Unlawfulness’s Doctrinal and Normative Irrelevance to Complicity Liability: A Reply to Simester

Dennis J. Baker*

I Introduction

The aim of this essay is to show that the judges siting in the majority in Miller v The

Queen1 (hereinafter Miller) got the law wrong. I attempt to do this by briefly setting

out why I think the decision in R v Jogee2 (hereinafter Jogee) is legally sound. This

essay is as much a defence of Jogee as it is a critique of Miller. In this essay I shall

also argue that there is no doctrinal foundation for Professor Simester’s claim that

(extended) joint enterprise complicity was an established doctrine of complicity in

English and Australian law.3 In addition, I shall argue against Simester’s normative

claim that a participant in a joint enterprise ought to be equally liable for any crimes

that are collateral to that enterprise including murder, even when she has not assisted

or encouraged the collateral crime. Simester’s normative claim is that participation in

the underlying enterprise (i.e. participation in a “joint” burglary) is normatively as

wrong as perpetrating the collateral crime per se (i.e. the collateral murder of the

burglarised house’s occupant).

In Jogee the Supreme Court held that the law as stated in R v Powell4 and Chan

Wing-Siu v The Queen5 was based on a mistaken interpretation of the law. Prior to the

decision in Jogee, I argued that the law of complicity in England and Australia ought

to be interpreted as follows.6

* Professor of English Law, University of Surrey and The Sir Matthew Hale Professor of Common Law, Wuhan University. 1 [2016] HCA 30.2 [2016] 2 WLR 681.3 A P Simester, “Accessory Liability and Common Unlawful Purposes,” [2017] 133(1) LQR 73.4 [1999] 1 AC 1. 5 [1985] AC 168.6 D J Baker, Reinterpreting Criminal Complicity and Inchoate Participation Offences, (Oxford: Routledge, 2016) 77-125. See also D J Baker, “Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law,” (2015) 40 Law & Psychology Review 121, 243 where I argued: “The law of common purpose complicity took a wrong turn, because maxims of evidence such as foresight of probable and possible consequences, not only mirror substantive criminal law fault elements, but also have been blurred with them for centuries.” (First published on SSRN as: D J Baker, “Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element” (October 10, 2012), 51 at SSRN: https://ssrn.com/abstract=2507529.

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1. The mental element in complicity is intention. This may be inferred from

evidence of foresight of virtual certainty. D1 must intend to assist or

encourage D2 with the ulterior intention that D2 use his or her assistance (or

be encouraged by his or her encouragement) to perpetrate the anticipated

target crime. D1 must intend D2 to act with the requisite fault for the target

crime. 7 Nonetheless, in most cases (including murder cases) the jury will not

need a Woollin type direction and will simply be asked to consider whether the

accessory intended the perpetrator to perpetrate the anticipated target crime.

2. The conduct element for complicity is aid, abet, counsel or procure (that is, an

act of assistance or encouragement). Hence, nothing short of an act of

assistance or encouragement will satisfy the conduct element for complicity.8

3. In rare cases conditional intention may be an issue, but generally it will not

raise any issues. Conditional intention may be inferred from evidence that D1

foresaw that there was a possibility that a collateral crime might have to be

perpetrated upon some contingency arising during the joint perpetration of the

underlying crime, if there is also evidence showing that D1 believed as a

matter of virtual certainty that D2’s response to the contingency would be to

perpetrate the anticipated collateral crime.9 (Suppose D1 and D2 jointly

perpetrate a burglary and both parties foresee there is a 20% chance they

might be interrupted by a security guard during the course of the burglary.

Also suppose D1 believes the virtually certain consequence of a security guard

approaching them is that D2 will kill the guard to avoid going back to prison.

In such a case the jury would be directed that they are not entitled to find

[conditional] intention with respect to the [contingent] collateral crime, unless

they feel sure that D1 believed that the virtual certainty of D1 joining the

underlying joint enterprise was that D1 would send D2 a message of

encouragement with respect to the collateral crime and that D1 believed as a

matter of virtual certainty D2 would perpetrate the collateral crime upon the

need for it to be perpetrated arising.)10

7 Id, 1-40. 8 Id, 53-90.9 Ibid. 10 I have argued elsewhere that Johns v The Queen (1980) 143 CLR 108 was essentially a conditional intention case concerning an accessory before the fact.

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4. Neither joint enterprise complicity nor extended joint enterprise complicity

existed in English or Australian law prior to the decision of Chan Wing-Siu

and subsequent decisions.11

In Jogee the Supreme Court held all the above with respect to the law of complicity in

England and Wales. I have defended the above interpretation of the law in a

monograph and several articles. In this paper, I want to limit my discussion to

challenging the claim that extended joint enterprise, with its independent actus reus

requirement, has a doctrinal foundation in English and Australian law. The judgment

in Jogee simply states that the conduct element in complicity is

assistance/encouragement, but it does not provide a doctrinal foundation for that

statement of the law. The aim of this essay is to provide a doctrinal foundation for the

claim that the conduct element required assistance or encouragement while at the

same time demonstrating that the opposite view has no doctrinal or normative basis.

The law of complicity had become a complete mess, not only because it was

causing gross injustice, but because so many half-baked rules, presumptions and

maxims had been developed and had been conflated with definitions of the potential

substantive fault element (i.e. maxims of evidence such as the dangerous weapon

maxim and the fundamentally different act maxim), that it was becoming

unmanageable for practitioners and burdensome for academics to distil into a clear

and workable doctrine. The NSW Law Reform Commission observes:

“One commentator has observed that the English law of complicity: betrays the worst features of the common law: what some would regard as flexibility appears here as a succession of opportunistic decisions by the courts, often extending the law, and resulting in a body of jurisprudence that has little coherence.12

To similar effect, is the comment of Lord Justice Toulson that the law of complicity is:

an example of the common law running wild – there are so many decisions on complicity, so that courts (and/or counsel) tend to pick and choose among the many precedents; and there is no settled set of principles, which means the judicial development of the law does not always conduce to coherence.”13

11 Baker, above n 6, 77-125. 12 NSW Law Reform Commission, Report 129, Complicity (December 2010), para 1.18 citing A Ashworth, Principles of Criminal Law (Oxford: OUP 5th ed, 2006), 440.13 Id at para 1.19 citing R Toulson, “Forty Years On: What Progress in Delivering Accessible and Principled Criminal Law?” (2006) 27(2) Statute L R 61, 68.

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Given the clarity that R v Jogee has brought to the law of complicity, I hope I am not

exaggerating to suggest it has been widely welcomed by academics. There has been

one dissenting voice (Professor Simester), whose intellectually stimulating attack on

Jogee and defence of Miller, I shall address below. My only lingering concern with

the decision in Jogee is with the issue of manslaughter being available as an

alternative offence in collateral murder cases. Arguably, the decision in Jogee is

wrong as far as it holds that an accessory can be liable for manslaughter when the

principal has been convicted of murder, because full derivative liability as envisaged

by section 8 of the Accessories and Abettors Act 1861 (hereinafter 1861 Act) means

both parties should be liable for the exact same crime.14 Manslaughter is not a lesser-

included offence for murder, so this issue is likely to raise further questions going

forward. Sections 44 and 45 of the Serious Crime Act 2007 are more than enough to

catch the likes of Jogee; hence, he would not have got of scot-free had the court not

held that a manslaughter conviction could derive from the independent crime of

murder, because he could have been convicted under section 44 for trying to

encourage the perpetrator to inflict ABH etc.15

Miller requires a critical evaluation to dampen its influence, because the

mistaken law expounded in that case has just been adopted in Hong Kong in HKSAR v

Chan Kam Shing.16 The judges in the majority in both Miller and Chan Kam Shing

rely partly on the following claims put forward by Simester: 17 (1) that joining an

unlawful joint enterprise is a sufficient moral wrong per se to justify full liability for

any collateral crime that is perpetrated including murder; (2) liability for this form of

wrongdoing has a doctrinal basis in the English law of complicity. In his recent case

commentary concerning Jogee, Simester18 argues that it was wrongly decided and he

expresses a wish for a return to R v Powell. In this essay covering (inter alia) the law

as stated in Miller, I will try to show why the law as stated in Jogee is correct and why

the decision in Miller is wrong.

14 D J Baker, “Mutual Combat Complicity, Transferred Intention/Defences and the Exempt Party Defence,” (2016) 37 University of La Verne Law Review 205, 207-230.15 See further D J Baker, “Lesser Included Offences, Alternative Offences and Accessorial Liability” (2016) 80(5) J of Crim L 446, 457. One of the barristers in Jogee was under the mistaken impression that inchoate assistance and encouragement is all that is covered by the Serious Crime Act 2007, but this is not the case. Clearly, consummated assistance and encouragement subsumes the inchoate form and a fortiori meets the elements of the offences found in sections 44-46. 16 [2016] HKEC 2715. 17 Simester, above n 3. 18 Ibid.

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II Miller v The Queen

Below I shall try to demonstrate that an alternative actus reus for complicity liability

based simply on membership of an unlawful joint enterprise has no doctrinal

foundation in English and thus Australian law. Also, I shall try show the normative

justification that has been invoked in support of this doctrine is not persuasive. Before

I get into to the meat of those arguments, it is necessary to briefly set out the approach

taken in Miller. I shall use this case to set the premise for the following theoretical

and historical analysis of the law’s doctrinal foundations. The majority decision in

Miller is based on a curious dearth of authority. As far as the conduct element for the

so-called joint enterprise form of complicity is concerned, the court goes back no

further than John v The Queen (hereinafter Johns).19 The majority judges go back a

little further when discussing the mental element, but that is a separate matter.

In Miller, the majority held: 20

“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. Moreover, 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).”

The majority in Miller argue that a doctrinal foundation for the conduct element for

joint enterprise liability can be found in Johns. To understand Johns it is best to start

with the decision of the Supreme Court of NSW. McHugh QC (later a justice of the

High Court of Australia) represented the appellant. McHugh QC’s (as he then was)

argument was as follows:21

19 (1980) 143 CLR 108. Cf. Giorgianni v R (1985) 156 CLR 473.20 Miller v The Queen [2016] HCA 30, para 4.21 R v Johns [1978] 1 NSWLR 282, 297C.

5

“It was submitted by Mr McHugh, for the appellant, that the principles relating to

common purpose have no application to a person alleged to be an accessory before

the fact (and not present at the crime) unless, in the case of murder, the actual killing

was the common purpose or design, or unless the killing was a probable consequence

as opposed to a contingency or possible consequence.” [Emphasis added.]

