Joint Criminal Enterprise

Sir Robin Cooke, Keith of Kinkel, Bridge of Harwich, Brandon of Oakbrook, Templeman LL

Chan Wing-Siu, Wong Kin-Shing and Tse Wai-Ming were tried jointly in the High Court of Hong Kong before Macdougall J. and a jury on an indictment containing two counts, namely (1) murder contrary to common law, in that on 3lst May 1980 at Kowloon they murdered Cheung Man-Kam; (2) wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap.212, in that on the same occasion they unlawfully and maliciously wounded Lam Pui-Yin with intent to do her grievous bodily harm. She was the wife of the deceased. The jury unanimously found all three accused guilty on both counts…

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In these circumstances one way in which the Crown case at the trial was put against all three accused, and on both counts, was that crimes of the type charged must have been contemplated by the accused as possible occurrences in the course of their joint venture. Both in the summing up and later in answer to questions from the jury regarding the necessary intent, Macdougall J. directed them to the effect that an accused was guilty on both counts if proved to have had in contemplation that a knife might be used on the occasion by one of his co-adventurers with the intention of inflicting serious bodily injury…

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In agreement with the courts in Hong Kong, Australia and New Zealand, their Lordships regard as wholly unacceptable any argument that would propose, as any part of the criteria of the guilt of an accomplice, whether on considering in advance the possibility of a crime of the kind in the event actually committed by his co-adventurers he thought that it was more than an even risk. The concession that the contingency in which the crime is committed need not itself be foreseen as more probable than not, while virtually inevitable in the light of the reasoning in Johns and the other cases, complicates the argument without improving it. What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic.

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The present was such a case. It was not necessary for the trial judge to say more on the subject than he did. He drew the jury's attention fully to the unsworn statements of each accused. He emphasised that if the jury were to conclude that it was reasonably possible that an accused had an intention less than the infliction of serious bodily injury on any occupant of the flat, or that he did not foresee that one of his colleagues was going to inflict injury of a serious bodily nature, then that accused did not have the necessary intent or foresight of consequences for murder. He told them that if Tse thought that the knives would be used to do no more than frighten the occupants, then he would be guilty not of murder but of manslaughter.

The Court (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ)

1. The appellants, Sean McAuliffe and David McAuliffe, are brothers. They were both convicted of the murder of a man named Rattanajaturathaporn, who was of Thai origin, on 20 July 1990. They were also convicted of different offences against a man named Sullivan committed at the same time as the murder: in the case of Sean McAuliffe the offence was robbery with striking and wounding and in the case of David McAuliffe the offence was malicious wounding with intent to do grievous bodily harm. Their appeals against conviction were rejected by the New South Wales Court of Criminal Appeal and they now appeal by special leave to this Court.

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9. The trial judge separately directed the jury in relation to common purpose in the case of each of the McAuliffe brothers. In the case of Sean McAuliffe he instructed them that to succeed the prosecution had to establish a common criminal enterprise on the part of the three youths to roll or rob someone. He directed the jury that the prosecution also had to establish that an act on the part of one or other of the youths which caused death was done with the intention of inflicting grievous bodily harm on the deceased. And, he said:

"Next, you must be satisfied beyond reasonable doubt that the accused (i.e. Sean McAuliffe) either shared that common intention of inflicting grievous bodily harm upon him or contemplated the intentional infliction of grievous bodily harm by one or other of them upon him was a possible incident in the common criminal enterprise."

In the case of David McAuliffe he made similar references to a common criminal enterprise and an intention to inflict grievous bodily harm and said:

"Then you must be satisfied that this accused, that is, David, either shared that common intention of inflicting grievous bodily harm on the deceased or contemplated that the intentional infliction of grievous bodily harm was a possible incident of the common criminal enterprise to belt whoever it was in this area."

10. In the context, those directions conveyed to the jury that, even if the common purpose of the three youths did not embrace the intentional infliction of grievous bodily harm, there was a sufficient intent on the part of either appellant for the purposes of murder if he contemplated the intentional infliction of grievous bodily harm by one of the other participants as a possible incident in the carrying out of their joint enterprise and continued to participate in that enterprise.

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12. The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

13. Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.

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19. In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.

20. For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention - that is, a common purpose - to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.

Gaudron and Gummow JJ (would dismiss the appeal)

1. Mrs Heather Osland and her son, David Albion, stood trial in the Supreme Court of Victoria charged with a single count of murder. They were charged that, on 30 July 1991, they murdered Frank Osland, Mrs Osland's husband and David Albion's step-father. The jury was unable to reach a verdict with respect to David Albion but convicted Mrs Osland of murder.

2. Mrs Osland appealed unsuccessfully to the Victorian Court of Appeal. By the time of her appeal, David Albion had been retried and acquitted. Mrs Osland now appeals to this Court. One aspect of her appeal relates to the failure of the jury to convict her son. On the prosecution case, it was he, alone, who struck the blow or blows that caused Mr Osland's death.

3. The prosecution case was that Mrs Osland and David Albion together planned to murder Mr Osland. It was put that, in furtherance of their plan, they dug a grave for their intended victim during the day of 30 July 1991. Later, on the evening of the same day and in furtherance of the plan alleged, Mrs Osland mixed sedatives in with Mr Osland's dinner in sufficient quantity to induce sleep within an hour. According to the prosecution case, David Albion carried the plan to finality after Mr Osland went to bed by fatally hitting him over the head with an iron pipe in the presence of Mrs Osland. And later, he and Mrs Osland buried Mr Osland in the grave they had earlier prepared.

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10. As already indicated, the prosecution case was that Heather Osland and David Albion were jointly responsible for Frank Osland's death. And in certain respects, their cases were conducted on the basis that, if one was responsible, the other was equally so. Thus, the trial judge instructed the jury that it did "not seem to be denied that it was the acts of the accused jointly that caused the death" of Frank Osland.

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12. Before turning to the detail of the inconsistency argument, it is convenient to note that, so far as concerns the actual killing of Frank Osland, the evidence against Mrs Osland and David Albion was substantially the same. With respect to self-defence and provocation, however, the evidence was different. Accordingly, the respondent contended that it must be taken that it was that difference that led the jury to convict Mrs Osland without reaching a verdict against her son. More precisely, it must be taken that the jury was satisfied that the prosecution had negatived provocation and self-defence in the case of Mrs Osland but could not decide if that was so in the case of David Albion. Thus, the question to be determined is whether, in those circumstances, the jury's conviction of Mrs Osland was inconsistent with its failure to convict David Albion.

