IL v The Queen [2017] HCA 27

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

IL APPELLANT

AND

THE QUEEN RESPONDENT

IL v The Queen [2017] HCA 27 9 August 2017 S270/2016

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 8 April 2016 and in their place order that the appeal to that Court be dismissed.

On appeal from the Supreme Court of New South Wales

Representation

B J Rigg SC with R C Pontello for the appellant (instructed by Benjamin & Leonardo Criminal Defence Lawyers)

S C Dowling SC with H R Roberts for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

IL v The Queen

Criminal law – Murder and manslaughter – Where appellant and deceased engaged in joint criminal enterprise – Where act causing death committed in course of joint criminal enterprise – Where Crown could not exclude possibility that deceased had committed act causing death – Where appellant charged with murder or manslaughter of deceased – Whether s 18(1) of Crimes Act 1900 (NSW) encompasses self-killing.

Criminal law – Joint criminal enterprise liability – Whether acts or liability for actus reus of crimes committed in course of joint criminal enterprise attributed to co-participant – Whether act of deceased causing death attributable to appellant.

Words and phrases – "attribution of acts", "complicity", "constructive murder", "derivative liability", "felo de se", "felony murder", "joint criminal enterprise liability", "primary liability", "rules of attribution", "self-murder", "suicide".

Crimes Act 1900 (NSW), s 18.

