In constructive murder cases based on joint criminal enterprise, the principles of joint criminal enterprise apply to the foundational crime, not to the crime of murder itself. The relevant question is whether the act causing death was within the scope of the joint criminal enterprise, not whether death or injury was within the contemplation of the participants. The respondent's liability is direct, not derivative. The repeal of s 5 of the Crimes Act 1900 (NSW) does not affect the meaning of 'malicious' in s 18(2)(a), as Sch 11, cl 65 preserves the operation of s 5 for that purpose.
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