PART XII DOCTRINES OF COMPLICITY

Transcription

1 PART XII DOCTRINES OF COMPLICITY I Intrductin A Paradigms f Cmplicit Criminal Respnsibility The varius dctrines f cmplicity specify methds by which criminal liability may be extended t individuals cncerned with r invlved in the participatin f the cmmissin f crimes. It enables criminal liability t attach t persns whse actins and thughts wuld nt nrmally satisfy the physical and mental cmpnents f the ffence charged. Each methd f attaching cmplicit liability caters fr a different way in which parties can participate in the cmmissin f an ffence: Participants wh undertake a jint criminal enterprise t cmmit a crime tgether may be said t be acting in cncert r have a cmmn purpse t cmmit ffences within the scpe f their enterprise A party wh emplys anther nn-respnsible persn t carry ut their criminal intent may be said t have used an inncent agent t cmmit the ffence Thse wh encurage r assist the principal ffender may have aided, abetted, cunselled, r prcured the cmmissin f the ffence Thse wh cnceal r assist a knwn criminal t prevent their lawful arrest fr a crime knwn t be cmmitted may be accessries t its cmmissin B Direct and Derivative Liability Depending n the extent and nature f the accused s invlvement with the principal ffence, their liability may be direct (as a principal ffender) r derivative (as a secndary ffender): Participants wh act in cncert r have a cmmn purpse may each be treated as principal ffenders (direct liability) Parties emplying inncent agents may likewise be principals t the crime whse actus reus the agent executes (direct liability) Abettrs liability depends n the cmmissin f the actus reus f the principal ffence (derivative liability) Criminal liability attaches t the actins f abettrs and accessries under separate statutry ffences in the Crimes Act 1958 (Vic) ss Nte that there is ften significant verlap between the factual situatins in which the varius methds f attaching liability will be applicable. Fr example, tw jint principals t an ffence may als be said t have been acting in cncert t cmmit the ffence jintly. Page 1 f 36

2 C Rle and Structure f Cmplicity Cmplicity is nt a substantive crime. Rather, its dctrines prvide alternative methds fr attributing criminal respnsibility where several ptential defendants acted tgether with the effect f causing prhibited cnsequences. Typically, cmplicity will be applied in rder t find parties liable fr pre-existing ffences (such as murder and theft) where they wuld nt nrmally have been fund t satisfy bth actus reus and mens rea. The individual accused will nrmally still be required t pssess the mens rea prhibited by the ffence, but the actus reus may have been carried ut by anther party. Individual criminal liability is thus cnstructed by reference t the actins and mentalities f thers in the grup. Cnfusingly, the cmmn law vernacular f cmplicit liability is still widely emplyed by judges alngside its statutry cunterpart. A brief explanatin fllws: At cmmn law, there used t be three classes f ffences: treasns (mst serius), felnies (relatively serius), and misdemeanurs (relatively minr) Each emplyed different terminlgy in relatin t principal and secndary ffenders Felnies: Principal in the first degree (a persn wh persnally perpetrates the actus reus f the crime) Principal in the secnd degree r accessry at the fact (a persn wh is present at the scene f the crime and aids and abets the cmmissin f the felny) Accessry befre the fact r principal in the third degree (a persn wh has, thugh absent at the time f the ffence, previusly cunselled r prcured its cmmissin) Accessry after the fact (a persn wh is absent at the time f the ffence but assists the principal ffenders ex pst fact) Misdemeanurs: All parties were termed principals Cmplicity has an imprtant rle t play in criminal prceedings because criminal enterprises will frequently be undertaken jintly. As Ashwrth ntes: The questin f cmplicity arises when tw r mre peple play sme part in the cmmissin f an ffence... There are, f curse, different degrees f invlvement in a criminal enterprise, and ne f the main issues in the law f cmplicity is the prper scpe f criminal liability: hw much invlvement shuld be necessary, as a minimum? 1 Ashwrth suggests that cperative criminality shuld be taken mre seriusly than individual criminal respnsibility: Jint criminal enterprise is mre culpable Individuals maintain respnsibility fr acts cmmitted fr and by the grup T act in supprt f a grup is t cndne the acts cmmitted by thers An individual shuld nt get carried away by the dynamics f a large grup; they ught t maintain scial and mral independence Grup criminal activity pses a larger threat t victims and sciety Rather than a single perpetratr, the victim faces a number f them, acting tgether Greater threat als t the public peace, and the state 1 Andrew Ashwrth, Principles f Criminal Law (2 nd ed 1996) 409. Page 2 f 36

3 The dctrine f cmplicity allws criminal respnsibility t extend beynd thse wh engage in criminal cnduct t thse wh assist in r encurage the cmmissin f crime. The primary issues with which its dctrines are cncerned are the extent t which criminal liability will be widened and what, if any, are the relevant criteria fr assessing the relative culpability f individuals prviding differing degrees f assistance with r invlvement in the principal crime. II Liability as Principal A Individual Offender Where there is an individual sle principal ( principal in the first degree ), that persn will be guilty f the relevant crime if they satisfy its actus reus by causing the prhibited cnsequence while pssessing the prhibited mens rea. The liability f a principal party is primary rather than derivative and direct rather than ancillary (see McHugh in Osland). This means that they can be fund guilty independent f the result in respect f any ther party. Individual ffenders represent the lcalised fcus f criminal law. Laws f cmplicity are designed t apply in situatins where the accused cannt easily be brught within the legal definitin f the principal crime. They extent liability beynd an individual ffender t the ther categries f primary and secndary liability cnsidered belw. B Jint Perpetratrs Jin perpetratrs are said t have cmmitted the crime where it is the cumulative effect f their actins that cause the prhibited cnsequence. Where multiple accused act jintly, it is unnecessary fr the prsecutin t prve that an individual ffender caused the prhibited utcme (eg, that the blws f D1 killed V beynd reasnable dubt, etc), and bth ffenders are treated as principals in the first degree. They will be guilty if they each have dne the actus reus and pssessed the mens rea f the principal crime. Fr example, where ne r mre defendants attack a victim, wh dies frm the cmbined effect f their stab wunds, thse defendants have acted jintly. This being the case, each defendant is treated as a principal in the first degree, and it is unnecessary t prve that each defendant s blws alne wuld have caused the victim s death. Assuming the victim dies frm the cumulative effect f their actins (ie, that the blws f ne accused wuld nt by itself have been sufficient), and that the accused each pssess the relevant mens rea, bth will be liable fr murder. Imprtant pints: It must be the cumulative effect f the blws that causes the death It des nt matter that the individual cntributin f the c-accused wuld nt n its wn have been sufficient t cause the prhibited cnsequence N precnceived plan is necessary; ne D can start and the thers jin in. If ne f the parties is the substantial cause f death, then they will nt be jint perpetratrs At cmmn law, the cause f death is the principal in the first degree (and the ther is a principal in the secnd degree: Mhan) Page 3 f 36

