18. Complicity - Criminal Law Exam Summary PDF

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Criminal Law Exam Summary...

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S 428 B – Complicity – multiple people involved Defences apply individually Types of Complicity Principal Offender/Principal in First Degree – person who performs the actus reus of the crime with the necessary mens rea, including: • •

Joint Criminal Enterprise - A person who is present at the scene because had a previous agreement to commit the crime. Doctrine of Common Purpose – person (D) involved in the JCE but a different crime occurs which was contemplated as a possible consequence of the JCE.

Principal in the Second Degree – the person (accessory) with the principal and must intentionally assist or encourage the Principal. Accessory Before the Fact – not at the scene of the crime but still intentionally assisted the Principal to commit the crime. Accessory After the Fact – the person who assists the Principal in the first degree AFTER the crime has been committed (conceal the crime, assist to avoid arrest). The elements of Complicity are:

Actus Reus 1. 2.

Must do something which assists or encourages the principal offender. Omission to act can, in some circumstances, be assistance or encouragement

Agreement: the accused agreed with the party who actually carried out the actus reus to commit the crimeOsland Doesn't have to be explicit, an unspoken understand is sufficient There needs to be a 'group' mentality' as opposed to individuals acting within a group: OR "people are acting together, that is, of a common mind and with a common aim It can be longstanding or arising at the time of commission

Principal in second degree/accessory before the fact must do something which assists or encourages the principal offender. However, omission to act can, in some circumstances, be assistance or encouragement. Clarkson and Carroll (1971) –(Defendants watched another sexually assault V), and R v Russell (1933) - (Defendant watched his wife drown herself and their children). Distinction between Direct and Derivative Liability – if attributed to the actus reus and has the mens res for the crime, then is a principal offender under doctrine of JCE – Osland Derivative liability – Innocent agency exception - Accessory before the fact or principal in second degree who uses an agent to commit a crime is guilty as the principal offender- Use of innocent agent to sexually assault Defendant’s wife – Cogan & Leak (1975) Principle in Second Degree - Defendants who both wound the V. Cannot be established which one performed the fatal wound. Both convicted as principals in second degree – Mohan V R (1967) Accessory Before fact Convicted of More Serious Offence Than Principal - An accessory before the fact can be guilty of murder, even if the principal offender was only guilty of manslaughter: R v Howe (1987) 1 A.C. 417 overturning R v Richards (1974) Q.B. 776

Mens Rea

1.

Is recklessness sufficient mens rea for accessory before the fact/ principal in the second degree? NO

2.

Accessory must have knowledge of the facts which constitute the offence committed by the principal offender, and must intentionally assist or encourage: Giorgianni (1985) – Where Defendant performed work on truck in which brakes failed, and charged as an accessory before the fact to Section 52A (dangerous driving occasioning death). Accessory before the fact must have knowledge of the type of crime to be committed, not the actual crime: Bainbridge (1960)

McAuliffe (1995) - Sufficient mens rea if person involved in joint criminal enterprise knows that it is possible another type of crime will be committed during the course of the joint criminal enterprise. Gillard (2003) - where the High Court held that the lesser participant in a joint criminal enterprise may be liable for manslaughter rather than murder, if he or she only thought that something less than an intention to kill or intention to cause grievous bodily harm may possibly occur.

Withdrawal Can a person successfully withdraw from joint criminal enterprise, or plan to commit crime? Yes •

White v Ridley (1978) -Provided Defendant gives a “timely countermand” (per Gibbs J or takes action which breaks the chain or causation (per Stephen J)

•

Rook (1993) - Test is “an unequivocal timely communication” that Defendant is not going to be involved (plan to kill a person, where Defendant’s mere failure to show up was insufficient to constitute withdrawal).

Osland Case • • •

Heather Osland and her son reached an agreement to murder Heather’s husband. Heather mixed a sedative into her husband’s dinner and after he had fallen asleep, the son bashed him to death. Heather was convicted of murder, but her son was acquitted. Heather argues in this appeal that her conviction is inconsistent with his acquittal, and she should be acquitted as well.

There are three types of offenders in a crime: •

Principles in the first degree - a person who commits acts which form the whole or part of the acts reus. Their liability is primary (regular liability), and there can be more than one principal in the first degree.

•

Principles in the second degree - a person who did not commit any of the acts which form the acts reus, but was nevertheless present at the scene of the crime. Their liability is derivative, meaning that they can only be guilty if the principal in the first degree is convicted. o

This means that they may benefit off the principals defenses such as lack of men's rea, provocation, self defence etc.

o

However, a principal in the second degree turns into a principal in the first degree if he had a preconcert or agreement with the principal in the first degree to commit the crime. That means his liability becomes primary and he can no longer benefit from defenses used by the other principal in the first degree - his fate becomes irrelevant. This is what happens in a joint-criminal enterprise.

•

Principles in the third degree - a person who committed none of the acts and was not present, yet aided in some way in the commission of the crime. They are accessories before the fact, and their liability is derivative, no matter what.

•

Distilling the principles mentioned above, and relying on Tangye , a person is a part of a joint criminal enterprise when the person did not commit the actus reus yet: o

Agreed with the others that they as a group will do the crime. § This does not need to be express and may be inferred from the circumstances. It also doesn't have to be made before the crime.

o

Was present at the time of the crime.

•

In such a case, the actus reus committed by one or more of the parties will be attributed to the persons deemed a part of the joint-criminal enterprise (ie, who satisfy the above test). Instead of being principals to the second degree, they become principals in the first degree. Each person is then independently of the mens rea findings of the other persons.

•

This is consistent with the concept of an “innocent agent” or a non-responsible party such as a child, mentally ill person or person under duress such as in R v Bourne (where a husband was found guilty of bestiality for compelling his wife to have sex with a dog)

•

Of course, nothing stops those in the joint criminal enterprise to argue defences such as duress, provocation etc for their involvement in the joint criminal enterprise.

•

Accordingly, the acquittal of her son has no relevance on Heather Osland. It was his actus reus, and not his conviction as a whole, which was applied to her because of her part in the joint enterprise. Thus, she had the relevant actus reus, and also the mens rea (since she agreed to the crime). She is convicted irrespective of his trial outcome....