continued
The Doctrine of Common Purpose
This
doctrine applies where a venture is undertaken by more than one person
in concert in pursuit of a common criminal design [McAuliffe v R (1995)]
The
doctrine determines whether an accessory can be liable for an
additional crime which was committed over and above the primary
objective of the plan to which the parties agreed.
It is generally submitted that if the principal actor goes beyond what
was counselled or agreed upon, so that he or she is in effect engaged
upon a different criminal enterprise, then neither an accessory before
the fact nor a principal in the 2nd degree are liable for the
consequences of the unauthorised act.
* However this doctrine can be utilised to extend liability to
secondary participants for ‘incidental crimes’ which they did not
commit.
The doctrine of common purpose has been described in ‘Johns v R’ (1980), that an accessory bears:
“a
criminal liability for an act which was within the contemplation of
both himself and the principal in the 1st degree as an act which might
be done in the course carrying out the primary criminal intention - an
act contemplated as a possible incident of the originally planned
particular venture.”
Johns v R (1980) - The defendant and two others planned an armed
robbery on the victim. On the night of the robbery, the defendant
waited in the vehicle while the 2 proceeded to carry out the robbery.
The defendant knew one of the principal offenders was carrying a loaded
pistol, and knew that he was quick-tempered and violent. It was
planned that once the robbery was completed, the proceeds would be
handed over to the defendant who was to hide them. However the plan
miscarried, and the victim was shot and killed.
- The defendant was held liable, and his appeal was dismissed.
-
The doctrine of common purpose was applied, and the defendant was held
liable for the acts done within the ambit of the enterprise of common
design.
- The only mens rea requirement was that the defendant
foresaw a POSIBILITY that another member of the group would commit the
additional offence.
“....criminal liability should be made to depend
upon the jury’s assessment of whether or not the accessory before the
fact must have been aware of the POSSIBILITY that responses by the
victim or by third parties would produce the reaction by the principal
offender which led to the other crime.”
McAuliffe v R (1995) -
The two defendants, who were brothers, went with another principal to a
park for the purposes of robbing or bashing someone. They attacked the
deceased and another, all playing a role in the attack. The other
principal resulted in killing the deceased.
The defendant’s were charged with murder on the grounds that there was
a sufficient intent on the part of either defendant for the purposes of
murder if he contemplated the intentional infliction of GBH by one of
the other participants as a possible incident in the carrying out of
their enterprise.
“...a shared intention - that is, a common purpose
- in inflicting GBH or an individual contemplation of the intentional
infliction of GBH as a possible venture would be sufficient intention
on the part of either of them for the purposes of murder.”
It was also held that the doctrine of common purpose was a SUBJECTIVE test.
“..in
accordance with the emphasis which the law now places upon the actual
sate of mind of an accused person, the test has become a subjective one
and the scope of the common purpose is to be determined by what was
contemplated by the parties sharing that purpose.”
Duong v R
(1992) - The defendant and 3 other accused were charged with
manslaughter when a 5th participant inflicted a fatal stab wound to the
defendant’s neighbour. The defendant was not present at the time of
the killing but it was at his invitation that the other participants
came to his house to discuss a robbery which had occurred, which the
defendant believed the deceased to be responsible for. He believed the
accusers were going to confront the decease, however without violence.
When leaving the defendant’s house, 1 of the accused mentioned needing
a knife to protect himself.
It was held that the defendant was involved as an accessory before the
fact, and the other accusers as principals in the 2nd degree.
It was
held in the case of an accessory before the fact, the scope of the
agreement is fixed at the time when the accessory parts company with
the principals. To prove the offence against the accessory, the Crown
must establish that the accessory knew of the presence of the weapon
but assumed that it would not be used to inflict GBH or death, or that
use of the weapon was within the scope of the common design
notwithstanding that he did not know of it’s actual presence.
R
v Demirian (1988) - The defendant conspired with the victim to cause
and explosion at the Turkish Consulate. The victim dies in the
explosion, and the defendant was convicted of conspiracy and murder.
