Introduction to Extending Criminal Liability

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This article is a topic within the subject Criminal Laws.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 985-1010.


[1]“[M]any crimes are not committed single-handed. Others may be involved, directly or indirectly, in the commission of a crime although they are not the primary offenders. Any coherent criminal law must develop a theory of accessory liability which will embrace those whose responsibility merits conviction and punishment...” Lord Bingham in Rahman.[2]

  • These set of rules and principles are known as ‘complicity law’ provides a basis of criminal liability of a person by reference to their association with a crime committed by someone else.
  • Association itself is the basis for the justification of some offences (e.g. conspiracy) because of the risk that individuals will engage in future criminal activity.
  • Offences based on mere association without any requirement to prove a specific criminal offence has been committed or even planned (e.g. consorting with known criminals) are even more controversial offences.
  • A growing number of offences manifest what Lucia Zedner has described as a shift towards a “pre-crime society.”


[3]“Complicity” is not an offence as such, it refers to a set of principles which extend liability in three circumstances:

  1. Joint criminal enterprise: where two or more persons agree to commit an offence, all will be held equally responsible for the actions of the others (or principals in the first degree). Sometimes referred to as “acting in concert.”
  2. Extended joint criminal enterprise: where, during the course of joint criminal enterprise, one person commits an additional crime, the others may be held liable for the same crime.
  3. Accessorial liability: a person who provides assistance or encouragement before the crime (accessory before the fact) or a person who provides assistance or encouragement at the scene of the crime (principal in the second degree) may be held liable for the crime of the principal offender.

In each of these circumstances a different set of rules applies, although they are seemingly overlapping, confuse judges, lawyers and students alike and have therefore been subject to criticism.

Joint criminal enterprise


  • A key distinction between liability of a joint criminal enterprise and accessorial liability is that the former is primary not derivative (it does not rely on conviction of another party).
  • JC Smith criticises the idea of primary liability for actors who did not commit the actual crime as a fiction – we have to "pretend" that they pulled the trigger.

The High Court ruled on joint criminal enterprise in Osland:[5]

  • Facts: Heather Osland and her son were charged with murder. They reached an agreement to murder Heather’s husband and the plan was implemented when Heather mixed a sedative into her husband’s dinner and after he had fallen asleep, the son bashed him to death with a metal pipe.
  • Trial: Heather was convicted for murder and at a subsequent retrial her son was acquitted. On appeal to the High Court, the main argument advanced by Osland was that, given that the Crown’s case was that she and her son were jointly responsible for the murder, her conviction was inconsistent with the jury’s failure to convict him.
  • Held: the appeal was dismissed.
  • Under the test for joint criminal enterprise (as per Tangye[6]) the prosecution must establish agreement and participation:
1. An understanding is reached between two or more people to commit a crime.
a. The understanding need not be express and may be inferred from the circumstances. It need not have been made before the crime if they are participating together.
2. A person participates by either committing the agreed crime or simply by being present at the time when the crime is committed.
  • In the English case R v Howe, it was held that a person who did not perform the actual acts could be guilty of a more serious charge than the actual perpetrator if the killer was convicted of the reduced charge of manslaughter for some reason special to themself.
    • The Australian case Matusevich v the Queen approved the use of the principle to “convict secondary parties when the principal is not personally liable.”
    • This is consistent with the concept of an “innocent agent” or non-responsible party such as a child, mentally ill person or person under duress such as in R v Bourne (where a husband was found guilty of bestiality for compelling his wife to have sex with a dog).
  • The majority held that a person may enter an agreement for joint criminal enterprise whilst also acting under provocation or self-defence. Gaudron and Gummow JJ dissented on this point and held that Heather’s conviction should be set aside.

Presence requirement

  • Gaudron and Gummow’s dissenting judgement in Osland supports the suggestion that there is logical reason for the limitation that there must be physical presence during the commission of the crime.
    • Liability is extended “regardless of the part played by each” and “that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose...”[7]
  • Following Osland, in Kanaan, because the accused was not actually present when the murder was committed the court held that he could only he held liable as an accessory not under joint criminal enterprise.

