the accused could be found guilty of statutory murder, it would need to be established that at the time he entered into the agreement to carry out the foundational crime, he was aware of the probability that the act causing death would be done in the course or furtherance of the foundational crime.
13 In this case it is undisputed that the foundational offence is the crime of intentionally causing injury. That is the offence which — on the assumed facts — EH and Bitar agreed with Odom to commit by attacking Kato with baseball bats. The commission of the offence commenced at Kato’s home, with EH and Bitar attacking Kato with baseball bats, and continued as they chased him for 300 metres into a front yard. Moreover, it was common ground in this Court — and it is the factual assumption on which the Case Stated rests — that the shooting of Kato by Bitar which then occurred was ‘done in the course or furtherance’ of the foundational offence, within the meaning of s 3A of the Act.
The statutory context
14 The resolution of the Case Stated requires an examination of the interaction of s 3A with ss 323 and 324 of the Act. Those provisions read, relevantly, as follows.
3A Unintentional killing in the course or furtherance of a crime of violence(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of an enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.
(1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—(a) intentionally assists, encourages or directs the commission of the offence; or
(b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
...
(1) Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence....
(1) Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence....
Question 1
15 As noted earlier, EH contended that a proper construction of ss 323 and 324 of the Act compelled the conclusion that a secondary party must be involved not only in the foundational crime but also in the act of violence causing death committed by the principal (that is, ‘involved’ for the purposes of s 324, as defined by s 323) in order to be guilty of statutory murder contrary to s 3A. He further contended that the common law supports this construction.
16 The prosecution contended that proof of complicity in statutory murder required proof only that the accused was ‘involved’ in the foundational offence, in this case, intentionally causing injury. Should this be proved, it was contended, then the accused is responsible for the acts of the other parties ‘involved’ in that offending. When an act of violence causing death is committed by another party during the commission of the foundational offence, it was said, that act is ‘attributed’ to the accused ‘by virtue of his involvement’ in the foundational offence. It ‘becomes an act of the accused’.
Construction of s 3A
17 Statutory construction is always a text-based activity.[7] It begins, and ends, by reference to the text itself.[8] The duty of the court is to give meaning to the legislative intention according to the terms in which it has been expressed. Context, including legislative history, extrinsic materials, pre-existing law and the general purpose and policy of a provision can assist in fixing the meaning of the statutory text, but it cannot displace that meaning.[9]
18 Section 3A describes the circumstances in which a person may be convicted of murder without proof of an intention to kill or cause really serious injury. Where a person ‘unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence’,[10] that person may be convicted of murder.
19 On its face, then, the clear words of the section require two acts to enliven its operation, one providing the precondition for the other. First, it is the participation in the foundational crime which provides the justification for convicting an accused of murder without proof of a murderous intent. Secondly, the accused must cause the death by an act of violence. The plain words of s 3A, read in their ordinary sense, compel this conclusion.
20 The proper construction of s 3A does not conclude with its apparent grammatical meaning, although that meaning is a very good start to the exercise. The meaning the legislature intended the words to have must be elicited.[11] The statutory context and legislative history may play a role in this determination.[12] Section 3A is a legislative reformulation of an ancient common law offence,[13] and the product of a longstanding debate about the place of that offence in a just and principled system of criminal justice. The historical and political context in which it was created is therefore of particular assistance in construing the intended meaning of s 3A.[14]
21 The common law rule is described in s 3A(2) of the Act, which abrogates it. The addition of s 3A to the Act was a response to years of criticism of that rule as excessively harsh and incompatible with basic concepts of justice. In R v Butcher,[15] Murphy, Murray and Gobbo JJ succinctly recounted the backdrop to the section’s creation:
For some time prior to 1981 numerous criticisms of what was loosely called the felony murder rule had been made. The Law Reform Commissioner,Mr T W Smith QC, in his first report to the Victorian Government of August 1974 on the law of murder stated that the felony murder rule offended against ‘basic concepts of justice’ and he instanced in his Report the width of its application and recommended that it be abolished ...
Upon the second reading of the Crimes (Classification of Offences) Bill in the House by the Minister, s 3 was amended by omitting the words ‘crime of violence’ appearing in the original Bill and substituting in their stead the present words ‘crime the necessary elements of which include violence’ ...