4 Under Victrian legislatin, the cause f death is the principal and the ther is an abettr C Acting in Cncert The accused can be guilty f the principal ffence even if he did nt participate in the killing as a jint perpetratr (ie, did nt cumulatively perfrm the actus reus). Where the accused acts in cncert with anther, the actins f the ther are attributed t each party t the cmmn enterprise. It des nt matter which defendant perfrmed the actus reus; they will all be guilty f the principal ffence if they agree t perfrm it, and ne f them des. Where, fr example, D1 kills V pursuant t a plan with D2, and D2 is present at the scene f the crime, D2 is als a principal even if he des nthing while being present. The dctrine was riginally set ut in Lwery & King (N 2) [1972] VR 560: if 2 r mre peple reach an understanding r arrangement that tgether they will cmmit a crime and then, while that understanding r arrangement is still n ft and has nt been called ff, they are bth present at the scene f the crime and ne r ther f them des, r they d between them, in accrdance with their understanding r agreement, all the things that are necessary t cnstitute the crime, they are all equally guilty f that crime regardless f what part each played in its cmmissin (per Smith J). This frmulatin has been subsequently apprved by the High Curt f Australia in Osland: The crrect statement is that they are all equally liable fr the acts that cnstitute the crime if the acts are perfrmed in the presence f all and pursuant t the agreed plan (per McHugh J). 1 Understanding r arrangement Imprtantly, there must be an agreement between the parties t cmmit the relevant crime: The agreement need nt be express (it can be inferred frm the circumstances) The agreement need nt have been reached befre the time the crime is cmmitted The circumstances may themselves establish an unspken understanding r agreement The agreement must be criminal (Jhns, but cf Miller) The agreement must be in peratin at the time the crime is cmmitted. The accused must be actually r cnstructively present at the scene (Jhns). 2 Effect f acting in cncert The effect f the acting in cncert dctrine is as fllws: A persn may be fund guilty f a crime even if they did nt cmmit any f the acts that caused the death The persn wh cmmitted the acts may be fund guilty f a lesser ffence if they can raise a defence All acts tgether cmmitted are attributed t every participant Hwever, mens rea is determined individually Page 4 f 36

5 The acquittal f the party wh did perfrm the actus reus is nt incnsistent with a guilty verdict fr the ther parties t the agreement (Osland v R) Osland v R (1998) HCA: Facts: Osland and her sn, David, are charged with the murder f Osland s abusive husband, Frank David had been the ne t strike the fatal blw; the trial had been run n this basis The jury finds Osland guilty f murder The jury is unable t reach a verdict in respect f her sn David is acquitted n a retrial Osland appeals t the High Curt f Australia n the basis that her guilty verdict is incnsistent with the acquittal f her sn Issue: Is Heather Osland s cnvictin at trial cnsistent with the acquittal f her sn, David, n his retrial? What is the basis f criminal respnsibility when it is said that the tw parties were acting in cncert? Reasning: Gaudrn and Gummw JJ: Causatin Osland s acts did nt substantially cntribute t Vs death Kirby and Callinan JJ held that they did Osland cannt be guilty n the basis f her wn cntributin (as a matter f causatin) Hwever, the case was nt put n that basis Inncent agency Osland is nt guilty n the basis that David Albin was her inncent agent Secndary liability Osland is nt guilty as abetting David Albin under s 323 She nly put the drug in the cffee Osland put sedatives in V s cffee t quieten him dwn, nt t make it easier t kill him But cf Callinan J: the drug was put in V s curry, nt cffee! [She did hld V dwn while Albin hit him, thugh] Osland s cnvictin can nly be upheld n the basis left t the jury That is, that V was killed pursuant t an understanding between Osland and Albin that they wuld kill V Why was Albin nt cnvicted? The case fr prvcatin r self-defence was strnger fr Albin The jury was hung in respect f Albin s cnvictin Prvcatin excludes killing being pursuant t an understanding between the killer and anther party This means that, a frtiri, self-defence excludes the killing being likewise pursuant t such an understanding [Nte that, as McHugh J des: the understanding t kill V culd have been entered int by Osland and Albin fr reasns f selfdefence] Page 5 f 36