KIEFEL CJ, KEANE AND EDELMAN JJ. The legal issue on this appeal The background, facts, and legislative provisions are set out in the judgment of Bell and Nettle JJ. We agree that the appeal should be allowed on the first ground of appeal. We also agree with the orders that their Honours propose. However, we reach the conclusion that the appeal should be allowed on the first ground for different reasons. The offences of murder and manslaughter in s 18 of the Crimes Act 1900 (NSW) require that one person kill another person. Section 18 is not engaged if a person kills himself or herself intentionally. Nor is it engaged if the person kills himself or herself in the course of committing a crime punishable by imprisonment for life or for 25 years or by an unlawful and dangerous act. This conclusion is sufficient to allow the appeal on the first ground. It is unnecessary to consider the second ground of appeal or the notice of contention, which concerned whether the killing was "malicious" within s 18(2)(a). Since we conclude that murder in s 18 does not apply to circumstances involving self-killing, it is not strictly necessary for us to consider the operation of the rules of attribution when co-offenders act in concert. It suffices to observe that we agree with the assumption upon which this case was conducted by the parties, namely, that when two or more persons act in concert to effect a common criminal purpose, it is the acts of each person to effect their common purpose which are attributed to the others. The decision of this Court in Osland v The Queen establishes that it is the acts which are attributed in this scenario, it is not the liability. Nor is it the actus reus of a notional offence. The way this issue arises As Bell and Nettle JJ explain, the Crown's case was that the appellant and the deceased were participants in a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug, methylamphetamine. A ring burner attached to a gas cylinder was lit in a small and inadequately ventilated room during the commission of that crime, causing a fire which led to the death of the deceased. The Crown relied upon the category of murder in s 18(1)(a) of the Crimes Act, commonly referred to as "felony murder" or "constructive murder", in support of its case that the appellant murdered the deceased. That was the focus of submissions on this appeal. Alternatively, the Crown alleged that the appellant was guilty of manslaughter of the deceased by an unlawful and dangerous act. Section 18 is set out later in these reasons but, in summary, the elements of that section relevant to this appeal concerning the proof of murder are the following: (1) an "act of the accused ... causing the death charged"; (2) which "was done ... during ... the commission, by the accused, or some accomplice ... of a crime"; and (3) the crime is one which is punishable by imprisonment for life or for 25 years. The Crown's case in respect of those three requirements was that: (1) the act of the accused was the lighting of the ring burner which caused the death of the appellant's co-participant; (2) that act was done during the commission by the appellant, or the co-participant, of the crime of manufacture or production of a large commercial quantity of a prohibited drug contrary to s 24 of the Drug Misuse and Trafficking Act 1985 (NSW); and (3) that crime is punishable by imprisonment for life (s 33(3)(a)). There was no dispute that requirements (2) and (3) were satisfied. However, the Crown could not prove whether it was the appellant or the deceased who lit the ring burner. So the Crown submitted at trial that even if it were the deceased who lit the ring burner, his act could be attributed to the appellant with the result that his act could be the "act of the accused" for the purposes of murder or manslaughter under s 18 of the Crimes Act. The Crown relied upon rules of attribution commonly known as "joint enterprise liability". The most elementary difficulty with the Crown case is the assumption upon which it was based, that s 18 applied in a case of self-killing. Properly construed, s 18 is not engaged in a circumstance in which a deceased accomplice killed himself or herself. It was, therefore, not engaged in this case. Questions of attribution need not arise. The origins of s 18 of the Crimes Act Section 18(1) of the Crimes Act originated in s 9 of the Criminal Law Amendment Act 1883 (NSW). In Ryan v The Queen, Windeyer J quoted with approval the comment from two Draftsmen of that Act, Sir Alfred Stephen and Alexander Oliver, that apart from banishing the expression "malice aforethought", the New South Wales definition of murder did not otherwise alter the common law. Section 9 of the 1883 Act (later s 18(1) of the Crimes Act) was therefore intended to be a restatement of the common law relating to murder and manslaughter "but shorn of some of the extravagances of malice aforethought and constructive malice". In order to understand the operation of s 18, it is necessary, therefore, to appreciate what was meant by murder and manslaughter at common law. The common law position prior to 1883 was that a homicide which was neither justifiable nor excusable was a felony. For centuries, the common law had divided the felony of homicide into three categories. As Blackstone explained in 1769, the first category was felo de se. This was a "peculiar species of felony, a felony committed on oneself". Blackstone continued: "The other species of criminal homicide is that of killing another man. But in this there are also degrees of guilt, which divide the offence into manslaughter, and murder." (emphasis in original) In the 1800 edition of his manuscript, Hale drew the same distinction. He wrote of the basic division between a felony "which concerns the loss of life happening to a man's self" and a felony concerned with the loss of life "happening to another". Hale explained that the first of these, involving a voluntary act, was felo de se (ie suicide). In the 1817 edition of Sir Edward Coke's Institutes, the distinction between self-killing and the killing of another was reiterated. Although using the looser language of "murder of a man's self" interchangeably with felo de se, it was plain that Sir Edward Coke treated self-killing separately from murder. However, in A History of the Criminal Law of England, Sir James Fitzjames Stephen sought to assimilate suicide and murder despite recognising the distinction in Sir Edward Coke's writing between the two offences. This was apparently for the rhetorical purpose of agitating for the exclusion of