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26. It was not necessary in any of the cases to which McGarvie and O'Bryan JJ referred in Demirian to decide whether the person present at the scene of the crime was guilty as principal or as accessory. And the cases in this area have to be read with an understanding that, as a result of provisions such as s 323 of the Crimes Act 1958 (Vic), it is rarely necessary to determine that question. Moreover, in Matusevich v The Queen, Gibbs J apparently proceeded on the basis that a person who is present when another commits a crime pursuant to a common design that they commit it together is guilty as principal not as accessory.

27. More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in McAuliffe v The Queen. Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied. The appellant's submissions on this aspect of the case proceeded upon a false basis.

28. In this case, the evidence clearly permitted of a finding that Mrs Osland and David Albion entered into an "understanding or arrangement that together" they would kill Mr Osland. It also permitted of a finding that Mrs Osland was present when Mr Osland was killed. Thus, the question to be determined is whether it was open to the jury to find that when he killed his step-father, David Albion was acting pursuant to an understanding or arrangement with his mother that, together, they would kill Frank Osland even though unable to decide whether he may have acted in self-defence or as a result of provocation.

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35. As already indicated, the jury's failure to convict David Albion is to be taken to have resulted from its inability to reach a decision whether or not the prosecution had negatived self-defence and provocation. Unless both were negatived, there was no basis on which the jury could determine that, in killing his step-father, David Albion was acting pursuant to an understanding or arrangement with his mother that, together, they would kill him. And only if it made that finding, could it convict Mrs Osland. It follows that the jury's failure to convict David Albion reveals a flaw in reasoning which requires that Mrs Osland's conviction be set aside.

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39. In point of principle, there is no difference between conspiracy and any other offence where criminal liability is said to attach by reason of an agreement to commit the crime, as distinct from participation in the actus reus of the offence. That being so, there is no necessary inconsistency between Mrs Osland's conviction, in the event of a further trial, and her son's acquittal. It follows that his acquittal provides no basis for the entry of a verdict of acquittal for Mrs Osland.

McHugh J (would dismiss the appeal)

67. At no stage before the case reached this Court was it suggested that Mrs Osland could not be convicted of murder unless the jury first found her son guilty of that crime or that the judge erred in failing to direct the jury to that effect. Counsel for Mrs Osland did not seek any such direction at the trial. Both the Crown and counsel for Mrs Osland conducted their cases on the basis that Mrs Osland could be convicted of murder even though her son was acquitted of both murder and manslaughter. That was because, at the trial, counsel for Mrs Osland accepted that the death of Frank Osland was the result of both accused acting in concert to kill him - notwithstanding that one or both of them may at the same time have been acting in self-defence or under provocation. That being so, her counsel, correctly in my opinion, accepted that Mrs Osland, who was present at the killing, was equally responsible for the act or acts of her son that brought about her husband's death and that her criminal liability was not dependent upon him being convicted. Each accused alleged that he or she had a justification for those acts - self-defence. It is clear that the jury rejected Mrs Osland's claimed justification. The most likely reason that the jury failed to agree in respect of her son was that one or more jurors were not satisfied that the Crown had negatived his claimed justification.

71. Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.

72. However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others.

73. In that case, his Honour directed the jury that "they are all equally guilty of that crime". But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law:

"[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert." (emphasis added)

So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in Tangye. The Court said:

"(1)        The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2)         A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3)         A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed". (emphasis added)

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79. The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence.

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93. Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.

Kirby J (would dismiss the appeal)

175. With every respect, there is an air of unreality about the appellant's argument. At no stage before the matter reached this Court did the appellant make the slightest suggestion disputing her active contribution to the acts causing the deceased's death…

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176. Against this explanation of the issues upon which the trial of the appellant was fought and the repeated and express denial that any contest was presented to the effect that the appellant's actions were not causative of the death of the deceased, it will be understood that the point upon which it is now suggested that the appellant's trial miscarried carries little forensic merit. But as the trial judge recognised, whatever the issues that counsel on behalf of the Crown and the accused defined as those upon which the jury's verdicts were invited, it remained the judge's duty accurately and adequately to explain the ingredients of the offence of murder of which the appellant was charged. Did his instruction fall short of that requirement?

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178. Taking into account the evidence that left it open to the jury in the appellant's trial to conclude that she was the leading participant who conceived, planned and actively participated in the killing of the deceased, there are many explanations for the jury's verdict in her case and their failure to agree on the verdict in the case of Mr Albion. A possible reason was a disagreement as to whether Mr Albion should be found guilty of murder or of manslaughter. This Court has no way of judging why the jury in Mr Albion's second trial acquitted him. It does not have the transcript of that trial. It cannot even begin to speculate on the reasons. At the first trial, there were significant differences in the evidence given by the appellant and her son as to the violent and intimidating conduct of the deceased towards them immediately before the killing. For all this Court knows, the second jury might have treated such evidence, if repeated, as justifying Mr Albion's conduct as self-defence in his case. We simply do not know. This Court should not cast doubt on the second jury's acquittal of Mr Albion. Apart from anything else, it is always possible that a jury may return a merciful verdict where a son acts to defend his mother against a perceived threat of violence. But the fact that a different jury acquitted Mr Albion cannot impugn the verdict of the jury that convicted the appellant. Neither in the directions given nor in the resulting verdicts is there justification for disturbing that conviction. In my view it should stand.

Callinan J (would dismiss the appeal)

203. A related submission was that the appellant's liability (if any) was derivative only: that unless the appellant's son, Mr Albion, who struck the fatal blow or blows was convicted of murder, the appellant, whose role was subsidiary because she did not strike the blow, could not be convicted of murder.

204. In my opinion, in a case of this kind, a case of actual participation in all phases of the crime it was not necessary nor is it necessary to resort to the shifting and often inconsistent decisions of other courts over the years in which the distinction between principals and accessories in various degrees has been drawn. The history of the distinctions is fully discussed in Smith's Modern Treatise on the Law of Criminal Complicity (1991). The distinctions generally owe their existence to technical and substantive differences with respect to modes of trial, jurisdiction, punishment and benefit of clergy, all matters of diminished or no importance in modern times. For more than a century, legislative attempts have been made to simplify the law in these areas. This Court should not reverse that process.