6 The failure t realise that self-defence must exclude killing being pursuant t an understanding between Osland and Albin is a flaw in reasning which requires that Osland s cnvictin be set aside With prvcatin and self-defence nt negatived, it cannt be determined that Albin was acting pursuant t an understanding r arrangement with his mther that they wuld tgether kill V This is a flaw in the jury s reasning which requires that Osland s cnvictin be set aside McHugh J: Referring t the judgment f Gaudrn and Gummw JJ: They refer t the principle f causatin, hlding that there isn t a causal link between the understanding and arrangement between Osland and Albin t kill V and the actual killing f V Hwever, the causatin principle has n applicatin here [Presumably, when acting in cncert, the acts Albin are attributed t Osland; as Albin caused V s death, s t, did Osland] Was there a flaw in reasning by the jury? The jury was never asked t apply the causatin principle t which Gaudrn and Gummw JJ referred (ie, that prvcatin and self-defence negative acting in cncert) There is n need fr there t be a causal cnnectin between Osland and Albin s understanding r arrangement t kill V and Albin s actual carrying ut f that arrangement The understanding, when cupled with Osland s presence, is sufficient Kirby J: The jury was thus entitled t treat them as jint perpetratrs The case was cnducted frm beginning t end n the basis f acting jintly and in cncert and that bth accused were respnsible fr each ther s acts The argument f Gaudrn and Gummw JJ that Osland did nt substantially cntribute t Vs death bears an air f unreality At n pint did Osland make any suggestin disputing her active cntributin t the acts causing the deceased s death They said that there was nly ne grund n which t cnvict left t the jury (acting in cncert) that the nly basis n which the jury culd find Osland guilty was n the basis f acting in cncert Hwever, Kirby J refers t ther grund (as des McHugh J) Callinan J: This is a case f actual participatin in all phases f the crime Osland s cnvictin can be upheld withut cnsidering cmplicity at all n the basis f a test f sufficient significant cntributin (per Brennan J in Ryall) Decisin: (3:2) Appeal dismissed 3 Impact f insanity Issue: can there be a jint criminal enterprise when ne party t the agreement is insane? If the insanity prevented a cmmn agreement frm arising, then the dctrine f acting in cncert des nt apply. Hwever, if a cmmn agreement r understanding was made, and the crime Page 6 f 36

7 tk place pursuant t that agreement, then all parties will be liable fr the crime cmmitted even if the party that carried ut the actus reus is acquitted n the basis f insanity. Matusevitch v R (1977) HCA: Facts: Matusevitch ( M ) and Thmpsn are the nly nes in a hspital ward, when Thmpsn takes an axe t W, killing him Thmpsn is nt guilty because insane M is cnvicted f murder M appeals n a number f grunds Issue: Is it pssible t act in cncert with an insane persn? Reasning: Gibbs ACJ (with whm Stephen J agreed): Cnsider three ptins Cmmn enterprise (acting in cncert) Inncent agency Aiding and abetting Aiken J (with whm Masn, Stephen and Murphy JJ agreed): Cnsider the nature f the insanity Decisin: Whether an agreement arises depends upn the nature f the insanity The relevant test is whether the parties are able t frm an agreement t act in cncert If they can frm an agreement t act in cncert, insanity will nt prevent the dctrine frm perating nrmally This means that all defendants can be liable fr the cnduct f parties t the agreement cmmitting crimes in its furtherance, even if such parties are eventually acquitted n the basis f insanity A retrial is granted because f imprperly admitted evidence 4 Further examples Anther example f the applicatin f acting in cncert in relatin t hmicide is prvided by the facts f Siringui Biagwei. There, the victim was hit by 8 spears, fur f which were thrwn by D1, and fur f which were thrwn by D2. Medical evidence establishes that the impact f ne spear alne wuld be fatal t the victim (ie, V did nt die frm the cumulative impact f the 8 spears cmbined; therefre, D1 and D2 are nt jint perpetratrs ne f them is the significant cause f V s death). Hwever, under the acting in cncert dctrine, because bth defendants are acting in cncert and bth are present at the crime, it des nt matter which threw the fatal spear. (Otherwise, the prblem wuld be that it can neither be prved beynd reasnable dubt that D1 threw the fatal spear nr that D2 threw the fatal spear, s they wuld bth escape cnvictin.) Because bth acts are clearly in furtherance f the plan, t which bth defendants cntributed, liability under the acting in cncert dctrine is established. Page 7 f 36

8 5 Summary When tw r mre peple agree t cmmit a crime and, in pursuit f that agreement, the crime is cmmitted by ne f the parties t the agreement, then all parties t the agreement are equally guilty f the crime actually cmmitted. D2 can be guilty f the principal crime if: D1 cmmits the actus reus D1 need nt be cnvicted f the principal crime (Osland) D1 need nt be sane r pssess the mens rea [???] (Matusevitch) D2 is present pursuant t a plan t cmmit the principal crime The plan need nt be express r prir; it can be inferred (Lwery & King) What D2 des is ineffective Either he des nthing mre than be present (ie, stands and watches); r His part f the attack is ineffective (ie, des nt cause the actus reus) (Siringui Biagwei) D Cmmn Purpse The dctrine f cmmn purpse applies when ne party t a jint criminal enterprise cmmits a crime that ges beynd the riginal agreement. It thus prvides a methd fr determining whether thers can be held liable fr the further crime, enlarging the scpe f criminal respnsibility t include ther parties t the agreement. The cmmn purpse dctrine culd be treated as an extensin f the acting in cncert dctrine. Hwever, it als expands abettr liability by prviding a different way fr impsing criminal liability upn an abettr in respect f the substantive crime he abetted. Whereas abettr liability is fcused n what the accused did r caused in respect f the cmmissin f the principal ffence, the dctrine f cmmn purpse lks t what the accused agreed t d with thers. Nte that under the Crimes Act 1958 (Vic) s 323, it is nt necessary that an accused be indicted with the principal crime t be fund guilty f cmmn purpse. He can be indicted as an abettr and subsequently be held t have been acting pursuant t an agreement with the principal (and thus charged with the primary ffence; cf Jhns). 1 Elements f the dctrine f cmmn purpse Nt all situatins f participatin in crime will invlve individuals acting in cncert. Participants are nly said t be acting with a cmmn purpse when the fllwing elements are present: Agreement Participants reach an agreement (r understanding r arrangement ) that criminal acts will be cmmitted by ne r mre f the parties Offence While the agreement is in effect, a crime is cmmitted by ne r mre f the parties t it Page 8 f 36

