The Osland 'Wrong Turn' and the Problems that Fictions Produce

Dyer, A., "The Osland 'Wrong Turn' and the Problems that Fictions Produce," UNSW Law Journal, 42:2, 2019, pp. 500 - 533

Sydney Law School Research Paper No. #19/36

35 Pages Posted: 23 Jun 2019

See all articles by Andrew Dyer

Andrew Dyer

The University of Sydney Law School

Date Written: June 21, 2019

Abstract

While much academic attention has been devoted to whether the doctrine of extended joint criminal enterprise (‘EJCE’) can be justified, the basic joint criminal enterprise doctrine (‘JCE’) has escaped much scrutiny. The extraordinary recent case of IL v The Queen (2017) 262 CLR 268, however, has demonstrated that JCE is more problematic than was thought. It is argued here that the difficulties exposed in IL arose because of a ‘wrong turn’ in Osland v The Queen (1998) 197 CLR 316. The High Court’s insistence in that case that all JCE participants are principals in the first degree might have been convenient, but it was also fictitious and unprincipled – as Sir John Smith argued at the time. For as long as the law proceeds as though JCE participants have struck blows that they have not in fact struck, and fails to acknowledge that they are accessories, the Australian common law of complicity will be dishonest, obscure and unnecessarily complex.

Keywords: criminal complicity, joint criminal enterprise, secondary liability, direct liability, innocent agency, procuring an actus reus, Osland v The Queen, IL v The Queen

JEL Classification: K10, K14, K30

Suggested Citation

Dyer, Andrew, The Osland 'Wrong Turn' and the Problems that Fictions Produce (June 21, 2019). Dyer, A., "The Osland 'Wrong Turn' and the Problems that Fictions Produce," UNSW Law Journal, 42:2, 2019, pp. 500 - 533; Sydney Law School Research Paper No. #19/36. Available at SSRN: https://ssrn.com/abstract=3407710

Andrew Dyer (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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