Today, a 6-1 majority of the High Court upheld a 6-1 majority decision of the same court a decade ago to not revisit a unanimous decision of the same court 21 years ago, whose effect is eloquently described in Gageler J’s judgment as follows:
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? 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…. 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 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.
Whereas the Privy Council and the Supreme Court of the United Kingdom ruled that the ‘common law of late’ was a ‘wrong turn’, the High Court today disagreed.
The High Court’s decision in Miller v R; Smith v R; Presley v DPP  HCA 30 is consistent with the Court’s May decision on advocates’ immunity, where it likewise declined to revisit two earlier decisions despite a change of mind in the UK. As in May, the majority today highlighted the dangers of changing the common law:
Many prosecutions have been conducted on the law stated in it in the Australian common law jurisdictions… [I]t cannot be said that to depart from the law as it has been consistently stated and applied would not occasion inconvenience. Of course, were the law stated in McAuliffe to have led to injustice, any disruption occasioned by departing from it would not provide a good reason not to do so. However, here, as in Clayton, the submissions are in abstract form and do not identify decided cases in which it can be seen that extended joint criminal enterprise liability has occasioned injustice.
Interestingly, while the recent UK judgment discussed (at ) the High Court’s 1981 decision in Miller v R, upholding a man’s conviction for six murders solely based on his stated willingness to drive around another man who he ‘contemplated’ might kill others, today’s High Court decision continues a long-standing Australian tradition of never mentioning that ruling. Today’s majority did, however, rule that the common law of Australia does not extend to a defendants who fleetingly realise that a crime may occur and, in the case of the three defendants in today’s appeal, allowed their appeals because the South Australian courts’ examination of the merits of their verdicts was far too cursory.
In contrast to May’s decision on advocates’ immunity, Gageler J today refused to join his colleagues in upholding the previously stated law, noting that this case involves criminal liability.
The overruling would… raise the prospect of criticism of a court system which could proceed on an erroneous view of the common law for more than 20 years. Troubling as that consideration is, it cannot be decisive. The doctrine of extended joint criminal enterprise is neither deeply entrenched nor widely enmeshed within our legal system. The problem the doctrine has created is one of over-criminalisation. To excise it would do more to strengthen the common law than to weaken it. Where personal liberty is at stake, no less than where constitutional issues are in play, I have no doubt that it is better that this Court be “ultimately right” than that it be “persistently wrong”.
In 2007, Kirby J who similarly dissented a decade ago, observed that ‘[w]hatever doubts or hesitations existed earlier concerning the common law of Australia in this respect, the decision in Clayton has to be taken as settling the matter, at least for the present. It upholds the liability of secondary offenders in those jurisdictions of Australia where the common law applies.” Today’s decision surely settles the matter for the future too, although there are now only two jurisdictions where the common law still applies on this point. If change is ever to come in New South Wales and South Australia, it will have to come (as it did in Victoria in 2014) via those jurisdictions’ legislatures.