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221. No matter whether the section is to be taken as procedural or substantive, (a matter which it is not necessary to decide), there is no modern need for any difference in the test to determine the liability of a participant (as a principal in the first degree if that nomenclature still be appropriate) from that provided by Brennan J and McHugh J in Royall v The Queen. Their Honours adopted a test of sufficient significant contribution. In the present case the contribution of the appellant consisted of the preparation of the grave, the planning of the killing with the son, the choice of a curry which would disguise the drug, the drugging of the husband's food, the encouragement of him to eat it, the discussion with her son concerning the choice of weapon, her presence at the precise time and place of his slaying, the holding of the deceased, and the planning of each of, his burial, the concealment of his grave and the disposal of his car.

222. Having regard to these features of the evidence, most of them ultimately uncontested, the appellant was plainly and directly, and in material ways, closely implicated in the killing of her husband. She made a significant contribution to that killing. In her evidence in chief she expressly adopted the contents of her third interview with police officers. It may therefore perhaps be taken as the best version for the appellant of these events. It was certainly evidence on which the jury could act. Yet even on this version the appellant admitted that, whether a preconceived plan [to kill Mr Osland] would be carried out on the evening of his death depended on her husband's mood when he came home: that they [she and Mr Albion] agreed to get a bar (a bat being rejected as being not substantial enough for their purposes); that she ground up the sleep inducing tablets and mixed them in the curry she had prepared; and that when Mr Osland fell asleep she held him down, either while her son struck and killed the victim or immediately after he had struck the deceased. All of these facts involved the appellant sufficiently directly and significantly in the cause of Mr Osland's death.

Gleeson CJ and Callinan J (would allow the Defendant’s appeal)

1. The appellant, and a co-accused Gerald David Preston, were convicted of the murder of two men and the attempted murder of another. The appellant contends that the trial judge failed to leave manslaughter to the jury as a possible verdict in relation to each of the two men who were killed, and that this constituted a wrong decision on a question of law. That contention (which was rejected by the Full Court of the Supreme Court of South Australia) is supported by the respondent. The difference between the parties to the appeal is whether the case is a proper one for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA)…

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3. The prosecution case, accepted by the jury, was that Preston, a man of well-known violent propensities, was hired to kill Knowles. There was evidence that Knowles was the subject of police investigations in relation to drug dealing. He conducted a car repair workshop. There was evidence that he kept large amounts of cash there. The prosecution alleged that a man named Tognolini, and/or a group named the Hells Angels, wanted Knowles killed, and agreed to pay Preston to kill him. The appellant had a long association with Preston, but in a subservient role. The prosecutor put to Preston in cross-examination that the appellant was his "errand boy". There was evidence that the appellant had a history of psychological problems and alcoholism. Preston told the police that the appellant was "thick and simple".

4. At Preston's request, the appellant stole a van, and used it to drive Preston to the repair shop. Also at Preston's request, shortly before the pair arrived at the repair shop, the appellant made a telephone call to the shop to check that Knowles was there. Both men were disguised. Preston was armed with a loaded gun. He walked from the van into the repair shop, shot and killed Knowles and another man, and fired at a third. He then rejoined the appellant in the van and they drove off together. The appellant later destroyed the van.

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8. The robbery hypothesis was evidently taken seriously by the jury. They asked questions directed to the possibility that Preston was carrying out a contract killing, but the appellant believed he was carrying out a robbery. Ultimately, they took several days to consider their verdict. The trial judge directed the jury that, in order to convict the appellant, the prosecution had to prove that Preston and the appellant shared a common purpose to kill Knowles, and had to exclude as a reasonable possibility that the appellant was acting with the purpose of participating in robbery.

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15. It is established that, consistently with the principles stated in McAuliffe (or statutory provisions to similar effect), where death results from a joint enterprise involving violence, and the level of violence contemplated by one participant exceeds that contemplated by another, one may be guilty of murder and the other guilty of manslaughter. Gilbert was such a case. Examples from various jurisdictions were examined in R v Barlow.

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20. A question that arose was whether the death of Knowles was causally related to an act for which the appellant was criminally responsible. The act causing his death was the presentation and discharge of the weapon by Preston. The issue is whether, and to what extent, the appellant was criminally responsible for that act. The resolution of that issue depends upon the scope of the common criminal design, and the foresight of the appellant.

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23. We agree with that approach. The present case illustrates the artificiality of a distinction, in the circumstances under consideration, based upon when an intention to kill was formed by a primary offender. The appellant stole a van and used it to deliver Preston to Knowles' premises, having first checked to make sure that Knowles was present. On the assumed facts, he knew that Preston was armed with a loaded gun. He waited outside the premises to assist Preston to escape. Preston shot Knowles with intent to kill. There is no reason why the existence and degree of the responsibility of the appellant for the killing of Knowles should depend upon whether Preston decided to kill him on the spur of the moment, or shortly before they arrived at the premises, or whether that was his intention from the time when he arranged for the appellant to assist him.

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25. The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender's murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.

Gummow J (would allow the Defendant’s appeal)

31. I agree with the statement by Hayne J of the principles respecting joint criminal enterprise and with what his Honour says as to the formulation and application of those principles by the Full Court. I agree also with what Hayne J says under the heading "Reconsideration of McAuliffe neither sought nor required".

Kirby J (would allow the Defendant’s appeal)

86. Conclusion and concurrence: In the result, I have reached a conclusion similar to that stated in the joint reasons of Gleeson CJ and Callinan J. The appellant has therefore made out an error of law on the part of the Full Court. That Court was mistaken in refusing to uphold the submission that the trial judge had erred in rejecting the argument of the prosecution that he should leave to the jury the availability of finding the appellant not guilty of murder but guilty of manslaughter.

87. In this Court, the prosecution correctly accepted that, if there were misdirections on the availability of verdicts of manslaughter on the first two counts, the absence of any specific error of direction in relation to the third count could not alone save the trial or the conviction on that count.

Pending further clarification of the law of joint liability for homicide on the basis of the doctrine of common purpose, to the extent that there is uncertainty, and in order to give a clear rule for application at trials, I agree in the reasons of Gleeson CJ and Callinan J.

Hayne J (would allow the Defendant’s appeal)

108. The Full Court's conclusion, that a verdict finding the appellant guilty of manslaughter was not available on the facts of the case, depended upon the application to those facts of the principles about criminal complicity. Those principles, as the Full Court recognised, were considered by this Court in McAuliffe v The Queen. It is as well to restate them.

109. As was pointed out in McAuliffe, the terms "common purpose", "common design", "concert", "joint criminal enterprise" are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others.

110. In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission.

111. The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. "[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose". The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose. And "[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement".

