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Abolishing Australia’s Judicially Enacted Sui generis Doctrine of Extended Joint Enterprise

Wang, Bo (2018) Abolishing Australia’s Judicially Enacted Sui generis Doctrine of Extended Joint Enterprise Concordia Law Review, 3.

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Abstract

In this paper it is argued that the decision in Miller v The Queen [2016] HCA 30 is not supported by the common law precedents in Australia nor the historical English precedents. It is argued that the change of normative position theory invoked by the majority judges is just stated as a rule rather than as a positive justification, which is an assertion that has never been developed into a plausible theory. Moreover, the policy considerations cannot work as convincing justifications for extended joint enterprise liability. It is submitted that assisting/encouraging is normatively different from and less harmful and dangerous than perpetration; and that making an assister/encourager fully liable for the target crime goes against principles of fair labelling and proportionate punishment. It is further submitted that the unfairness and injustice in complicity liability is doubled in the context of extended joint enterprise showing the urgency of abolition of it in Australia.

Item Type: Article
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
NameEmailORCID
Wang, Bob.wang@surrey.ac.ukUNSPECIFIED
Date : 2018
Copyright Disclaimer : This Essay is brought to you for free and open access by the School of Law at CU Commons: Concordia University’s Digital Repository. It has been accepted for inclusion in Concordia Law Review by an authorized editor of CU Commons: Concordia University’s Digital Repository.
Depositing User : Melanie Hughes
Date Deposited : 08 Aug 2017 13:05
Last Modified : 08 Aug 2017 13:05
URI: http://epubs.surrey.ac.uk/id/eprint/841858

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