9 Scpe The crime cmmitted falls within the scpe f the agreement (the cmmn purpse f the grup) The main feature f the dctrine f cmmn purpse is that all parties t a criminal agreement are deemed equally liable fr the criminal acts f the ther parties within its scpe (as in the case f the acting in cncert dctrine f cmplicity). The questin, then, becmes ne f scpe. Mre relevantly, it is necessary t ask whether the additinal crime is within the scpe f carrying ut the cmmn purpse between D1 and D2. 2 Jint criminal enterprise Issue: des the jint enterprise (cmmn purpse) need t be a jint criminal enterprise? [???] Miller v R (1980) HCA: Facts: The accused is a clse friend f ne Wrrell On many ccasins, Miller wuld drive arund with Wrrell t pick up girls Miller wuld then drive Wrrell and the girl t an islated spt and wuld leave the car whilst Wrrell has sexual intercurse with the girl On ne ccasin, Miller returns t the car t find that Wrrell had strangled the girl, killing her Miller cntinues in their activities as befre On mst ccasins, Wrrell des nt harm the girls whm he picks up Hwever, n six further ccasins, Wrrell murders the girls in questin Miller is charged with seven cunts f murder n the basis f being an actr in cmmn purpse with Wrrell Miller is fund guilty f six ut f the seven murders In a karmic quirk f fate, Wrrell is killed in a car accident and never stands trial The case against Miller is put in tw ways: (1) Miller was acting in cncert with Wrrell; r alternatively (2) Miller aided and abetted Wrrell t cmmit the murders There is n bjectin t the trial judge s directin cncerning (2) The bjectin in relatin t (1) is that acting in cncert r cmmn purpse shuld nt have been put t the jury because Miller and Wrrell were acting in cncert t d smething perfectly legal (ie, t pick up girls ) This is nt a case f liability fr a further crime (eg, murder additinal t rbbery) in the curse f carrying ut the planned crime unlike Jhns Even if the dctrine is used, a test f prbability (nt pssibility) shuld be used, because this is the mens rea fr the principal crime (murder) Issues: Is this a case f cmmn purpse? If s, given that escrting wmen fr cnsensual sex is nt illegal, what is the jint criminal enterprise? Wuld impsing direct liability n Miller be cnsistent with the ratinale expressed in Jhns? Page 9 f 36

10 Reasning: Trial judge s directin: If Miller and Wrrell were acting in cncert t pick up girls, and Miller had driven Wrrell t the place f the murder, and it was within Miller s cntemplatin that the particular girl might be murdered, then the jury shuld find him guilty f murder Gibbs, Stephen, Masn, Murphy and Aickin JJ: The bjectin was that, as here, the cmmn design was nt unlawful Hwever, after the first murder, there was a meeting f the minds, and M knew f the pssibility that the girl might be murdered The cmmn purpse must nrmally be intentin t cmmit a crime (as in Jhns) Hwever, there are situatins nt cvered by the general principle Here, the agreement is transfrmed int a criminal ne after the first murder The agreement is t pssibly cmmit a crime (nt intentinally) [Effectively, the curt deals with these facts by applying the dctrine f cmmn purpse in the absence f a criminal enterprise] The jury apparently held that the scpe f the cmmn purpse altered after the first murder this explains why the jury acquitted Miller f the first murder Befre then, Miller was nt aware f what Wrrell might d, but after it he certainly was It is nt necessary that an accmplice fresees that it is prbable that the victim wuld be killed n the ccasin in questin It was significant that Wrrell's murderus mds were thrughly unpredictable On n single ccasin culd Miller believe a killing was prbable But n every ccasin it culd be predicted that there was a substantial risk (ie, a pssibility) f Wrrell killing the girl If Miller has fresight f the pssibility f the additin crime, then what was the nature f their riginal agreement? The agreement des nt need t be express, and may be inferred frm the circumstances It was pen t the jury t cnclude that, after the first murder, the scpe f the cmmn purpse altered t extend t the pssibility that the girl may be murdered (this being criminal) This explains why the jury acquitted n the first f seven murders Befre this time, Miller was nt aware f what Wrrell might d and the cmmn purpse was nt criminal Hwever, after it, Miller certainly was aware Decisin: The cnvictin is upheld Unanimus verdict: the cmmn purpse dctrine is applicable after the first murder Arguably, this is cnsistent with Jhns, as the cmmn purpse has becme criminal nly after the first murder, frm which pint liability attaches t Miller fr Wrrell s cnduct under the cmmn purpse dctrine (the cmmn purpse was nw t pick up girls with the pssibility f murdering them and dispsing f their bdies) The Curt in Miller appears t skip the jint criminal enterprise requirement, mving straight t the test f freseeability f a pssibility. That test being clearly satisfied n the facts, n issue is made as t its actual applicability. This apprach suggests that the nature f the riginal enterprise is nt as imprtant as the freseeability f the additinal crime. Page 10 f 36

11 Issue: d the parties acting in cncert need t be present at the scene f the crime? Presence must be either actual (within sight and sund), r cnstructive (althugh nt within sight and sund, sufficiently near t be able t render assistance). Three examples f cnstructive presence fllw: A keeps watch while B burgles (A is cnstructively present) Waller and Williams: C, a decy, attracts the victim f a burglary 30 miles away frm his huse while D engages in the burglary (C is cnstructively present) Street CJ: the driver f a getaway car wh drives arund the blck while the rbbery takes place and befre picking up the rbbers is cnstructively present at the rbbery Hwever, if the driver just drps ff the rbbers and then leaves, he is nt present and is nly an accessry befre the fact (Jhns) This indicates that presence can be quite bradly cnstrued; hwever, it is unlikely that an absent accused culd be cnsidered t have been acting jintly (thugh aiding and abetting may succeed). 3 Mental state f participants The mental standard required f an accused alleged t have acted with cmmn purpse f anther is fresight f the pssibility that the further ffence wuld be cmmitted as a cnsequence f the cmmn purpse (Jhns v R per Stephen J). A pssibility is a substantial risk an act cntemplated as a pssible incident f the riginally planned venture. Jhns v R (1980) HCA: Facts: Jhns, Ddge and Watsn plan an armed rbbery f Mrris (a well-knwn receiver f stlen prperty) Jhns drives Watsn t his meeting with Ddge, which is quite sme distance frm the scene f the shting Jhns waits whilst they cmmit the rbbery; it was envisaged that he wuld cnceal the prceeds In fact, Mrris is sht and killed by Watsn, with Ddge present Jhns is charged as an accessry befre the fact Ddge is indicted as a principal in the secnd degree Watsn is sht dead, but wuld have been a principal in the first degree Issue: Is the dctrine f cmmn purpse applicable t accmplices befre the fact? Reasning: Street CJ (trial judge, NSW): Test: was the party aware f the cntingency r pssibility f the further crime? The same standard is t be applied fr accessries at and befre the fact f the crime Murphy, Masn, Wilsn JJ: [T]he questin fr the jury in cases f cmmn purpse is whether the [additinal] crime cmmitted in furtherance f the criminal plan was jintly Page 11 f 36

