Complicity

Imposition of criminal liability on all persons involved in the commission of a criminal offence, not just the principal offender. Extends the scope of liability.

Denotes partnership in an evil purpose or partnership in crime

    * Principal Offender/Principal in First Degree

Person who performs the actus reus of a crime with the necessary mens rea, including:

Person who is present at scene by reason of a previous agreement that the crime be committed (doctrine of joint criminal enterprise), and

Person involved in joint criminal enterprise, and a different crime occurs which was in the contemplation of the Defendant as a possible consequence of the joint criminal enterprise (doctrine of common purpose).

    * Principal in Second Degree
Person who is present at the commission of a crime, and aides, contributes or assists the principal offender, but does not physically commit the crime.

    * Accessory Before the Fact

Person who is not present at the scene of the crime, but aids, assists or contributes (aides, abets, counsels or procures) the commission of the offence.

    * Accessory After the Fact

Person who assists the principal offender/principal in the first degree AFTER the crime has been committed (e.g. conceal the crime, or assist principal offender to avoid arrest).

Terminology can be confusing because some cases refer to anyone other than the principal offender as “accessories” (i.e. both principal in second degree and accessory before the fact.

RELVANT LEGISLATION

Crimes Act 1900
Section 345

Every principal in the second degree of serious indictable offence liable to same punishment as principal in first degree

(“serious indictable offence” defined in Section 3 as offence punishable by 5 years or more).

Section 346

Every accessory before the fact shall by liable to same punishment as principal offender

Section 347

Every accessory before the fact to a serious indictable offence may be indicted, convicted and sentenced either before, during or after the trial of the principal in the first degree.

Section 349

(1)  Every accessory after the fact to murder shall be liable for up to 25 years imprisonment.
(2)  Every accessory after the fact to robbery with arms, or in the company of others, or kidnapping under Section 85A liable for up to 14 years imprisonment.

Section 350

Accessory after the fact to serious indictable offence (other than Section 349) liable to imprisonment up to 5 years.

Section 351

Any person who aids, abets, counsels or procures the commission of a minor indictable offence…may be punished as principal offender.

Section 351A

Person recruiting a child to perform or assist a crime liable to imprisonment up to 10 years.

Section 351B

(1)   Evert person who aids, abets, counsels or procures the comminson of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender.
(2)   On conviction any such person is liable  to the penalty and punishment to which the principal offender is liable.

Distinction Between Direct and Derivative Liability-Joint Criminal Enterprise

Derivative Liability                          Direct Liability

- Principal Offender                        - Joint Criminal Enterprise (Osland)
- Principal In the Second Degree      - Extended Joint Crim. Enterprise   
- Accessory before the fact            - doctrine of common purpose

Osland
v R (1998)

Facts: A battered wife lived with a violent husband – lived in matrimonial home with son – Mother and Son decided to kill the father – poisoned food to make him sleep – son then hit father with son – buried him in backyard – people questioned fathers whereabouts – they said they don’t know – gave in eventually.
Judgement: Mother was charged with murder, but the son was acquitted. The real issue is if you have the requisite mens rea, the mother did, the son didn’t.

A person who is at the scene of a crime and acts in accordance with pre-conceived plans, understanding or arrangement, then has the actus Reus of all others at the scene, if they also carry the Mens Rea, then they become the principal offender under the doctrine of Joint Criminal Enterprise.

- Where there is more then one offender it is not necessary of or the prosecution to show that each performed all necessary physical elements with necessary fault elements provided that the accused are all acting together e.g. – the accused (Mark) restrains the victim (Lara) while another person (Simon) choked the victim to death, is a principal in the first degree to the crime even though Mark did not perform the fatal act.
- It follows that there may be more than one principal in the first degree – this is joint criminal enterprise.
- There are two kinds of joint criminal enterprise – straightforward (as seen above) and extended.
- An extended joint criminal enterprise exists where the crime for which the prosecution is seeking the accused’s conviction falls within the scope of the common purpose of the accused and the principal offender.

E.g. the accused (Bob) and the principal in the first degree (Dee) had agreed to carry out an unarmed robbery using only physical force, but in the course of the robbery Dee pulls out a gun. The issue here is whether this was within the common purpose of Bob and Dee. If it was, Bob is also a principal in the first degree of armed robbery.

Derivative Liability – Innocent Agency Exception

- Accessory before the fact or principal in second degree who uses an agent to commit a crime is guilty as the principal offender.

- A person who arranged for another to commit a crime on his or her behalf cannot escape liability, simply because the other offender cannot be convicted. E.g. a person who arranges for an 8-year-old child to break into a house via a small window can be guilty of the crimes there committed even though the child cannot be convicted of any of the crime.

In White v Ridley (1978) Gibbs J said: “it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender…also where the agent, although of sound mind and full understanding, is ignorant of the true facts and believes that what he is doing is lawful”

Cogan and Leak (1975)

Facts: Leak procured Cogan to have sexual intercourse with his wife knowing that she did not consent and intending her to be raped by him. Cogan was convicted of rape and Leak of aiding and abetting such rape. Cogan appealed saying he believed that Leaks wife had consented and Leak said “its my wife’s fetish, no means yes”.
Judgement: There could be a principal in the second degree to rape notwithstanding that the principal in the first degree was acquitted because the non-consensual intercourse had been provoked by the aider and abettor who had intended the offence to be committed.

Principal In The Second Degree

- A principal in the second degree is a person present at the scene of the crime who aids or assists in its commission.

E.g. the getaway driver at the armed robbery is guilty of that offence, as principal in the second degree, even though not personally armed or involved in the robbery.

- In order to establish criminal responsibility, the prosecution must establish:
- The commission of the crime by the principal in the first degree; and
- That the accused was present; and
- That the accused know all of he essential elements necessary for the prosecution to succeed against the principal in the first degree (including fault element)
- That the accused, with that knowledge, intentionally assisted or encouraged the principal in the first degree to commit the crime.

Mohan v R (1967)

Facts: West Indies Village – 3 guys had a fight – 2 of them inflicted wounds on the victim – doctor was unable to establish who performed which wounds – both were convicted as principals in second degree.
Judgement: You are able to have 2 principles in the second degree without a principal offender.

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