HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJMatter No A28/2015
EVERARD JOHN MILLER APPELLANT
AND
THE QUEEN RESPONDENT
Matter No A22/2015
WAYNE DOUGLAS SMITH APPLICANT
AND
THE QUEEN RESPONDENT
Matter No A17/2015
JOHNAS JEROME PRESLEY APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
FOR THE STATE OF SOUTH AUSTRALIA RESPONDENTMiller v The Queen
Smith v The Queen
Presley v Director of Public Prosecutions (SA)[2016] HCA 30
24 August 2016
A28/2015, A22/2015 & A17/2015
ORDER
Matter No A28/2015
1.Appeal allowed.
2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 28 April 2015.
3.Remit the matter to the Court of Criminal Appeal for determination.
Matters No A22/2015 and No A17/2015
1.Special leave to appeal granted.
2.Appeal treated as instituted and heard instanter and allowed.
3.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 28 April 2015.
4.Remit the matter to the Court of Criminal Appeal for determination.
On appeal from the Supreme Court of South Australia
Representation
D M J Bennett QC and A L Tokley SC with G N E Aitken for the appellant in A28/2015 (instructed by Noblet & Co)
T A Game SC with K G Handshin for the applicant in A22/2015 (instructed by Legal Services Commission)
M E Shaw QC with B J Doyle for the applicant in A17/2015 (instructed by Old Port Chambers)
W J Abraham QC with J D Williams and E O Brown for the respondent in each matter (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Miller v The Queen
Smith v The Queen
Presley v Director of Public Prosecutions (SA)
Criminal law – Criminal liability – Complicity – Extended joint criminal enterprise liability – Where appellants and fourth man involved in violent altercation, during which fourth man fatally stabbed victim – Where appellants tried with fourth man for murder – Where bases on which murder left to jury included extended joint criminal enterprise – Whether liability for murder on basis of extended joint criminal enterprise should have been left to jury – Whether extended joint criminal enterprise proper basis for conviction of murder.
Criminal law – Appeal – Where appeal against conviction on ground jury verdict unreasonable or cannot be supported having regard to evidence – Where evidence appellants intoxicated – Whether Court of Criminal Appeal of Supreme Court of South Australia reviewed sufficiency of evidence.
Criminal law – Criminal liability – Complicity – Extended joint criminal enterprise – Consideration of McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 in light of R v Jogee [2016] 2 WLR 681; [2016] 2 All ER 1 – Whether doctrine of extended joint criminal enterprise liability should be confined or abandoned.
High Court –…
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- AGLC
- Miller v The Queen [2016] HCA 30
- Case
- [2016] HCA 30
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court included whether liability for murder on the basis of an extended joint criminal enterprise should have been left to the jury, and whether such a basis was a proper foundation for a murder conviction. The Court also considered whether the doctrine of extended joint criminal enterprise, as established in *McAuliffe v The Queen*, should be confined or abandoned in light of overseas jurisprudence, and whether *McAuliffe* should be reopened and overruled. The sufficiency of the evidence, particularly in light of the appellants' intoxication, was also a point of contention.
The Court affirmed the principles established in *McAuliffe* and *Gillard*, emphasising that while accessorial responsibility is based on an intentional contribution to a crime, the criminal responsibility of a participant in a joint criminal enterprise is grounded in the authorisation of a crime incidental to that enterprise. The Court reasoned that deliberate participation in a joint criminal enterprise, with knowledge of the foreseen risk of an incidental crime, bears upon individual moral culpability. Participants in such an enterprise are not merely accessories but are, in essence, partners in crime, each authorising acts foreseen as possible incidents of the enterprise. The Court noted that the agreement to participate in a joint criminal enterprise, though it may be inferred, must be proved beyond reasonable doubt.
The appeals were allowed, the orders of the Court of Criminal Appeal of the Supreme Court of South Australia were set aside, and the matters were remitted to the Court of Criminal Appeal for determination.
Orders
Orders of the court
Matter No A28/2015
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 28 April 2015.
3. Remit the matter to the Court of Criminal Appeal for determination.
Matters No A22/2015 and No A17/2015
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter and allowed.
3. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 28 April 2015.
4. Remit the matter to the Court of Criminal Appeal for determination.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, KIEFEL, BELL, NETTLE AND GORDON JJ, KEANE J
In Clayton v The Queen[169], six members of this Court declined to reconsider the position established in McAuliffe and Gillard, and emphasised that, while accessorial responsibility is grounded in the secondary party's intentional contribution to a particular crime, the criminal responsibility of a participant in a joint criminal enterprise is grounded in the authorisation of a crime which is incidental to the enterprise[170].[169](2006) 81 ALJR 439; 231 ALR 500; [2006] HCA 58.[170]Clayton v The Queen (2006) 81 ALJR 439 at 444 [20]; 231 ALR 500 at 505.Considerations of principle The position established in Australian law by these decisions does not deny or diminish the importance of the overarching concern that criminal responsibility should reflect the moral culpability of the individual offender. Rather, the Australian position recognises that deliberate participation in a joint criminal enterprise which carries a foreseen risk of an incidental crime itself has an important bearing upon the individual moral culpability of each participant for the incidental crime. The implications of deliberate participation in a criminal enterprise for the moral culpability of each individual participant are ignored if one adopts an analysis of criminal responsibility which starts from an assumption that the person who commits the actus reus of the incidental offence is the principal offender and all others complicit in that offence are to be regarded as having accessorial responsibility only. The moral culpability of a participant in a crime will not always be revealed by an analysis which assumes that the participant has merely aided or abetted the commission of the actus reus by the principal offender[171]. [171]Simester, "The Mental Element in Complicity", (2006) 122 Law Quarterly Review 578; Simester and Sullivan, Criminal Law: Theory and Doctrine, 3rd ed (2007) at 228; Clayton v The Queen (2006) 81 ALJR 439 at 444 [20]; 231 ALR 500 at 505. In particular, where two or more persons agree to commit a crime together knowing that its execution includes the risk of the commission of another crime in the course of its execution, there is no obvious reason, in terms of individual moral culpability, why the person who commits the actus reus should bear primary criminal responsibility, as between himself or herself and the other participants to the joint criminal enterprise, for the incidental crime. Because of the fact of the agreement to carry out jointly the criminal enterprise, the person who commits the actus reus of the incidental crime is necessarily acting as the instrument of the other participants to deal with the foreseen exigencies of carrying their enterprise into effect. The decision in Jogee proceeds squarely on the basis that cases of complicity in a crime must be analysed as a subset of accessorial liability[172]. To insist that the liability of participants in a joint criminal enterprise be analysed exclusively in terms of accessorial liability is to fail to recognise that each participant in a joint criminal enterprise is not merely an accessory to a crime committed by someone else. Where parties commit to a joint criminal enterprise, each participant becomes, by reason of that commitment, both the principal and the agent of the other participants: for the purposes of that enterprise they are partners in crime. Each participant also necessarily authorises those acts which he or she foresees as possible incidents of carrying out the enterprise in which he or she has agreed, and continues, to participate. It is to be understood, of course, that the agreement to participate in a joint criminal enterprise, while it may be inferred from the circumstances, must be proved as a fact beyond reasonable doubt. [172][2016] 2 WLR 681 at 704 [78]; [2016] 2 All ER 1 at 24.