felo de se from homicides altogether. Nevertheless, even Stephen was forced to recognise differences between felo de se and murder. For instance, he contrasted accessories to suicide and accessories to murder when he said that the "abetment of suicide may, under circumstances, be as great a moral offence as the abetment of murder" (emphasis added) but that the abetment of suicide involves much less public danger than the abetment of murder. In 1824, in the eighth edition of Hawkins' A Treatise of the Pleas of the Crown, felonious homicide was again divided into the same three categories, separating self-killing and murder: "[(1)] felo de se, or felonious homicide of a man's self; [(2)] murder, which is the killing of another with malice aforethought, either express or implied; and [(3)] manslaughter, which is the killing of another without premeditation or malice aforethought." The same distinction was reflected in the results of the decided cases for two centuries. Almost without exception, arguments which attempted to treat felo de se as a type of murder, based on the inaccurate and loose language of "self-murder", were consistently rejected by the courts. In 1660, in R v Ward, the crime of felo de se was held not to be murder and therefore capable of being pardoned. The view which prevailed in that case was that "felo de se and murder are distinct things, and distinctly treated of by all authors". The same point was made in Tombes v Ethrington. In 1832, in R v Russell, the Crown argued that a prisoner could be tried as an accessory before the fact of "self-murder" where the self-killing was in the course of a felonious act. Nine judges of the Court held that although the prisoner was an accessory before the fact of the offence of felo de se, neither by the preceding common law nor under the 1826 statute, which conferred jurisdiction to try felonies committed abroad, could a person be tried as an accessory to murder where the killing was a self-killing. Tindal CJ observed that another statute, the Burial of Suicide Act 1823 (4 Geo IV c 52), had used the term "felo de se" rather than the word "murder" throughout, and that this confirmed that "'murder' means murder of another only". Again, in 1862 in R v Fretwell, the question arose whether a conviction for murder could be upheld where the prisoner had, at the deceased's request, procured a poison for her to attempt an abortion. The Chief Justice explained that it was not necessary to decide whether the deceased was felo de se. It was sufficient for the Court to conclude that the prisoner was not guilty of murder. It was not necessary for the Court to consider whether the prisoner could have been convicted of felo de se by a derivative liability for aiding and abetting. Conviction of felo de se was not a conviction for murder. Yet again, in 1862 in R v Burgess, the Court held that an attempt to commit suicide is not an offence within the terms of a statute creating the offence of an "attempt to commit murder". The issue arose by a case stated to determine whether the Court of Quarter Sessions had jurisdiction in a case of attempted self-killing. If the accused's attempt to kill herself were attempted murder within the statute then the Court of Quarter Sessions would have no jurisdiction. The Crown argued that the attempted self-killing was not attempted murder and that it remained only a common law misdemeanour within the jurisdiction of the Court of Quarter Sessions. The entirety of the Crown submissions by Poland (later Sir Harry Poland QC) were to the effect that the crime of felo de se is separate from murder. His submissions began with the assertion that these two crimes were treated separately in all the text books. He concluded his submissions with an aside that Sir John Jervis had said, in his A Practical Treatise on the Office and Duties of Coroners, that it was not necessary to use the word "murdravit" in an inquisition for suicide. In a further passage from that work, Sir John Jervis explained that although an inquisition for felo de se should conclude with the words "sic seipsum murdravit" (and so murdered himself), there had been inquisitions where these words had not been added, including the decision in Hales v Petit. The final submission by Poland about coronial inquests did not assist the Crown case. As Sir John Jervis had observed, and as the reporter of Toomes v Etherington expressed the point, the omission of the concluding words of "self-murder" in a coronial inquest was explicable because, unlike the killing of another person, there were no "different degrees subject to different punishments". This point was noticed by the Court during argument. In response to the submission concerning inquisitions by coroners, Pollock CB postulated that the absence of a reference to murder in an inquisition for suicide was because there was no offence of "self-manslaughter". To this, Williams J added that there are "no degrees in self-destruction" so that if "a man feloniously kill himself, it must be self-murder". His Honour also added that the presentment in Toomes v Etherington was equivalent to an allegation of self-murder. Poland, for the Crown, accepted this explanation of the lack of need for words of "murder" in coronial inquests but reiterated his principal submission by referring to a number of cases where felo de se was treated separately from murder. The Court reserved its decision for a week, indicating the importance of the issue. The reasons for decision of the five judges were delivered by Pollock CB. His Lordship concluded that an attempt to commit suicide was not an attempt to commit murder within the Offences against the Person Act 1861 (24 & 25 Vict c 100). However, like the submissions of Poland for the Crown, his Lordship's reasoning was not based upon a mere matter of statutory construction. He said: "[A]ttempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death. There is a vast difference between inflicting a wound on another and inflicting a wound on oneself with that intent." The distinction between these three different types of homicide, namely (i) self-killing; (ii) manslaughter (of another); and (iii) murder (of another), was therefore well known in 1883 when the progenitor to the Crimes Act was enacted. Although some cases were difficult to classify, the distinction was one which was constantly drawn. Two examples given in Hawkins' A Treatise of the Pleas of the Crown illustrate the careful distinction that was drawn between self-killing and murder in difficult cases. The first example was where one person "kills another upon [the other's] desire or command". The killing of another in these circumstances was treated as murder and "the person killed [was] not looked upon as a felo de se". In contrast, the second example was where one person induces another to buy a poison which they both drink with the intention of killing themselves. The purchaser of the poison does not die but, nevertheless, since he was not the inducer, the purchaser was not a murderer and the deceased was treated as a felo de se. In between these two examples was the difficult case where two people reached a joint agreement to commit suicide. If only one died, the agreement of the survivor was sometimes held to be sufficient to treat the survivor as having a derivative liability as "principal in the second degree". As we explain later, the derivative liability was not a primary liability. It was a derived liability for the crime committed by the person who was primarily liable. As we have explained, that crime could only have been felo de se even if, on occasion, it was loosely, and inaccurately, described as "self-murder". The categories were reiterated in Kenny's criminal law text in 1902. In that text Kenny again distinguished between, on the one hand, (i) felo de se, that is, "a suicide that takes place under such conditions as to be criminal", and, on the other hand, two other categories, being (ii) manslaughter, that is, "killing another person unlawfully, yet under conditions not so heinous as to render the act a murder", or (iii) murder, involving the killing of another person including with the "distinctive attribute" of malice aforethought. In relation to the killing of another which amounted to murder, the difficulty with the expression "malice aforethought" was that "malice" was misleading, and "aforethought" was false. The expression was an unfortunate description of six different species of mens rea which were sufficient to establish murder. Although the mens rea for murder, and particularly for felony murder, was amended in s 9 of the Criminal Law Amendment Act 1883 and s 18 of the Crimes Act, these sections remained concerned only with murder and manslaughter. They were not concerned with felo de se (self-killing). Other statutes, enacted at the same time, dealt with self-killing. The species of murder which was felony murder was controversial. As Kenny explained, "if a thief gives a man a push with intent to steal his watch, and the man falls to the ground and is killed by the fall − or if a man assaults a woman, with intent to ravish her, and she, having a weak heart, dies in the struggle − such a homicide would ... be murder". The 1883 Act preserved felony murder but confined it to capital offences or those punishable by life imprisonment. Although qualifying the common law, this was based upon a common law conception of murder. As explained by the two Draftsmen of the 1883 Act: "The accidental taking of life, by a person committing (or about to commit) a felony of any kind, is by the Common Law murder. Under the ninth section [later s 18] it will not amount to that crime, unless the felony was a capital one, or punishable by penal servitude for life." The terms of s 18 of the Crimes Act are not concerned with self-killing Section 18 of the Crimes Act provides as follows: "Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only." It would be a strong thing to hold that, under the common law in 1883 upon which this section was based, the appellant was guilty of murder when no case can be found which held that a person in the position of the appellant, ie a person whose accomplice unintentionally killed himself in the course of carrying out a joint criminal enterprise, was guilty of murder. Consistently with its origins in the common law, the text and context of s 18 also confirm that the concern of the section was not with the killing of oneself. First, when it was enacted s 18 was immediately followed by the penalty in s 19, which provided that the person who commits murder "shall be liable to suffer death". That plainly indicated that the "murder" the section was concerned with was the killing of another person. Secondly, the instance of murder involving "intent to kill or inflict grievous bodily harm upon some person" (emphasis added) contemplated that "some person" was some person other than the person causing the death. Indeed, on a literal reading of s 18(1) the "person" whose death is caused is differentiated from the "accused" and the "accomplice". The language in which s 18(1) is cast does not contemplate that the accomplice of the accused might be the person whose death was caused by the accused or the accomplice. Thirdly, s 18(2)(b) is an express acknowledgement that the punishment or forfeiture in relation to killing, other than by misfortune, is concerned with the killing, by murder or manslaughter, of "another". The short point is that the murder "taken to have been committed" and "[e]very other punishable homicide" taken to be manslaughter to which s 18 refers require the killing by one person of another. Section 18 is not concerned with the circumstance of a person who kills himself or herself intentionally. Nor is it concerned with a person who kills himself or herself accidentally. It follows that the offence of murder is not committed where a person kills himself or herself in an attempt to commit, or during or immediately after the commission of, a relevant crime. Nor is the offence of manslaughter committed when a person kills himself or herself in some other way. Section 18 did not create such new offences. Nor could the section be engaged, and such offences created, by attributing to another person an act which caused a self-killing. Attribution Our conclusion that s 18(1) was not engaged by an act of the deceased lighting the ring burner is sufficient to allow the appeal. However, we record our agreement with the assumption of the parties that the usual rules of attribution in criminal law, sometimes described as "joint enterprise liability", apply. On the assumption (which was not in dispute on this appeal) that those rules apply to s 18(1), an act done by one participant in the course of effecting a common criminal purpose, which was incidental to that purpose, can be attributed to the other participant under s 18 of the Crimes Act. This makes the act of the other participant an act for which the accused is personally responsible. In relation to murder, the attribution of an act causing personal responsibility for the other participant is, in summary terms, an "act of the accused" within