Fan v R [2024] NSWCCA 114
Fan v R [2024] NSWCCA 114 · Read the judgment on AustLII
Catchwords: Joint criminal enterprise – derivative liability – ‘wrong’ victims
The CCA has identified that, at least ordinarily, where a joint criminal enterprise (‘JCE’) is alleged by the Crown against the main offender(s), then even unusual or uncommon forms of liability will flow through to each of the other participants in the JCE.
The applicant was convicted of murder of a man, Mr Wu, and also of shooting at another man, Mr Jia, with intent to murder him. A co-offender had accepted a contract to kill Mr Jia. The co-offender and two other men (one of them the applicant) went to an address to carry out the shooting. The applicant stayed outside. Practitioners will have immediately identified that this brings in concepts of JCE, which comes in two varieties. First, ‘basic’ JCE, in which participants agree to commit a particular offence, and in which each offender is liable for the others’ actions. And second, ‘extended’ JCE, in which there is an agreement to commit one offence, but the participants foresee the possibility of a further offence which is then committed. Again, even in an extended JCE, each of the participants is guilty of the completed offence.
In the present case, the co-offender shot at Mr Jia as planned – but missed. He did, however, kill an unintended victim, Mr Wu. The fact that the co-offender had missed the intended target gave rise to the comparatively rare (but terribly interesting) concept of ‘transferred malice’ – for which authority cited going back as far as 1575. Against that ancient pedigree, the applicant did not deny the existence of transferred malice as a longstanding feature of Anglo-Australian criminal law. Rather, what he attacked was the idea that transferred malice could extend as far as a ‘non-actor’ (in this context, non-shooter) participant in an extended JCE – particularly given he was outside at the time.
In other words, in an extended JCE, is a non-actor participant liable for the completed offence if it relates to the ‘wrong’ victim? This was explored by reference to a hypothetical (at [43]) which is likely to be more familiar to practitioners:
‘Two persons agree to break into a home in order to steal valuables. They are aware that an old woman lives there. The two perpetrators either agree that she is to be bashed (basic JCE), or each individually foresee the possibility of that occurring during the break, enter and steal (extended JCE). One perpetrator enters, the other is the lookout. In fact, the elderly brother of the homeowner is present, his sister having gone out for the evening. The brother is bashed by the offender who enters. Is the thesis for the applicant that the lookout – the non-actor – is not guilty of any offence of violence, because the “wrong person” was bashed?’
The Court (Button J, with whom Bell CJ and McNaughton J agreed) rejected the applicant’s assertion.
High Court authority confirms that in a ‘basic’ JCE, liability is primary. That is, the applicant’s liability does not depend on whether or not the shooter was found guilty (at [55]). However, more recent authority in the High Court and CCA has established that in an extended JCE, liability is derivative – meaning that the applicant would get the benefit of anything which might exculpate the shooter. For example, if the shooter were to be found not guilty because of a mental health or cognitive impairment, or because the shooter was found to be under the age of 10, then no liability could be placed on the applicant, either (at [59]-[60]). However, all this is theoretical in the present case, in circumstances where the same jury that convicted the applicant also convicted the shooter, and it is conceded that transferred malice was a valid basis for that to occur. If transferred malice as a doctrine of liability uncontroversially applied to the liability of the shooter, and the liability of the confederate (in this case, the applicant) was derived from that of the shooter, the Court could not understand how it would be that the confederate would be entitled to be exculpated, given the jury found the shooter guilty to the criminal standard. In other words, nothing established that ‘something extra’ was required for the conviction of the applicant, above and beyond the orthodox elements of murder, and the elements of either basic or extended JCE (at [61]-[63]).
The applicant had asserted that there was no authority for the proposition that transferred malice applies in the context of an extended joint criminal enterprise. However, the Court considered that this argues against the applicant’s argument, not for it. It is not uncommon for the ‘wrong’ person to be killed or harmed, or the ‘wrong’ home to be invaded, or the ‘wrong’ valuables being taken, or the ‘wrong’ property to be damaged. Similarly, those facts are probably frequently combined with joint criminal enterprise – whether basic or extended. The absence of any contrary authority was said to be an indicator that the law allowed for this possibility (at [64]).
Speaking generally, the criminal law should strive for congruence between criminal liability and moral culpability – perhaps especially in the context of murder and other grave offences. The thesis of the applicant would mean that, even if the principal offender was convicted, the applicant would be acquitted entirely simply because of the simple caprice that the ‘wrong man’ was ‘accidentally’ shot to death. It is difficult to see how this could be appropriate. (at [65]-[68]).
For those and other reasons, the appeal was dismissed.
Practitioners can take from this decision that, in cases involving JCE (whether basic or extended) , it is likely that even unusual or uncommon forms of liability applying only to the ‘actor’ participant can lead to the eventual conviction of the other ‘non-actor’ participants, as well.