Summary - Revision Notes on Parties PDF

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Revision Notes on Parties ...

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Revision Notes - Parties Approach to complicity problems  Deal with each party separately  Deal with separate offences if more than one (and cross-ref where appropriate)  Identify the main offence and the main offender  Reach a conclusion for each party to each offence

New S. 324C: Abolition of certain aspects of complicity at common law (1) The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence IS ABOLISHED. (2) The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) ARE ABOLISHED. Note: The common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is NOT abolished by this section

New S. 323: Interpretation (1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person— (a) intentionally assists, encourages or directs the commission of the offence; or (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence. NOTES : There are 2 types of complicity. 1. Where the person assists, encourages or directs the offence 2. Where the person enters into an agreement or understanding

(2) In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence. Note A person who committed an offence may include 2 or more persons who entered into an agreement, arrangement or understanding to commit the offence. (3)

A person may be involved in the commission of an offence, by act or omission— (a) even if the person is not physically present when the offence, or an element of the offence, is committed; and (b) whether or not the person realises that the facts constitute an offence.

NOTES: - It doesn’t matter if the encouragement doesn’t work – the person would still be liable. - 323 – a person does not need to be present at the scene of the offence. - There is no inconsistency - Also under that section, it doesn’t matter if the person knew what they were doing is or is not an offence.

New S. 324: Person involved in commission of offence taken to have committed the offence 

This is the LIABILITY SECTION Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence.

(1)

(2)

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NOTES: This provision applies to both summary and indictable offences. i.e. as if the offence was committed by him or herself. Derivative Liability Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence. NOTES: This is where the person has taken steps to withdraw him or herself from the commission of the offences. I.e. the person has effectively undone what they did in relation the offence

Note: The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit: For example, - White v Ridley [1978] HCA 38; (1978) 140 CLR 342;

(3)

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R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VicRp 24; [1980] VR 194. Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person. NOTES: LIMITATION APPLY YOUR COMMON SENSE PLZ

New Section S. 324A: Other offenders need not be prosecuted or found guilty A person who is involved in the commission of an offence may be found guilty of the offence whether or not any other person is prosecuted for or found guilty of the offence. NOTES: It doesn’t matter if no one else has been prosecuted for the offence. (I.e. all it matters is that the offence has been committed. ) - It may be the case that the person has committed an offence, but it is not criminally liable. But another person who encouraged them or assisted them is. Why? - It could be reasons such as - Mental impairment - Lack of knowledge of the true facts or - They were under the age of 10 years

New S. 324B: Offender's role need not be determined A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies. NOTES: It doesn’t matter if they were the ones who committed the offence or they were the ones helped - Just so long they played a role, they would still be liable under s.324 B - Because it would be difficult for judges or jury to determine such liability.

Elements of s.323 (1) External Elements: A person is involved in the commission of an offence if:

(a) Assists, encourages or directs the commission of the offence OR (b) Assists, encourages or directs the commission of another offence OR (c) Enters into an agreement , arrangement or understanding with another person to commit an offence OR (d) Enters into an agreement, arrangement or understanding with another person to commit another offence Fault Elements:  Intentional for (a) and (c)  Reckless for (b) & (d) on the basis that the D was aware it was probable that the offence charged would be committed in the course of carrying out the assisted/encouraged/agreed etc offence. S.323: Person involved, principal offender Lowery and King No. 2 [1972] VR 560 [Abduction/Electronic Flex/ Strangle] In this case, it was found that they reached an understanding. They were both present. They were both equally guilty The case put before by the P was that V was intentionally killed by the one One or other of them does, or they do between them, in accordance with their understanding … all the things that are necessary to constitute the crime, - They are all equally guilty of that crime, - Regardless of what part each played in its commission.” -

Osland v R (1998) 159 ALR 170 [Mother and Son/ Murder/ Father] Held: APPEAL DISMISSED: A person involved in a joint criminal enterprise with another is liable for the acts committed by that other person but the criminal liability of each will depend upon the respective mens rea and any defences which may be available. F died as a result of H and D acting in concert to kill him - notwithstanding that one or both of them may have been acting in self-defence or under provocation… H, who was present at the killing, was equally responsible for the act or acts of D that brought about F’s death and, therefore, her criminal responsibility was not dependent upon Ds [lack of] conviction. NOTES: - S 324 (a) and 324 (b) - It didn’t matter if she was the one committed - S 324 (a) it would not affect H if D had be acquitted of the conviction. - In any respect, if she has been charged as a joint principal offender or if H has been charged as an accessory

- She could still be found guilty as long as a principal offence has occurred.