12 cntemplated as a pssibility The accused was charged as accessry befre the fact t murder. The trial judge directed the jury that an accessry may be held liable fr acts perfrmed by the principal ffender if thse acts, whilst differing frm what was directly and specifically intended by the accessry, were within the cntemplatin f the parties as acts which might be dne in the curse f carrying ut their primary criminal intentin' Drawing a distinctin between accessries befre and at the fact is arbitrary and unnecessary Fr example, the driver f a getaway car is a principal in the secnd degree because he is cnstructively present, but the driver wh merely drps the perpetratrs ff utside the bank and drives ff is an accessry befre the fact T require prbability in relatin t the latter and nt the frmer is smewhat artificial Stephen J: Tw claims were made by Jhns cunsel: First: that there are different standards f liability fr accessries befre the fact and accessries at the fact Secnd: that the test fr the frmer is ne f prbability, nt pssibility Rejects bth claims, hlding that the pssibility test applies equally t accessries befre the fact and principals in the secnd degree [The cmmn purpse dctrine requires] fresight f the pssibility that the further ffence wuld be cmmitted as a cnsequence f the cmmn purpse The standard f pssibility is defined as a substantial risk Is the dctrine f cmmn purpse applicable in the case f an accessry befre the fact? The test f liability des nt depend n the physical presence f the persn at the scene f the crime but rather, where apprpriate, his r her participatin in the fulfilment f the cmmn purpse The questin is ne f cmplicity in the cmmissin f the ffence rather than ne f whether he was present thrughut the entire time when the injuries were inflicted Are the participants in a cmmn design nly respnsible fr the prbable, as distinct frm the pssible, cnsequences f executin f the cmmn purpse? N [T]hat an accessry befre the fact bears a criminal liability fr an act which was within the cntemplatin f bth himself and the principal in the first degree as an act which might be dne in the curse f carrying ut the primary criminal intentin an act cntemplated as a pssible incident f the riginally planned particular venture Decisin: The High Curt f Australia unanimusly dismiss the appeal Fresight f a pssibility is required The Jhns test is cnfirmed in McAuliffe & McAuliffe. What is required fr liability under the cmmn purpse dctrine is that at least ne f the parties has fresight f the further crime as a pssible incident f the jint enterprise. Page 12 f 36

13 McAuliffe & McAuliffe v R (1995) HCA: Facts: The appellants, Sean and David McAuliffe, are brthers, aged 17 and 16, respectively They appeal against cnvictins fr murder, cmmitted as part f a cmmn purpse f three individuals t rll, rb r bash smene Davis, a friend f the McAuliffes, pleaded guilty t the murder f the deceased On the evening f Friday, 20 July 1990, the three had cnsumed a large amunt f alchl, and smked sme marijuana They decided t g t a park near Bndi Beach fr a purpse which was variusly described as being t rll r rb r bash smene Sean armed himself with a hammer, and David with a batn r stick Sean was aware that David had the stick, and s was David The three find tw men, the deceased and Sullivan, near a lkut at the tp f a cliff The three set upn them, severely injuring Sullivan (wh reprts the incident t plice) The deceased's bdy is fund at the bttm f the cliff The deceased died frm drwning, but had already sustained severe injuries caused by the three yuths Sean McAuliffe is als cnvicted f rbbing, striking and wunding him David McAuliffe is als cnvicted f maliciusly wunding Sullivan with intent t d grievus bdily harm The NSW Curt f Criminal Appeal dismisses their appeals against cnvictin The appellants submitted that they pssessed n intentin t cause grievus bdily harm Davis cnfesses t murder, s des nt stand trial Issue: Is the trial judge s directin n the pint f David and Sean McAuliffe s cmplicit liability fr Davis actins crrect? Reasning: Trial judge s directin: Did each brther either share the cmmn intentin f inflicting grievus bdily harm [acting in cncert] r cntemplate that the intentinal inflictin grievus bdily harm was a pssible incident f the jint enterprise [cmmn purpse]? The jury must be satisfied beynd reasnable dubt that either the accused in questin shared the cmmn intentin f inflicting GBH upn [the victim] r cntemplated [that] the intentinal inflictin f GBH by ne f [the three parties t the cmmn purpse] upn him was a pssible incident in the cmmn criminal enterprise On appeal, it is argued that the prsecutin needs t establish that the pssibility f cmmitting murder was within the cntemplatin f all (and nt just ne f the) parties t the cmmn purpse This argument is rejected by the High Curt f Australia Brennan, Deane, Dawsn, They and Gummw JJ: Nt all participants in the criminal purpse need t be aware f this pssibility It is sufficient t cnvict any individual D wh fresees the pssibility that crime Y may be cmmitted in the curse f carrying ut the planned crime X (applying Jhns) The subjective apprach t the cmmn purpse dctrine in Jhns is endrsed, as is the pssibility test [W]here ne party fresees, but des nt agree t, a crime ther than ne which is planned, and cntinues t participate in the venture with a cmmn criminal Page 13 f 36

