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By Peter Zahra SC, Senior Public Defender
and Jennifer Wheeler, Researcher, Public Defenders Chambers
The following sections are based on the second author’s contribution to Halsbury’s Laws of Australia, Lexis Nexis – Terminology, Innocent Agent, Establishing Liability, Withdrawal, Procedure and Sentencing.
The principles of complicity makes a person liable for an offence which he or she has intentionally assisted another to commit. Assessorial liability arises in several ways. A person who provides assistance before or during the commission of the offence may be liable for the offence itself. A person who participates pursuant to an understanding or agreement may be liable for the offence under the principles of joint criminal enterprise or common purpose. Assistance provided after the commission may make a person liable for the offence of accessory after the fact, or a related offence such as conceal serious offence (s.316 Crimes Act (NSW)), or hinder investigation of an offence (s.315(1) Crimes Act (NSW)).
In this paper the offender who commits the actus reus of an offence is referred to as the ‘principal offender’ and the offence committed as the ‘principal offence’. Osland (1998) 197 CLR 316; 159 ALR 170 at 188; (CTH) Criminal Code s 11.2(5) and (NSW) Crimes Act 1900 ss 345, 346, 347, 351. Where more than one person performs the actus reus of the offence, the persons are working together, and together complete the offence, they are each regarded as the principal offender, although individually they may have performed only part of the offence, and may not have been present when the other elements of the offence were completed. Ferguson (1916) 17 SR (NSW) 69 at 76; 34 WN (NSW) 46; Demirian [1989] VR 97; (1988) 33 A Crim R 441 at 477.
The person assisting will be referred to as the accessory. At common law an accessory who is present at the commission of a serious indictable offences is called a ‘principal in the second degree’. An accessory who participates in the preliminary stages of the offence, but is not present at the commission of the offence, is called an ‘accessory before the fact’.(Osland (1998) 197 CLR 316; 159 ALR 170 at 189) In New South Wales this terminology is used in referring to serious indictable offences. ((NSW) Crimes Act 1900 ss 345 (principal in the second degree), 346 (accessory before the fact).) Accessories to minor indictable offences are called abettors. ((NSW) Crimes Act s 351). In the Commonwealth legislation no particular term is used.((CTH) Criminal Code s 11.2).
A person will still be liable for an offence as a principle offender where they use an innocent agent to commit the offence. (CTH) Criminal Code s 11.3; Cogan [1976] 1 QB 217; [1975] 2 All ER 1059; [1975] 3 WLR 316; Matusevich (1977) 137 CLR 633 at 637-8; White v Ridley (1978) 140 CLR 342 at 346-7; Osland (1998) 197 CLR 316; 159 ALR 170 at 193; Pinkstone (2004) 206 ALR 84; at [8] per Gleeson CJ and Heydon J, at [59]-[66] per McHugh and Gummow JJ, at [102]-[106] per Kirby J. A person may be an innocent agent if they lack the mens rea for the offence or have no criminal responsibility due, for example, to age or insanity. Cogan [1976] 1 QB 217; [1975] 2 All ER 1059; [1975] 3 WLR 316 Matusevich (1977) 137 CLR 633 at 637; White v Ridley (1978) 140 CLR 342 at 346; Osland (1998) 197 CLR 316; 159 ALR 170 at 193.In Pinkstone (2004) 206 ALR 84; the High Court concluded police officers making controlled delivery were not acting as innocent agents (at [59]-[60] per McHugh and Gummow JJ, at [104]-[106] per Kirby J).
The prosecution must prove the following elements:
The prosecution must prove, on evidence admissible against the accessory, that the principal offence has been committed. (CTH) Criminal Code s 11.2(2)(b), 11.2(7); Giorgianni (1985) 156 CLR 473 at 491; Osland (1998) 197 CLR 316; 159 ALR 170 at 174 per Gaudron and Gummow JJ. Evidence of the conviction of the principal offender, or admissions made by the principal offender, are not admissible as evidence of the commission of the principal offence against the accessory. Kirkby (1998) 105 A Crim R 323; Mallan v Lee (1949) 80 CLR 198 at 210; (CTH) Evidence Act 1995 s 91; (NSW) Evidence Act 1995 s 91 (exclusion of evidence of judgments and convictions).
