Published on 16/04/2007

Please note the download link for these set of notes are at the end of page 2

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.

Continued on page 2

Complicity continued

Can Accessory before the fact be convicted of more serious offence that principal offender? YES!

R v Richards [1974]

Facts: Richards was charged with, inter alia, wounding with intent to cause grievous bodily harm. She had agreed to pay 2 men to beat her husband up, to put him in hospital for a month. She helped plan the attack, but wasn’t present when the attack happened. The people who committed the offence were convicted of a lesser sentence than the accused as she was convicted of wounding with intent.
Judgement: She was convicted only of unlawful wounding, as that is all that had occurred and could not be convicted of a more serious offence than that which was committed.

Actus Reus

- Accomplice must know of the ‘essential facts’ of the principal offence. Giorgianni v R (1985).
- Its not enough to establish that the accused was aware that something illegal was happening, there must be actual evidence of the knowledge that the accused was well aware that a venture of the type committed was planned. Bainbridge (1960).
- S351 of the Crimes Act states that: “The accused will be liable as an accessory if he or she aids, abets, counsels or procures the commission of the principal offence.”\
- Aiding- giving support, help and assistance R v Beck [1990]
- Counsels – Giving advice prior to the commission of the offence. It must be established however that the accused committed the offence after the counselling and if the offence was a probable consequence of the counsel. R v Calhaem.

- Procures – goes beyond giving advice and actually causes or brings about its commission of the offence i.e offers money to make the offence happen. R v Beck
- Virtually, any act of instigation, encouragement or assistance of a principal or prospective principal to commit a crime will incriminate a defendant as an accessory to the crime.

Distinction between innocent bystander and principal offender or principal in second degree.

Clarkson and Carroll (1971)

Facts: UK Airforce base in Germany – Soldiers decided to get a girl drunk and rape her in front of a group of soldiers – Clarkson and Carroll were watching – weren’t involved – but did nothing to stop it – they just merely stood there.
Judgement: English Court of Appeal – mere fact that there was not any indication that they encouraged or assisted the sexual assault needs to be actual assistance or actual encouragement on that basis there was misdirection Innocent bystanders.

R v Russell (1933)

Facts: Russel ‘s wife had decided that she wanted to drown herself and her children in the bathtub – he watched her as she did so and did nothing to intervene.
Judgement: The court held that “he assisted his wife by doing nothing because of the relationship of the victim and husband” by him saying nothing    means that he encouraged his wife to continue drowning.

Mens Rea

Is recklessness sufficient means rea for accessory before the fact/principal in the second degree? NO! Accessory must have knowledge of the facts which constitute the offence committed by the principal offender.

Giorgianni (1985)

Facts: Serviced coal truck – stationed in workshop – breaks fail and killed family – when impounded it was found to have faulty brakes. Giorgianni had been present when truck had been present – driver told georgiani about fault – charged under s52 of the Crimes Act – dangerous driving causing reckless bodily harm.
Judgement: Went to the HC – need assistance by Gio and the mental state of Gio. HC said recklessness isn’t enough and their needs to be intention to assist or encourage – he has to know the facts and Gio didn’t.

Offences require intention – but Gio does not know or believe in what he is assisting – not enough if he knows the possibility – you need to know the factual readings of the crime – you must know these things in order to have the adequate mens rea. That is the test

- Accessory before the fact must have knowledge of the type of crime to be committed, not the actual crime.

Bainbridge (1960)

Facts: Bainbridge bought oxy-celin equipment for a friend Shakeshaft (ss) – SS used it to rob a bank to cut through the metal bars in a window – when Bainbridge was confronted by the police he said I was suspicious of SS, he thought SS was going to use it to break up stolen goods not to rob a bank. Bainbridge was charged as an accessory.
Judgement: You don’t need to know the crime, but the type of crime that is going to occur, he’s suspicion of breaking up stolen goods does not constitute as knowledge of the type of crime. Jury must establish it.

-Mens Rea of principles in the second degree

Stokes and Difford (1990)

Facts – Jamie Partlet had a number of fines incurred so he went to jail for 2 days to clear his debt and not pay the fines – he ended up in jail with bad guys – Stokes and Difford were out in the gym yard and said Jamie had made a comment about Stokes. Stokes said ‘Yeah Him, the fucking asshole, hit him or I will’, so Difford did, and then started kicking on the head causing GBH with the intention to do so.
Judgement: It was aggravated assault. Judge said that are 3 elements that need to be assessed to have Mens Rea of principle in the second degree:

(1)   Commission of the crime by the principal offender
(2)   An intention to commit the crime
(3)   Knew of the facts of the crime

- Stokes and Difford knew of these and were charged.

Joint Criminal Enterprise and Doctrine of Common Purpose

- Separates parties into perpetrators and accomplices.
- An accessory bears a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention.
- It is held that sufficient mens rea if a person involved in joint criminal enterprise knows that it is possible that another type of crime will be committed during the course of the joint criminal enterprise.

McAuliffe and McAuliffe (1995)

Facts: Appellants were convicted of murder when they went to a park for the purpose of robbing or bashing someone and, in the course of that common purpose, one of the victims attacked feel from a cliff and died.
udgement: The scope of the common purpose is to be determined by what was subjectively contemplated by the parties sharing that purpose and will extend to the possible consequences of such venture. HC says when you look at it, its extended Joint Criminal Enterprise (JCE) where they look at the scope of the plan or agreement. If they know it is possible another type of crime will occur than it falls in to JCE – its enough for possibility not probability.

Johns v R (1980)

Facts: Accused was involved in an armed robbery; he drove the principal offender to a place near the scene of the crime. Robbery miscarried and the victim was killed. Accused charged with murder.
Judgement: An accessory before the fact is liable for the acts of the principal offender, if the act was within the contemplation of the accessory and the principal as acts which might be done in the course of carrying out the primary criminal intention.

WITHDRAWAL

- Can a person successfully withdraw from joint criminal enterprise or pan to commit a crime? YES!!

- For a withdrawal to relieve from criminal responsibility, the accused must communicate an intention to withdraw to the other members of the joint criminal enterprise in good time before the crime is committed, and take such action as is reasonably possible to prevent the others from proceeding to commit the crime, e.g. by reporting the matter to the police.

- There must be a timely communication of the intention to abandon the common purpose form those who wish to dissociate themselves from the contemplated crime to those who decide to continue.

- The accused must take such reasonable action as is necessary to prevent the crime from proceeding, after communicating the intention to withdraw, but only where the accused subjectively believes that the crime is not going to be committed in the future.

Rook (1993)

Facts: Husband decides to kill his wife by hiring 3 hit men. He decides to tell his wife to meet him in this secluded area at night, the men would hide then attack and kill her making it look like a robbery. However, rook was afraid and didn’t turn up, he didn’t ring her to warn her, he just stayed home, let her go knowing the consequences of her arrival.
Judgement: He believes that he withdrew from the act, however, he did not give timely communication that was unequivocal, and failing to show up does not constitute a withdrawal. Its based on the facts and he knew she was going to die if she went there.