However, in a number of other cases the precedent of Osland has been distinguished, qualified or ignored.

  • In Franklin, Ormiston JA observed that it is not essential that the presence be continuous.
  • In Suteski, the defendant arranged for three men to attack the victim, who died from his injuries. The court interpreted the presence requirement as referring to the presence of the defendant at the time the agreement was entered into, rather than the presence of the defendant at the time of the commission of the offence, which took place later that day.
    • However, there can be little doubt that it is the latter referred to in Osland.
  • The presence requirements also creates potential difficulties in relation to a crime such as supplying a prohibited drug, where it is difficult to define the “scene of the crime”.
    • In Prochilo, Smart JA said “Presence at the scene of supply is one way of proving participation in the joint criminal enterprise. It is not the only way. Participation is frequently proved by telephone intercepts and listening device tapes.” [8]

Proving agreement

  • There is significant overlap between this category of complicity liability and conspiracy, however, the threshold for establishing the existence of an agreement is lower in this case.
  • One definition for agreement is “an unspoken understanding or arrangement amounting to an agreement” (Tangye).
  • In Kanaan, the judge commented that “a joint enterprise does not have to be reduced to writing or any formality. A joint enterprise simply means that people are acting together, that is, of a common mind and with a common aim shared between them... an enterprise can be put together or it can be longstanding.”[9]
  • In Chishimba, three men appealed against their convictions for aggravated sexual assault. The Crown case was that the 15 year old victim had been subjected to multiple acts of non-consensual intercourse over an extended period, in which each of the men participated.
    • The majority held that the fact that the appellants were present in the bedroom at the time of the sexual intercourse did not, with additional behaviour, amount to encouragement for the purpose of establishing joint criminal enterprise.
    • In dissent McCallum J concluded that “The presence of a man in a pub with a friend when a fight breaks out has a different complexion from the presence of a man in a small bedroom with the door mostly closed when a friend begins to have sexual intercourse with a drunken girl who is asleep on the bed. The failure to leave or intervene during such conduct is more significant. I do not characterise it as “mere presence.””

Joint criminal enterprise and defences

In Osland, McHugh J referred to the facts in Parker, in order to support his contention that a person could be simultaneously acting under provocation and pursuant to an agreement.

  • In Parker, the accused hit the victim with his car and stabbed him multiple times whilst he was in the process of eloping with Parker’s wife and had just taunted him about having sex with her. If his brother-in-law had set out with him to catch the victim and kill him, McHugh concluded that it would have been open to the jury to decide that Parker had been acting both under provocation and pursuant to an agreement.

Under the majority opinion in Osland, defences such as provocation may not negate an agreement.

Withdrawal from a joint criminal enterprise

According to Tietie, in order withdraw effectively form a joint criminal enterprise:

  1. The withdrawal must be timely.
  2. The person must communicate the withdrawal to the others.
  3. The person must do what he reasonably can to try to dissuade the others from committing the crime.

If the crime has already begun, the person must countermand their actions or take action “to undo the effect of his previous encouragement and participation.” Otherwise the withdrawal will not be timely, it will be too late.

  • Not all common law jurisdictions require an attempt to prevent the crime, however, “mere repentance” will not suffice (O’Flaherty).
  • If, after communicating their withdrawal, the accused honestly believed that the others would not go ahead and commit the crime, no preventative steps are required (Truong).
  • The withdrawal requirements are assumed to be the same regardless of which complicity rules are operating, however, in Truong, Smart J treated it as an open question whether in the case of an accessory the requirements should be less onerous (for example not requiring preventative steps).
  • It has been suggested that what a person must do by way of withdrawal might depend on what role it was anticipated they would play in the crime.

