Complicity Flashcards
What is a Principal in the first degree?
1) Where the person who is the ‘ACTUAL PERPETRATOR’ or the most IMMEDIATE CAUSE of the offence, or
2) ‘INNOCENT AGENTS’ (Innocent agent performs actus reds with no mens rea): principle is constructively present through agent, or
3) ‘JOINT CRIMINAL ENTERPRISE’ - Joint principals: 2 or more persons carry out a joint criminal enterprise.
What is a Joint Criminal Enterprise ?
2 or more persons reach an agreement or understanding that results in an agreement between them to commit a crime.
They will be both joint principals in the first degree if each of the participants commits at lease one element of the foundational crime.
Note: It may also occur when the co-accused simply encourages the accused. Principle in second degree. -Applies when the charge laid differs to the offence agreed upon.
What is a principal in the second degree?
Offenders will be principals in the second degree either:
1) By offering encouragement/assistance, or
2) Are involved via a common purpose
S 345 of the Crimes Act 1900 - Both are liable to the same punishment as principals in first degree.
Encouragement/assistance: it must be established that the accused intended to give encouragement - mere presence is NOT enough.
What is common purpose?
1) Joint criminal enterprise to commit a foundational crime
2) Participation in the foundational crime
3) An incidental crime is committed outside of the foundational crime that is within contemplation of the accused.
We apply the contemplation test regarding point 3) to identify if a co-accused is liable for the incidental crime committed by another.
The contemplation test asks whether the accused could have foreseen the incidental crime committed arising out of the planned enterprise.
What is BAINBRIDGE TEST.
The BAINBRIDGE TEST forms the basis for the CONTEMPLATION TEST;
A test on the balance of probabilities that the accused could have foreseen the co-accused incidental actions whilst committing the crime in a Joint Criminal Enterprise. It should be applied to determine the accused person’s criminal liability to those incidental actions of the co-accused.
What is an Accessory before the fact?
They are absent at the time of the actual crime is committed but are the masterminds behind it. They arrange and command it. The people that execute the crime on behalf of the accessory before the fact do so with full knowledge of the crime, they are principals.
S 346 of the Crimes Act 1900 - Accessories before the fact are treated the same was as principals in terms of punishment.
What is an accessory after the fact?
They are aware of the TYPE of offence that has been committed and they offer the principals comfort or assistance after it has been committed.
E.g. Getaway driver
S 347of the Crimes Act 1900
What is ‘in company’ and what are some examples of ‘in company offences’?
1) Similar test to principle in second degree;
- By offering encouragement/assistance, or
- Are involved via a common purpose
‘Could the offender readily come to the aid of his co-offender if required?’
In company offences examples include:
61J - Sexual assault in company.
97 - Robbery in company.
112 (2) Aggravated break, enter and commit serious indictable offence, in company of other persons.
Provide three case law references and their short summary with regards to what is ‘In Company?’
1) Queen -v- JOYCE: Mere presence of a person IS NOT SUFFICIENT. Being ‘physically present’ is not enough.
2) R -v- BROUGHAM: Where the victim is aware and is confronted by the combined strength of two or more persons - this maybe enough even if not all intended to participate.
- ‘Could the offender readily come to the aid of his co-offender if required?’
3) R v BUTTON and R v GRIFFEN: ‘There must be such proximity as would enable the inference that those individuals in the group were doing something either to embolden or reassure the offender in committing the crime.