We gather from reading the Hansard that the intent of the amenEHent was to make it abundantly clear that the crimes in the commission of which the felony murder rule as defined in s 3(2) was to continue in force in the State of Victoria were to be of a class having ‘violence as one of its ingredients’ ... and that the rule was not to apply simply because the particular crime committed was in fact one which was committed violently.[16]
22 The Law Reform Commissioner, the esteemed Mr T W Smith QC, had been a particular critic of the felony murder rule and had called, in 1975, for its total abolition. In his second annual report for the year ending 30 June 1975, he remarked: ‘[T]he doctrines of constructive murder ought to be abolished. They classify and punish as murderers, persons who neither intended to cause death, nor even realised death could result from their acts.’[17]
23 Criticism of the felony murder rule, which was said to separate legal liability from moral culpability, had been extant since at least the 19th century.[18] Parliament’s eventual response to this sustained push to abolish the rule was not to bar this avenue to a conviction, but to narrow the circumstances in which it could be used. Section 3A abolished the common law rule and, in its place, enacted a statutory version which amended the precondition enlivening its operation. The scope of eligible foundational offences was narrowed from any violently-committed felony to crimes ‘the necessary elements of which’ include violence. Thus the statutory rule was created to constrict, but not abolish, constructive murder.
24 Against that background, we turn to consider the prosecution’s submission with respect to proof of the complicity of a secondary party in statutory murder. As mentioned earlier, the prosecution contends that proof of a secondary party’s ‘involvement’ in the foundational crime is sufficient on its own to render the secondary party criminally responsible for the fatal act of violence committed by another party to the foundational crime.
25 Complicity in the commission of offences is now governed by ss 323 and 324 of the Act. So much was common ground in this Court. Those provisions apply to the offence of statutory murder as to any other offence. Before we address those provisions, however, it should be said that the prosecution’s submission seems immediately improbable when considered against the historical background of the felony murder rule.
26 As we have said, while Parliament chose not to abolish the rule, it deliberately narrowed the rule to its current statutory form. It would be a strange outcome indeed if a secondary party to a s 3A prosecution were held to less onerous proofs than the primary party. As we have said, the primary party must be shown both to have been involved in the foundational crime and to have caused the death by an act of violence ‘in the course or furtherance’ of the foundational crime. The prosecution contention, if adopted, would have the effect of providing for the conviction for murder of a certain class of accused persons, without proof of one of the two conduct elements for which s 3A clearly provides.
27 Nor does the prosecution contention derive any support from the decision of this Court in Director of Public Prosecutions v Perry (‘Perry’). In Perry, the Court stated that the word ‘unintentionally’ was used in s 3A ‘solely in order to make clear that the prosecution was relieved of the obligation to prove intention’.[19] It does not, however, follow that ‘the only intent required for this offence is an intention to commit the foundational crime’, as the prosecution submits. As Perry confirmed, s 3A requires that the violent act causing death must be ‘conscious, voluntary and deliberate’.[20] Plainly, s 3A does not provide that the act causing death can be accidental. The section relieves the prosecution from the requirement to prove intention with respect to the consequences of the relevant act of violence — an intention to cause death or really serious injury — and no more.
28 For completeness, we should add that we see no inconsistency in the prosecution contending that Bitar is guilty of common law (ie intentional) murder, while at the same time contending — for the purposes of the case against EH — that the killing of Kato satisfied the requirements for statutory murder. As this Court confirmed in Duca v The Queen (‘Duca’),[21] there are two avenues of proof of murder, one (at common law) requiring proof of murderous intent, the other (under s 3A) requiring no such proof. The same course of conduct can be relied on to support, in the alternative, convictions for murder at common law and murder under s 3A.[22]
29 On the assumed facts, the killing of Kato would clearly satisfy the statutory requirements, without the need to prove intent on the part of Bitar. The fact that intention would need to be proved before Bitar himself could be convicted of common law murder could be readily explained to a jury. This distinction is routinely drawn when — as in Duca — both common law and statutory murder fall for consideration by the same jury. The question before this Court, of course, is not whether the offence of statutory murder was committed but whether EH can be proved to have been complicit in its commission.
Interaction of ss 3A, 323 and 324
30 As we have said, the question of complicity is governed by ss 323 and 324. Section 324 provides that ‘a person who is involved in the commission‘ of an offence ‘is taken to have committed that offence’. A secondary party will only be so ‘involved’ if their conduct can be brought within one of the four heads of statutory complicity provided by sub-paras 323(1)(a)–(d).
31 The language of those sub-paragraphs is unambiguous. In particular, it is clear that the words ‘the offence’ in each of those sub-paragraphs refer to the offence in which the secondary party is alleged to be complicit. Put another way, s 324 will only deem a secondary party to have committed an offence when that party is shown to have been ‘involved in the commission of’ that offence, in one of the four ways specified.
32 Thus, before a secondary party can be convicted of the offence of statutory murder, that party must be proved to have been ‘involved in the commission of’ that offence. In the present case, the only possible bases of EH’s ‘involvement’ in the statutory murder of Kato are those defined by sub-paras (b) and (d).
Sub-paragraph (a) could not apply, as there is no suggestion that EH ‘assisted with, encouraged or directed’ the commission of statutory murder. Sub-paragraph (c) could not apply, as there is no suggestion that EH agreed with Bitar to commit statutory murder. Sub-paragraphs (a) and (c) would seem to be more suited to proving secondary liability to common law murder and to have no sensible application to statutory murder.
