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The abolition of the doctrine of extended common purpose

thesis
posted on 21.02.2017, 02:48 authored by Gumbleton, Mark J.
This thesis examines whether the doctrine of extended common purpose should be abolished and, if so, whether the doctrine should be reformed or excised from the common law altogether. To this end, the thesis examines principles of complicity in the context of the law on homicide and whether policy considerations should outweigh legal principle. The thesis reviews the development of the doctrine at common law, including its origins in felony murder and the shift from an objective assessment of secondary liability to a subjective standard. The purported justifications for retaining the doctrine are considered and responded to, including the way in which anomalies and asymmetries are created that result in criminal responsibility being out of step with the moral culpability of a secondary party. The various options for reforming the doctrine are evaluated, including whether the fault standard should be assessed objectively or subjectively and whether strict intent is preferable to some lesser form of fault, such as knowledge or foresight of the consequences or risk. The approaches taken in the Code jurisdictions (including Canada and New Zealand) are considered, as well as recent recommendations made by law reform bodies in England and Wales, New South Wales and Victoria to codify the law of complicity. It is concluded that the doctrine should be abolished. It is a modem mistake of the criminal law that ignored an alternative line of cases focusing on common purpose and manslaughter. Traditional common purpose liability is sufficient to determine whether the secondary party ought to be held criminally responsible for murder, manslaughter or entitled to an acquittal. There is no need to reform the doctrine as the common law is otherwise equipped to deal with the criminal responsibility of the secondary party.

History

Campus location

Australia

Principal supervisor

Stephen Gray

Year of Award

2015

Department, School or Centre

Law

Course

Doctor of Philosophy

Degree Type

DOCTORATE

Faculty

Faculty of Law