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113. In his reasons, Kirby J suggests that there may be a need to re-express the law relating to complicity. Neither party to the present appeal suggested that this should be done. Both accepted that the principles to be applied are those stated in McAuliffe. No need to re-express the law relating to complicity has been shown. Intermediate and trial courts must continue to apply McAuliffe.

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115. The common law in Australia, both before and after McAuliffe, did not, and now does not, confine the liability of participants in a joint criminal enterprise to liability for those offences which it is shown that the parties have agreed will be committed. And as the reasons in McAuliffe reveal, that is not a uniquely Australian view. It is the position at which the Privy Council arrived in Chan Wing-Sui v The Queen and Hui Chi-ming v The Queen and at which the English Court of Appeal arrived in R v Hyde.

Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ (would dismiss the appeal)

1. The applicants were presented for trial in the Supreme Court of Victoria on a single presentment alleging two counts against each: a count alleging the murder of Steven John Borg and a count of intentionally causing serious injury to Paula Michelle Rodwell. Each was convicted on both counts. Each sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria against the convictions. The applications for leave to appeal against conviction on the second count (of intentionally causing serious injury) were allowed and a new trial ordered on that count. Each application for leave to appeal against the conviction for murder was dismissed.

2. The applicants sought special leave to appeal to this Court on a number of grounds. In so far as each applicant sought special leave to appeal on grounds which, in effect, invited the Court to reconsider its decisions in McAuliffe v The Queen and Gillard v The Queen, the applications for special leave were referred for argument, as on an appeal, before the whole Court. In so far as the applications sought special leave to appeal on other grounds, they were dismissed.

3. At the conclusion of oral argument on the grounds inviting reconsideration of McAuliffe and Gillard, the Court announced that the invitation to reconsider those cases was declined and ordered that each application for special leave be dismissed. It follows that intermediate and trial courts must continue to apply the principles established by those decisions. It also follows that it is neither necessary nor desirable to attempt to elaborate or explain those principles in any way. Nothing that is said in these reasons should be understood as doing so. Rather, what follows are our reasons for joining in declining to reconsider those cases and for making the orders that were made.

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11. The prosecution's case at trial was that, although it could not identify which of the applicants inflicted the fatal stab wound, each was guilty of murder. This contention was put in three ways. First, it was said that the killing occurred in the course of the applicants' implementation of a plan to cause really serious injury to the deceased. That is, the prosecution alleged that each applicant had participated in a joint enterprise. Alternatively, the prosecution argued that each applicant was guilty of murder because each had agreed to assault the deceased using weapons, and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted on the victim by one of them in the course of their carrying out the agreed assault. It is this second way of putting the case ("extended common purpose") that engaged the principles described in McAuliffe and Gillard. Finally, the prosecution argued that the two applicants who did not inflict the fatal wound had aided and abetted the person who did, by intentionally helping, encouraging or conveying their assent to that person in his or her commission of the murder. This third contention depended upon principles of accessorial liability.

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17. A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder.

Kirby J (would allow the appeal)

31. Three applicants asked this Court to grant special leave to permit the simplification, rationalisation and re-expression of the Australian common law principles governing accessorial liability on the basis of an extended common purpose on the part of secondary offenders. The challenge has been anticipated for a time because of the injustice, asymmetry and complexity of the present law. It is a field "uncertain and controversial" and "notoriously difficult" that suffers from "incongruent principles" with consequent injustice.

32. In my view, the applications were entitled to succeed. The applicants should have been afforded relief. In his dissenting opinion in the Supreme Court of the United States in Bowers v Hardwick, since overruled by Lawrence v Texas, Blackmun J, in another legal context, stated:

"The Court's cramped reading of the issue before it makes for a short opinion, but it does little to make for a persuasive one."

33. Respectfully, that is my conclusion in the present case. Upon a full analysis of the detailed arguments of the parties, the applicants have made out their contentions. Special leave to appeal should have been granted. The appeals should have been allowed.

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94. The test adopted by the common law to constitute what is, in effect, the subjective element in crimes established by extended common purpose liability, falls short of obliging proof of actual intent. All that is required is that the relevant outcome must be foreseen by the accessory as a possibility. The applicants argued that this step forward did not go far enough. It exposes a secondary offender to liability of conviction of murder upon proof by the prosecution of nothing more than foresight of the possibility of homicide. In my view, there is force in the applicants' submission that many juries are likely to conclude that the fact that a murder has occurred shows that it was possible that it would. And if it was possible in fact, it is but a small step to conclude that the secondary offender foresaw, as a possibility, at least that in effecting the common purpose, the victim might suffer really serious harm with intent from the act of the principal offender.

95. It follows that this form of secondary liability is disproportionately broad. It tilts the scales too heavily in favour of the prosecution.

96. It is also the experience of the criminal law that subordinate offenders, who become involved in common criminal enterprises, are sometimes weak, impressionable, vulnerable individuals whose will is insufficient to resist the unexpected, violent acts perpetrated by a ring-leader. Such was certainly the case of Mr Gillard, who looked up to the principal offender as the "ringmaster" of their joint enterprise. Such was also the case of Mr English, who succeeded before the House of Lords where the other appellant, Mr Powell, failed.

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120. Conclusion: re-expression required: It follows from these considerations that I would accede to the applicants' submissions. This Court should re-express the principle of the common law concerning extended common purpose liability in Australia for criminal acts done by others. The present applications afford a proper opportunity to do so.

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125. It is for this reason that I prefer the formulation proposed by Professor Smith. In the place of telling the jury, relevantly, that they might convict a secondary offender for a crime actually committed by another in the course of a common enterprise if it was proved that that offender participated or continued to participate in the enterprise aware that it was possible that another participant might commit murder, the judge would explain the need for the jury to be sure that the secondary offender either wanted the principal offender to act as he or she did, with the intention which he or she had, or knew that it was virtually certain that the principal offender would do so.

The court (French CJ, Crennan, Kiefel, Bell and Gageler JJ)

1. Tuan Kiet David Huynh ("Huynh"), Chansyna Duong ("Duong") and Rotha Sem ("Sem") were each convicted of the murder of Thea Kheav at a joint trial in the Supreme Court of South Australia (Kourakis J and a jury). Each is serving a term of life imprisonment subject to a non-parole period of 20 years consequent upon that conviction. Appeals against their convictions were dismissed by the Full Court of the South Australian Supreme Court (Doyle CJ, Vanstone and Peek JJ). On 7 September 2012, Huynh was granted special leave to appeal on two overlapping grounds. Following the grant of that leave, Duong and Sem applied for special leave to appeal on the same two grounds. Their applications were referred to a Full Court on the basis that they would be argued as on appeal at the same time as the hearing of Huynh's appeal. For the reasons to be given, Duong and Sem should be given special leave to appeal but all three appeals should be dismissed. In the balance of these reasons, Duong and Sem will be referred to as appellants.

