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Lecture

2. [ss7-10A] Parties

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Parties PRINCIPAL O FFENDERS : S7 (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say— Applies to all criminal provisions whether in the code or elsewhere: Wilson v Dobra; Hunt v Maloney Prerequisite—commission of offence • Prerequisite—that offence be committed: s7(1) • Offence = act or omission which renders the person doing the act or making the omission liable to punishment: s2 Executor: s7(1)(a) every person who actually does the act or makes the omission which constitutes the offence = Principals in the first degree (CL) • One act or omission of several which combine to constitute the offence is sufficient: Wyles per Lucas J; Ambrose J in Sherrington (several people fighting at a party—one person killed— unclear who made the fatal blow  all persons involved contributed to death → manslaughter) and Kuchler • Need not prove which caused death—both responsible once becomes aware that life-threatening force being applied: R v Lowrie & Ross (murder—prostitutes bashing another prostitute over money—later died  both guilty) • Also counsellor & procurer under s7(1)(d)—where two persons plan to commit an offence, each counsels & procures the other: R v Solomon Accessory • Still responsible even if principle acquitted: Lopuszynski (rape—primary offender not prosecuted (no evidence)—aider confessed  was punished) • Need not be convicted of the same offence—responsibility includes for statutory alternatives: s10A(1) reinstating Jervis: Barlow Accessory Present Aider: s7(1)(c) … every person who aids another person in committing the offence … = Accessories at the fact (CL) • Mere presence—generally not sufficient: Coney (assault—illegal fight—C sitting in audience  merely present—silence and watching could not be taken as active encouragement—must take active steps by word or action to instigate principals → not guilty) o UNLESS relationship demands intervention (eg father & child): Russell (murder—father watching wife drown children—failed to act  aider ← also s286 imposes duty to children in your care—failure to meet duty = deemed to have caused the consequences) • Requires some form of active encouragement: Coney (1882) (assault—illegal fight—C sitting in audience  merely present—silence and watching could not be taken as active encouragement —must take active steps by word or action to instigate principals → not guilty) o Not guilty if unaware that presence is encouraging the actions: Clarkson (soldiers found another soldier raping a girl—had been drinking—watched but did nothing to encourage or participate  not aware that presence was encouraging the rape → not guilty) o “support, help and assist”: Beck (rape & murder of 12 yo—kidnapped by husband & wife —husband killed & raped in wife’s presence  wife guilty of rape & murder also) Andrew Trotter LWB239 Criminal Responsibility o Lookouts may be aider as well as enabler: Johnston (shoplifting—M stealing | J outside | J tapped window to tell to get out  J guilty of breaking & entering | stealing under ss(b) or (c)) • Misinterpreted words, gestures or silence not sufficient: Coney • Not if merely pursuing own ends → separate offences: Walton v Harman • Acting in concert—no obstacle that cannot determine which blow caused the injury: R v Webb Accessories Not Present Enabler: s7(1)(b) … every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; … = Accessories before the fact | principals in the 2 degree (CL) • Potential overlaps with s7(1)(c) • Includes— o Lookouts (may be aider also): Johnston (shoplifting—M stealing | J outside | J tapped window to tell to get out  J guilty of breaking & entering | stealing under ss(b) or (c)) o Providing weapons / equipment: Jervis (vampire case—stabbing—one girl provided knife— another girl stabbed him  girl who provided knife guilty of manslaughter) o Getaway driver: Borg (murder—B drove killer away from the scene  enabler) [helps escape after the fact →s10] o Tools for burglary: Bainbridge Counsellor or procurer: s7(1)(d) … any person who counsels or procures any other person to commit the offence … = accessories before the fact (CL) • Effect—liable for the offence as if they committed it: s7(3) (counsellor) | s7(4) (procurer); R v Webb (procurer of innocent agent guilty as though they did it themselves) • Where two persons plan to commit an offence, each counsels & procures the other: R v Solomon o May be charged with committing or counselling or