14 purpse, he is als a party t that crime. In ther wrds, the criminal culpability lies in the participatin in the jint criminal enterprise with necessary fresight whether the fresight is that f an individual party r is shared by all parties (emphasis added) Decisin: The inflictin f grievus bdily harm as a pssible incident f the venture is a sufficient intentin t be guilty f the principal ffence Liability is direct: if a defendant has fresight f a further crime as a pssible incident f the jint enterprise, then he is liable regardless f the fresight f the ther parties The directin f the trial judge is sund McAuliffe cnfirms that fresight f the additinal crime s pssibility is an individual assessment. Such cntemplatin des nt need t be shared by all participants nly the accused. Prblems in respect f the mental state f participants typically arise in tw circumstances: either the plan is nt a criminal plan (see, eg, Miller), r the crime cmmitted (and with which the accused is nw charged) is different t the crime planned (see, eg, Jhns and McAuliffe). Actual fresight f the pssibility that the crime charged will be cmmitted as part f the criminal venture is sufficient t establish the mens rea required by the dctrine f cmmn purpse (Jhns). Fresight must be the actual fresight f the accused (a subjective standard). It can be prven in tw ways: By evidence which explicitly r inferentially establishes a cmmn purpse t cmmit the crime charged Jhns methd (as interpreted by the High Curt in McAuliffe) In Miller, a new extended purpse arse and the last 6 murders were within the scpe f this new extended purpse By evidence which explicitly r inferentially establishes the individual purpse f the accused Irrelevant whether the accused agrees with the jint criminal venture's purpse, s lng as the accused fresees the pssibility f the crime charged being cmmitted as part f the jint criminal venture and nevertheless cntinues t participate in it McAuliffe methd In sme factual situatins, the dctrine f abettrs and the dctrine f cmmn purpse are equally applicable. Cmmn purpse prvides a lwer mental standard fr the prsecutin t prve, and may thus be a mre apprpriate starting pint in certain circumstances. Nte that the mental requirement in respect f the principal remains that f the principal ffence. Hwever, cnvictin f ther parties t the agreement nly requires fresight f the pssibility that the actus reus f the further crime wuld be cmmitted. Further, liability f participants is direct (and nt derivative), s accmplices can be cnvicted ntwithstanding acquittal f the principal. 4 Example f the dctrine s applicatin Suppse that D1 and D2 decide t rb V. They act in cncert t rb V. It is their cmmn purpse t rb V (terminlgy is interchangeable). Hwever, D1 des nt just rb V; in fact, D1 kills V with the relevant mens rea. Here we are cncerned with the questin f whether D2 can Page 14 f 36

15 be held liable fr D1 s crime additinal t that agreed. Insfar as D1 killed V, and did nt just rb him, D1 was ff n a frlic f his wn. Hwever, Jhns suggests that D2 will be criminally respnsible fr the death f V under the cmmn purpse dctrine if D2 fresaw the pssibility that D1 might kill V. This being the case, the death f V is said t be falling within the scpe f the cmmn purpse. Thus, if D2 had knwledge that D1 pssessed a gun, had an intentin t use it, was knwn t have a prblem with self-cntrl when cmmitting crimes, and was angry at V fr invlvement with an ex-partner, it wuld seem clear that the killing f V is a pssible cnsequence f the rbbery and thus within its scpe. D2 wuld, in such a case, be guilty f the murder f V under the cmmn purpse dctrine. 5 Refrm prpsals Lanham: fr Jhns t hld that an additinal crime is within the scpe f the cmmn purpse if the accused fresees its cmmissin as pssible is a legal fictin. The prblem f scpe nly arises because there is n cmmn purpse t cmmit the additinal crime. The cmmn purpse dctrine shuld be abandned and a test f recklessness used instead. Fisse and Hward als suggest abandning the dctrine f cmmn purpse, which they view as a pintless cmplicatin t mens rea. Jhns shuld have been decided n the basis that Jhns was reckless in taking an unjustified risk he fresaw as substantial. Thus, by assisting the principal ffenders t cmmit the rbbery, Jhns fresaw the pssibility that the principals might kill r seriusly injure smene. David Wd: the distinctins seem fine. There is prbably still a rle fr the dctrine f cmmn purpse in distinguishing the agreed frm the additinal crime. Bth mdels ultimately require subjective fresight f the pssibility f the further crime. E Inncent Agency Where the actus reus is cmmitted by McHugh J in Osland calls a nn-respnsible agent (smene nt guilty f the ffence), it will be necessary t treat the party wh causes the inncent agent t act as a principal ffender. Fr this t be dne, tw things must be established: The inncent agent must have cmmitted the actus reus f the ffence; and The behaviur f the inncent agent must be such that, if dne by the accused, he wuld be guilty f the principal ffence (ie, the accused must have the necessary mens rea). If these tw elements are established, then the behaviur f the inncent agent is attributed t the accused and, tgether with the accused's mens rea, such attributin will make the accused guilty as a principal party f the principal crime. Inncent agency arises in situatins like the fllwing: a pstman unknwingly delivers a letter bmb. The pstman is certainly nt liable, but instead treated as the inncent agent f the persn wh sent the letter. As anther example, cnsider the facts f White v Ridley: there, the airline was the inncent agent which imprted the prhibited drugs. Further, cnsider the example f Matusevitch, where the accused uses an insane persn t cmmit murder. Inncent agency shuld be used if it appears that n principal ffender exists, but anther party has the relevant mens rea. Page 15 f 36

16 R v Cgan & Leak (1976) UK: Facts: Leak invites Cgan t his hme, telling him that Leak s wife is willing t have sexual intercurse with him This is actually untrue; Leak frces his wife (wh did nt resist but sbbed and cried thrughut) t have sex with Cgan Cgan is charged with rape and Leak is charged as an accessry. Cgan's appeal is allwed (fllwing the recent decisin in Mrgan) because he believed in the wife s cnsent (albeit unreasnably) Leak is nt charged as principal perpetratr (thugh nt because the dctrine f intraspusal immunity still applied it didn t extend t inducing third parties t have nncnsensual intercurse with the wife); hwever, he is charged as a secndary (abettr) Issue: Can Leak be cnvicted fr aiding and abetting the rape ntwithstanding Cgan s acquittal? Reasning: It is clear that Mrs Leak had been raped, even thugh Cgan was nt guilty f rape Mr Leak had the mens rea f rape His intentin [was] that Cgan shuld have sexual intercurse with [Mrs Leak] withut her cnsent Cgan was thus his means r instrument f cmmitting the rape Mr Leak was unable t carry ut the crime himself (being married t the victim) Hwever, Cgan was Mr Leak s inncent agent. Leak shuld have been indicted as a principal ffender (in the first degree) Had this been dne, the case against Leak wuld have been clear and beynd argument Leak shuld nt be allwed t g free simply because he was charged with being an aider and abettr Cnvictins shuld nt be upset because f mere technicalities f pleading in an indictment Decisin: Had Mr Leak been indicted as the principal ffender he wuld definitely be guilty Mr Leak can be treated as being principal because he had used Cgan s bdy as the instrument f the rape (applying the dctrine f inncent agency) Inncent agency is thus ne f several ways t vercme the derivative nature f secndary liability r an incrrect indictment as secndary. In Cgan & Leak, leak shuld have been indicted as a principal ffender; had this been dne, he wuld surely have been guilty. Hwever, because f the prsecutrs mistaken belief that the dctrine f spusal immunity wuld prevent cnvictin as principal, he is specifically charged as an abettr. Inncent agency wuld nrmally apply t an abettr, but the case was run in this fashin because f the incrrect indictment. Nte, hwever, that under s 323, every party is nw able t be charged as a principal withut legal cmplicatin, and their actual rles wrked ut at trial. The dctrine f inncent agency in Victria is set ut in R v Hewitt, applying Cgan & Leak. Page 16 f 36

