Extended Joint Criminal Enterprise

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Extended joint criminal enterprise is a doctrine which extends the scope of a responsibility of those who participate in a joint criminal enterprise. The principle is as follows:

  • A party of a joint criminal enterprise will be held liable for all foreseeable crimes (even if not agreed upon) resulting from the joint criminal enterprise: McAuliffe and McAuliffe.
    • The standard of foreseeability is like that of recklessness - the accused must have contemplated the possibility of the different crime occurring (subjective test): McAuliffe and McAuliffe.
      • The accused must have had foresight to both the actus reus and the mens rea of the additional crime committed, otherwise he will be convicted of a lesser crime (eg, murder/manslaughter): McAuliffe and McAuliffe.
      • The accused need not have foreseen the method of the crime, as long as he saw the possibility of harm of that magnitude: Keenan.

Similarly to a joint criminal enterprise, an accused who is held responsible under the principle of extended joint enterprise is treated as 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.

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. 997-1010.


[1] The principle of extended joint criminal enterprise operates where there was a joint criminal enterprise to commit a crime, and during the commission of that crime, one of the offenders committed a different crime instead/in addition to the crime that was agreed upon. Liability for that different crime may still be extended to the participants of the joint criminal enterprise.

This was discussed in McAuliffe and McAuliffe:[2]

  • 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 - the accused must have contemplated that there is a possibility that one of the other parties may commit that different crime, and yet proceeded anyway (recklessness). The consequences need only be possible not probable.


[3] Following McAuliffe, the distinction between additional crimes within the agreement of the joint criminal enterprise and outside it is effectively redundant.

  • The entire point of a joint criminal enterprise is that there is only primary liability because the people agreed to do the crime.
  • However, the doctrine of extended criminal liability ascribes the same primary liability even to crimes which were not agreed upon, but were merely foreseen.
  • In other words, the distinction might as well be erased and joint-criminal enterprise should be everything agreed upon and all foreseeable consequences.

The difficulties of 'foreseeability' were highlighted in Powell:[4]

  • 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.
  • However, the disagreeing party will be convicted regardless under McAuliffe, as there was still contemplation that it might happen, although not agreed to.

Uses of the principles

[5] In Tangye,[6] 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.

This was discussed in Jacobs and Mehajer:[7]

  • 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 grievous bodily harm or whether it fell under the extended doctrine.

What must the secondary participant have foreseen as a possibility?

[8] This issue most commonly arises where the parties to the crime did not exactly foresee the crime as it happened, but only some aspects of it. The questions arise:

  • 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?

Actus and Mens

McAuliffe established that foresight of both elements must be proved by the prosecution.

This was discussed in Gillard,[9]

  • Facts: 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 kill the victim intentionally (ie, he only forsaw something like manslaughter).
  • Held: if he did not foresee intent it would be possible to convict Gillard of manslaughter as opposed to murder.

Nguyen[10] 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 method

In Keenan,[11] 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.”

The UK case Rahman,[12] also expressed doubts about the appropriateness of drawing distinctions based on the type of weapon.

  • In Bentley,[13] 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.

“Foundational” crime

[14] 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[15] stood in defiance of this logic for several decades.

  • Facts: 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), however, his friend then killed one of the women. Miller continued to drive his friend around, on most occasions he did not kill the woman but on six further occasions he did.
  • Held: Miller was acquitted of the murder of the first woman but convicted of the remaining six. The court did not consider a foundational crime to be necessary, only that Miller foresaw the possibility that his might kill.

Criticisms of the doctrine of extended joint criminal enterprise

The most common criticism of the doctrine is that it contravenes the basic principles of criminal law because an individual can be convicted without possessing either the actus reus or mens rea for the offence.

  • Kirby J points out the inconsistency in the law when the test for the secondary offender (foresight of possibility) is lesser than the test for the primary offender (elements of the crime).
  • In Clayton, Kirby J noted the conceptual and practical difficulties with the overlap and inconsistency between the doctrines. “The unreasonable expectation placed upon Australian trial judges... to explain the idiosyncrasies of differential notions secondary liability to a jury is something that should concern this court... The law should not be as unjust, obscure, disparate and asymmetrical as it is.”[16]

Policy justifications

In Powell, the court noted “Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences.”[17]

  • In the same case, Lord Hutton explained that policy considerations rather than logic shapes the doctrine, including “the need to give effective protection to the public against criminals operating in gangs.”
  • He also noted that “unlike the principal party who carries out the killing with a deadly weapon, the secondary party will not be placed in the situation in which he suddenly has to decide whether to shoot or stab the third person with intent to kill or cause really serious harm” - the secondary party should not escape liability because of the luck that placed him in a different situation despite the risk he took when he engaged in the enterprise.


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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. 997-1001.
  2. (1995) 130 ALR 26.
  3. Textbook, pp. 1001-2.
  4. [1997] 4 All Er 545.
  5. Textbook, pp. 1002-3.
  6. (1997) 92 A Crim R 545 (NSWCCA).
  7. [2004] NSWCCA 462.
  8. Textbook, pp. 1003-4.
  9. [2003] HCA 64.
  10. [2010] HCA 38.
  11. (2009) 236 CLR 397.
  12. [2008] UKHL 45.
  13. [2001] Cr App R 307.
  14. Textbook, pp. 1004-7.
  15. (1980) 32 ALR 321.
  16. [2006] HCA 58.
  17. [1997] 4 All Er 545.
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