Miller v The Queen
High Court of Australia · 2016
Miller v The Queen (2016) 259 CLR 380
The UK Supreme Court had just called extended joint enterprise liability a "wrong turn". Three South Australian men, convicted of a stabbing they did not commit, asked the High Court to follow.
Mitchell v The King applies Miller's statement of extended joint criminal enterprise to common law murder and limits how far the doctrine reaches. Gordon, Edelman and Steward JJ said that what must be foreseen is the commission of the incidental crime, being all its elements: for murder, that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention ([56]-[58]). A participant who foresees only the elements of a lesser crime can be convicted only of that lesser crime, for example manslaughter ([60]). All seven Justices held that the doctrine cannot be combined with the statutory form of murder in s 12A of the Criminal Law Consolidation Act 1935 (SA): Kiefel CJ at [30], Gageler, Gleeson and Jagot JJ at [43]-[47], and Gordon, Edelman and Steward JJ at [52].
What happened?
Everard Miller, Wayne Smith and Johnas Presley were convicted in the Supreme Court of South Australia (Stanley J) of the murder of Clifford Hall, who was fatally stabbed by Joshua Betts during an assault to which the three were said to be parties ([46]). Earlier that night Betts had been punched in a heated exchange with Mr Hall and a neighbour. On returning to the house where the men had been drinking, Presley took a baseball bat, and the group, with Betts carrying a knife, went back to the scene ([52]-[53]). On the prosecution case, Mr Hall was struck from behind with a shovel and Betts struck the fatal knife blow ([56]).
Liability for the murder was left to the jury on the basis of either joint criminal enterprise or extended joint criminal enterprise ([46]). The Court of Criminal Appeal (Gray, Sulan and Blue JJ) dismissed their appeals ([48]). R v Jogee was delivered while special leave was pending, on 18 February 2016, and each man was granted leave to add a ground that murder should not have been left on extended joint criminal enterprise principles ([50]).
What did the Court decide?
The amended ground failed and was dismissed ([51]). The appeals were nonetheless allowed. The Court held that in rejecting the ground that the verdicts were unreasonable, the Court of Criminal Appeal had done no more than refer to its summary of the evidence and the prosecution case, without reviewing the evidence as it related to each appellant or assessing the significance of the evidence of intoxication ([79]-[81]). Special leave was granted to Smith and Presley, each appeal was allowed, the Court of Criminal Appeal's orders were set aside, and the matters were remitted for determination of the ground that the verdicts were unreasonable ([82]-[83]). The High Court did not decide whether the verdicts were unreasonable.
The reasons are in three parts: the joint reasons ([1]-[83]), Gageler J ([84]-[130]) and Keane J ([131]-[148]). The Proposition below sets out what each said about the doctrine.
Proposition
What is the principle?
The joint reasons (French CJ, Kiefel, Bell, Nettle and Gordon JJ) held that, although Jogee made it appropriate to reconsider McAuliffe, "the principle of extended joint criminal enterprise liability stated in McAuliffe should remain part of the common law of Australia" ([2]). They stated the doctrine this way: 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" ([4]). In the paradigm case of murder, the secondary party's foresight is that a party to the enterprise may commit murder ([45]).
The joint reasons gave their reasons for not departing from McAuliffe at [39]-[43]: McAuliffe had been affirmed on a number of occasions, many prosecutions had been conducted on it, and the submissions did not identify decided cases in which the doctrine had occasioned injustice. They held that "it is not appropriate for this Court to now decide to abandon extended joint criminal enterprise liability and require, in the case of joint criminal enterprise liability, proof of intention in line with Jogee", and that it was not appropriate to substitute a requirement of foresight of probability ([43]). They accepted that where the accused's contemplation of the incidental offence was fleeting and genuinely dismissed as a negligible risk, the foresight required for liability is absent, and said that in such a case "it would be necessary to direct the jury that a possibility dismissed as negligible would not suffice for liability" ([44]).
Keane J agreed with those reasons and, in his own, treated participants in a joint criminal enterprise as each authorising the acts they foresee as possible incidents of it ([139], [144]). Gageler J, dissenting, would "reopen and overrule McAuliffe" ([129]).
Why does this case matter?
This is the case that marks where Australian and English law on joint enterprise part company, so an answer on a co-venturer's crime has to identify the jurisdiction and the source of law before it names a case. The judgment itself notes that Victoria has abolished the common law of complicity by statute ([42]) and that the Criminal Codes of Queensland, Western Australia and Tasmania carry their own provision on common purpose ([15]).
It is also a case students misdescribe: it is frequently remembered as a decision about one headline question and not as a decision that came with a disposition, which is set out above.
Exam and application relevance
Quote each Justice for what that Justice said: Gageler J's criticisms of the doctrine are in dissent, and Keane J's reasons add to the joint reasons.
In a problem about a co-venturer's killing in a common law jurisdiction, the case supports applying the McAuliffe formulation at [4]: an agreement to commit a crime, foresight of the possibility of the incidental crime, and continued participation with that awareness. The joint reasons say that proof of foresight of the possibility of the incidental offence will usually be an inference from what the accused is proved to have done and to have known ([44]). The Court's own account of the task on an unreasonable-verdict ground asks whether the prosecution excluded the reasonable possibility that, by reason of intoxication, the accused did not in fact foresee the incidental crime ([78]). For a murder charge, the foresight to be established is of the incidental crime's elements, including that the co-venturer might act with murderous intention, and Mitchell held the doctrine could not be combined with s 12A of the Criminal Law Consolidation Act 1935 (SA); see the treatment of Miller by Mitchell. Where a Code or statutory scheme governs, apply its terms.
Check your understanding
1. Which Justices gave the joint reasons, who agreed with them and who dissented on whether McAuliffe should be overruled? ([1], [129], [131]) 2. According to the joint reasons, what must a party to a joint criminal enterprise foresee, and what must the party do after foreseeing it, to be liable for the incidental crime? ([4]) 3. What did the joint reasons say about a person who contemplated the incidental offence fleetingly and dismissed it as a negligible risk, and what follows for the directions to the jury? ([44]) 4. According to the treatment recorded for Mitchell, what must a participant foresee for murder, and with which statutory form of murder did the Court hold the doctrine could not be combined? 5. Although the ground challenging McAuliffe failed, the appeals were allowed. What had the Court of Criminal Appeal not done, and what did the High Court order? ([79]-[83])