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5.4 - Extended Common Purpose (Pre-1/11/14)

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Overview

  1. This topic examines the common law principle of extended common purpose. On 1 November 2014, that principle was abolished by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. For offences committed on or after 1 November 2014, see Statutory Complicity.
  2. The doctrine of "extended common purpose" applies to cases in which two or more parties reach an agreement to commit a crime (the "foundational crime"), and in the course of pursuing that agreement, one or more of the parties commit a different crime (the "charged offence"). The doctrine holds that any party to the agreement who foresaw the possibility that the charged offence would be committed when the agreement was carried out will be liable for that crime (Johns v R (1980) 143 CLR 108; McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton & Hartwick (2005) 14 VR 125).
  3. This is a form of liability for reckless participation in a criminal enterprise (R v Powell; R v English [1997] 3 WLR 959). The liability of the accused is based on his/her continued participation in the criminal enterprise, despite foreseeing the risk that other crimes would be committed as part of that enterprise (Gillard v R (2003) 219 CLR 1; R v Panozzo [2007] VSCA 245).
  4. To establish liability by way of extended common purpose, the prosecution must prove:
    1. That two or more people reached an agreement to commit a crime (the foundational crime) that remained in existence at the time the charged offence was committed;
    2. That in the course of carrying out the agreement, one or more of the parties to the agreement, other than the accused, committed the charged offence; and
    3. That the accused foresaw the possibility that one or more parties to the agreement would commit the charged offence when the agreement was carried out (McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton & Hartwick (2005) 14 VR 125; R v Taufahema (2007) 228 CLR 232; R v Jones (2006) 161 A Crim R 511).

    Agreement to Commit a Crime

  5. For the first element to be met, the prosecution must prove:
  6. For information concerning this element (which is identical to the first element of joint criminal enterprise), see Joint Criminal Enterprise (Pre-1/11/14). 

    Performance of the Necessary Acts

  7. For the second element to be met, the prosecution must prove that, in the course of carrying out the agreement, one or more of the parties to the agreement, other than the accused, committed the offence charged (McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton & Hartwick (2005) 14 VR 125; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11; R v Jones (2006) 161 A Crim R 511).
  8. The principles of extended common purpose should generally not be used if the charged offence was also the foundational crime. In that situation, a different form of complicity should be used instead (R v Stokes & Difford (1990) 51 A Crim R 25. See Statutory Complicity (From 1/11/14) or Joint Criminal Enterprise (Pre-1/11/14) to determine the most appropriate form of complicity to use in such a case).
  9. In some cases, it is permissible to direct using extended common purpose principles, even if the charged offence was the foundational crime (R v Mills, Sinfield & Sinfield (1985) 17 A Crim R 411; R v Mills (1986) 68 ALR 455).

    Foresight of Accused

  10. The third element requires the accused to have foreseen the possibility that one or more of the parties to the agreement would commit the charged offence when the agreement was carried out (McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton & Hartwick (2005) 14 VR 125; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11; R v Jones (2006) 161 A Crim R 511).
  11. The accused does not need to have intended that the charged offence be committed. The prosecution only needs to prove that s/he foresaw the commission of the charged offence as a possible result of carrying out the criminal enterprise (Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500).
  12. The accused will be liable for crimes that s/he foresaw as possible. S/he does not need to have considered the commission of the charged offence to have been probable (Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500).
  13. The judge may tell the jury that the accused must have foreseen that the charged offence might result. If it is necessary to explain this further, it is permissible to tell the jury that this means that there was a real or substantial possibility that it would result (R v Hartwick, Clayton & Hartwick (2005) 14 VR 125).
  14. It is not necessary to elaborate on the meaning of "possible" in every case (R v Hartwick, Clayton & Hartwick (2005) 14 VR 125).
  15. The accused must not only have foreseen the possibility that the perpetrator would commit the relevant acts, but also that s/he might act with the requisite state of mind[1] and in the absence of any defences (Hartwick, Clayton & Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton & Hartwick (2005) 14 VR 125; McAuliffe v R (1995) 183 CLR 108).
  16. This form of liability considers the foresight of an individual accused. It is not necessary to prove that the offence was within the joint contemplation of the parties or was an agreed contingency (McAuliffe v R (1995) 183 CLR 108).

     

    Notes

[1] If the charged offence has an objective fault element (e.g. manslaughter), the accused does not need to have foreseen any particular state of mind (Gillard v R (2003) 219 CLR 1; R v PDJ (2002) 7 VR 612).

Last updated: 1 November 2014

In This Section

5.4.1 - Charge: Extended Common Purpose

5.4.2 - Checklist: Extended Common Purpose

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings