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.
The HCA majority’s reasons for not-reopening McAuliffe included the 2006 Court’s view that the common law doctrine had not made trials ‘unduly complex’. However, the other criminal law decision decided by the Court today, Sio v R, is something of a counter-example. In that case, the combination of common law complicity and NSW’s law on constructive murder resulted in two separate charges against the defendant (murder and armed robbery without wounding) having identical elements (specifically foresight that the accused’s accomplice would wound the victim), a point apparently missed by the trial judge (who left out that element from one charge), the jury (who convicted Sio of only the wounding charge) and the NSW Court of Criminal Appeal (who seemingly considered only a still lesser charge, armed robbery, that did not depend on extended joint criminal enterprise.) The result was that it took an extra year for the High Court to sort out the mess and there will now have to be a new trial. If this isn’t undue complexity, I don’t know what is.
One of the interesting aspects of the HCA majority decision in Miller, Smith and Presley is that is that it defends the current McAuliffe rules on extended JCE on the bases of principle, policy and practicality. The approach raises some interesting questions. For example, the majority suggest () that the moral culpability of a participant in a JCE who DOES NOT endorse the possible use of a weapon by another member of the group to commit a more serious crime, is the same as the moral culpability of a participant who DOES endorse the possible use of a weapon in that way. Certainly both are morally tainted, but surely the latter participant is more culpable? Further, the suggestion that the difficulties that can arise in proving who did what in a group crime situation are reason to give the prosecution the advantage of the McAuliffe ‘foresight of a possibility’ threshold () seems a departure from the High Court’s tradition of defending principles of mens rea and criminal responsibility against legislative and prosecutorial erosion (e.g. He Kaw Teh (1984), Crabbe (1985) and Giorgianni (1985).
In R. v Jogee and Ruddock v The Queen, the Supreme Court and the Board held that for centuries the English law of complicity required nothing less than intention. Two years ago the Supreme Court of the United States held the same. Notably, the US Supreme Court upheld Learned Hand’s canonical statement of the law complicity as requiring intention, and Learned Hand premised his interpretation of the law on ancient English authorities. (See Baker, Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law (2016) Law & Psychology Review, Vol. 40, at 1-133.) Lord Toulson and Lord Hughes held that the ancient and modern authorities right up until the decision in Chan Wing-Siu v The Queen, showed that the mental element in complicity was intention. It also has been held that there is no such thing as joint enterprise complicity, because the actus reus in all complicity has to be either an act of encouragement or an act of assistance and that this is expressly stated in section 8 Accessories and Abettors Act 1861, which was merely declaratory of the common law. (A point that I made in the 2015 edition of the Glanville Williams Textbook of Criminal Law at para. 17-069 et passim.
Recently, the High Court of Australia held that there was nothing unjust about joint enterprise complicity and that no encouragement or assistance need be present to establish liability for complicity and that mere recklessness is sufficient fault: Miller v R; Smith v R; Presley v DPP  HCA 30. The Australia decision suggests that common law is dead in that jurisdiction and that that Court now defers all interpretation issues to the legislator for legislative reform, instead of using its judicial power to interpret the common law as it evolves. The idea that the mental element might have been mere negligence in the time that Stephen was writing, seems a curt justification for holding that in Australia in the 21st century mere recklessness is the mental element for murder by constructive acting through a principal. If the High Court of Australia had bothered to engage with any of the contemporary literature, it would have discovered that Stephen in his own writings argued for intention as the mental element in complicity (See Baker, above 88 et seq.). After all, in the last 30 years the courts in both Britain and Australia have drawn a clear distinction between objective fault and subjective fault and between intention and recklessness. What’s more, the overwhelming trend has been to require intention for serious crimes such as murder. Furthermore, anyone can see that there is something unjust about requiring a lesser degree for fault from an assister and encourager than from a doer.
Following R v Jogee the mens rea for complicity liability is intention. D must intend to assist or encourage P with the ulterior intention that P use his or her assistance (or be encouraged by his or her encouragement) to perpetrate the anticipated target crime. In the law of complicity, foresight is evidence for inferring intention and nothing more. In other areas of the law, foresight/recklessness can be a substantive fault doctrine if the offence expressly provides for that degree of fault as an alternative to intention—but there is a major difference in substantive fault doctrines and maxims of evidence. In the law of complicity, foresight was only invoked as an evidential rule and R v Jogee has brought the law back into line with an ancient line of authorities. When I made these arguments in my monograph I drew on some very convincing early Australian authorities, which ironically helped to influence the decision in Britain, but not in Australia.
