5. Criticisms of present law

Updates and background for this project (Digest)

• Present test for extended common purpose
• Criticisms of present test

5.1 The focus of the Commission’s review is on two types of complicity described above:

• Extended common purpose, and
• Accessorial liability.

5.3 This Consultation Paper concentrates on the doctrine of extended common purpose, rather than accessorial liability. This is because current controversy, as our terms of reference show, centres on appeals concerning the alleged misdirection of juries by trial judges in extended common purpose cases. Moreover, these appeals invariably involve the application of the law of complicity in a particular context, namely homicide cases.¹¹⁶

5.4 Notwithstanding the focus of this Consultation Paper on extended common purpose in homicide cases, the Commission is interested in identifying other areas of the law of complicity that should be considered in the course of this inquiry. Accordingly, we invite submissions on this topic.

Present test for extended common purpose

5.5 In the common law jurisdictions of Australia, including New South Wales, the test for imposing extended common purpose liability in homicide cases is a subjective one of “possible foreseeability.”¹¹⁷ Extended common purpose in New South Wales covers any additional crime foreseen as a possible consequence of the joint criminal enterprise, rather than any foreseen on the narrower test of a probable consequence.

5.6 The test for extended common purpose liability in New South Wales is expressed in the High Court case of Gillard v The Queen as follows:

According to the principles stated in McAuliffe, the culpability of the [secondary participant] in the event that [the primary participant] shot and killed [the victim] would depend upon the scope of their common design [joint criminal venture], and what [the secondary participant] foresaw as a possible incident of the design. If [the secondary participant] foresaw, as a possible incident of carrying out the common design, that [the primary participant] might shoot [the victim] with intent to kill or cause grievous bodily harm, then [the secondary participant] would be guilty of murder.¹¹⁸

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.” The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.¹²¹

Criticisms of present test

Present test is too wide

5.9 The main criticism of the present “possible foreseeability” test for extended common purpose liability in New South Wales is that it is too wide. It has been referred to as the “overreach of criminal liability”.¹²² The test, it is argued, needs to be simpler, narrower, and more comprehensible.

5.10 Justice Kirby is a prominent critic of the current test and has outlined his objections to it in several High Court cases involving extended common purpose liability in homicide cases.¹²³ These objections are as follows:

• Present test for the legal responsibility of secondary participants in extended common purpose liability cases needs to align better with notions of moral culpability;¹²⁴
• Present test in effect holds a secondary participant liable for the same murder on a “lesser form of mens rea”¹²⁵ than required for the primary participant who actually commits the murder (actus reus). This is unjust;¹²⁶
• Present test creates a “serious disparity”¹²⁷ between the subjective element required of a secondary participant in the case of “aiding, abetting, counselling or procuring” a murder and the subjective element required of a secondary participant in the case of “extended common purpose” liability in a murder;
• Present test in effect expands the potential for a secondary participant to be found guilty of murder and lessens the ability of a jury, acting rationally and honestly on this present test, of finding the alternative verdict of guilty of manslaughter;¹²⁸
• Undue complexity in the conduct of trials associated with failing to correctly identify the “foundational crime” in extended common purpose trials; and
• Present test of extended common purpose for secondary liability in murder cases places trial judges in difficulty explaining the law to juries, and results in a great number of appeals.

5.11 The subjective approach that one is only responsible for one’s own moral wrongdoings and shortcomings, and not those of others, is reflected in the fundamental principle of criminal liability: that criminal actions (actus reus) and intentions (mens rea) must normally co-incide.¹³⁰ Therefore, the criticism has been made that joint liability for extended common purpose is cast too widely, and catches co-participants who did not perform the critical acts and shared no intention concerning the consequences caused by those acts.¹³¹

[T]he doctrine of common purpose imposes criminal liability upon secondary offenders in a way that sometimes appears to offend fundamental principles of our criminal law. By those principles (limited exceptions apart) criminal liability ordinarily attaches only to the doing of criminal acts with a requisite criminal intention.¹³²

[I]t countenances what is “undoubtedly a lesser form of mens rea.”¹³³

Foresight of what might possibly happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. Its adoption as a test for the presence of the mental element necessary [for a secondary participant] to be guilty of murder amounts to a seriously unprincipled departure from the basic rule that is now generally reflected in Australian criminal law that liability does not attach to criminal conduct of itself, unless that conduct is accompanied by a relevant criminal intention.¹³⁴

A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder.¹³⁵

If liability is confined to offences for the commission of which the accused has previously agreed, an accused person will not be guilty of any form of homicide in a case where, despite foresight of the possibility of violence by a co-offender, the accused has not agreed to its use. That result is unacceptable. That is why the common law principles have developed as they have^.137

5.15 An argument in favour of the status quo on the liability of a secondary participant is also found in the social policy argument of “deterrence”. This argument is well-expressed by Justice Kirby in Gillard v The Queen:¹³⁸

Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law’s experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.

