Criminal law - Appeal against conviction - Where State alleged joint possession of methylamphetamine with intent to sell or supply - Relevance of common law doctrine of joint criminal enterprise to Criminal Code (WA)

Misuse of Drugs Act 1981 (WA), s 6, s 11

Baker v His Honour Judge Stone [2015] WASCA 56

Bowman v The State of Western Australia [2008] WASCA 63

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253

Clarke v Tasmania [2013] TASCCA 11

Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439

Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373

EAGD v The State of Western Australia [No 2] [2014] WASCA 68

Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282

Heaton v The State of Western Australia [2008] WASCA 32

Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434

Johnson v The State of Western Australia [2009] WASCA 71; (2009) 40 WAR 116

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Lacco v The State of Western Australia [2006] WASCA 152

Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265

McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108

Michaels v The State of Western Australia [2009] WASCA 174

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

R v Beck [1990] 1 Qd R 30

R v Crothers [2010] QCA 334

R v Handlen [2010] QCA 371; (2010) 247 FLR 261

R v Jogee [2016] UKSC 8, [2016] UKPC 7; [2016] 2 WLR 681

R v Keenan [2009] HCA 1; (2009) 236 CLR 397

R v Palmer [2005] QCA 2

R v Presley [2015] SASCFC 53; (2015) 122 SASR 476

R v Sherrington [2001] QCA 105

R v Walton [2001] QCA 309

R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275

R v Wyles; Ex parte Attorney General [1977] Qd R 169

Santos v The State of Western Australia [No 2] [2013] WASCA 39

Saunders v The Queen [1980] WAR 183

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374

TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297

Tresnjo v The State of Western Australia [2015] WASCA 12

Ward v The Queen (1997) 19 WAR 68

(This electronic version of the reasons of the court has been redacted to remove information which could identify the appellants.)

1 At the conclusion of the hearing of these appeals on 9 May 2016, the court made orders allowing the appeal by D, setting aside his conviction and ordering a retrial. The same orders were made in L's appeal on 26 May 2016. The court indicated that it would publish its reasons at a later date. These are our reasons for making those orders.

2 At about 4.30 pm on 2 May 2012, police executed a search warrant at a house in [suburb redacted]. Nobody was home when police arrived. After forcing entry and confirming no one was at the house, officers waited outside until L arrived home. She admitted that 'crystal meth' was located in a wardrobe. The subsequent search of the [suburb redacted] house located a total of 8.99 g of methylamphetamine. The largest quantity located was 5.38 g inside a bag in the main bedroom walk-in robe. Smaller amounts, ranging between 0.21 g and 1.41 g, were found hidden in other locations of the house. Police also located items including electronic scales, clip seal bags and $27,000 in cash, on which the State relied as indicia of drug dealing.

3 The appellants were charged with possessing the methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). They were both convicted of that offence after trial before a jury, and appeal against their convictions. The appellants allege an error by the trial judge in his directions to the jury.

4 The general effect of the trial judge's direction was that the jury could convict the appellants if satisfied that they participated in a joint criminal enterprise and one of them was in possession of methylamphetamine. The trial judge identified the subject of the joint criminal enterprise as dealing in drugs generally. The direction did not clearly identify an arrangement or understanding to possess the methylamphetamine found at the [suburb redacted] house on 2 May 2012. Otherwise, the trial judge's direction reflected the common law doctrine of joint criminal enterprise.

5 The issue raised in this appeal is whether the common law doctrine of joint criminal enterprise provides a basis for criminal liability for the charged offences (as opposed to an evidentiary rule). For reasons explained below, the appellants' criminal responsibility is to be determined by reference to s 7 - s 9 of the Criminal Code (WA), which do not incorporate the common law doctrine, and not otherwise.

6 In this case the direction gave rise to a miscarriage of justice because, following the direction, the jury may have apprehended that they could convict the appellants otherwise than by reference to the requirements of s 7 - s 9 of the Criminal Code. The direction invited the jury to convict the appellants on a basis for which the law did not provide. It follows that the appeals must be allowed.

7 On arraignment at trial, both appellants pleaded not guilty to the charge. L said that she was guilty of simple possession of methylamphetamine for her personal use (ts 134). She did not make any formal admission under s 32 of the Evidence Act 1906 (WA) of the fact of possession.

8 The State's case was that both appellants lived at the [suburb redacted] house in May 2012, and were engaged in a criminal drug dealing enterprise. The State contended that the appellants jointly possessed the methylamphetamine found in the [suburb redacted] house and that each intended to sell or supply it to another.

9 The State also led evidence of D having a past conviction of possession of methylamphetamine with intent to sell or supply to another. Intercepted text messages and phone calls were relied on as showing a course of conduct by L and D in selling drugs. The State also adduced evidence of drugs and drug paraphernalia (including clip-seal bags, electronic scales and smoking implements) located at the [suburb redacted] house.