On appeal, his conviction for conspiracy was upheld and conviction for murder quashed.
It
was held that unless it could be shown that the victim himself
committed murder, the defendants could not be guilty as an accessory to
that crime. Nor could the defendant be guilty of manslaughter as an
accessory unless the victim as a principal offender committed a crime
by killing himself.
Requirements of the Doctrine of Common Purpose – for Mens Rea to be satsified
D must have formed the commo intention to prosecute an unlawful purpose.
The
principal offence must have been committed in the pursuance of, in
furtherance of, or for the purpose of the common design. The defendant
need only contemplate the incidental crime as no more than a possible
incident of the enterprise, rather than a probable one.
Britten
and Eger (1988) - the defendants armed with loaded weapons agreed that
they would go to a house and threaten the occupants. In the course of
doing so, Britten shot a dog, and Eger murdered an occupant of the
house.
It was held that if Britten foresaw the substantial risk that Eger
would in the course of the enterprise shoot someone with the intention
of at least causing really serious harm, then Britten should be guilty
of murder.
Both defendants were convicted of murder
In this case it is argued that the doctrine of common purpose extends liability too far. The rationale was stated was:
“By
participating in the enterprise, each participant impliedly authorises
all criminal acts which are in his contemplation as being part of the
common design or as being a substantial risk associated with its
implementation.”
The Doctrine of Innocent Agency
This
doctrine deals with the situation where a principal escapes liability
by deeming a defendant to be the principal offender where the defendant
has the relevant guilty mind. This doctrine is particularly applied
where children are used as instruments for the defendant’s purpose.
R
v Cogan and Leak [1976] - The defendant took his friend, Cogan back to
his home and told his wife Cogan wanted to have sexual intercourse with
her, and that he was going to he was going to see that she did. Mrs
Leak was not willing to have intercourse with his friend, but was
frightened. The defendant removed her clothes, had sexual intercourse
with her, and then invited Cogan to do the same, which he did.
The defendant was charged with being a principal in the 2nd degree,
and Cogan was charged with rape, however his conviction was quashed.
The defendant’s appeal was dismissed as it was held that he procured and persuaded Cogan to commit the offence.
“......the
act of sexual intercourse without the wife’s consent was the actus
reus: it had been procured by Leak who had the appropriate mens rea,
namely his intention that Cogan should have sexual intercourse with her
without her consent.......Leak was using him [Cogan] to procure a
criminal purpose.”
Another question brought was whether Leak’s conviction for aiding and
abetting was vitiated as a result of Cogan’s appeal being allowed.
In answering this ‘R v Humpreys’ [1965] was referred to:
“It
would be anomalous if a person who admitted to a substantial part in
the perpetration of a misdemeanour as aider and abettor could not be
convicted on his own admission merely because the person alleged to
have been aided and abetted was not or could not be convicted.”
Note: In this case the court was able to reach the clearly desirable
result by an application of the doctrine of innocent agency as it
treated the defendant as the principal in the first degree.
Withdrawl
D may escape if he terminated his involvement if he;
- terminated his involvement
- took all reasonable steps to prevent the commission of the crime
- must neutralise his impact on the crime.
- Timely - not too late to stop the proceeded events White v Ridley (1978)
White v Ridley (1978) - The defendant attempted to import Cannabis into
Australia, however when he arrived in Australia he sent a telex to
Singapore to stop the consignment - however this was done too late.
-
The defendant was convicted, but was granted special leave from the
High Court. Gibbs J stated: “It seems entirely reasonable to insist
that a person who has counselled or procured another to commit a crime,
or who has conspired with others to commit a crime, should accompany
his countermand or withdrawal with such action as he can reasonably
take to undo the effect of his previous encouragement or participation.”
R
v Rook [1993] - The defendant agreed with the 3 accused to murder one
of the accused wife in return for the payment of £20, 000. However the
accused did not turn up on the day of the killing, and the killing was
carried out by 2 of the accused. The defendant claimed that he never
intended to kill the woman, however was just hoping to get some money
“up front”, and deliberately absented himself on the day.
