Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. Tony Tadrosse and Danny Stephen both stand charged with two counts:

Count 1: The murder of Kalim Saliba (contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)): and

Count 2: The assault with intent to rob of Shahidy Saliba with wounding whilst being armed (contrary to s 98 of the Crimes Act 1900 (NSW)).

2. Their trial is listed to commence before me and a jury on Monday 28 July 2025.

3. This judgment concerns a pre-trial application made on behalf of both accused that I rule that it is not open to the Crown, as a matter of law, to bring its case against both accused on the basis of extended joint criminal enterprise. Senior counsel for Mr Tadrosse based this application on the decision of Gordon, Edelman and Steward JJ in Mitchell v The Queen (2023) 276 CLR 299; [2023] HCA 5 ("Mitchell") at [61]. Counsel for Mr Stephen joined that application. The Crown's position is that there is nothing in Mitchell that precludes the Crown from bringing its case on principles of extended joint criminal enterprise on the facts in this trial.

4. The point is a simple but important one: can the Crown rely on principles of extended joint criminal enterprise when the Crown cannot specify which of the two parties to the agreement did the physical act which constitutes the charge/crime(s) which fell outside of the agreement but was foreseen as a reasonable possibility?

5. It was common ground that prior to the decision in Mitchell the Crown could (and did) bring cases on this basis. It was also common ground that since Mitchell the question raised on behalf of the accused in this application has not arisen for consideration by the High Court, the Court of Criminal Appeal or any intermediate appellate court in Australia. Senior counsel for the accused accepted that, apart from the decision in Mitchell at [61] (which did not expressly address the point raised in this application), there is no published decision that supports her application nor is there any published decision since Mitchell which supports the Crown position. There is simply an absence of authority on this issue.

6. It may seem surprising that there is no relevant authority on an area of the law as frequently considered by the High Court as joint criminal enterprise (both straightforward and extended). Prior to the decision in Mitchell in 2023, the relevant principles were considered by the High Court in, inter alia, Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3 ("Johns"), McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 ("McAuliffe"), Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 ("Osland"), Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 ("Gillard"), Clayton v The Queen [2006] HCA 58; 168 A Crim R 174 ("Clayton"), Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 ("Miller") and IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 ("IL").

7. Despite the fact that the High Court has not always used consistent language in this area, prior to Mitchell in 2023, the High Court had consistently described both straightforward and extended joint criminal enterprise as relying on principles of principal rather than derivative liability.

8. In Mitchell, three of the seven judges of the High Court (Gordon, Edelman, and Steward JJ) described extended joint criminal enterprise for the first time as being a form of "derivative" liability. The other four judges (Kiefel CJ, Gageler, Gleeson and Jagot JJ) did not describe extended joint criminal enterprise as a "derivative" form of liability; their judgments are silent on this issue.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983f57f00e1f548eacae894)

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