2. At the time of his death, Thea Kheav was attending an 18th birthday party held at a family home in suburban Adelaide ("the Vartue Street premises"). He died as the result of a stab wound that was inflicted in the course of an assault carried out by a number of persons. His assailants were part of a larger group that had arrived at the Vartue Street premises following an hostile incident at the party involving Sem.

3. There was some evidence that Duong stabbed the deceased. However, the prosecution did not limit its case to proof that Duong was the principal offender. The prosecution case against each appellant was put alternatively in ways that did not depend upon proving the identity of the principal offender. One of these ways required the prosecution to prove that the appellant was a party to an agreement with others, including the principal offender, to kill or to inflict really serious bodily injury on a person or persons at the Vartue Street premises, and that while that agreement was on foot the principal offender stabbed the deceased intending thereby to kill or to do really serious bodily harm to him. Liability on this case depended on the doctrine variously described as "common purpose", "concert" or "joint criminal enterprise".

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34. As a matter of legal analysis, there were differing paths to fixing the appellants with liability for the act of the principal offender. Liability might be as an accessory at the fact aiding and abetting or as parties to a joint enterprise. In the way joint enterprise to murder was left, each path depended upon proof of knowledge of the knife or similar bladed weapon (or contemplation of the possible use of such a weapon by a person possessed of a murderous intention). The critical question in either of the ways that liability was left turned on the capacity of the evidence in each case to prove that knowledge. There was evidence from which an inference of concert was open. If the jury were not persuaded in each case that the appellant had come to an understanding respecting the intentional infliction of really serious bodily harm with the use of a knife or similar bladed weapon (or, in the case of an understanding that a person or persons would be assaulted, that he contemplated the use of such a weapon by a party having the requisite intention) it is not apparent how, acting reasonably, the jury might have been affirmatively persuaded that the appellant possessed the knowledge necessary for accessorial liability. One way of reducing the length and complexity of the directions on the law would have been to raise with the prosecutor the utility of leaving the accessorial case before the commencement of the addresses.

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37. The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that "one plays a part at its most simple by joining into the agreement". That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.

38. A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. The unchallenged evidence was that each appellant was one of a larger number of persons who had travelled from Duong's house to the Vartue Street premises. No nice question arises in these appeals of the sufficiency of the evidence to prove participation in the enterprise. If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement.

Lord Hughes And Lord Toulson (with whom Lord Neuberger, Lady Hale and Lord Thomas agreed)

1. In the language of the criminal law a person who assists or encourages another to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal. The reason is not difficult to see. He shares the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encouraged or assisted those physical acts. Similarly he shares the culpability precisely because he encouraged or assisted the offence. No one doubts that if the principal and the accessory are together engaged on, for example, an armed robbery of a bank, the accessory who keeps guard outside is as guilty of the robbery as the principal who enters with a shotgun and extracts the money from the staff by threat of violence. Nor does anyone doubt that the same principle can apply where, as sometimes happens, the accessory is nowhere near the scene of the crime. The accessory who funded the bank robbery or provided the gun for the purpose is as guilty as those who are at the scene. Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that he participated in the crime either as one or as the other. These basic principles are long established and uncontroversial.

2. In the last 20 years a new term has entered the lexicon of criminal lawyers: parasitic accessory liability. The expression was coined by Professor Sir John Smith in a lecture later published in the Law Quarterly Review (Criminal liability of accessories: law and law reform [1997] 113 LQR 453). He used the expression to

describe a doctrine which had been laid down by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168 and developed in later cases, including most importantly the decision of the House of Lords in R v Powell and R v English [1999] 1 AC 1. In Chan Wing-Siu it was held that if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it.

3. The appellants Jogee and Ruddock were each convicted of murder after directions to the jury in which the trial judges sought to apply the principle deriving from Chan Wing-Siu. In these appeals the court has been asked to review the doctrine of parasitic accessory liability and to hold that the court took a wrong turn in Chan Wing-Siu and the cases which have followed it. It is argued by the appellants that the doctrine is based on a flawed reading of earlier authorities and questionable policy arguments. The respondents dispute those propositions and argue that even if the court were now persuaded that the courts took a wrong turn, it should be a matter for legislatures to decide whether to make any change, since the law as laid down in Chan Wing-Siu has been in place in England and Wales and in other common law jurisdictions including Jamaica for 30 years. The two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee of the Privy Council, were heard together.

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8. The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1.

9. Subject to the question whether a different rule applies to cases of parasitic accessory liability, the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal: National Coal Board v Gamble [1959] 1 QB 11, applied for example in Attorney General v Able [1984] QB 795, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Director of Public Prosecutions for Northern Ireland v Maxwell [1978] 1 WLR 1350 per Lord Lowry at 1374G-1375E, approved in the House of Lords at 1356A; 1358F; 1359E; 1362H and echoed also at 1361D.

10. If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. D2’s intention to assist D1 to commit the offence, and to act with whatever mental element is required of D1, will often be co-extensive on the facts with an intention by D2 that that offence be committed. Where that is so, it will be seen that many of the cases discuss D2’s mental element simply in terms of intention to commit the offence. But there can be cases where D2 gives intentional assistance or encouragement to D1 to commit an offence and to act with the mental element required of him, but without D2 having a positive intent that the particular offence will be committed. That may be so, for example, where at the time that encouragement is given it remains uncertain what D1 might do; an arms supplier might be such a case

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62. From our review of the authorities, there is no doubt that the Privy Council laid down a new principle in Chan Wing-Siu when it held that if two people set out to commit an offence (crime A), and in the course of it one of them commits another offence (crime B), the second person is guilty as an accessory to crime B if he foresaw it as a possibility, but did not necessarily intend it. We have referred (at paras 31-33 and 39-45) to the authorities on which the Privy Council placed reliance in laying down that principle: Davies v Director of Public Prosecutions, R v Anderson and R v Morris, Johns v The Queen and Miller v The Queen.

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76. We respectfully differ from the view of the Australian High Court, supported though it is by some distinguished academic opinion, that there is any occasion for a separate form of secondary liability such as was formulated in Chan Wing-Siu. As there formulated, and as argued by the Crown in these cases, the suggested foundation is the contribution made by D2 to crime B by continued participation in crime A with foresight of the possibility of crime B. We prefer the view expressed by the Court of Appeal in Mendez, at para 17, and by textbook writers including Smith and Hogan’s Criminal Law, 14th ed (2015), p 260 that there is no reason why ordinary principles of secondary liability should not be of general application.