Notably in R v Jogee, the argument put forward by Ms Gerry (one of the lead barristers) was that the law should be returned to Johnson v. Youden. If one watches the video of oral argument being given in the UK Supreme Court one can see the Lords trying in vain to get Ms Gerry to distinguish knowledge from intention or at least to get her to accept that she was using knowledge as a synonym for intention, but she failed to pick up on the cues from the Lords and pushed forward with the argument that the issue was about knowledge of essential facts and Johnson v. Youden was the case that should be followed. The Supreme Court did not acknowledge this argument in its judgment and instead took a much bolder approach than the barristers appearing in that case anticipated. Instead, the Lords relied on the poaching cases, which support the interpretation that foresight was mere evidence of intention in common purpose complicity scenarios. More importantly, the Supreme Court held that assistance and encouragement was necessary in all cases to make out the actus reus for complicity.
I have argued for the last two years, in papers on SSRN, in the Glanville Williams Textbook of Criminal Law (London: Sweet & Maxwell, 2015) at para 17-069 and in several articles and a monograph that the way to return the law to requiring intention was to understand that foresight was used as a maxim of evidence in the old cases, not as a substantive fault doctrine. I also argued strongly against mere association being used as a substitute for actual encouragement and assistance, because the Act of 1861 clearly requires assistance or encouragement as the conduct element for complicity—and that act was merely declaratory of the common law.
The barristers and Lords in R v Jogee had a copy of the manuscript of my monograph and Lord Toulson has written in the foreword to that book: “I had a copy of the manuscript of this book [Reinterpreting Criminal Complicity and Incohate Participation Offences] when examining the issues raised in R v Jogee  UKSC 8, and it was helpful to me. Professor Baker’s arguments on the point, which was of central importance in that case, that foresight is evidence from which intention may be inferred, but no more than evidence, and that secondary liability for a criminal offence requires intent to encourage or assist its perpetration, were well researched and cogent. The same applies to his writing about the need for there to be actual assistance or encouragement, and about the nature of intent, which may be conditional. All in all, Professor Baker’s book is a valuable contribution to the understanding of an important and sometimes confusing part of the criminal law.”
In Britain, foresight of virtual certainty is required for inferring intention, but evidence of any degree of foresight might be relevant for ascertaining foresight of contingencies in the context of conditional intention. Hence, it does not matter that D only foresaw that there was a 10% chance that D and P might be interrupted by a security guard whilst jointly perpetrating a burglary, as long as D foresaw the virtually certain response from P upon that remote contingency arising (a security guard approaching them) was that P would use lethal force. It is the foresight of the virtually certain response to the contingency that allows a jury to infer that D intentionally encouraged P to act in the way that P did upon that contingency arising.
I doubt such an argument was put to the High Court of Australia and the short judgment in R v Jogee—which asserts more than argues the point that foresight was mere evidence of intention—on its own without extensive supporting arguments was unlikely to be persuasive.
In my monograph (see Chapter 2), which was written before R v Jogee went to appeal, I argued that in a case like R v Jogee that the result would be no different were the law to required intentional encouragement as opposed to reckless association, since there was amply evidence to support a finding that Jogee intended to encourage the principal in that case. Since the Supreme Court decision, Jogee has had a retrial and has been sent to prison for manslaughter based on the new interpretation of the law.
However, the problem with Jogee is that manslaughter cannot be a substitute to murder if intention is the fault element for complicity. In a forthcoming paper, that is available on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802127) I argue: “In this essay I shall examine when an alternative offence and also a lesser-included offence is available for an accessory. Particular reference will be made to the offences of manslaughter and murder. It shall be argued, that the decision in R. v Jogee and Ruddock v The Queen is wrong as far as it holds that an accessory can be liable for manslaughter when the principal has been convicted of murder, because it is necessary to prove that the accessory intended the principal to perpetrate the actus reus of the relevant offence with the requisite mens rea for that offence. In such a scenario the accessory does not intentionally assist or encourage the more serious offence (murder), so she cannot be derivatively liable for it, and the principal does not perpetrate the less serious offence (manslaughter), so there is no offence of manslaughter for the accessory’s liability to derive from. The accessory only attempts to assist or encourage the principal to engage in conduct that has the potential to form the conduct element of constructive manslaughter. Such a conviction would rest on a presumption of participation in a result crime, when no result was in fact caused by the non-perpetrated crime (manslaughter), but instead the result was caused by an alternative more serious crime (murder), which was in fact perpetrated. If the principal had done the actus reus that the accessory intended (i.e. unlawfully inflict a.b.h.), the victim most likely would not have been killed and it is pure speculation to suggest the victim could have been killed by a.b.h. as opposed to the act of grievous bodily harm (g.b.h.) or act of intentional killing, which in fact killed the victim. It shall be argued that in such cases it is best to prosecute the putative assister or encourager under sections 44 or 45 of the Serious Crime Act 2007, for attempting to assist or encourage a potential aggravated assault.”