Likiardopoulos v R [2012] HCA 37 [Mentally repaired V/beaten to death] Held: - Presence is NOT necessarily required for Joint Principal Offenders acting in concert = this concept itself is now the same as a Joint Criminal Enterprise. - It doesn’t if the jury is unsure – both or all of the parties will be liable for the principal offence. Innocent Agency Where an act which would be a crime if done by A, is caused by A to be done by B, and B does not commit a crime by doing so, the law may regard A as having acted by an innocent agent and as being guilty of the crime as a principal offender. A is liable as a principal offender (not accessory)  Under the doctrine of Innocent Agency, D will be labelled a Principal Offender if he has the MR for a crime and uses an Innocent Agent to complete the AR on his/her behalf.  (Like a puppeteer whose evil mind controls the actions of the innocent puppet who has no MR at all). NOTES: Such as a child - Initiation of the D - The children themselves may not be guilty of the offence The doctrine of innocent agency - When a party used an innocent agent such as a child – their offence will be primary - This was no offence committed by the innocent agent, but the D. R v Cogan and Leak [1976] QB 217 [Sex/wife’s submission] Facts: - Cogan was acquitted as he thought that her wife was consenting. HELD: Court of Appeal used the doctrine of innocent agency to find that Leak was in fact the Principal Offender who performed AR through Cogan, an innocent agent who lacked any MR. R v Hewitt [1997] 1 VR 301 [D tried to convince Co-D and V to have sex/ Forest] Facts: - D knew that V was consenting. - Co-D didn’t know that she was not consenting. Held:

- P was NOT GUILTY but H was guilty as a Principal Offender because H had the MR to manipulate the situation and P was “merely the instrument used” (so Ps AR was attributed to H).

S.323(1) External Elements: A person is involved in the commission of an offence if: (a) Assists, encourages or directs the commission of the offence OR (b) Assists, encourages or directs the commission of another offence OR (c) Enters into an agreement, arrangement or understanding with another person to commit an offence OR (d) Enters into an agreement, arrangement or understanding with another person to commit another offence Being involved in the commission of an offence: S 323(a) & (b) R v Russell [1933] VLR 59 FACTS: Father found guilty watching his wife drown their two children. The issue was whether failing to act could be classed as abetting/ encouraging the murder. HELD: - In certain circumstances, since R was under a duty of care, a failure to act may amount to complicit participation in the offence. - If you were there and you just let the crime to go ahead, that’s assent to the crime. - The accused liability derived from his DOC to save his children. - Here as he owed a DOC to his kids and his failure to indicate that she ought not to do that could be considered assent , encouraging the crime. - Therefore, he was complicit. NOETS: - Under the old law, for an accused to be complicit, s/he needs to assist or encourage the offender through a positive act. - However, in some cases, an omission to act could give rise to criminal liability if - the person was under a DOC to prevent the crime committing by the PO, OR - s/he had control over the PO, but deliberately failed to stop them R v Coney (1882) 8 QBD 534 FACTS: Spectator who watching illegal fight. Charged with aiding the fight by being a spectator. No direct evidence that he was encouraging them HELD: - 8-3 majority

- While accidental presence is no evidence of participation, voluntary presence may be. - Mere presence may in some circumstances amount to participation in the crime. - It was held that if the accused was deliberately present at the time of the fight, he was encouraging the commission of it. - The idea was that, if people didn’t turn up, these fights would not happen.

Being involved in the commission of an offence – Fault element Fault Elements:  Intentional for (a) and (c)  Reckless for (b) & (d) on the basis that the D was aware it was probable that he offence charged would be committed in the course of carrying out the assisted/encouraged/agreed etc offence.

Intentionally  Pros must prove that D intended it to assist in the commission of the actual crime that was committed at the time.  It is NOT enough for Pros to prove that: 1. D had a general intention to assist crime: Giorgianni; or 2. D intended to assist or encourage a significantly different crime: Giorgianni.  It is NOT necessary that the accused intended to produce that result. It is ONLY necessary that s/he intended to assist or encourage the conduct that ultimately produced that result: Giorgianni v R (1985) 156 CLR 473.

Fault element cases: R v Giorgianni (1985) 156 CLR 473 [culpable driving] FACTS: - 5 people were killed and 1 seriously injured when a truck with defective brakes ran out of control. D was the owner (but not the driver) of the truck and was charged with being an accessory to culpable driving. - At trial, the jury was directed that a negligent failure to be aware of the unsafe condition of the truck was enough for the mental element of complicity in culpable driving and D was convicted. - D appealed to the High Court and had his convictions overturned. HELD: To be an accessory, the accused must have:  known all of the essential facts which made the principal offence a crime; AND

