IL v The Queen: Joint Criminal Enterprise and the Constructive Murder Rule: Is this Where Their 'Logic Leads You'?
Sydney Law Review, Vol. 39, No. 2, pp. 245-255, 2017
13 Pages Posted: 18 Apr 2017 Last revised: 27 Jul 2017
Date Written: April 17, 2017
IL v The Queen involves the prosecution for murder, on the basis of the constructive murder rule, of a participant in a joint criminal enterprise to manufacture methylamphetamine — in circumstances where the actual perpetrator of the killing was quite possibly the deceased. Whatever the views of the justices of the High Court of Australia about whether the appellant (‘IL’) was sufficiently culpable justifiably to be convicted of murder, it is unlikely that the Court will accept her argument that she can be convicted of that offence only upon proof that she foresaw the possibility that the relevant conduct would result in death. It is not always easy for the courts to accept invitations to develop the law so as to make it more compatible with progressive notions of criminal responsibility. Given the apparent public support for the constructive murder rule, the High Court would need a firm basis for acting as IL wishes it to act; however, textual and historical considerations support the Crown’s position — as do the relevant precedents.
Keywords: Constructive murder, joint criminal enterprise, extended joint criminal enterprise, IL v The Queen, malice
JEL Classification: K10, K14, K30
Suggested Citation: Suggested Citation