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The Osland ‘Wrong Turn’ and the Problems that Fictions Produce (Advance)

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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.

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