Campbell v The State of Western Australia - [2016] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CAMPBELL -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 156

CORAM: McLURE P
BUSS JA
CORBOY J

HEARD: 30 JUNE 2016

DELIVERED : 30 JUNE 2016

PUBLISHED : 7 SEPTEMBER 2016

FILE NO/S: CACR 102 of 2016

BETWEEN: DARREN GRAEME KENNETH CAMPBELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- CAMPBELL [2016] WASC 177
File No  :INS 355 of 2015

Catchwords:

Criminal law - Appeal - Application for separate trials - Criminal complicity - Joint criminal enterprise - Whether s 7(a) of the Criminal Code (WA) incorporates the doctrine of 'joint criminal enterprise' or common purpose at common law

Legislation:

Criminal Appeals Act 2004 (WA), s 26
Criminal Code (WA), s 2, s 7, s 8, s 9, s 10, s 279
Criminal Procedure Act 2004 (WA), s 133, sch 1 cl 9(2)
Interpretation Act 1984 (WA), s 10

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr R Kashyap
Respondent: Ms A L Forrester

Solicitors:

Appellant: Morris Law
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Bank of England v Vagliano Brothers [1891] AC 107
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215
Bomford v The State of Western Australia [2014] WASCA 43
Borg v The Queen [1972] WAR 194
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Clarke v The State of Tasmania [2013] TASCCA 11
Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Edwards v The State of Tasmania [2016] TASCCA 7
Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523
Heaton v The State of Western Australia [2008] WASCA 32
Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
Johnson v The State of Western Australia [2009] WASCA 71; (2009) 194 A Crim R 470
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
L v The State of Western Australia [2016] WASCA 101
Lacco v The State of Western Australia [2006] WASCA 152
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
Macklin, Murphy and Ors (1838) 2 Lew 225; (1838) 168 ER 1136
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
Micalizzi v The State of Western Australia [2013] WASCA 96
Michaels v The State of Western Australia [2009] WASCA 174
Miller v The Queen [2016] HCA 30
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Punevski v The Queen [2000] WASCA 71
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Bingley (1821) R & R 446; (1821) 168 ER 890
R v Braysich [2006] WASCA 220; (2006) 166 A Crim R 109
R v Clarke and Wilton [1959] VR 645
R v F; Ex parte Attorney‑General [2003] QCA 70; [2004] 1 Qd R 162
R v Fowler [2012] QCA 258; (2012) 225 A Crim R 226
R v Handlen (2010) 247 FLR 261
R v Hornby (1844) 1 C & K 305
R v Hurse (1841) 2 M & R 360; (1841) 174 ER 316
R v Jervis [1993] 1 Qd R 643
R v Jogee [2016] 2 WLR 681
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Kelly (1847) 2 C & K 379
R v LK [2010] HCA 17; (2010) 241 CLR 177
R v Melling [2010] QCA 307
R v Palmer [2005] QCA 2
R v Presley [2015] SASCFC 53; (2015) 122 SASR 476
R v Russell [1933] VLR 59
R v Sherrington [2001] QCA 105
R v Tangye (1997) 92 A Crim R 545
R v Walton [2001] QCA 309
R v Webb [1995] 1 Qd R 680
R v Webb; Ex parte Attorney‑General [1990] 2 Qd R 275
R v Wyles; Ex parte Attorney-General [1977] Qd R 169
Ritchie v The State of Western Australia [2016] WASCA 134
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Santos v The State of Western Australia [2013] HCASL 123
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Scafetta v The State of Western Australia [2010] WASCA 209
Sgarlata v The State of Western Australia [2015] WASCA 215
Smith v The State of Western Australia [2010] WASCA 205
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Campbell [2016] WASC 177
The State of Western Australia v Micalizzi [2010] WASCA 147
Tresnjo v The State of Western Australia [2015] WASCA 12
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56
Ward v The Queen (1997) 19 WAR 68
Warren and Ireland v The Queen [1987] WAR 314
Youkhana v The Queen [2015] NSWCCA 41

Table of Contents

McLure P's reasons.................................................................................................................. 6

Analysis
Buss JA's reasons.................................................................................................................... 12
The State's case as to the circumstances of the offence
Joint trials and severance: the statutory scheme
Joint trials and severance: the relevant legal principles
The primary judge's reasons
The grounds of appeal
The appellant's submissions in the appeal
The merits of the appeal
The State's case at trial based on 'joint criminal enterprise'
The parties to a substantive offence (as distinct from a conspiracy) at common law: 'joint criminal enterprise' and common purpose
The parties to a substantive offence (as distinct from a conspiracy) under the Code: criminal responsibility
The parties to a substantive offence (as distinct from a conspiracy) under the Code: 'joint criminal enterprise': discussion and analysis
The parties to a substantive offence (as distinct from a conspiracy) under the Code: 'joint criminal enterprise': conclusions
Corboy J's reasons.................................................................................................................. 61

Summary
Criminal complicity at common law

Degrees of participation
Joint criminal enterprise
Acting in concert

Presence
Extended joint criminal enterprise/common purpose
The co-conspirator's rule of evidence

The interpretation of the Code

The drafting of the Code

The Code

Sections 7(b) and (c) of the Code
The allegation of a joint criminal enterprise

L v The State of Western Australia

Wyles
Warren and Ireland

Palmer and Clarke

Handlen

Concluding comments

McLURE P: I agree with Buss JA, generally for the reasons he gives, that the primary judge was correct to dismiss the appellant's application to be tried separately from the co‑accused. However, I differ from him on the nature and role of the common law doctrine of joint criminal enterprise.
It is clear from the reasons of the primary judge, confirmed in the appeal, that the State intends to rely on the doctrine of joint criminal enterprise in its case against the appellant and his co‑accused for the murder of Travis Benjamin Mills, contrary to s 279 of the Criminal Code (WA) (the WA Code). That was relevant to the determination of the appellant's application. However, the joint judgment of this court in L v The State of Western Australia [2016] WASCA 101 departs in significant respects from the law on joint criminal enterprise as it has been applied in this State for decades. The review of the doctrine in L was prompted by the decision of the High Court in Handlen v The Queen (2011) 245 CLR 282.
The applicability of the doctrine of joint criminal enterprise to the Criminal Code (Cth) (the Commonwealth Code) was part of the background to the decision in Handlen. In that case the appellants were convicted of two counts of importing a commercial quantity of border controlled drugs contrary to s 307.1 of the Commonwealth Code It is an element of the offence that the person intentionally 'import' border controlled drugs. At trial, the Commonwealth had relied on joint criminal enterprise as the basis of liability for the offences. However, the jury direction on joint criminal enterprise was materially defective. In an appeal to the Queensland Court of Appeal (the QCA appeal), the Commonwealth conceded that (at the relevant time) the common law doctrine of joint criminal enterprise had no application to the Commonwealth Code: R v Handlen (2010) 247 FLR 261 [54]. The Commonwealth Code was subsequently amended to insert s 11.2A providing for the joint commission of an offence. In the QCA appeal, the Commonwealth relied on a novel category of liability, being that of a 'joint perpetrator involved in some form of association independent of the concept of joint criminal enterprise' [63]. That novel category of liability was rejected by the Court of Appeal, which also rejected the Commonwealth's claim that the appellants were each principals, having performed part of the conduct involved in the importation offence. These matters were not challenged in the High Court [39]. The only matter in issue in the High Court was whether the Court of Appeal had erred in invoking the proviso on the basis of no substantial miscarriage of justice. The High Court made no comment on the correctness or otherwise of the Commonwealth concession that the doctrine of joint criminal enterprise had no application to the Commonwealth Code. In any event, the legislative history and text of the Commonwealth Code differs in material respects from that of the WA Code.
In his grounds of appeal in L, the appellant challenged the correctness of the terms of the joint criminal enterprise direction given to the jury, not the applicability of the doctrine to the WA Code. However, during the hearing of the appeal, the court raised with counsel the decision of the High Court in Handlen and sought written submissions from the parties on whether the doctrine of joint criminal enterprise had any application to s 7 of the Code (ts 3, 4, 8 and 9).
The court in L said:
The issue raised in this appeal is whether the common law doctrine of joint criminal enterprise provides a basis for criminal liability for the charged offences (as opposed to an evidentiary rule). For reasons explained below, the appellants' criminal responsibility is to be determined by reference to s 7 ‑ s 9 of the [Code], which do not incorporate the common law doctrine, and not otherwise [5].
Later, the court elaborated:
Sections 7 ‑ 9 of the Criminal Code do not refer to 'joint criminal enterprise', or define criminal liability by reference to entry into an understanding or arrangement to commit a crime. Participation in a joint criminal enterprise may be relevant in giving rise to, or assisting the drawing of, an inference that a person aided, counselled or procured the commission of an offence. However, it is the aiding, counselling or procuring of an offence, rather than an unlawful agreement or arrangement, which gives rise to criminal liability [41].
In reaching this view, the court in L adopted what Davies JA said in R v Palmer [2005] QCA 2 and agreed with the reasons of Wood J in Clarke v Tasmania [2013] TASCCA 11 for concluding that s 3 of the Tasmanian Criminal Code (which is in similar but not identical terms to s 7 of the WA Code) does not incorporate the common law doctrine of joint criminal enterprise.
The issue in Palmer was the role (if any) of the doctrine of joint criminal enterprise in establishing accessorial liability under the Queensland Code equivalents of s 7(b) ‑ (d) of the WA Code. However, the central issue in L and Clarke v Tasmania was the scope of the principal offender category of liability, being s 7(a) of the WA Code. Section 7(a) relevantly provides:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say ‑
(a)Every person who actually does the act or makes the omission which constitutes the offence.
The court in L concluded:
The language of s 7(a) of the … Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) ‑ s 7(d) is required. Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the … Code unless he or she either:
1.does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or
2.deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or
3.deliberately counsels or procures another person to commit the offence [53].
It is difficult to reconcile the statements in [53] with the statements in pars [5] and [41]. In my respectful opinion the statements in L on the subject of joint criminal enterprise, which are obiter, are misconceived.
In summary, and for the reasons given below, the only scope for the adoption of the common law doctrine of joint criminal enterprise as a basis of liability under the WA Code is in s 7(a), which provides for direct liability. To avoid terminological confusion, I will refer to the doctrine as 'joint criminal enterprise as a basis of liability' or 'joint criminal enterprise in law'.
In broad terms, the doctrine of joint criminal enterprise in law requires proof of, inter alia, the existence of a joint criminal enterprise in fact, being an agreement, arrangement or understanding, express or implied (agreement) between two or more parties to commit a particular offence, and participation by a party to the agreement in the performance of that joint criminal enterprise. It is unnecessary and inappropriate in this appeal to identify the outer limits of the requirement of 'participation'. It is sufficient for present purposes to note that it covers at least some, if not all, acts that would, but for the existence of a joint criminal enterprise in law, give rise to accessorial liability under s 7(b), (c) or (d). The possibility that the evidence enlivening the doctrine of joint criminal enterprise as a basis of liability under s 7(a) may also be relevant in proving the factual elements necessary to establish accessorial liability under s 7(b), (c) or (d) is no obstacle to the analysis. Accessorial liability, is derivative not direct. In the case of derivative liability, it is necessary to establish that someone else (the principal) committed the offence with which the aider has been charged.