5.16 One alternative approach to this test was canvassed by Justice Kirby in Clayton v The Queen.¹³⁹ It would replace the test of “possible foreseeability” with one of “probable foreseeability”. This is closer to the Queensland, Tasmanian and Western Australian approach in their respective criminal codes.¹⁴⁰ However, Justice Kirby felt that such a “modest”¹⁴¹ change would not solve the tension between legal responsibility and moral culpability of the secondary participant.¹⁴² Justice Kirby had similar concerns with the use of the “recklessness” test under section 11.2 of The Criminal Code (Cth);¹⁴³ in particular that, like the tests of “possibility” or “probability,” it did not strongly bind the legal responsibility and moral culpability of the secondary participant.

5.17 An alternative test which attempts to bind legal responsibility and moral culpability of the secondary participant more closely, was cited by Justice Kirby in Clayton v The Queen as a test discerning an intention by the secondary participant of either wanting the primary participant to so act, or knowing that it was a virtual certainty that the primary participant would so act.¹⁴⁴ This test would be based on “a precise and sensible solution, namely that a killing should be classified as murder if there is an intention to kill or an intention to cause really serious bodily harm coupled with awareness of the risk of death.”¹⁴⁵

Present test unjustly holds a secondary participant liable for the same murder on a “lesser form of mens rea” than the primary participant who commits the murder.¹⁴⁶

5.18 Justice Kirby in Gillard v The Queen explained why he considers the test is an exception to the normal requirements of criminal liability:

If a principal offender were to kill the victim, foreseeing only the possibility (rather than the probability) that his or her actions would cause death or grievous bodily harm, that person would not be guilty of murder. Yet a secondary offender with a common purpose could, on the current law, be found guilty of murder of the same victim on the basis of extended common purpose liability if the jury were convinced that he or she had foreseen the possibility that one of the group of offenders might, with intent, cause grievous bodily harm and if, in the result, one of the group does indeed kill the victim with the intention to cause such grievous bodily harm.¹⁴⁷

If foreseeability of risk is insufficient to found the mens reas of murder for a principal then the same test of liability should apply in the case of a secondary party to the joint enterprise…it is wrong for the present distinction in mental culpability to operate to the disadvantage of a party who does not commit the actus reus and that there is a manifest anomaly where there is one test for a principal and a lesser test for a secondary party.

I recognise that as a matter of logic there is force in the argument advanced on behalf of the appellants, and that on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party. But the rules of the common law are not based solely on logic but relate to practical concerns and, in relation to crimes committed in the course of joint enterprises, to the need to give effective protection to the public against criminals operating in gangs…In my opinion there are practical considerations of weight and importance related to considerations of public policy which justify the principle…and which prevail over considerations of strict logic.¹⁴⁹

5.21 Under the common law, guilty intention on the part of the secondary participant to cause (at least) very serious injury has to be proved by the prosecution in two types of complicity cases: joint enterprise liability (“acting in concert”) or aiding and abetting (“accessorial liability”). However, in the case of the third type of complicity, extended common purpose, proof of guilty intention by the secondary participant to cause at least really serious injury as such is unnecessary.¹⁵¹ All that the prosecution has to prove in extended common purpose cases, is that the secondary participant thought that the criminal offence (which did occur) was “possible”, rather than any guilty intention on the part of the secondary participant to cause the criminal offence to occur.

5.22 As stated above, the facts of Clayton v The Queen show the crime which did occur can be categorised by the prosecution under any of the three categories of complicity, yet there are differences in the way the elements of each are established and proved. For example in the case of extended common purpose liability there is no need to refer to specific intention on the part of the secondary participant.¹⁵²

5.23 As Justice Kirby in Clayton v The Queen in a minority judgment explained:

Why, in point of legal principle, should murder in consequence of acting in concert require proof by the prosecution of a specific intention on the part of the secondary offender when no specific intention at all was required for proof of murder [in case of extended common purpose] in the course of carrying out a purpose held in common that did not include murder [that is, as part of a joint criminal venture]?¹⁵³