procuring commission of the offence (s7(2)) • Counsel = advise, urge, solicit, recommend, encourage by word or deed: Oberbillig • Procure = cause or bring about the plans or commission of the offence: Oberbillig o Innocent agents— (s7(4); examples given in White v Ridley)  Airline bringing drugs into Australia not knowing drugs are in box  Person unknowingly passing on forged bank note  Person given incorrect information & entered on register believing that true  Innocent engraver making forged plate Probable Consequence Liable so long as facts of offence are a probable consequence of the counsel: s9(1) • Probable consequence = more than a real possibility or chance: Darkan (2006) o > consequence which is barely possible (→ not sufficient) o < consequence more likely than not to happen (→ not necessary to establish) • Irrelevant, if facts of offence a probable consequence of counsel, that— (s9(1)) o Offence different to that counselled o Offence committed in a manner different to that counselled • Counsellor can be responsible for a probable consequence even if they specify that that consequence should not arise: Nichols, Johnson and Aicheson (counselling to commit arson for insurance purposes—specified that noone should be hurt—one person killed  death is a probable consequence of arson → counsellor for unlawful killing) Andrew Trotter LWB239 Criminal Responsibility • Example— o Death = probable consequence of arson: Stuart (S counselled F to set drums of petrol alight in nightclub—15 people died  F&S both guilty of murder) o Killing a security guard = probable consequence of robbery: Brennan v The King (1936) (robbery—knew there was a guard & would have to prevent him from interfering with plan  foreseeable that they might kill him) Knowledge of Aiders & Enablers (s7(1)(b)&(c)) Aid must be with knowledge: Jervis per McPherson ACJ; R v Beck per Macrossan CJ • Knowledge ascertained subjectively: Johns • Guilty if the act constituting the offence charged was— o contemplated as a possibility by the parties in carrying out their common purpose; or o incidental to the execution of that purpose or design (Johns (robbery & murder—J=getaway driver knew that W=robber always carried a gun | quick tempered | told J he wouldn’t muck around—W attempts to rob M | no jewellery | kills M—W tells J ‘it’s gone bad’  J should have contemplated that W might kill M → enabler for murder)) • knowledge of type of offence sufficient: Bainbridge (no need to know specific day, place etc) • must be aware of acts & state of mind of principle: Stokes v Difford • NOT where no more than a mere possibility: R v B& P per Pincus J • Level of knowledge— o Either—  Intentionally participating with knowledge of all the essential facts which make what is being done a crime or  Wilful blindness o Not sufficient—negligence or recklessness (R v Giorgianni (dangerous driving causing death—G=employer encouraging employee to drive truck which he knew had defective brakes—crash killed passenger in other vehicle  had knowledge of essential facts or was wilfully blind → aider)) • Murder → intent to enable others in the group to kill or do GBH: Pascoe in Qld Unexpected Incident & Changes in the Common Plan • Accessories present (aider)—plan changes as events unfold → responsible for changed plan: Beck (rape & murder of 12 yo—kidnapped by husband & wife—husband killed & raped in wife’s presence = aider  wife guilty of rape & murder also) o ← liable for offences which accessory realises at the time when aid is given that might be involved in carrying out the agreed plan: Beck o Liable even though unexpected incident occurs—  Where knew that a weapon was being carried but not expecting its use: Markby (drugs & murder—M&H selling drugs to S—M knew that H carried gun—H killed S  death an unexpected consequence of the drug transaction—but not completely beyond the scope of the common design → guilty)  Where did not know of the weapon but its use is reasonably incidental to the plan: Varley (police interrogation about location of stolen money—use of batons to rough up—killed—argued that went beyond scope  roughing up with the batons within the scope of the plan → guilty)  Where weapon is different to what thought it was: Dang (aider thought it was a machete—was actually a rifle  unexpected incident → guilty nonetheless)  Committing extra offences than those planned: Beck (rape → rape & murder) Andrew Trotter LWB239 Criminal Responsibility o Need not prove which caused death—b
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