THE DOCTRINE OF EXTENDED JOINT CRIMINAL ENTERPRISE: A 'WRONG TURN' IN AUSTRALIAN COMMON LAW.

• Date: 01 April 2018
• Author: Smartt, Timothy

Contents I Introduction II The Australian Law of Criminal Complicity before Johns A The Australian Law of Criminal Complicity before Johns B EJCE before Johns? 1 The 19th Century 2 The 20th Century III The (Very) Modern History of EJCE Liability A Johns B Miller (1980) C Chan Wing-Siu and Its Contemporaneous Interpretation D Professor Smith's Case Comment and Its Reception E Recognition in Australia F Post-McAuliffe Correction? IV The Theoretical Foundation of EJCE in Australia A The McAuliffe Theoretical Justification of EJCE 1 Encouragement? 2 Assistance? 3 Intentional Assistance or Encouragement? 4 Conclusion on the McAuliffe Theory B The Clayton Theoretical Justification of EJCE C Conclusion on EJCE's Theoretical Foundation V Criticisms of EJCE A Disjunction between Moral Culpability and Legal Responsibility B Practical Issues VI Conclusion I Introduction

The Australian history of the common law doctrine of extended joint criminal enterprise ('EJCE') is a short one. Its prequel was the High Court case of Johns v The Queen in 1980. (1) At issue in the case was what the High Court later described as the doctrine of joint criminal enterprise ('JCE'). (2) That doctrine stipulated, as it still does today, that if two or more people agree to commit one or more crimes, each will be criminally liable for the commission of all offences that fall within the scope of their agreement. (3) Five years after Johns, in 1985, the Privy Council in Chan Wing-Siu v The Queen relied on Johns to recognise a 'wider principle' of JCE. (4) Subsequent English cases took that wider principle to mean the extended JCE principle that still stands in Australia today. (5) Under this principle, if one party to a JCE, during the course of the enterprise, ventures beyond the common agreement and commits an offence foreign to that agreement, any party to the agreement who foresaw the possibility of commission of that offence and continued to participate in the enterprise will be criminally liable for that offence. (6) In 1995, the High Court in McAuliffe followed this line of English authorities and recognised the principle of EJCE. (7) From that point forth, the principle has formed part of Australian common law, receiving endorsements by the majority of the High Court in Gillard v The Queen (2003), (8) Clayton v The Queen (2006) (9) and, now, Miller v The Queen (2016). (10)

Subsequent judgments (11) and academic commentary (12) considering the doctrine have centred on this catena of cases. This emphasis is well founded; these authorities were pivotal to the development of EJCE as it stands in Australian common law today. A consequence of this focus, though, is the examination of the doctrine through an analytical prism capturing only 30 years of the history of Australian common law. To the extent that High Court judgments and commentary have widened this prism to consider pre-Johns antecedents of EJCE, the focus of the discussion is often on earlier English authorities. (13) As the UK Supreme Court recently demonstrated in its landmark decision in R v Jogee to eliminate EJCE liability from English common law, those earlier English authorities are critical to the debate over the doctrine, for they starkly illustrate the aberrance of the doctrine in light of the common law as a cohesive whole. (14) Thus, from an Australian perspective, the question arises as to whether the same can be said about the significant body of pre-1980 Australian common law that has thus far received little attention.

This article submits that it can. Not only do these overlooked Australian authorities create a more vivid picture of the novelty of EJCE than has hitherto emerged, they contextualise Johns. When Johns is read in light of what came before--cases from colonial courts through to cases a few years prior--and traced through to McAuliffe, the conclusion that arises is that the doctrine of EJCE may fairly be described as the product of erroneous interpretation of prior authorities. This conclusion has wider implications for the doctrine than merely illustrating that the doctrine's precedential foundation is unsound. From that anomalous development, this article will argue, sprang an equally unsound theoretical justification of EJCE in High Court jurisprudence, a theory based on a construct of those individuals liable under the EJCE doctrine as intentional aiders and abettors. (15) After critiquing this theory, and the updated theory propounded by the High Court in Clayton and Miller, this article then connects these broader theoretical issues to the more specific arguments that have been levelled against the doctrine. On that basis, this article concludes that the doctrine of EJCE should no longer form part of the common law governing the states without statutorily codified complicity rules, New South Wales and South Australia.

II The Australian Law of Criminal Complicity before Johns

To correctly interpret Johns and what followed, it is important to understand the Australian common law of criminal complicity as it stood at the time that the High Court decided Johns in 1980. Accordingly, this part of the article is divided into two sections. The first section provides an overview of the Australian common law of accessorial liability and JCE liability as at 1980. The second section then examines whether Australian common law recognised a doctrine of EJCE at any time before this point. In considering this question, this article travels back to the content of the JCE principle in the 19th-century common law of the Australian colonies, and charts its development throughout the 20th century until Johns.

A The Australian Law of Criminal Complicity before Johns

By 1980, the common law of accessorial liability divided felony offenders into three categories by reference to their role in the commission of a group crime. (16) A principal in the first degree referred to an individual who, with the requisite intent, committed some or all of the acts comprising the actus reus of an offence. (17) The distinction between a principal in the first and second degree was that the latter did not commit any actus reus element of an offence, but was present while it was committed and aided or abetted in some way. (18) That left the designation of an accessory before the fact, which referred to an individual who, while not present during the offence, counselled or procured its commission. (19) Of course, mere commission of the acts meant by 'aiding', 'abetting', 'counselling' and 'procuring' did not found criminal liability. Consistently with the criminal law's adoption of a subjective approach over the 20th century, (20) an accused was only criminally liable if he or she committed these acts with the requisite mens rea. Before Johns, the requisite mens rea was unclear. (21) From case to case, it undulated between knowledge of the facts constituting the offence, realisation of the possibility of those facts, and intent to facilitate the commission of the offence. (22) However, shortly after Johns, the High Court settled the issue in Giorgianni v The Queen. Accessorial liability 'require[d] intentional participation in a crime by lending assistance or encouragement' (23) and 'knowledge of the essential facts which constitute the offence'. (24) The consequence of this decision, then, was heightened consonance between complicity principles and the remainder of criminal law in terms of the typical mens rea precondition to criminal liability.

The doctrine of common purpose accompanied this set of principles. With the possible exception of the presence requirement, (25) the following statement captures the doctrine's content by 1980:

[I]f two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. (26) Whether in English common law this doctrine arose independently from the preceding set of principles is unclear. (27) Irrespective of its historical origin, though, the rule was enlivened by a subset of the conduct that triggered accessorial liability generally after Giorgianni. That is, the doctrine attributed criminal liability to those who subjectively harboured the same intention as other individuals to commit a crime (the mens rea) (28) and expressly or impliedly communicated agreement to work with others to give effect to that intention (the actus reus). (29) This proposition was recognised judicially in many Australian decisions, which applied the doctrine in its wider context of accessorial liability without treating it as a free-standing ground for complicity liability. (30) The only difference in result arising from application of the common purpose rule was the nature of liability incurred. Because the rule did not distinguish between primary and secondary offenders, all accused caught by the rule were fixed with direct responsibility for the relevant offence (as if they themselves had committed the crime), instead of being fixed with the derivative responsibility inherited by aiders, abettors, counsellors and procurers from complicity in another's crime. (31)

B EJCE before Johns?

From this framework of complicity principles arises the important question of whether Australian common law recognised EJCE liability at any time before Johns. To answer that question, this section begins with the 19th century common law governing the Australian colonies.

1 The 19th Century

The closest analogue to EJCE in the common law during this period was the precursor of the modern common purpose rule. The position was best summarised by...