Summary - complete - Criminal law and procedure overheads complicity PDF

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Criminal Law and Procedure Overheads Complicity...

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LAW EXTENSION COMMITTEE CRIMINAL LAW AND PROCEDURE COMPLICITY Definition Imposition of criminal liability on all persons involved in the commission of a criminal offence, not just the principal offender. Extends the scope of liability. Terminology Principal Offender/Principal in First Degree Person who performs the actus reus of a crime with the necessary mens rea, including: 

Person who is present at scene by reason of a previous agreement that the crime be committed (doctrine of joint criminal enterprise), and

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Person (Defendant) involved in a joint criminal enterprise, and a different crime occurs which was in the contemplation of the Defendant as a possible consequence of the joint criminal enterprise (doctrine of common purpose). Principal in Second Degree

Person who is present at the scene of the crime, and aides, abets, counsels or procures (assists or encourages) the principal offender in the commission of he offence. The principal in the second degree must intentionally assist or encourage. Accessory Before the Fact Person who is not present at the scene of the crime, and aides, abets, counsels or procures (assists or encourages) the principal offender in the commission of he offence. The accessory before the fact must intentionally assist or encourage.

Accessory After the Fact Person who assists the principal offender/principal in the first degree AFTER the crime has been committed (e.g. conceal the crime, or assist principal offender to avoid arrest). Terminology can be confusing because some cases refer to anyone other than the principal offender as “accessories” (i.e. both principal in second degree and accessory before the fact).

RELVANT LEGISLATION Crimes Act 1900 (NSW) Part 9 Sections 345-351B. Section 345 Every principal in the second degree of serious indictable offence liable to same punishment as principal in first degree (“serious indictable offence” defined in Section 3 as offence punishable by 5 years or more). Section 346 Every accessory before the fact shall by liable to same punishment as principal offender Section 347 Every accessory before the fact to a serious indictable offence may be indicted, convicted and sentenced either before, during or after the trial of the principal in the first degree. Section 349 (1) Every accessory after the fact to murder shall be liable for up to 25 years imprisonment. (2) Every accessory after the fact to robbery with arms, or in the company of others, or kidnapping under Section 85A liable for up to 14 years imprisonment. Section 350 Accessory after the fact to serious indictable offence (other than Section 349) liable to imprisonment up to 5 years. Section 351 Any person who aids, abets, counsels or procures the commission of a minor indictable offence…may be punished as principal offender.

Section 351A Person recruiting a child to perform or assist a crime liable to imprisonment up to 10 years. DISTINCTION BETWEEN DIRECT AND DERRIVATIVE LIABLITY-JOINT CRIMINAL ENTERPRISE

Osland v R (1998) 197 CLR 316 McHugh J (with whom Kirby J and Callinan J agreed in separate judgements) 

Explanation of different types of criminal liability, and doctrine of joint criminal enterprise.

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Person who is at scene of crime and acting in accordance with pre conceived plan, understanding or arrangement has attributed to him or her the actus reus of all others at the scene. If has mens rea for crime, then is a principal offender under doctrine of joint criminal enterprise. Irrelevant other participant is found not guilty due to lack of mens rea, self defence, provocation, duress or insanity.

PRINCIPLES OF DERRIVATIVE LIABILITY (i.e. PRINCIPAL IN SECOND DEGREE/ACCESSORY BEFORE THE FACT) The traditional approach of the criminal law is to consider the issue of complicy on the basis of a person being a principal in the second degree or accessory before the fact. This doctrine continues to apply, and applies to situations where there is no joint criminal enterprise. However, in recent times, the doctrine of joint criminal enterprise has expanded (in particular, the doctrine of common purpose). DERRIVATIVE LIABILITY-INNOCENT AGNECY EXCEPTION Accessory before the fact or principal in second degree who uses an agent to commit a crime is guilty as the principal offender Cogan and Leak (1975) 2 All ER 1059. Use of innocent agent to sexually assault Defendant’s wife. PRINCIPLE IN SECOND DEGREE Mohan v R (1967) 2 A.C. 187 2 Defendants who both wound the V. Cannot be established which one performed the fatal wound. Both convicted as principals in second degree.

CAN ACCESSORY BEFORE THE FACT BE CONVICTED OF MORE SERIOUS OFFENCE THAN PRINCIPAL OFFENDER? 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 ACTUS REUS DISTINCITION BETWEEN INNOCENT BYSTANDER AND PRINCIPAL OFFENDER OR PRINCIPAL IN SECOND DEGREE 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) 3 All ER 344 (Defendants watched another sexually assault V), and R v Russell (1933) VLR 39 (Defendant watched his wife drown herself and their children). MENS REA Is recklessness sufficient mens rea for accessory before the fact/ principal in the second degree? NO-Accessory must have knowledge of the facts which constitute the offence committed by the principal offender, and must intentionally assist or encourage: Giorgianni (1985) 156 CLR 473 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) 1 Q.B. 129 Mens rea of principals in the second degree Stokes and Difford (1990) 51 A Crim R 25

JOINT CRIMINAL ENTERPRISE AND DOCTRINE OF COMMON PURPOSE The principle of joint criminal enterprise and, in particular, the doctrine of common purpose has been one of the most controversial areas of the criminal law in recent times. Should the ‘lesser’ participants in a joint criminal enterprise face liability for the same crime committed by a ‘dominant’ participant? What if a different type (and more serious) crime is committed by a different person in the joint criminal enterprise than the crime which was the initial subject of the joint criminal enterprise? McAuliffe (1995) 130 CLR 26 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. (where participants in the joint criminal enterprise had agreed to bash and rob victims, but one of the participants killed one of the victims). The doctrine of common purpose was clarified in Gillard (2003) 219 CLR 1, 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. However, the doctrine of common purpose was heavily criticised as being unjust and unfair by Kirby J in Clayton (2006) 231 ALR 500. The law of complicity is currently the subject of review in NSW, but the Crimes Act 1900 has yet to be amended. WITHDRAWAL Can a person successfully withdraw from joint criminal enterprise, or plan to commit crime? Yes White v Ridley (1978) 140 CLR 341-Provided Defendant gives a “timely countermand” (per Gibbs J or takes action which breaks the chain or causation (per Stephen J) Rook (1993) 2 All ER 955 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)....