Joint criminal enterprise: When being present becomes being guilty

The doctrine exists in two forms in Australian law. Basic joint criminal enterprise applies where two or more people agree to commit an offence, and each is liable for acts done in furtherance of that agreement. Extended joint criminal enterprise goes further: it can make a participant liable for an offence committed by a co-participant that was not part of the original agreement, provided that participant foresaw the commission of that further offence as a possibility.

It is that second limb (extended joint enterprise) that most concerns criminal defence practitioners. And for good reason. The scope of what a person can be said to have ‘foreseen’ is, in practice, extraordinarily difficult to define.

What the High Court has said

The High Court’s decision in The King v Rohan [2024] HCA 3 brought important clarification to statutory complicity provisions in the Victorian, and by analogy, the NSW, context. The Court examined what it means to be ‘involved in the commission of an offence’ under a joint agreement, confirming that the prosecution must establish the accused’s knowledge of the essential facts making the conduct an offence. Mere participation in a broad agreement is insufficient: the mental element must be proved with precision. It is a threshold that defence practitioners should test rigorously on the specific facts of each matter.

The NSW Court of Criminal Appeal has continued to refine the doctrine in its application. In AW v R [2025] NSWCCA 47, the court confirmed that a party to an extended joint criminal enterprise who foresees but does not agree to the commission of an incidental offence remains potentially liable for that offence. A distinction the Judicial Commission of NSW has now incorporated into its bench book guidance for trial judges.

What emerges from this line of authority is a doctrine with significant reach but also, importantly, with defined limits. Those limits are the terrain on which the defence is built.

The problem of presence

One of the most dangerous misconceptions held by defendants facing joint enterprise charges is the belief that because they did not personally commit the offending act, they are not culpable. It is a view courts have consistently rejected. Presence at the scene of an offence, with knowledge that it is being committed, can in the right circumstances be enough to constitute participation.

But presence alone is not enough. The prosecution must still establish that the accused was a party to the agreement, or that they assisted or encouraged the principal offender in the commission of the offence. Each element must be proved beyond reasonable doubt. The defence task is to identify which of those elements is genuinely in contest on the evidence, and to focus the jury’s attention accordingly.

In practice, the cases where joint enterprise is most often charged involve groups of young men, often associates or friends, one or more of whom takes action far beyond what others anticipated. The person who was simply present, or who had no prior warning that events would escalate, is nonetheless swept up in a charging decision that treats their presence as participation. This is where the doctrine’s breadth becomes its most troubling feature.

The withdrawal defence

One avenue that is underutilised in joint enterprise matters is withdrawal. A person who has entered into a common criminal purpose can, in certain circumstances, withdraw from that purpose before the offence is committed. To be effective, the withdrawal must be unequivocal and communicated to co-participants. Mere change of mind, or even physical departure from the scene, is generally insufficient if the defendant has already provided assistance that cannot be retracted.

The withdrawal defence is genuinely difficult to run successfully, and the threshold the courts impose is high. But in cases where there is evidence of communication between participants, or where the sequence of events shows a defendant attempting to disengage before the critical act, it is an argument that deserves careful analysis.

What should change

Extended joint criminal enterprise in its current form creates significant risks of unjust outcomes. The doctrine was designed to prevent co-offenders from escaping liability by arguing they did not personally pull the trigger. That is a legitimate aim. But in its expanded application, it has the capacity to punish people for the independent and unforeseen decisions of others, simply because those people were present or associated.

The UK Supreme Court’s decision in R v Jogee [2016] UKSC 8 represents a more cautious approach: the English courts largely dismantled extended joint enterprise liability, returning to a requirement of intentional assistance or encouragement. Australia has not followed that path, but the decision is not without influence in how Australian courts examine the mental element in complex multi-defendant cases.

For practitioners, the current state of the law requires careful case-by-case analysis. The doctrine is powerful, but it is not without limits. Testing those limits - rigorously, on the evidence, at every stage of proceedings - is the job of a criminal defence lawyer. And in a doctrine where the difference between presence and participation can mean the difference between freedom and a life sentence, that scrutiny has never mattered more.