The Tyranny of Small Differences: The Culpability Gulf between the Subjective and Objective Tests for Extended Joint Criminal Enterprise in Australia

Abstract

This thesis compares the tests for extended joint criminal enterprise (EJCE) in Australia, namely, the subjective test that applies in common law jurisdictions and the objective test that applies in Queensland, Western Australia and Tasmania. EJCE is a type of complicity that extends liability to secondary participants for certain collateral crimes committed by principal offenders whilst carrying out an agreement to commit a crime (the foundational crime). There is an imbalance in legal scholarship on EJCE that this thesis seeks to redress. Although the subjective test has been widely criticised for extending liability too far, the objective test has not been equally scrutinised. To date, no detailed comparison of these tests has been undertaken. Despite (or perhaps because of) the proliferation of case law and commentary on the subjective test, confusion still surrounds the principles and rationale for EJCE.This thesis begins by explaining the relationship between EJCE and other types of complicity and tracing the development of this doctrine. After examining the legal principles of the subjective and objective tests in detail, this thesis applies these tests to a practical scenario to identify the reasons, under each test, why a secondary participant is culpable and held criminally responsible. These reasons are termed the ‘bases of culpability.’The traditional basis of culpability for EJCE under both tests is the agreement between the principal offender and the secondary participant to commit the foundational crime. Yet the subjective test contains an additional basis of culpability, namely, consciously taking the risk that the collateral crime will occur. This thesis argues that the additional basis of culpability ensures that liability is limited to secondary participants who are sufficiently culpable. The subjective test for ECJE is therefore preferable and should replace the objective test by immediate legislative amendment.A/Prof Miriam Gani