LAWS1206 Lecture Notes - Lecture 14: Obiter Dictum, Susan Kiefel, Common Assault
Week 10 : Complicity
Governed by the common law
Identify the relevant law and apply the relevant
Application: clear and concise, application to the law
Monday, 1 May 2017
09:39
What is complicity?
Issues of terminology and overlap
Distinction between primary liability and secondary liability
Branches of Complicity
oAccessorial liability
oJoint Criminal Enterprise
oExtended Common Purpose
Statutory provisions in Crimes Act 1900 (NSW)
Can a participant of the group withdraw from the crime and
avoid criminal liability?
Doctrine of Complicity
Doctrine arises out of “public concern over collective criminal activity”
“…a person who promotes or assists the commission of a crime is just as
blameworthy as the person who actually commits the crime.”
Finding people who facilitated and helped even if they didn’t actually do
the act
Extending liability beyond primary offender
‘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’ Rahman [2008] UKHL 45 (Lord Bingham)
Nb. The law in operation in this area can be inconsistent
Osland v The Queen (1998) 197 CLR 317
David Albion was aquitted for killing his step-father.
Heather Osland was convicted and sentenced to 14 ½ years imprisonment
13 years of violence abuse to his son, wife and daughter
The son killed the Father , acquitted in self-defence
Heather was convicted even though did not kill
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find more resources at oneclass.com
How can person X be responsible to this crime?
What if X helped A?
How could X be criminally liable
What if a lookout
What if X wasn't involved in any of those stages but showed up after to
remove the body?
What is complicity and what is not?
Deals with situations where there is more than one person involved in a crime.
Different to "in-company" two separate concepts
In-company=aggravating factor, aggravates the offence, i.e. assault and
higher penalty attaches
Complicity finds the other person , how can that participation be a criminal
conduct and merit punishment
Not the same as being “in company”. This is a circumstance of aggravation.
Is a mode for making other people criminally liable. (extending the
conduct of the perpetrator to other people)
N ot a crime in itself but rather a mode of participating in another person’s
crime (it is way of making someone else criminally liable, procedural provision)
Complicity is a product of the common law (judge made
law)
Charged under s59 and liable under the principle of joint
criminal enterprise
Terminology of complicity
Accessorial liability (aiding, abetting, counselling or procuring): principle
in first degree, in the second degree…..
Acting in concert also known as ‘ joint criminal enterprise ’ (particularly in
NSW – Law Reform Commission document, which uses JCE). It has been seen as
equivalent to traditional ‘ common purpose’ (but see discussion in B & McS).
Extended common purpose also known as ‘extended joint criminal
enterprise’
accessorial
liability
aiding, abetting,
counselling or
procuring
joint criminal
enterprise
(used in NSW)
acting in concert
(used in Vic)
basic/simple/
straight-forward
joint criminal
enterprise
traditional common
purpose or “the
traditional doctrine of
common purpose”
(rarely)
common
design
extended “the extended Extended joint
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find more resources at oneclass.com
common purpose
(used in NSW
Vic)
doctrine of
common
purpose”
criminal enterprise
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.
Tied neighbour, and the 3 people stabbed the men to death, not sure which
stab convicted of the fatal blow
The men could have been accessory, aided
Liable under JCE, engaged in JCE
Or liable under extended common purpose
Critical distinction
Primary liability (ie liability as a principal offender)
The person who committed the offence , committed the conduct and has the
mens rea
Or people who are at the scene etc
AS OPPOSED TO
Secondary or derivative liability (ie liability that derives from the
liability of the principal offender)
Carried out by someone else,
The offender is referred to as principal in the second degree
The person can only be convicted of the crime if the person is capable of being
convicted
In reality, often two separate trials
In X's trial, there must be beyond reasonable doubt in A's case, that A did
commit the crime
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Identify the relevant law and apply the relevant. Application: clear and concise, application to the law. Doctrine arises out of public concern over collective criminal activity . A person who promotes or assists the commission of a crime is just as blameworthy as the person who actually commits the crime. Finding people who facilitated and helped even if they didn"t actually do. 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 law in operation in this area can be inconsistent. David albion was aquitted for killing his step-father. Heather osland was convicted and sentenced to 14 years imprisonment. 13 years of violence abuse to his son, wife and daughter.