10 Both D and L seek leave to appeal against their convictions on the grounds that:

1. The learned trial judge made a wrong decision on a question of law by directing the jury to determine the appellant's criminal responsibility for the offence charged on the basis of whether [he/she] was with [L/D], a participant in a joint criminal enterprise of dealing in drugs in general as opposed to a joint criminal enterprise to commit the particular offence charged.
2. In the alternative, the learned trial judge's directions that are referred to in ground 1 occasioned a miscarriage of justice.

11 L also advances the ground that there was a miscarriage of justice when the trial judge left to the jury, as a pathway to guilt, that mere presence coupled with knowledge was sufficient to establish her participation in a joint criminal enterprise.

The trial judge's direction Joint criminal enterprise direction

12 The trial judge began the relevant part of his direction by explaining the basis upon which the State proffered the charge against the two accused and how the jury should approach its task. He said:

If two or more people are acting together to carry out an unlawful act, then the acts done by each of them in carrying out the unlawful is treated as acts of all of them. You look at the totality of the acts and if it can be said that the accused were acting together, or in concert with others, one doing one thing and the other doing others, all of the acts which are done by - if done by one person constitute the offence, then each of the perpetrators is liable as a principal and treated as if they committed the offence (ts 585 - 586).

13 The trial judge then directed the jury as to 'joint criminal enterprise' in the following terms:

The law is that two or more people, where they combined to carry out a joint criminal enterprise, each is responsible for the acts of the other that are involved in carrying out that enterprise.

The State must establish both the existence of that joint criminal enterprise and the participation in it by the accused in carrying out acts which constitute an element of the offence. A joint criminal enterprise exists where two or more reach that understanding or arrangement (ts 586).

14 The trial judge explained that the understanding or agreement need not be express, and could be constituted by an unspoken or informal arrangement amounting to an agreement. He told the jury that the State relied principally on surveillance material which the State said should lead the jury to an inference that each appellant 'is actively involved in drug dealing'. After referring to some of the evidence, the trial judge said that the jury needed:

to be satisfied first that that information gives rise to - or evidences that they're involved in drug dealing and that that communication between them does establish that they are in a joint enterprise (ts 587). (emphasis added)

15 After giving a hypothetical example involving a burglary, the trial judge described the State's case as being that the appellants were involved in 'a joint criminal enterprise to possess and sell the illicit drug, methylamphetamine' (ts 588).

16 The trial judge directed the jury as to the second element he identified - participation in a joint criminal enterprise - in the following terms:

A person participates in a joint criminal enterprise either by committing the agreed crime himself or simply being present at the time when the crime is being committed and with a knowledge of the crime being committed or by intentionally assisting or encouraging someone else to participate.

The presence of a person at the time when the crime is committed and a readiness to provide assistance is obviously an important component. If the agreed crime is committed by one or other of the participants in a joint criminal enterprise then all of the participants are equally guilty of the crime.

So regardless of what part they play in the commission, provided of course they were a participant in played a part in carrying out the criminal activity (ts 588). (emphasis added)

Elements of joint criminal enterprise liability restated

17 The trial judge then restated his direction that there were two questions the jury needed to consider:

1. whether the prosecution had 'proved beyond reasonable doubt that it's a joint criminal enterprise'; and
2. if so, whether the prosecution had proved beyond reasonable doubt that that each appellant participated in that joint criminal enterprise (ts 588).

18 The trial judge told the jury that they would need to look at all of the evidence and consider whether they were satisfied that:

there was a joint criminal enterprise on 2 May. That is to say that they were engaged in drug dealing at that time and that each of them was providing some role in that regard (ts 589). (emphasis added)

19 The trial judge then turned to direct the jury as to the elements of the offence created by s 6(1)(a) of the Drugs Act. He said that the State's case was that the appellants jointly possessed the total of 8.99 g of methylamphetamine located in the [suburb redacted] house. He said:

The State does not have to prove that the whole of the drugs there was part of the joint criminal enterprise. The State's case is that some of it, at least some part of it was part of it - being used in a joint criminal enterprise. That is to say it would have been sold or supplied to another person (ts 589).

20 In dealing with the element of possession, the trial judge instructed the jury:

The State must prove that the accused whose case you are considering ... or a person with whom that person had a common intention to prosecute an unlawful purpose, had possession of a prohibited drug (ts 590). (emphasis added)

21 The trial judge explained, in uncontroversial terms, that methylamphetamine is a prohibited drug and that a person has possession of a prohibited drug if they have control or dominion over it and an intention to possess it. He then distinguished between liability based on joint possession and liability based on joint criminal enterprise in the following terms:

Several people can have joint possession of a prohibited drug. In this case the State says that it was in the possession of each accused in they each had control or dominion over it when it was in their bedroom wardrobe.