Extended joint criminal enterprise

In extended joint criminal enterprise, liability may be extended to others in the original agreement where one of the participants commits another crime, in addition to or instead of, the particular crime which was the objective of the criminal enterprise. In McAuliffe and McAuliffe:

  • Facts: two brothers were convicted of the murder of one man and the assault and robbery offences against another. They had decided with a friend to go to a park to rob and/or assault someone. One man ended up seriously injured and the other died from his wounds and from falling from cliffs at the park due to the altercation. The friend and one of the brothers armed themselves but it was questionable whether the other participants knew of this.
  • Held: because the common purpose or enterprise was to rob someone, there was also an express or tacit agreement that the victims would be attacked with an intention to inflict GBH or it was contemplated that an intentional infliction of GBH would be a possibility in the assault.
  • Test: mens rea element is contemplation of the possibility that one of the other parties may commit the crime and continuing anyway. The consequences need only be possible not probable.
    • “Such an act is one which falls within the parties’ own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.”

Individual foresight, not “common” agreement

  • Following McAuliffe, the distinction between additional crimes within the joint criminal enterprise and outside it is effectively redundant.
  • There is no requirement for the prosecution to prove that the additional crime was jointly or commonly foreseen.
  • In Powell, Lord Hutton noted that contemplation and tacit agreement are often practically indistinguishable from each other, however, in some cases where the party makes it clear, for example, that they are opposed to the use of a dangerous weapon, it would be unrealistic to say that it was used with their tacit agreement.
    • They will be convicted regardless under McAuliffe, as this behaviour is clearly evidence for contemplation.

The relationship between joint criminal enterprise and extended joint criminal enterprise

In Tangye, the court explained that the prosecution only needs to rely on extended joint criminal enterprise when the offence charged is not the same as the enterprise agreed.

  • In Jacobs and Mehajer, the court emphasised that in some circumstances it will be appropriate for the prosecution to simultaneously run arguments based on joint criminal enterprise and extended joint criminal enterprise.
    • In this case the enterprise was a robbery but it was left open whether the enterprise included the aggravating element of inflicting GBH or whether it fell under the extended doctrine.

What must the secondary participant have foreseen as a possibility?

This issue most commonly arises where an additional crime in a serious personal violence offence and the method of harm adopted by the primary offender (e.g. knife or gun) was not foreseen by the other participant(s).

  • Does the person have to foresee actus reus and mens rea? (That the person will do the act on purpose).
  • Does the method of the crime have to be foreseen?

Both conduct and fault elements of the additional crime?

  • McAuliffe established that foresight of both elements must be proved by the prosecution.
  • In Gillard, the appellant was convicted of murder and argued that although he was participating with Preston in an armed robbery he did not foresee that Preston would intentionally kill the victim.
    • In this case, the court held that if he did not foresee intent it would be possible to convict Gillard of manslaughter.
  • Nguyen also held that the secondary offender does not have to be convicted of the same crime as the primary offender, the facts of the case may leave an alternate verdict open.

The relevance of the method used to carry out the additional crime

  • In Keenan, the majority endorsed the view that the extent of the harm caused is the key consideration, rather than the method by which it is caused.
    • “It would be an odd result if the respondent could be criminally responsible for grievous bodily harm inflicted by means of a baseball-type bat but not by means of a gun, when the level of harm intended was achieved.”
  • In Rahman, also expressed doubts about the appropriateness of drawing distinctions based on the type of weapon.
  • In Bentley, the court issued the conflicting statement that “Where the principal kills with a deadly weapon, which the secondary party did not know he had and of which he therefore did not foresee use by the principal, the secondary party is not guilty of murder.”
  • But may of course be guilty of manslaughter.

Must there be a “foundational” crime before the rules extended joint criminal enterprise can be relied on to extend liability for an “incidental” crime?

  • The primary policy rationale for the rules relating to extended joint criminal enterprise is that individuals should refrain from engaging in joint criminal enterprise because there is a risk that other parties will engage in other more serious crimes.
  • Miller stood in defiance of this logic for several decades as extended joint criminal enterprise was relied on when over a five month period Miller drove around a looking for women to have consensual sex with (therefore not constituting a foundational crime)

Criticisms of the doctrine of extended joint criminal enterprise

In Powell, “Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences.”


This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 985.
  2. [2008] UKHL 45 at 7.
  3. Textbook, pp. 985-6.
  4. Textbook, pp. 987-92.
  5. (1998) 159 ALR 170.
  6. (1997) 92 A Crim R 545.
  7. (at 179).
  8. (at [58]-[60].
  9. (at [226]).
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