Why is Miller v The Queen important?
This case is important to SA and NSW practitioners as it affirms that “extended” joint criminal enterprise liability remains part of the common law. The common law has been displaced by legislation in all states and territories except SA and NSW. However, the case is interesting to anyone wanting to learn about the history and principled basis for “extended” joint criminal enterprise liability.
In the field of corporate criminal law, where there are, increasingly, calls for expanded liability – liability of franchisors for misconduct of franchisees, for example – it is important to consider the existing principles of secondary liability, their uses and failings. In his dissent, Gageler J complains that allowing foresight to suffice for mens rea in a criminal offence “disconnects criminal liability from moral culpability”. Given that offences committed by corporations are often drafted as strict liability offences, this critique may fall away in the corporate crime context. Would you agree? Or do you prefer the view that if a person foresees the real possibility of colleague A committing crime X during an agreed criminal enterprise, and continues regardless, that the person is morally culpable if colleague A commits crime X? Does a commercial context change the way you feel about it? Keane J provides this rebuke to the criticism:
“There is little reason why one who organises a crime should be regarded as less morally culpable for the risks of carrying it out, which he or she foresees, than those deployed to deal with those risks. To say that those who join together to organise the commission of a crime, in circumstances which involve the acceptance of the risk of the commission of an incidental crime in the course of carrying out their enterprise, are less morally culpable for the incidental crime than their consort who actually does the dirty work, is to appeal to a sense of morality which could commend itself only to the criminal elite.” [at ]
What is extended joint criminal liability?
Joint criminal liability
The majority explain 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.”  Citations omitted.
Joint criminal enterprise liability
The majority continue: “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. 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.”  Citations omitted.
Extended joint criminal enterprise liability
What about “incidental crimes” that weren’t agreed to? Well, the majority explain that “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).”  Citations omitted.
This is the third time the High Court has been invited to the “let’s-modify-extended-joint-criminal-liability” party, and the third time it has declined. But the principle has not generally been preserved in statute. In Victoria, sections 323 to 324C Crimes Act 1958
“provide a statutory codification of the principles of complicity. It replaces and abolishes common law doctrines such as acting in concert, joint criminal enterprise, common purpose, extended common purpose and aiding, abetting, counselling and procuring (Crimes Act 1958 s324C).” (Judicial College of Victoria, Bench Notes 5.2.1 “Statutory Complicity”)
Extended joint criminal enterprise liability has been replaced with liability for those “involved in the commission of an offence”, which is defined to include a person who
“enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence (Crimes Act 1958 s323(1)).” (My emphasis.)
So, foresight of a real possibility has been rejected in Victoria as a basis for liability; awareness of probability is required. This significantly restricts the application of the principle. Anyone who has prosecuted offences of recklessness will know how difficult ‘awareness of probability’ can be to prove.
Anyone interested in extending criminal liability in Victoria for corporate crimes ought to familiarise themselves with this history, noting that although the principle at common law was used almost exclusively for homicide matters, to my knowledge, no corporate homicide case was ever brought on that basis.
Essential reading for those interested in the history of the current Victorian law of accessorial liability/complicity.
Simplification of Jury Directions Project: A Report To The Jury Directions Advisory Group August 2012 (“Weinberg Report”) Justice Weinberg’s summation and criticism of the Victorian law of complicity prior to 2014, along with recommendations for amendment.
Complicity Reforms: Criminal Law Review, Department of Justice, 2014: the DOJ’s guide to the 2014 legislative reform of complicity (which implemented many of the Weinberg Report recommendations).
Criminal Charge Book, Judicial College of Victoria, chapter 5.2: current guidance provided to judges presiding over complicity trials.