 intentionally aided, abetted, counselled or procured the acts of the principal offender  To be an accessory under the common law, recklessness or negligence is not sufficient, even if it would be sufficient for the principal offence. THIS HAS NOW CHANGED BECAUSE RECKLESSNESS IS INCLUDED IN SECTION 323(1)(b) AND (d).  Actual knowledge is required but actual knowledge may be inferred from circumstances where an accused is wilfully blind and deliberately shuts his eyes to the obvious.  However on those facts, G’s appeal allowed – a belief the brakes probably or possibly defective was not enough.  Even though this was a strict liability offence, the P still has to prove that G intentionally aided the PO.  Even if the principal offence does not need MR, it doesn’t affect what you need to have for a person to be complicit. NOTE: Under the NEW law, D might well have been found guilty on the basis recklessness under s.323(1)(b) which establishes recklessness as sufficient MR for complicity: it uses the words “was aware it was probable” which equates to recklessness. Issue:  What is the meaning of ‘aids, abets, counsels or procures’? Reasoning:  The terms are merely declaratory of the common law; we must therefore look at the common law concept of secondary participation and not to the ordinary meaning of the words themselves.  Each of the four terms is employed to refer to the conduct of a secondary participant, but the terms are descriptive of a single concept  There is no difference between these terms R v Bainbridge [1960] 1 QB 129 [Bad luck supplier] FACTS: - Burglars acquired equipment to break into houses. - Also considered the role of the people who supplied the equipment? - D argued they might have known the equipment was used for robberies, but they didn’t know when and where it would happen. HELD: - You do not need to know all of the facts that were involved to be criminally liable. - All that D needs to know to be culpable are the essential knowledge of the type of offence in question (i.e. that the equipment was going to be used for breaking into houses – not the particular knowledge of which houses or when). - Additionally, the Jury didn’t believe him that he thought it was only going to be used cutting parts. - Appeal dismissed NOTES:

- To be an accessory, the D has to know what he is assisting – G/ culpable driving. - They don’t need to know what they were doing is a crime - 323 (3).

R v Stokes and Difford FACTS: - S and D were jointly charged with assaulting V in jail. - S had said to D – “hit him or I will”. S had aggressively threatened two other witnesses near by. - S asked who was being the smart-arse and D pointed to V. - S said “yeah, hit him. - He is a f*cking smart arse. Hit him or I will.” - S severely attacked V. - D kicked V twice & told S that V had had enough. ISSUE: The appeal focused on whether D should have been charged as a Joint Principal Offender or merely an accessory. HELD: - This case was a ‘classic’ one of Principal Offender and accessory under the common law because P was the main aggressor and there was no 'prearranged plan’. - D was present and assisted/encouraged D on the spur of the moment. - The point is that it was NOT the accessory’s intention to injure the victim himself – it was enough that it was D’s intention to assist S, the principal, in the commission of a crime. - It was held that P had to prove that Difford knew or was aware: (1) The intention of Stokes to hit the V (2) Realise the possibility that some injury may come about, but nevertheless hit the V anyway. - With that knowledge, he would be guilty as a PO.

Recklessness S 323(1)(b) & (d) the D was aware it was probable that the offence charged would be committed in the course of carrying out the assisted/encouraged/agreed etc offence.  Foresight of probability is necessary  Extends old common law for test of possibility to test of probability. NOTES: Relevant to both assisting and encouraging + group activity

Withdrawal Until the principal offence is committed, the person is not liable - The D may escape the liability of the principal offence of his or her involvement in the offence before the principal offence is actually committed. - The effect is to undo or remove the effect of the person’s prior influence of the principal offender and the commission of the offence. NOTE: - The more the person has contributed to the commission of the offence, the more the person has to do to withdraw from the offence. - CL still applies to these cases.

S. 324(2) and withdrawal (2) Despite subsection (1), a person is not taken to have committed offence if the person withdraws from the offence.

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Note: The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit. For example: - White v Ridley [1978] HCA 38; (1978) 140 CLR 342; - R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; - R v Jensen and Ward [1980] VicRp 24; [1980] VR 194.  D may avoid liability if s/he expressly withdraws assistance or encouragement before the offence is committed: White v Ridley.  For withdrawal to be effective, D must take ALL reasonable action to undo the effect of his/her previous encouragement/assistance. This may include informing the police: White v Ridley.  It is usually difficult for D to withdraw at the time of the offence because this will usually require greater action to undo the effect of previous assistance or encouragement.  D’s withdrawal must be demonstrated by words or conduct sufficiently clear/specific to the principal offender that D no longer wants the principal offender to commit the offence. D’s withdrawal must not be too late to stop train of events: White v Ridley at 351. Cases: White v Ridley (1978) 140 CLR 342 [A box of cannabis and wanted to cancel] FACTS: - D shipped a box of cannabis to Australia (airfreight) in a stereo box.

- D attempted to cancel (‘countermand’) the consignment by sending a telex. - The message to the airline was too late and the drugs got imported into Australia. HELD: Gibbs J: the countermand or withdrawal must be 1. Accompanied by all reasonable steps to undo the effect of the previous encouragement or participation 2. Sufficiently clear; and 3. timely. - Withdrawal cannot excuse the D from criminal liability unless it broke the chain of causation.

Accessories after the fact: s 325 Where a person... has committed a serious indictable offence..., any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence. Accessory after the fact/assist offender 1....