Analysis

The general principles governing the relationship between the common law and the WA Code (and other statutory codes) are well known. See in particular, Brennan v The King (1936) 55 CLR 253, 263; Vallance v The Queen (1961) 108 CLR 56, 74 ‑ 75; and Stuart v The Queen (1974) 134 CLR 426, 437.
The starting point is always the statutory text, context and purpose. However, the influence and adoption of common law principles and doctrines in the construction and application of the WA Code is in fact widespread. It is reflected in many provisions, including s 8 (R v Barlow (1997) 188 CLR 1, 9, 11 ‑ 12); s 22 and s 24 (He Kaw Tehv The Queen (1985) 157 CLR 523, 559 and Sgarlata v The State of Western Australia [2015] WASCA 215 [37] ‑ [45]); s 280(1) (Callaghan v The Queen (1952) 87 CLR 115, 124); former s 31 (Smith v The State of Western Australia [2010] WASCA 205 [9]); and s 409(1) (Bolitho v The State of Western Australia [2007] WASCA 102 [152]).
It is significant that Sir Samuel Griffith's note to s 8 in his draft Queensland Code, which became s 7 of the Queensland Code (and which is in materially the same terms as s 7 of the WA Code), reads simply 'common law'. As Lucas J noted in R v Wyles; Ex parte Attorney-General [1977] Qd R 169, s 7(a) of the Queensland Code had been construed consistently with the common law for nearly three quarters of a century (176).
At issue in Wyles, was the proper construction of s 7(a) of the Queensland Code. Two co‑accused were charged with the same offence (breaking and entering) which had two 'acts' constituting the offence for the purpose of s 7(a), with one accused doing only one act (breaking) and the other doing only the other act (entering). Relying on the common law, the court held that where several persons, acting in concert, each do some act so that the actions in totality will cover all of the acts (and omissions) required for the offence, each person would be liable as a principal offender under s 7(a) of the Code. Hoare J said:
[W]hen The Criminal Code refers to a person 'who actually does the act … ' it should be construed in the light of the very clear [common] law which then applied. It seems to me reasonably clear that … the Code should not be construed in a restrictive way so as to exclude persons who participated in the offence in such a way that the law at the time the Code was enacted treated them as principals because of actual participation in events which, as it were, constituted part of the events which together made up the completed offence (182).
Reliance on joint criminal enterprise as a basis of liability under s 7(a) of the WA Code has been a feature of criminal trials in this State for many decades. To my knowledge, it was never challenged until the matter was raised by the court in L. Not infrequently, the State relies on joint criminal enterprise as the basis of liability under s 7(a), with a fall back alternative of accessorial liability under s 7(c).
As Porter J correctly observed in Clarke v Tasmania, the doctrine of joint criminal enterprise in law was applied in this State in Warren & Ireland v The Queen [1987] WAR 314 and Lacco v The State of Western Australia [2006] WASCA 152 and was accepted as applying in Santos v The State of Western Australia [No 2] [2013] WASCA 39, Michaels v The State of Western Australia [2009] WASCA 174 and Heaton v The State of Western Australia [2008] WASCA 32. In Santos and Michaels, as well as in Punevski v The Queen [2000] WASCA 71, the issue was whether there was a sufficient evidentiary foundation of a joint criminal enterprise in law to enliven the application of the so‑called 'co‑conspirators rule' by which evidence in the form of acts done or words said, outside an accused's presence, by a person alleged to be a party to the joint criminal enterprise is admissible to prove the participation of the accused.
The facts in Lacco raised the same issue as in Wyles. In Lacco there was more than one act or omission constituting the offence for the purposes of s 7(a) (s 7(a) act) and different parties did different s 7(a) acts which together covered all acts required for the offence. In Warren & Ireland, two accused were charged with causing grievous bodily harm to a victim in circumstances where both accused participated in inflicting injuries on the victim but the State was unable to prove which of the two inflicted the blow (or blows) that caused the grievous bodily harm. The Full Court held that the co‑accused were 'joint perpetrators', having in effect acted in concert, and each was directly responsible under s 7(a) of the Code, there being no question of derivative responsibility under s 7(c). There could be no derivative liability under s 7(c) because that requires proof that someone other than the 'aider' committed the offence in question (grievous bodily harm).

It is well accepted that the concept of joint criminal enterprise is interchangeable with the concepts of 'common purpose', 'common design' and 'in concert': McAuliffe v The Queen (1995) 183 CLR 108, 114; Likiardopoulos v The Queen (2012) 247 CLR 265 [19].
A number of important points seem to be lost in the modern discussion of whether the common law doctrine of joint criminal enterprise in law has any application to s 7 of the WA Code or its equivalents. First, as a basis of liability, the sole focus is on direct liability under s 7(a), not derivative liability under s 7(c) or other categories of accessorial liability under the WA Code. Second, it has been authoritatively determined that s 7(a) has picked up the common law of joint criminal enterprise in law, in its various interchangeable formulations, in the circumstances in Wyles and Warren & Ireland. Indeed, on a close reading of the reasons in Clarke v Tasmania, Wood J accepted that some common law principles had been picked up, the real issue being which parts of the common law had not been picked up under the direct liability provision in s 3 of the Tasmanian Code. Third, it is clear from the reasoning in Wyles and Warren & Ireland that the circumstances in those cases are just examples of the application of the principle underlying the common law doctrine of joint criminal enterprise in law. When there is a joint criminal enterprise in law (or its interchangeable equivalent) an actual s 7(a) act done by one or more parties to a joint criminal enterprise is also the act of other parties to, and participants in, the same joint criminal enterprise. The analogy is with the common law of agency, whereby a person may act by himself or by his authorised agent(s). 'Authority' in this context extends to adoption or ratification of the s 7(a) acts of others in the joint criminal exercise. That is, a party to a joint criminal enterprise in law becomes directly responsible for the s 7(a) acts of another party thereto.
In summary, s 7(a) applies when the s 7(a) acts of another become, at common law, the acts of the accused; the s 7(a) acts are joint acts; and the parties to, and participants in, the joint criminal enterprise are jointly liable under s 7(a). Section 7(a), on its proper construction, means:

Every person who actually does the act or makes the omission [by himself or by another party for whose acts or omissions he is liable at common law] which constitutes the offence.

Accordingly, joint criminal enterprise liability for the acts of others is a sufficient, but not essential, basis of liability under s 7(a) of the WA Code. Further, the evidentiary rule is not, and cannot be, separate and independent from the liability rule that underpins it. The evidence in question is only admissible if there is a sufficient evidentiary foundation for a finding that the accused's liability under s 7(a) is sourced in the acts or omissions of others in accordance with the doctrine of joint criminal enterprise in law and its equivalents.
This construction of s 7(a) is consistent with s 8 of the WA Code, which incorporates an extended version of the common purpose or joint criminal enterprise liability. Involvement in a joint criminal enterprise under s 7(a) involves an agreement, arrangement or understanding to commit a particular offence, which agreement is performed according to its terms. All the parties to the joint criminal enterprise must intend that the particular offence be committed. To establish liability under s 8, there must be a common purpose to commit a particular offence, during the performance of which common purpose a different, but objectively probable offence, was committed. It would be odd indeed for the legislature to include the extended version of joint criminal enterprise but exclude the core doctrine from the scope of s 7(a) of the WA Code.
BUSS JA: The appellant has appealed to this court pursuant to s 26 of the Criminal Appeals Act 2004 (WA).
The appellant, Justine Campbell, Seleena Ruthsalz, Joanne Ruthsalz and Darryl Newton have been charged on indictment that on or about 2 April 2015, at Hilbert and elsewhere, they murdered Travis Benjamin Mills (the deceased), contrary to s 279 of the Criminal Code (WA) (the Code).
The appellant and the co‑accused have pleaded not guilty to the charge. A joint trial of the appellant and the co‑accused has been listed before Hall J and a jury for nine weeks commencing on 18 July 2016.
On 18 May 2016, the appellant made an application, pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA), for an order that he be tried separately from the co‑accused. The State opposed the application.

On 10 June 2016, Hall J heard the appellant's application. On 15 June 2016, his Honour dismissed the application. See The State of Western Australia v Campbell [2016] WASC 177.
On 30 June 2016, this court heard the appellant's appeal from the primary judge's decision. At the conclusion of the hearing, the appeal was dismissed. We said that reasons for decision would be published later. These are my reasons.