The old distinction between an accessory before the fact and a principal in the second

degree is now obsolete, but it is useful to explain these rules for present purposes. As

stated in the quotation from Hale infra, a principal in the second degree was any

person whom aided and abetted the perpetrator at the very time when the crime was

committed. (We know Lord Dacre’s case (discussed infra) that constructive presence

also applied in such cases). An accessory before the fact was anyone who gave prior

assistance or encouragement and was not present at the very time when the crime was

perpetrated. Johns did not involve a factual scenario involving the joint perpetration

of an underlying crime as far as Johns was concerned; nor did Johns act as a principal

in the second degree. Johns himself did not jointly perpetrate the underlying robbery

that resulted in the collateral murder. John’s liability for the collateral crime was

based on the fact that he assisted and encouraged before the fact. There was ample

evidence for a properly instructed jury to infer that Johns at least intended to

encourage one of the perpetrator’s of the joint underlying robbery to inflict GBH

should the need for such action arise during the course of the robbery. The only issue

was whether the mental element was the same for principals in the second degree and

accessories before the fact. It was held that the old distinction was no longer of any

relevance and that in either case the mental element was the same.

The majority in Johns did not create a new conduct element for complicity.

The conduct element was not a live issue. The facts were that Watson and Dodge

jointly perpetrated the robbery, but Johns merely drove them to a location 600 yards

from where the planned robbery was to take place. Notwithstanding Johns was a case

of liability for an act that Johns in fact assisted and encouraged, the majority judges

in Miller and Chan Kam Shing have held that the conduct element proposed by

Simester (the mere act of joining an unlawful enterprise) has a doctrinal basis in

Johns v The Queen.

It also is important to note that the High Court of Australia has since held that

the type of accessory that was once labelled as an accessory before the fact is only

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liable when there is intention. 22 Hence, for cases charged on the basis of assistance

and encouragement (whether it be before the fact or at the time of the fact), under

current Australian law, intention is the required mental element. Incongruously,

Miller holds that where a person does not actively assist or encourage, but merely

joins an unlawful enterprise, recklessness is sufficient fault for grounding liability

through the law of complicity. Presumably, mere foresight is not enough since it is

not a recognised fault element in criminal law. The criminal law requires risk-taking

that is unjustifiable.23 This issue has never arisen in the complicity cases presumably

because it is always unjustifiable to risk encouraging or assisting another to

perpetrate a crime, but it does leave one wondering if mere foresight is all that is

required by cases such as Miller. It is submitted that the better view is that the

standard form of criminal recklessness is required meaning that the risk taking must

be unjustifiable.

To add to the confusion, the judges in Johns failed to make clear distinctions

between the old evidential presumptions such as the natural probable consequence

presumption and substantive fault elements. The presumption that a person must be

taken to have intended the ordinary and natural consequence of her acts was never a

substantive fault element that had to be proved, but instead was a presumption of

fact. It was a presumption that D’s intention did in fact extend to the consequences of

her actions. The confusion was no doubt fuelled by the fact that this was a time when

there was no clear definition of the mental element for murder. What is clear is that

the case focuses on the mental element for an accessory before the fact. While the

court discusses conditional intention, it does this with reference to an accessory

before the fact. The only other form of complicity mentioned in the judgment is

“principal in the second degree”. The conduct element for being liable as a principal

in the second degree was exactly same as for being liable as accessory before the fact

(i.e., assistance or encouragement). There is no mention of the mystical form of

22 Giorgianni v R (1985) 156 CLR 473.23 Dennis J. Baker, Glanville Williams Textbook of Criminal Law (London: Sweet & Maxwell, 2015), 5–001. The NSW Law Reform Commission observes the Criminal Code (Commonwealth) requires “D must have intended that his or her conduct would aid, abet, counsel or procure the commission either of an offence (including its fault elements) of the type that P committed, or of an offence, and have been reckless about the commission of the offence (including its fault elements) that P committed. … Of immediate relevance was the adoption of ‘recklessness’ as a fault element in the case of the secondary participant. ‘Recklessness’, with respect to a result, is defined in the Criminal Code (Cth) as involving an awareness of a substantial risk that the result will occur and that, having regard to the circumstances known to the offender, it is unjustifiable to take the risk. The question whether taking a risk is unjustifiable is one of fact.” Above, n 12 at para. 4.169. See also the observations at para. 6.104.

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complicity that became known as (extended) joint enterprise complicity by

participation in an unlawful enterprise.

The issue of whether recklessness or intention was the mental element

become conflated with the issue of the evidential test for inferring conditional

intention. For example, Stephen J said:24

“Another and perhaps more substantial objection to the suggested criterion of

probability [instead of possibility] lies in the standard of blameworthiness

and responsibility which it presupposes. If applied, it would mean that an

accessory before the fact to, say, armed robbery, who well knows that the

robber is armed with a deadly weapon and is ready to use it on his victim if

the need arises, will bear no criminal responsibility for the killing which in

fact ensues so long as his state of mind was that, on balance, he thought it

rather less likely than not that the occasion for the killing would arise.”

[Emphasis added].

Elsewhere in his judgment, Stephen J refers to negligence and then the natural and

probable consequence presumption as it applied to unintended consequences from

intended acts with substantive fault doctrines. The casual reference to so many

distinct doctrines without any firm conclusion being stated in what was simply an

accessory before the fact case has left many readers of this case confounded. It is

perhaps the casual reference to distinct doctrines and an attempt to apply them to a

conditional intention hypothetical that led to much of the ensuring confusion in the

cases that followed this decision. This most likely was a result of the fact that when

the case went on appeal to the High Court Johns’ barrister framed the defence in such

a way by arguing, inter alia, that an accessory before the fact to robbery could only be

liable as an accessory to murder if the death was a probable consequence of the

robbery. Ergo, no firm conclusion can be drawn as to what fault element Stephen J

was laying down. It is not clear whether he was suggesting a test of reckless foresight

or one of intention including conditional intention,25 but it is clear that he was not

minting a new conduct element for complicity liability.

24 Johns v The Queen (1980) 143 CLR 108, 119.25 Cf. the thoughtful discussion of conditional intention in W Wilson and D Ormerod, “Simply Harsh to Fairly Simple: Joint Enterprise Reform,” [2015] Crim. L.R. 3.

8

The point on the mental element is moot anyway, because on the issue of fault

for an accessory before the fact (i.e. in contemporary parlance anyone who is charged

with a crime for having assisted or encouraged it—this would also include those

present at the scene aiding and abetting) Giorgianni v R requires intention. Mason,

Murphy and Wilson JJ give an example involving conditional intention, but also

apply it to an accessory before the fact.26 Arguably, it is the use of conditional

intention examples in Johns and the defence barrister’s push for a probable

consequence test that led to the talk of foresight and contemplation in Chan Wing-Siu.

Mason, Murphy and Wilson JJ said:

“Suppose a plan made by A, the principal offender, and B, the accessory

before the fact, to rob premises, according to which A is to carry out the

robbery. It is agreed that A will carry a loaded revolver and use it to

overcome resistance in the unlikely event that the premises are attended,

previous surveillance having established that the premises are invariably

unattended at the time when the robbery is to be carried out. As it happens, a

security officer is in attendance when A enters the premises and is shot by A.

It would make nonsense to say that B is not guilty merely because it was an

unlikely or improbable contingency that the premises would be attended at

the time of the robbery, when we know that B assented to the shooting in the

event that occurred.”

Earlier in the judgment, Mason, Murphy and Wilson JJ said:27

“True it is that the common law distinguishes for the purposes of

classification between the accessory before the fact and the principal in the

second degree, but this classification is quite unrelated to the doctrine of

common purpose. The object of the doctrine is to fix with complicity for the

crime committed by the perpetrator those persons who encouraged, aided or

assisted him, whether they be accessories or principals. …. In each case

liability must depend on the scope of the common purpose. Did it extend to

the commission of the act constituting the offence charged? This is the

critical question.”

26 Johns v The Queen (1980) 143 CLR 108, 131. Their honors also said: “if the act is a probable consequence of the execution of the common purpose, there is evidence from which a jury can conclude that it was within the parties’ contemplation.”27 Johns v The Queen (1980) 143 CLR 108, 125.

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Mason, Murphy and Wilson JJ refer to conditional intention examples with reference

to the mental element for an accessory before the fact. Mason, Murphy and Wilson JJ

seemed to have been using evidence of recklessness to infer intention because they

concluded: “In each case liability must depend on the scope of the common purpose.

Did it extend to the commission of the act constituting the offence charged?”

Thereafter, they hold that the fault for an accessory before the fact is no

different than that required for a principal in the second degree. There is no mention

in their judgment of a form of complicity that has as its conduct element the act of

joining an unlawful criminal enterprise. The conduct element they identify as

necessary is assistance and encouragement. As for the mental element, there is a

conflict between Johns and Miller, since Johns holds the mental element for the

accessory before the fact and a principal in the second degree is the same. In all the

institutional textbooks the category of principal in the second degree is applied in

cases involving joint enterprise factual scenarios. In light of this, Miller cannot be

reconciled with Giorgianni v R where it was held that the mental element in

complicity for accessories before the fact is intention, not recklessness. More

importantly, it is clear that Johns was a decision that rested on the complicity

provisions found in Part 9 of the Crimes Act 1900 (NSW). 28 There was no discussion

of a conduct element other than that provided for in the 1900 Act. Section 351 of the

1900 Act requires actual assistance or encouragement, not mere participation in an

unlawful enterprise. The jurisdiction of NSW never enacted an extended joint

enterprise provision. Why would the court in Johns create a new conduct element

after stating the live issue was fault for an accessory before the fact? Under Simester’s

theory of joint enterprise, Johns would not be liable through the doctrine of (extended)

joint enterprise complicity, because he did not join the underlying joint robbery. Johns

merely assisted and encouraged from a distance.

A. The doctrinal reasons given by the majority for not following the mental element

laid down in Jogee

The majority held that: “The conclusion in Jogee reflects … an analysis of a line of

19th century decisions which evidenced a shift from the objective probable

consequences test, to the requirement that the incidental offence form part of the 28 Johns v The Queen (1980) 143 CLR 108, 132.

