Australian criminal defence lawyers have wasted no time responding to February’s UK ruling overturning the common law rule in England and some other countries that deemed anyone engaged in a criminal enterprise liable for any crimes committed by their colleagues, no matter how serious, if they foresaw the mere possibility that the crime would occur. A challenge to Australia’s similar common law (left untouched by the English decision) is already before the High Court in Smith v the Queen, a South Australian matter that was referred for argument before an expanded High Court bench just a week before the UK judgment. Smith’s 20-page submissions, lodged last week, spend just two pages on the issue that was the subject of the referral (the role of intoxication in such cases, a matter already before the Court in an appeal by Smith’s co-defendant.) Rather, the balance was devoted to the following new question:

Should the doctrine known as “extended joint enterprise”, enunciated in McAuliffe v The Queen (1995) 183 CLR 108, be reconsidered and revised or abandoned, in light of the decision of the Supreme Court of the United Kingdom in R v Jogee [2016] 2 WLR 681?

Whether the High Court actually considers this question turns on multiple exercises of the Court’s discretion, including whether or not Smith can amend his earlier application for special leave to appeal, whether special leave will be granted and whether Smith can ask the Court to reconsider  its earlier rulings on this issue.

In many ways, this challenge resembles the Court’s current reconsideration of advocates’ immunity to negligence actions, another commonly criticised part of the common law.The last challenges to both doctrines came in 2006 and, given this year’s departure of Hayne J and Crennan J, no members of that earlier bench remain on the Court. Both rejections preceded later successful challenges in England. On the other hand, while the prospect of an eventual removal of advocates’ immunity has long been on the cards, a change in Australian complicity law would come as something of a shock to Australian state prosecutors (except in Victoria, where a statute recently abolished the doctrine in contention.) Moreover, while a change to negligence law may affect a few civil actions in progress or under appeal (as well as future insurance premiums), a change in complicity law would be significant in a large number of pending or ongoing prosecutions, not to mention a significant number of conviction appeals (and even the revisiting of much older sentences) brought by serving prisoners.

Such high stakes may deter the Court from changing the law, but also are likely to encourage the Court to speedily resolve the issue either way. An example of the urgency appears in a decision of the NSW Court of Criminal Appeal earlier this month, rejecting a request by a man convicted of murder to vacate a scheduled appeal hearing until the High Court resolves Smith’s challenge. The NSW Court refused, citing the lengthy delay such a course would require and the possibility that the High Court will find that Smith’s case is not a ‘suitable vehicle’ for the challenge, because of Smith’s earlier argument in South Australia (rejected by that state’s appeal court) that his jury was needlessly directed on the extended common law doctrine because it couldn’t have made any difference to his trial’s outcome. That same day, Tim Game SC (who is Smith’s new counsel) indicated to the High Court in another NSW (successful) application for special leave in a murder case:

There is a lurking other issue that I have not raised, which is that in another case, we are going to be asking the Court to reconsider McAuliffe because of the House of Lords [sic] decision – it does not directly arise in this case, but it kind of just sits there because of the way in which liability – it does not matter – – –
BELL J: It will not arise in this, will it?
MR GAME: No, it does not seem to. This case will be heard after that case, I assume.

Given that the matter lurks in so many serious criminal matters, it is surely inevitable that the Court will confront this issue at some point this year. Although the NSW court thought that Smith would be heard by the High Court in May, that month is now dominated by election matters.