33 What sub-paras (b) and (d) have in common is that they operate where the accused has a connection with two distinct offences — the charged offence and ‘another offence’. (For simplicity, we will refer to the charged offence as ‘offence A’ and the ’other offence’ as ‘offence B.’) Put shortly, both sub-paragraphs require proof that the accused was involved in the commission of offence B while being ‘aware that it was probable’ that offence A would be committed in the course of carrying out offence B.
34 Accordingly, to prove that EH was involved in the commission of the offence of statutory murder, the prosecution would need to be able to prove that he either:
(i) ‘intentionally assisted, encouraged or directed the commission of’ the offence of intentionally causing injury, while being aware that it was probable that the offence of statutory murder would be committed in the course of carrying out the ‘causing injury’ offence (s 323(1)(b)); or
(ii) ‘entered into an agreement, arrangement or understanding with’ Bitar to commit the offence of intentionally causing injury, while being aware that it was probable that the offence of statutory murder would be committed in the course of carrying out the ‘causing injury’ offence (s 323(1)(d)).
35 In argument, the prosecution contended that s 323(1)(c) could be used to establish secondary murder, and stated that its case against EH would be constructed in this way. This contention, and the prosecution case as it is currently framed, is predicated upon EH having entered an agreement with Bitar to commit the foundational offence of intentionally causing injury. That agreement having been made, counsel submitted, EH became liable for everything which Bitar did in giving effect to the agreement.
36 In our view, the plain language of the provisions renders that submission untenable. As we have said, the reference in s 323(1)(c) to ’the offence’ is a reference to the offence in which the accused is alleged to have been involved. For the purposes of s 324, an agreement to commit an offence is sufficient to render a party to that agreement ‘a person who is involved in the commission’ of that offence — and that offence only. In other words, proof that EH agreed with Bitar to commit the foundational offence could prove no more than that EH was involved in the commission of that offence. It says nothing about any involvement of EH in the — quite separate — offence of statutory murder.
37 The prosecution attempted to bridge the gap between the ‘offence’ described in s 324(1) (s 3A murder, under the prosecution’s case) and the ‘offence’ in s 323(1)(c) (intentionally causing injury, under the plain meaning of the provision) by contending that the offence of causing injury was a ‘triggering offence’, giving rise to an (ultimate) offence of statutory murder which was completed by the principal’s fatal shooting of Kato. It was contended that, the shooting being done in the course or furtherance of the offence of causing injury which EH had agreed to commit, he was thereby ‘involved’ in the shooting ‘by virtue of his involvement in the foundational offence’. As best it can be understood, the contention appears to be that the nature of the offence of intentionally causing injury, as a foundational offence giving rise to an offence of s 3A murder, means that it should be ‘wrapped up’ with the subsequent offence, the fatal shooting, such that they comprise the one offence, which then constitutes the ‘offence’ described in s 324(1).
38 As to the proposition that s 3A plainly requires two courses of conduct to constitute the offence, the prosecution contended that s 323(1)(c) must be read as allowing for this elision of conduct elements in order to fit an offence of statutory murder within its terms. Statutory murder being by definition an unplanned offence, it was said, s 323(1)(c) would otherwise be ‘unworkable’ with respect to this offence, and thus frustrate the purpose of s 3A.
39 This contention must also be rejected. As noted above, the language of ss 323(1)(b) and (d) can be applied without difficulty to an offence like s 3A murder, it being an offence committed ‘in the course of carrying out’ another offence (the foundational offence). Those provisions entail the conclusion that proof of ‘involvement’ in statutory murder in the circumstances of this case requires proof of EH’s involvement in the foundational offence and proof of his awareness of the probability that statutory murder would be committed in the course of carrying out the foundational offence.
40 This conclusion accords with principle, with the legislative history of s 3A and with the essential character of statutory murder — as an offence committed in the course of the commission of another offence. It also ensures that there is ‘a close correlation between moral culpability and legal responsibility’.[23]
Answer to Question 1
41 In order to prove statutory murder against a secondary party, pursuant to s 3A of the Act, where the act of violence causing death was committed by another person, the prosecution must prove that the secondary party was involved in the commission of both the foundational crime and the act of violence that caused death.
Question 2
42 Under s 323(1)(b), where the prosecution is endeavouring to prove complicity by the route of what used to be called ‘aiding and abetting’, the prosecution confronts the burden of proving that the secondary party assisted, encouraged or directed the commission of ‘another offence’, whilst aware ‘that it was probable that the offence charged would be committed in the course of carrying out the other offence’. In the present context, assuming the prosecution can prove that EH was complicit in the foundational offence of intentionally causing injury, under this subsection it must go on to prove that he was aware that it was probable that the crime of statutory murder[24] would be committed in the course of carrying out the agreed foundational offence.
