Miller v R; Smith v R; Presley v DPP (SA) [2016] HCA 30: Extended Joint Criminal Enterprise

Today (24 August 2016), the High Court has allowed three appeals from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia in the case of Miller v R; Smith v R; Presley v DPP (CTH) [2016] HCA 30. The case concerned directions to the jury by leaving open extended joint criminal enterprise in relation to each appellant and in failing to leave manslaughter in excessive self-defence open in Miller’s instance.

Background to the Case

The appellants and a man named Betts were convicted of murder following a trial in the Supreme Court of South Australia.  There was evidence that the four were involved in an altercation in which Betts fatally stabbed the deceased.  Each of the appellants had also been drinking alcohol in the hours leading up to the fatal altercation.

South Australian Supreme Court

In the South Australian Supreme Court, the liability of the appellants for the murder was left for the jury's consideration on bases which included the doctrine of extended joint criminal enterprise as enunciated in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37:  each appellant would be guilty of murder if he was a party to an agreement to commit an assault and he foresaw that in carrying out that agreement one of his co-venturers might kill or inflict really serious bodily injury intending to do so and, with that awareness, he continued to participate in the agreed criminal enterprise. 

South Australian Full Court - Criminal Appeal

The appellants appealed to the Court of Criminal Appeal in the South Australian Supreme Court, contending that the verdicts were unreasonable. The Court also rejected Miller’s arguments that the verdict was unreasonable because the trial judge had erred in misdirecting the jury by leaving open extended joint criminal enterprise in relation to him and in failing to leave manslaughter in excessive self-defence open in MIller’s instance (see at [110]ff). A third argument, raised but not pursued in the lower courts, was the direction on intoxication (see at [125]), which now forms the basis of Miller’s appeal to the High Court.

The Court of Criminal Appeal dismissed the grounds of appeal in each case without reviewing the sufficiency of the evidence to support the conviction.

High Court Appeal

Prior to the hearing in the High Court, the Supreme Court of the United Kingdom in R v Jogee [2016] 2 WLR 681; [2016] 2 All ER 1 held that the doctrine of extended joint criminal enterprise should no longer be a basis for the imposition of criminal liability.  The appellants were granted leave to argue that, consistent with Jogee, the decision of the High Court in McAuliffe should be reopened and overruled.  After consideration of the history and basis of the doctrine, the majority held that the law in Australia should remain as stated in McAuliffe.

The High Court held, by majority, that the appeals should be allowed in circumstances in which the Court of Criminal Appeal had failed to review the sufficiency of the evidence to sustain the appellants' convictions.  The proceedings were remitted to the Court of Criminal Appeal for determination of the ground that the verdicts were unreasonable and could not be supported by the evidence.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Miller v R; Smith v R; Presley v DPP (Cth) [2016] HCA 30 (24 August 2016) and judgment summary