Smith v The Queen

This matter came before the High Court of Australia concerning an appeal by Smith against a decision of the Crown. The core of the dispute revolved around the legal principles governing criminal liability for acts committed in furtherance of a common criminal purpose.

The central legal issue before the Court was whether the test for criminal liability in such circumstances, as established in *Johns v R*, required that the possibility of a more serious or incidental crime being committed needed to be contemplated by all parties to the common purpose, or if contemplation by only one party was sufficient. This question arose in the context of a special leave application in *Mills*, where the Court had previously made remarks regarding the application of the *Chan Wing-Siu* test.

The Court, in its remarks on the special leave application in *Mills*, indicated that the law as stated in *Johns v R* was not complex and did not require review. It suggested that in many cases, it would be sufficient to direct a jury by adapting the formula from *Chan Wing-Siu v R*, which focused on whether an accused contemplated that a partner in the enterprise might use a weapon with the intention of causing really serious bodily harm. The Court expressed the view that directions distinguishing between "foundational" and "incidental" crimes were likely to be confusing. Mr Justice Deane, while agreeing with the general approach, noted specific concerns regarding the application to Adrian Mills, suggesting the jury's directions on common purpose and joint intention were particularly significant in his case. The appellant's counsel argued that the remarks in *Mills* were intended to indicate that a direction on the *Chan Wing-Siu* test would be appropriate in *some* cases, depending on the evidence, rather than establishing a universal rule.