43 The elements of statutory murder are set out in paragraph 1 of these reasons. It follows that proof of the secondary party’s awareness of the probability that a statutory murder would be committed would require the prosecution to prove that, whilst the foundational crime was on foot, the secondary party was aware of the probability that:
(a) an act of violence, beyond the scope of the foundational crime which was assisted, encouraged or directed, would be committed; and(b) that act of violence would cause death.[25]
44 Whilst proving the secondary party’s awareness of these probabilities doubtless places a high burden on the prosecution, we consider that it is only by such proof that the prosecution could meet the statutory requirement that the secondary party be shown to have been aware of the probability that the crime of statutory murder would be committed. It ought not be forgotten that, to be complicit in statutory murder, a person is constructively involved in a most serious constructive offence. The most severe criminal penalty is sought to be imposed by way of two levels of abstraction. In these circumstances, for moral culpability to match the gravity of a conviction for murder, it is only proper that strict proofs apply.
45 Under s 323(1)(d), the prosecution is confronted with a similar burden of proof in order to establish complicity. Where a secondary party has agreed with another person to commit a different offence, complicity requires proof that the secondary party was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
46 Thus, in the context of statutory murder, complicity will be established under sub-para (d) if, at the time of agreeing to commit the foundational offence, the secondary party was aware that it was probable that statutory murder would be committed. As we have explained, this level of awareness requires the prosecution to prove that the secondary party was aware that it was probable that:
(a) an act of violence, beyond the scope of the agreement to commit the foundational offence, would be committed; and
Answer to Question 2
47 To prove that the secondary party was involved in the act of violence that caused death, the prosecution must establish that the secondary party was aware that it was probable that:
(a) an act of violence, beyond the scope of the agreement to commit the foundational offence, would be committed; and
A fatal shooting
48 Shortly after 12.35 am on Wednesday, 9 August 2017, Adam Bitar[26] (for convenience, ‘Bitar’) shot Marius Kato[27] (‘Kato’) three times.[28]
49 Three bullets recovered from Kato’s body were all .22 long rifle calibre hollow point bullets with a copper wash. One of those bullets had entered Kato’s upper right chest, and had passed right to left through the right lung, heart, diaphragm, liver and into the anterior wall of the stomach (the bullet being recovered during post mortem examination from the stomach).[29] Kato died as a result.
50 The prosecution case against Bitar is that, when he shot Kato — consciously, voluntarily and deliberately — he intended to kill him. As a result, Bitar is charged with murder at common law (charge 1).
51 Eshan Hansen[30] (‘Hansen’) was in the near vicinity when Bitar shot Kato, having moments before been involved with Bitar in striking Kato with baseball bats supplied by Haidar Odom[31] (‘Odom’). The prosecution asserts that, by the application of ss 323 and 324 of the Crimes Act 1958 (‘the Act’), Hansen is liable to be convicted of murder pursuant to s 3A of the Act (‘s 3A murder’ or ‘statutory murder’) (charge 2). Hansen is also charged with intentionally causing injury to Kato pursuant to s 18 of the Crimes Act 1958 (charge 3).
52 Significantly, the prosecution accepts that neither Hansen nor Odom knew that Bitar was carrying a firearm before he produced it and shot Kato dead. And very significantly, prosecution counsel accept that the prosecution would never be capable of establishing that Hansen was complicit in Bitar’s common law murder of Kato.
53 It is important to understand that the prosecution alleges that Bitar initially intended only to assault Kato over an unsatisfied drug debt, not to kill him. The allegation is that Bitar, Hansen and Odom — now a prosecution witness — entered into an agreement to assault and injure Kato using baseball bats.
54 Late in the evening of Tuesday, 8 August 2017, Odom drove Bitar and Hansen to the vicinity of Kato’s home in a Toyota Camry, to await his arrival. Odom had provided them with the bats. Bitar had told Odom not to worry, because they were only going to ‘bash’ Kato. In the car, Bitar and Hansen repeated that the plan was to assault Kato because he owed money to Bitar.
55 When Kato arrived home at about 12.35 am the next day, Odom drove his car alongside Kato’s vehicle. Bitar and Hansen, each armed with a baseball bat, then got out of Odom’s vehicle and — pursuant to the agreement — attacked Kato with the bats.
56 Kato escaped the attack, and ran approximately 300 metres along the street, pursued by Bitar and Hansen. Odom followed in the car.
57 Kato ran into the front yard of a private property, where, as prosecution counsel put it in argument, he was ‘cornered’ by Bitar and Hansen. After Kato said something to Bitar which appears to have been the catalyst for what then occurred, Bitar produced a handgun and, as I have said, shot Kato three times. The evidence suggests that there was a gap between the first shot and the other two shots. Indeed, after the first shot, Hansen re-entered the car driven by Odom, telling him to wait for Bitar, who joined them in the car shortly afterwards. The three then drove away.
The indictment and formulation of the prosecution case
58 So far as relevant, the indictment is formulated as follows:[32]
CHARGE 1 The Director of Public Prosecutions charges that ADAMBITAR at Roxburgh Park in Victoria on the 9th day of August 2017 murdered MARIUS KATO.
Statement of Offence — Murder contrary to Common Law.
CHARGE 2 The Director of Public Prosecutions charges that ESHAN HANSEN at Roxburgh Park in Victoria on the 9th day of August 2017 caused the death of MARIUS KATO by an act of violence done in the course or furtherance of a crime of violence, namely causing injury intentionally.
Statement of Offence — Murder contrary to s 3A of the Crimes Act 1958.
CHARGE 3 The Director of Public Prosecutions charges that ESHAN HANSEN at Roxburgh Park in Victoria on the 9th day of August 2017 without lawful excuse intentionally caused injury to MARIUS KATO.
Statement of Offence — Causing injury intentionally contrary to s 18 of the Crimes Act 1958.
59 The manner in which the prosecution seeks to make a case of statutory murder against Hansen is set out in the Updated Summary of Prosecution Opening for Trial,[33], [34] dated 12 December 2019, as follows:[35]
The Crown case:The Crown case is as follows: [36]
[122] Bitar, Hansen and Odom were complicit in the offence of intentionally causing injury to Marius Kato when they attended [Kato’s address] on the night of the 9th August 2017 with the intention to assault the deceased. The Crown case is that Bitar and Hansen directly assaulted the deceased whilst Odom drove the Camry and provided the bats.
[123] Intentionally cause injury is the foundational offence for the purposes of the 3A murder charge against Hansen. It is alleged that during the course of the crime Hansen acted pursuant to an agreement, arrangement or understanding (s 323(1)(c) [of the Crimes Act 1958]) and/or intentionally assisted, encouraged or directed the commission of the foundational offence (s 323(1)(a)).
[124] Hansen being complicit in the foundational offence of intentionally causing injury, is guilty of murder by virtue of 3A as the act of violence done during the course or furtherance of a crime, the necessary elements of which include violence, caused the death of Kato.
[125] Alternatively, the killing occurred in the course, or furtherance of, committing the foundational crime Hansen was complicit in the act of violence that caused death by virtue of s 323(1) (b) and/or (d).[37]
60 The following may be drawn from the prosecution opening:
• first, Bitar and Hansen were complicit in the offence of intentionally causing injury to Kato;
• secondly, intentionally causing injury to Kato is the ‘foundational offence’ for the charge of s 3A murder against Hansen;
• thirdly, Hansen was complicit in the foundational offence of intentionally causing injury, and therefore is guilty of statutory murder, since the act of violence — done during the course or furtherance of a crime the necessary elements of which include violence — caused the death of Kato; and
• fourthly, and alternatively, Hansen was complicit in the act of violence that caused Kato’s death, the killing occurring in the course, or furtherance, of the offence of intentionally causing injury.
61 Prior to empanelment of a jury, the prosecution sought ‘a ruling as to what it is required to prove in order for an accused person to be found guilty of the offence of statutory murder’. In written submissions to the trial judge, prosecution counsel further articulated the case against Hansen:[38]
[12] Briefly stated, it is alleged by the Crown that pursuant to an agreement, Odom drove Hansen and Bitar to Kato’s home address to await his return. The common purpose was for Hansen and Bitar to injure Kato with the use of weapons. When Kato arrived home, they immediately set upon him and attacked him with baseball bats sourced for the assault. Kato managed to flee and Hansen and Bitar chased him some 300 meters with the baseball bats in hand. They caught up to him in the doorway of a home where he was fatally shot. It is alleged that Bitar fired the fatal shots. Hansen is said to be complicit in the murder pursuant to his agreement to participate in the foundational offence.[13] The Prosecution case is that Hansen and Bitar intentionally caused injury to Kato pursuant to an agreement, arrangement or understanding within section 323(1)(c) Crimes Act. The act of violence that caused the death of Kato was the production and subsequent use of the firearm, which occurred during the course of, or in furtherance of, the crime of intentionally causing injury (a crime which is capable of being a foundational crime[39] and was clearly still underway). The Prosecution allege that both accused were complicit in the foundation offence of intentionally causing injury.
62 Pausing there, it will be appreciated that the prosecution alleges that
Bitar and Hansen initiated the offence of intentionally causing injury by attacking Kato with baseball bats near his home, but that Kato escaped and was pursued by Bitar and Hansen until he was ‘cornered’. Although there is no evidence to suggest that Hansen physically assaulted Kato after he was cornered and before he was shot, the prosecution contends that the offence of intentionally causing injury was still on foot.
