The High Court has refused to overturn the controversial principle of extended joint criminal enterprise (EJCE) in the recent criminal case of Miller vs The Queen.
The Court had the chance to remove or at least amend the principle to fall in line with the recent UK case of R v Jogee, where it was heavily criticised for being “unfair” and departing from acceptable tests for criminal responsibility.
Complicity offences
The law has long recognised that you do not need to physically commit a crime to be convicted of it, provided your involvement is sufficiently linked to it.
A recent, Australian example of this is the case of Roger Rogerson and Glen McNamara, who were both jointly tried for the murder of Jamie Gao. The jury found the two former detectives guilty of murder without having to be satisfied beyond reasonable doubt as to which one actually committed the killing.
There are three ways that a person can be liable for another’s offence:
1. Accessorial Liability
This principle relates to those who assist the actual offender in carrying out a criminal act either before or after the it took place, but were not present during.
To be guilty, the ‘third party’ would need to intentionally assist or encourage the actual offender to commit the criminal act.
2. Joint Criminal Enterprise
This is where two or more persons agree to commit the same criminal conduct and are therefore equally responsible for that conduct.
So, if two people agree to carry out a murder and take steps towards the crime, it does not matter which one actually pulled the trigger.
3. Extended Joint Criminal Enterprise
This principle is the most controversial.
It means that if, during the course of joint criminal enterprise, one member commits an additional crime that was not agreed, other members may also be liable for that further crime.
The Australian case of McAuliffe v R found that the person who did not commit this ‘extra’ crime only needs to have “foresight of the possibility” that the offence could be committed.
A common situation is where a person agrees to be a lookout or driver during an armed robbery, and there is an agreement that no one will get hurt. Under the principle of EJCE, the lookout or driver could still be guilty of assault if someone is hurt, or murder if someone is killed, if, for example, they knew a dangerous weapon like a knife or gun was being carried by those who committed the additional crime.
R v Jogee: UK Supreme Court
In this English judgement, the Court found that the principle of EJCE was a mistaken reading of thee law, and entirely abolished it.
The Court found that actual intent is required to create guilt, and that only the ‘accessorial liability’ and ‘joint criminal enterprise’ principle create third party liability.
The Court held that there are only two questions that must be asked when determining the defendant’s guilt:
1. Did the defendant assist or encourage the commission of the crime? And, if so,
2. Did the defendant act with the requisite mental element of that offence?
Miller vs The Queen: High Court of Australia
The facts of this case were that four accused were involved in fight where one of them, Joshua Betts, fatally stabbed the deceased Clifford Hall.
The co-accused, Everard Miller, Wayne Smith and Johnas Presley, took part in the fight but gave evidence that they did not believe Betts would murder Hall.
They were all nevertheless found guilty of murder for their part, under the principle of ‘extended joint criminal enterprise’.
After considering the history of the doctrine, the majority of the High Court found that the decision in McAuliffe remains valid, and that EJCE continues to apply in Australia.
Justice Keane found that ECJE is a matter of public policy, specifically ‘general deterrence’ – and that the law needs to discourage people from acting in criminal groups and exposing others to danger.
General deterrence has indeed been the historical justification for EJCE. In R v Powell, for example, Lord Hutton noted the importance of general deterrence, saying,
“Considerations of public policy justify the principle… and which prevail over considerations of strict logic.”
The NSW Law Reform Commission Report 129 on Complicity also notes there are inevitable risks associated with engaging in joint criminal conduct, and that public policy requires individuals to be held responsible for arising harm.
Criticism of EJCE
Former High Court Justice Kirby argued in the case of Clayton that EJCE represents “a serious unprincipled departure from the basic rule” that criminal responsibility requires intention.
And while recognising the importance of general deterrence, the NSWLRC recommended changing the test for EJCE from foresight of a “possibility”, to either foresight of a “substantial risk” or a “foreseeable probability”; bringing it closer in line with other legal tests such as intention and recklessness.
Given the NSWLRC’s recommendation, and the extensive criticism of the principle, many were surprised and disappointed that the High Court did not change the doctrine at all.
The prevailing “foresight of possibility” test clearly departs from normal standards of criminal culpability, placing direct responsibility on co-participants who did not agree to the additional acts, had no intention to commit them and in fact did not commit them.