And further, that as they were in a joint business enterprise of drug dealing that - a joint criminal enterprise, that one could hold the drug on behalf of the other. In other words, either could hold the drug and each would be liable for it if you're satisfied they were part of a joint criminal enterprise (ts 591). (emphasis added)

22 The trial judge went on to explain the concept of possession. Later in his direction, when dealing with the element of intention, he said that the question of intention arose:

if you're satisfied that it was the accused and that they were in possession, either one or other as part of a joint criminal enterprise, or both, by both sharing the dominion or control (ts 593). (emphasis added)

23 The trial judge described what the State must prove in dealing with the third element of intention in the following terms:

[T]he third element that the State must prove is that the accused, whose case you're considering, or a person with whom he or she had a common intention to prosecut[e] an unlawful purpose, had the methylamphetamine in his or her possession with the intention to sell it or supply it to another person (ts 593). (emphasis added)

24 The trial judge went on to explain the concepts of selling and supplying a prohibited drug to another person. He dealt with the evidence and submissions of the parties and concluded by identifying the specific question the jury were being asked:

And that is whether on 2 May 2012 at [suburb redacted], each accused then had in their possession as part of a joint criminal enterprise, the quantity of methylamphetamine with the intent to sell or supply it to another. That is the issue for your determination (ts 608).

25 At common law, criminal liability of a party to an offence may be established by reason of a common purpose shared with others. In McAuliffe v The Queen,[1] the court described the elements of liability on the basis of a joint criminal enterprise in the following terms:

Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (114).

26 The court went on to describe the secondary liability that can arise at common law on the basis of extended joint criminal enterprise. The principle of extended joint criminal enterprise makes each of the parties to the arrangement or understanding guilty 'of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose'.[2] The scope of the common purpose is determined by reference to the possible consequences of the criminal venture which were subjectively within the contemplation of the parties to the understanding or arrangement.[3]

27 McAuliffe was followed in Gillard v The Queen,[4] Clayton v The Queen[5] and Likiardopoulos v The Queen.[6] In Gillard, Hayne J saw the joint criminal enterprise doctrine as separate from the liability of an accessory before the fact who counsels or procures the commission of the crime. He also saw the joint criminal enterprise doctrine as separate from the liability of a principal in the second degree who aids or abets in the commission of a crime.[7] In Clayton the majority also identified a distinction between joint criminal enterprise liability and the secondary liability of a person who aids, abets, counsels or procures the commission of an offence.[8]

28 A person who participates in a joint criminal enterprise to commit a crime by their presence at the scene of a crime is liable as a principal offender even where the person does not physically participate in the crime.[9]

29 The common law of Australia, as articulated in the above decisions, differs from the common law as recently recast by the decision of the Supreme Court of the United Kingdom and the Privy Council in R v Jogee.[10] In Jogee, the court and Judicial Committee defined common law accessorial liability by reference to:

1. a physical element of assisting or encouraging the commission of a crime; and
2. a mental element of an intention to assist or encourage the commission of the crime (which required knowledge of any existing facts necessary for it to be criminal).

30 The High Court of Australia has been asked to revisit these issues in appeals from the decision of the Full Court of the Supreme Court of South Australia in R v Presley.[11]

31 These debates as to the basis for accessorial liability at common law are irrelevant to the determination of whether the appellants committed the charged offence in this case. The appellants' criminal responsibility was to be determined by reference to s 7 - s 9 of Criminal Code, and not otherwise.[12]

32 Section 7(a) of the Criminal Code identifies the criminal liability of '[e]very person who actually does the act or makes the omission which constitutes the offence'. For reasons explained by Franklyn J in Warren and Ireland v The Queen,[13] the reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person.[14]

33 The operation of s 7(a) differs from the common law of joint criminal enterprise in that, under s 7(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. As the formulation in McAuliffe indicates, under the common law, all participating parties to the arrangement or understanding are liable even if only one does the relevant act. For this purpose, participation in a joint criminal enterprise at common law may be constituted by mere presence when the crime is committed pursuant to the arrangement or understanding.[15]

34 Section 7(b) and s 7(c) of the Criminal Code extend criminal liability to a person who aids another in the commission of the offence, or who does or omits to do any act for that purpose.

35 Section 7(d) extends criminal liability to a person who counsels or procures another person to commit the offence.

36 Section 9 of the Criminal Code expands on the concept of counselling the commission of the offence, extending liability where the offence actually committed was a 'probable consequence of carrying out the counsel'.

