Miller v The Queen [2016] HCA 30

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

Matter No A28/2015

EVERARD JOHN MILLER APPELLANT

AND

THE QUEEN RESPONDENT

Matter No A22/2015

WAYNE DOUGLAS SMITH APPLICANT

AND

THE QUEEN RESPONDENT

Matter No A17/2015

JOHNAS JEROME PRESLEY APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA RESPONDENT

Miller v The Queen Smith v The Queen Presley v Director of Public Prosecutions (SA) [2016] HCA 30 24 August 2016 A28/2015, A22/2015 & A17/2015

ORDER

Matter No A28/2015

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 28 April 2015.

3. Remit the matter to the Court of Criminal Appeal for determination.

Matters No A22/2015 and No A17/2015

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and allowed.

3. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 28 April 2015.

4. Remit the matter to the Court of Criminal Appeal for determination.

On appeal from the Supreme Court of South Australia

Representation

D M J Bennett QC and A L Tokley SC with G N E Aitken for the appellant in A28/2015 (instructed by Noblet & Co)

T A Game SC with K G Handshin for the applicant in A22/2015 (instructed by Legal Services Commission)

M E Shaw QC with B J Doyle for the applicant in A17/2015 (instructed by Old Port Chambers)

W J Abraham QC with J D Williams and E O Brown for the respondent in each matter (instructed by Director of Public Prosecutions (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Miller v The Queen Smith v The Queen Presley v Director of Public Prosecutions (SA)

Criminal law – Criminal liability – Complicity – Extended joint criminal enterprise liability – Where appellants and fourth man involved in violent altercation, during which fourth man fatally stabbed victim – Where appellants tried with fourth man for murder – Where bases on which murder left to jury included extended joint criminal enterprise – Whether liability for murder on basis of extended joint criminal enterprise should have been left to jury – Whether extended joint criminal enterprise proper basis for conviction of murder.