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78. As we have explained, secondary liability does not require the existence of an agreement between D1 and D2. Where, however, it exists, such agreement is by its nature a form of encouragement and in most cases will also involve acts of assistance. The long established principle that where parties agree to carry out a criminal venture, each is liable for acts to which they have expressly or impliedly given their assent is an example of the intention to assist which is inherent in the making of the agreement. Similarly, where people come together without agreement, often spontaneously, to commit an offence together, the giving of intentional support by words or deeds, including by supportive presence, is sufficient to attract secondary liability on ordinary principles. We repeat that secondary liability includes cases of agreement between principal and secondary party, but it is not limited to them.

79. It will be apparent from what we have said that we do not consider that the Chan Wing-Siu principle can be supported, except on the basis that it has been decided and followed at the highest level. In plain terms, our analysis leads us to the conclusion that the introduction of the principle was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments. We recognise the significance of reversing a statement of principle which has been made and followed by the Privy Council and the House of Lords on a number of occasions. We consider that it is right to do so for several reasons.

French CJ, Kiefel, Bell, Nettle and Gordon JJ (would not overturn McAuliffe, but allowed the appeal on another basis)

1. In this matter, the Court is asked to review the doctrine of complicity in the criminal law known as "extended common purpose" or "extended joint criminal enterprise" enunciated in McAuliffe v The Queen and abandon or confine it. Although of general application, the doctrine is commonly invoked, as here, as a means of establishing the secondary offender's liability for murder. In this context, the doctrine holds that a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.

2. The doctrine has been criticised for being inconsistent with the principles of accessorial liability and for being incongruous in light of the mental element of reckless murder. More generally, the criticism is of "over-criminalising": attaching criminal liability to the secondary offender in circumstances in which his or her moral culpability is suggested not to justify that liability. These criticisms were invoked in support of an application to re-open and overrule McAuliffe in Clayton v The Queen. By majority, the Court declined to do so. Among the majority's reasons for that refusal was the observation that principles consistent with McAuliffe form part of the common law in other countries. These principles are commonly traced to the decision of the Privy Council in Chan Wing-Siu v The Queen. Recently, the Supreme Court of the United Kingdom and the Privy Council in R v Jogee; Ruddock v The Queen ("Jogee") held that the common law took a "wrong turn" in Chan Wing-Siu and that there is no place for extended joint criminal enterprise liability in the law. Jogee makes it appropriate to reconsider McAuliffe; however, for the reasons to be given, the principle of extended joint criminal enterprise liability stated in McAuliffe should remain part of the common law of Australia.

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4. The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus. Each party is also guilty of any other crime ("the incidental crime") committed by a co-venturer that is within the scope of the agreement ("joint criminal enterprise" liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ("extended joint criminal enterprise" liability).

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28. The question raised in McAuliffe, which was not explicitly raised in Chan Wing-Siu, was whether it was necessary for there to be mutual contemplation of the commission of the incidental crime. It was common ground in McAuliffe that three youths had agreed to bash a person or persons in a park. All three were convicted of the murder of a man whom they had set upon. The jury was directed that the accused whose case it was considering would be guilty of murder if he shared the common intention, with the accused who did the act causing death, of inflicting grievous bodily harm or if he "contemplated that the intentional infliction of grievous bodily harm was a possible incident of the common criminal enterprise". The emphasised part of the direction was the subject of challenge on appeal. The McAuliffe brothers' case on appeal was that joint criminal enterprise liability required the prosecution to prove a shared contemplation that grievous bodily harm might intentionally be inflicted as a possible incident of the agreement to assault.

29. The Court observed that the challenged direction conveyed to the jury that, even if the criminal enterprise embarked upon by the three youths did not embrace the intentional infliction of grievous bodily harm, there was "a sufficient intent" for murder if the accused contemplated the intentional infliction of grievous bodily harm by one of them as a possible incident in carrying out their agreement and, with that awareness, the accused continued to participate in the enterprise. The accused was as much a party to the incidental crime as when its commission was within the common purpose. Participation in the joint criminal enterprise, with the requisite awareness, was not relevantly distinct from an understanding or arrangement that included foresight of the intentional infliction of grievous bodily harm.

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43. In light of this history, it is not appropriate for this Court to now decide to abandon extended joint criminal enterprise liability and require, in the case of joint criminal enterprise liability, proof of intention in line with Jogee. For the same reasons, it is not appropriate to depart from McAuliffe by substituting a requirement of foresight of the probability of the commission of the incidental offence. As Johns explains, the difficulty with such a requirement is that it "stakes everything on the probability or improbability of an act, admittedly contemplated, occurring". This is not to accept the submission that since "anything is possible", the secondary party may bear liability for a crime contemplated by him or her as no more than a fanciful possibility.

Gageler J (would overturn McAuliffe and allow the appeal)

85. There is a real question as to whether accessorial liability and joint criminal enterprise liability are distinct in concept, and in particular as to whether joint criminal enterprise liability is anything more than a subcategory of accessorial liability. The question has been debated academically and conflicting answers have been suggested judicially. The question has not previously arisen for definitive resolution in this Court and does not arise for definitive resolution now.

86. Accessorial liability and joint criminal enterprise liability overlap in practice. Procedural and substantive differences attaching to different subcategories of accessorial liability have long been abrogated by statutory provisions in the form of s 267 of the Criminal Law Consolidation Act 1935 (SA). With the abrogation of those differences, where accessorial liability and joint criminal enterprise liability have overlapped in practice there has seldom been seen to be any practical need to distinguish between them.

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88. Take, then, a simple case. Three men set out to rob a bank. They adopt a simple plan. One of them, the driver, is to wait in the car. The other two are to enter the bank. One is to wave a gun. The other is to put the money in a bag. The two who enter the bank encounter a security guard. The gunman shoots him and he dies. Who of the three is liable for murder?

89. The traditional answer of the common law is that the criminal liability of each depends on the intention of each. The gunman is liable for murder if he shot the security guard intending to cause death or grievous harm. If the gunman is liable for murder, the bagman (who might in earlier times have been described as an accessory at the fact) and driver (who might in earlier times have been described as an accessory before the fact) are also liable for murder if they intended that the gunman would shoot with intention to cause death or grievous harm. Their intention need not have been absolute; it need only have been contingent. They may have hoped to get away with robbing the bank without anyone getting hurt. They need only have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan – if worst came to worst.