37 Aiding, counselling or procuring the commission of an offence requires intentional participation by conduct aimed at encouraging or assisting something which goes to make up the facts which constitute the commission of the relevant offence.[16] A person cannot be an aider through an act which unwittingly assists the principal offender. Nor does a person aid another in the commission of an offence unless some support for the commission of the offence is actually provided.[17] Presence at the commission of an offence may, but need not, constitute wilful encouragement or support of the offending. Whether an accused's presence constitutes aiding, counselling or procuring for the purposes of s 7 will depend on the proven circumstances of the case.[18]

38 Section 8 of the Criminal Code applies where two or more persons 'form a common intention to prosecute an unlawful purpose in conjunction with one another'. It operates in relation to an offence 'of such a nature that its commission was a probable consequence of the prosecution of such purpose'.[19]

39 Liability under s 8 turns on the objectively probable consequences of the prosecution of an unlawful purpose.[20] A 'probable consequence' is more than merely possible. The commission of an offence of the relevant kind must be probable, in the sense that it could well have happened in the prosecution of the unlawful purpose.[21] That is in contrast to the Australian common law of extended joint criminal enterprise. The common law defines criminal liability by reference to the possible consequences of the criminal venture which were subjectively within the contemplation of the parties to the understanding or arrangement.

40 None of the parties contended that s 8 operated in the present case to render either appellant liable for the commission of the charged offence. This may be accepted on the basis that the function of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that to which the common purpose was specifically directed.[22]

41 Sections 7 - 9 of the Criminal Code do not refer to 'joint criminal enterprise', or define criminal liability by reference to entry into an understanding or arrangement to commit a crime. Participation in a joint criminal enterprise may be relevant in giving rise to, or assisting the drawing of, an inference that a person aided, counselled or procured the commission of an offence. However, it is the aiding, counselling or procuring of an offence, rather than an unlawful agreement or arrangement, which gives rise to criminal liability. Liability based on a common intention to prosecute an unlawful purpose depends on an assessment of objectively probable consequences thereof.

42 The position under the Criminal Code was correctly stated in R v Palmer,[23] by Davies JA, with whom Fryberg and Mullins JJ concurred. Davies JA accepted that:[24]

the phrase 'joint criminal enterprise' is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence [17].

43 Davies JA recognised that a reference in directions to a 'joint criminal enterprise' will not inevitably lead to a conclusion that there has been a miscarriage of justice. That will depend on whether the direction might have given rise to a misapprehension by the jury as to the accused's criminal liability being determined other than by reference to the requirements of s 7 and 8 of the Criminal Code.[25] In Palmer, where the phrase was used in a direction in terms of s 7 and s 8 of the Queensland Criminal Code, the court concluded that the jury would not have been under such a misapprehension and dismissed the appeal. In R v Walton,[26] a direction referring to joint criminal enterprise was formulated, but in a way that made clear the requirement that the accused person either committed the offence or intentionally assisted or encouraged another person to do so.

44 The position is Queensland is somewhat complicated by the decision in R v Webb; Ex parte Attorney General.[27] The court in Webb was dealing with a referred question of law posed on the basis that two persons charged with arson had both agreed to, and attempted to, set fire to a dwelling in circumstances where it could not be said who succeeded in lighting the fire. Macrossan CJ, with whom Lee J agreed, gave an affirmative answer to the following question:

If two persons are together and are acting in concert to do an act which, if done, would amount to the commission of a criminal offence and that act is done by one or other or both of them, but the evidence does not reveal which one of them actually did the act, is each of them deemed to have taken part in committing the offence? (emphasis added)

Macrossan CJ added the emphasised words to the question 'to exclude the possibility that an act might be done by a stranger'. He gave an affirmative answer to the question by reference to the decision in Wyles.[28] Thomas J answered the originally posed question in the affirmative on that basis that, if the evidence excluded participation by a third person and showed either that the accused lit the fire himself or aided his companion to do so, and in doing so the accused had the necessary intent, then 'the case was adequate'.[29]

45 The approach of Thomas J reflects that taken in Warren and Ireland, and does not involve introducing the concept of joint criminal enterprise as a criterion of criminal liability. If an accused either did the act or aided another to do so then he or she does not escape liability because it cannot be said which is the case. However, the words added by Macrossan CJ reflect the requirements for criminal liability based on joint criminal enterprise at common law, and appear to extend the operation of s 7(a) of the Code to a case in which the accused does none of the acts which constitute the offence. That is an extension of Hoare J's formulation in Wyles, which was that s 7(a) can include cases where there are several persons acting in concert each doing some act so that the actions, in totality, would constitute all of the elements if the offence were committed by one person.[30] It is not clear that Macrossan CJ intended to extend Hoare J's formulation in that manner. He did not explain why s 7(a) ought to be construed as encompassing a case where an accused did not actually do any of the acts which constitute the offence. Macrossan CJ's express purpose in adding the words was to exclude the possibility that the act may be done by a stranger. On the facts in Webb, there was little room for doubt that, if the alleged facts were established, Mr Webb must have aided the commission of an offence by another for the purposes of s 7(c) if he did not actually start the fire.

