Clarke, Tofilau, Hill and Marks v The Queen

The applicants, Clarke, Tofilau, Hill and Marks, were convicted of various offences arising from a joint criminal enterprise. They appealed their convictions to the High Court of Australia. The central dispute concerned the proper application of the law relating to joint criminal enterprises, particularly in circumstances where the prosecution alleged that the applicants had participated in a common plan to commit a robbery, and that one of the applicants had subsequently committed murder in the course of that robbery.

The High Court was required to determine whether the trial judge had erred in directing the jury on the law of joint criminal enterprise. Specifically, the court had to consider whether the jury should have been instructed that, for a conviction for murder based on joint criminal enterprise, the prosecution must prove that each participant in the joint criminal enterprise intended to kill or cause grievous bodily harm to the victim, or that the murder was a probable consequence of the carrying out of the common purpose. The court also considered whether the trial judge’s directions adequately explained the distinction between the liability of a participant in a joint criminal enterprise for the primary offence and for a more serious offence committed by another participant.

The High Court held that the trial judge’s directions were erroneous. Their Honours explained that for a person to be liable for murder as a secondary party to a joint criminal enterprise, it is not sufficient to prove that the murder was a probable consequence of the carrying out of the common purpose. Rather, the prosecution must prove that the secondary party intended to kill or cause grievous bodily harm to the victim, or that the secondary party knew that the principal offender intended to kill or cause grievous bodily harm, or that the secondary party knew that the principal offender might kill or cause grievous bodily harm and nevertheless proceeded with the joint criminal enterprise. The court emphasised that the liability of a secondary party for a more serious offence committed by a principal offender in the course of a joint criminal enterprise arises from the secondary party’s own culpability, not merely from their association with the principal offender.

The High Court allowed the appeals, quashed the convictions for murder, and remitted the matters to the Full Court of the Supreme Court of New South Wales for determination of the appropriate orders, including whether the applicants should be retried.