Document Type



This Article argues that the decision in Miller v The Queen [2016] HCA 30 is supported neither by common law precedent in Australia nor the historical English precedents that informed the development of Australia’s common law doctrines. It is submitted that the majority judgment misquoted old English authorities to try to equate foresight with intention and argues that the High Court of Australia engaged in judicial activism, because its decision rested predominantly on the policy views of the judges. Moreover, it is argued that the case highlighted the urgent need for law reform in Australia. The Article puts forward a theory to demonstrate that treating a person who did not perpetrate the collateral crime or assist or encourage its commission the same as the perpetrator of that collateral crime is unfair and unjust. Therefore, this Article argues that the extended joint enterprise doctrine created in Miller should be rejected in the 21st century.