It is not necessary that anyone be convicted as the principal offender. (CTH) Criminal Code s 11.2(5); (NSW) Crimes Act 1900 s 346; (NSW) Criminal Procedure Act 1986 s 24; Giorgianni (1985) 156 CLR 473 at 491; King (1986) 161 CLR 423 at 433-4, 435. Where the person charged as the principal offender is acquitted because of insufficient evidence, an accessory may still be convicted if it is proved that the principal offence was committed, and there is no evidentiary inconsistency in the different results. King (1985) 17 A Crim R 184 at 189; King (1986) 161 CLR 423 at 433-4; Osland (1998) 197 CLR 316; 159 ALR 170 at 174 per Gaudron and Gummow JJ, at 187 per McHugh J.
An accessory must provide assistance to the principle offender and must do so intentionally. Neither unintentional encouragement or assistance, Coney (1882) 8 QBD 534 at 557; 15 Cox CC 46; Mills (1985) 17 A Crim R 411 at 440 per Roden J. nor intention alone, Mills (1985) 17 A Crim R 411 at 440 per Roden J; Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [69]. is sufficient for liability as an accessory.
ACTUS REUS An accessory must aid, abet, counsel or procure the commission of an offence to be liable as an accessory. (CTH) Criminal Code s 11.2(1); (NSW) Crimes Act 1900 s 351, 351B (in relation to minor indictable and summary offences) For serious indictable offences see Johns [1978] 1 NSWLR 282 at 285; Giorgianni (1985) 156 CLR 473 at 493. This requires that the accessory was linked in purpose with the principal offender, and by words or conduct did something to bring about, or render more likely, the commission of the principal offence. Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [69]. The assistance may be provided through a third party. Cooper (1883) 5 C & P 535; 172 ER 1087 at 1088 (the accessory may make a general request to the third party that the third party find ‘someone’ to commit the offence: see, for example, King (1986) 161 CLR 423 at 434) Mere presence at the commission of an offence is insufficient, Coney (1882) 8 QBD 534 at 539, 540 per Cave J, at 552 per Lopes J, at 560 per Hawkins J, at 561 per Huddleston B; 15 Cox CC 46; Mills (1985) 17 A Crim R 411 at 440; Adam (1999) 106 A Crim R 510 at [69]-[70]. although presence may be evidence of encouragement or assistance sufficient to make a person an accessory. Coney (1882) 8 QBD 534 at 540, 543 per Cave J, at 558, 560 per Hawkins J; 15 Cox CC 46; Russell [1933] VLR 59 at 66; [1933] ALR 76 per Cussen ACJ
There is no general liability for a failure to prevent the commission of an offence, Coney (1882) 8 QBD 534 at 539 per Cave J, at 557-8 per Hawkins J; 15 Cox CC 46; Mills (1985) 17 A Crim R 411 at 440. although the failure of a person to act where they have a duty to do so may be sufficient for liability as an accessory. Russell [1933] VLR 59 at 77, 81-82; Ex parte Parker; Re Brotherson [1957] SR (NSW) 326 at 330; (1956) 74 WN (NSW) 463. A person may be liable for a failure to act where he or she is in a position of power or control, is aware that an offence is about to be committed or is being committed, has reasonable opportunity to intervene, and fails to take reasonable steps to prevent the offence being committed: Smith (TAS CCA 6.3.1979) at 34 referred to with approval in Randall [2004] TASSC 42 (applied to manager of club who permitted office to be used for rape).
