What is an Extended Joint Criminal Enterprise?

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A murder trial in the Supreme Court of New South Wales involving five co-defendants has been aborted after a High Court decision raised doubts whether the prosecution could continue.

Lisa Anne Price, Joseph Nehme, Bilal Rahim, Viliami Taufahema and Sherene Rizk were charged over the death of 29-year-old Luke Lembryk, who was stabbed in the heart during a failed robbery in his home. 

The trial has now been aborted and the jury discharged.

Here’s what happened.

Jointly charged

Four of the defendants – Price, Nehme, Rahim and Taufahema – were each charged with murder under section 18 of the Crimes Act 1900 (NSW) on the basis that they entered into an agreement to rob Lembryk with foresight that death may result. 

Ms Rizk was charged separately with being an accessory after the fact. 

All of the defendants pleaded not guilty and the case proceeded to trial.

The prosecution case 

The prosecution set out that Ms Price met Mr Lembryk on a Tinder date during which she discovered he had large amounts of cash in his home. 

The prosecution further asserted that Ms Price then arranged with Nehme, Rahim and Taufahema to rob Lembryk for the money

It’s not clear who stabbed Lembryk to death.

The doctrine of constructive murder 

The doctrine which allowed the four parties to the agreement to be charged with murder is called “constructive murder” or “felony murder”. 

The relevant wording within section 18 of the Act states that:

Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done… in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

The prosecution alleged that evidence of conversations between all four parties related to the robbery of Lembryk, but it was unclear who directly participated in the robbery itself. 

That being so, a related doctrine also applied to the case: extended joint criminal enterprise. 

What is extended joint criminal enterprise?

The doctrine of joint criminal enterprise allows criminal liability to be equally distributed to each participant in an agreement to commit a crime, regardless of the part they actually played in the crime.

An extended joint criminal enterprise is a variant of this doctrine where:

  • There was an agreement between the parties to commit a crime,
  • The defendant foresaw the possibility of an additional crime being committed at the time of agreement,
  • The defendant continued to participate in execution of the agreed crime, and
  • The additional crime was committed. 

In the Lembryk murder case, the prosecution alleged that an extended joint criminal enterprise occurred as there was an agreement to commit one crime (robbery) with foresight that another crime will be committed (constructive murder).

Recent High Court Decision

The recent High Court decision of Mitchell and Others v The Queen [2023] HCA 5 has severely undermined the Crown’s approach in the Lembryk murder case.

Mitchell involved an appeal against conviction by four individuals who were found guilty of murder by the Supreme Court of South Australia. All four individuals agreed to steal a substantial amount of cannabis from a house in a suburb of northern Adelaide which was being used to grow cannabis for commercial purposes. During the robbery a man was killed following an altercation. 

Section 12A of the Criminal Law Consolidation Act 1935 (SA) outlines the South Australian doctrine of constructive murder, stating:

A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more, and thus causes the death of another, is guilty of murder.

This doctrine was combined with the doctrine of extended joint criminal enterprise to find the four individuals guilty of murder.

On appeal, the High Court decided that the application of extended joint criminal enterprise to section 12A of the Act was severely limited.

Chief Justice Kiefel remarked that, “constructive crimes should be confined so far as possible in their operation”. 

Her Honour noted the difficulties in applying the doctrine of extended joint criminal enterprise to section 12A, given that the latter only requires an “intentional act of violence” to constitute the additional crime:

Given that the words “act of violence” are to be understood more broadly and not by reference to causation of death or serious injury, it follows that the only foresight which a secondary offender might be said to have, if the principle is applied to s 12A, is that almost any act or threat of violence may take place. This cannot be a sufficient mental element for criminal liability for murder according to the principle of extended joint criminal enterprise.

This was echoed in the joint judgment by Justices Gageler, Gleeson and Jagot who noted the erroneous two-step process involved in applying extended joint criminal enterprise to constructive murder:

For the common law doctrine of EJCE to operate to impose liability on a secondary party in such a circumstance would amount to the creation at common law of liability for the statutorily defined form of murder in s 12A in circumstances which the narrowness of the s 12A pathway to that form of murder is designed to avoid. In particular, it would operate to impose liability for murder on a participant in a foundational major indictable offence as described in s 12A who has nothing other than foresight of the possibility of an intentional commission of an act of violence by another participant. However, the statutory design is to impose liability for murder on a person only if that person has an intention to commit an act of violence.

Ultimately, the High Court held that combining extended joint criminal enterprise and section 12A of the Act could not be relied upon to create a pathway to murder. 

For all four who were convicted the appeal was allowed, the trial decision quashed and a new trial ordered.

Impact on Lembryk murder case

Following the High Court decision in Mitchell, Justice Button of NSW Supreme Court was forced to decide whether the prosecutions of all five defendants in the Lembryk murder case could continue.

Despite differences in wording between section 12A of the Criminal Law Consolidation Act 1935 (SA) and section 18 of the Crimes Act 1900 (NSW), Justice Button found that the decision in Mitchell had meant that:

[T]he combination of extended joint criminal enterprise at common law and constructive murder has been abolished, not just in South Australia, but throughout Australia.

As a result, his Honour found that the sole basis of the prosecution case, involving the combination of constructive murder and extended joint criminal enterprise, was not available. 

His Honour further noted that the logic of Mitchell, likely also applied to the prosecution case for accessory after the fact.

As a result, the trial could no longer continue and the jury was discharged. 

A fresh case will need to be brought by the prosecution against all accused, with a fresh court date set for April of this year.

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Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

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