The High Court has allowed three appeals against a decision of the South Australian Supreme Court on the extended joint criminal enterprise doctrine of complicity, in the context of a murder conviction. Miller and two others were convicted of murder through extended joint criminal enterprise for their involvement in a confrontation in which a fourth man, Betts, stabbed and killed one of the victims. The SASC rejected Miller’s arguments that the verdict was unsafe because the trial judge had erred in misdirecting the jury by leaving open extended joint criminal enterprise in relation to him and in failing to leave manslaughter in excessive self-defence open in MIller’s instance (see at [110]ff). A third argument, raised but not pursued in the lower courts, was the direction on intoxication (see at [125]), which now forms the basis of Miller’s appeal to the High Court. The appellants sought to argue that the unchallenged evidence of a pharmacologist on his state of intoxication, which suggested that his decision making and ability to foresee the consequences of certain decisions was significantly impaired, made it unreasonable to convict him on the basis of either joint criminal enterprise or extended joint criminal enterprise, because he was too intoxicated to be able to form the intention to murder or harm (or knowledge of Bett’s intentions) required for liability under this mode.

The Court unanimously allowed the appeal, with a majority (French CJ, Kiefel, Bell, Nettle and Gordon JJ, Keane J agreeing) holding that the current doctrine of extended joint criminal enterprise should remain in its current form, as stated in McAuliffe v The Queen [1995] HCA 37. The majority reaffirmed the decision of an earlier bench in Clayton v The Queen [2006] HCA 58 to not re-open and overrule McAuliffe, partly for the reason that the principles in McAuliffe formed part of the common law in other countries. While the Supreme Court of the United Kingdom recently held in R v Jogee [2016] UKSC 8 that the common law had taken ‘a wrong turn’ on extended joint criminal enterprise and declared the doctrine in that form no longer part of the common law of the UK, the majority here held that that decision made it appropriate to reopen McAuliffe, but held here that it still remained part of the common law of Australia. In coming to this conclusion, their Honours reiterated several conclusions in Clayton, noting that: in this appeal, as in Clayton, the submissions on whether the law in McAuliffe had led to injustice were abstract and did not identify specific decided cases where extended joint criminal enterprise has led to injustice (at [39]); that the application of the doctrine did not make criminal trials unduly complex; and that no change should be made to this law without thorough examination of the law of secondary liability for crimes generally (at [40]); and finally, that the matter is better left to State parliaments: Victoria has reformed the law, the New South Wales Law Reform Commission has considered the topic (without action from the NSW Parliament), while South Australia’s Parliament has not reformed it (at [42], see also [41]). Consequently, the majority concluded that it was not appropriate for the Court to abandon the doctrine and require proof of intention, as the UKSC did in Jogee, or confining McAuliffe to include a requirement of ‘foresight of probability of the commission of the incidental offence’ (at [43]).

Keane J agreed with the majority’s reasons and added several remarks on the questions of principle and policy raised by the divergence between Australia and the UK since Jogee. In particular, Keane J emphasised that far from denying or diminishing the importance of the link between moral culpability and criminal responsibility, the Australian position recognises that deliberate participation in a criminal enterprise with a foreseen risk of an incidental crime has a bearing on the moral culpability of each participant for that crime; an approach which is obscured (or whose ‘implications [are] ignored’) when the analysis of criminal responsibility starts from taking the person who committed the actus reus as the principal offender and the others merely complicit (at [137], and see [138]–[140]). Keane J also suggested that there was little reason why the person who commits the actus reus should bear a greater degree of moral culpability than the others who joined in the organisation of it (see at [141]–[144]). Finally, Keane J contended that the policy of exposing each participant in a joint criminal enterprise to punishment for the incidental crime if the participant actually foresees the risk is sound as a matter of policy: there is additional strength in numbers, members of groups tend to exhibit higher levels of moral disinhibition, and criminals who act in groups create foreseen additional risks of incidental crimes purely because they engage others as agents (see [145]–[148]).

While the appellants’ contentions that their trial miscarried because extended joint criminal enterprise was no longer good law in Australia failed, the majority allowed the appeal on the question of the Court of Criminal Appeal’s review of the evidence sustaining the verdicts, and remitted the matter to that court to determine whether the verdicts were unreasonable on the evidence (at [51]). In reviewing the evidence on whether intoxication may have prevented the appellants in fact foreseeing that one of the others might kill or inflict grievous bodily harm on another person, the CCA only referred to it summary of evidence and the prosecution’s case at trial, and did not consider the second altercation or the significance of the evidence of intoxication to its conclusion (see at [78]–[81]).

Gageler J dissented on the issue of whether to reopen and overrule McAuliffe, and would have allowed the appeal, quashed the convictions and ordered a new trial. His Honour noted that McAuliffe only disclosed one reason for following the earlier UK precendents, namely that extended joint criminal enterprise accorded with the general principle that a person intentionally assisting or encouraging the commission of a crime may be convicted of that crime (see [108]). While that general principle is correct, to Gageler J the problem is that this general principle does not explain why the secondary party should be liable for a crime that he or she ‘neither intentionally assisted nor encouraged’ (at [110]). For Gageler J, two unanswerable criticisms of McAuliffe arise: that making a party liable for a crime that he or she foresaw but did not intend disconnects criminal liability from moral culpability; and that making criminal liability of the secondary party turn on foresight, while for the primary party it turns on intention to commit the crime, causes an anomaly which demonstrates the incoherence of the doctrine (at [111]–[114], and see further discussion from [115]–[125]). Gageler J also concluded, contrary to the majority in Clayton, that McAuliffe can be reversed without considering the whole of the law on secondary liability because it is capable of discrete judicial reversal (at [126]) and that overruling McAuliffe would not pose a threat to stability: ‘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”‘: at [128].