The State's case as to the circumstances of the offence

The circumstances of the offence, as alleged by the State, are set out in detail in the primary judge's reasons. The following account of the State's case has been extracted from those reasons [4] ‑ [18].
The State's case is that the appellant and the co‑accused were engaged in a 'joint criminal enterprise' to kill the deceased, or at least do him an injury of such a nature as to endanger, or be likely to endanger, his life [4]. Alternatively, the State will allege that the appellant and the co‑accused entered into a 'common unlawful purpose' of such a nature that the murder of the deceased was a probable consequence of its prosecution: s 8 of the Code [4]. The parties to the 'plan' are alleged to be the appellant, the deceased's partner, Seleena Ruthsalz, her mother, Joanne Ruthsalz, the appellant's wife, Justine Campbell, and a friend of the appellant and his wife, Darryl Newton [4].
On the night of 2 April 2015, the deceased was at his home at 12 Poad Street, Seville Grove. His partner and daughter were not at home. He was putting together a trampoline for his daughter's birthday, which was the following day. At about 1.00 am on 3 April 2015, the deceased's car was reported to be on fire in a new housing estate in Hilbert. Emergency Services attended and found a person, dead, in the boot of the car. The person was later determined to be the deceased. He died as a result of 'smoke inhalation, with incineration'. The post‑mortem examination was not able to determine whether the deceased had any injuries before the fire.
Police found the deceased's mobile telephone in the front yard of the premises at 12 Poad Street, Seville Grove. He last used the telephone at 10.15 pm on 2 April 2015. There was a quantity of blood in and around the lounge and family/kitchen area of the house, together with evidence of an attempt to clean up the blood. A rug that was in the family area on 1 April 2015 was not there on 3 April 2015.
The State alleges that the appellant was 'acting in concert with' the co‑accused and, accordingly, their acts and words in furtherance of the 'joint plan' are admissible against him [7]. In particular, communications between Justine Campbell, Joanne Ruthsalz and the appellant before and at the time of the murder are, according to the State, admissible against the appellant, even where he is not a direct party to the communications.
The State's case depends critically upon the appellant being in possession of, and using, a mobile telephone with a number ending in 334 at the relevant times. That telephone number was subscribed to by the appellant and the number was identified by him, on 29 March 2015, as his. The mobile telephone with that number was seized from the appellant's house in Hamilton Hill on the day of his arrest. Those facts together with the content of text messages sent from that telephone are said to be capable of supporting an inference that the appellant was in possession of the telephone at the relevant times. On the basis of that inference, the State will allege the following sequence of events.
At 12.26 am on 1 April 2015, Justine Campbell sent a text message to Darryl Newton which reads 'hey babe Darren will ve ready to come to urs in about 25-3 min. Is it cool if he gives you $20 ‑ $25 U2 could go in one of ur cars coz he knows our cars' (prosecution brief page 3129). A text from the appellant to Newton at 1.33 am states 'if still available cu in 5 min. Cool? ???? No'. Newton replied by text 'no probs'. At 3.01 am Justine Campbell sent a text to the appellant stating 'baby its a green ford' (prosecution brief page 3117). The deceased's car was a green Ford.
CCTV footage from the vicinity of 12 Poad Street, Seville Grove shows what appears to be a station wagon circling the house between 2.14 am and 3.22 am (prosecution brief page 3434 ‑ 3439). A witness who resides nearby reported that he saw a light coloured station wagon at about 2.30 am drive down Poad Street and back again. There were three to four silhouettes of people inside the vehicle. The car slowed at a point almost directly in front of the deceased's house. Telephone records for the appellant's 334 telephone show that it used a mobile telephone tower which services an area that includes the deceased's house at 2.48 am on 1 April 2015.
At 11.10 pm on 1 April 2015, Justine Campbell sent a text to Darryl Newton saying 'hey babe Darren just asked mecto trxt u to make sure u up for a 4 am adventure in morning' (prosecution brief page 3129). At 8.25 am on 2 April 2015, a childcare worker at a centre across the road from 12 Poad Street, Seville Grove reported seeing a man next to bushes in the carpark. A car was parked nearby. It was a white older looking car. There was a woman sitting in the front passenger's seat. The description given of that woman fits Justine Campbell. There was a young man who was slim with dark hair in the back seat. The man near the bushes was slim with baggy clothes and short brown and grey hair.
At 8.07 pm that night, the appellant sent a text message to Darryl Newton saying 'when would you like to go and deal with this any particular time?'. Newton replied at 8.13 pm saying 'whenever u like'. The appellant responded 'be there in 25 minutes'. This was followed by a further text which said 'sweet to take ur wheels again'. At 9.10 pm Justine Campbell is alleged to have telephoned Joanne Ruthsalz. Texts were also sent at 9.16 pm and 9.21 pm. This is based on call charge records. The content of the telephone call and the text messages is unknown. At 9.21 pm the appellant sent a text to Newton saying 'leaving in 5'. At 9.39 pm and 9.48 pm Justine Campbell sent further texts to Joanne Ruthsalz. At 9.51 pm Newton attempted to telephone the appellant. At 9.52 pm Newton purchased petrol at a BP service station in Beeliar. He filled a jerry can with petrol. He was driving his own car. Subsequent investigations have determined that it takes about 13 minutes to drive from that service station to the deceased's house at 12 Poad Street, Seville Grove.
At 10.08 pm a car matching the description of Newton's was captured on CCTV footage driving on Poad Street. At 10.12 pm the appellant's telephone accessed a telephone tower that covers the Seville Grove area. It continued to access towers servicing that area until 12.10 am after which it accessed towers servicing the Darling Downs area on a bearing which included Hilbert, where the deceased's car was left burning. At 10.12 pm there was a 106 second telephone call between the appellant and Justine Campbell. They also exchanged texts between 11.05 pm and 11.12 pm, followed by a further 68 second call at 11.13 pm. The 11.05 pm text from Justine Campbell to the appellant states 'baby is it cool for her to hit hone'. At 11.10 pm the appellant replied '10 mins' (prosecution brief page 3119).
At 11.15 pm a car matching the description of Newton's was again captured on CCTV driving on Poad Street. At 11.41 pm CCTV footage shows what appears to be Newton's car followed shortly afterwards by another car driving west towards Lake Road. Other CCTV footage shows two cars consistent with being those of the deceased and Newton's travelling towards the housing estate in Hilbert. Tyre tread patterns at the location in Hilbert where the deceased's car was found burning are consistent with those of Newton's car.
At 12.07 am on 3 April 2015, Joanne Ruthsalz made a telephone call to Justine Campbell. There was then an attempted call from Justine Campbell to the appellant at 12.09 am, followed by a text from her at 12.10 am saying 'babe, I hope all is okay. She and bub are about 20 min away from being home. I hope u left keys in trailer' (prosecution brief page 3118).
The State's case is that the evidence I have recounted supports an inference that the appellant and Newton travelled to Seville Grove on the evening of 2 April 2015 as part of a 'joint plan' to kill or severely injure the deceased [16]. The deceased was then attacked in his home and suffered injuries which resulted in a significant loss of blood. He was placed, or forced, into the boot of his car. The appellant and Newton then drove to Hilbert where the deceased's car was set on fire, thereby killing him. The appellant confirmed that it was safe for Seleena Ruthsalz to go home, the 'plan' having been carried out [16].
Each of the co‑accused participated in electronically recorded interviews with police and made a number of admissions. None of those admissions is said to be admissible against the appellant. Admissions are also alleged to have been made by Joanne Ruthsalz and Justine Campbell to civilian witnesses. Those admissions are also not alleged to be admissible against the appellant.
The appellant participated in an electronically recorded interview with police, but he made very limited admissions. They were to the effect that he had met the deceased once at his shop and that he knew the co‑accused Newton, but that his wife did not like Newton and he could not see why she would speak to him. He denied ever having been to the deceased's house or being involved in any 'agreement' to murder him [18]. The appellant also denied knowing Seleena Ruthsalz or Joanne Ruthsalz. These latter statements are alleged by the State to be lies told out of a consciousness of guilt.

Joint trials and severance: the statutory scheme

Clause 9(2) of sch 1 of the Criminal Procedure Act provides:
If one charge charges 2 or more accused, they must be tried together unless a court orders otherwise under this Act.
Section 133 of the Criminal Procedure Act deals with the power to order separate trials.
Section 133(1) provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
By s 133(2), a court may amend or cancel an order made under s 133.
Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
Section 133(4) provides:
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
By s 133(5):
In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury; and
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if ‑
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
Section 26(7) of the Criminal Appeals Act provides that on an appeal against a decision to grant or to refuse a separate trial (as the case may be) this court 'may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial'.

Joint trials and severance: the relevant legal principles

The relevant legal principles relating to the exercise of the court's power under s 133 of the Criminal Procedure Act to order separate trials are well established. See The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81; The State of Western Australia v Micalizzi [2010] WASCA 147; and Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326. It is unnecessary to repeat them.

The primary judge's reasons

The first basis on which the appellant sought a separate trial before the primary judge was that the State's case against him depends critically upon the jury being satisfied that he was in possession of the 334 telephone at the relevant times. It was submitted that, confronted with substantial evidence against the co‑accused, a jury would lose sight of that critical fact and merely assume that the appellant was in possession of the telephone. It was also submitted that the evidence of the appellant's possession of the telephone is meagre and does not take into account that, in his interview with the police, the appellant said he had lost the telephone.
His Honour was satisfied that if the State's case against the appellant depends critically upon his having been in possession of the 334 telephone at the relevant times, then a direction to that effect could be given to the jury. His Honour said a direction to that effect could be given readily, would be simple in its expression and a jury would be capable of understanding it. There was no reason to think that a jury would be incapable of following, or would not follow, the direction [30].
The primary judge observed that counsel for the appellant's submission that the evidence against the co‑accused was substantial, whereas the evidence against the appellant in relation to his possession of the telephone was meagre, assumed that the only admissible evidence against the appellant will be as to his own actions or statements. His Honour noted that the State's case is that the appellant was a party to a 'joint plan' [32]. The State will rely upon the co‑conspirators rule. The rule applies to parties to a 'joint criminal enterprise' [33]. His Honour then elaborated:
A ruling as to the admissibility of the conduct and statements of the other accused in the prosecution case against [the appellant] cannot be made at this stage. However, it is sufficient to note that if the prosecution evidence accords with the statements on the brief there is likely to be a basis for the application of the co‑conspirator's rule. In those circumstances the evidence against [the appellant] will extend beyond his own acts and statements [34].
His Honour concluded that, although the State's case against the appellant was not as strong as the State's case against the co‑accused, it could not be said to be so weak as to raise 'the real risk of being made immeasurably stronger by … prejudicial material' [34].
The second basis on which the appellant sought a separate trial before the primary judge focused upon alleged out of court admissions made by Justine Campbell. She allegedly made the admissions to Mishelle Preela while they were incarcerated in Bandyup Prison.
According to Ms Preela, Justine Campbell told her, amongst other things, that:
(a)Justine Campbell had become involved in a plan to kill the deceased.
(b)Others, including the appellant, were also involved in the plan.
(c)The appellant and Darryl Newton went to the deceased's house and gained entry with keys given to them by Joanne Ruthsalz.
(d)The appellant and Newton had kicked, punched and bashed the deceased.
(e)The deceased had then used a knife to stab the appellant in the leg.
(f)Newton had responded by hitting the deceased with a baseball bat.
(g)The appellant and Newton placed the deceased into the boot of the deceased's car. Newton drove the deceased's car and the appellant drove Newton's car. When they arrived at their destination, the deceased's car, with the deceased still in the boot, was doused with petrol and set alight.
(h)There were exchanges of text messages by which Joanne Ruthsalz was informed that it was safe for Seleena Ruthsalz to return home and that the house needed cleaning.