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parties’ common purpose should the occasion arise.”29 As we will see below, this is

not an accurate analysis of the law. The natural and probable consequence

presumption goes back to at least 1329.30 It was a presumption of fact that the

defendant intended the natural consequence of her act, but it was only invoked in

murder and manslaughter cases. As we will see below, the common purpose

requirement goes back at least as far as Lord Dacre’s case31 and was well established

by the time of the Three Soldiers Case.32 It shall be argued below that once the

doctrine of constructive malice (unlawful act element) that only ever applied to

murder and manslaughter and the probable and natural consequence presumption

(also applied in complicity cases involving homicide) are removed from the equation,

the Three Soldiers Case leaves us with a bare intention requirement. The natural

probable consequence doctrine and the constructive malice doctrine more narrowly

were not doctrines that belonged to the law of complicity, but were simply used to

impute fault constructively in homicide cases.

The majority in Miller took the view that Foster held that negligence was the

mental element in complicity.33 Oddly the majority judges in Miller cite passages

from Foster and Stephen that refer to the natural probable consequence presumption

in the context of constructive liability for unintended consequences resulting from a

crime that was intentionally solicited or commanded.34 The passages they cite tell us

nothing new about joint constructive liability for accessories. 35 The passages from

Stephen and Foster simply tell us if D1 intentionally encourages D2 to perpetrate an

assault involving GBH against V and this causes V to die, both will be liable for the

unintended consequence of the mutually intended GBH. This rule pre-dates Coke and

is simply about constructively taking the probable consequences of the acts that were

expressly commanded. Sir Edward Coke, in his chapter on murder, said: “[W]here

death ensueth on that act which is commanded, though death itself not be

29 Miller v The Queen [2016] HCA 30, para 11.30 Sayre notes: “The reference, to be found in Fitzherbert’s CORONE, f. 256b, pl. 314 (3 EDW. 3) (1329), is as follows: “Note, that all those who come in company to a certain place with a common consent where a wrong is done, whether homicide or robbery or other trespass, each one shall be held as principal actor, although he was standing by and did no wrongful act, as happened to Warren de Idle, who commanded his men to beat a man and was present looking on [vugla de cost], while they beat him immoderately and killed him. And he was arraigned as principal ....” F B Sayre, “Criminal Responsibility for the Act of Another”, (1930) 43 Harv LR 689.31 (1535) Moore KB 86. 32 (1697) Fost. 353. 33 Miller v The Queen [2016] HCA 30, para 12.34 Miller v The Queen [2016] HCA 30 paras 6-14. 35 Baker, above n 6, 125-130.

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commanded, there he is accessory to it, for there the commandment is the cause of

death. … But where the death ensueth on another distinct cause, there the consent of

the accessory cannot be drawn to it…”36 The judges in Miller cite Article 41 from

Stephen’s digest, but Stephen deals with common purpose under Article 38. 37

The majority in Miller then assert, “Of critical importance was their Lordships

view that manslaughter is an alternative to murder upon facts similar to those in

Jogee”.38 This is an understatement of Jogee. The majority in Jogee held that the joint

enterprise form of complicity was not established before the decision in Chan Wing-

Siu. It also held that the mental element in complicity is intention. Allowing

manslaughter as an alternative where murder was the collateral crime perpetrated,

based on the fact that the accessory intended that the perpetrator at least inflict

objectively dangerous actual bodily harm was a mere side issue. If anything, that is

the only part of the decision in Jogee that seems to rest on policy rather than solid

legal argument, because it draws on the fallacious reasoning found in some of the

precedents that predate section 6 of the Criminal Law Act 1967. Following the

enactment of section 6, manslaughter should no longer be regarded as an included

offence, but rather should be treated as an alternative offence.39

Furthermore, the majority in Miller held: “[T]he submissions are in abstract

form and do not identify decided cases in which it can be seen that extended joint

criminal enterprise liability has occasioned injustice.”40 Given that the felony murder

rule is still in force in most states in Australia and given that recklessness is sufficient

mens rea for murder in the common law states in Australia, one can see why the

judges thought any injustice was theoretical. Nonetheless, this does not relieve judges

of the duty to interpret law in line with the precedents. Given the majority in Jogee

took the view that the law was given an incorrect interpretation in Chan Wing-Siu,

one would have thought the judges in Miller would have attempted to trace the law

back further than the 1980s to try to ascertain its doctrinal foundations.

B. The doctrinal reasons given by the majority for not following the conduct

element laid down in Jogee

36 Edward Coke, The Institutes of the Laws of England: Third Part, (London: W. Lee, 1648), 51.37 Miller v The Queen [2016] HCA 30, 12-14. 38 Miller v The Queen [2016] HCA 30, paras 25-26. 39 Glanville Williams, “Included Offences”, (1991) 55 J Crim L 234, 234-235.40 Miller v The Queen [2016] HCA 30, para 39.

12

The majority in Miller said: “The wrong turning in the law enunciated in McAuliffe, in

the appellants’ submission, was the discarding of the concepts of mutuality,

authorisation and assent.” Strangely, the majority address this submission by

explaining why they think the fault element need not be mutual. When the real issue is

what is the conduct that makes one liable as an accessory in the context of a joint

enterprise, if it is not encouragement or assistance?

Later in the judgment the majority’s definition of the conduct element appears.

As for the claim that joint enterprise liability “allows a form of ‘guilt by association’

or guilt by simple presence without more”, the majority said: “Nothing in McAuliffe

supports either conclusion. It is to be appreciated that in the paradigm case of murder,

the secondary party’s foresight is not that in executing the agreed criminal enterprise a

person may die or suffer grievous bodily harm – it is that in executing the agreed

criminal enterprise a party to it may commit murder. And with that knowledge, the

secondary party must continue to participate in the agreed criminal enterprise.”41

[Emphasis added.] They cite Simester’s change of normative position rule to support

this claim.

For the majority it is not necessary that D1’s participation in the underlying

joint enterprise assists or encourages D2 to perpetrate the collateral crime. The

majority claim that a doctrinal foundation for the conduct element they propose can

be found in Johns and McAuliffe. “McAuliffe builds on the principles enunciated in

Johns.”42 The court cites no early authorities in support of the claim that the conduct

element need not involve assistance or encouragement, but simply involve D’s act of

joining the underlying joint enterprise. There is nothing in Johns that suggests that

assistance and encouragement is not required. The majority in McAuliffe said that

common purpose liability requires an agreement,43 but none of the judges in McAuliffe

or in Miller explain how a person can recklessly agree that a collateral crime be

perpetrated. One could recklessly encourage it, but agreement requires intention. It is

conceptually impossible to recklessly agree or recklessly authorise.44 It is akin to

arguing that a person can recklessly attempt.

I have argued elsewhere that common purpose complicity involves a

consummated conspiracy, but there is no need to establish an express agreement with 41 Miller v The Queen [2016] HCA 30, para 45. 42 Miller v The Queen [2016] HCA 30, para 36.43 (1995) 183 CLR 108, para 114.44 Baker, above n 6, 12; 83; 317 et passim.

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respect to the collateral crime.45 An agreement can be implied from all the evidence.

Following Jogee’s intention requirement this type of analysis is on firmer grounds,

since an intention to encourage the perpetrator to perpetrate a collateral crime by the

conduct of participating in an underlying joint enterprise forms the basis of an implied

agreement with respect to the collateral crime. Since a conspiracy does not merge

with a substantive offence I shall not delve into this issue further.

C. The normative reasons given by the majority for an alternative conduct element

In Miller, the majority, for the want of a precedent, invoke Simester’s change of

normative position argument. The majority in Miller said: “In Clayton v The Queen,

the joint reasons adopt Professor Simester’s analysis distinguishing the liability of the

aider and abettor from the liability of a party to a joint criminal enterprise. The wrong

in the case of the aider and abettor is grounded in his or her contribution to the

principal’s crime. The wrong in the case of the party to the joint criminal enterprise

lies in the mutual embarkation on a crime with the awareness that the incidental crime

may be committed in executing their agreement.”46

D. The policy reasons given by the majority

The policy reasons given by the majority in Miller were: (1) “No change should be

undertaken to the law of extended joint criminal enterprise without examining the

whole of the law with respect to secondary liability for crime.”47 (2) The increased

dangerousness of crime resonating from gangs and groups. (3) Keane J also in the

majority gave a separate judgment. Keane J’s judgment relies mainly on his policy

views and on the fact that he conceptualises assistance and encouragement as

perpetration. Keane J’s judgment is based on the well-contested agency theory of

complicity liability, so I shall not provide an analysis of his judgment.48

III The Unlawful Act Concept Has No Doctrinal Basis in Complicity

45 Ibid Chapter 2. 46 Miller v The Queen [2016] HCA 30, para 34 citing Simester, “The Mental Element in Complicity”, (2006) 122 LQR 578.47 Miller v The Queen [2016] HCA 30, para 40.48 Joint perpetration has to be distinguished from agency theory and also from assisting and encouraging. See D J Baker, above n 14; D J Baker, “Liability For Encouraging One’s Own Murder, Victims, and Other Exempt Parties,” (2012) 23(3) King’s LJ 256. At common law perpetrators of an act of joint perpetration were called principals in the first degree.

14

The felony murder rule was abrogated in 1957 and thereafter controversy started to

appear in the homicide cases involving complicity.49 To understand the scope of the

law of complicity, one has to understand the historical interaction between the law of

complicity and the law concerning constructive murder and manslaughter. By doing

this one is able to get a clear conceptual picture of the scope of the law of complicity.

The doctrine of unlawful act (this doctrine is commonly known as the doctrine of

constructive malice or doctrine of constructive crime, but is sometimes referred to in

the United States cases as the “presumption from an unlawful act”50) only applied to

homicides,51 but complicity’s doctrine of common purpose applied to all offences.

Constructive malice allowed fault for murder or manslaughter to be implied from any

unlawful act that caused V’s death, but for murder Foster limited it to felonious acts.