46 In Lacco, Buss JA cited Macrossan CJ's decision in Webb as support for s 7(a) imposing criminal liability where there are two persons acting in concert 'each doing some act which, in aggregate, would constitute an offence done by one person' (emphasis added).[31] Buss JA did not adopt that part of the answer in Webb which referred to the act constituting the offence being done by one or the other, but not both, accused.

47 The appellate courts in Handlen v The Queen accepted that the doctrine of joint criminal enterprise did not apply under the Commonwealth Criminal Code.[32] Section 11.2 - s 11.4 of the Commonwealth Criminal Code provided, at the relevant time, for accessorial liability in terms which, although materially different to s 7 and s 9 of the Western Australian Criminal Code, defined criminal liability by reference to aiding, abetting, counselling or procuring an offence.[33] On appeal it was uncontroversial that joint criminal enterprise was not a basis for the attachment of criminal responsibility respecting a substantive offence under the laws of the Commonwealth. Analogous reasoning would lead to the same conclusion under the Western Australian Criminal Code.

48 The position under the Tasmanian Criminal Code is currently less clear. Sections 3 and 4 of the Tasmanian Criminal Code are in similar terms to s 7 and s 8 of the Western Australian Criminal Code. Differences include that s 3(1)(a) of the Tasmanian Code refers to 'every person who actually commits the crime', and s 3(1)(c) refers to a person who 'abets' another in committing a crime.

49 In Clarke v Tasmania,[34] a jury in an arson trial was directed that all parties to an understanding to commit arson who were present at the scene of the crime when one or other, or both between them, did all of the things to commit arson would be equally guilty of the crime regardless of the part each played. The direction was given in circumstances where there was evidence that two offenders had agreed to commit arson, but it was unclear which had started the fire. The ground of appeal was that the trial judge erred by not directing the jury that the appellant would only by guilty if he committed the crime or if he was present and, with knowledge that the crime was being or was to be committed, intentionally encouraged or assisted the principal offender.

50 In the Tasmanian Court of Criminal Appeal, Porter J held, in effect, that the common law doctrine of joint criminal enterprise fell within the ambit of s 3(1)(a), and that the direction was not in error. Wood J held that the common law concept of joint criminal enterprise is not the law in Tasmania, and that the trial judge erred in directing the jury in accordance with that concept. She dismissed the appeal, however, on application of the proviso. Estcourt J did not appear to regard the common law doctrine as incorporated in the Code provisions, but thought that the direction sufficient where satisfaction of the matters referred to in the direction would, in circumstances of that case, have necessitated satisfaction that the offenders were, as an absolute minimum, intentionally assisting or encouraging each other.

51 In our view, the reasons given by Wood J for concluding that s 3 of the Tasmanian Criminal Code does not incorporate the common law doctrine of joint criminal enterprise are compelling and are generally applicable to s 7 of the Western Australian Criminal Code. Further, the position under s 7 of the Western Australian Criminal Code is made clearer by the reference to a 'person who actually does the act ... which constitutes the offence', rather than the 'person who actually committed the offence'. A person who is merely present when an agreed crime is committed cannot be said to have actually done any of the acts which constitute the offence.

Proper construction of s 7 of the Criminal Code

52 In construing any statute it is of fundamental importance to give primacy to the statutory text.[35] That is particularly important in construing a criminal code intended to replace the common law. The language of the Criminal Code should be construed according to its natural meaning and without any presumption that it was intended merely to restate the common law. While the common law may be considered, at least in resolving ambiguities or considering language which has acquired a technical meaning, the first duty of a court construing the Criminal Code is to look at the current text.[36] Further, resort to the common law in construing s 7 - s 9 of the Criminal Code must recognise the significant developments in the common law, especially in the area of accessorial liability, since the terms of the Code were developed.[37]

53 The language of s 7(a) of the Criminal Code is clear. It only attaches criminal liability to a person who 'actually does the act or makes the omission'. A person will only be taken to have committed an offence under s 7(a) if he or she has done an act (or one or more of a series of acts) or made an omission (or one or more of a series of omissions) which constitutes the offence. Otherwise deliberate assistance or encouragement of the kind referred to in s 7(b) - s 7(d) is required. Participation in a joint criminal enterprise will not render an accused criminally liable under s 7 of the Criminal Code unless he or she either:

1. does at least one act or makes at least one omission which, alone or in combination with the acts or omissions of another person (at least where they are acting in concert), constitutes the offence; or
2. deliberately aids another person to commit the offence, or does or omits to do any act for that purpose; or
3. deliberately counsels or procures another person to commit the offence.