It was submitted that the State will rely upon photographs which show that the appellant had a wound to his leg to support the State's contention that Justine Campbell in fact made the alleged prison confession. It was also submitted that if the jury concludes that Justine Campbell in fact made the alleged admissions and that those admissions were truthful because, amongst other things, the appellant had a wound to his leg, then it is inevitable that the jury will impermissibly use against the appellant the evidence of his leg wound and the admissions generally.
His Honour said Justine Campbell's alleged prison confession had to be considered in the following broader context:
The admissions made by Justine Campbell do not stand alone. Seleena and Joanne Ruthsalz both admit being party to a plan to cause significant injury to the deceased, although their contact was primarily with Justine Campbell. In her interview with the police Justine Campbell also admitted that she was a party to the plan, although she did not directly implicate [the appellant]. The existence of the knife wound is not the only evidence which could independently corroborate Justine Campbell's prison confession. The text message exchanges and the location of the relevant mobile telephones could also be used as independent confirmation. Whilst the alleged prison confession more directly implicates [the appellant] than any of the other admissions and thus creates prejudice to him, it is the type of prejudice that commonly arises in joint trials and is usually dealt with by directions. The only factor which is suggested as likely to raise irremediable prejudice is the use that the jury would make of the photographs of the injury to [the appellant's] leg [37].
Counsel for the State informed the primary judge that the evidence to be adduced by the State against the appellant will include DNA evidence that the appellant's blood was found in the footwell of the front passenger seat in Newton's car. That evidence would be relied on to support an inference that, at some time, the appellant had been in Newton's car. However, counsel for the State was 'unable to say' whether the photographs which show the wound to the appellant's leg would be relied on by the State in its case against him [38].
In the circumstances, his Honour decided the appellant's application for a separate trial on the assumed basis that the photographs of his leg wound will 'only be admissible against Justine Campbell and only then for the purpose of determining whether she made the prison confession' [39]. His Honour held, on the basis of that assumption, that prejudice to the appellant had been made out. His Honour's finding on that issue did not, of course, necessarily require that there be a separate trial.
The primary judge made these comments about Justine Campbell's alleged prison confession in the course of considering the exercise of his discretion under s 133 of the Criminal Procedure Act:
It is important to bear in mind that the prosecution case is not that Justine Campbell was present at the time that the deceased was attacked and subsequently killed. Accordingly, any account by her of what occurred at the house, including whether the deceased used a knife to wound [the appellant], can only be an expression of her belief. Whether her belief in regards to what others did was a true belief is not something that the jury would have to determine. Any out of court admissions made by Justine Campbell would only be admissible against her. The jury would only need to address the question of whether she made the admissions and whether she was truly admitting her own role in what occurred. Whether what she said about others involvement was true in every detail or not would be irrelevant, as those admissions are not admissible against other accused. Thus it does not follow that because Justine Campbell said that [the appellant] suffered a wound at the hands of the deceased, and that he had a wound of that type, that he must necessarily have incurred that wound in the way that she said. The existence of the wound makes it more likely that she said the things that are alleged but it does not mean that everything that she said was necessarily true [40].
His Honour was satisfied that the prejudice to the appellant is capable of being overcome by a suitable direction. The direction would include not only a warning that Justine Campbell's alleged out of court admissions are not admissible against the appellant, but also that:
(a)the photographs of the appellant's leg wound might confirm that Justine Campbell made the alleged admissions, but say nothing about the appellant's involvement in the alleged offending because the admissions are not admissible against him;
(b)in any event, Justine Campbell could not have had any direct knowledge about how any wound to the appellant's leg was caused; and
(c)any belief she had in that respect could not be evidence against the appellant.
The primary judge then noted that any prejudice to the appellant had to be evaluated in the context of the evidence as a whole. In particular:
Evidence of [the appellant's] movements at the relevant time and his sending and receipt of text messages are, if accepted by the jury, significant evidence of his involvement. The case against [the appellant] will, in all likelihood, depend critically upon a jury's findings in respect of that evidence. If the co‑conspirator's rule also applies a large quantity of other evidence will also be admissible against [the appellant]. All of this evidence would be adduced by the State even in the event of a separate trial. Seen in this light, the significance of the evidence of the wound and the likelihood that it would be misused by the jury is diminished [42].
His Honour referred to a submission on the appellant's behalf to the effect that each of the co‑accused had participated in electronically recorded interviews with police, but observed that counsel for the appellant did not identify any particular parts of those interviews as likely to cause prejudice. His Honour said he had read transcripts of the interviews and was of the view that any possible prejudice to the appellant can be guarded against by directions to the jury.
The primary judge concluded that the potential prejudicial effect to the appellant of evidence that the State proposes to adduce in its case against the co‑accused, in particular against Justine Campbell, can be guarded against by appropriate directions to the jury. Accordingly, his Honour dismissed the appellant's application.

The grounds of appeal

The appellant relies on four grounds of appeal.
Ground 1 alleges that the primary judge erred 'in not taking into account in determining the existence of prejudice, the alleged location of the appellant's blood in Darryl Newton's vehicle'.
Ground 2 alleges that his Honour erred in finding that 'the significance of the wound and the likelihood that it would be misused by the jury is diminished by the other evidence the State intends to adduce against the appellant'.
Ground 3 alleges that his Honour erred in deciding that 'the potential prejudicial effect to the appellant of the proposed evidence could be guarded against by appropriate directions to the jury'.
Ground 4 makes the general allegation that his Honour erred in the exercise of his discretion under s 133 of the Criminal Procedure Act to order separate trials.

The appellant's submissions in the appeal

In his submissions in the appeal, counsel for the appellant focused, appropriately, on why he contended that the primary judge was in error in refusing severance.
Counsel placed particular emphasis on the State's proposed evidence in relation to Justine Campbell's alleged prison confession, the photographs of the wound to the appellant's leg and the DNA evidence as to the appellant's blood having been found in the footwell of the front passenger seat in Newton's car.
According to counsel, directions by the trial judge will be insufficient to guard against or overcome prejudice to the appellant arising from the proposed evidence which I have mentioned. Counsel asserted that 'a jury is simply not capable' of following and applying the trial judge's directions in relation to the evidence (appeal ts 7). He added that 'it's a complex legal process that a jury is just not capable of following despite their best endeavours' (appeal ts 7 ‑ 8).

The merits of the appeal

Counsel for the State informed this court in her written or oral submissions that:
(a)The State proposes to adduce Justine Campbell's alleged prison confession as evidence against her, but not as evidence against the appellant.
(b)On the evidence in the State's brief, the State is unable to prove by admissible evidence precisely what occurred in the house at 12 Poad Street, Seville Grove, apart from evidence that there was a struggle in the house, there was blood in and around the lounge and family/kitchen area, an attempt had been made to clean up the blood, and a rug that had been in the family area on 1 April 2015 was not there on 3 April 2015.
(c)On the evidence in the State's brief, there is no admissible evidence against the appellant to the effect that the appellant suffered the wound to his leg (or, indeed, any injury) in the course of the alleged struggle in the house at 12 Poad Street.
(d)At this stage, the State is likely to seek to tender the photographs of the wound to the appellant's leg in support of the State's allegation that Justine Campbell in fact made the alleged prison confession if it becomes apparent at the trial that Justine Campbell denies having made the confession or some material aspect of it.
(e)At this stage, the State does not propose to rely on the photographs of the wound to the appellant's leg in support of the State's case against the appellant, but the State's position on that point may change depending on the evidence that emerges at the trial.
(f)The State proposes to adduce the DNA evidence of the appellant's blood having been found in the footwell of the front passenger seat in Newton's car for the purpose of supporting an inference that, at some time, the appellant had been in Newton's car. The evidence of the appellant's blood having been found in the footwell of the front passenger seat in Newton's car is different from Justine Campbell's alleged prison confession. In the alleged confession Justine Campbell recounted that after the appellant and Newton had placed the deceased into the boot of the deceased's car, Newton drove the deceased's car whereas the appellant drove Newton's car.
In my opinion, it is not apparent that the trial of the appellant and the co‑accused will involve a complicated mixture of evidence, some admissible and some inadmissible against the appellant, which a jury could not reasonably be expected to evaluate and deal with appropriately.
The trial judge will give express and careful directions to the jury as to the use which the jury may make of the evidence as against each of the accused. A separate consideration direction will be given. The jury will not be required to disentangle evidence or findings. Its task will be to examine the State's case against each accused, in the context of all of the evidence that is admissible against that accused, separately from the other accused and solely by reference to the evidence that is admissible against the accused in question. The jury will be required to put aside the evidence and findings it may make in relation to one or more of the accused when considering the case against another accused. I am satisfied that the jury will be capable of performing those tasks in accordance with the trial judge's directions. It is reasonable to expect that the jury, properly directed, will not take into account, when it considers the State's case against the appellant, any prejudicial evidence which is inadmissible against him.
In the present case, severance is not required to ensure that the appellant receives a fair trial. In particular, the jury will be capable of following the trial judge's directions about the State's proposed evidence in relation to Justine Campbell's alleged prison confession, the photographs of the wound to the appellant's leg and the DNA evidence as to the appellant's blood having been found in the footwell of the front passenger seat in Newton's car. The primary judge was correct, generally for reasons he gave, to dismiss the appellant's application.
In any event, the trial judge has power, on his or her own initiative or on an application by the appellant, to revisit the question of a separate trial if unfairness to the appellant, which is not apparent at this stage and which cannot be guarded against or overcome by judicial directions, emerges during the trial. See s 133(1) of the Criminal Procedure Act.
The grounds of appeal, and counsel for the appellant's submissions, are without merit. Accordingly, at the conclusion of the hearing, I joined with the other members of the court in dismissing the appeal.