It is no coincidence that the great controversies in the law of complicity in the 20 th

century are found in the homicide cases that postdate the abolition of the felony

murder rule. Before that rule was abolished, it did most of the work in such cases.52

To get a good understanding of the interaction between constructive homicide

and the common purpose mental element that existed in complicity until the decision

in Chan Wing-Siu, there is no need to go back further than Sir Matthew Hale’s

treatment of Lord Dacre’s case.53

Hale wrote: 54

“It must be a killing in pursuit of that unlawful act, that they were all engaged

in, as in the case of the lord Dacre before-mentiond, they all came with an

49 S 1 Homicide Act 1957. 50 See State v. McCarter (1967) 36 Wis 2d 608; Bleiweiss v. State (1919) 119 N.E. 375. 51 In Stroud’s day the view was: “In short, it may be stated with tolerable certainty that the doctrine of constructive crime is applicable only where the offence charged is murder or manslaughter. It has never been either actually applied or judicially stated to be applicable to any other crime; and, the modern tendency being unmistakably to restrict, if not to disregard, it, there is little likelihood of any attempt being made in the future to extend its operation to other offences than homicide.” Douglas Aikenhead Stroud, Mens Rea, (London: Sweet & Maxwell, 1914), 172. However, some trivial examples can be found where constructive fault applied in some non-homicide cases, but none of these cases support the theory that the unlawfulness of an act causing direct harm was used to construct a conduct element for complicity. See for example, the now overruled decision in R. v. Martin (1881–82) 8 Q. B. D. 54. See also The Queen v. Welch (1875) 1 Q.B.D. 23; and the repealed s. 22 of the Malicious Damage Act 1861. Furthermore, the presumption of fault for a consequence from it being deemed a natural probable consequence also applied in non-homicide cases (for a prominent example, R v Aspinall (1876) 2 Q.B.D. 48 ), but again this does not disturb the thesis that implied fault based on unlawfulness or probable consequence was never used to construct a conduct element for complicity. 52 For a prominent example, see R v Betts (1931) 22 Cr App R 148. It is worth observing that Johns v The Queen did not invoke the New South Wales felony-murder rule, because armed robbery per se was not one of the felonies within its felony-murder rule.53 (1535) Moore KB 86. 54 M Hale, The History of the Pleas of the Crown, (London: Printed by E. and R. Nutt et al., 1736) Vol. I, 444.

15

intent to steal the deer, and consequently the law presumes they came all with

intent to oppose all, that should hinder them in that design, and consequently

when one killed the keeper, it is presumed to be the act of all, because

pursuant to that intent: but suppose, that A. B. and C. and divers others come'

together to commit a riot, as to steal deer, or pull down inclosures, and in

thereupon their design, A. meets with D. or some other, with whom he had a

former quarrel, or that by reason of some collateral provocation given by D.

to A. A. kills him without any abetting by any of the rest of his company, this

doth not make all the party of A. tho present, to be there or aiding and

abetting, and consequently principal in this murder or manslaughter, which

was accidental, and not within the compass of their original intention.”55

[Emphasis added]

“Again, although if many come upon an unlawful design, and one of the

company kill one of the adverse party in pursuance of that design, all are

principals; yet if many be together upon a lawful account, and one of the

company kill another of an adverse party without any particular abetment of

the rest to this fact of homicide, they are not all guilty, that are of the

company, but only those, that gave the stroke, or actually abetted him to do

it.”

Liability in this case was based on the relevant parties having a common

(express) intention with respect to the collateral crime that was perpetrated during the

course of the joint enterprise.56 Hale makes it clear that if the perpetrator of the

collateral crime acts outside the common purpose by randomly attacking an old

enemy who she chances upon during the joint enterprise she will stand alone in that

offence. Hale requires acts of assistance or encouragement regardless of whether the

enterprise is unlawful.57 The felony murder rule was moot in Lord Dacre’s case,

because the decision rested on (1) the parties had an express intention that the

collateral crime be perpetrated; and (2) the parties were constructively present when

the collateral crime was perpetrated. Moore makes reference to the felony murder rule

in his report of Lord Dacre’s case, because it would have been an alternative route to

55 Ibid.56 This interpretation of Le Seignior Dacre’s Case is shared by the Supreme Court of Michigan, see People v Aaron (1980) 299 NW 2d 304, 308 citing J M Kaye, “The Early History of Murder and Manslaughter”, [1967] 83 LQR 569, 578. 57 Hale, above n 54, 615-617.

16

conviction had such a route been needed. The felony-murder rule, when needed to

ground a conviction, applied to all parties to an unlawful enterprise—it was not

needed in Lord Dacre’s case because the collateral crime and its consequences were

mutually intended. The felony murder rule has been applied more often than the

doctrine of common purpose to ground convictions, because in many cases the

defendants have argued they did not intend the consequences of the particular

collateral crime. The felony murder rule was simply a more extreme form of

constructive liability in that it made all parties liable for the consequences of mutually

intended acts whether those consequences resulted from a dangerous felony and

regardless of whether they could be deemed to have been a natural and probable

consequence of the base unlawful act that was intended. (The felony murder rule is

still in force in the common law states in Australia).58 Similar phraseology to that used

in Lord Dacre’s case has been used in cases for the last few centuries.59 This

terminology seems to have caused some judges and scholars to conflate the doctrine

of constructive malice for murder and manslaughter (presumption from unlawful act)

with complicity’s common purpose doctrine. More recently, Simester,

notwithstanding the unlawful act doctrine’s origin and limited application in our

ancient law, has tried to use it to justify his claim that the actus reus for complicity

need only involve the act of joining an unlawful criminal enterprise.

Hale’s use of Lord Dacre’s case was to explain several doctrines and their

specific application to murder and manslaughter. Those doctrines were (1) homicide

law’s presumption of fault from an unlawful act; (2) complicity’s constructive

presence doctrine; (3) complicity’s common purpose doctrine. It is telling that Hale

only discusses the doctrine of constructive malice’s application to multiple parties in

two chapters in his famous treatise. Hale discusses it in Chapter XXXIV entitled:

“Concerning commanding, counselling, or abetting of murder or manslaughter.”

Thereafter, Hale discusses it in Chapter XXXVIII entitled: “Concerning murder by

malice implied presumptive, or malice in law.” Hale’s mention of the felony murder

rule with reference to Lord Dacre’s case has led some very distinguished

commentators drawing the conclusion that that case was the foundation case for the

58 There is still a constructive fault element in murder in England and Wales, but its effect is much fairer than what the felony murder rule allowed for. Also, we still have a variant of the unlawful act form manslaughter. 59 Infra n 65.

17

felony murder rule.60 Such a conclusion is debatable, because that case was decided

on other grounds. Furthermore, the unlawful act presumption for implying fault

applied equally to manslaughter and predated Lord Dacre’s case. 61

Similarly, East limits his application of the doctrine of presumption of fault

from unlawful acts (constructive malice) in complicity cases to his Chapter entitled,

“Homicide in the Prosecution of some Act or Purpose criminal or unlawful in itself;

where-in Death ensues collaterally to or beside the principal Intent”.62 Successive

editions of Russell on Crime deal with complicity based on unlawful acts in the

murder chapter under the subheading: “Cases where the killing takes place in the

prosecution of some other criminal, unlawful or wanton act.”63 Hence, complicity is

only applied to unlawful acts that result in a human being’s death and only when there

is a common intention that the perpetrator perpetrate that act that causes V’s death.

There need be no common intention with respect to the consequence of death, but

there must be with respect to the act that causes V’s death. Russell mentions the

doctrine of constructive malice in the context of multiple parties, but applies

complicity liability only to unlawful acts that result in a murder and manslaughter

conviction for the perpetrator.64 The side-margin heading for Russell’s discussion is:

“Murder by several in prosecution of some unlawful purpose.”65 Thereafter, Russell

discusses the common purpose doctrine generally, but does not include the unlawful

act requirement when he refers to the doctrine of common purpose as an alternative

basis for liability.66 Under the side-margin heading “But where the purpose was lawful

it will be murder only in the party and his actual aiders and abettors,” Russell writes:

“But it must be observed that this doctrine respecting the party being

involved in the guilt of one or more, will apply only to such assemblies as are

formed for carrying some common purpose unlawful in itself into execution.

60 N Morris, “The Felon's Responsibility for the Lethal Acts of Others”, (1956) 105 U Pa L. Rev 50, 58; M C Gregerson, “Criminal Law-Dangerous, Not Deadly: Possession of A Firearm Distinguished From Use Under The Felony Murder Rule”, (2004) 31 Wm. Mitchell LR 607, 612. M Birdsong, “Felony Murder”, (2006) 32 T Marshall LR 1, 7. 61 J H Baker, The Reports of Sir John Spelman (London Selden Society, 1978), Vol. II, 310. D Lanham, “Felony Murder-Ancient and Modern”, (1983) 7 Crim LJ 90; 0 C M Davis, “Constructive Homicide”, (1938) 2 J Crim L 451. 62 E H East, A Treatise of the Pleas of the Crown, (London: printed by A. Strahan, 1803) Vol. I., 256-257. 63 W M O Russell, Treatise on Crimes (London: Butterworth, 1819), Vol I, 658; 662 restating the law as stated in Hale and Foster.64 Id, 31-32, see also M Foster, Crown Law, (London: Printed by W. Strahan and M. Woodfall, 1776), 350. 65 Id, 32. 66 Id, 32 in the second paragraph on that page.

18

For if the original intention was lawful, and prosecuted by lawful means, and

opposition is made by others, and one of the opposing party is killed in the

struggle, in that case the person actually killing may be guilty of murder or

manslaughter, as circumstances may vary the case; but the persons engaged

with him will not be involved in his guilt, unless they actually aided or

abetted him in the fact; for they assembled for another purpose which was

lawful, and consequently the guilt of the person actually killing cannot by any

fiction of law be carried against them beyond their original intention ,”

[Emphasis original].

This is a straightforward application of the law of homicide’s doctrine of

constructive malice to multiple parties under the law of complicity. The presumption

of fault from the fact that P did an unlawful act or from the notion that P must have

intended any death that was a natural and probable consequence of her act was not

grounded in complicity—the fault presumption applied to individuals acting

personally rather than derivatively.67 However, once the perpetrator was personally

liable all those who intended P’s base unlawful act were also held liable for the

unintended consequences of P’s act, because they had a common intention with

respect to P’s base act.