Questions of law reserved
63 Having heard argument on the matter for which the prosecution sought a ruling, the trial judge reserved two questions of law for this Court’s determination pursuant to s 302(2) of the Criminal Procedure Act 2009:
64 Perhaps at the risk of stating the obvious, for the purposes of these questions, Hansen is the ‘secondary party’; the ‘foundational crime’ is said by the prosecution to be intentionally causing injury (initially perpetrated by the use of baseball bats); and ‘the act of violence causing death’ was Bitar’s act of shooting Kato in the chest.
Discussion
65 The origins of s 3A murder were discussed recently in Duca.[40] I need not recapitulate what was there said. At the time Kato was shot, s 3A(1) was in the following terms:
3A Unintentional killing in the course or furtherance of a crime of violence(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
66 Giving the words of s 3A(1) their ordinary and grammatical meaning, before a person may be held liable for statutory murder:
• first, he or she must cause the death of another person (in this case,
Bitar causing Kato’s death by shooting him);
• secondly, the death must be caused unintentionally by an act of violence (the act of violence in this case being Bitar’s act in shooting Kato); and
• thirdly, the act of violence must be done in the course or furtherance of a crime the necessary elements of which include violence (for the purposes of this case, the prosecution identifying the relevant crime as being intentionally causing injury).[41]
67 In my view, the language of s 3A(1) makes it plain that it is the death which must be unintentional[42] — not the act causing death — and that such unintentional death must be caused by an act of violence. It is equally plain, in my view, that the act of violence causing death must be conscious, voluntary and deliberate — so much was conceded in oral argument by counsel for the prosecution — and done in the course or furtherance of a crime the necessary elements of which include violence.
68 Before continuing, I pause to note that my construction of s 3A(1) — the language of which compels the conclusion that it is the relevant death which must be unintentional — may not accord with certain observations in Perry.[43] In particular, it may not square with the observation that the
word ‘unintentionally’ was used in s 3A ‘solely in order to make clear that the prosecution was relieved of the obligation to prove intention’.[44]
It will be remembered, however, that Perry was an appeal by the Director of Public Prosecutions on the ground that the sentence imposed in that case for statutory murder was manifestly inadequate. The determination embodied in the observation in the passage from Perry set out immediately above was not, in my view, a necessary step towards the Court’s decision on the posed ground. For that reason, I do not regard it as binding. But if, contrary to my opinion, it may properly be characterised as part of the ratio, I consider it to plainly be wrong.[45]
69 As I have said, relying on ss 323 and 324 of the Act, the prosecution seeks to found a case of statutory murder against Hansen on the basis of complicity. So far as relevant, s 324(1) of the Crimes Act 1958 provides that if an indictable (or summary) offence is committed
a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.
70 Section 323(1) spells out the circumstances in which a person ‘is involved in the commission of an offence’:
323 Interpretation(1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a) intentionally assists, encourages or directs the commission of the offence; or
(b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or
(c) enters into an agreement, arrangement or understanding with another person to commit the offence; or
(d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence.
71 As a matter of construction, there can be no doubt that ‘the offence’ referred to in s 324(1) is the ‘offence’ that is referred to in s 323(1). Hence, s 324(1) provides that a person who is ‘involved in the commission of the offence is taken to have committed the offence’; and s 323(1) spells out the circumstances in which a person is ‘involved in the commission of [the] offence’. Hansen could be guilty of the offence of statutory murder by way of complicity, therefore, if the prosecution was able to show that he was involved in the commission of the offence of statutory murder in one of the four ways enumerated in s 323(1).
72 But the prosecution has not charged Bitar with s 3A murder. Bitar is charged with murder at common law, in circumstances in which the prosecution alleges that he intended to kill Kato. Moreover, given that the prosecution accepts that Hansen was not aware that Bitar was in possession of a gun, the prosecution concedes that it would be unable to establish a case of murder at common law against Hansen based on complicity principles.
73 In light of the foregoing, I consider that the prosecution case is hopelessly misconceived. At the risk of repetition, the prosecution case is that the ‘foundational offence’ in Hansen’s case is intentionally causing injury (not serious injury). As a result, if Bitar was proven to have committed the foundational offence, ss 323 and 324 could operate only to establish that Hansen ‘is taken to have committed’ the offence of intentionally causing injury.
74 Prosecution counsel in this Court submitted that the agreement to commit the initial offence of intentionally causing injury — the offence commencing in the vicinity of Kato’s residence — was continuing when Kato was ‘cornered’ in the front of premises some 300 metres away. At that point, however, there was no further physical violence by either pursuer until Bitar produced a firearm and shot Kato (which happened ‘almost immediately’). According to counsel for the prosecution, the ‘nub of it’ is that, ‘because they had pursued him together, they were still in the course of effectuating their agreement to cause him injury’ when
Bitar shot Kato, even though ‘there was no further physical violence meted out by Mr Hansen after Kato was cornered’. Counsel agreed that ‘the particular crime, the necessary elements of which include violence, is intentionally causing injury’; and that, to establish s 3A murder, the prosecution would have to prove ‘that the particular act of violence, that is the shooting, was done in the course or furtherance of that particular crime of intentionally causing injury’.