the meaning of s 18(1)(a) although, plainly, attribution does not mean that the actual act is committed by the accused. In R v Surridge, Jordan CJ explained, in the context of felony murder, that where the act to be attributed is an act in the course of a common criminal purpose: "[I]t is necessary, in order that the person who is an accomplice only may be guilty of murder, that it should have been within the common purpose of both that ... a crime [punishable by imprisonment for life or for 25 years] should be committed, and the cause of the death must have been something done by the other in an attempt to commit or during or immediately after the commission of that ... crime." It is not necessary on this appeal to speculate about the different circumstances in which acts might fall within (so as to attribute), or outside (so as not to allow attribution), the scope of something done during the commission, or immediately after the commission, of a crime. It suffices to illustrate this point with an example based on the circumstances of this case. On the assumption that the deceased lit the ring burner, that act would have been an act within the scope of the commission of a crime. If the deceased's act of lighting the ring burner had led to an explosion which killed a child standing outside the house then the appellant could have been charged under s 18(1) with felony murder for the death of the child. It was within the common purpose of both the appellant and the deceased that the crime of manufacture of a large commercial quantity of methylamphetamine (punishable by imprisonment for life) should be committed, and the cause of the child's death was an act done by the deceased during the commission of that crime. There should not be anything surprising in the notion of attributing the acts of one person to others with a common criminal purpose where the person's acts are in the course of, or incidental to, carrying out a common criminal purpose. The same principle applies in civil cases, where, apart from cases of employment or agency, "to constitute joint tortfeasors two or more persons must act in concert in committing the tort". The important point is that it is the acts which are attributed from one person (the actor) to another who shares the common purpose and, by attribution, becomes personally responsible for the acts. It is not the liability of the actor which is attributed. Nor is it the actus reus of some notional crime without a mental element that might be committed by the actor. These points were established in the decision of the majority of this Court in Osland. In Osland, Mrs Osland and her son David were tried for the murder of Mr Osland. The prosecution case was that the blows causing death were struck by David but that Mrs Osland acted in concert with him. The jury convicted Mrs Osland but were unable to reach a verdict in relation to David. One question on the appeal was whether those verdicts were inconsistent. The majority of the High Court (McHugh, Kirby and Callinan JJ) held that they were not. As McHugh J (with whom Kirby J and Callinan J agreed on this point) explained, the liability of persons as accessories before the fact to murder (ie persons not present at the commission of the crime) was a form of derivative liability. So too was the liability derivative for persons who were "merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death". But where two or more persons act in concert then any liability is primary. The acts of one are attributed to the others because they reached an understanding or arrangement that together they would commit a crime and the acts were performed in furtherance of that understanding or arrangement. In Osland, McHugh J concluded that it was likely that the jury had found beyond reasonable doubt that Mrs Osland and David killed the deceased in accordance with a common understanding or arrangement but that one or more jurors were not satisfied that the Crown had negatived David's claim of justification based on self-defence. This meant that David's act was not proved to lack justification. It was not proved to be a criminal act. Nevertheless, the reason why the verdicts in Osland were not inconsistent was that it was David's acts which were attributed to Mrs Osland. David's acts did not need to be criminal acts. They did not even need to be wrongful. A critical passage of the reasoning of McHugh J was as follows: "It is more accurate to describe the person, who escapes liability in a concert case where the other person is convicted, as a non-responsible ... agent. No doubt there are cases where the person who does the harm‑causing act is innocent in a moral sense. For example, the accused may have induced a child of tender years to do the act which constitutes the actus reus of the crime, or imported drugs via an airline carrier. In that case, the agent is innocent of any wrong doing and the accused is regarded as a principal in the first degree. The acts of the innocent person are attributed to the accused who is guilty of the crime because the latter has the necessary mens rea. The fact that the innocent agent is not guilty of the crime is of no relevance." When McHugh J spoke of the child of tender years doing the act which "constitutes the actus reus of the crime" he was referring to the actus reus of the crime which was committed by the accused person, not some notional crime which might have been committed if the young child had been an adult. The same is true of the case which his Honour cited concerning the importation of drugs. Justice McHugh cited the decision in White v Ridley in the context of attribution based on acts in concert, although the rule of attribution in that case was that an agent's acts are attributable to a principal. However, the key point was that the acts were attributed although the airline agent was wholly innocent and committed no crime. As Gibbs J had said earlier, "it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender". This conclusion is also consistent with the discussion by McHugh J of a proposition of a majority of the Full Court of the Supreme Court of Victoria in R v Demirian. That case concerned a circumstance where a person accidentally killed himself by detonating a bomb in the course of commission of a crime with an accused accomplice. The accused was convicted of murder. That conviction was quashed by the Full Court. The proposition to which McHugh J referred was that even if the accused was present at the scene of the explosion and was acting in concert with the deceased, the accused