The presumption of fault from an unlawful act was not a general fault

presumption; it only applied to manslaughter and murder. The natural and probable

consequence presumption had a wider application and applied to non-homicide

cases.68 It is no accident that Russell refers to the presumption of fault from an

unlawful act and its application to multiple parties only under subheadings relating to

complicity for murder and manslaughter. What is at play in these homicide cases is an

application of two very distinct doctrines: 1) the doctrine of constructive malice; (2)

the doctrine of common purpose. Under a separate side-margin heading, “Or where

there is a general resolution against all opposers,” Russell makes it clear that common

(express) malice is an alternative to constructive malice by starting his subheading

with “or”.69 A common express intention catches all parties to all crimes, because they

67 See for example, R v Horsey (1862) 3 F. & F. 287.68 See for example, R v Aspinall (1876) 2 Q.B.D. 48.69 Id, 32, second paragraph. The same material and subheadings appear in the 1875 edition of Russell on Crime, which was published 4 years after the 1861 Act was enacted. C S Greaves, A Treatise on Crimes and Misdemeanors, (London: Steven & Sons, 4th edn, 1865) Vol I, 55-56. Under the side-margin heading “There must be participation” on page 50, the content of the paragraph attached to that heading makes it clear there must be assistance or encouragement. The paragraph is a little confusing in that it mentions unlawfulness without making it

19

are simply being held liable for what they intended. For a prominent example, see the

leading decision of the Supreme Court of Victoria in R v Grant70, where (in a non-

homicide case) it was held:

“If the jury could find on the evidence that all the persons concerned were

parties to a general intent to wound any one of the parties carrying the bag of

coins or escorting those who carried it, and could find that that common

intent went so far as to include any such violence (including the infliction of

grievous bodily harm) as might turn out to be necessary to make it possible to

effect the crime, then we think the conviction of this appellant is proper and

right in law. The intent may be directed, not merely to persons known by

name or identifiable beforehand, but to each or any of a number of persons

fulfilling certain conditions. …. The case before us is one where a number of

persons may be found to have intended to wound one or more of a number of

persons fulfilling certain conditions, persons who would necessarily come

into the minds of the criminals as likely to offer resistance. The charge, we

think, was correct, that if the jury found from the acts of these prisoners or

any of them that they combined to commit this robbery with a common intent

to disable or wound any one of those persons whom they were likely to

attack, the jury might properly find each and every one of them guilty of

wounding with intent, though the wounding was by only one of them. Of

course where a specific intent is charged, as here, it must be proved; but it

may be charged as a specific intent entertained by two or more persons just as

much as by a single person, and when that specific intent is entertained in

common by two or more who are acting with a common purpose, and the

crime in question is committed by one of them, all may be rightly convicted

of it.”

If the GBH in R v Grant had caused a death, then the common purpose

doctrine would have been combined with homicide’s constructive malice doctrine to

make all the parties equally liable for either murder or manslaughter. There is no

mention of constructive malice or the unlawful act presumption in R v Grant because clear it is only relevant to homicide cases, but the content on pages 55-56 clears up any confusion. Thus, the mystical extended joint enterprise doctrine of complicity was not in existence 4 years after the enactment of the 1861 Act—and it did not come into existence in England before R v Powell [1999] 1 AC 1. 70 [1932] VLR 224-225 per Mann J (MacFarlan J and Wasley AJ concurring). See also the non-homicide decision of the Supreme Court of NSW in R v Dunn (1930) 30 SR (NSW) 210, 214 Street, C.J. Ferguson and James, JJ gave separate judgments but all concurred that a common intention was required. There was no mention of constructive malice or natural probable consequence in this case.

20

it was not a homicide case. In the case of murder and manslaughter, liability is

extended to unintended consequences for all those who intended the act that resulted

in the unintended consequences. Likewise, Blackstone also includes his discussion of

the doctrine of constructive malice and its application to multiple parties in his

chapter on murder and makes no mention of it in his chapter on complicity. In

Blackstone’s chapter on complicity, accessorial liability for unintended consequences

is based on D’s intentional encouragement of the unlawful act that has the unintended

consequences.71 Nowhere in these old works is the act of joining an enterprise per se a

substitute for aiding, abetting or counselling. It is only in the homicide cases that the

presumption of malice from an unlawful act is relevant, but even here it is not needed

when other evidence shows that all the parties intended the collateral crime and its

consequences.

In his general chapter on accessories, Hale makes no mention of an

(constructive) unlawful act form of complicity. Instead, Hale puts accessories in two

simple categories: (1) accessories before the fact; (2) principals in the second degree.

(The only other category he recognises is accessory after the fact).

“Principals are in two kinds, principals in the first degree, which actually

commit the offense, principals in the second degree, which are present,

aiding, and abetting of the fact to be done. … Who shall be said present,

aiding and abetting in case of… murder hath been sufficiently declared in

cap. 34, and need not again be repeated. …. That which makes an accessary

before is command, counsel, abetment, or procurement by one to another to

commit a felony…”72

In both categories Hale requires assistance or encouragement. The assistance

or encouragement may be at the time when the offence is perpetrated (making the

accessory a principal in the second degree) or it may be provided before the fact.

71 “And, if two or more come together to do an unlawful act against the peace, of which the probable consequence sequence might be bloodshed, as to beat a man, to commit a riot, or to rob a park, and one of them kills a man; it may be murder in them all, because of the unlawful act, the militia praecogitata, or evil intended beforehand.” W Blackstone, Commentaries on the Laws of England, (Oxford: Clarendon Press, 1769) Vol. IV, 200. In his chapter on complicity, Blackstone limits constructive liability to unintended consequences of conduct that was assisted or encouraged by the accessory. “It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act, but is not accessory to any act distinct from the other. As if A. commands B. to beat C, and B, beats him so that he dies, B, is guilty of murder .as principal, and A. as accessory.” Id, 29. Essentially, the reasoning in the latter paragraph is similar to that of the Lords in R v Rahman [2009] 1 AC 129.72 Hale, above n 54, 615-616.

21

There is no doubt that a common intention is required with respect to collateral crimes

and this has been recognised in a long line of cases in pari materia.73 More

significantly, this is borne out in the Three Soldiers Case74 where there was no

liability through the law of complicity, not because there was no mutually intended

underlying unlawful act (there was, the theft of the apples from the orchard was a

mutually intended unlawful act), but because the actus reus of the collateral crime

was not mutually intended. N.B. the presumption of fault from an unlawful act

belonged to the law of homicide,75 not to the law of complicity.76 Unlawfulness was

never used as a substitute actus reus in the law of complicity.

Imputing blame for unintended consequences was assisted through the use of

the presumption that a person intends the natural and probable consequences of her

actions.77 Some commentators might argue that in our early law the doctrine of

constructive malice had a wider application in homicide cases, but we are considering

its application post the enactment of section 1 of the Homicide Act 1957. Two

presumptions were at play in the early constructive homicide cases; (1) the

presumption of malice from the unlawfulness of the act that caused V’s death; and (2)

the presumption that a person intends the natural and probable consequences of her

actions.

Once the doctrine of constructive malice is taken out of the equation, the

unlawfulness of the underlying joint conduct is only evidential in that it is evidence in

support of the claim that there must have been a common purpose that extended to the

collateral crime, because the underlying crime is probative for demonstrating the

parties had good reason to resist opposition or apprehension.78 Such evidence is still

73 For some Australian cases from the common law states, see R v Johns [1978] 1 NSWLR 282; R v Dunn (1930) 30 SR (NSW) 210, 214; R v Dorrey & Gage [1970] 3 NSWLR 351, 353; R v Adams (1932) VLR 222, 223-224; R v Kalinowski (1930) 31 SR (NSW) 377, 380-381; R v Dowdle (1901) 26 VLR 637, 639-641; R. v. Surridge (1942) 42 SR (NSW) 278, 282-283; R v Grand (1903) 3 SR (NSW) 216. For some English cases, see R v Borthwick (1779) 1 Doug KB 207, 212; R v White (1806) Russ. & Ry. 99, 101; R v Howell (1839) 9 Car & P 437, 450-451; R v Rubens (1909) 2 Cr App R 163; R v Hawkins (1828) 3 Car & P 392; R v Bingley (1821) Russ & Ry 446; R v Luck (1862) 3 F & F 483; R v Plummer (1706) Kelyng, J 109; R v Hawkins (1828) 3 Car & P 392; R v Collison (1831) 4 Car & P 565; R v Skeet (1866) 4 F & F 931; R v Caton (1874) 12 Cox CC 624; R. v. Short (1932) 23 Cr App R 170; R v Spraggett [1960] Crim LR 840; R v Smith [1963] 1 WLR 1200, 1205-1207; R v Anderson [1966] 2 QB 110, 118-119; R v Lovesey [1970] 1 QB 352; R v Wan [1995] Crim LR 296; R v Dunbar [1988] Crim LR 693.74 (1697) Fost. 353.75 R v Church [1966] 1 QB 59.76 See generally E C Clark, An Anaylsis of Criminal Liability (Cambridge: CUP, 1880), 89-90. 77 Hale, above n 54, 617. 78 Foster writes: “But the persons engaged with him will not be involved in his guilt, unless they actually aided or abetted him in the fact. For they assembled for a purpose, which was lawful, and consequently the guilt of the person actually killing cannot by any fiction of law be carried against them beyond their original intention.” Foster, above n 64, 354-55.

22

relevant in modern cases, but it is certainly not conclusive. If a person is perpetrating

a crime, then a jury can consider that along with all the other evidence to determine

whether there was a common intention to resist apprehension and so on. The

seriousness of the crime might also be probative, since a person would have greater

motivation to escape arrest for a serious crime such as robbery than she might for

evading arrest for shoplifting.79

Whatever was the scope of the doctrine of constructive malice in the 17 th, 18th,

and 19th centuries, with respect to contemporary complicity cases involving

homicides, it has to be read in light of the law post the enactment of the 1861 Act and

more specifically in light section 1 of the Homicide Act 1957. What’s more, it has to

be read in light of the important decisions of the House of Lords in R v Woollin80 and

R v G.81 If we take the doctrine of constructive malice and also the natural and

probable consequence presumption out of the equation, which the above enactments

and precedents require us to do, thereby letting the principle announced in the Three

Soldiers Case stand on its own, the decision in Jogee is on very firm legal ground.

The Three Soldiers Case requires intention and when the obsolete doctrine of

unlawful act presumption and presumption that a person intends the natural and

probable consequences her acts are taken out of the equation we are left with a

straightforward intention requirement. (This does not bar the narrower constructive

fault doctrine as provided for post the enactment of section 1 of the Homicide Act

1957 applying to accessories).

Constructive personal liability has to be contradistinguished from constructive

derivative liability. English law has never recognised a doctrine of constructive

derivative liability. Constructive personal liability is about taking the consequences of

one’s own wrongdoing,82 not about taking the wrongful acts of others as one’s own

wrongdoing. A person is only liable for the criminal acts of another if she culpably

assists or encourages that person to perpetrate them.83 The autonomous criminal

choices of D2 only make D1 derivatively liable if she intended to assist or encourage

D2 with the ulterior intention that D2 succeed in perpetrating the anticipated target

crime. The doctrine of constructive malice applies in complicity cases with respect to

79 For example, see the decision of the High Court of Australia in Miller v The Queen (1980) 32 ALR 32.80 [1999] 1 A.C. 82.81 [2004] 1 A.C. 1034.82 Stroud, above n 51, 169. 83 Baker, above n 6.