75 Further, counsel for the prosecution contended that the ‘offence’ for the purposes of s 324 was s 3A murder; and that the ‘act of violence’ causing death was Bitar’s act of shooting Kato in the chest. In an argument which from my perspective bordered on the surreal, counsel submitted that ‘we can show that a 3A murder was committed [by Bitar]’, and that Hansen could be fixed with liability for ‘his act of violence [that] caused the death of the victim’.
76 When it is subjected to proper scrutiny and analysis, it becomes clear that the prosecution’s attempt to fix Hansen with liability for s 3A murder by way of ss 323 and 324 is absurd.
77 For Hansen to be ‘involved in the commission of [the] offence’ of 3A murder by the application of s 323(1)(a), the prosecution would need to show that he intentionally assisted, encouraged or directed the commission of the offence of s 3A murder. In circumstances in which Hansen did not know that Bitar had a firearm, and as a result could not have anticipated that Bitar would shoot Kato, it is impossible to see that he could ever be seen to have intentionally assisted, encouraged or directed the act of violence (the shooting) which unintentionally caused the death of Kato.
78 Further, upon the assumption that Hansen intentionally assisted, encouraged or directed the commission of ‘another offence’ — for argument’s sake, intentionally causing injury (said by prosecution counsel to be the foundational offence) — s 323(1)(b) could have application only if Hansen ‘was aware that it was probable that the offence charged [s 3A murder] would be committed in the course of carrying out the other offence [of intentionally causing injury]’. Once more, in circumstances in which Hansen did not know that Bitar had a firearm, and as a result could not have anticipated that it was probable that Bitar would shoot Kato, it is impossible to see that Hansen could ever be said to be aware that it was probable that s 3A murder would be committed by Bitar in the course of carrying out the offence of intentionally causing injury.
79 Further again, it is also impossible to see that s 323(1)(c) could be applied to fix Hansen with liability for the offence of s 3A murder. On no torturing of the facts could it ever be said that Hansen entered ‘into an agreement, arrangement or understanding with another person [Bitar] to commit the offence [of s 3A murder]’. The prosecution case has always been that Hansen and Bitar entered into an agreement to intentionally cause injury to Kato.
80 Finally, s 323(1)(d) cannot avail the prosecution. If it be assumed that Hansen entered into an agreement, arrangement or understanding with Bitar to commit ‘another offence’ (intentionally causing injury), given that the prosecution accepts that Hansen did not know Bitar had a firearm, the prosecution would not be capable of establishing that Hansen ‘was aware that it was probable that the offence charged [s 3A murder] would be committed in the course of carrying out the other offence [of intentionally causing injury]’.
81 The irrationality of the prosecution’s attempt to construct a case of s 3A murder against Hansen is manifest when one has regard to two irreconcilable propositions that flow from the case as formulated. First, for the purposes of the charge of murder at common law against Bitar (charge 1), the prosecution contends that, when he performed the act causing death — consciously, voluntarily and deliberately shooting his victim — he intended to kill Kato. Secondly, in order to make Hansen liable for s 3A by way of ss 323 and 324 of the Act, the prosecution case must be that when Bitar performed the act of violence causing death — consciously, voluntarily and deliberately shooting his victim — he did not intend to kill Kato (s 3A applying only to a situation in which a person ‘unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence’).
Answers to the reserved questions of law
82 Both questions of law reserved for this Court’s determination are prefaced on the assumption that the undisputed facts of the case would permit a case of s 3A murder to be mounted against Hansen.
83 As I have endeavoured to make clear, however, on the accepted facts there simply is no prospect of the prosecution ever being able to establish a case of s 3A murder against Hansen. As a result, any answers to the questions would at best be purely academic. That being so, I would answer both reserved questions: Unnecessary to answer.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] DPP (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30, [32]–[34] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
[6] With pseudonyms substituted.
[7] Northern Territory v Collins (2008) 235 CLR 619; [2008] HCA 49, [16] (Gummow ACJ and Kirby J).
[8] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
[9] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (‘Project Blue Sky’).
[10] And for which the penalty for a first conviction may be imprisonment for life or for a term of at least 10 years.
[11] Project Blue Sky (1998) 194 CLR 355; [1998] HCA 28, [78] (McHugh, Gummow, Kirby and Hayne JJ).
[12] DPP v Perry (2016) 50 VR 686; [2016] VSCA 152, [38] (Maxwell ACJ, Redlich and Whelan JJA) (‘Perry’).