Mens Rea: An accessory must have knowledge of the essential facts and circumstances of the principal offence, and with this knowledge provide intentional assistance or encouragement. Giorgianni (1985) 156 CLR 473 at 482, 487-8 per Gibbs J, at 494 per Mason J, at 500, 505 per Wilson, Deane, Dawson JJ; Stokes (1990) 51 A Crim R 25 at 37-8, 41. The essential facts and circumstances of the principal offence include both the actus reus and the relevant state of mind or intent of the principal offender. Stokes (1990) 51 A Crim R 25 at 38; Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [105]. It is sufficient for the accessory to have knowledge of the type of offence that is committed, and does not need to have knowledge of all the details of the offence. Bainbridge [1960] 1 QB 129; [1959] 3 All ER 200 at 202; [1959] 3 WLR 656 per the court, CCA; Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140 at 1147-8 per Lord Hailsham of St Marylebone, at 1150 per Lord Fraser of Tullybelton, at 1150-1 per Lord Scarman, at 1162 per Lowry LCJ; Glennan [1970] 2 NSWR 421 at 426; (1970) 91 WN (NSW) 609 per the court, CCA(NSW); Cavallaro v Waterfall (1988) 8 MVR 271 at 278; BC8801179 per Carruthers J, SC(NSW); Bruce v Williams (1989) 10 MVR 451; 46 A Crim R 122 at 129-30 per Priestly JA, CA(NSW). The accessory need not be aware of the illegal nature of the conduct which constitutes the offence. Giorgianni (1985) 156 CLR 473 at 500, 506; McCarthy (1993) 71 A Crim R 395 at 409; Buckett (1995) 79 A Crim R 302 at 309. The accessory does not need to have had knowledge of, nor intend, the consequences of the offence committed. Giorgianni (1985) 156 CLR 473 at 495 per Wilson, Deane and Dawson JJ, at 500 per Mason J; Mills (1985) 17 A Crim R 411 at 450; Stokes (1990) 51 A Crim R 25 at 38, 39. Actual knowledge is required; recklessness or mere suspicion is insufficient. Giorgianni (1985) 156 CLR 473 at 483, 486-8 per Gibbs CJ, at 495 per Mason J, at 505, 506 per Wilson, Deane and Dawson JJ; Stokes (1990) 51 A Crim R 25 at 42. The requirement of knowledge and intention for the accessory applies where the principal offence is one of strict liability and no intention is required of the principal offender. Giorgianni (1985) 156 CLR 473 at 479, 483 per Gibbs CJ, at 494 per Mason J, at 500, 504-5 per Wilson, Deane and Dawson JJ; Buckett (1995) 79 A Crim R 302 at 309.
Under the Commonwealth Criminal Code an accessory will be liable if he or she intends their conduct to assist the commission of an offence of the type committed, or intends to assist the commission of an offence and is reckless about the offence actually committed. (CTH) Criminal Code s 11.2(3).
Liability by way of the principle of common purpose is established where “a venture is undertaken by more than one person, acting in concert pursuant to a common criminal design”. McAuliffe (1995) 183 CLR 108 at 113-14. The common purpose arises where two or more persons reach an understanding or arrangement amounting to an agreement to commit an offence. The agreement or understanding need not be express and may be inferred from all the circumstances. There must be an agreement to assist – it is not sufficient for an offender to decide to commit an offence and be aware that others also intent to commit the offence. Taufahema [2006] NSW CCA 152 at [28].The doctrine may also be referred to as joint criminal enterprise. McAuliffe (1995) 183 CLR 108 at 113-114. See also Tangye (1997) 92 A Crim R 545 at 556-7; Osland (1998) 197 CLR 316 and Phan (2001) 53 NSWLR 480; 123 A Crim R 30
Where one or more of the parties commit the offence agreed upon, acting in accordance with the continuing understanding or agreement, each party to the agreement is liable for the offence regardless of the part they played. McAuliffe (1995) 183 CLR 108 at 113-114 affirmed in Gillard (2003) 202 ALR 202; 139 A Crim R 100 at [110].
A party to a common purpose may also be liable where the offence committed is not the offence agreed upon by the parties, but is an offence falling within the scope of the common purpose. McAuliffe (1995) 183 CLR 108 at 113-114 The test for an offence being with the scope of the common purpose is a subjective one – the party to the common purpose must have foreseen the offence as a possible consequence of the execution of the common purpose. McAuliffe (1995) 183 CLR 108 at 114, 115; Johns (1980) 143 CLR 108 at 130-1; Gillard (2003) 202 ALR 202 at [112]. Where an agreement encompassed the infliction of serious bodily harm it was not necessary for prosecution to show that the accessory foresaw the particular manner harm was to be inflicted, nor the weapon used. Suteski (2002) 56 NSWLR 182; 137 A Crim R 371 at [135]-[159] The accessory will only be liable for such offence as he or she foresaw as a possible consequence of the common purpose, and may be convicted of a lesser offence than the principal offender. Gillard (2003) 202 ALR 202 (where the principal offender is convicted of murder the accessory may be convicted of manslaughter if he or she foresaw as a possibility that the principal offender would kill, but did not foresee the relevant intent for murder); Taufahema [2006] NSW CCA 152 at [35]-[36].