23

consequences (V’s death) flowing from another’s actions (collateral act of inflicting

GBH), but not to the actions of another per se. The “actions” (as opposed to the

“consequences” of those actions) of others per se had to be intended by the secondary

parties.84 The law has not changed on the act/consequence issue.85

The conduct element of the collateral crime must come within the common

purpose—but its consequences need not. In cases of a common purpose to resist at all

costs, even to the extent of resisting by killing those in opposition,86 intention for any

collateral homicide must be inferred from evidence including the actions and conduct

of the defendants before and after the event, and cannot be inferred simply by

considering the unlawfulness of the joint enterprise.87 Simester mistakes homicide’s

doctrine of constructive malice for a substantive actus reus doctrine belonging to the

law of complicity. It was merely a presumption of fault that applied in homicide

cases. Its application was limited to a particular consequence, that is, the consequence

of causing the death of another human being. Stroud, in his classic work, Mens rea,

writes:88

“There is one particular class of cases which would at first sight appear to

involve constructive crime viz., where several persons act together in

pursuance of a common intent, and in view of such joint action the law

imputes to each and all of them the guilt of any act or acts done by one or

more of them, in furtherance of such common intent. …. But here again there

is no more than a superficial analogy; for (1) The doctrine of constructive

crime is, as we have seen, confined to homicides; whereas the doctrine of

common intent applies to all joint offences. (2) The governing consideration

in constructive crime is the unlawfulness of the occasion; whereas the

doctrine of common intent is rigidly confined within the limits of the

common purpose. ….(3) The doctrine of common intent is merely an

application to a particular class of cases of normal doctrines as to principals

and accessories; whereas the doctrine of constructive crime, if it were now

84 The Three Soldiers Case (1697) Fost. 353. 85 Cf. R v Rahman [2009] 1 AC 129.86 Stroud, above n 51, 187 citing R. v. Pridmore (1913) 8 Cr. App. R. 198 at 203. 87 Foster writes: “A general resolution [common intention] against all opposers, whether such resolution appeareth upon evidence to have been actually and explicitly entered into by the confederates, or may be reasonably collected from their number, arms, or behaviour at or before the scene of action, such resolutions so proved have always been considered as strong ingredients in cases of this kind.” Foster, above n 64, 353. See also R v Tyler 1838) 8 Car. & P. 616 at 618-619; 620-621 per Lord Denman, CJ. 88 Stroud, above n 86.

24

recognised as a distinct principle of criminal liability, would be a corollary

upon the main principle of intentionality, and would form an exception to the

ordinary rules regulating imputability in respect of crimes dependent upon

particular consequences.” [Emphasis added.]

In cases where encouragement of a collateral crime (e.g. murder) was inferred by the

fact that the accessory joined an underlying joint enterprise (e.g. robbery), the

doctrine of common intent was strictly confined so that it had to be proved that the

murder (at the very least the act of GBH that caused V’s death) came within the scope

of the common purpose.89 The doctrine of common intent was a standard fault

doctrine that applied generally in complicity, but was discussed predominantly in

cases involving factual scenarios concerning a collateral homicide. This led to judges

casually using terminology from the homicide cases in non-homicide cases, but it did

not lead to any provisions being enacted or any judge-made law stating that the

conduct element in complicity involved the mere act of joining an underlying

unlawful enterprise. This form of constructive complicity does not exist in English

law. There is no separate form of complicity in the leading treatises before or after the

enactment of the 1861 Act.90 Those who assert that the presumption of fault from an

unlawful act was the basis of a form of complicity need to do more to explain why

this mystical form of complicity was not included in the 1861 Act, which was merely

declaratory of the common law.91 Simester quotes the 1964 edition of Russell on

Crime,92 but the quotation he gives does not differ in substance from the law as quoted

in the 1865 edition of Russell on Crime and the summation of the law in the 1865

edition does not differ in substance from the law as stated in Hale and Foster centuries

before.

In NSW the Parliament enacted a felony murder rule incorporating a

complicity provision and these have been used interchangeably in some Australian

89 See the cases mentioned above n 73. 90 Russell above n 63 and n 36. Dalton also uses Lord Dacre’s Case in support of the constructive presence doctrine. Dalton’s discussion of the unlawful act doctrine is found only in his chapter on murder. Chap, 145. Michael Dalton, The Country Justice, (London: Printed by William Rawlins et al., 1697), Chap 161. See also J Chitty, A Practical Treatise: The Criminal Law (London, Brooke, 1826) Vol I, 256 et seq. See also the early law as stated in Andrew Horne, The Mirrour of Justices, (London: Imprinted for Matthew Walbanke, 1646), (translated into English by W. H. of Gray’s Inn), Ch. I., Sc. 13.91 S 8 of the 1861 Act was merely declaratory of the common law. Du Cros v. Lambourne (1907) 1 KB 40, 44; R. v Maxwell (1978) 1 WLR 1350, 1359; likewise the Australian provisions see Giorgianni v R (1985) 156 CLR 473 at para 7. None of the earlier enactments included a joint enterprise provision. See for example, 11 & 12 VICT. c. 46, § 1 (1848) and The Act of 7 GEO. IV, c. 64, § 9 (1826).92 Simester above n 3, 77.

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jurisdictions to obtain convictions. Section 18(1)(a) of the Crimes Act 1900 (NSW)

provides:

“(1) Murder shall be taken to have been committed where the act of the

accused, or thing by him omitted to be done, causing the death

charged, was done or omitted with reckless indifference to human life,

or with intent to kill or inflict grievous bodily harm upon some person,

or done in an attempt to commit, or during or immediately after the

commission, by the accused, or some accomplice with him, of an act

obviously dangerous to life, or of a crime punishable by death or penal

servitude for life.”

The influence of the felony murder rule has been pervasive in Australia where

it is still in force in most states. Often in homicide cases joint enterprise complicity

liability is merely in the background in that country.93 Section 18 of the Crimes Act

1900 (NSW) (hereinafter 1900 Act) has had some slight amendments, but in substance

is no different than it was when it was enacted in 1900. What is striking is that the

general complicity provisions found in the 1900 Act do not include a joint enterprise

provision, but instead expressly require assistance and encouragement.

In 1880 the Criminal Code Bill commissioners (perhaps under the influence

of they way the unlawful act presumption extended liability in homicide cases and the

felony murder rule’s very wide application) recommended that an independent crime

of joint enterprise be enacted, but that provision made express mention of assistance

as the conduct element. Also, despite the Code Bill’s reference to the natural probable

consequence presumption, it seems to expressly state that a common intention is

required. Arguably, it was not meant to be an offence with negligence as its

substantive fault element, because although individuals can be individually negligent

while perpetrating a joint enterprise, such an approach is incompatible with the

express requirement that the parties in fact form a common intention. The relevant

part of the provision reads: “If several persons form a common intention to prosecute

93 For an example of the doctrines being applied together this year, see the decision of the Supreme Court of NSW in R v IL [2016] NSWCCA 51. The facts were that Ds where using a gas cylinder and cooking burner to make illicit drugs when there was an explosion and the fire killed one of them. “The Crown alleged that the respondent was engaged, with Mr Lan, in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. Under s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), the manufacture of a large commercial quantity of a prohibited drug is punishable by imprisonment for life and therefore is capable of being a foundational crime for constructive murder.”

26

any unlawful purpose, and to assist each other therein, each of them is a party to every

offence committed by any one of them in the prosecution of such common purpose,

the commission of which offence was or ought to have been known to be a probable

consequence of the prosecution of such common purpose.”94 The probable

consequence presumption seems to be tacked on at the end as an extra and it is not

clear that it was meant as an alternative substantive fault element, but the jurisdictions

that enacted the provision into their codes took it as such. It is plausible if we hold

that the common purpose need only cover the underlying joint enterprise, but the

effect of such a rule is to create vicarious liability for the collateral crimes, even for

murder. This sort of vicarious liability is totally unacceptable and cannot be found in

our common law.

Sir James Fitzjames Stephen, one of the commissioners, rejected a negligence

fault element in his own writings on the subject. He also makes no mention of

“unlawful act” as a basis of complicity liability. Undoubtedly, inclusion of the

unlawful act requirement in the Criminal Bill Code provision is attributable to some

of the commissioners, in the heated politics of law reform,95 blindly advocating

proposals that resembled the presumption of fault from an unlawful act doctrine and

the felony murder rule, with the aim of extending the reach of the law of complicity in

non-homicide cases. It is also arguable that they were simply trying to codify the

current law and were blind to the fact that complicity had a wider application in

homicide cases than it did in non-homicide cases due to the doctrine of constructive

fault. After all, Simester and Stark96 have recently made the same mistake. In his own

work, Stephen97 proposed that the common purpose complicity doctrine be limited as

follows.

94 See section 72 of the Criminal Code Bill 1880, which provides: “Every one is a party to and guilty of an offence who (a) Actually commits it; (b) Does or omits an act for the purpose of aiding any person to commit the offence; {c) Abets any person in the commission of the offence; (d) Counsels or procures any person to commit the offence. …” Alas, Sir Samuel Griffith, the drafter of the Queensland Criminal Code 1899 was persuaded by section 72 of the Criminal Code Bill 1880 when he created the substantive fault element for common purpose complicity in the Queensland Criminal Code. The Queensland Criminal Code was the first successful codification of the bulk of English criminal law. A substantive fault element of negligence was also adopted in Western Australia and a number of other Australian states. The drafters of the Canadian Criminal Code 1892 and the New Zealand Criminal Code 1893 also were influenced by the Criminal Code Bill 1880 and thus adopted the negligence approach. For a discussion of the Bill of 1880’s influence in the colonies, see Edmonds v. The Queen [2011] N.Z.S.C. 159 at para. 22; see also J. B Wright, “Self-Governing Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples,” (2007) 26 The University of Queensland Law Journal 39.95 M D Chalmers, “An Experiment in Codification”, (1886) 2 LQR 125.96 F Stark, “Case Comment” (2016) 75(3) CLJ 550.97 J F Stephen, A Digest of Criminal Law: Crimes and Punishments, (London: Macmillan and Co. Ltd., 4th edn., 1887) at 32.

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“When several persons take part in the execution of a common criminal

purpose, each is a principal in the second degree, in respect of every crime

committed by any one of them in the execution of that purpose.

If any of the offenders commits a crime foreign to the common criminal

purpose, the others are neither principals in the second degree, nor

accessories unless they actually instigate or assist in its commission.”

