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In our previous articles, we discussed and outlined the laws of complicity and the different ways that a person who doesn’t physically commit the crime can still be liable and guilty of that crime under a joint criminal enterprise and as an accessory before, during or after the fact in relation to NSW offences.

In this article we outline the more complex laws of complicity of murder and constructive murder in New South Wales.

In particular, here we outline how the attribution of criminal responsibility of guilt applies to constructive murder where the victim dies either during or immediately after the commission of another crime carrying a maximum penalty of 25-years or life imprisonment, such as armed robbery with wounding. This is referred to as constructive murder or felony murder.

In a quick recap summary of what joint criminal enterprise is. Joint criminal enterprise attributes liability of guilt equally across each participant of the enterprise regardless of the part played if the prosecution can prove that the crime committed occurred regardless of who did it, and there’s an agreement between the parties to commit that crime, and each participant has participated in executing that agreement.

If the agreed crime between the parties is different to the crime that ends up occurring, then each party to the joint criminal enterprise will still be liable of guilt for the additional crime that occurs only if, those parties foresaw saw the possibility of the additional crime occurring at the time of agreeing to the original agreed crime and yet continued to participate in executing that originally agreed crime. The prosecution here must also prove that the additional crime occurred, regardless of who did it.

Now, in applying theses principles of complicity towards constructive murder, it is not as straight forward as it may first seem in light of the decision of R v Sharah (1992).


Joint Criminal Enterprise of Constructive Murder

You can be equally liable for criminal responsibility for the crime of constructive murder as the person who physically committed it through the doctrine of joint criminal enterprise in the way explained in the case of Sharah.

First, you must understand murder charges, before we explain how such criminal responsibility can be equally attributed.

Murder occurs if an offender commits a voluntary act causing the death to a victim, done either with the intention to kill, or inflict a really serious injury upon the victim, or with a reckless indifference to human life.

Constructive murder, also called “felony murder”, occurs if an offender commits a voluntary act causing death to a victim done during or immediately after the commission of another crime punishable by imprisonment for life or 25 years, such as armed robbery with wounding.

Murder carries up to life imprisonment. This means a person convicted for murder or constructive murder can be sentenced to imprisonment for his/her natural life. (section 19A Crimes Act)

An example is if Bob and Dick set out to commit an armed robbery with wounding against a victim, and at the time of the armed robbery or immediately after it, Dick commits an act causing the death of the victim by discharging a gun killing the victim. If the prosecution can satisfy the requirements of a joint criminal enterprise in relation to Bob, Bob will also be guilty of constructive murder, just as much as Dick.

In the example of Bob and Dick. Bob will be equally guilty of constructive murder under a joint criminal enterprise, and will face life imprisonment, if the prosecution can prove beyond reasonable doubt as to each of the following three elements, according to Sharah’s case:

  1. the commission of the crime of armed robbery with wounding (section 98 Crimes Act), and
  2. an agreement between Bob and Dick to commit the offence or armed robbery, and
  3. in carrying out that agreements, Bob contemplated the possibility of wounding occurring to the victim by Bob.

The above three elements now establish liability of armed robbery with wounding against both Dick and Bob. In addition, to prove constructive murder against Bob and Dick, the prosecution must also prove the following two elements:

  1. that Dick discharged the gun causing the death during or immediately after the armed robbery with wounding, and
  2. Bob contemplated the possibility of the gun being discharged by Dick either during or immediately after the armed robbery with wounding when Bob agreed to participate in the armed robbery. It does not matter whether the gun was fired intentionally.

If the allegation is simply murder, and not constructive murder, then a participant who did not physically commit the murder can be equally liable of guilt if there was an agreement between the parties to commit a crime, and each participant of that agreement contemplated the possibility that a party to it will intentionally kill or inflict a really serious injury (grievous bodily harm) in execution of the original agreement and participated in execution of that original agreement.

One of the leading cases on joint criminal enterprise is the case of McAuliffe v The Queen (1995).

More on how to withdraw from a joint criminal enterprise, click here.

Published on 17/08/2022

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AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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