could not have been convicted as a principal in the first degree (ie by attribution of acts). Justice McHugh said that on the facts of Demirian the proposition may be correct. The accused would not be guilty of murder by attribution of the act of the deceased person. But McHugh J rejected, as contrary to a long line of cases, the "general proposition" that those acting in concert at the scene of a crime were not principals in the first degree. The conclusion that joint enterprise liability involves attributing only the acts of the participants who share a common purpose is consistent with the controversial English decisions in Bourne, R v Austin, and R v Cogan. However, there is difficulty with some of the reasoning in those cases. The difficulty, not confined to the criminal law, arises due to a failure to separate clearly a liability which is primary, and a liability which is derivative. Liability which is primary can involve attribution of the acts of another. But the liability remains personal to the accused. Liability which is derivative depends upon attribution to the accused of the liability of another. If the other is not liable then the accused cannot be liable. In Bourne, a husband was found guilty of aiding and abetting his wife to commit buggery with a dog. On appeal to the Court of Criminal Appeal it was submitted that the husband could not commit an offence as an aider and abetter unless his wife was also guilty of an offence. It was submitted that the wife would have had a defence of duress and therefore did not commit an offence. The Court of Criminal Appeal dismissed the appeal without calling on the Crown. In brief reasons, the Court explained that even assuming that the wife had a defence of duress, the husband was liable as a principal in the second degree. The difficulty with this reasoning is that, as McHugh J noted in Osland, the liability of a principal in the second degree is derivative, not primary. The husband's guilt as a principal in the second degree required the wife to be guilty. As Glanville Williams observed: "The notion that, where the actus reus of felony is committed without mens rea, there is a felony for collateral purposes, is one without precedent in the long history of the criminal law." This conclusion does not mean that no offence was committed in Bourne. The husband could have been indicted as a principal on the basis, as explained by McHugh J in Osland, that the husband and wife were involved in a joint criminal enterprise. The acts of the wife were attributed to the husband. It did not matter if the wife was not liable for any crime, because it was not the liability that was attributed. Nor did it matter that the husband could not physically have performed the precise act of buggery, because the notion of attribution of an act does not involve a fiction that the act was undertaken by the husband. In company law, for example, it is never said that acts cannot be attributed to a company merely because the company cannot physically perform the acts itself. "To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company". The same explanation applies to R v Austin. In that case, the four appellants were convicted of assisting a father to take his child from the mother. They had planned and executed the taking of the child by the father. The Court of Appeal held that although the father had committed the offence of "child stealing" using force to take away the child, he could have claimed "a right to possession of the child", which would have excused him from commission of the offence under a proviso to s 56 of the Offences against the Person Act 1861. The Court of Appeal upheld the conviction of the appellants for aiding and abetting the commission of the offence even though the father had committed no offence. In Osland, McHugh J treated this case as one in which the appellants were principals in the first degree, that is, persons who were primarily liable for the forcible acts of "child stealing" committed by the father. On that basis, the father's excuse under the proviso was irrelevant. The decision in R v Cogan is also possibly explicable in these terms, although the reasoning in the case is again difficult to justify. In that case, Leak was charged with aiding and abetting Cogan to rape Leak's wife. The jury convicted Cogan of rape, and convicted Leak of aiding and abetting the rape. The jury also returned a special verdict that Cogan had believed that Leak's wife was consenting but had no reasonable grounds for that belief. Cogan's appeal against conviction was allowed and his conviction was quashed, based upon the decision of R v Morgan. Leak appealed on the basis that he could not be guilty of aiding and abetting Cogan since Cogan's conviction had been quashed. The Court of Appeal upheld Leak's conviction, saying that it "would be an affront to justice and to the common sense of ordinary folk" if a person could not be convicted of aiding and abetting an offence "merely because the person alleged to have been aided and abetted was not or could not be convicted". As Gaudron and Gummow JJ observed in Osland, the reasoning of the Court of Appeal in R v Cogan has been described as "demonstrably unsound" and "contrary to principle". It is, at least, difficult to understand how liability can be attributed for an offence which had not been proved. However, in Osland, McHugh J referred to the obiter dictum of the Court of Appeal in R v Cogan where the Court suggested that Leak could have been indicted as a principal offender. The basis for such an indictment would be the attribution of the acts of Cogan, rather than Cogan's liability, based upon a joint criminal enterprise. The Court of Appeal dismissed an objection to this view on the basis of the "presumption", then current in England, that a husband could not rape his wife. The Court of Appeal said that there "is no such presumption when a man procures a drunken friend to do the physical act for him". Whether or not this exception to the abhorrent fiction was correct, the obiter dictum rests upon the correct assumption that acts can be attributed even if the actor is not liable for any offence. In summary, the decision of the majority of this Court in Osland resolved much confusion that had existed in the context of the primary liability of an accused person based upon the attribution of acts done in the course of a joint criminal enterprise. That decision was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime. Conclusion The appeal should be allowed and orders made as proposed by Bell and Nettle JJ.