It clear that Stephen was not proposing a new form of complicity liability, because he

refers to the wrongdoers as “principals in the second degree”. As we have seen,

principals in the second degree were those who aided and abetted at the time the

collateral crime was perpetrated. Under the heading: “Where Crime Committed is

Probable Consequence of Crime Suggested,” Stephen98 goes on to write:

“If a person instigates another to commit a crime, and the person so instigated

commits a crime different from the one which he was instigated to commit,

but likely to be caused by such instigation, the instigator is an accessory

before the fact.”

There was no doctrine of negligent or vicarious joint enterprise liability in Stephen’s

Digest of Criminal Law on which he based the Draft Criminal Code.99 Stephen argued

that the more principled approach laid down in The Three Soldiers Case100 and R. v.

Plummer101 should be the law. Simester writes: “Curiously, the law in jurisdictions

such as Australia, Canada, and New Zealand has not generated parallel controversy to

that in England.”102 The reason there has been less controversy in Canada and New

Zealand is that those jurisdictions have statutory vicarious joint enterprise provisions

that have negligence as an alternative fault element. With such a low threshold for

establishing liability it is little wonder there is little controversy in those countries.

Simester’s claim that Australia has had no parallel controversy is questionable, given

the issue has been before its High Court many more times in the last few decades103

98 Id, 34. 99 For an overview of how the Bill was drafted by Stephen, using his Digest of the Criminal Law, published in 1877, as its basis, see his History of the Criminal Law (London: MacMillan, 1883), Vol. 1, Preface, vi, vii.100 (1697) Fost. 353. 101 (1706) Kelyng, J. 109. 102 Simester, above n 3, 88. 103 Miller v The Queen [2016] HCA 30; Huynh v The Queen (2013) 87 ALJR 434; Clayton v The Queen [2006] (2006) 81 ALJR 439; Osland v The Queen (1998) 197 CLR 316; Gillard v The Queen (2003) 219 CLR 1; McAuliffe v The Queen (1995) 183 CLR 108; Giorgianni v The Queen (1985) 156 CLR 473; Miller v The Queen

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than it has been to our House of Lords/Supreme Court.104 Given the powerful

dissenting judgment of Kirby J in Clayton v The Queen and of Gageler J in Miller, it

is bound to be before the High Court of Australia again within the next decade.

One has to ask: Why in light of the Criminal Code Bill proposals of 1880

(adopted in many parts of the world) and homicide provisions such as section 18(1) of

the Crimes Act 1900 (NSW), was the 1861 Act never amended, if England and Wales

thought such a route to liability appropriate? Simester has not given a convincing

account of why the Act of 1861 was never enacted or amended to include extended

joint enterprise liability.105 I respectfully submit that he also has failed to establish

that it has a doctrinal basis in English or Australian law. As we have seen above, in

Miller, the High Court of Australia failed to give any account of the doctrinal

foundations of this mysterious form of constructive complicity. The knockout blow

for Simester’s theory and the decision in Miller has to be that the unlawful act

element as discussed in the common purpose cases belonged to the law of homicide,

not to the law of complicity. The confusion stems from the fact that for centuries

judges used maxims and presumptions interchangeably with definitions of substantive

liability doctrines. 106 For the same reason, it has been difficult to fathom what the

mental element was.107

Simester’s other argument is that the mental element for complicity is either

intention or recklessness.108 Even if we do not accept that the Supreme Court of the

United Kingdom,109 the High Court of Australia (at least with respect complicity

involving assistance and encouragement)110 and the Supreme Court of the United

States,111 by drawing on English authorities going back to Bracton, were right in

holding that the mental element in complicity is intention, that does not alter the fact

that doctrine (extended) joint enterprise complicity based on a theory of participation

(1980) 32 ALR 32; Johns v The Queen (1980) 143 CLR 108.104 R v Powell [1999] 1 AC 1; R v Rahman [2009] 1 AC 129; R v Gnango [2012] 2 WLR 17; R v Jogee [2016] 2 WLR 681.105 Simester, above n 3. 106 E P Buford, “The Presumption of Malice in the Law of Murder,” (1922) 8 Va L Reg n.s. 178, 185. 107 Baker, above n 6, Chap 2. 108 I have presented a lengthy argument elsewhere for interpreting the law as requiring intention and for the sake of space will not revisit that issue here. Ibid. 109 R v Jogee [2016] 2 WLR 681.110 Giorgianni v R (1985) 156 CLR 473.111 Rosemond v US (2014) 134 S Ct 1240.

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of an unlawful act did not exist at common law and was not recognised in the Act of

1861.

IV Simester’s Change of Normative Position Rule

I am not able to deal with all Simester’s claims in this short essay. In particular, I shall

not address Simester’s concerns about conditional intention or his claim that the

Supreme Court mishandled intention more generally, because I have published works

elsewhere that addresses these issues.112 I respectfully submit that Simester

overcomplicates the issue of conditional intention and as a result his reasoning and

examples are misplaced: it is simply not an issue in practice. The only reason

conditional intention features in the discussion in Jogee is because in Johns v The

Queen the court confused the issue of evidence of conditional intention with the

general issue of proving fault and ultimately with the substantive fault element in

complicity; arguably, this is what led Sir Robin Cooke astray in Chan Wing-Siu.113 (At

the outset of this essay, I provided an example involving conditional intention. It is

clear from that example and those given in the passages quoted above from Johns that

in practice conditional intention will hardly ever be contentious.) For the sake of

space, I shall limit my discussion in this section to Simester’s normative claim that

joining an unlawful enterprise has sufficient normative power to make a person fully

liable for another’s crime including murder carrying a mandatory life sentence.

Over a decade ago, Simester argued:114

“Through entering into a joint enterprise, S changes her normative position.

She becomes, by her deliberate choice, a participant in a group action to

commit a crime. Moreover, her new status has moral significance: she

associates herself with the conduct of the other members of the group in a

way that the mere aider or abettor, who remains an independent character

throughout the episode, does not. Whereas aiding and abetting doctrines are

grounded in S’s contribution to another’s crime, joint enterprise is grounded

in affiliation.”

112 Baker, above n 6, Chap 2. 113 Ibid. 114 Simester, infra n 45, 598-599.

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For Simester there are two wrongs to be punished (1) the joint perpetration of the

crime that D jointly perpetrates (2) D’s act of joining the joint enterprise. What

Simester does not explain is why D should be punished for any collateral crime that

results from the joint enterprise, if she did not intend to assist or encourage it. Why

use the crime label and punishment for the collateral crime to punish D for her act of

participating in an unlawful joint enterprise. Would it not be fairer to enact a lesser

offence to deter group criminality? D could be criminalised as follows: (1) for the

joint perpetration of the underlying joint enterprise (2) for the act of joining a joint

enterprise as opposed to acting singly. If D has acted singly her liability would simply

be for the crime she perpetrated, but if she acts together with multiple parties that will

count as an aggravating feature. The collateral crime ought not enter into the equation,

unless it was intentionally assisted or encouraged. The act of acting jointly as opposed

to singly per se should be criminalised and punished in proportion with the harm it

causes or risks—this can be achieved by enacting a lesser offence. More recently,

Simester has argued:

“The key point here is that if S joins in a group criminal enterprise to commit

a crime, it need not be shown that P received actual assistance or

encouragement from S, or indeed (in the case of encouragement) that P was

even aware of S. S’s liability for that crime arises from participation in the

common unlawful purpose, not in a distinct act of aiding or abetting P. … It

is more natural, and better aligned with the history, to embrace such

enterprises as a form of participation per se.”115

“Miller v The Queen also acknowledges the distinctive normative character

of the wrong involved in embarking on a joint criminal enterprise.”116

Simester applies the change of normative position term as a rule. I call it a rule,

because the idea has never been theorised, but has merely been invoked by scholars as

a rule.117 The rule is akin to the felony murder rule and this author cannot think of any

normative justification for the rule. The change of normative position theory was a

115 Simester, above n 3, 77. 116 Id, 87.117 Simester, above n 33; Jeremy Horder and David Hughes, “Joint Criminal Ventures and Murder: The Prospects for Law Reform,” (2009) 20 King’s L.J. 379 at 398.

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term coined by Professor Gardner.118 Gardner has stated that it was merely a

statement he uttered while thinking about rule of law issues and that it has been

unfortunate that some scholars have taken his term as though he had also provided

some underlying normative justification in support of it. In a Reply to Critics,

Professor Gardner remarks: “When I wrote the words I didn’t really mean to justify

anything. …I meant, in other words, to set out the thing that needs to be justified

rather than the justification.”119

Simester does not provide a positive justification for his claim that a change of

normative position provides a justification for treating all parties to a joint enterprise

equally liable for unintended collateral crimes. Professor Simester has been an

advocate of the change of normative position rule for more than a decade and has

written in defence of it on more than one occasion,120 but I have not seen any

arguments that persuade me to support his theory. Why should joining an underlying

joint enterprise result in a rape or murder conviction, if the secondary party does not

assist or encourage such conduct and if she does not intend such conduct to be

perpetrated?

Suppose D1 jointly perpetrates a burglary with D2 and knows for a fact that

D2 is a sexual predator who in the past was convicted and jailed for two counts of

rape. Suppose D1 also believes that there is a remote possibility that if there is a lone

woman (V) in the house they intend to burgle, that there is a possibility that D2 might

try to rape or sexually harass V during the course of the burglary. As it turns out, D2

finds a young woman showering on the third floor of the house and rapes her. D1 is

on the first floor of the house packing their sacks with goods while unbeknown to her

D2 is raping V. D1 discovers the rape only after they leave the house, because D2

boasts about it to D1.121 Also, suppose that D1 knowing about D2 sexual predilections

made D2 agree in advance that he would not sexually harass any occupants should

they stumble across someone, but that they should both leave immediately if an

occupant is present.

Simester would make them both liable for burglary and also for rape. For

Simester the rape conviction is fair as it punishes D1 for jointly perpetrating the

118 J Gardner, Offences and Defences (Oxford: OUP, 2007), 246-247.119 Ibid.120 Simester, above nn 3 and 46.121 For scenarios involving collateral sexual offences, see People v. Nguyen (2003) 26 Cal Rptr 2d 323; R. v. Kalinowski (1930) 31 SR (NSW) 377, 380.

