CRIMINAL COMPLICITY

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Contents

CRIMINAL COMPLICITY......

FOUR AREAS......

HISTORY......

Considerable confusion in the law......

ACTING IN CONCERT......

THE BASIC PRINCIPLE......

THE ELEMENTS

FIRST ELEMENT - THE AGREEMENT

SECOND ELEMENT - PERFORMANCE OF THE NECESSARY ACTS......

THIRD ELEMENT - PRESENCE AT THE COMMISSION OF THE CRIME......

FOURTH ELEMENT - ACCUSED’S MENTAL STATE......

DEFENCES......

JOINT CRIMINAL ENTERPRISE......

AID AND ABET......

LIABILITY OF A PERSON WHO AIDS, ABETS, COUNSELS OR PROCURES......

THE BASIC PRINCIPLE......

MEANING OF AID AND ABET......

ELEMENTS OF AIDING AND ABETTING......

Element one - that the offence was committed......

Element two - the accused knew the essential circumstances that establish the principle offence......

Element 3 - assistance or encouragement......

Counselling or Procuring (assistance before the offence)......

Aiding or Abetting (assisting at the time of the offence)......

Conveying Assent......

Presence at the Commission of the Crime......

Failure to Act......

Withdrawing assistance or encouragement......

A FORM OF SECONDARY LIABLITY......

Non-conviction of principal......

Doctrine of innocent agency......

Attempts......

Assaults......

EXTENDED COMMON PURPOSE......

ELEMENTS......

Agreement to Commit a Crime......

Performance of the necessary acts......

Foresight of accused......

ACCESSORY AFTER THE FACT......

A SEPARATE OFFENCE......

ELEMENTS

DISCUSSION OF RECENT CASE......

Victoria Legal Aid – Criminal Complicity

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FOUR AREAS

  • Acting in Concert
  • Aid and Abet, counsel and procure
  • Extended common purpose
  • Accessory after the fact

HISTORY

  • Before Crimes Act 1958 law depended on whether crime was felony or misdemeanour:
  • s323 – abolished that distinction. Whether you are acting in concert or an aider, abetter, counsellor or procurer you are guilty as a principal in the first degree. (the legal consequence is the same – accessory after the fact)
  • But distinction still significant depending on whether source of liability is primary or secondary –Osland(1998) 197 CLR 316

McHugh J Osland (1998) 197 CLR 316

[71] Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.

[72] However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King (No 2) by Smith J who directed the jury in the following terms:

"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they areboth present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, 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. In such cases they are said to have been acting in concert in committing the crime."

Considerable confusion in the law

In R v Phan(2001)53 NSWLR 480; [2001] NSWCCA 29the NSW Court of Criminal Appeal distinguished between a case based on "common enterprise" and a case based on "common purpose". Wood CJ at CL said at [64]:

"The distinction between 'common purpose' and 'joint criminal enterprise' is not always respected, having regard to the way in which these terms, and the related terms 'common design' and 'concert' are very often used interchangeably".

McAuliffev The Queen (1995) 183 CLR 108 at113, the High Court has said that the terms “common purpose” and “joint criminal enterprise” are used “more or less” interchangeably.

ACTING IN CONCERT

THE BASIC PRINCIPLE

The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, 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.

R v Lowery & King (No 2) [1972] VR 560 Smith J

McHugh J R v Osland (1998) 197 CLR 316

[93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.

Acting in concert is a form of primary liability - Osland v R

THE ELEMENTS

To establish liability by way of acting in concert, the prosecution must prove:

That two or more people reached an agreement to commit a criminal act that remained in existence at the time the offence was committed;

That the parties to the agreement between them performed, in accordance with the agreement, all of the criminal acts necessary to commit the offence, in the circumstances necessary for the commission of that offence;

That the accused was present when the offence was committed; and

That the accused had the state of mind required for the commission of the relevant offence at the time of entering into the agreement (R v Lowery & King (No 2) [1972] VR 560; R v Jensen and Ward [1980] VR 194; Osland v R (1998) 197 CLR 316; Matusevich v R (1977) 137 CLR 633).