90. But what if shooting to kill or cause grievous harm was never part of the plan? The gunman went too far. The gun was not meant to be loaded. The gun was meant only to frighten. The common law's traditional answer has been that the bagman and driver cannot be liable for a criminal act of the gunman that they never intended to occur.

91. The common law has of late given a different answer. The bagman and driver need not have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan to rob the bank. It is enough for them to be liable for murder that they foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm and that they participated in the plan to rob the bank with that foresight.

92. The distinction between intention and foresight as a basis for imposing criminal liability, in this instance for murder, might seem a fine one where the group is three men, the weapon is a gun, and the plan is to take coordinated action to rob a bank. The distinction comes into sharp relief where the group is an indeterminate number of youths, the weapon is a knife or a baseball bat, and the plan is an evolving tacit agreement to assault or to engage in an affray. One of the group is more prone to violence. He goes further than the rest. He stabs or hits with intent to kill or cause grievous harm and someone dies. Other members of the group may never have intended things to turn out that way. Each member of the group is nevertheless liable for murder if he foresaw the possibility that the one more prone to violence would go beyond the plan and would stab or hit with intent to kill or cause grievous harm.

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107. If the common law of Australia is now to be returned to the path it was on before McAuliffe, the only justification could be that the return is compelled by principle. Consideration of principle must examine the reason for following Chan Wing-Siu and R v Hyde stated by all five members of the Court more than 20 years ago in McAuliffe. Consideration of principle must also grapple with the reasons for not reopening McAuliffe given by six members of the Court nearly 10 years ago in Clayton. One of the reasons given in Clayton for not reopening McAuliffe was that other countries continued to apply a similar doctrine. That reason has been overtaken by Jogee and Ruddock. Other reasons have not.

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111. Of the numerous criticisms of the extension of criminal liability ushered in by Chan Wing-Siu and R v Hyde which are to be found in Jogee and Ruddock and in the formidable dissent of Kirby J in Clayton, two predominate. The first is that making a party liable for a crime which that party foresaw but did not intend disconnects criminal liability from moral culpability. The second is that making the criminal liability of the secondary party turn on foresight when the criminal liability of a principal party turns on intention creates an anomaly.

112. To my mind, those two criticisms are unanswerable. The first is fundamental, and the second is related to the first. The anomaly demonstrates incoherence in the imposition of criminal liability. The incoherence in turn highlights the disconnection between criminal liability and moral culpability.

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119. To hold a secondary party liable for a crime committed by a primary party which the secondary party foresaw but did not intend does not measure up against the informing principle of the common law "that there should be a close correlation between moral culpability and legal responsibility". In the language of King CJ, who stood against the introduction of the doctrine of extended joint criminal enterprise into the common law of Australia during the period after Chan Wing-Siu and before McAuliffe, the doctrine results in "the unjust conviction of persons of crimes of which they could not be said, in any true sense, to be guilty".

120. The fundamental problem that the doctrine fails to align criminal liability with moral culpability was not, to my mind, answered by the majority in Clayton in the suggestion that "criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight" or in the observation that a primary party as well as a secondary party can be liable for murder without intending that a victim be killed. Neither the suggestion nor the observation explains how it is consistent with justice and principle that a secondary party is criminally liable for acting merely with foresight of the possibility of the primary party acting with intent.

Keane J (would not overturn McAuliffe, but allowed the appeal on another basis)

...

131. I agree that the applications for special leave should be granted and the appeals should be allowed for the reasons given by French CJ, Kiefel, Bell, Nettle and Gordon JJ. I also agree with their Honours' reasons for concluding that the common law in Australia should not be altered by the rejection of the principle of criminal responsibility associated with the doctrine known as extended joint criminal enterprise. I wish to add some brief observations upon the issues of principle and policy exposed by the divergence of approach which has emerged between this Court and the Supreme Court of the United Kingdom following its decision in R v Jogee.

Bathurst CJ

1. The applicant, Athol Allan Howard Dickson, was charged on indictment with five offences relating to a number of thefts which occurred in Sylvania Waters on the morning of the 14 August 2013. Although there were a number of other individuals said to be co-offenders of the applicant, he was tried alone.

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3. It was not in issue at the trial that there were break and enters or that the property the subject of each of the counts was in fact stolen. Nor was it in issue that there were people present in the houses at the time the relevant offences took place. However, the Crown did not have any witnesses who observed the applicant or any of his alleged co-offenders break and enter into any of the houses nor steal any of the property the subject of the offences. Rather, the Crown case largely rested upon a series of intercepted phone calls taking place from the afternoon of the 13 August 2013 and concluding on 29 August 2013. The Crown also relied on expert evidence in respect of mobile phone tower data tending to show that the applicant travelled to Sylvania Waters on the night of the 13 August 2013 and remained in that area until the early morning of 14 August 2013.

4. The Crown case was that there was a joint criminal enterprise between the applicant, persons named Jamie Nagle and QF (who was a juvenile at the time) and a further unidentified male. The nature of the enterprise was described as being to travel to the Sylvania Waters area, break into houses and steal property and to sell the stolen property and divide the proceeds.

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41. It is well-established that a person will not be liable for a crime committed by another as a result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement. To be liable the person concerned must participate in the commission of the offence.

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45. Each of the authorities to which I have referred emphasised the need for the party to the joint criminal enterprise to participate in the enterprise whilst stating that presence at the time the crime was committed is sufficient to demonstrate such participation: Osland supra at [72]-[73]; Huynh supra at [38]. The issue is whether presence at the time of the commission of the offence is necessary for a person to be liable under the doctrine.

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47. In my opinion a person can be liable under the principle if it can be shown that he or she entered into an agreement or understanding to commit a crime and (to adopt the words in Huynh supra at [37]) participated in some way in furthering its execution. Whilst presence at the actual commission of the crime is sufficient, it is not necessary if the person sought to be made liable participated in some other way in the furtherance of the enterprise.

Johnson J

99. I have had the advantage of considering, in draft, the judgment of the Chief Justice. I agree with the reasons and proposed orders of the Chief Justice.

Fullerton J

100. I agree with Bathurst CJ.

Kiefel CJ, Keane and Edelman JJ (would allow the appeal and restore the verdict of acquittal)

1. 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).

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3. 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.

4. 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)).

5. 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 18of the Crimes Act. The Crown relied upon rules of attribution commonly known as "joint enterprise liability".

6. 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.

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40. 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.