Johns (1980) 143 CLR 108
[per Barwick CJ at p.113]
The learned trial judge's summing up, of which I have quoted relevant parts, did correctly express the common law. The participants in a common design are liable for all acts done by any of them in the execution of the design which can be held fairly to fall within the ambit of the common design. In deciding upon the extent of that ambit, all those contingencies which can be held to have been in the contemplation of the participants, or which in the circumstances ought necessarily to have been in such contemplation, will fall within the scope of the common design.
[per Mason, Murphy and Wilson JJ at p.125-6]
The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability. There is nothing in this to suggest that the criterion of complicity and liability should differ as between accessory and principal in the second degree. If they are both parties to the same purpose or design and that purpose or design is the only basis of complicity relied upon against each of them, there is no evident reason why one should he held liable and the other not. In each case liability must depend on the scope of the common purpose. Did it extend to the commission of the act constituting the offence charged? This is the critical question. It would make nonsense to say that the common purpose included the commission of the act in the case of the principal in the second degree but that the same common purpose did not include the commission of the same act in the case of the accessory before the fact. Yet this is precisely what the applicant's submission does say. A telling answer to it is the example given by Street CJ in his judgment in this case, where he speaks of the three men who set out to carry out an armed robbery on a bank, two intending to enter the bank with loaded firearms whilst the third remains outside to drive the getaway car. In the course of the robbery a bank officer is shot and killed. The driver of the getaway car would be held liable as a principal in the second degree for the killing. If, however, the plan had involved the driver and merely dropping the two armed men outside the bank and then driving off, the car driver would be an accessory before the fact. There would, as his Honour says, be no logical or legal justification for distinguishing between the complicity and liability of the driver whether he be a principal in the second degree or an accessory before the fact.
The problem here is one of expressing the degree of connexion between the common purpose and the act constituting the offence charged which is required to involve the accessory and the principal in the second degree in complicity.
[per Mason, Murphy and Wilson JJ at p.130-1]
In our opinion these decisions support the conclusion reached by Street CJ, namely, "that an accessory before the fact bears, as does a principal in the second degree, 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--an act contemplated as a possible incident of the originally planned particular venture". Such an act is one which falls within the parties' own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.
McAuliffe (1995) 183 CLR 108
[per the Court at p.113-115]
The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms -- common purpose, common design, concert, joint criminal enterprise -- are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission See Giorgianni v The Queen (1985) 156 CLR 473.. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission cf Lowery and King [No 2] [1972] VR 560 at 560, per Smith J..
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture Mansell and Herbert's Case (1556) 2 Dyer 128b [73 ER 279]; Ashton's Case (1698) 12 Mod 256 [88 ER 1304]; Radalyski (1899) 24 VLR 687; Kalinowski (1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214.. However, in accordance with the emphasis which the law now places upon the actual state 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 See Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ..
Two questions arose in Johns (T S) v The Queen (1980) 143 CLR 108. concerning the doctrine of common purpose. The first was whether the doctrine extended to an accessory before the fact. The Court held that it did and so held that it was not necessary for a party to be present at the scene of a crime to be acting in pursuit of a common purpose with others who were present cf Lowery and King [No 2] [1972] VR 560 at 560-561, where Smith J appears to have held a contrary view..
The second question was whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences. The Court held that the scope of the common purpose did extend to the possible consequences of the criminal venture, but, accepting that the test was a subjective one, held that the possible consequences which could be taken into account were those which were within the contemplation of the parties to the understanding or arrangement. Thus Mason, Murphy and Wilson JJ, after referring to a number of authorities, said Johns (1980) 143 CLR 108 at 130-131.:
[per the Court at p.117-118]
In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.