17 R v Hewitt (1977) Vic SC: Facts: Hewitt and Pwell are charged with three cunts f rape f a 15 year ld girl Pwell is aided and abetted by Hewitt; Pwell perpetrates the rape; hwever, Pwell is acquitted Hewitt rchestrated the ffence after being infrmed by Pwell that he wished t have intercurse with her Hewitt appraches the victim, telling her f Pwell s intentins; she makes it clear that she des nt want t Hewitt drives her t meet Pwell fr the purpses f cmmitting the ffence Hewitt pens the dr and pulls her ut f the car The victim has intercurse with Pwell Hewitt is subsequently cnvicted; it is argued that he used Pwell as an instrument (inncent agent) Reasning: Trial judge: Misdirects n mens rea (required belief in cnsent t be reasnable); hwever, nt relevant since Pwell nevertheless acquitted (despite the additinal requirement) Pwell must have been acquitted n the basis f mens rea, since the jury fund that the victim had been raped (actus reus) There are three pssible bases n which Hewitt culd be guilty: (1) Hewitt aided and abetted Pwell (2) Hewitt and Pwell acted in cncert t cmmit the rape (3) Pwell was Hewitt s inncent agent It can t be (1), since Pwell was acquitted f aggravated rape (and abettr s liability is derivative) It can t be (2), since Pwell s acquittal fr lacking mens rea entails that there was n agreement t cmmit the crime Therefre, it must be (3) Issue: The bjectin raised is that, because f its persnal nature, rape culd nt be cmmitted by an inncent agent r instrument Is this a case where inncent agency applies? Reasning: Winneke J: Has sme difficulty supprting the prpsitin in Cgan that smene can be cnvicted as an abettr when the principal ffender has been acquitted This runs cunter t the basic prpsitin f the cmmn law that the liability f an accessry is derivative [Hwever, in Cgan the accused was nly an abettr because he was mistakenly charged as such; the crrect indictment wuld have been as principal] Inncent agency is nt a frm f derivative liability Cgan is criticised n the basis that it is an artificial dctrine and a questinable way t attribute criminal liability The suggestin is made that sexual ffences are nly cmmittable persnally (unlikely) Page 17 f 36

18 Here, Hewitt caused the act, which was perpetrated by the agent Pwell It is nt necessary that the agent be mrally inncent There is n need that Hewitt use frce r cercin Callaway JA: Cgan held that the cnvictin culd stand ntwithstanding the frm f indictment presented [I]f the defendant intended the intercurse t take place and his cnduct s manipulated the actins f the agent r the victim it wuld have been pen t the jury t be satisfied beynd reasnable dubt that he caused her t be sexually penetrated withut her cnsent, intended the penetratin t take place and was aware that she was nt r might nt be cnsenting Hewitt thus pssesses the mens rea f rape The acts f Pwell can be attributed t Hewitt, such as t cmplete the ffence, by reasn f his manipulatin f the perpetratr Decisin: Applying Cgan and Leak, Hewitt is a cnstructive principal A subsequent applicatin fr leave t appeal t the High Curt f Australia is rejected In Osland, the High Curt f Australia distinguishes inncent agency frm acting in cncert. Osland v R (1998) HCA: Reasning: McHugh J: It is mre accurate t describe the persn wh escapes liability in an acting in cncert case where the ther persn is cnvicted as a nn-respnsible agent The dctrine f inncent agency is a distinct dctrine frm acting in cncert It applies where the persn wh des the harm-causing act is inncent in a mral sense Cf Winneke J in Hewitt The acts f the inncent persn are attributed t the defendant wh is guilty f the crime because he r she has the necessary mens rea Gaudrn and Gummw JJ: N dubt a persn may be cnvicted f murder and the persn whse acts caused the death acquitted if that secnd persn was the inncent agent r inncent instrument f the first Affirm Hewitt Hwever, reject the Cgan apprach in principle The legal institutin needs a dctrine f inncent agency t extend liability fr acts intentinally carried ut thrugh anther, mrally nn-respnsible agent. Withut it, a child belw the age f criminal respnsibility culd, fr example, be used by his master t cmmit wantn acts f theft. The master wuld g unpunished, while the child wuld be t yung t cnvict. Even if the child culd be cnvicted, it wuld seem mrally repugnant that the agent face cnvictin fr the will f their ppressr. Page 18 f 36