Bell and Nettle JJ (would allow the appeal and restore the verdict of acquittal)

42. The appellant was tried in the Supreme Court of New South Wales on one count of manufacturing a large commercial quantity of a prohibited drug, namely 6.7 kilograms of methylamphetamine (Count 1); one count of murder (Count 2a); in the alternative, one count of unlawfully causing the death of Zhi Min Lan ("the deceased") (Count 2b); and four offences relating to the unlawful possession of firearms. The Crown alleged that the appellant committed the offence charged by Count 1 by participating with the deceased in a joint criminal enterprise to manufacture the methylamphetamine. In relation to Counts 2a and 2b, the Crown alleged that, although the evidence could not exclude the possibility that the deceased was killed accidently as a result of his own act, the appellant was guilty of his murder, or alternatively manslaughter, pursuant to s 18(1) of the Crimes Act 1900 (NSW) by reason that the act which caused the deceased's death was committed in the course of the joint criminal enterprise to manufacture the methylamphetamine, an offence punishable by imprisonment for life, and was therefore an act of the appellant as a participant in that enterprise.

43. At the conclusion of the Crown case, the trial judge (Hamill J) directed the jury to acquit the appellant of Counts 2a and 2b. On appeal by the Crown pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001(NSW), the Court of Criminal Appeal (Simpson JA, R A Hulme and Bellew JJ agreeing) held that the directed verdicts of acquittal should be quashed and that there should be a new trial on those counts.

44. The question for decision in this appeal is whether the trial judge was correct to direct the jury to acquit the appellant of the counts of murder and manslaughter charged by Counts 2a and 2b. For the reasons which follow, the question should be answered affirmatively and the appeal should be allowed.

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64. In this matter, it is apparent that the Court of Criminal Appeal proceeded on the basis that the doctrine of joint criminal enterprise liability renders an accused liable for all acts within the scope of the enterprise committed by a co-participant in the course of carrying out the enterprise, whether or not those acts amount to a crime. Hence, as Simpson JA reasoned…

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65. With respect, however, that is not so. Although it is not infrequently, and in a sense not inaccurately, stated in the authorities that a participant in a joint criminal enterprise is criminally liable for acts committed by a co-participant in the course of carrying out the enterprise, a careful examination of those authorities shows that such references are invariably to acts that are identified, expressly or by necessary implication, as comprising the actus reus of a crime. And logically it could not be otherwise, given, as has been seen, that the essence of joint criminal enterprise liability is that two or more participants in a joint criminal enterprise who between them do all the things that are necessary to constitute a crime are equally liable for the acts which constitute the actus reus of that crime. Thus, by definition, joint criminal enterprise liability is limited to participation in acts constituting the actus reus of a crime and has nothing to say about liability for acts which are not the actus reus of a crime or are incapable of constituting the actus reus of a crime.

66. Of course, that does not mean that the liability of one participant for the actus reus of a crime committed by another participant in the course of carrying out their joint criminal enterprise is derivative of the other participant's liability for committing the act constituting the offence. As was established in Osland v The Queen, the liability of each participant in a joint criminal enterprise for acts committed in the course of the enterprise is direct, primary liability. Rather, the foregoing observations emphasise that the purpose of the doctrine of joint criminal enterprise liability in this respect is, and is only, to attribute liability for crimes incidental to the enterprise. For that reason, it is not open under the doctrine of joint criminal enterprise liability to attribute criminal liability to one participant in a joint criminal enterprise for an act committed by another participant in the course of carrying out the enterprise unless the act is or is part of the actus reus of a crime.

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80. Accordingly, assuming it were the deceased's act of lighting the gas ring burner which caused the deceased's death, that act was not the actus reus of a crime of murder or manslaughter; or, to put it another way, the deceased and the appellant did not do between them all the things necessary to constitute a crime of murder or manslaughter. It follows that the appellant could not properly be considered liable for the deceased's death pursuant to the doctrine of joint criminal enterprise liability. It would have been a very different case, however, if a third party had been killed.

Gageler J (would dismiss the appeal)

103. The nature and extent of the criminal responsibility attributed by operation of the common law doctrine of joint criminal enterprise has long been obscure, but was squarely addressed in Osland v The Queen. On my understanding of the reasoning of the majority in that case, the effect of the operation of the doctrine is to attribute to the accused primary (as distinct from derivative) criminal responsibility for the physical act of the accomplice, and to do so whether or not the act of the accomplice was one which the accused was physically capable of performing and whether or not the act of the accomplice amounted to an element of a crime committed by the accomplice.

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122. Clear enough is that suicide within the meaning of s 31A does not encompass the killing of one person by another person. Before 1983, there was no reason why an act attributed to an accused which caused the unintentional death of an accomplice with the accused in the foundational crime did not result in the accused becoming the constructive murderer of the accomplice in the same way as the accused would have become a constructive murderer if the same act had caused the unintentional death of a third person. Since 1983, nothing has changed.

123. For these reasons, I am unable to agree with Kiefel CJ, Keane and Edelman JJ that the appeal in relation to constructive murder can be allowed on the basis that Lan's lighting of the ring burner resulted only in the death of Lan.

Gordon J (would dismiss the appeal)

149. For the constructive murder limb of s 18(1)(a), where it is established that the accused was a party to a joint criminal enterprise to commit an offence capable of being a foundational offence, the accused is responsible for the acts of the other party to the agreement that were done in carrying out that enterprise. An act of the other party done in those circumstances can be "the act of the accused" for the purpose of s 18(1)(a).

150. It follows that, if the act of the other party causes the death charged and the act is done in an attempt to commit, or during or immediately after the commission of, the foundational offence, then the accused will be liable for constructive murder. As Jordan CJ correctly explained in Surridge, nothing more is required.

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152. Distinguishing between an act and the actus reus of a crime is not useful when considering the application of s 18(1)(a). Introducing a distinction of that kind departs from the statutory words used in the provision. It is a departure because introducing a distinction of that kind necessarily attributes a different meaning to the phrase "the act of the accused ... causing the death charged" for the purpose of constructive murder from the meaning of the phrase for the purpose of the first category of murder. On that approach, it is not doubted that for the first category, the acts of the parties to a joint criminal enterprise that, between them, comprise the actus reus of an offence within the scope of the agreement can be relied on to establish murder. But the same approach leads to the result that, for the second category, the acts of the parties to a joint criminal enterprise that, between them, comprise the actus reus of an offence within the scope of the agreement and which is a foundational offence cannot be relied on to establish constructive murder. There is no basis for that distinction and one has not been identified.