Joint Criminal Enterprise

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Joint criminal enterprise is a complicity doctrine by which primary liability is extended to a persons who agreed on committing an offence and were present at the scene of the offence but did not physically carry out the actus reus of the offence.

In order for an accused to be considered as a part of a joint criminal enterprise, the prosecution must prove the following elements (:Osland):

  1. Agreement: the accused agreed with the party who actually carried out the actus reus to commit the crime.
    • Doesn't have to be explicit, an unspoken understand is sufficient:Tangye
    • There needs to be a 'group' mentality' as opposed to individuals acting within a group: Taufahema OR "people are acting together, that is, of a common mind and with a common aim": Kanaan.
    • It can be longstanding or arising at the time of commission: Kanaan.
  2. Presence: the accused was present at the time of the offence.
    • This requirement has not always been followed. Courts have sometimes ruled:
      • Presence need not be continuous: Franklin.
      • Encouragement or assistance is necessary, mere presence on its own is not sufficient: Chishimba.
      • It is sufficient if the accused is present only during the agreement, when the crime committed shortly after: Suteski.

If the above elements can be proven beyond all reasonable doubt, the accused will be treated as though he committed the actus reus himself, meaning he is a principal to the first degree and thus attributed primary responsibility.

  • This means he is tried independently and irrespectively of the other offenders, and can be found guilty even if others are acquitted by reason of a defence etc.
  • It is still open to the accused to raise defences such as self defence, insanity defence, provocation etc which influenced into agreeing to commit the crime.

This article is a topic within the subject Criminal Laws.

Contents

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. 987-997.

Introduction

[1] A joint-criminal enterprise is where a number of people agreed to commit a certain offence, but the actual acts which constitute the actus reus of that offence were only carried by one or some of the people.

  • Thus, all of the parties have the requisite mens rea, but not the actus reus.
  • The principles of complicity bridges that gap by attributing the actus reus of the acting parties to all of the parties involved, because of the agreement.
  • The practical difference between the effect of a joint criminal enterprise and accessorial liability is liability arising from a joint-criminal the former is primary instead of derivative.
    • This means that liability of the non-acting parties does not depend on the conviction of the acting parties. The fate of the parties is separate.
    • The purpose of this is allow 'manipulators' to be convicted. For example, a person might manipulate a mentally ill person to do a crime. The mentally ill person might not be convicted by reason of the insanity defence or other such defences. If the liability was only derivative, the manipulator would benefit off that defence too and thus not be found guilty. The principle of primary liability changes that.

The High Court ruled on joint criminal enterprise in Osland:[2]

  • Relying on Tangye[3], a person is considered a part of a joint criminal enterprise when the person did not commit the actus reus yet:
    1. Agreed with the others that they as a group will do the crime.
      • This does not need to be express and may be inferred from the circumstances. It also doesn't have to be made before the crime.
    2. Was present at the time of the crime.
  • An accused who satisfied this test will be attributed the actus reus of the criminal enterprise even though he did not personally carry it out.
  • It is the actus reus, and not the conviction as a whole, which is attributed to him, meaning that he is tried independently and irrespectively of the verdicts which the other offenders receive. His liability is primary, and not derivative.
    • He will not benefit from defences they use, and he is free to raise his own defences if his involvement resulted from provocation etc.

The requirements of a joint criminal enterprise can thus be termed the 'agreement requirement' and the 'presence requirement' . They are explained in detail below.

Presence requirement

[4] The presence requirement has been subject to much criticism, and its status is now unclear. In their dissension in Osland, Gaudron and Gummow’s suggested that there is no logical reason for the limitation that the person must be physically there at the time to be a part of a joint criminal enterprise.

  • Indeed, it seems an illogical requirement - the idea of a joint criminal enterprise hinges on the fact that the parties agreed between them to do the crimes. Why should it make a difference if one party was not at the scene?

Nevertheless, Osland is still technically the position and thus the presence requirement endures. This was followed in Kanaan,[5], where the accused was only held as an accessory, and not under joint criminal enterprise, because he wasn't actually present when the murder was committed.

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

  • In Franklin,[6] Ormiston JA observed that it is not essential that the presence be continuous.
  • In Suteski,[7] 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.
  • Undoubtedly, this is not what the court meant 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]

Agreement requirement

[9] 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. There have been many ways of trying to exactly define the 'agreement' necessary for a joint criminal enterprise:

  • One definition for agreement is “an unspoken understanding or arrangement amounting to an agreement”: Tangye.[10]
  • 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.”[11]
  • Taufahema[12] held that there needs to be "mutuality of assistance", as opposed to mere "common intention."

This was discussed in Chishimba:[13]

  • Facts: three men sexually assaulted a 15 year old victim multiple times over an extended period of time.
  • Held: the fact that the appellants were present in the bedroom at the time of the sexual intercourse did not, without additional behaviour, amount to encouragement for the purpose of establishing joint criminal enterprise (ie, mere presence is not enough).
    • 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

[14] In Osland,[15] McHugh J referred to the facts in Parker,[16] 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.

Withdrawal from a joint criminal enterprise

[17] According to Tietie,[18] in order withdraw effectively form a joint criminal enterprise:

  1. The withdrawal must be complete.
  2. The withdrawal must be timely.
  3. The person must communicate the withdrawal to the others.
  4. 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.[19]

  • 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.[20]
  • 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.

End

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

References

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. 987-92.
  2. (1998) 159 ALR 170.
  3. (1997) 92 A Crim R 545.
  4. Textbook, pp. 992-3.
  5. [2006] NSWCCA 109.
  6. [2001] 3 VR 9 at 55.
  7. [2002] NSWCCA 509.
  8. [2003] NSWCCA 265 at [58]-[60].
  9. Textbook, pp. 993-5.
  10. (1997) 92 A Crim R 545.
  11. [2006] NSWCCA 109 at [226].
  12. [2006] NSWCCA 152
  13. [2010] NSWCCA 228.
  14. Textbook, pp. 996.
  15. (1998) 159 ALR 170.
  16. (1964) 111 CLR 665 (HC).
  17. Textbook, pp. 996-7.
  18. (1988) 34 A Crim R 238.
  19. O’Flaherty [2004] EWCA Crim 526.
  20. Truong (unreported, NSWCCA, 22 June 1998).
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