54 A jury may convict an accused so long as they are satisfied that he or she is liable on at least one of the bases described above, even if the jury cannot be satisfied of which and, at least where the alternative legal formulations of liability rest on the same or a substantially similar factual foundation, even if all members of the jury do not reach that conclusion by the same pathway.[38]

55 The State's case at least included the contention that D and L were jointly in possession of the methylamphetamine located at the [suburb redacted] house, in a quantity (of more than 2 g) which deemed them to have possession with intent to sell or supply to another unless the contrary was proved.

56 It is not clear from the State's opening that it also intended to advance an alternative case that criminal liability was established on the basis that the appellants were engaged in a joint criminal enterprise. While the opening referred to a 'joint criminal enterprise', the reference may well have been to factual circumstances which would assist the jury in inferring that the appellants were in joint possession of the drugs.

57 However, the trial judge directed the jury on two alternative bases on which criminal liability could be established. So far as D was concerned, on the trial judge's direction the jury could be satisfied of the element of possession either if satisfied that D had possession of the drugs or if satisfied that 'a person with whom [he] shared a common intention to prosecute an unlawful purpose' had possession (ts 590). That is, D would be liable if L alone was in possession of the drugs and they were part of a joint criminal enterprise (ts 591). The element of intention could be established if either D or a person with whom he had a common intention to prosecute an unlawful purpose had the intention to sell or supply the drugs to another (ts 593). The unlawful purpose which the trial judge had previously identified was 'drug dealing' generally, rather than dealing in the particular drugs which were found at the [suburb redacted] house on 2 May 2012.

58 Counsel for the respondent in this appeal accepted that:

[F]rom the outset this was a joint possession case. Aiding certainly had nothing to do with it (appeal ts 30).

59 The difficulty arises because the direction left it open the jury to reject the State's joint possession case but, despite not being satisfied that D possessed the methylamphetamine (jointly or otherwise), to convict him on the basis that he participated in an arrangement or understanding with L in relation to drug dealing generally. The jury were invited to return a verdict of guilty on the basis of participation in a joint criminal enterprise even if they were not satisfied that D and L were jointly in possession of the drugs. That alternative was left open in circumstances where, consistently with the decision in Davies v The State of Western Australia, the trial judge gave the following directions as to joint possession:

The concept of possession doesn't require that the object be in your hand or on you, but it does require that you have physical custody of the item and that it's under your control, either solely or jointly with others. What the State says is that the methylamphetamine in the house, and particularly in the walk-in robe, was under the control of each accused. If you keep drugs in a place where you hope no one will find them with the intention of exercising control over them, then you're still in possession of those drugs.

As I've said, more than one person can have possession of the same drugs at the same time. That could happen, for example, where a person has drugs and keeps them at another person's house with that person's permission. Each person would have physical custody and control of the drugs. Each would know that they had a drug, and each had the required intention that they would be in possession of the drug (ts 591 - 592).

60 The direction contemplated that the jury could convict D on the basis of participation in a joint criminal enterprise with L which did not involve them having joint possession of the drugs in the sense described above.

61 The trial judge may have taken the view that joint criminal enterprise was a separate basis for criminal liability based on a section of the leading text on the Criminal Code[39] or from decisions of this court which refer to the concept. There are decisions of this court which deal with the question of alternative pathways to conviction on the assumption that the doctrine of joint criminal enterprise applies to State offences.[40] In Santos v The State of Western Australia,[41] this court considered joint criminal enterprise as a basis for applying the evidential 'co-conspirator's' rule rather than as a basis for criminal liability under the Code. In Heaton v The State of Western Australia,[42] the court considered whether a conviction on a prosecution case which was in part framed in terms of joint criminal enterprise was unsafe or unsatisfactory without criticising the basis on which the State sought to establish that liability. However, those cases assume, rather than decide, that the common law doctrine applies (a question which does not appear to have been argued in any of the cases).

62 As the decision in Handlen illustrates, the absence of objection to the direction by trial counsel does not preclude this court from allowing the appeal on the basis that the jury were invited to convict the appellants on a basis for which the Criminal Code does not provide.

63 For reasons explained above, the participation in a joint criminal enterprise is not a basis for the attachment of criminal liability under the Criminal Code. In the circumstances of this case, the trial judge's direction - to the effect that criminal liability for the alleged offence under s 6 of the Drugs Act would be established if the jury were satisfied that D participated in a joint criminal enterprise involving dealing in drugs - was in error. That error of law resulted in a miscarriage of justice because, following the direction, the jury could have convicted D without being satisfied of any of the following matters:

1. D was in possession of the methylamphetamine located at the [suburb redacted] house, either alone or jointly with L;
2. D aided L to possess those drugs or did an act or omission for that purpose;
3. D counselled or procured L to possess those drugs.

