LAWS1206 Lecture Notes - Lecture 8: Wrong Turn, Crimes Act 1900, Case Citation
COMPLICITY – WEEK 8
Overview
•What is complicity?
•Issues of terminology and overlap
•Distinction between primary liability and secondary liability
•Statutory provisions – procedural law
•Branches of Complicity
–Accessorial liability
–Joint Criminal Enterprise
–Extended Common Purpose
•Can a member of the group withdraw and avoid criminal liability?
The doctrine of complicity
Doctrine arises out of “public concern over collective criminal activity”
“The general rationale for the doctrine of complicity is that a person who promotes or
assists the commission of a crime is just as blameworthy as the person who actually
commits the crime.”
oP395 textbook
‘Many crimes…are not committed single-handed. Others may be involved, directly or
indirectly, in the commission of a crime although they are not the primary offenders.
Any coherent criminal law must develop a theory of accessory liability which will
embrace those whose responsibility merits conviction and punishment even though
they are not the primary offenders’
oRahman [2008] UKHL 45 (Lord Bingham)
What is complicity?
The forms of complicity we will look at this week are a product of the common law
(judge made law)
It deals with situations where there is more than one person involved in a crime.
Not the same as being “in company”. This is a circumstance of aggravation.
It is a mode for making other people criminally liable.
N ot a crime in itself but rather a mode of participating in another person’s crime
Terminology of complicity
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The issue of overlap
‘The potential for confusion is compounded given that there appears to be
considerable overlap between the sets of rules, and because, in a given case, the
prosecution may rely on more than one of the sets of complicity rules to support the
conviction of persons other than the primary actor; or in circumstances where it is not
clear which of the individuals carried out the primary part of the actus reus… Judges
have periodically criticised prosecutors for unnecessarily complicating trials…by
advancing multiple theories of liablity, sometimes involving all three sets of
complicity rules.’
Illustrated by Clayton v R; Hartwick v R (2006) 231 ALR 500 (on WATTLE)
Three people inflicted multiple stab wounds on the victim, one of which caused the
victim’s death.
The prosecution could not prove who did the fatal stabbing but argued that each of
the three accused were liable for murder on the basis of one or more of the three
branches of complicity set out in the preceding slide.
Critical distinction:
Primary liability (ie liability as a principal offender)
AS OPPOSED TO
Secondary or derivative liability (ie liability that derives from the liability of the
principal offender)
Accessorial liability
This is a SECONDARY OR DERIVATIVE form of liability
History: The common law recognised ‘degrees’ of participation in relation to
felonies.
oThe perpetrator was the ‘principal in the first degree’ (primary liability)
oParties assisting or encouraging during the commission of the perpetrator’s
crime were called ‘principal in the second degree’ (derivative liability)
oParties not physically present during the commission of the offence were:
‘accessories before the fact’ (by assisting or encouraging before the
commission of the perpetrator’s crime) or
‘accessories after the fact’ (assisting after the commission of the
perpetrator’s offence).
Accessorial liability encompasses aiding, abetting, counselling or procuring
Secondary liability
IMPORTANT:
‘…the modern law no longer requires proof of the conviction or punishment [of the
perpetrator (see procedural provisions)], the liability of the accessory is derivative in
the sense that the prosecution must still prove that the offence [that was] aided or
abetted [counselled or procured] was committed (or at least attempted) by the
perpetrator.’
English case law
An “aider” is someone who helps, supports or assists the principal offender
(Thambiah v R [1966] AC 37).
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An “abettor” is a person who incites or encourages the principal to commit the
offence (Wilcox v Jeffery [1951] 1 All ER 464).
A “counsellor” is someone who advises or encourages the principal offender prior to
the offence (R v Calhaem [1985] QB 808).
A “procurer” is a person who causes the offence to be committed (R v Beck [1985] 1
All ER 571). A “procurer” sets out and takes steps to make something happen
(Attorney-General’s Reference (No 1 of 1975) [1975] QB 773).
See B& McS 400-402
Australian approach
Leading case = Giorgianni (1985) 156 CLR 473
High Court
Holistic approach to ‘Aids, Abets, Counsels and Procures’
Justice Mason stated:
o“While it may be that in the circumstances of a particular case one term will
be more closely descriptive of the conduct of a secondary party than another, it
is important that this not be allowed to obscure the substantial overlap of the
terms at common law and the general concept which they embody.”
oGiorgianni (1985) 156 CLR 473, 493.
Cussen ACJ in R v Russell [1933] VLR 59, 66-67:
o‘All the words … are… instances of one general idea, that the person charged
… is in some way linked in purpose with the person actually committing the
crime and is by his words or conduct doing something to bring about, or
rendering more likely, such commission.’
o Russell [1933] VLR 59 endorsed in Giorgianni (1985) 156 CLR 473.
See also Wood CJ at CL in R v Phan (2001) 53 NSWLR 480:
o‘Moreover, mere acquiescence or assent to a crime does not make a person
liable as a principal in the second degree. What was needed in such a case is
proof that the principal in the second degree was linked in purpose with the
person actually committing the crime, and was by his or her words or conduct
doing something to bring about, or rendering more likely, through
encouragement or assistance, its commission.'
AR for Accessorial liability
Aiding, abetting, counselling, procuring – as descriptive of a general concept of being
‘linked in purpose’ assisting or encouraging or facilitating the commission of an
offence
oGiorgianni (1985)
1. Can one be liable for “mere presence”?
2. Is there a requirement of presence for aiding and abetting?
‘Mere presence’
R v Coney (1882) 8 QBD 534
o‘it is not a criminal offence to stand by, a mere passive spectator of a crime,
even a murder. Non-interference to prevent a crime is not itself a crime.’
R v Phan [2001] 53 NSWLR 480, Wood CJ at CL stated:
o‘[T]he non accidental presence of the appellant and his acquiescence in or
assent to what occurred would not be enough, unless it was also made clear
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Document Summary
Issues of terminology and overlap: distinction between primary liability and secondary liability. Statutory provisions procedural law: branches of complicity. Doctrine arises out of public concern over collective criminal activity . The general rationale for the doctrine of complicity is that a person who promotes or assists the commission of a crime is just as blameworthy as the person who actually commits the crime. : p395 textbook. Others may be involved, directly or indirectly, in the commission of a crime although they are not the primary offenders. Any coherent criminal law must develop a theory of accessory liability which will embrace those whose responsibility merits conviction and punishment even though they are not the primary offenders": rahman [2008] ukhl 45 (lord bingham) The forms of complicity we will look at this week are a product of the common law (judge made law) It deals with situations where there is more than one person involved in a crime.
