Complicity/Conspiracy

Question 1

What is a principal in the 1st degree?

Answer 1

1) Where the person is the ‘ACTUAL PERPETRATOR’ or the most IMMEDIATE CAUSE of the offence, or
2) ‘INNOCENT AGENTS’ (Innocent agent performs actus reus with no mens rea). Principal is constructively present through the agent, or
3) ‘JOINT CRIMINAL ENTERPRISE’ 2 or more persons carry out a joint criminal enterprise

Question 2

What is the definition of ‘Joint Criminal Enterprise’?

Answer 2

2 or more persons reach an agreement to commit a foundational crime

They will be both joint principals in the 1st degree if each participant commits at least ONE ELEMENT of the foundational crime

Question 3

What is a principal in the second degree?

Answer 3

Offenders will be principals in the second degree either:

1) By offering encouragement/assistance or
2) Are involved via a common purpose

• Present when crime committed but takes no part in the perpetration. Mere presence is not enough

Question 4

What is required to establish encouragement/assistance in relation to principals in the second degree?

Answer 4

The case of CARROL CLARKSON and DODD outlines that it must be established that:
- The accused intended to give encouragement. Mere presence is not enough.

Question 5

What is the definition of Common Purpose?

Answer 5

• Where there is a joint criminal enterprise to commit a foundational crime
• Participation in the foundational crime by the accused (agreed)
• An incidental crime is committed outside of the foundational crime that is within the contemplation of the accused

Question 6

What case law is used to define the contemplation test in relation to common purpose?

Answer 6

Bainbridge case - Contemplation test

- Asks whether the accused could have foreseen the incidental crime committed arising out of the planned enterprise

Question 7

What is the definition of an attempt?

Answer 7

An attempt to commit a crime is an act done (actus reus) with the intent to commit that crime (mens rea) and forming part of a series of acts which would constitute its actual commission if it were not interrupted

Question 8

What is required to prove the Actus Reus element of an attempt and what case law relates?

Answer 8

R v EAGLETON outlines that to prove Actus Reus we must show the act completed is/was immediately connected with the substantive offence. The act must be PROXIMATE to the substantive offence.

To establish proximity: An act of preparation is not accepted but an act of PERPETRATION is.

COMER v BLOOMFIELD - Outlines that you have to prove the attempt is towards the commission of a crime not just preparation.

Question 9

Can you attempt an offence that is impossible to commit and what case law relates?

Answer 9

R v MAI TRAN - You can still charge someone with attempting to commit an offence even if it would have been impossible to commit.

Question 10

What is required to prove that someone is an ‘Accessory before the fact’?

Answer 10

1) Absent at the time the actual crime is committed
2) But are the masterminds behind it, they arrange and command it

(Can’t be liable to an accessory if the crime committed was of a different nature)

Question 11

What is required to prove that someone is an ‘Accessory after the fact’?

Answer 11

1) Aware (know) if the TYPE of offence that has been committed and
2) They offer the principals comfort or assistance (cleaning, hiding, receiving)
3) After it has been committed

Question 12

What is required to prove the offence of ‘Conceal Serious Indictable Offence’?

Answer 12

Section 315

1) Knows or believes that an offence has been committed and
2) And has information that might assist and
3) Fails to disclose the offences committed

Question 13

What case law outlines what is required to prove ‘In Company’ offences?

Answer 13

In company - Similar test for prinicipal in the second degree
- Must be physically present (not lookout), however
- Mere presence of a person is not sufficient
R v BROUGHAM - Victim is aware and confronted by the combined strength of two or more persons (even if not all intended)

R v BUTTON and GRIFFIN - Could the offenders come to the aid of co-offenders if required. Must be a proximity that causes an inference they are able to embold or reassure the principals.

Question 14

What are the proofs of a conspiracy?

Answer 14

1) Existence of an agreement by 2 or more people to commit a particular unlawful act (existence and nature)
2) At the time the defendant agreed, the defendant had the INTENTION TO PARTICIPATE
3) And their actions have fallen shore of the perpetration required for an attempt

“A meeting of the minds”

Question 15

When is a conspiracy offence appropriate?

Answer 15

1) The substantive offence is not committed or
2) The offence agreed upon as part of the conspiracy was far more serious than the offence committed (adequately reflects criminality)

Question 16

What are the ways to prove a conspiracy?

Answer 16

Direct evidence - An agreement in the planning stage (admissions, TI’s, LD’s sources)
Circumstantial evidence - Evidence of any act or conversation during a later stage that infers an earlier agreement took place (Referred to as overt acts)

Question 17

What is the co-conspirators rule?

Answer 17

The co-conspirators rule (common purpose) is used to circumstantially prove the participation of an accused in the conspiracy

• It may permit the conduct or words used by other members of a conspiracy that implicate the accused as a member of the conspiracy.
• To be used as evidence that the defendant was a participant in the conspiracy even if he/she wasn’t present when said

Question 18

For evidence to be admissible in a conspiracy what must the prosecution prove?

Answer 18

1) Need to prove a prima facie case
- Must be independent of he acts and declarations of the other co-conspirators that the defendant was a participant (rational inference can be drawn)

2) Representations of furtherance of the conspiracy
- Once prima facie established, any overt acts done by the other co-conspirators in furtherance of the conspiracy are to be regarded as acts done by the accused by virtue of common purpose.

Question 19

What are the elements of the offence of Hinder Investigations?

Answer 19

Section 315
A person who does anything intending in any way to hinder
1) The investigation of a SIO committed by another person
2) The discovery of evidence concerning a SIO
3) The apprehension of another person who has committed a SIO
(7 years)