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.