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burglary rather than singly perpetrating the burglary and because she foresaw a rape

or sexual offence as a possible collateral consequence of joining D2 to burglarise a

house. Under Jogee, only D2 would be liable for the rape. Simester would argue that

D1 changed her normative position by joining the underlying burglary and therefore it

does not matter that she did not intend to encourage a rape to be perpetrated. For

Simester it does not matter that there was no assistance or encouragement apropos the

rape, it is enough that D1 was participating in an underlying joint enterprise with

foresight of rape as a remote possibility. The problem with Simester’s argument is

that he does not provide a positive (normative) justification for it. He gives no

supporting arguments other than to apply the term “change of normative position” as

though it is a rule akin to the felony murder rule. What is meant by change of

normative position is that D1’s position has changed from one where she is acting

rightly or at least is acting in a normatively neutral sense, to one where she is acting

wrongly. But the wrong is the burglary per se: how does that wrong extend to cover

the independent wrong involved in the collateral crime of rape? For D1’s change of

normative position to cover the collateral crime she would have to be involved in it in

a very substantial way and would have to have comparable fault. If D1 were to hold V

down with the intention of helping D2 to rape V, D1’s wrongdoing as an intentional

assister of rape would not be too far behind that of the rapist. Even if there is not

exact equivalence as far as culpability is concerned, at least in this sort of case where

there is very substantial and direct assistance at the time when the crime is being

perpetrated, it might be argued that D1’s normative position extends to D2’s rape.

Notwithstanding the abovementioned supposition, the better view is that even

under the Jogee approach (that is, where D1 intends to assist or encourage D2 with

the ulterior intention that D2 perpetrate the target crime with the requisite fault for

that crime), perpetration is normatively distinct from assistance and encouragement. It

is for this reason section 8 of the 1861 Act should be abrogated. The provisions found

in sections 44 and 45 of the Serious Crime Act 2007 better reflect the different levels

of wrong between assisting/encouraging and perpetrating. The 2007 Act does not

deem all parties to be principals, but instead allows the secondary party to be labelled

as an assister or encourager and punished at that level. In cases where there is very

substantial intentional assistance, section 58 of the 2007 Act allows the sentence to

reflect this, but that section also allows for a light sentence where the assistance or

encouragement is trivial.

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If we leave aside the special case of masterminds and organised crime,122

assistance or encouragement is usually harmless.123 Its harm depends on the party who

has been offered assistance deciding to use it, or the party who has been encouraged

allowing the encouragement to form one of the reasons she has for perpetrating the

crime. Even when D1 holds V down so that D2 can rape V, it is D2 who makes a fully

informed and free choice to rape another—not D1. It is the perpetrator who has the

final say over whether or not the anticipated target crime will be perpetrated. The

perpetrator causes herself to use the assistance or to listen to the encouragement.

Thus, there is an element of moral luck involved: the harmfulness of assisting and

encouraging is one step removed from any direct harm and in itself is harmless.

Nonetheless, it is an independent wrong that is deserving of punishment, because it

increases the likelihood of others succeeding with their criminal plans. The

justification for criminalising this sort of conduct is that it allows the law to cut in at

the earliest possible opportunity to try to thwart the potential perpetrator’s act of

direct harm-doing. Generally, the assister or encourager does not take a normative

position in the perpetrator’s crime, her normative position does not extend beyond her

act of assistance and encouragement and that is where her liability should end. She

should be punished for the independent wrong of assisting and encouraging, but

should not be punished for the crime that she assists or encourages. (This sort of

wholesale reform is a matter for Parliament; I want to limit the remainder of my

discussion to the normative case Simester has given in support of the doctrine of joint

enterprise that has been judicially enacted in Australia and Hong Kong).

In the above example, it was clear that D1 in no way took a normative position

in the rape. She was not a part of the rape. She did not even encourage or assist it.

Simester also provides a consequentialist justification that might explain why

participation in a joint enterprise is a wrongful harm. Simester argues that gang or

group crime is more dangerous because groups are more effective and group crime

carries a higher risk of collateral crimes being perpetrated. Simester does not provide

any empirical evidence for this claim, but it seems a reasonable claim. After all, if

eight violent thugs attack V, V has less chance of defending herself and avoiding

122 These sorts of cases might involve many acts of assistance and encouragement, but could be punished as recidivism normally is. Alternatively, this conduct requires special offences. See for example, s. 45 of the Serious Crime Act 2015, which creates an offence of participating in activities of an organised crime group.123 It may be harmful when a criminal act itself is used to assist or encourage, but that act will already be punished as an act of personal as opposed to derivative wrongdoing. Take the example of a gang rapist whose act of rape encourages fellow gang members to also rape. Baker, above n 6, 268.

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injury or death than V does when V is attacked by one thug. There is no doubt that

groups and gangs are more dangerous and that gang crimes pose a much higher risk of

a collateral crime being perpetrated, but that only explains why participation in a joint

enterprise itself is an independent wrong deserving of some criminalisation. It is

deserving of some degree of criminalisation because it involves D wrongfully (but

remotely) increasing the risk of harm to others. It does not provide a normative

justification for criminalising joining a joint enterprise to assault V per se as both

assault and murder when there is a collateral murder.

Joining a joint unlawful enterprise to perpetrate a crime (e.g. burglary) is a

wrong in itself independent of the joint crime (burglary) and independent of the

collateral crime (e.g. rape), because it slightly increases the chance of the rape taking

place, but that wrong is much lower on the scale of moral wrongs than is rape per se

and thus it should be labelled and punished as a lesser wrong. This sort of argument

would only supply a normative justification for having offences like those found in

sections 44 and 45 of the Serious Crime Act 2007.124

Simester fears that requiring encouragement or assistance will let culpable

wrongdoers off the hook: “Suppose that S joins an enterprise to commit an assault. In

joining it, let us concede, S encourages P to commit the assault. (That would of course

need to be proved.) P, however, goes on to commit murder by deliberately inflicting

serious injuries that cause death. How is it the case that S has intentionally

encouraged that act?”125 The solution is to amend the Serious Crime Act 2007 not only

to cover reckless assistance and encouragement, but also to include an independent

offence that criminalises the act of joining a joint enterprise involving an indictable

offence. (Under this scheme, D1 from our hypothetical above would be liable for

burglary and also for the independent crime of joining a joint indictable offence

(burglary is an indictable offence). The sentence and the crime label would reflect the

type of wrong involved. The latter solution would allow for fair labelling and

proportionate punishment. It also would allow Parliament to enact a clear provision,

which is preferred to courts and scholars trying to stretch the ancient doctrine of

constructive malice from the law of homicide to mint an alternative actus reus for

complicity liability.

124 D J Baker, “Conceptualizing Inchoate Complicity: The Normative and Doctrinal Case for Lessor Offenses as an Alternative to Complicity Liability,” (2016) 25(1) Southern California Interdisciplinary Law Journal 504-588; D J Baker, “Complicity, Proportionality and the Serious Crime Act”, (2011) 14(3) New Crim LR 403.125 Simester, above n 3, 86.

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V Conclusion

There is an ancient principle that in the case of doubt a criminal statute or doctrine is

to be “strictly construed” in favour of the defendant. There is sufficient doubt about

the doctrinal foundations of the conduct element for (extended) joint enterprise

complicity to require any higher court considering the matter in the 21st century to rule

that there is no such thing as (extended) joint enterprise complicity, because the

reality is that in practice it can allow a person to go to jail for murder simply because

she joined an underlying criminal enterprise foreseeing one of its members might

inflict GBH upon a victim.126 There is no need for comparable fault or even assistance

or encouragement. As far as it applies to collateral murders, it is a modern rule akin to

the felony murder rule, which was abolished 60 years ago in England and Wales,

because it failed to meet the then prevailing standards of justice.

Once the doctrine of constructive malice in relation to homicide is put in its

proper historical context in relation to complicity, it is evident that the unlawfulness

of an underlying joint enterprise is irrelevant to the conduct element found in the law

of complicity. Furthermore, given the considerable doubt about whether complicity

historically required intention or whether recklessness was an alternative, the mental

element also should be “strictly construed” in favour of the defendant. Not only are

there powerful policy reasons for requiring that those who are one step removed from

the actual perpetration should be liable only when they intend to assist or encourage

with the ulterior intention that the perpetrator succeed in perpetrating the target

crime,127 but there are also persuasive precedents from Australia’s own High Court128

and now from the Supreme Court of the United Kingdom129 and the Supreme Court of

the United States.130 Not to mention the mounting academic literature. If a gap is left

in the law and it is felt some lesser crime is needed to deter gang crime, then that is

what Parliament is for. It is preferable not to have judges enacting new doctrines to

126 For an example of joint gross negligence resulting in a murder conviction, due it it taking place during the perpetrate of an underlying criminal enterprise, see n 59.127 D J Baker, “The Moral Limits of Criminalizing Remote Harms”, (2007) 10 New Crim LR 370. S H Kadish, ‘Reckless Complicity’, (1997) 87 J Crim L & Criminology 369, 372. 128 Giorgianni v R (1985) 156 CLR 473.129 R v Jogee [2016] 2 WLR 681.130 Rosemond v US (2014) 134 S Ct 1240.

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extend the reach of the criminal law.131 Joint enterprise liability is akin to vicarious

liability and is clearly an extension of the criminal law.132

Simester concludes his commentary as follows: “Let us hope that London opts

for the former, and ultimately realigns itself with Canberra.”133 Most of the time I find

myself in agreement with Simester’s views, but on this occasion I hope Australia will

eventually follow London, not vice versa. Australia’s homicide law and vicarious

from of complicity belong in another age. Australia still has the felony murder rule

and recklessness is an alternative fault element for murder in the common law states.

In addition, several states in that country have enacted extended joint enterprise

provisions with fault elements requiring no more than negligence. Australia’s

homicide law and law of complicity is not compatible with 21st century legal norms. I

cannot see a convincing case for trying to reverse the enlightened and informed

approach adopted in England and Wales in favour of the retrograde law as expounded

by the courts in Australia and Hong Kong.

Dennis J. BakerProfessor of English Law (University of Surrey) and The Sir Matthew Hale Professor of Common Law (Wuhan University)

131 DPP v Withers [1975] AC 842; R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435; R v Rimmington [2006] 1 AC 459. 132 Moore writes: “[A] number of states make one liable as an accomplice not only for crimes that one agrees should be committed but for all crimes committed by any member of the group, so long as the commission of such crimes was foreseeable to the accomplice. If one puts these doctrines together, a form of vicarious liability results: merely by joining a group, but doing nothing else oneself, one is liable as an accomplice for all the crimes of that group’s members that are foreseeably incident to those crimes that may have motivated the group’s formation to begin with.” M S Moore, “Causing, Aiding, and the Superfluity of Accomplice Liability” (2008) 156 U Pa L Rev 395, 400. See also book withheld for refereeing Chap 8. 133 Simester, above n 3, 90.

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