For these reasons, the trial judge was not in error in directing the jury that if the appellants were engaged in a joint criminal enterprise with Davis, a shared common intention -- that is, a common purpose -- to inflict grievous bodily harm or an individual contemplation of the intentional infliction of grievous bodily harm as a possible incident of the venture would be a sufficient intention on the part of either of them for the purpose of murder.
Osland (1998) 197 CLR 316
[per McHugh J]
[70] At common law, a person who commits the acts which form the whole or part Bingley (1821) Russ & Ry 446 [168 ER 890] (Bingley's part was to impress the date lines and numbers on forged bank notes; other associates were responsible for the printing and signatures); Ferguson (1916) 17 SR (NSW) 69 at 76 (assisting in making a plate to be used for printing counterfeit notes). of the actus reus of the crime is known as a "principal in the first degree". There can be more than one principal in the first degree Erringtons' Case (1838) 2 Lewin 217 [168 ER 1133]; Clarke [1959] VR 645.. However, a person may incur criminal liability not only for his or her own acts that constitute the whole or part of the actus reus of a crime but also for the acts of others that do so. The liability may be primary or derivative. In earlier times, when it was alleged that a person should be held criminally liable for the acts of another, it mattered whether the crime was a felony or a misdemeanour. In Victoria, the distinction between felonies and misdemeanours has been abolished Crimes Act 1958 (Vict), s 322B.. There is no longer any need to draw a distinction between the two categories of crime Crimes Act 1958 (Vict), s 323..
[71] Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime Higgins (1801) 2 East 5 at 19 [102 ER 269 at 274-275]; See Lun (1932) 32 SR (NSW) 363 at 364; Howell v Doyle [1952] VLR 128 at 133; Jackson v Horne (1965) 114 CLR 82 at 94.. Those who were merely present, encouraging Kupferberg (1918) 13 Cr App R 166; Clarkson [1971] 1 WLR 1402; [1971] 3 All ER 344. but not participating physically Coney (1882) 8 QBD 534; Wilcox v Jeffery [1951] 1 All ER 464., or whose acts were not a substantial cause of death Mohan v The Queen [1967] 2 AC 187., were regarded as principals in the second degree Lanham, "Limitations on Accomplice Liability", Criminal Law Journal, vol 6 (1982) 306, at p 313.. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty Dunn (1930) 30 SR (NSW) 210 at 213.. Their liability was, accordingly, also derivative.
[72] However, there is I say "is" because it may be that this third category is a late development of the common law which owes its impetus to the enactment of the Accessories and Abettors Act 1861 (UK) and its counterparts in other jurisdictions, such as s 323 of the Crimes Act 1958 (Vict), and the abolition of the distinction between felonies and misdemeanours. a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime Lowery and King [No 2] [1972] VR 560.. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert Hurse (1841) 2 M & Rob 360 at 361 [174 ER 316 at 317], which was a case of misdemeanour, Erskine J directed the jury "that if two persons, having jointly prepared counterfeit coin, plan the uttering, and go on a joint expedition and utter in concert and by previous arrangement the different pieces of coin, then the act of one would be the act of both, though they might not be proved to be actually together at each uttering." is equally responsible for the acts of the other or others. The general principle was clearly stated in Lowery and King [No 2] [1972] VR 560 at 560. by Smith J who directed the jury in the following terms:
…
[75] As a result, a person may be found guilty of murder although he or she did not commit the acts which physically caused the death of the victim and the person who did is found guilty only of manslaughter Howe [1987] AC 417 at 426, 436, 438, 446, 458.. In Howe [1987] AC 417., all their Lordships were of the opinion that Richards [1974] QB 776., which had held that the person who did not perform the acts could not be guilty of a more serious charge than the actual perpetrator, was wrongly decided. Lord Mackay said Howe [1987] AC 417 at 458.:
…
[79] The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea Matusevich v The Queen (1977) 137 CLR 633.. In Matusevich v The Queen (1977) 137 CLR 633., this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence.