The State's case at trial based on 'joint criminal enterprise'

It is apparent, from the primary judge's reasons, that the State's case at trial will be that the appellant and the co‑accused were engaged in a 'joint criminal enterprise' to kill the deceased, or at least do him an injury of such a nature as to endanger, or be likely to endanger, his life [4]. Also, it is apparent from his Honour's reasons that the State will allege, in the alternative, that the appellant and the co‑accused acted pursuant to a 'common unlawful purpose' of such a nature that the murder of the deceased was a probable consequence of its prosecution: s 8 of the Code [4].
In the circumstances, it is appropriate, especially in view of the recent decision of this court in L v The State of Western Australia [2016] WASCA 101, to deal with some matters of principle that bear upon the manner in which the State proposes to run its case, even though the decision in L and the issues discussed in that case were not the subject of any grounds of appeal or submissions in this appeal.

The parties to a substantive offence (as distinct from a conspiracy) at common law: 'joint criminal enterprise' and common purpose

In McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, Brennan CJ, Deane, Dawson, Toohey and Gummow JJ summarised the doctrine of 'joint criminal enterprise' or common purpose at common law:
The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms ‑ common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (See Giorgianni v The Queen (1985) 156 CLR 473). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J).
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose (113 ‑ 114). (emphasis added)
See also Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439; Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265; and Miller v The Queen [2016] HCA 30.
All of the High Court cases I have just mentioned concerned appeals from non‑Code States.
In Gillard, Hayne J described various aspects of the doctrine of 'joint criminal enterprise' or common purpose at common law, by reference to McAuliffe:
As was pointed out in McAuliffe ((1995) 183 CLR 108 at 113), the terms 'common purpose', 'common design', 'concert', 'joint criminal enterprise' are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others (McAuliffe (1995) 183 CLR 108 at 114).
In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission (McAuliffe (1995) 183 CLR 108 at 114).
The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. '[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose' (McAuliffe (1995) 183 CLR 108 at 114). The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose (McAuliffe (1995) 183 CLR 108 at 114). And '[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement' (McAuliffe (1995) 183 CLR 108 at 117).
As McAuliffe reveals (McAuliffe (1995) 183 CLR 108 at 117), the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe ((1995) 183 CLR 108 at 117-118), 'the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind'. To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that 'a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it' (McAuliffe (1995) 183 CLR 108 at 118). The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight (McAuliffe (1995) 183 CLR 108 at 118) [109] ‑ [112]. (original emphasis)

In R v Jogee [2016] 2 WLR 681, the Supreme Court of the United Kingdom held that the doctrine of extended joint criminal enterprise should no longer be a basis for the imposition of criminal liability.
Recently, in Miller, the High Court granted the appellants leave to argue that, consistent with Jogee, the High Court's decision in McAuliffe should be reopened and overruled. After considering the history and basis of the doctrine, the majority of the High Court (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ; Gageler J dissenting) held that the law in Australia should remain as stated in McAuliffe.
In their reasons for judgment in Miller, the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) summarised the various components of the doctrine of 'joint criminal enterprise' or common purpose at common law:
The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus (McAuliffe v The Queen (1995) 183 CLR 108 at 114 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ; Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3; Macklin, Murphy and Others' Case (1838) 2 Lew CC 225 per Alderson B [168 ER 1136]). Each party is also guilty of any other crime ('the incidental crime') committed by a co‑venturer that is within the scope of the agreement ('joint criminal enterprise' liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ('extended joint criminal enterprise' liability) [4].
Their Honours, in the course of examining the historical evolution of the doctrine, referred to numerous cases, articles and texts including JC Smith, 'Criminal Liability of Accessories: Law and Law Reform', (1997) 113 Law Quarterly Review 453; Foster, Discourses on Crown Law, 3^rd ed (1809); KJM Smith, A Modern Treatise on the Law of Criminal Complicity (1991); Prentice, Russell on Crime, 5^th ed (1877); Turner, Russell on Crime, 11^th ed (1958); Stephen, A Digest of the Criminal Law (1877); and JC Smith, 'R v Wakely', [1990] Criminal Law Review 119.
French CJ, Kiefel, Bell, Nettle and Gordon JJ said in relation to the contribution of Sir James Stephen to the development of the law in Australia:
Stephen's statement of the law has been influential in this country. The 1879 Criminal Code (Indictable offences) Bill (UK), largely his work, proposed the imposition of liability for any offence committed in pursuance of the parties' common purpose which 'ought to have been known to be a probable consequence of the prosecution of such common purpose' (Criminal Code (Indictable Offences) Bill 1879 (UK), s 71). This statement was taken by Sir Samuel Griffith to reflect the common law at the close of the 19^th century when he came to draft the Criminal Code (Q). It remains in s 8 of the Criminal Code (Q) and in the Criminal Codes of Western Australia (Criminal Code (WA), s 8) and Tasmania (Criminal Code (Tas), s 4) [15].
Their Honours concluded that it was not appropriate for the High Court:
(a)to abandon extended joint criminal enterprise liability and require, in the case of joint criminal enterprise liability, proof of intention in accordance with Jogee; or
(b)to depart from McAuliffe by substituting a requirement of foresight of the probability of the commission of the incidental offence [43].
In Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ considered the doctrine of 'joint criminal enterprise' or common purpose at common law, and the evidentiary rule sometimes inaccurately described as 'the co‑conspirators rule', in the context of alleged offences under the Criminal Code (Cth):
At common law, two or more persons may be jointly criminally responsible for the commission of an offence which, tacitly or otherwise, they have agreed to commit and which is committed while the agreement is on foot (R v Lowery [No 2] [1972] VR 560; Glanville Williams, Criminal Law: The General Part, 2nd ed (1961), p 349). As McHugh J explained in Osland v The Queen, the criminal responsibility of each participant in such an enterprise is direct, each being equally responsible for the acts constituting the actus reus of the crime ((1998) 197 CLR 316 at 343 [73]). Commonly, proof of the offence and the accused's participation in the joint enterprise is facilitated by the evidentiary rule sometimes inaccurately described as 'the co-conspirator's rule' (Gillies, The Law of Criminal Complicity (1980), pp 259 ‑ 266). The rule is not confined to the prosecution of conspiracy offences. It applies in the prosecution of substantive offences in which it is alleged that two or more persons acted in preconcert to commit an offence (Tripodi v The Queen (1961) 104 CLR 1 at 6 ‑ 7. See also Cross on Evidence, 8^th Aust ed (2010), para [33565]). The acts and declarations of all the participants to the joint criminal enterprise are admissible to prove the offence and the accused's participation in its commission (The admission of the evidence is subject to reasonable evidence being adduced of the preconcert: Ahern v TheQueen (1988) 165 CLR 87 at 99. See also Tripodi v The Queen (1961) 104 CLR 1 at 7). The agreement or preconcert implies that each participant has authority to act in furtherance of the common purpose on behalf of all of the other participants (Tripodi v The Queen (1961) 104 CLR 1 at 7; Ahern v The Queen (1988) 165 CLR 87 at 94 ‑ 95) [4].
The trial in Handlen was conducted on the mistaken assumption that the appellants' guilt on two counts of importing a commercial quantity of border controlled drugs, contrary to s 307.1 of the Criminal Code (Cth), could be established upon proof that they had been parties to a 'joint criminal enterprise' or 'group exercise' to import the drugs into Australia. At the date of the trial, participation in a 'joint criminal enterprise' was not a basis for criminal responsibility in respect of a substantive offence under the laws of the Commonwealth. The Criminal Code (Cth) was not amended, by the insertion of s 11.2A, which provides for criminal responsibility in circumstances involving the joint commission of a substantive offence, until after the date of the appellants' trial.

The parties to a substantive offence (as distinct from a conspiracy) under the Code: criminal responsibility

