News: Australian criminal law took a ‘wrong turn’, says UK’s top court

In a long-awaited and unusual joint judgment of two peak courts, the UK Supreme Court and the Privy Council, five judges yesterday ruled that the common law took a ‘wrong turn’ on the criminal law of complicity at least 19 years ago.The courts heard appeals by people convicted of murder after their partners in crimes –  respectively, an English domestic assault and a Jamaican taxi robbery –  instead stabbed the intended victims. At issue were rulings by the Privy Council in 1985 and the House of Lords in 1997, building on decisions by Australia’s High Court from 1980,  that such defendants could be convicted of murder if they were merely aware that their accomplices ‘might’ murder someone in the course of another crime. Yesterday’s unanimous judgment found that the twin decisions misunderstood the earlier authority, disregarded principle and, most disturbingly, ‘bring the striking anomaly of requiring a lower mental threshold for guilt in the case of the accessory’ – the accomplices’ awareness of the possibility of a murder -‘ than in the case of the principal’- the stabbers’ intent to cause serious harm. Accordingly, they overruled the 1985 and 1997 decisions, detailed a new narrower standard for liability and outlined ground rules for reviewing decades of potentially wrong convictions.

But yesterday’s ruling does not apply in Australia. Rather, its reach is confined to common law jurisdictions governed by the UK Supreme Court (England and Wales) or the Privy Council (including Jamaica.) The Privy Council ceased to hear Australian appeals in 1986 and, anyway, Australia’s High Court had long held that all overseas judgments are merely persuasive about the content of the ‘common law of Australia’. For Australians, yesterday’s ruling is merely another example, albeit an especially dramatic one, of how other nations’ common law has diverged from Australia’s. The divergence is partly at the level of criminal law theory, with the UK Supreme Court ‘ respectfully differ[ing] from the view of the Australian High Court, supported though it is by some distinguished academic opinion’ that the cases at issue represent ‘a separate form of secondary liability’ from other sorts of complicity. But the divergence is also on how the two courts develop the common law. In 2006, the High Court rejected a similar opportunity to declare that Australia’s law of complicity had taken a wrong turn, stating that any change  ‘is a task for legislatures and law reform commissions’. Yesterday, the UK Supreme Court firmly rejected that approach: ‘the doctrine of secondary liability is a common law doctrine… and, if it has been unduly widened by the courts, it is proper for the courts to correct the error’.

None of this means that yesterday’s ruling is irrelevant in Australia. Although it is not bound by UK decisions, the High Court typically pays them close attention. Indeed, the High Court relied on the 1985 Privy Council decision in 1995 to reach the same conclusion on the law of complicity that the House of Lords adopted in 1999. And one of the Court’s reasons for not changing the law of complicity in 2006 was that ‘[o]ther common law countries continue to apply generally similar principles’, with a footnote referencing both now-overruled UK decisions. As it happens, the High Court will soon hear three joint Australian appeals involving the same contentious doctrine. In addition, yesterday’s dramatic ruling will surely provide a further basis for Australia’s legislatures to reform the common law. Victoria’s Parliament did so in 2014, abolishing the common law and replacing it with a statutory formulation along the lines of the alternative doctrine rejected by the High Court in 2006.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

3 thoughts on “News: Australian criminal law took a ‘wrong turn’, says UK’s top court

  1. A press release from the English appellant’s lawyers provides some background to the UK judgment, including acknowledging ‘Professor Luke McNamara from the University of Wollongong whose 2014 paper identified the probability issues from an Australian perspective, which was an important part of this appeal’. The press release adds that ‘[i]nternationally it is vital that the errors created by joint enterprise are also corrected’ and concludes with a quote from Kirby J’s compelling dissent from the High Court’s 2006 refusal to similarly rethink complicity law.

  2. Very, very roughly (criminal law is not my area) this leaves Australia’s law sitting not as an outlier, but somewhere between the USA (where the vast majority of states still recognize felony murder) and the UK. In the US, the mental element is totally irrelevant (save for the mental element required for the underlying felony). Though the merger doctrine would, I think, limit felony murder charges where the victim dies after an assault. Hopefully someone far more au fait with US criminal law can weigh in.

  3. Hi Clare, Yes you’re right that US felony murder law (itself something of an outlier) is in many ways more extreme than Australian common law complicity, applying even when there is no mental element at all with respect to murder (as opposed to the surviving ‘awareness of possibility’ standard in NSW and South Australia.) I too am no expert on US criminal law, but I gather there are some tighter constraints on the doctrine when the death penalty is in play, somewhat akin to a ‘reckless indifference’ standard.(Very narrow forms of statutory felony murder survive in Australia,but the accompanying ‘felony’ must meet some tight characteristics.)
    Australian common law is however broader in some ways – it (like the abolished UK law) allowed extended secondary liability for all crimes, not just murder, and it may also extend to agreements that are non-criminal (at least, that seems to be what happened in 1980’s Miller.)

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