Joint Criminal Enterprise

This conclusion was endorsed in McAuliffe v R [1995] HCA 37, where the High Court concluded that a person was responsible for a crime, committed by another person, if the secondary party joined the “joint criminal enterprise with the necessary foresight”.

Few areas of law have received such international attention of late as the law of Joint Criminal Enterprise.

For decades, the law in Australia has followed the law in the United Kingdom, as found in Chan Wing-Siu v The Queen [1985] AC 168, where the court found that what is necessary to be proved was that the secondary party “foresaw” the commission of the offence in question during the implementation of the criminal enterprise.

This conclusion was endorsed in McAuliffe v R [1995] HCA 37, where the High Court concluded that a person was responsible for a crime, committed by another person, if the secondary party joined the “joint criminal enterprise with the necessary foresight”.

Some 30 years after Chan Wing-Siu, the House of Lords found that “the court took a wrong turn

in Chan Wing-Siu and the cases which have followed it”, and held that a jury need find an “intention to assist or encourage the commission of the crime.“

Despite the High Court being invited to reconsider the proposition that foresight is sufficient (see Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30), the position remains in Australia that foresight that principal might commit the offence in question is sufficient to sustain a conviction.


 

Chan Wing-Siu

R v Chan Wing-Siu [1985] AC 168

“In these circumstances one way in which the Crown case at the trial was put against all three accused, and on both caunts, was that crimes of the type charged must have been contemplated by the accused as possible occurrences in the course of their joint venture. Both in the summing up and later in answer to questions from the jury regarding the necessary intent, Macdougall J. directed them to the effect that an accused was guilty on both counts if proved to have had in contemplation that a knife might be used on the occasion by one of his co-adventurers with the intention of inflicting serious bodily injury…”