The proper approach to the construction of the Code was enunciated by Dixon and Evatt JJ in Brennan v The King [1936] HCA 24; (1936) 55 CLR 253:
[The Code is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (263).
See also Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236 (Gibbs J, Stephen J agreeing); and Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437 (Gibbs J, Mason J agreeing).
As Gibbs J noted in Stuart:
(a)'it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground' (437); but
(b)'it should be remembered that the first duty of the interpreter of [the provisions of the Code] is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance' (437).
See also Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 74 ‑ 75 (Windeyer J).
In Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215, the majority construed and applied the expression 'intent to defraud' in s 409(1) of the Code by reference to the technical meaning of 'intent to defraud' at common law. See also Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115 in relation to a degree of recklessness justifying the description 'gross negligence' in the context of the offence of manslaughter created by the Code.
Section 2 of the Code reads:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
The parties to an offence are specified in s 7, s 8, s 9 and s 10 of the Code, as follows:
7.Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say ‑
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
8.Offence committed in prosecution of common purpose
(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2)A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person ‑
(a)withdrew from the prosecution of the unlawful purpose; and
(b)by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c)having so withdrawn, took all reasonable steps to prevent the commission of the offence.
9.Counselled offence, mode of execution immaterial
When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.
10.Term used: accessory after the fact
(1)A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.
(2)A person does not become an accessory after the fact to an offence committed by the person's spouse by receiving or assisting that spouse.
Section 10(c) of the Interpretation Act 1984 (WA) provides that, in any written law, 'words in the singular number include the plural and words in the plural number include the singular'.
Section 7 of the Code specifies four categories of parties to an offence. A person who is within one or other of the categories is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
By s 7(a), every person who actually does the act or makes the omission which constitutes the offence is criminally liable.
Section 7(b) operates to make a person criminally liable if he or she does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence.
Similarly, s 7(c) makes a person criminally liable if the person aids another person in committing the offence.
Further, s 7(d) makes a person criminally liable if he or she counsels or procures any other person to commit the offence.
Where two or more persons each perform all of the acts or make all of the omissions constituting an offence, each of them is deemed by s 7(a) to have committed the offence.
Where two or more persons, acting together, each perform different acts or make different omissions, with none of them performing all of the acts or making all of the omissions, but the acts performed or omissions made in combination constitute the offence, each of them is deemed by s 7(a) to have committed the offence.
The illustrations I have just given as to the scope of s 7(a) are derived from the statutory text of s 7(a) in combination with s 2 of the Code and s 10(c) of the Interpretation Act.
In R v Melling [2010] QCA 307, the appellants were convicted after a trial of grievous bodily harm with intent. Holmes JA (McMurdo P & Applegarth J agreeing) held that, in order for the prosecution to establish criminal liability on the part of both appellants under the Queensland equivalent of s 7(a), it was necessary to prove that each of them did an act which caused injuries amounting to grievous bodily harm, as well as the requisite intent [25]. Her Honour found that there was no basis in the evidence for the jury to be satisfied as to which of the two appellants had inflicted the victim's skull fracture, which no doubt constituted grievous bodily harm [25]. Her Honour said that although the evidence justified a prosecution case against the appellants pursuant to a combination of the Queensland equivalents of s 7(a) and s 7(c), the evidence did not support verdicts of guilty in the prosecution case at trial which was run on the basis that each of the appellants was criminally responsible under the Queensland equivalent of s 7(a) by reason of each of them having committed an act constituting the offence:
It was not essential that the Crown establish which of the two was the principal actor and which the aider. In other words, both could properly have been convicted on the same evidence on a Crown case advanced pursuant to a combination of [the Queensland equivalent of s 7(a) and s 7(c)]. But although both s 7 and s 8 were referred to in the indictment, that was not the basis on which the prosecutor sought the conviction, nor was it the subject of direction. The evidence was not such as to permit guilty verdicts on a case that each man was criminally responsible as having committed the act constituting the offence.
The jury may well, in fact, have reasoned to a finding of guilt on a view of criminal responsibility along the lines of [the Queensland equivalent of s 7(c)], but it is impossible to say that they did, as opposed to reasoning, in the absence of appropriate direction, to a flawed conclusion that both appellants were guilty as primary offenders [28] ‑ [29].
See also R v Fowler [2012] QCA 258; (2012) 225 A Crim R 226 [40] (Fraser JA, de Jersey CJ & Mullins J agreeing).
In Borg v The Queen [1972] WAR 194, the appellant had driven Villani to a house. He remained in the car while Villani shot and killed the occupants of the house. The appellant was charged with murder. The trial judge directed the jury that if they were satisfied beyond reasonable doubt that the appellant knew that Villani had a loaded pistol which he was prepared to use in support of demands made against the occupants of the house and that the shooting and killing of one or more of them was a probable consequence of the prosecution of the unlawful purpose of demanding payment by threats of force, then it was open to the jury to convict the appellant of murder. The trial judge also said that if it were proved that the appellant and Villani formulated a plan to rob or extort money from the occupants of the house which included an assault upon them, that a death resulted from the assault and that the appellant did an act or acts for the purpose of aiding Villani to carry out the plan, then the jury could convict the appellant of manslaughter.
Jackson CJ (Hale J agreeing) said:
(a)s 7(c) 'is probably intended to refer to a person who aids another in the actual act or omission which constitutes the offence' and, therefore, the case against the appellant might more properly be regarded as falling within s 7(b) (197); and
(b)by s 7(b), 'an accessory who does or omits an act for the purpose of enabling the principal offender to commit an offence which to the accessory's knowledge includes a threatened or likely assault upon the victim is himself guilty of manslaughter if the victim dies from an assault of the nature contemplated' (197).
His Honour then said:
The criminal responsibility of [the appellant] for the death of [the occupants of the house] depends upon the nature and scope of the plan to which he was a party and upon whether the fatal shooting can reasonably be regarded as part of or incidental to that plan (197). (emphasis added)
As Steytler J (Kennedy & Franklyn JJ agreeing) noted in Ward v The Queen (1997) 19 WAR 68, Borg was a case in which there was 'a pre‑existing plan between the accessory and the principal offender involving acts by the accessory, in advance of the commission of the offence, which were designed to aid the principal offender in the commission of the offence' (77).
In Ward, Steytler J said:
(a)there is a distinction between cases in which those who by their acts committed in advance of the commission of the offence by the principal offender are 'aiders' of the offence committed by the principal offender, and those in which the 'aider' assists the principal offender in the actual commission of the offence in circumstances in which that assistance is not provided in the furtherance of any pre‑existing common purpose;
(b)in the former case, it is enough, for criminal responsibility, that the 'aider' contemplated only that the principal might commit the offence rather than he or she will necessarily do so; and
(c)in the latter case, there can ordinarily be no criminal responsibility unless the 'aider' knows all the facts constituting the offence which is then being committed and to the commission of which he or she is then lending assistance (75 ‑ 76).
As to s 7(d), 'procuring' an offence is different from 'counselling' the offence to happen. Counselling involves the accused encouraging, urging, advising or soliciting another person to commit the offence. See Stuart (445). Procuring involves the accused enabling or facilitating the commission of the offence by another person. See R v F; Ex parte Attorney‑General [2003] QCA 70; [2004] 1 Qd R 162 [11] (Davies JA), [28], [43] (Williams JA).

However, there are some aspects in which s 7 and s 8, properly construed, arguably depart from the common law. Those aspects are mentioned below.

The drafting of the Code

Sir Samuel Griffiths presented the 1897 draft of the Queensland Code with an accompanying letter to the Attorney‑General. The letter stated:
In 1878 Lord Blackburn, Mr Justice Barry (of Ireland), Mr Justice Lush, and Sir James Fitzjames Stephen, were appointed by Royal Commission to be Commissioners to report on the provisions of a Draft Code of Criminal Law which had then lately been prepared in England. They submitted as an Appendix to their Report a Draft Code settled by them, which, with some modifications, was introduced into the House of Commons as a Bill in the session of 1880, but did not become law. I have freely drawn upon the labours of these distinguished lawyers, especially with respect to the statement of rules of the Common Law and the definition of Common Law offences. It would, indeed, be impossible for anyone undertaking the task of drafting a Code of English Criminal Law to do otherwise.
Indeed, Sir Samuel Griffiths referred to his draft as a 'Digest of the Statutory Criminal Law of Queensland', seemingly a reference to Stephen's Digest. The draft was referred to a Royal Commission headed by Sir Samuel Griffiths and the Code, as enacted, reflected the recommendations of the Commission.
The marginal note to the draft of what became s 7 of the Queensland Code referred to the common law and the '1880 Bill', a reference to the Criminal Code Bill that was introduced into the House of Commons in 1880 but which was not enacted. The provisions of the 1880 Bill concerning parties to an offence were similar to but not identical in language with what became s 7 and s 8. The proposed wording did not refer to the common law degrees of participation, except to accessories after the fact. The history of the drafting of the Code is more fully recounted in Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [29] and following. It is to be noted that the High Court extensively reviewed the common law and the history of the drafting of the Code in determining the meaning of the expression 'probable consequence' in s 8 of the Queensland Code.
It is apparent from the marginal notes to what became s 7 ‑ s 10 of the Queensland Code that Sir Samuel Griffiths considered that the relevant provisions of the 1880 Bill and of his draft reflected the common law (with some modifications such as the reference to 'probable consequence' in what became s 8). By the time that the draft of the Queensland Code was prepared and the Code enacted, the law relating to principal and accessory was so well established and so deeply entrenched that it formed an essential part of the foundations of the common law criminal justice system.

The Code

Sections 7(b) and (c) of the Code

Self‑evidently, the terms of s 7 and s 8 reflect the common law categories of criminal liability. However, the common law has also provided content for the wording of the sections. That is most readily seen in what the prosecution must prove to establish that an accused is guilty of an offence pursuant to s 7(b) and s 7(c). The words 'enabling', 'aiding' and 'aids' have not been interpreted and applied solely by reference to their ordinary meanings.
This court has on a number of occasions identified four matters that must be proved beyond a reasonable doubt to establish the guilt of an accused under s 7(b) and (c):
(a)a person or persons (the principal) has committed the offence;
(b)the aider had actual knowledge of the facts amounting to the offence committed by the principal;
(c)the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence;
(d)what the aider did or omitted to do actually aided or assisted the commission of the offence.
See Ritchie v The State of Western Australia [2016] WASCA 134 [84] (McLure P); Bomford v The State of Western Australia [2014] WASCA 43 and Scafetta v The State of Western Australia [2010] WASCA 209.
The matters that the prosecution must prove reflect what was stated in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. That appeal concerned s 351 of the Crimes Act 1900 (NSW) which provided that 'any person who aids, abets, counsels, or procures, the commission of any misdemeanour … may be indicted, convicted, and punished as a principal offender'.
Gibbs CJ considered that the very words 'aids, abets, counsels or procures', and the synonyms that expressed their meanings, indicated that a particular state of mind was essential before a person could become liable as a secondary party for the commission of an offence. The person had to be in some way 'linked in purpose with the person actually committing the crime' (480); (adopting what was said by Cusson ACJ in R v Russell [1933] VLR 59, 67). However, reference was made to the common law to establish that the prosecution must also prove knowledge of the facts that constituted the offence. That requirement could not be simply inferred from the ordinary meaning of the words used in the section.
The common law required proof of the aider's knowledge and intention to establish his or her guilty mind. However, it remains necessary for the prosecution to prove knowledge and intention for the purpose of s 7(b) and s 7(c) of the Code in order to distinguish between a person who unwittingly aids in the commission of an offence or who was compelled to assist. Consequently, the section has been interpreted for the purpose of determining criminal liability by reference to the common law.
Professor Smith considered the question of whether the verbs 'aid', 'abet', 'counsel' and 'procure' were ordinary words or technical terms in his essay. He concluded that the words, when used in a statute, were intended to be interpreted according to their well established legal meanings; that is, the words were intended to incorporate the common law concepts of secondary participation (Smith, 124 ‑ 125). That approach is consistent with the recognition in the judgment of Mason J in Sungravure that words may be intended to convey, in this instance, a well‑established and accepted legal meaning. It has been necessary to refer to the common law, traced through the history of the drafting and enactment of the Queensland Code and the Code, to arrive at an interpretation of s 7(b) and s 7(c) that satisfies its statutory purpose. That is a process of statutory interpretation that is, in my view, consistent with the principles stated in City of Kwinana v Lamont.
That is not to say that s 7 is necessarily a perfect reflection of the common law as at the time that the Code was enacted. Although this court has not conventionally drawn a distinction between what must be proved under s 7(b) and s 7(c) of the Code, arguably the wording of the subsections suggests an important difference. Section 7(b) refers to a person who does or omits to do any act for the purpose of enabling or aiding another person to commit an offence. The focus of the subsection is on the purpose of the accused in acting or not acting rather than on the effect of the act or omission. Accordingly, it may not be necessary for the prosecution to prove under s 7(b) that the accused's act or omission did, in fact, enable or aid another person to commit an offence.
Section 7(c), on the other hand, refers to a person who aids another person in committing the offence. The word 'aids' and the expression 'in committing' suggest that the focus of the subsection is on the effect of the accused's conduct. Accordingly, the prosecution is required to prove under s 7(c) that the accused's acts or omissions did, in fact, aid in the commission of an offence.

