Joint Criminal Enterprise: Balancing Public Protection and Offender Rights
The concept of joint criminal enterprise (‘JCE’) has posed certain problems for the Australian jurisdiction, especially regarding its extension offence, extended joint criminal enterprise (‘ECJE’). Whilst the recent UK case R v Jogee (2016) abolished ECJE due to a lack of physical culpability on the part of the other participants, ECJE’s position in Australia seems to be safe due to the verdict in Miller v The Queen.
JCE comes under the broad category of ‘complicity’, which can extend liability for
an act beyond the direct perpetrator of the crime.’ It is defined as where two
or more persons agreed to commit a criminal act, and where they are held equally liable
This principle can be extended into the definition of ECJE: where one member of the group commits an additional crime, and other members are liable for that act. McAuliffe v R (1995) 183 CLR 108 (McAuliffe) found that the person who was not directly involved in the extra act need only have ‘foresight’ of the possibility’ that it would occur. It is ECJE which poses controversy, because it may render a participant liable without the necessary element of actus reus.
In NSW, the principles of JCE are currently governed by the common law. Because it is not codified in statute, this causes issues regarding consistency of application as well as accessibility of the law.
At common law, a basic JCE can exist where two or more people agree to commit a particular offence as defined in McAuliffe. The offence does not have to be proved against the principle participant. The Crown must prove:
- The accused was present when the JCE was conceived; and
- The accused was assisting the principal participant.
For the public, the law on JCE can be accessed in a number of ways. The most accessible statement of JCE can be found on the NSW Legal Aid website. Legal Aid notes that young offenders are mostly at risk of being charged with this offence. This is a worrying fact because young offenders constitute a vulnerable group, and the lack of a codified law may increase the disparity between them and the Crown. The Judicial Commission Benchbook consolidates the common law position on JCE, and provides a helpful suggested direction when explaining the concept of JCE.
Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA)
 HCA 30 (24 August 2016)
Unlike Jogee, the majority in Miller did not repeal the concept of EJCE and unanimously allowed the appeal. Miller concerned a case where the group of appellants and a fourth person, Joshua Betts, were involved in an altercation, and the fourth person stabbed the deceased, Clifford Hall. Following this, the appellants Miller, Smith, and Presley were tried alongside Betts for the charge of murder. The question facing the court was whether ECJE was a proper basis for the conviction of murder. In their determination, their Honours highlighted that where crime put innocent citizens at risk, it was not good policy to decrease the culpability of those who organise crime, knowing that there is a foreseeable risk of another criminal act occurring.
Law Reform Recommendations
While JCE itself poses issues due to the lack of any codified law on the offence, EJCE can pose the most controversy because it renders an accused morally culpable without reference to the actus reus (physical act.) The NSW Law Reform Commission’s 2010 report ‘Complicity’ recommended the implementation of a statutory provision encompassing the principles of JCE. However, the Report acknowledged that there were public policy and deterrence reasons for retaining the principle of ECJE. Certainly Keane J’s judgement in Miller highlights that in a group setting, criminal activity may escalate beyond what was planned, which could be perceived as foreseeable.
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McAuliffe v The Queen (1995) 183 CLR 108