938 The respondents submit that, in any event, the result is the same because the facts establish a joint criminal enterprise. The respondents referred to R v Tangye (1997) 92 A Crim R 545 in which Hunt CJ at CL identified four directions which should be given to a jury in the case of a straightforward joint criminal enterprise. Two of these directions are as follows (at 556–557):
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(See also the section which describes the offence of conspiracy: s 11.5 of the Criminal Code.)
939 In their closing oral submissions, the respondents pointed to the following matters as establishing a joint criminal enterprise between the applicant and Person 11:
- (1) Person 11 was holding Ali Jan by the shoulder when the applicant kicked him off the cliff. Ali Jan was handcuffed at the time and clearly in a state of hors de combat;
- (2) The applicant and Person 11 walked down to the creek bed together and arrived at the point where the injured and handcuffed Ali Jan lay;
- (3) The applicant directed Person 11 and Person 4 to drag Ali Jan's body across the creek bed into the green area and Person 11 (and Person 4) did that while Ali Jan was injured and still handcuffed;
- (4) The applicant and Person 11 had a short conversation and it may be inferred that that conversation was about the fate of Ali Jan;
- (5) Person 11 shot Ali Jan who was standing and still handcuffed. The applicant was only four or five metres away at that point. The handcuffs were not removed until the SSE process was carried out;