It is…unjust…Effectively at the option of prosecutors, it fixes people with very serious criminal liability because they were in the wrong place at the wrong time in the wrong company. It is prone to misuse by public authorities. It deflects prosecutors and juries from the difficult but ordinarily necessary task of assigning criminal liability appropriately by reference to proved moral culpability, particularly in circumstances of homicide which attract the serious punishments properly imposed in respect of conviction for such offences.¹⁵⁴

liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture.¹⁵⁵

Aiding/abetting and joint enterprise are structurally unalike. In cases of aiding and abetting only one crime is at issue…In joint enterprise cases, the wrong is the agreement or confederacy.¹⁵⁶

The law has a particular hostility to criminal groups…the rationale is partly one of dangerousness: “experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences.”¹⁵⁷ Criminal associations are dangerous. They present a threat to public safety that ordinary criminal prohibitions, addressed to individual actors, do not entirely address…A group is a form of society, and a group constituted by a joint unlawful enterprise is a form of society that has set itself against the law and order of society at large…Thus concerted wrongdoing imports additional and special reasons why the law must intervene.¹⁵⁸

Present test expands the potential for a secondary participant to be found guilty of murder and lessens the ability of a jury finding the alternative verdict of guilty of manslaughter¹⁶⁰

5.28 The extended common purpose test is now so broad (being proof of foresight of the possibility that the victim will suffer very serious harm as a result of the joint criminal enterprise), it expands the potential liability for murder. This may leave little room for an intermediate culpability of a secondary participant for unlawful homicide such as manslaughter (rather than murder).¹⁶¹ This is not the fault of trial judges in misdirecting juries.

If a person [the secondary participant], who did not perform the acts causing the homicide [no actus reus] and did not actually intend the death of, or grievous bodily harm to the victim [no mens rea], can still be liable for the murder on the basis of the “traditional” or “extended” common purpose doctrine, it is difficult to identify the case that will somehow fall outside such joint liability, authorising the jury to return a verdict of manslaughter. If, within current doctrine, such a difficulty appears for this Court, it will also present itself to legal advisers, counsel at trial and trial judges in explaining the point of differentiation to the jury which has the responsibility of deciding the issue.¹⁶²

5.30 The availability of manslaughter as an alternative to murder or acquittal ameliorates the potential overreach of extended common purpose liability as it is presently expressed.¹⁶⁵

Undue complexity in the conduct of trials associated with failing to correctly identify the “foundational crime” in extended common purpose trials

5.31 It is of great importance to the success or otherwise of establishing liability under “extended common purpose” for the prosecution to clearly specify the “foundational crime” or the “joint criminal enterprise”.¹⁶⁶

5.32 This was evident in R v Taufahema.¹⁶⁷ The facts were that four men on parole met as arranged and went for a ride together in a stolen car, each armed with a loaded stolen revolver. As the car was speeding excessively a highway patrol car followed in pursuit. The speeding car fled but collided with an obstacle on the road and stopped. All four passengers leapt from the car. One of the passengers (not Taufahema) shot several bullets into the windscreen of the patrol car, hitting a policeman sitting inside who later died of his injuries. Two pairs of gloves and a hockey mask were found in or near the car. Taufahema, the driver of the stolen car, was soon apprehended on the run with his revolver. He was charged with the policeman’s murder.

5.33 The prosecution originally suggested that Taufahema’s liability for murder would rest on a joint criminal enterprise; that is, a jointly agreed plan by the four men to avoid arrest by using a revolver to shoot a police officer, if necessary. However, there was no evidence of such a jointly agreed plan and as the trial progressed the prosecution case altered to secondary liability for murder under “extended common purpose”.¹⁶⁸ The issue then became what was the “foundational crime” or “joint criminal enterprise” on which the extended common purpose liability rested.

5.34 Three different grounds were proffered during the course of the trial in the Supreme Court of New South Wales before Justice Sully and a jury, and subsequent appeals¹⁶⁹ by the prosecution for asserting the existence of the original foundational crime on which the extended common purpose crime of murder could be attached. These alleged primary or foundational offences were an (original) agreement among the four men to:

• evade lawful arrest;¹⁷⁰
• hinder a police officer in the execution of his duty;¹⁷¹ and
• participate in an armed robbery.¹⁷²

what the prosecution proposes to do is rely on the same evidence [at the proposed new trial] as was called at the first trial, but to seek to characterise the facts which that evidence may establish in a different way, but not in radically different way. At the first trial the criminal enterprise revealed by the evidence was not called “armed robbery”, but the evidence was capable of supporting the inference that it was.¹⁷⁴

Present test places trial judges in difficulty explaining the law to juries and results in a great number of appeals

5.37 Facts in criminal trials differ. Trial judges have to explain the complex web of responsibilities in, and exceptions to, the law of complicity to juries in comprehensible terms. These “jury directions” are a frequent source of grounds for appeal.

