A judicial contribution to over-criminalisation?: Extended joint criminal enterprise liability for murder
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Scholarship on the problem of over-criminalisation - when criminal law is employed as a penal or regulatory mechanism beyond its legitimate limits - has tended to focus on the actions of the legislature. This article considers a judicial contribution to over-criminalisattion: the common law rules on extended joint criminal enterprise in their application to murder. It argues that the current rules, which have operated since the High Court's 1995 decision in McAuliffe, are an unacceptable departure from both the principles that govern individual responsibility for murder and the principles of complicity liability (which should be limited to agreement/authorisation or intentional asistance). Unlike many forms of legislative over-reach, which Australian courts have little capacity to "check", extended joint criminal enterprise is a common law instance of over-criminalisation which is within the power of the courts to remedy.