The “Australian Position” Concerning Criminal Complicity: Principle, Policy or Politics?

Abstract

This article examines the differences that have recently emerged between the United Kingdom Supreme Court and the High Court of Australia concerning the law of criminal complicity. It contends that, if we are accurately to analyse the decisions of those Courts in, respectively, R v Jogee [2017] AC 387 and Miller v The Queen (2016) 259 CLR 380, we must acknowledge the extra-legal considerations that influenced these highly-respected tribunals. To criticise what Justice Keane has called ‘the Australian position’ is to reveal a partial truth. Certainly, that position is questionable. Indeed, here it is argued that the ‘change of normative position’ justification for the extended joint criminal enterprise doctrine does not withstand critical scrutiny. Nevertheless, the divergent results in Jogee and Miller probably owe more to public opinion, politics and widely-held judicial views about when an ultimate court of appeal is entitled to reverse an established common law rule, than they do to any fundamental differences between London and Canberra concerning principle and/or policy.