LAWS 1206
SEMESTER 1 1999
MARK: 88
QUESTION 4
An attempt to convict D2 for the murder of S1 will require recourse to the doctrines of complicity.
Common Purpose
It appears that initially at lease D2 shared the common purpose of an intent to commit a 'foundational' crime namely the robbery of the jewel store (Johns).
McAuliffe establishes that where there is a common purpose members of the group will be liable for additional crimes committed by any group member wither where there was a tacit agreement that such crimes may be incidental to the completion of the main offence or where a given group member could foresee the possibility that another group member might commit such crimes.
In this case while there is no tacit agreement D2 can foresee that D1 may possibly commit additional violent offences, including murder, and his 'reasurrance' is clearly insufficient to negative such foresight.
Leaving aside questions of withdrawal or continuing purpose for the moment, we turn to D's act in driving the car at S1. This represents the requisite intention to inflict at least GBH required under s18 of the Crimes Act, making D1 guilty of murder.
The fact that, due to D1's death he will not be t… is no barrier to D2's conviction for common purpose muder - Miller.
D2's defences
D2's lack of presence at the scene of the crime is clearly insufficient to end the common purpose between D1 and D2, see Johns, Duong. It is unclear how relevant cases such as Rook and Weccesen (?), which dealt with aiding and abetting are to withdrawal from a common purpose.
Duong does hold that information which D2 can use to foresee possible consequences of a purpose ends at the time D1 and D2 part company, but this is not a barrier to D2's liability in this case as he knew about D1's propensities before they parted. Heany holds that where members of a group are not present they will only be liable where the original common purpose continues, and not for any new common plans adopted in their absence.
In this case D2 might argue that once D1 left the shop having completed the robbery the initial common purpose was at an end. However, it seems clear that D1's attempt to escape was sufficiently inseparable from the planned robery to be part of the original common purpose.
taking Rook and Beccera (?) as being relevant to common purpose withdrawals it is clear that D2's merely failing to turn up (as in Rook) fails all the tests set in White and Ridley regarding effictive withdrawal, which require at least that D2 demonstrate to D1 an intention not commit the offence in a manner capable of nullifying assistance (per Gibbs J, though provision of assitance in the form of tools islikely to be irrelevant under common purpose - see Couneling and procuring below)
Thus D2 has not effectively withdrawn and he is guilty of the murder of S1.
S2's killing of D1
Given the presence of mens rea for murder on the part of S2, he will be guilty of murder unless he can show he was provoked by D1, in which case he will be guilty of manslaughter (self defence would acquit him completely but does not arise on the facts - may deal if time remaining).
Provocation
For S2 to show provocation he must demonstrate that he was exposed to provocative conduct emenating from D1 (s23(2)(a)), though not necessarily directed to him (Hives, Quartly) [was conduct 'affecting the accused'?] that was of such severity, assessed subjectively from S2's point of view, that the ordinary person may have responded with the level of force S2 did - Masciantonio
If S2 raises provocation on the evidence the prosecution must negative it beyond reasonable doubt - s23(2)(a).
The fact that S2 felt no dear in regards to D1's conduct but rather anger is no barrier to his showing provocation (Van Der Hoelt) as any emotion may cause provocation. Similarly, as noted above D1 need not have directed his provocative actions at S2.
If S2 acted from a motive of revenge however, provocation will not avail him
Applying the factual test in this case, S2's claim that the effect of D1's conduct on him was particularly severe because of his close friendship with S1 and his hatred of attacks on security guards. The subjective claims are relevant to determining the gravity of the provocation faced by S2.
Given this high level of gravity the question becomes whether the ordinary person may have reacted in the same was S2 did. To the extent that S2 is claiming a lower level of self control because of stress this is not relevant to this limb of the test, which is objective.
On balance, seeing the death of one's friend might cause a reasonable person to react with deadly force, so S2 was provoked and is guilty only of manslaughter
Self defence
Will be dealt with briefly. For S2 to be acting in self-defence would require that he subjectively believed on reasonable grounds that his actions were necessary in the circumstances. This is a question of fact (Conlon) Given that D1 was escaping and S2 felt no fear the only grounds that could justify his belief in the necessity of shooting D1 would be protection of property (jewels) or apprehension of D1. Neither is likely to represent a reasonable use of force in the circumstances.
Accessory liability
If D1's leaving the jewellery store is held to end their common purpose D2 may still be prosecuted as an accessory before the fact. This would require that he had knowledge (broadly Maxwell) of D1's intentions as regards the murder and intended to do the acts assisting D (Sokes and Difford).
This seems unlikely, regarding the murder, as murder is sufficiently similar to robbery to be included (Bainbridge) as such D2 would not beliable as an accessory before the fact to murder, but would be for robbery.
If D2 were held to have the requisite mens rea, in order to withdraw his action would have to be capable of counteracting his earlier assistance (the sledge and the care) - White and Ridley
Conclusion
D2 is liable for common purpose murder
S2 is liable for voluntary manslaughter