…
[85] In cases where the person who performed the act the subject of the arrangement or understanding escapes liability, it is often said that that person has been the "innocent agent" of the other participant or participants. But that description merely records the result that the person who performed those acts is not criminally liable. It is more accurate to describe the person, who escapes liability in a concert case where the other person is convicted, as a non-responsible This was the term used in argument by Mr Weinberg QC who appeared for the Crown in this Court. agent. No doubt there are cases where the person who does the harm-causing act is innocent in a moral sense. For example, the accused may have induced a child of tender years to do the act which constitutes the actus reus of the crime cf Manley (1844) 1 Cox CC 104., or imported drugs via an airline carrier White v Ridley (1978) 140 CLR 342. [142] . In that case, the agent is innocent of any wrong doing and the accused is regarded as a principal in the first degree. The acts of the innocent person are attributed to the accused who is guilty of the crime because the latter has the necessary mens rea. The fact that the innocent agent is not guilty of the crime is of no relevance.
Taufaheme [2006] NSW CCA 152, 8.5.2006
[28] At the outset, Mr Game SC for the appellant submitted (I think rightly) that the appellant could not be convicted if the Crown proved no more that he intended to run away from the police officer and was aware that the other passengers in the car intended to do the same, even if he adverted to the possibility that someone might shoot at the officer. It was essential that the jury be satisfied beyond reasonable doubt not only that each had decided to evade the officer and that each was aware that the others would also evade the officer, but that each would assist the others in doing so and that the appellant realised that a gun might be used in the attempt and there was a real risk that the officer might be shot or suffer grievous bodily harm. It is this mutuality of assistance that creates the essential commonality of purpose and makes them members of a joint enterprise as distinct from each taking part in his own individual enterprise of attempting to avoid arrest.
[30] With unfeigned respect for the learned trial judge it does not seem to me that this direction sufficiently conveyed to the jury the essential point that it was not enough that each of them decided that he would escape as distinct from an agreement that each would assist the others to escape. With respect, it seems to me that the phrase “an agreement or understanding that all four of them would jointly evade lawful apprehension” would not be sufficient to convey to the jury the vital distinction. If the appellant simply intended to run away, he could not be criminally responsible for the death of Senior Constable McEnallay merely because he realised that the other occupants of the vehicle intended to escape and that one of the other offenders, in the course of that offender’s escape, might use a weapon against the officer.
[per Hunt J at p.36]
It is (at the very least) unnecessary for a case based on common purpose to be put to the jury where the crime in fact committed is the very crime for the purpose of which both or all accused are alleged to have combined. To do so is simply to add an additional and an unnecessary element to what must be proved by the Crown in any event. A common purpose case does not relieve the Crown from the need to prove that each of the accused was himself guilty of the crime for the purpose of which they are all alleged to have combined -- either as the principal offender or as having aided and abetted that principal offender. Apart from making some evidence admissible against all of the accused which would otherwise have been admissible against only one of them (in accordance with Tripodi and Ahern), that additional and unnecessary element which must be proved by the Crown is also both inappropriate (unless the crime actually committed was only incidental to the one originally planned) and undesirable (because of the confusion which it is very likely to produce).
The Crown alleged that the appellant and another bound a security guard. The security guard was found badly injured and his pistol; missing. He later died of injuries to his head which were consistent with a number of applications to he head by a blunt instrument consistent with the pistol.
[per Hunt CJ at CL at p.453]
The Crown case on the face of it was a simple one. It was open to the jury to conclude from the evidence that:
In those circumstances, it did not matter which of the two men was using the pistol to hit the victim, and it was unnecessary for the Crown to establish which one it was. The accused was guilty of murder if the Crown also proved either:
The authorities for those propositions are Mohan [1967] 2 AC 187 at 195 and Giorgianni (1985) 156 CLR 473 at 487-488, 494, 500, 504-505, 506-507; 16 ACrimR 163 at 173-174, 178, 182-183, 185-186, 187-188: see also Yorke v Lucas (1985) 158 CLR 661 at 667. Those authorities were discussed by this Court in Stokes and Difford (1990) 51 ACrimR 25 at 35-39. As it was said in that case (at 35), the ratio in Mohan (in which the Crown was unable to establish which of the two accused had inflicted the fatal blow) does not depend upon the fact that each of the accused in that particular case was physically attacking the victim. It would equally be applicable where the finding of aiding and abetting is available from other conduct.
