REGINA v LEW [2003] NSWSC 1073

New South Wales Supreme Court

CITATION : REGINA v LEW [2003] NSWSC 1073 revised - 21/11/2003 HEARING DATE(S) : 26/05/03-28/05/03, 2/06/03 - 5/06/03, 10/06/03-13/06/03, 16/06/03-20/06/03,21/07/03, 20/08/03 JUDGMENT DATE : 11 November 2003 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : Application to withdraw felony murder from the jury rejected

CATCHWORDS : Felony murder - elments - accused charged as accessory before fact - whether necessary to be present at time of offence - meaning of "with him" in s18(1)(1) of the Crimes Act 1900 - nature of foreseen possibility LEGISLATION CITED : s18(1)(a) Crimes Act 1900 CASES CITED : R v Sharah (1992) 30 NSWLR 292 Regina

PARTIES : v

Teck Lee Lew FILE NUMBER(S) : SC 70016/02 COUNSEL : Mr P Barrett (Crown) Mr M Higgins (Offender) SOLICITORS : Director of Public Prosecutions (Crown) Hartmann & Associates (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

ADAMS J

11 NOVEMBER 2003

70116/02 - REGINA v TECK LEE LEW

JUDGMENT 1 HIS HONOUR: The Crown case against Lew is that he was guilty of murder as an absent accomplice, aware that it was possible that the agreed plan to commit an armed robbery on Mr Stiffe, as manager of the hotel, might involve the infliction of grievous bodily harm but the Crown also relied on what is usually called felony murder. Conviction upon the second of these grounds was justified, the Crown submitted, if Lew knew that it was possible that the actual perpetrators (in particular, Lo) intended to take a lethal weapon to the proposed robbery; in the alternative, if all that he knew was that Lo intended to take a trolley pole, Lew was guilty of felony murder if he foresaw the use of the trolley pole for the purpose of hitting Mr Stiffe and the possible risk that he might suffer serious injury or a wound in the attempt to render him unconscious. 2 Under s18(1)(a) of the Crimes Act 1900 (NSW) "[m]urder shall be taken to have been committed where the act of the accused…causing the death charged was 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 twenty-five years". Mr Higgins, counsel for Lew, submitted that I should take the felony murder ground for conviction away from the jury, principally for the reason that the words "with him or her" in paragraph 18(1)(a) require physical presence of the accused with the principal offender at the time that the acts causing death occur. I ruled that I would not do so and would give my reasons later. These are those reasons. 3 Mr Higgins relied (in addition to the phrase itself) on R v Sharah (1992) 30 NSWLR 292. In that case the material facts were that two men, one Attard and the appellant Sharah, entered a shop to commit a robbery, Attard holding a loaded shotgun, the appellant took pay envelopes from a filing cabinet whilst Attard guarded the persons who were in the shop and, as they were leaving, a struggle occurred involving a member of the owners' family, during which the gun held by Attard discharged and he was fatally shot. A number of grounds on appeal were taken but, for obvious reasons, the particular point raised by Mr Higgins in this case did not arise. In dealing with other grounds of appeal, however, Carruthers J (with whom the other members of the Court agreed) approved the direction given at first instance in the following language at 299 (emphasis added) – "…The crime of murder is committed, as the definition says, where the act of the accused – here again it is the actual gunman's act which caused the death of the deceased – was done by him during or immediately after the commission by the accused of by some accomplice with him , of a crime punishable by penal servitude of twenty-five years or in an attempt by the accused or some accomplice with him to commit such a crime… [at 300] An accomplice for these purposes is an easily understood word. An accomplice is one who is also present at the time and who intentionally assists in committing a crime, or intentionally gives encouragement in the commission of that crime. The Crown says that both the accused and Attard committed the crime of robbery with arms. The Crown says that they were accomplices and that each was present at the time when the crime was committed and each encouraged the other to commit that crime by the fact of his presence and by his readiness to give to him aid, if required. There is, you may think, no doubt in the present case that they were accomplices in the usual sense of the word." 4 It is sufficient for me to say, I think, that I do not regard these observations, and the approval of them by the Court of Criminal Appeal, as supporting Mr Higgins' submission. The trial judge's directions, as they should have been, were focussed on the particular issues in the case and were not aimed at elucidating, let alone covering, the situation with which this case is concerned. 5 I consider that the word "accomplice" is meant in its ordinary English sense as (to quote the Australian Concise Oxford Dictionary) "partner in crime…confederate" and the preposition reflects the relationship, not any spatial conjunction. 6 Mr Higgins secondly submitted that the evidence did not permit the jury to conclude that Lew was an accessory to an offence carrying a sentence of life or twenty-five years' imprisonment. Mr Higgins conceded, as indeed was inevitable, that there was evidence (from Lo) which the jury could accept that Lew was aware that Lo intended to take to the robbery either a gun or a knife or both as well as a trolley pole with which to render Mr Stiffe unconscious. Other elements being established, it followed that Lew could be convicted of murder but this would be of what might conveniently be called "conventional murder" without the need to refer to the issues arising in felony murder. Accordingly, he argued, the jury would only come to consider the question of felony murder if it were not satisfied that Lew was aware of the possibility that Lo would take the gun or the knife. As a trolley pole was not a dangerous weapon within the meaning of the phrase defined in s4 of the Act, the circumstance of aggravation which makes an offender liable under s97(2) of the Act to imprisonment for twenty-five years did not apply and robbery using such a weapon rendered an offender liable only to imprisonment for twenty years. Mr Higgins also submitted that the qualifying offence could not be that provided for by s98 of the Act, since there was no evidence that would justify the conclusion that Lew had adverted to the possibility that Mr Stiffe might be wounded or suffer grievous bodily harm as a result of the use of the trolley pole or otherwise, let alone that there was any agreement that this should occur. 7 It is not disputed that Lew was aware that it was part of the plan that the robbers would use a trolley pole with which to strike Mr Stiffe in an endeavour to render him unconscious. It seems to me reasonably open that a jury could conclude – though, of course, it is very much a matter for them – that he contemplated the possibility that striking a blow or blows to the head sufficient to render the victim unconscious might well cause at least wounding within the meaning of s98. 8 Accordingly, I consider that Mr Higgins' application to withdraw felony murder from the jury should have been rejected and I did so. **********