The defendant was charged murder and appealed unsuccessfully.
On
appeal it was held that where a person has embarked on a criminal
enterprise, in order to save himself from liability: “more than mere
inactivity is required to destroy the criminal liability which flows
from the earlier acts, in this case of encouragement or advice...”
It
was also held that where practicable or reasonable, there must be a
“timely communication” of the intention to abandon the common purpose
by those who wish to disassociate themselves from the contemplated
crime.
“He must break the chain of causation between his act of assistance and the subsequent crime.”
Defences Available to Accessories
Standard defences - A defendant can rely on standard defences such as intoxication, self-defence and provocation.
Duress
- It is unclear whether a defendant can rely on duress as a defence in
cases where the defendant has not committed murder.
In ‘Howe’ (1987)
the House of Lords held that duress was not available as a defence to a
charge of murder for principals in the first or second degree. This
was also decided in Victoria in ‘Harding’ (1976)
However in
‘McConnell’ (1977), the NSW Supreme Court held that duress was
available as a defence to a principal offender in the second degree.
It is unclear whether the decision in ‘Howe’(1987) will have any effect
in Australia.
Accessories After the Fact
This
offence requires that the defendant preform an act after the commission
of a felony which assists the felon to escape justice.
Accessories after the fact are generally subject to lower penalties than principals or accessories before the fact.
In NSW, this offence can only be committed in relation to a FELONY.
Actus Reus
Act
to help the felon - There must be act by the defendant that helps the
felon to escape justice. This requirement is broadly applied, and can
include any act. For example, it can include harbouring the felon, or
disposal or alteration of evidence.
In ‘Tevendale’ (1955) where the defendant altered the engine number of
a stolen car and painted it so it was unrecognisable - this was held as
assistance.
Effectiveness of help - There is NO requirement that
the attempt to help the felon be effective. The actus reus of the
offence will be satisfied if the defendant’s act has the potential to
help the felon evade justice.
Omissions - Generally an omission
to act is insufficient. However this may give rise to other offences
such as concealing a serious offence (s316 Crimes Act 1900 (NSW)) or
impeding the investigation of and offence (s326 Crimes Act 1900 (NSW)).
Enjoyment of proceeds - Merely enjoying the proceeds of another’s crime is NOT sufficient.
R v Barlow (1962) The defendant was charged with being an accessory
after the fact to the larceny of a motor car by B. The defendant
accepted a lift in the car although he realised it was stolen.
It was held that mere enjoyment of the use of the proceeds of a crime,
with knowledge of the crime at the time of the subsequent use, does not
of itself render one an accessory after the fact in the original crime.
The added ingredient of acting for the purpose of assisting the
principal offender escape conviction is necessary.
Mens Rea
Knowledge
- There must be knowledge that a felony has been committed, however it
is unclear how precise this knowledge has to be [Tevendale (1955)]
- In ‘Tevendale’ (1955) it was held that the defendant must know the precise felony which has been committed,
R
v Stone [1981] - The defendant drove his friend to a town where he was
more likely to hitch a ride in the belief that his friend had murdered
his ex-wife and her lover. However the principal only wounded the lover
- It was held that the defendant:
1. Could not be found guilty of being an accessory to the wounding of the lover because his knowledge was too imprecise
2.
Could be an accessory after the fact to the killing of the wife. The
defendant could have assumed that the principal had voluntarily shot
and killed his wife and that he had done this with necessary intent.
Therefore he had the necessary knowledge that the principal had
committed unlawful homicide.
It was also held that where the defendant believed the felon has
committed murder, but the felon is later charged with manslaughter,
this knowledge is held to be precise enough. This is based on the
principle that the more serious crime of murder, includes the lesser
crime of manslaughter.
Intention to assist
The authorities are unclear as to whether:
The defendant need only to be aware that his or her act has the potential to assist the felon to escape justice.
The defendant must act with the intention to assist the felon to escape justice - Hurley (1967)
These
issues have been largely avoided in Australia suggesting that the
defendant’s motivation to assist the felon is NOT vital to incurring
liability.