Complicity

Question 1

For a person to be considered as a principal or accessory what offence needs to have occurred?

Answer 1

A serious indictable offence

Question 2

What are the four ways in which a person may be classified depending on their participation in a serious indictable offence?

Answer 2

1. Principal in the first degree
2. Principal in the second degree
3. Accessory before the fact
4. Accessory after the fact.

Question 3

Who is a principal in the first degree?

Answer 3

The actual perpetrator of a serious indictable offence or the most immediate cause of the serious indictable offence.

Question 4

Can you have more then one principal in the first degree?

Answer 4

Yes.

Question 5

Does a principal in the first degree have to be present at the scene?

Answer 5

No.the principal may commit the offence through an innocent agent or a non responsive agent.
R v Bourne.

Question 6

What is an innocent agent?

Answer 6

An innocent agent is a person who:
- is under the direction of the principal,
Commits the actus reus of the offence but lacks the mens rea.

The principal is constructively present (committing the crime) through the innocent agent.

If the innocent agent is acting with mens rea he is not an innocent agent.

Question 7

Who is a principal in the second degree?

Answer 7

A person who is present or sufficiently proximate, at the commission of the offence AND
Aids, abets, or assists in the commission of the offence OR
Is prepared to assist if necessary.

R v phan “what was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime and was, by his words or conduct, did something to bring about or rendering more likely through encouragement or assistance it’s commission.

Question 8

Can a person be guilty of being a principal in the second degree merely by offering encouragement?

Answer 8

Clarkson, dodd & Caroll: requires, that it is not enough that in the presence of the accused another person has given encouragement. It must be proved that he intended to give encouragement and wilfully encouraged.

Question 9

What is the punishment for principal in the second degree?

Answer 9

S345 crimes act: every principal in the second degree in any serious offence shall be liable to the same punishment to which the person would have been liable had the person been the principal in the first degree.

Question 10

If a principal in the first degree Is aquitted can the principal in the second degree be convicted?

Answer 10

IL v R (2017) HCA. Generally no because liability is derivative. To avoid this issue the principal in the second degree should be charged as a principal in a joint criminal enterprise.

Question 11

Who is an accessory before the fact?

Answer 11

An accessory before is one who is absent at the time of the actual offence but counsels, commands, or abets another to commit that offence .

Question 12

What must the prosecution establish for an accessory before the fact to be convicted?

Answer 12

The crime committed by the principal was in fact contemplated by the accessory. They may be liable for an offence outside the initial agreement if it is within the contemplation or scope

R v Johns.

Question 13

What is the punishment for an accessory before the fact?

Answer 13

S346 crimes act liable to same punishment as if the had been principal offender. Whether the principal has been tried or not.

Question 14

Who is an accessory after the fact?

Answer 14

Someone who after the commission of a serious indictable offence and with knowledge (direct or implied) that a serious indictable offence has been committed receives, comforts, harbours, assists or maintains the offender

Question 15

What must the prosecution prove for a person to be convicted of being an accessory after the fact?

Answer 15

Knowledge that an offence has been committed. (Doesn’t need to know the exact offences) and that accessory acted with motive of providing positive or active assistance to the principal

Question 16

What is the punishment for being an accessory after the fact?

Answer 16

S350 crimes act 5 yrs imprisonment

Question 17

Can an accessory before or after the fact be present at the scene?

Answer 17

No. Because if they were present they should be charged with being a principal in the first or second degree.

Question 18

What is a joint criminal enterprise?

Answer 18

R v tangye: a joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime.

Doctrine of joint criminal enterprise attaches liability for the agree crime to all partied regardless of the the part they played and is not limited to specific crime intended.

Question 19

What must prosecution prove for a joint criminal enterprise?

Answer 19

Agreement: existence of a joint criminal enterprise /agreement (common purpose)

Participation: by the accused (as principal in the first or second degree or accessory before the fact)

Question 20

Do you need to prove assistance or encouragement for joint crim final enterprise?

Answer 20

No

Question 21

Whst is required for the defence of abandonment to apply?

Answer 21

White v Ridley (1978) HCA in order for an accused to claim abandonment regarding a common purpose to commit a crime. He/she must:

1. Communicate their intention to withdraw to the other principals and
2. Accompany the withdrawal with such actions as can reasonably be undertaken to undo the effect of their previous involvement
3. (Tierney v r) to frustrate the joint criminal enterprise of which they had been a member otherwise they may have left it too late to withdraw

Question 22

What is the doctrine of common purpose?

Answer 22

If two or more wrongdoers act together in pursuance of a common unlawful objective then every act done in furtherance of that common purpose, by any one of them is at law done by all of them.

However if any one of them commits an offence which is outside the common purpose then the other person’s are not liable for its consequences unless they instigate it or assist in it.

Question 23

What is the requirement for common purpose?

Answer 23

1. A joint criminal enterprise
2. Participation by the accused in the enterprise
3. An incidental crime committed by a participant outside the agreed entrrprose but within their contemplation.

Question 24

What test is applied in relation to crimes falling outside of the foundational crime? Cite authority.

Answer 24

Mcaulife v R. Subjective test.