See Judicial College Victoria Charge Book

FIRST ELEMENT - THE AGREEMENT

Understanding does not have to be pre-arranged or explicit

For people to be acting in concert in the commission of a crime their assent to the understanding or arrangement between them need not be expressed by them in words their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing; it may be reached only just before the doing of the act or acts constituting the crime. Remember, however, that before a person can be found guilty of a crime under this doctrine he must have been present when it was committed and the crime committed must not go beyond the scope of the understanding or arrangement. On the other hand, it is to be remembered that under this doctrine, although the understanding or arrangement must not have been called off before the commission of the crime, the mere facts that while it is being committed one of the persons acting in concert feels qualms or wishes he had not got himself involved or wishes that it were possible to stop the proceedings and still get off Scot free, will not amount to a calling off of the undertaking or arrangement. R v Lowery & King (No 2) [1972] VR 560 Smith J

But The fact that two people spontaneously decided to pursue the same course of action does not necessarily prove that they were acting pursuant to an agreement to commit a particular crime (R v Taufahema [2007] HCA 11).

In relation to the agreement, the prosecution must prove:

  • that the accused reached an agreement to commit a criminal act (“the foundational crime”)
  • and it was in existence at the time that the offence was committed
  • they shared an understanding of a criminal act even if they did not have the same intention, or the same awareness of the consequences of that act – may not be necessary to prove that all the accused were parties to the same agreement

Prosecution must prove that agreement must not be called off before the offence is completed

  • The withdrawal must ordinarily have been expressly communicated to the other members of the enterprise - in exceptional circumstances can be implicit (White v Ridley (1978) 140 CLR 342).
  • The withdrawal must be accompanied by all action the accused can reasonably take to undo the effect of his/her previous encouragement or assistance. This may include informing the police (White v Ridley (1978) 140 CLR 342; R v Tietie (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VR 196) – unless accused reasonably believes that withdrawal will cause the others not to pursue the original act
  • Must be a timely and effective withdrawal- leaving the scene shortly before the offence is completed, or by attempting to withdraw when it is too late to stop the offence not sufficient (White v Ridley (1978) 140 CLR 342; R v Whitehouse [1941] 1 DLR 683; R v Rook [1993] 1 WLR 1005).
  • Private feelings of regret, or wishes that s/he could stop the offence not sufficient (R v Lowery & King (No 2) [1972] VR 560).
  • Where the accused has set in motion a chain of events leading to the commission of an offence, any attempts to withdraw from participation must be capable of effectively stopping the offending (White v Ridley (1978) 140 CLR 342).
  • Defence must point to some evidence that shows that the accused unequivocally countermanded or revoked his/her previous agreement. The prosecution will then bear the onus of disproving this withdrawal (White v Ridley (1978) 140 CLR 342; R v Croft [1944] KB 295; R v Rook [1993] 1 WLR 1005).

SECOND ELEMENT - PERFORMANCE OF THE NECESSARY ACTS

  • All the physical elements necessary for the commission of the crime must be committed
  • Mental state of participants does not need to be proved
  • Extent of each participant’s involvement is irrelevant as long as actions performed in accordance with agreement – in acting in concert each agreement attributed to all (see Osland)

The Act must be within the scope of the original agreement

  • In some cases, in the course of pursuing the foundational crime a different offence will be committed - For the accused to be liable for that offence, the prosecution must prove that it was within the scope of the agreement (R v Jensen and Ward [1980] VR 196; R v PDJ (2002) 7 VR 612; R v Anderson [1966] 2 QB 110; R v Heaney & Ors [1992] 2 VR 531).
  • The scope of the agreement must be determined by considering the subjective beliefs of the participants at the time the agreement was formed, or at the time the parties agreed to vary the original agreement (R v Johns (1980) 143 CLR 108; R v McAuliffe (1995) 183 CLR 108).
  • If the participants’ beliefs about the scope of the agreement differed, its scope will be confined to those beliefs that all of the participants shared (see, e.g., Gillardv R (2003) 219 CLR 1; R v Zappia (2002) 84 SASR 206).
  • The scope of the agreement includes any contingencies that are planned as part of the agreed criminal enterprise (R v Becerra (1976) 62 Cr App R 212).
  • The liability of the accused is based on his/her authorisation (express or implied) of the criminal acts. Even if the accused did not believe that those acts were likely to be committed, s/he will be liable if they were within the scope of the agreement (Johns v R (1980) 143 CLR 108; Chan Wing-Siu v R [1985] AC 186; Britten v R (1988) 49 SASR 47).
  • In some cases the parties will have differed in their understanding of how the foundational crime was to be carried out, leading to arguments that the accused had not agreed to participate in the particular offence that was committed. In such cases, the jury must consider whether the use of the means adopted placed the offence outside the scope of the agreement, or whether the use of those means was no more than an unexpected incident of carrying out the common agreement (Varley v R (1976) 12 ALR 347; R v Heaney & Ors [1992] 2 VR 531).
  • Where the agreement involves the use of violence, the jury may need to consider whether the perpetrator acted outside the scope of the agreement by unexpectedly using a weapon. This will depend on the facts of the case, the understanding of the parties, and the difference between the weapon used and the manner of violence intended (see Varley v R (1976) 12 ALR 347; R v Anderson [1966] 2 QB 110; Markby v R (1978) 140 CLR 108; Wooleyv R (1989) 42 A Crim R 418; R v Heaney & Ors [1992] 2 VR 531).