[13] Zaim v The Queen [2011] VSCA 80, [2]–[3] (Bongiorno JA) (‘Zaim’); ibid 690 [8].
[14] Perry (2016) 50 VR 686; [2016] VSCA 152, [38].
[15] [1986] VicRp 4; (1986) VR 43.
[16] Ibid 51.
[17] TW Smith, Victorian Law Reform Commissioner, Second Annual Report of the Law Reform Commissioner for the Year Ended 30th June, 1975 (Report, 25 July 1975) 4.
[18] James Fitzjames Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) vol 3, 74–6, cited in Wilson v The Queen (1992) 174 CLR 312, 322–3 (Mason CJ, Toohey, Gaudron and McHugh JJ) (‘Wilson’).
[19] Perry (2016) 50 VR 686; [2016] VSCA 152, [8].
[20] See, eg, R v Galas [2007] VSCA 304, [13] (Chernov, Vincent and Kellam JJA); R v Novakovic (Rulings 2–4) [2019] VSC 319, n 12 (Croucher J) (‘Novakovic’); Zaim [2011] VSCA 80, [43] (Bongiorno JA), for a brief sample of cases to cursorily note this requirement, besides Perry at 699 [46].
[22] Ibid [35] (Maxwell P and T Forrest JA). See also Perry (2016) 50 VR 686; [2016] VSCA 152, [45].
[23] Wilson [1992] HCA 31; (1992) 174 CLR 313, 327, 332–4 (Mason CJ, Toohey, Gaudron and McHugh JJ).
[24] The prosecution accepted that this is the offence referred to in s 324(1) as applied to the present case. It is sufficient that the accused was aware only of the probability of the act causing death, without contemplating or realising that it would amount to s 3A murder: under s 323(3)(b) a person may be involved in the commission of an offence whether or not the person realises that the facts constitute an offence.
[25] See Novakovic [2019] VSC 319, [288]–[299] (Croucher J).
[26] A pseudonym.
[27] A pseudonym.
[28] Although in dealing with the questions reserved by the judge I have relied on the ‘Facts’ as set out by the trial judge in the Case Stated, I have also had regard by way of background to various uncontroversial factual matters set out in the Updated Summary of Prosecution Opening for Trial, the contents of which were referred to without any demur in the course of the hearing in this Court. See Thomas v The King [1937] HCA 83; (1937) 59 CLR 279, 286 (Latham CJ), 299 (Dixon J); R v Assange [1997] 2 VR 247, 249–50.
[29] A second bullet had entered Kato’s left buttock, and passed through soft tissue only; and a third bullet had entered his right groin, passing through the tissues of the inner thigh.
[30] A pseudonym.
[31] A pseudonym.
[32] With pseudonyms substituted.
[33] See Criminal Procedure Act 2009, s 182.
[34] In considering the questions reserved by the judge in the Case Stated I have relied on the ‘Background to the reservation of questions of law’ set out by the trial judge. In order to better understand how the prosecution case is put, however, I have also had regard to the Updated Summary of Prosecution Opening for Trial — which was referred to in the course of the hearing in this Court — and to the prosecution ‘Submissions on the Operation of s 3A’ dated 22 June 2020 (at [12]–[13], [52]–[64]) — which was specifically alluded to in the Case Stated (at [10]). See n 21 above.
[35] Emphasis added.
[36] With pseudonyms substituted.
[37] The prosecution opening also contends that Bitar is guilty of common law murder on the basis that, ‘during the course of the assault, [he] shot [Kato] [three] times and at the time, had the intention to kill or cause really serious injury’.
[38] ‘Submissions on the Operation of s 3A’, dated 22 June 2020. These submissions are referred to in the Case Stated (at [10]), under the heading, ‘Background to the reservation of questions of law’. With pseudonyms substituted.
[39] R v Butcher [1986] VicRp 4; [1986] VR 43.
[40] Duca v The Queen [2020] VSCA 209, [16]–[18] (Maxwell P and T Forrest JA), [59]–[62] (Priest JA).
[41] Cf DPP v Perry [2016] VSCA 152; (2016) 50 VR 686, 697–8 [38] (Maxwell ACJ, Redlich and Whelan JJA) (‘Perry’); R v Galas [2007] VSCA 304; (2007) 18 VR 205, 213 [28] (Kellam JA, Chernov and Vincent JJA agreeing) (‘Galas’).
[42] Cf Perry, 690 [8](b), 697 [35]–[36], 698 [42]–[43].
[43] Ibid.
[44] Ibid 690 [8](b). See also 697 [35]–[36], 698 [42]–[43].
[45] See Avco Financial Services Ltd v Abschinski [1994] VicRp 76; [1994] 2 VR 659; RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526; Commissioner of State Revenue v Challenger Listed Investments Ltd [2011] VSCA 272; (2011) 34 VR 617; DPP v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81.
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