5.38 There is arguably a need to derive principles which can be clearly and simply explained to juries by trial judges in the place of the present “potentially confusing” state of secondary liability under the common law.¹⁷⁵

5.39 In a recent article, Justice Eames, supported¹⁷⁶ the view of Justice Kirby in Clayton v The Queen that the law of complicity is complicated and difficult for trial judges to explain to juries.¹⁷⁷ Justice Eames argued that trial judges giving directions to juries on complicity should have a readily sourced database of written precedents to assist them. ¹⁷⁸

5.40 The Commission notes the difficulties presented to trial judges in giving jury directions in the area of complicity and the desirability of the jury receiving written instructions, rather than having directions delivered to them orally. Any reform of the law must make it easier for the judge to direct the jury. The issue of directions by a judge to a jury in criminal trials generally, is being presently examined under another recent Commission reference “Jury directions in criminal trials”.¹⁷⁹ The Commission will consider general issues on jury directions in this other reference.

115. Ashworth, above n 27, [24.58]: ‘There is…a fundamental doctrinal obscurity: are there simply two forms of liability, that of principals and of accomplices, or is there a third and separate doctrine of ‘joint enterprise’? Judicial and academic opinions are divided, but this branch of criminal law is so malleable that it is unlikely that the outcome of any case would be held to depend on whether or not ‘joint enterprise’ exists as a separate set of rules.’

116. For example, all the major cases in the area of complicity: Johns (TS) v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; R v Powell [1999] 1 AC 1; Chan Wing-Sui v The Queen [1985] AC 168; Clayton v The Queen (2006) 231 ALR 500 were appeal cases involving extended common purpose liability for homicide. R v Taufahema (2007) 228 CLR 232 is a recent example.

117. McAuliffe v The Queen (1995) 183 CLR 108 and Gillard v The Queen (2003) 219 CLR 1.

118. Gillard v The Queen (2003) 219 CLR 1, [19] (emphasis added).

119. McAuliffe v The Queen (1995) 183 CLR 108, 115.

120. Gillard v The Queen (2003) 219 CLR 1, [112] (Hayne J).

121. Gillard v The Queen (2003) 219 CLR 1, [112] (Hayne J).

122. Clayton v The Queen (2006) 231 ALR 500, [119] (Kirby J).

123. For example, Gillard v The Queen (2003) 219 CLR 1; Clayton v The Queen (2006) 231 ALR 500; R v Taufahema (2007) 228 CLR 232.

124. Clayton v The Queen (2006) 231 ALR 500, [90] (Kirby J).

125. Clayton v The Queen (2006) 231 ALR 500, [108] (Kirby J).

126. Clayton v The Queen (2006) 231 ALR 500, [108], [109], [110] (Kirby J).

127. Clayton v The Queen (2006) 231 ALR 500, [104] (Kirby J).

128. Clayton v The Queen (2006) 231 ALR 500, [109] (Kirby J); Gillard v The Queen (2003) 219 CLR 1, [92] (Kirby J).

129. Clayton v The Queen (2006) 231 ALR 500, [90] (Kirby J).

130. Gillard v The Queen (2003) 219 CLR 1, [47] (Kirby J).

131. Gillard v The Queen (2003) 219 CLR 1, [62] (Kirby J).

132. Gillard v The Queen (2003) 219 CLR 1, [46] (Kirby J) (emphasis in original).

133. Clayton v The Queen (2006) 231 ALR 500, [108] (Kirby J).

134. Clayton v The Queen (2006) 231 ALR 500, [97] (Kirby J) (emphasis in original).

135. Clayton v The Queen (2006) 231 ALR 500, [17] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ) (emphasis in original).

136. Gillard v The Queen (2003) 219 CLR 1, [115] (Hayne J).

137. Gillard v The Queen (2003) 219 CLR 1, [119] (Hayne J). Common purpose principles require consideration of what the secondary participant foresaw, not just what he or she agreed would be done. This is the common law position in Australia, and the common law position arrived at in the Privy Council case of Chan Wing-Sui v The Queen [1985] AC 168 and in the English Court of Appeal case of R v Hyde [1991] 1 QB 134.

138. Gillard v The Queen (2003) 219 CLR 1, [62].

139. Clayton v The Queen (2006) 231 ALR 500, [121].

140. Clayton v The Queen (2006) 231 ALR 500, [123].

141. Clayton v The Queen (2006) 231 ALR 500, [121].

142. Clayton v The Queen (2006) 231 ALR 500, [124].

143. Clayton v The Queen (2006) 231 ALR 500, [123], [124].

144. Clayton v The Queen (2006) 231 ALR 500, [122], [125], [126].

145. R v Powell [1999] 1 A.C. 1, 15 (Lord Steyn).

146. Clayton v The Queen (2006) 231 ALR 500, [108] (Kirby J).

147. Clayton v The Queen (2006) 231 ALR 500, [100] (Kirby J) (emphasis in original).

148. [1999] 1 AC 1, 23.