THIRD ELEMENT - PRESENCE AT THE COMMISSION OF THE CRIME

  • The third element requires the accused to have been present when the offence was committed (R v Jensen & Ward [1980] VR 194; R v Camilleri [2001] VSCA 14).
  • The accused’s presence is necessary in order to give reality to his/her participation in that offence, or his/her willingness to participate in it (R v Camilleri [2001] VSCA 14).
  • While the accused must be “present” at the commission of the offence, this does not require him/her to be at the physical location where the offence is committed. S/he merely needs to be in the vicinity, and to have practical relevance to the person carrying out the offence (R v Camilleri [2001] VSCA 14; R v Jensen & Ward [1980] VR 194).
  • A person will have been “present” at an offence if s/he was at a nearby location for some purpose designed to facilitate or encourage the commission of that offence, such as keeping a watch for police, or being ready to assist an escape (R v Camilleri [2001] VSCA 14).

FOURTH ELEMENT - ACCUSED’S MENTAL STATE

  • The fourth element requires the prosecution to prove that the accused had the state of mind required for the commission of the relevant offence (Osland v R (1998) 197 CLR 316).
  • The law is not entirely clear on when the accused must have this required state of mind. The better view appears to be that the accused must have the required state of mind at the time s/he entered into the agreement (Osland v R (1998) 197 CLR 316; Hui Chi-Ming v R [1992] 1 AC 34).
  • This is because the principle of acting in concert only attributes criminal acts to the parties to the agreement, not criminal intentions. The jury must therefore separately assess the state of mind of each accused (R v Stewart; R v Schofield [1995] 3 All ER 159; Osland v R (1998) 197 CLR 316; R v Clarke & Johnstone [1986] VR 643; but c.f. R v Jensen and Ward [1980] VR 196).
  • In homicide cases, this can allow the jury to convict one party of murder and another party of manslaughter (Osland v R (1998) 197 CLR 316; R v Howe [1987] AC 417; R v Stewart; R v Schofield [1995] 3 All ER 159).
  • Under this view of the law, the state of mind at the time of forming the agreement is deemed to continue unless the accused withdraws from the agreement. It is not enough that the accused has private feelings of regret or wishes that s/he could stop the offence (R v Lowery & King (No 2) [1972] VR 560; R v Becerra (1976) 62 Cr App R 212). See Withdrawing From an Agreement (above).

DEFENCES

  • The prosecution must disprove any defences that are open on the evidence (Osland v R (1998) 197 CLR 316).

JOINT CRIMINAL ENTERPRISE

Suggested in the Judicial College Charge book that acting in concert is a species of joint criminal exercise and that presence is not necessary.

Would then make it possible for someone to be primarily liable for an offence where not present?

But isn’t the essence of primary liability participation?

A misapprehension brought on by fact that “joint criminal enterprise” is the terminology used in NSW for acting in concert.

McHugh in Osland referring to New South Wales Court of Criminal Appeal in Tangye

[74] In accordance with the New South Wales practice, the Court referred to "carrying out a criminal enterprise" rather than acting in concert. The principles, however, are the same.

Adopted by Weinberg JA Smith, Garcia & Andreevski v The Queen [2012] VSCA 5 at [185]

AID AND ABET

A form of secondary liability

LIABILITY OF A PERSON WHO AIDS, ABETS, COUNSELS OR PROCURES

  • A person may be tried as a principal offender if s/he aids, abets, counsels or procures the commission of an indictable offence (Crimes Act 1958 s323).
  • A person who aids, abets, counsels or procures the commission of an offence commits that substantive offence. S/he does not commit a distinct offence of being an accessory (R v Wong [2005] VSC 96).

The situation in relation to summary offences is slightly different - Crimes Act s324 provides that such a person will be liable to the same punishment as a principal offender. Despite this difference, many of the principles outlined in these Notes will be relevant to summary offences.