64 The trial judge's direction left it open to the jury to convict D on the following basis without being satisfied beyond reasonable doubt that he had possession (either alone or jointly with L) of any of the drugs located in the [suburb redacted] house. The jury might have convicted D in those circumstances if they found that he and L had an arrangement or understanding that they would deal in drugs and she was in possession of more than 2 g of methylamphetamine (and was for that reason deemed to intend to sell or supply the drugs to another). The jury could reach that conclusion whether or not they were satisfied that L possessed those drugs pursuant to the arrangement, ie whether or not her possession of those drugs was part of the joint criminal enterprise. On the trial judge's directions, the jury could reach that conclusion whether or not they were satisfied that D deliberately aided L to possess the drugs located at the [suburb redacted] house, did anything for that purpose or deliberately counselled or procured the commission of the offence by L.

65 A difficulty with the trial judge's direction was that the criminal enterprise which he identified was drug dealing generally, rather than an arrangement or understanding to commit the particular offence with which D was charged. This would be an error even if (contrary to our view) the Criminal Code incorporated the common law doctrine of joint criminal enterprise. At common law, the joint criminal enterprise must concern an understanding or arrangement to commit the offence with which the accused is charged, rather than some other offence. Common law liability for the commission of offences other than those which are the subject of the understanding or arrangement is governed by the principle of extended joint criminal enterprise. Extended joint criminal enterprise has other elements about which the jury in this case were not directed. By defining the joint criminal enterprise as drug dealing generally, the trial judge failed to identify the possession of the particular drugs found at the [suburb redacted] house on 2 May 2012 as the offence which had to be the subject of the joint criminal enterprise.

66 The failure of the direction to focus on the particular offence with which D was charged was also an error under s 7 of the Code. Section 7 relevantly provides for criminal liability of a person who has done the act which constitutes the offence, or to have aided (or done an act for the purpose of aiding), counselled or procured the commission of the offence. The direction left open the possibility that the jury could convict D without considering whether he had assisted or encouraged L to possess any drugs which the jury found were in L's possession alone.

67 The error which was involved in the direction in the present case was of the same kind as that which the High Court identified in Handlen, where a joint criminal enterprise direction was given and the statute did not provide for joint criminal enterprise as a basis for criminal liability. The error is an error of law giving rise to a miscarriage of justice because the jury was invited to convict the D on a basis for which the law did not provide.

68 The position in relation to L's appeal is complicated by the fact that she indicated a willingness to plead guilty to a charge of simple possession of methylamphetamine. However, the admission was not expressed as an admission of possession of all of the methylamphetamine located in the [suburb redacted] house on 2 May 2012.

69 Unfortunately, L did not specifically identify, and was not asked to specifically identify, which drugs she admitted possessing. It was undesirable for an admission to be proffered in those ambiguous terms.[43]

70 However, given the way in which the admission was made, it cannot be taken as an admission that L was in possession of any particular quantity of methylamphetamine.

71 We do not read the plea offer as expressly or impliedly admitting that L had possession of more than 2 g of methylamphetamine. No quantity was indicated. We would not infer any admission from the absence of any complaint about the direction as to the effect of s 11 of the Drugs Act. The direction indicated that:

On the third element of intention to sell or supply, the law is that unless the contrary is proved on the balance of probabilities, an accused is deemed to have drugs in his or her possession with an intent to sell or supply if they have in their possession not less than 2 grams of methylamphetamine.

If the State has proved beyond reasonable doubt that the accused had in his or her possession not less than 2 grams of methylamphetamine, the law effectively casts the onus on the accused of proving on the balance of probabilities that he or she did not intend to sell or supply the methylamphetamine to another (ts 594). (emphasis added)

The direction was cast in terms which made it clear that an accused would be deemed to possess drugs with intent to sell or supply to another only if the jury were satisfied that he or she possessed more than 2 g of methylamphetamine. The direction did not indicate that it was unnecessary for the jury to be satisfied of that matter before L would be deemed to have the relevant intent. The direction did indicate that L had admitted possession of all drugs found in the house (ts 596). However, defence counsel complained about that aspect of the direction, which was corrected by the trial judge (ts 615 - 616, 621 - 622). Ultimately, the direction left it to the jury to determine what quantity of methylamphetamine L possessed.

72 Before convicting L on the basis that she was a principal offender (ie criminally liable under s 7(a) of the Criminal Code), the jury were required to be satisfied that L:

1. possessed at least 2 g of the methylamphetamine located at the [suburb redacted] house, either alone or jointly with D, and had not established on the balance of probabilities that she did not intend to sell or supply the methylamphetamine in her possession; or
2. intended to sell or supply any lesser amount of methylamphetamine which she did possess.