The allegation of a joint criminal enterprise

As the passage from McAuliffe reproduced above indicated, the allegation that multiple accused were engaged in a joint criminal enterprise is an alternative way of establishing criminal liability. There will be at least some evidence of an agreement or understanding or plan - evidence that the accused have acted jointly - in most cases involving two or more persons. Again, in most cases evidence of an agreement, understanding or plan will be adduced to prove how, as a matter of fact, the offence was committed or to prove the part played by each accused - that one was a 'principal offender' and the others were, for example, 'aiders' within s 7(c) of the Code.
It has been generally accepted that the co‑conspirator's rule may be applied in such cases to determine the evidence that is admissible against the accused (but see below). However, the acts and statements of one accused admitted against another merely form part of the circumstances relied on by the prosecution to establish the guilt of the second accused; that is, the acts and statements of one accused will only have an evidentiary or factual significance in the case against another or other accused. The agreement or joint enterprise between the accused will provide the foundation for evidence to be admitted pursuant to the co‑conspirator's rule but the attribution principle is not otherwise engaged to determine the criminal liability of the accused. That is, the criminal liability of the accused is determined by what they actually did and not by attributing the act or acts of one accused to another accused.
It has been said that in 'ordinary' cases of principal and accessory it is unnecessary, and indeed confusing for the jury, to direct on the law relating to joint criminal enterprise as an alternative basis upon which the criminal liability of the accused might be determined. In Tangye, Hunt CJ noted that it was only necessary for the prosecution to rely upon a 'straightforward' joint criminal enterprise where it could not establish beyond reasonable doubt that the accused was the person who physically committed the offence alleged. Tangye involved a street fight between two groups. There was direct evidence that the appellant punched one person but he was also charged with maliciously inflicting grievous bodily harm to another person. There was no evidence that he attacked that person; rather, there was evidence that two other men did the acts that inflicted the harm. As I read the judgment of Hunt CJ, not only was there no evidence of the appellant's involvement in the assault but there was no evidence that he was aware of the actual attack on the victim. The Crown alleged that the appellant was, nevertheless, guilty of inflicting grievous bodily harm as he was a party to a joint criminal enterprise to attack the group of which the victim was a member. Although the appellant's appeal was allowed, Hunt CJ considered that it was open to the Crown to prove that the appellant was guilty of the offence charged by alleging that he had participated in a joint criminal enterprise to strike or assault members of the victim's group and that 'by his presence, knowing that others were similarly being assaulted by others, and assisting by assaulting one of the men in the group himself - [he was] equally guilty of the attack upon [the victim] even though he did not physically attack him himself' (558).
It has long been recognised that it may be necessary to determine the criminal liability of accused persons for offences allegedly committed during a riot or group fight by establishing that they were participating in a joint criminal enterprise. Macklin, Murphy and Ors (1838) 2 Lew 225; (1838) 168 ER 1136 is an early example of this type of case. Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 is another example of a case where the Crown relied on a joint criminal enterprise as it was unable to identify which of three persons had inflicted an injury that fatally wounded the victim. Huynh and Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 provide yet further examples.
As has been mentioned, Wyles was a different type of case in which a joint criminal enterprise was apparently relied on to establish the criminal liability of each of the accused - each of the accused separately performed an act that constituted an essential element of the offence charged. At least on the reasoning of Franklyn J, the circumstances in Warren and Ireland v The Queen [1987] WAR 314 provided yet a further type of case in which the criminal liability of the accused was to be determined according to the allegation that they were acting in concert.

L v The State of Western Australia

The court stated in L that:
The language of s 7(a) of the Criminal Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) - s 7(d) is required. Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the Criminal Code unless he or she either:
1.does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or
2.deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or
3.deliberately counsels or procures another person to commit the offence [53].
After noting that the decisions of this court in Santos and Heaton v The State of Western Australia [2008] WASCA 32 assumed rather than decided that the common law doctrine of joint criminal enterprise applied, the court concluded that 'participation in a joint criminal enterprise is not a basis for the attachment of criminal liability under the Criminal Code' [63].
The reference in the passage reproduced above to criminal liability under s 7(a) of the Code attaching to a person who does at least one act, alone or in combination with the acts of another person and where they were acting in concert, was explained in L by the following passage:
Section 7(a) of the Criminal Code identifies the criminal liability of '[e]very person who actually does the act or makes the omission which constitutes the offence'. For reasons explained by Franklyn J in Warren and Ireland v The Queen, the reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person.
The operation of s 7(a) differs from the common law of joint criminal enterprise in that, under s 7(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. As the formulation in McAuliffe indicates, under the common law, all participating parties to the arrangement or understanding are liable even if only one does the relevant act. For this purpose, participation in a joint criminal enterprise at common law may be constituted by mere presence when the crime is committed pursuant to the arrangement or understanding [32] ‑ [33]. (citations omitted)
The footnotes to that passage refer to Lacco v The State of Western Australia [2006] WASCA 152; Wyles and R v Sherrington [2001] QCA 105. The court also referred to the judgment of Davies JA (with whom Fryberg and Mullins JJ agreed) in R v Palmer [2005] QCA 2 and the decisions of the Tasmanian Court of Criminal Appeal in Clarke v Tasmania [2013] TASCCA 11 and the High Court in Handlen in support of its conclusion that participation in a joint criminal enterprise was not a basis for attaching criminal liability under the Code. It is convenient to consider the effect of those decisions before making some concluding comments on the issues that arise from L and the judgments to be delivered in this appeal.

Wyles

The trial judge in Wyles interpreted s 7 of the Queensland Code to require that where an offence consisted of more than one 'act' element, such as burglary or robbery, all of the elements had to be committed by the same person or by two or more persons acting in concert each taking part in carrying out each of the elements. As has been seen, at common law the attribution principle was applied to deal with that issue: see, for example, Hurse.
Lucas J in Wyles noted that if the interpretation of s 7 adopted by the learned trial judge was the true construction, the section's operation would differ according to whether an offence consisted of a single element or multiple elements. Further, there would be a significant departure from the common law for offences involving multiple elements as, at common law, 'every act done in furtherance of a common unlawful purpose by any one of several wrongdoers acting in concert is in law done by all of them' (174).
Lucas J noted what had been said by Dixon and Evatt JJ in Brennan but observed that, '[s]ection 7, however uses words which were well understood in the common law; 'principal offender', 'aids', 'counsels', 'procures'; and this may render apposite what Windeyer J said in Valance …' (175). His Honour then referred to a number of authorities that recognised the common law origins of s 7; noted the definition of 'offence' in s 2 of the Queensland Code; further noted that offences such as burglary, robbery or breaking, entering and stealing were not constituted by a single act or omission and referred to the provision of the Acts Interpretation Act1954 (Qld) that stipulated that every word in the singular number was to be construed to include the plural number. His Honour again noted that s 7 attached criminal responsibility to all of the different categories of persons who would have been implicated in an offence at common law and concluded that it was hardly likely that the section was intended to make a drastic change to the law so as to require the person or persons described in s 7(a) to do all the acts that constituted the offence or, in the case of more than one person, that each participated in each of the acts. Finally, his Honour added that, '[i]f there is a difficulty' it could be avoided by reading s 7(a) distributively by relying on the provisions of the Acts Interpretation Act.
In my view, Lucas J did not depart from interpreting s 7(a) according to the common law principles of criminal complicity that applied at the time that the Queensland Code was enacted; that is, he considered that the section imported all of those principles.
Similarly, Hoare J concluded that when the Queensland Code referred to a person 'who actually does the act', it should be construed in the light of the 'very clear law which then applied' (182); that is, the common law that applied at the time that the Code was enacted. His Honour reviewed a number of common law cases in which it had been alleged that the offenders had acted in concert. He concluded from that review that:
It is clear that at the time the Code was enacted the criminal law had developed in a way which could sheet home criminal responsibility by a jury being able to look at the totality of the acts where it could be inferred that persons acted in concert, one doing one thing and others other things, all leading to the completion of the incident which constituted the offence. In such cases each of the perpetrators was held to be liable as a principal. He was treated as if he had 'actually committed the offence' (179 ‑ 180).
His Honour further stated that, '[i]n my opinion s 7(a) of the Code includes cases where there are several persons, acting in concert, each doing some act which in their totality would constitute an offence if done by one person' (182) (emphasis added). That statement is reflected in the conclusion reached in L.

Wyles was a case in which the evidence suggested that the accused had acted with another (unidentified) person in breaking and entering a dwelling house. Arguably, the conclusions expressed by Hoare J, and in particular the statement reproduced immediately above, are to be read in the context of the issue before the court and which was the subject of a reference under the Code following the acquittal of the accused. That would be consistent with the use of the word 'includes' in the statement. Further, and in any event, it is clear that Hoare J considered that s 7(a) incorporated the common law as at the time that the Queensland Code was enacted.
As I read the reasons, Hoare J did not intend to restrict the application of s 7(a) to cases where two or more accused together performed the physical act or acts that constituted the offence so that the doctrine of joint criminal enterprise, and more particularly the attribution principle, could not be applied to determine criminal liability or could only be applied in cases exemplified by Hurse. His Honour apparently accepted that s 7 was to be interpreted and applied according to the common law without any limitation.

Warren and Ireland

In Warren and Ireland, Franklyn J referred to s 10(c) of the Interpretation Act1918 (WA) to interpret the expression 'act or omission' in s 7(a). However, his Honour continued by referring to the judgment of Hoare J in Wyles and in particular, to those parts of the judgment in which Hoare J accepted that the section was to be interpreted as incorporating the common law as at the enactment of the Queensland Code. Franklyn J concluded from that review that:
In my view the observations and findings of Hoare J are good law and are equally applicable to the Criminal Code (WA) the common law relating to principals and joint perpetrators not being significantly different in 1902 when the Western Australian Code was enacted than it was in 1899 when the Queensland law was codified. It follows that it is not necessary for the application of s 7(a) that there be a principal who does 'the act' of grievous bodily harm and an accessory who aids or abets him, and that it was open to the jury to apply s 7(a) if they found, as was open to them and as in my view they clearly did find, that Ireland and Warren were acting in concert and as principals in delivering the series of blows which resulted in Police Constable Smith suffering grievous bodily harm. The words 'person who actually does the act' in s 7(a) are, on the facts of this case to be read as 'all persons who actually do the act or one or more of the acts in the series which constitutes or constitute the offence' (328). (emphasis added)
Earlier in his judgment, Franklyn J had referred to the decision of the Full Court of the Supreme Court of Victoria in R v Clarke and Wilton [1959] VR 645 for the proposition that 'if a person is present at the commission of an offence and in the opinion of the jury on sufficient evidence shows his assent to such commission, he is as guilty as the principal in that crime, and that assent may be properly inferred in some cases by the absence of dissent' (327). Again, in my view Franklyn J considered that s 7(a) was to be interpreted and applied according to the common law at the time that the Code was enacted and that he did not intend to limit the application of the section so as to exclude the doctrine of joint criminal enterprise or to restrict its application to a particular category of cases.

