Accessorial Liability PDF

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Accessorial Liability Where a person aids, abets, counsels or procures the commission of an offence For D to be liability as an accessory to the crime (ie as P2), P must prove BRD that: 1. “The offence condition” - P1 committed an offence (see Likiardopoulos). Offence needs to be proved. 2. MR: D had knowledge of the essential elements of this offence (Giorgianni; Stokes v Difford) 3. AR: D engaged in conduct that amounted to aiding, abetting, counselling or procuring the offence (see Phan; Lam); and 4. MR: D intended to assist the commission of the offence (Giorgianni) Accessorial Liability 1. Accessory before the fact - in preparation 2. Principle in 2nd degree - ading and betting assisting in preparation AR 1. Counsel and procure (taking steps to get crime committed before it happens) 2. Aiding or betting (Phan, Lam, AL Quasin) MR 1. Giorgianni – Proving actual knowledge of all essential fact of the case 1. “The offence condition”  Liability is derivative (Not primary liability, and accessorial liability will come after the actual conviction of the primary offender)  This ordinarily means that the offender/s with primary liability must be convicted of a crime. But there are some exceptions: – Likiardopoulos (P2) was convicted of murder based on accessorial liability. But P1s (ie principal offenders who actually did the killing) convicted of manslaughter. – Court held that P2 could be convicted of murder based on accessorial liability even where prosecution accepted pleas to a lesser crime of manslaughter for P1s. There was sufficient evidence at trial to show there was a murder = offence condition met. – Not an abuse of process; legitimate exercise of prosecutorial discretion. 2) Knowledge of P1s Crime D must have knowledge of the essential elements of the offence committed by P1 This element will be proved where knew or was aware of the ‘essential matters’ of the offence (Giorgianni; Stokes v Difford) – Q: What are the ‘essential elements of the offence? See Stokes v Difford Stokes v Difford: the court preferred that the prosecution prove that the accessory know that the “forbidden result” ( in the case of Stokes that was death) “would yield the result that proof of guilt of murder of an aider and abettor would face a higher test than the test for guilt of a principal offender” The nature of the “essential matter” of an offence, of which an accessory must be shown to have had knowledge. Stokes was convicted of maliciously inflicting grievously bodily harm with intent to inflict grievously bodily harm. In relation to the accessory liability of the defendant for the offender of maliciously inflicting grievous bodily harm. Hunt J held that the Crown had to establish: 1. That Difford knew or was aware A) of the intention of Stokes to hit Parlic, and B) that Stoke: I) intended thereby to inflict some physical injury upon Parlic, or II) realised the possibility that some such injury might result but he nevertheless intended to go ahead and hit Parlic and 2. That, with that knowledge, Difford intentionally assisted or encouraged Stokes to commit the crime of maliciously inflicting grievous bodily upon Parlic – Q: Do you need to have knowledge of the precise manner of P1s offence? See Bainbridge

Bainbridge It is not necessary for the prosecution to prove that D intended to assist the crime in precisely the way that it was carried out by the principal. The prosecution argued that Bainbridge knew the equipment was going to be used for breaking and entering premises. The defendant said the was suspicious that the equipment would be used for an illegal purpose, but he thought the purpose was to break up stolen property. He was convicted as accessory before that fact to the felony of break, enter and steal. 3) Conduct that aided, abetted… D engaged in conduct that amounted to aiding, abetting, counselling or procuring the offence  Aiding and abetting = assisting or encouraging; most common, but no special technical definition (Beck)  Procuring = taking steps to produce a desired result (AG’s Ref)  Counselling = urged or advised ( Stuart v R)  Q: How much assistance is required? Will acquiescence be sufficient? See Phan; Lam In Phan, court decided that court would have been satisfied that he “was not unconscious and aware of what was happening; and said or did something of which a reasonable mind would concluded that it was associated him deliberately with what was being done.” Word or conducts have to make the offence more likely to occur. Principal offender and secondary accessory have to Link in purpose. Intentional encouragement or assistant. Q: Does prosecution have to show that D’s acts in fact assisted/ encouraged the commission of the offence? See – Lam. In Lam, the Victorian Court of Appeal emphasised that it is not necessary for the prosecution to prove that the principal in fact derived/got assistance or encouragement from the accessory’s conduct. It is enough that assistance or encouragement was offered . The decision of the Victorian Court of Appeal in Lam offers further guidance on the issue of the degree of assistant or encouragement, an individual must contribute in order to be guilty as an accessory. Encouragement has to be in the present of the offender. 4) Intention to assist the commission of the offence D intended to assist/ encourage the commission of the offence (MR) – Prosecution must also be proved that D intended to assist or encourage the commission of the offence by P1 – Q: Can you recklessly aid and abet an offence? What if the principal offence only requires recklessness? See Giorgianni Giorgianni  P1 = Renshaw, truck driver  P2 = Giorgianni, truck owner  Defective breaks  The brakes failed on Mt Ousley and the truck collided with a car killing 5 and seriously injuring 1  P1 charged with 52A Crimes Act dangerous driving  Will lower MR standards suffice?  In other words, would it be sufficient to prove that Giorgianni was: 1. reckless as to whether the brakes were defective (he foresaw the brakes were probably/possibly defective); and 2. reckless as to whether his conduct would aid/abet the dangerous driving offence (he foresaw the probably/possibly that his conduct with aid/abet the offence). Or do you have to prove actual knowledge and intent? Giorgianni ‘s Court decision: The nature of the “essential matter” of an offence, of which an accessory must be shown to have had knowledge. It is not sufficient to establish only that the accessory had knowledge of the physical acts done by the principal. It must also be established that the accessory was aware that the acts with the requisite state of mind for that offence.

1. What situations do the rules on accessorial liability cover that are not already covered by JCE or extended JCE? Liability is derivative (Not primary liability, and accessorial liability will come after the actual conviction of the primary offender) 2. Do we need all three complicity doctrines? Why/why not? Yes, because without the Complicity, Courts would have a problem to convict the conduct with aids or abets the offence without forming an agreement amongst themselves. 3. Where there is no prior agreement to commit a crime, is mere presence at the scene of the crime sufficient to make the person an accessory? Compare the position relating to be present in the context of accessorial liability with the position under JCE

Conspiracy LK v RK, O’Brien 1. Agreement 2. Intention to agree to commit the crime 3. Knowledge of all physical elements of all offence- AR LK v RK - Recklessness is not sufficient

An agreement between 2 or more persons to do an unlawful act, or to do a lawful act by unlawful means (per QB Mulcahy at 317) Unlike complicity doctrines, conspiracy is an offence in itself It is an offence: – Under the common law (penalty = ‘at large’) – Statutory conspiracy offences, for example:  DMTA s 26 – conspiracy to supply/ manufacture drugs (penalty = same as if they had completed the offence)  Crimes Act s 26 – conspiracy to murder (penalty = 25 years) THE ELEMENTS 1. The existence of an agreement between 2 or more people including D to commit an unlawful act The focus is on the existence of an agreement • No steps need to have been taken • The agreement may be to: – Commit a crime (vast majority); or – Commit an ‘unlawful act’, e.g a commit a tort. • Negotiations will not be sufficient; there must be an agreement but it does not need to cover every detail. But this element of agreement will not be satisfied where substantial matters have yet to be agreed on (See O’Brien) In O’Brien, the defendants were charged with conspiracy to effect an escape from prison when they were caught taking photographs of a prison wall where members of the IRA were held....