73 Once that is recognised, the direction in relation to L must be seen as suffering from the same defect as that relating to D. The direction allowed the jury to convict L if satisfied that:

1. L had an arrangement or understanding with D in relation to drug dealing generally; and
2. D possessed more than 2 g of the methylamphetamine located at the [suburb redacted] house, so that s 11 of the Drugs Act deemed him to have the relevant intent.

74 The jury could do so even if it was not satisfied that L:

1. possessed more than 2 g of methylamphetamine;
2. had deliberately done anything to assist or encourage D's possession of the drugs located in the [suburb redacted] house on 2 May 2012; or
3. intended to sell or supply the drugs which she admitted possessing.

75 L also complains about that aspect of the direction which told the jury that a person can participate in a joint criminal enterprise by 'simply being present at the time when the crime is being committed'. As we have noted, that aspect of the direction reflects the common law of joint criminal enterprise but does not reflect the requirements of s 7 - s 9 of the Criminal Code. This element of the direction appears to be a symptom of the broader problem of a direction in terms of the common law of joint criminal enterprise. We would not have allowed the appeal merely on the basis of this part of one sentence in the judge's direction, which must be assessed as a whole. However, when the direction is considered as a whole it does involve the broader error we have identified.

76 The respondent did not contend that the proviso was applicable in this case if the court found that the jury was directed in terms which may have led them to convict the appellant on a basis of criminal liability for which the law did not provide. We agree that the proviso cannot be applied in these circumstances.[44]

77 The above conclusions require that the appeals be allowed and the appellants' convictions set aside. In all the circumstances it is appropriate to order a retrial.

[1] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.

[4] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1.

[5] Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439.

[6] Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 [19].

[9] Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [27], [72]; Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 [37] - [38]; Likiardopoulos [19].

[10] R v Jogee [2016] UKSC 8, [2016] UKPC 7; [2016] 2 WLR 681.

[11] R v Presley [2015] SASCFC 53; (2015) 122 SASR 476.

[12] Other Code provisions establishing criminal responsibility, such as s 552(1) and s 555A(1) (attempts), s 553 and s 555A(2) (inciting offences), and s 556 (attempting to procure the commission of a criminal act), may be relevant in other cases. Nor are these reasons concerned with a case in which an accused has been charged with conspiracy to commit an offence, where entry into an agreement constitutes the offence.

[13] Warren and Ireland v The Queen [1987] WAR 314, 327 - 329.

[14] Lacco v The State of Western Australia [2006] WASCA 152 [8], [54]; R v Wyles; Ex parte Attorney General [1977] Qd R 169, 182. It is unnecessary in this case to determine whether multiple persons who each perform acts which in aggregate constitute an offence must be acting 'in concert' before s 7(a) will apply (as to which see R v Sherrington [2001] QCA 105 [11]).

[15] See the cases cited at footnote 9.

[16] Ward v The Queen (1997) 19 WAR 68, 74 - 76, applying Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 506 - 507.

[17] Bowman v The State of Western Australia [2008] WASCA 63 [39].

[18] R v Beck [1990] 1 Qd R 30, 37 - 38; R v Crothers [2010] QCA 334 [147] - [152].

[19] As to the connection between the nature of the offence actually committed and the relevant common purpose, see R v Keenan [2009] HCA 1; (2009) 236 CLR 397.

[20] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 441 - 442, 454; Saunders v The Queen [1980] WAR 183, 184 - 185, 189 - 190; Keenan [86], [102].

[21] Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [79] - [81], applied in EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [89] - [95], [93].

[23] R v Palmer [2005] QCA 2.

[24] To similar effect see Sherrington [11].

[26] R v Walton [2001] QCA 309 [30] - [31].

[27] R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275.

[32] Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 [1], [39]; R v Handlen [2010] QCA 371; [2010] QCA 371; (2010) 247 FLR 261 [52] - [56].

[33] Section 11.2A of the Commonwealth Criminal Code, dealing with the criminal liability of parties to an agreement to commit an offence, was subsequently introduced.

[34] Clarke v Tasmania [2013] TASCCA 11.

[35] Baker v His Honour Judge Stone [2015] WASCA 56 [36] - [37] and cases there cited.

[36] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263; Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236; Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437; Johnson v The State of Western Australia [2009] WASCA 71; (2009) 40 WAR 116 [90] - [97]; TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 [118].

[37] See the approach taken in Darkan [38] - [40].

[38] Michaels [10] and authorities there cited.

[39] M Shanahan et al, Carter's Criminal Law of Queensland (20th ed) [s 7.45].

[40] Michaels v The State of Western Australia [2009] WASCA 174 [13], Tresnjo v The State of Western Australia [2015] WASCA 12 [138] - [139].

[41] Santos v The State of Western Australia [No 2] [2013] WASCA 39 [62] - [65].

[42] Heaton v The State of Western Australia [2008] WASCA 32.

[43] See Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374 [90] - [92] (Heydon J, in dissent but not on this point).