19 F Vicarius Liability Under the dctrine f vicarius liability, a third party can be criminally respnsible fr the acts f the principal withut persnally perpetrating the ffence. It is defined and regulated by statute, and applied nly where expressly prvided fr by the relevant legislatin. See further Girgianni. II Liability as Secndary A Secndary Liability Were the accused individual des nt perfrm r agree t perfrm the actus reus f the principal crime, he r she cannt be treated as a principal ffender. Hwever, criminal liability may still attach t the accused if he r she can be fund liable as a secndary party. At least the actus reus f the principal crime must have been cmmitted befre liability can attach t secndaries (the ffence cnditin ). That is, the legally prhibited act r cnsequence must have been perfrmed r caused. Hwever, the principal need nt be cnvicted (they may lack the prhibited mens rea, r successfully raise a defence: Osland per McHugh J). This apprach suggests that, in the law f cmplicit liability, the definitive feature f a crime is the actus reus (whereas the definitive feature f persnal liability is the mens rea). B Abettrs 1 Statutry structure Under s 323, prf f any ne f the fur activities f aiding, abetting, cunselling r prcuring will satisfy the actus reus f being an abettr. A prhibitin f these activities in respect f an indictable ffence is set ut in s 323. Sectin 323 makes it clear that, althugh the substance f the case against an accused may be that he abetted the principal ffence, he is nevertheless charged, presented and cnvicted fr the principal crime (and nt aiding and abetting that crime): s 323 Abettrs in indictable ffences triable as principal ffenders: A persn wh aids, abets, cunsels r prcures the cmmissin f an indictable ffence may be tried, indicted r presented and punished as a principal ffender. Sectin 323 is mirrred in relatin t summary ffences in s 324. This is unlike criminal liability fr attempts, which d nt extend t summary ffences under the Crimes Act 1958 (Vic). Here, nte that an accused will be liable fr all instances f the crime subsequent t the first tw ccurrences that are abetted: Page 19 f 36

20 s 324 Abettrs in summary ffences triable as principal ffenders: A persn wh aids, abets, cunsels r prcures the cmmissin f an ffence which is by this Act punishable n summary cnvictin either fr every time f its cmmissin r fr the first and secnd time nly shall be liable fr every first, secnd r subsequent ffence f aiding, abetting, cunselling r prcuring t the same punishment as a principal ffender. Liability fr secndaries (abettrs) attaches t thse wh aid, abet, cunsel r prcure the cmmissin f an ffence, but where unlike the methds fr finding direct liability abve the cllective quality f the criminal enterprise is lacking. Secndary liability is derivative; that is, the ffence cnditin must first be established befre a cnvictin fr abetting will be pssible. The effect f sectin 323 is that abettrs in indictable ffences are triable as principal ffenders. Hwever, McHugh J in Osland regards ss as mre than merely prcedural prvisins: they create a methd fr attributing secndary criminal liability, and have a substantive effect n the criminal law. The sectins distinguish liability as an abettr frm the liability f thse wh are present and acting in cncert. They have led t the creatin f a new categry f liability by way f precncert r assistance. 2 Offence cnditin Abettr liability is derivative in Victria, but is nt a frm f inchate liability This means that the ffence cnditin must first be satisfied; therwise, cmplicit liability wuld be reduced t an inchate crime f assistance r encuragement (thugh refrms f this nature have been prpsed). Originally, the ffence cnditin required that the principal be cnvicted befre r with the abettr. Tday, the requirement is simply that the crime with which the secndary accused is charged actually ccurred. This has the effect f rendering the cnvictin f an accmplice independent frm the principal ffender s cnvictin (cf Osland per McHugh J; Hewitt per Winnecke P). The reasns why the principal ffender may nt be cnvicted are varius: They may nt have been apprehended r brught t trial They may have been killed r died befre trial (in Miller, Wrrell had been killed in a car accident prir t Miller s trial) They may nt be fit t stand trial (ie, insane) There may nt be sufficient evidence t cnvict them (but the accmplice may have cnfessed) Hwever, there must be an ffence, even if the principal is nt cnvicted f it. 3 Actus reus: the meaning f aids, abets, cunsels r prcures Aiding, abetting, cunselling and prcuring have been cllectively defined in Russell as all instances f ne general idea, that the persn charged is in sme way linked in purpse with the persn actually cmmitting the crime, and is by his wrds r cnduct ding smething t bring abut, r rendering mre likely, such cmmissin. Page 20 f 36

21 This statement was apprved in Girgianni (per Masn J), wh cmmented that the ne idea is secndary participatin. It thus appears that the differing requirement f presence is all that distinguishes the categries f secndary liability. R v Russell (1933) Vic SC: Facts: Russell appeals against a cnvictin f manslaughter in relatin t his wife and tw infant children The evidence shws that they died by drwning in a public swimming pl Russell s evidence: His wife had said she was ging t kill herself and the children He had tried t dissuade her and fllwed her t the pl He had then walked away, and, finding that she did nt fllw him, returned t the plside, where he had seen his wife and the pram hit the water The Crwn case is that Russell had deliberately drwned all three Russell claims he had eventually tried diving int the pl t save them The jury returns with a questin f law: Freman: if the wife drwned herself and children while her husband watched n, what is the legal psitin? Trial Judge: if simply standing, n encuragement? Freman: Yes Trial Judge: asked t hear argument. Jury t retire Trial judge then directs jury: In relatin t the children, because f the duty f the parent t care fr their safety, merely standing by wuld make him guilty f manslaughter But if he was encuraging his wife t cmmit suicide, and kill the children the defendant wuld be guilty f murder, as a secndary party Jury cnvicts Russell f the manslaughter f all three victims Issue: What is the meaning f aiding, abetting, cunselling r prcuring in relatin t the criminal liability f secndaries? Had Russell aided, abetted, cunselled r prcured the deaths f his wife and their children? Reasning: Trial judge: (1) If X is present and shws assent, then he is guilty as a principal (in the secnd degree); (2) Assent may in sme cases be shwn by absence f dissent Ie, where there is a duty t act; parent-child relatinship, etc Cussen ACJ: Wrds fund in authrities include aiding, abetting, cmfrting, cncurring, apprbating, encuraging, assenting, cuntenancing All the wrds abvementined are, I think, instances f ne general idea, that the persn charged as a principal in the secnd degree is in sme way linked in purpse with the persn actually cmmitting the crime, and is by his wrds r cnduct ding smething t bring abut, r rendering mre likely, such cmmissin The wrds aiding and abetting shuld be given a wide meaning Silence in sme circumstances amunts t acquiescence and gives cnsent Page 21 f 36