The Laws Relating to Joint Criminal Enterprise in Australia

The doctrine of ‘joint criminal enterprise’ – also known as complicity or acting with a common purpose – provides that a person may be found guilty of a criminal offence in certain circumstances, even if they did not physically participate in the conduct that constitutes the offence itself.

It is a principle with which courts and indeed parliaments have grappled with for generations.

However, a recent decision by our nation’s highest court, the High Court of Australia, has sought to provide come guidance on the mental element, or mens rea, required for person who is not physically involved in an offence to nevertheless be found guilty.

Here’s an outline of the decision of The King v Rohan (a pseudonym) [2024] HCA 3, which provides much-needed clarification regarding the doctrine.

The case

The respondent, Mr Rohan, was convicted in the County Court of Victoria of criminal offences relating to supplying a drug of dependence to a child and sexual intercourse with a child under the age of 12 years.

Mr Rohan did not physically commit any of the acts, but the prosecution asserted that he had entered into an ‘agreement, arrangement or understanding’ with two co-accused to supply alcohol and cannabis to girls aged 11 and 12, and then engage in sexual activity with the minors.

It was Mr Rohan’s two co-accused who actually carried out the acts.

The principle that a person can be guilty as a principal offender even if he or she did not actually engage in the physical elements of the offence is codified in section 324 of the Crimes Act 1958 (Vic), which provides that if:

an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.

Section 323(1)(c) of the Act adds that:

 For the purposes of this Subdivision, a person is involved in the commission of an offence if the person:

(c)     enters into an agreement, arrangement or understanding with another person to commit the offence

This form of complicity is commonly known as a ‘joint criminal enterprise’ .

On initial appeal, a key question arose whether the trial judge should have directed the jury that the prosecution needed to prove that upon entering the agreement Rohan the knew the ages of the girls or otherwise knew they were underage for those activities.

Allowing the appeal, the Court of Appeal held that it was necessary to prove that, at the time the agreement was made, the accused knew of or believed in the essential facts that made the proposed conduct an offence (that is, the age of the girls).

The Crown then appealed the matter to the High Court.

The decision

The High Court unanimously held that, under section 323(1)(c), it is not necessary for the prosecution to prove that an accused knew or believed, at the time of entering the agreement, all the essential facts that made the proposed conduct an offence, where that knowledge or belief is not an element of the offence itself.

For both the charge of supplying of a drug of dependence to a child and sexual penetration of a child under the age of 12 years old, knowledge of age was not an element of the offence.

Therefore it was not necessary for the prosecution to prove that the respondent knew the ages of the complainants at the time he entered into the agreement to commit the offences

Impact on New South Wales criminal law

Unlike in Victoria and indeed for Commonwealth offences under the Criminal Code Act 1995 (Cth), New South Wales primarily derives its principles for complicity from the common law and not legislation.

There are two different circumstances where joint criminal liability arises in NSW:

1. Where the crime charged is the very crime that each of the participants agreed to commit: Gillard v The Queen (2003) 219 CLR 1, and

• Where the crime committed either fell within the scope of the joint criminal enterprise agreed upon or the accused otherwise foresaw it might be committed as part of the join criminal enterprise  (an extended joint criminal enterprise): McAuliffe v The Queen (1995) 183 CLR 108 

To be found responsible, a person who did not directly commit the physical acts must have intentionally assisted or encouraged the agreed to crime in some way. However,  being present at the scene of the crime whilst it’s being committed will suffice: Huynh v The Queen [2013] HCA 6.

The High Court in Rohan, makes several comparisons between section 323(1)(c) under the Victorian Act and the common law doctrine of joint criminal enterprise.

Whilst this may not comprehensively inform us regarding the mens rea for joint criminal enterprise in our state, it does provide some guidance on the principles that apply.

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