149. R v Powell [1999] 1 AC 1, 25 (Lord Hutton).

150. Clayton v The Queen (2006) 231 ALR 500, [104] (Kirby J).

151. Clayton v The Queen (2006) 231 ALR 500, [113] (Kirby J).

152. Clayton v The Queen (2006) 231 ALR 500, [114] (Kirby J).

153. Clayton v The Queen (2006) 231 ALR 500, [105] (Kirby J).

154. Clayton v The Queen (2006) 231 ALR 500, [119] (Kirby J).

155. Clayton v The Queen (2006) 231 ALR 500, [20] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ).

156. Andrew P Simester and Robert G Sullivan, Criminal Law: Theory and Doctrine (2^nd ed, Hart Publishing, 2003) 225.

157. R v Powell [1999] 1 AC 1, 14.

158. Andrew P Simester and Robert G Sullivan, Criminal Law: Theory and Doctrine (2^nd ed, Hart Publishing, 2003) 226.

159. This was the factual situation in Clayton v The Queen (2006) 231 ALR 500 and one of the prosecution arguments was based on extended common purpose [11]: ‘each applicant was guilty of murder because each had agreed to assault the deceased using weapons, and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted on the victim by one of them in the course of their carrying out the agreed assault.’

160. Clayton v The Queen (2006) 231 ALR 500, [109] (Kirby J): ‘By providing a legal footing upon which a jury might find a secondary offender guilty upon proof of mere foresight of the possibility that the victim will suffer really serious harm as a result of the common purpose of the accused, the present doctrine expands the liability of secondary offenders, in the case where a murder is charged, so far that, realistically, there will ordinarily be very little, if any, room left for manslaughter.’ Gillard v The Queen (2003) 219 CLR 1, [92] (Kirby J) ‘To the extent that an accused is liable for mere possibilities that were (or were to be taken as) contemplated, the scope of accessorial responsibility for murder is extended. The scope of manslaughter is arguably diminished.’

161. Gillard v The Queen (2003) 219 CLR 1, [65], [66], [67] (Kirby J).

162. Gillard v The Queen (2003) 219 CLR 1 [67] (Kirby J).

163. Gillard v The Queen (2003) 219 CLR 1, [70].

164. Gillard v The Queen (2003) 219 CLR 1, [70].

165. Gillard v The Queen (2003) 219 CLR 1, [83] (Kirby J); R v Barlow (1997) 188 CLR 1, 43-35 (Kirby J): ‘In the non-code States of Australia the right of a jury to convict a common purpose co-offender of a lesser offence than that of the principal has long been recognised.’

166. R v Taufahema (2007) 228 CLR 232, [120] (Kirby J).

167. R v Taufahema (2007) 228 CLR 232.

168. R v Taufahema (2007) 228 CLR 232, [3], [4], [6] (Gleeson CJ and Callinan J).

169. Taufahema v The Queen (2006) 162 A Crim R 152; R v Taufahema (2007) 228 CLR 232.

170. Taufahema v The Queen (2006) 162 A Crim R 152, [20].

171. Taufahema v The Queen (2006) 162 A Crim R 152, [24].

172. R v Taufahema (2007) 228 CLR 232, [54].

173. R v Taufahema (2007) 228 CLR 232 Gummow, Hayne, Heydon and Crennan JJ (Gleeson CJ, Kirby and Callinan JJ dissenting), granting special leave to appeal.

174. R v Taufahema (2007) 228 CLR 232, [68] (Gummow, Hayne, Heydon and Crennan JJ).

175. Gillard v The Queen (2003) 219 CLR 1, [50] (Kirby J). See also, Stephen Gray, “I Didn’t Know, I Wasn’t There’: Common Purpose and the Liability of Accessories to Crime’ (1999) 23 Criminal Law Journal 201, 210 and Justice Geoff Eames, ‘Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts?’ (2007) 29 Australian Bar Review 161.

176. Justice Geoff Eames, ‘Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts?’ (2007) 29 Australian Bar Review 161.

177. Clayton v The Queen (2006) 231 ALR 500, [114].

178. Justice Geoff Eames, ‘Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts?’ (2007) 29 Australian Bar Review 161, 173.

179. <http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cref116> at 10 January 2008.