Palmer and Clarke

In Palmer, Davies JA stated:
It is submitted, correctly in my opinion, that the phrase 'joint criminal enterprise' is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence [17].
His Honour further referred to an observation by Thomas JA and Jones J in R v Walton and Harman [2001] QCA 309 to the effect that the language of joint criminal enterprise was not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). His Honour continued:
To that I would add that it may lead to confusion. It may describe an agreement to carry out an offence, participation in which may constitute counselling or procuring within s 7(1)(d) but even here it is not helpful to so describe it. In all these cases, as already mentioned, the question is not whether the accused was a party to a joint criminal enterprise but whether she did something which brought herself within one of the paragraphs of s 7(1). The language of joint criminal enterprise may be more appropriate to s 8 because that section requires a common intention to prosecute an unlawful purpose in conjunction with one another. That is the sense in which that or a similar phrase appears to be used in common law cases [18]. (citations omitted)
Davies JA referred to McAuliffe as an example of the sense in which the expression 'joint criminal enterprise' had been used in common law cases.
With great respect, his Honour's observations present some difficulties on my understanding of the common law. Primarily, the comments appear to have reflected an assumption that a joint criminal enterprise could be alleged at common law to prove that an accused person was an aider or procurer (so that the allegation could, if the common law was incorporated, be used to establish criminal liability for the purpose of s 7(b) ‑ s 7(d)). However, as I have endeavoured to explain, at common law the attribution principle applies to make each participant in a joint criminal enterprise a principal in the first degree - that is, for the purpose of s 7 a person who did the act or acts that constituted the offence. That, in my view, is what the doctrine of joint criminal enterprise would add to s 7 if the doctrine was incorporated on a proper construction of the section - it would include the attribution principle for the purpose of determining who is deemed by s 7(a) to have committed the offence alleged.
The judgments of the Tasmanian Court of Criminal Appeal in Clarke disclose differing views on whether the common law doctrine of joint criminal enterprise is incorporated into s 3 of the Criminal Code (Tas) (which is in materially similar terms to s 7 of the Code). Porter J considered that the common law of criminal complicity was incorporated, including the doctrine of joint criminal enterprise. Wood J held to the contrary. Estcourt J accepted that the trial judge had not erred in directing the jury in accordance with the concept of a joint criminal enterprise. His Honour considered that the direction required the jury to make findings according to the terms of s 3 even if the common law doctrine did not apply. However, as I read the reasons, his Honour did not exclude the possibility that the doctrine of joint criminal enterprise and in particular, the attribution principle were incorporated into s 3 on a proper construction of the section.

Handlen

As the President has observed, the legislative history of the Criminal Code (Cth) is significantly different to that of the Queensland Code and the Code. The legislative history of the Commonwealth Code was discussed in R v LK [2010] HCA 17; (2010) 241 CLR 177.
Further, s 2.1 of the Commonwealth Code stated that the purpose of ch 2 of the Code ('general principles of criminal responsibility') was to:
[C]odify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
Accordingly, the statement of principles in ch 2 was, and was intended to be, exhaustive [5]. However, the plurality also stated that the words 'aids', 'abets', 'counsels' and 'procures' have 'a long history in the law of complicity and are to be understood as having their established legal meaning' [6]. Further, their Honours referred to the judgment of McHugh J in Osland to explain the doctrine of joint criminal enterprise at common law [4].
The remaining aspect of Handlen that must be mentioned concerns the co-conspirator's rule. The rule had been applied in the trial to admit, without objection, evidence against the appellant. As to that, the plurality stated:
The Court of Appeal's analysis proceeded on the assumption that the 'evidentiary content of the Crown case' was unaffected by the misconception as to the basis of the appellants' criminal responsibility [that his responsibility could be determined according to the common law principle of joint criminal enterprise]. The Court of Appeal said that the Crown Prosecutor was 'entitled to lead evidence of the acts and statements of all accused in furtherance of the common purpose of importation on the Tripodi principle'.
…
There was no objection to the admission of evidence of the acts and statements of persons taking place outside the presence and hearing of the appellant against whom they were tendered to prove the existence of the group exercise. This may be explained by the circumstance that defence counsel shared the Crown Prosecutor's mistaken understanding as to the basis of criminal responsibility for importation offences. An appreciation of the true basis of any criminal responsibility might be expected to have prompted consideration of the admissibility of evidence … It is not correct to say that the Crown Prosecutor was 'entitled' to lead evidence to prove the existence of the group exercise [43] ‑ [45]. (citations omitted)
The evidence identified by the plurality as having been admitted against the appellant pursuant to the co‑conspirator's rule was evidence that might otherwise have been relevant to the proof of his involvement in the offence according to s 11.2 of the Commonwealth Code. Consequently, I read the plurality's comments as supporting the President's pithy statement that 'the evidentiary rule is not, and cannot be, separate and independent from the liability rule that underpins it'.
Heydon J held the contrary view. His Honour considered that the co‑conspirator's rule would apply whenever there was evidence of pre‑concert. It was sufficient that if the appellant aided, abetted, counselled or procured he did so by reason of preconcert [55].

Concluding comments

The extent to which the common law informs the interpretation and application of the Code has been a constant source of judicial agitation. The tension between construing the provisions of the Code according to the ordinary meaning of the words used and the need to consider how the common law has resolved problems that have arisen in the application of the Code has produced, at times, seemingly inconsistent conclusions. The difficulties are real. For example, McPherson JA in Sherrington observed that, 'incorporating the expression "in concert" in s 7(1)(a) involves a reversion to the common law, which (unless perhaps all else fails) is considered a form of heresy' [11]. However, his Honour referred in the same judgment to the fact that Queensland courts had always followed the decision of the High Court in Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 on the meaning of the expression 'causes the death of' when used in s 293 of the Queensland Code (s 270 of the Code). As Buss JA noted in TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297, Royall involved the application of common law principles to s 18(1)(a) of the Crimes Act 1900 (NSW).
With respect, it appears to me that the differences in approach to the interpretation of the Code have sometimes been magnified by posing (explicitly or implicitly) the relevant question of construction as being whether the common law applies to the Code. Self‑evidently, that is not the correct question to the extent that it implies that the common law could be superimposed on the Code as an independent and alternative source of criminal liability. References in these reasons to the possibility that s 7 incorporates or embodies or reflects the common law should not be understood as suggesting that such a process of statutory construction is open. Rather, as I have endeavoured to explain, recourse to the history of the drafting of the Code and to the common law may assist in resolving ambiguity in the statutory language or in identifying where particular words or phrases were intended to be construed as embodying accepted legal meanings and concepts.
As I have emphasised, the views expressed in these reasons are tentative. However, my preliminary view is that s 7 of the Code was intended to be, and is to be, interpreted by reference to common law principles of criminal complicity. The principles were deeply embedded in the common law by the time Sir Samuel Griffiths prepared his draft of the Queensland Code. They were capable of being shortly stated by language that was settled and which had acquired particular legal meanings. My preliminary view is that this approach to the interpretation of s 7 extended beyond the language employed in s 7(b) ‑ s 7(d) to the wording of s 7(a). The expression 'the person who does the act … which constitutes the offence' captured settled legal meanings and concepts in the same way as the words 'aids', 'counsels' and 'procures' conveyed an established legal meaning. In particular, the wording of s 7(a) was intended to give effect to common law concepts of joint criminal enterprise, the attribution principle and acting in concert - concepts exemplified by both Hurse and Bingley (to the extent the decisions in those cases might be explained by different principles). In particular, I consider that s 7(a), properly construed, embodies what I have referred to as the attribution principle.
At least two significant problems arise if s 7(a) is interpreted to exclude the application of that principle. First, there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 - to establish the knowledge and intention of the accused for the purpose of s 7(b) ‑ s 7(d). That is the problem that the common law addressed by the concept of a joint criminal enterprise. Second, it may not be possible to rely on the co‑conspirator's rule of evidence if it is not possible to allege that the accused were participants in a joint enterprise for the purpose of determining their criminal liability.
Finally, I note two further matters that may be relevant. First, it was held in R v Webb [1995] 1 Qd R 680 that the final paragraph in s 7 of the Queensland Code provided for the circumstance of an offence committed by an innocent agent. Second, the question of participation may require further consideration if the doctrine of joint criminal enterprise does apply to s 7. That is not only for the reason adumbrated by Gaudron and Gummow JJ in Osland but also because aiding has not been interpreted as requiring presence under s 7 of the Code and the Queensland Code: see Gilles P, The Law of Criminal Complicity (1980) 29.
Buss JA has concluded that s 7(a) has a more extensive operation than that identified by the court in L. His Honour referred to two examples:
(a)Where two or more persons make or enter into an agreement or plan to commit a specific offence and, during the subsistence of the agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute that offence with the authority of and therefore on behalf of all the persons to the subsisting agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the specific offence.
(b)Where two or more persons make or enter into an overarching agreement or plan to carry on a business involving ongoing criminal conduct for a definite or indefinite period (for example, the carrying on of a drug dealing business) and, during the subsistence of the overarching agreement or plan, one of them performs all of the acts or makes all of the omissions which constitute a specific offence pursuant to or in implementation of the overarching agreement or plan and with the authority of and therefore on behalf of all of the persons to the subsisting overarching agreement or plan, each of them will have actually done the relevant acts or actually made the relevant omissions, as the case may be, and each of them will be deemed by s 7(a) to have committed the offence.
My preliminary view is that, as Buss JA has stated, s 7(a) has a more extended operation than the court suggested in L and that, in particular, s 7(a) would apply in the way that his Honour identified in the above examples. However, it will be apparent that I have formed that view on a different analysis of the meaning of s 7(a) to that adopted by his Honour. In particular, my preliminary view is that s 7(a), properly construed, incorporates what I have referred to as the attribution principle.