Complicity

Indirect Offences

In NSW principles of criminal complicity are governed by common law.
The principles of complicity criminalise joint participation in a given crime.
These offences are incorporated into the Crimes Act 1900 (NSW) ss345, 346, 351

* It is possible to participate in a crime in several ways:

1. Principal offender in the first degree - involved in the personal perpetration of actus reus of the crime.  A person who acts through and innocent agent is a principal in the first degree. (s 345-346)

2. Principal offender in the second degree à involved in aiding or assisting/abetting someone at the scene of a crime, without taking a main role.  Blackstone defines a principal in the 2nd degree as:
“....he who is present, aiding and abetting to the fact to be done.  Which presence need not always be an actual immediate standing by, within the sight or hearing of the fact; but there may also be a constructive presence.....”

3. Accessory before the fact à involved in urging or contributing towards the commission of the crime, without actual presence at the scene of the crime.  

4. Accessory after the fact à Assisting a person who has committed a crime after the offence.  To constitute an accessory after the fact, a person must know of the felony committed AND relieve, comfort, receive or assist the person.  Generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes an assistor an accessory.

NOTE: However these technical distinctions have been largely abolished, and under statue, accessories before the fact and principal offenders in the second degree are liable to the same maximum penalty as the principals in the first degree.

* Accessories before the fact = absent during crime
* Principal offenders = present during crime

- However a person may be constructively present at the crime.  A person who is physically present is one within the sight and sound of the crime, whereas a person who is constructively present is ‘able readily to come to the assistance’ of the principle. Doorey (1970)

The Principal offence

There is no need for Principal offender (P) to actually have been convicted. Jury only must be satisfied BRD that
· principal offence was committed by some person
· D was involved in aiding, abetting, counselling or procuring he offence. Lun and Welsh (1932)

Principals and Accessories before the Fact
Actus Reus

* ‘aids, abets, counsels or procures’ the commission of the principal offence. Giorgianni (1985) - not mutually exclusive and D can satisfy more than I category.

Counselling or procuring

* usually applied where D is absent
* Counselling = advice prior to commission of offence eg. talking
* Procuring = beyond encouragement> actually ‘causes’ or ‘brings about’ its commission. Beck (1985) eg. D offers t pay for the commission of an offence
Aiding or Abetting
* D present at crime
* D would be principal offender in the first degree if he performed break and enter ( physical presence) where as waiting in the car> 2cd degree (constructive)
* aiding = “give support to – help, assist” Beck (1990)
* abetting = essential D was at commission of P offence and encouraged it. Russel - by standing and watching held to be a form of encouragement.

R v Russell [1933] - The defendant’s wife told the defendant that she was going to kill herself and the children.  The defendant tried to dissuade her.  He watched as his wife drown herself and his children.  He dived into the rescue but was unsuccessful.  The defendant was charged with manslaughter and was found guilty of being a principal in the second degree.

Held: “(1) that if a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission, he is guilty as a principal, and (2) that assent may in some cases be properly found by the jury to be shown by the absence of dissent, or in the absence of what is called effective dissent..”
*On appeal, it was held that the defendant was guilty of being a principal in the second degree as his absence of dissent was held to show assent to his wife’s action of drowning herself and her children.
“...a husband and father doing nothing, or nothing effective, to prevent a tragedy may well be taken as showing his assent to what he contemplated as likely to happen.”

Note:  This case also demonstrates that there is no requirement of a causal connection between an act of accessoryship and the commission of the crime charged.  The act need only support or promote the commission, it need not be
said that it wholly or partly cause the crime.
Causation

* Any act of encouragement, assistance or instigation will fulfil conduct requirements - can be mere words, act…need not wholly or partly cause the crime, only support. Russel

* When PROCURING - Prosecution must prove there is a causal connection between D’s conduct and the commission of the offence.- Attorney-General’s Reference (No 1 of 1975) [1975] - The defendant laced his friends drinks.  As a result, his friend was charges with driving with excess alcohol.
- It was held the defendant was an accessory

Omissions

Defendant may be liable where he has a duty to act and he doesn’t, but generally reluctant for omissions.

Presence can also be crminilised as encouragement; “… a calculated presence, or a presence from which opportunity is taken, can project positive encouragement and support to a principal offender. “ Beck (1990)
- Focus on Mens Rea

Mens Rea

The mens rea requirements for accessoryship are specific in order to guard against the possibility that the defendant is held liable for innocent and inadvertent acts.

This mental elements does not require that the defendant desire the principal to commit the crime.  The defendant may be indifferent to the possibility that the principal is committing the crime.

“No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender.”
 
1. knowledge of the principals facts that made the principal offence a crime

Actual Knowledge is required

In addition, the defendant must know that the principal will commit, or that the principal is committing, all the facts constituting the offence.
In ‘Giorgianni v R (1985) - The defendant was convicted under s 52A Crimes Act 1900 (NSW) on 5 charges of culpable driving causing death, and 1 charge causing GBH.  It was submitted that the accused had procured and allowed an employee to drive a truck with defective brakes, and therefore by virtue of s 351 Crimes Act 1900 (NSW) was liable to be convicted as a principal offender.

Tt was submitted that cases of strict liability make the requirement of the defendant’s guilty mind clear. The defendant must have an actual knowledge or constructive knowledge, rather than a mere suspicion that all the facts constituting the offence are to be or are being committed.  Mere recklessness or negligence is insufficient. However wilful blindness may provide the evidential foundation for a finding of actual knowledge. (see above)

“The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence.  He need not recognise the criminal offence....but his participation must be intentionally aimed at the commission of the acts which constitute it.”

* In the offences of constructive liability, the accessory is only required to have the same level of knowledge as the principal [Appleby (1940)]

* Mere recklessness will be insufficient [Giorgianni v R] - Wilful blindness to what is going on is equivalent to knowledge but “...connivance, or wilful blindness, is only relevant to the liability of a secondary party to an offence because it virtually amounts to knowledge.” - could provide the evidential foundation for a finding of actual knowledge.

Knowledge of the precise crime to be committed

* The defendant must contemplate the commission of a crime of the same type or kind as that which is actually committed.  It is NOT enough that the defendant knows some illegal act is to be committed, but neither is it required that he knows the precise crime.

 R v Bainbridge[1959] - The defendant brought some oxy-acetylene equipment (oxygen cutting equipment) on behalf of another.  Using this equipment, the Midland Bank was broken into.  The defendant claimed that he did not know the equipment was going to be used for such a crime, instead suspected that it was going to be used to dispose of stolen property.
- He was convicted of being an accessory as he knew a felony of the kind committed was going to be committed. His appeal only on a point of law was quashed.

- It was held that the prosecution must prove:
1. That the felony itself was committed
2. The defendant knew that a felony of the kind was intended and was going to be committed
3. And with that knowledge (being not merely a suspicion), he did something to help the felons commit the crime.

2. D intentionally aided, abetted, counselled or procured


Clarkson v Carroll [1971] - The defendants were charged with aiding and abetting the gang-rape of a girl at a party.  There was no evidence the defendants had done any physical act or uttered any encouragement, but it was held that their mere presence may have encouraged the crime.  However this encouragement had to be wilful.

- The defendants were convicted and appealed - conviction was quashed
- It was held necessary to show that they intended to give encouragement, however the defendants were drunk, and may not have been aware that their presence may encourage the rapists.
- It was held that even if they had encouraged the rapists, this encouragement was NOT wilful, and hence there was no ground for liability.

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