[at p.456]
(T)he Crown case was considerably (and unnecessarily) complicated by the introduction of the concept of common purpose. This was a classic case of principal offender and accessory, even though (let it be assumed) the Crown was unable to identify which of the two men had the pistol and had inflicted the fatal blow or blows. Mohan's case makes it clear that proof of a pre-arranged plan is unnecessary. Crown Prosecutors should not rely upon common purpose unless it is necessary to do so. This Court has said so on many occasions: see, eg, Stokes and Difford (at 35-37). Common purpose is usually necessary only where the accused against whom such a case is sought to be made was not an accessory (that is, present and assisting) at the time when the crime in question is committed and where the crime committed was merely incidental to that which had been the prime object of the common criminal venture.
[per Hunt CJ at CL at p.556]
The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist.
The summing up in the present case has suffered substantially from the judge's failure to ascertain what the Crown case was in relation to the first count until after the original directions had been given. I will refer presently to the problems which arose. Before doing so, it will be seen from the passages quoted that the judge has referred -- apparently interchangeably -- to a joint criminal enterprise and to the so-called doctrine of common purpose which extends the concept of a joint criminal enterprise. Where -- as here -- no such extended concept was relied upon, it was both unnecessary and confusing to refer to it.
The Crown needs to rely upon a straightforward joint criminal enterprise only where -- as in the present case -- it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, See, for example: Stokes (1990) 51 ACrimR 25 at 35-37; Clough (1992) 28 NSWLR 396 at 400; 64 ACrimR 451 at 455. and it is a pity that in many trials no heed is taken of what has been said.
So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
It is advisable to give an example of facts right away from the facts of the particular case after the definition in the second of those directions in order to assist the jury's understanding of what is meant. The bank robbery example is usually suitable where there has been some degree of planning involved in the joint criminal enterprise. It is not of much assistance where, as here, the evidence is fairly silent as to how the agreement was reached. Particularly is that so where -- contrary to the way in which the present case appears to have been left to the jury -- the agreement by the appellant to participate in the joint criminal enterprise appears to have been (at most) coincidental with joining his friends in the fight. A better example of such a spontaneous type of joint criminal enterprise, based upon that given in Lowery (No 2) [1972] VR 560 at 560-561. is one where the crime involved is that of break enter and steal:
It should only be after the directions of law have been given that the judge should refer to the facts of the particular case upon which the Crown relies, and that the application of the law to those facts should be explained.
See also Vester Fernando & Anor [1999] NSW CCA 66; Helene [1999] NSW CCA 203.
Under the Commonwealth Criminal Code a person will be guilty of the principal offence if he or she intentionally assisted the commission of an offence and was reckless as to what offence was actually committed. (CTH) Criminal Code s 11.2(3)(b)
Common Purpose: Evidence Otherwise Only Admissible Against One May be Admissible Against all Accused.
[per Wood J at p.471]
As was pointed out in Stokes and Difford (1990) 51 ACrimR 25, it is unnecessary to put a case based on common purpose to the jury when the crime in fact committed is the very crime for the purpose of which all accused are alleged to have combined. Unless a case based upon common purpose is necessary because the crime in fact committed was only within the contemplation of the accused as a possible incident of the execution of the planned enterprise, or because it makes some evidence admissible against all of the accused which would otherwise have been admissible only against one of them, it is not only unnecessary, but also undesirable to do so.
There seems to have been some degree of confusion between these notions because at the end of the summing up, counsel for Mr Dixon sought a further direction to the effect that, in order for an accused to be made liable under the doctrine of "common purpose", where he had refrained from any actual assault, he had to be present encouraging, aiding or assisting the actual perpetrator. This of course was more appropriate to a case where there was no preconcert established: Lowery and King (No 2) [1972] VR 560. Over the objection of the Crown Prosecutor, a redirection was given in these terms. The net effect was to compound the problems caused by the fact of a joint trial, and the failure to keep the cases concerning the two accused clearly distinct.
I am of the view that there was in the result, a real risk that the trial miscarried, and that the conviction of Smith, on the count of manslaughter, should be quashed and a new trial ordered.
Admissibility of evidence of previous representation made by A in furtherance of a common purpose with B.
Once there is reasonable evidence of the participation of an accused in an unlawful purpose the words as well as actions of the co-accused are admissible as evidence against the accused providing the words and actions are in furtherance of the common purpose.
Evidence Act 1995 s.87
The ALRC ALRC Evidence (Interim), 1985, 26, Vol 1, para 755. noted that a pervious representation by A, allegedly acting in furtherance of a common purpose by B, will not be hearsay where it is relevant as a verbal act to establish the existence of the common purpose.
See also s.60 – Exception to the hearsay rule: evidence relevant for a non-hearsay purpose.
See also Lee v the Queen (1998) 195 CLR 594
See also Tripodi (1961) 104 CLR 1; Ahern (1988) 165 CLR 87; Chan Kam Wah, NSW CCA, 13.4.1995 at p.5; Velardi NSW CCA, 24.5.1996.
A person will not be liable for an offence if he or she withdrew his or her involvement prior to the offence being committed. (CTH) Criminal Code s 11.2(4)(a); White v Ridley (1978) 140 CLR 342; Tietie (1988) 34 A Crim R 438 The accessory must make a timely and unequivocal A countermand which is vague, ambiguous or perfunctory is insufficient: White v Ridley (1978) 140 CLR 342 at 351. communication, by words or conduct, White v Ridley (1978) 140 CLR 342 at 351 to all other parties of the intention to withdraw, White v Ridley (1978) 140 CLR 342 at 348-351; Tietie (1988) 34 A Crim R 438 at 447 and must take all reasonable steps to prevent the commission of the offence. (CTH) Criminal Code s 11.2(4)(b); White v Ridley (1978) 140 CLR 342 at 351 Tietie (1988) 34 A Crim R 438 at 447CCA (NSW); Truong NSW CCA 22.6.1998: if the accessory honestly believes that the offence will not take place he or she does not have to take any further steps to prevent its commission. A withdrawal is only timely if it is can be effective and is not made too late to prevent the offence being committed. White v Ridley (1978) 140 CLR 342 at 351 Where there is evidence of withdrawal the onus is on the prosecution to prove beyond reasonable doubt there was no withdrawal. White v Ridley (1978) 140 CLR 342 at 348.
Although an accessory may be prosecuted as a principal offender, (CTH) Criminal Code s 11.2(1), 11.2(7); (NSW) Crimes Act 1900 ss 346, 351, 351B the indictment should indicate the basis for liability is accessorial, or this should be made clear early in the trial, to prevent unfairness to the defence. Giorgianni (1985) 156 CLR 473 at 497; King (1985) 17 A Crim R 184; King (1986) 161 CLR 423 at 425 per Murphy J, at 436-7 per Dawson J; Buckett (1995) 79 A Crim R 302 at 305.
Where a prosecutor is unable to establish who, of the parties involved, committed the actus reus of an offence, an offender may be convicted of the offence provided the prosecutor can prove they were either the principal offender or an accessory. Mohan [1967] 2 AC 187; [1967] 2 All ER 58; Phan (2001) 53 NSWLR 480; 123 A Crim R 30; at [65] per Wood CJ at CL and [90] per Smart AJ. The prosecution does not need to specify the basis for the liability contended. Serratore (1999) 48 NSWLR 101 per Greg James J at [154]-[225].
Directions to jury in trials involving principles of joint criminal enterprise must detail the relationship between the general principles and the evidence of the case. Georgiou & Harrison [2001] NSW CCA 464, 21.11.2001 at [19].
An accessory is liable to the same punishment as a principal offender (CTH) Criminal Code s 11.2(1); (NSW) Crimes Act 1900 ss 345, 346, 351, 351B(2)(1), although the actual role played by an offender will be relevant to the assessment of the appropriate sentence. Johns (1980) 143 CLR 108 at 117; Osland (1998) 197 CLR 316; 159 ALR 170 at 238. Although an accessory would usually expect a lesser sentence than the principal offender this will depend upon the circumstances of the case, and in some circumstances the culpability of the aider and abettor may be equal to or greater than the principal offender. GAS (2004) 206 ALR 116 at [22]-[23].
Peter Zahra SC, Senior Public Defenders
Jennifer Wheeler, Researcher
Public Defender’s Chambers
July 2006
20 Sep 2024