Criminal Complicity & Conspiracy

Question 1

In relation to “complicity” what is a “Principal in the First Degree”?

Answer 1

A principle in the 1st degree is:

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

Question 2

In relation to “complicity” what does the term “Joint principals in the First Degree” relate to?

Answer 2

Joint Principles in the 1st degree is when two or more people carry out a joint criminal enterprise.

The prosecution must prove:

1. The existence of a joint criminal enterprise (or agreement); and
2. Some form of participation by the Accused in that event. (As either a P in 1st, P in 2nd, ABF or AAF) - JCEs do not need to be present.

Joint criminal enterprise is a principle or an idea of people acting together that the prosecution rely on.

Question 3

In relation to “complicity” what is an “Innocent Agent”?

Answer 3

An “Innocent Agent” is a person who a Principal in the First Degree may use to commit his/her crime.

An innocent agent is someone who is under the directions of the principal and commits the Actus reus of the offence, however lacks the necessary mens rea.

Question 4

In relation to “complicity” what is a “Non Responsible Agent”? Cite Caselaw

Answer 4

R v Bourne
Non responsible agent is when the Principle in the first degree is in effect “constructively present” through his or her innocent agent. The innocent agent is the one actually committing the crime but the Principle is the “non-responsible agent”. If the innocent agent is acting with “mens rea” then he cannot be innocent agent but a guilty agent.

Question 5

What are the 2 x main points in relation to Principle in the 1st degree

Answer 5

• . Actual perpetrator of a serious indictable offence; or

* . The most immediate cause of the serious indictable offence.

Question 6

In relation to “complicity” what is a “Principal in the Second Degree”?

Answer 6

A principle in the 2nd degree is one who is present at the commission of the offence and aids, abets or assists (participates) in the commission of the offence. For example: a person who is present at the scene and is offering assistance or intends to encourage.

Question 7

In relation to “complicity” what is the meaning of “Encouragement”? Cite caselaw.

Answer 7

Encouragement by a person who is present at the commission of an offence could be liable as a principle in the 2nd degree.

R v Phan [2001] NSWCCA 29 found:
“Moreover, mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is proof that the principal in the second degree was linked in purpose which the person actually committing the comer, and was by his or her WORDS or CONDUCT something to bring about, or rendering more likely, through encouragement or assistance, its commission.”

Question 8

In relation to “complicity” what is the meaning of the word “Abandonment”? Cite caselaw.

Answer 8

White v Ridley - In order for an accused to claim abandonment from a common purpose to commit a crime, they must:

1. Communicate their intention to withdraw to the other principles, and
2. Accompany withdrawal with such actions as can reasonably be undertaken to undo the effect of the previous involvement.

Question 9

When do Principles and Accessories apply?

Answer 9

Principles and Accessories only apply in relation to serious indictable offences.

Question 10

What are the four (4) ways in which a person may be classified regarding their participation in a serious indictable offence?

Answer 10

Principle in the 1st degree
Principle in the 2nd degree
Accessory before the fact
Accessory after the fact.

Question 11

What is an accessory before the fact and where is the punishment defined?

Answer 11

Section 346 of the Crimes Act. An accessory before the fact is someone who is absent at the time of the actual offence but who:

• counsels,
• commands; or
• abets another to commit that offence
• is liable to the same punishment as the principle.

346 Accessories before the fact—how tried and punished
Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

Question 12

What did the case of R v Johns find in relation to “knowledge” and complicity?

Answer 12

R v Johns found - “the prosecution must prove that the crime committed was in fact the crime contemplated by the accessory”. - may be liable for an offence committed outside the initial agreement (extended common purpose) if it was within their contemplation or scope

Question 13

What is an accessory after the fact and where is the punishment defined?

Answer 13

Section 348-350 of the Crimes Act. An accessory after the fact is someone who is:

• absent at the time of the actual offence, but
• after the commission of the serious indictable offence, and
• with knowledge (direct or implied) of the offence has either:
• . received
• . comforted, harboured, assisted or maintained the offender.

Question 14

How is “knowledge” proved in relation to an accessory after the fact?

Answer 14

It is not necessary to prove that the accessory was aware that the offence committed was a serious indictable offence (as opposed to some other type of offence). In addition to knowledge of an offence, the prosecution must prove positive act. ie: it must be shown that the accessory acted with the motive of providing positive or active assistance to the principle.

Question 15

What is the “doctrine of common purpose”?

Answer 15

When two or more people act together in pursuance of a common unlawful objective then every act done in furtherance of that common purpose by any of them is, at law, done by all of them - unless one person acts outside the common purpose.

Question 16

What three (3) elements are required for the Doctrine of Common Purpose?

Answer 16

The three elements require for common purpose include:

1. A joint criminal enterprise (foundational crime);
2. Participation by the Accused in the enterprise;
3. A crime committed by a participant outside the agreed joint criminal enterprise but within their contemplation (incidental crime).

Question 17

What did the case of McAuliffe v R find in relation to what a foundational crime is?

Answer 17

McAuliffe v R found the test in relation to crimes falling outside of the foundational crime is a subjective one - the scope of the common purpose is determined by what was contemplated by the parties sharing that foundational purpose.

Question 18

What is “in company”? Cite authority.

Answer 18

FP v R found that “in company” requires:

• the offence was committed, and
• that the co-accused persons shared a common purpose, and
• the persons were physically present, such presence being sufficiently proximate if:
• it afforded encouragement to the co-accused persons, or
• it operated to intimidate or coerce the victim

Question 19

What are the important points relating to a Principle in the 2nd degree?

Answer 19

Present and encourages (aid/abet/assist). They don’t commit any elements of the offence (if they do, they are a principle in the first degree). Examples: cockatoo, getaway driver. Are prepared to assist if necessary. Must be proved that he intended to give encouragement.

Question 20

Is “abandonment” a question of fact or a question of law?

Answer 20

It is a question of fact for the jury.

Question 21

Section 347 of the Crimes Act legislates what in relation to Accessory after the Fact?

Answer 21

Section 347 legislates the indicting and trying of Accessories after the Fact. It states that “Every accessory after the fact to a serious indictable offence may be indicted, convicted and sentenced as such accessory, either before, or together with, or after the trial of the principal offender whether the principal offender has been previously tried or not, or is amenable to justice or not”.

Question 22

Is an Accessory before the Fact or an Accessory after the Fact present at the scene?

Answer 22

No. As a matter of necessity an accessory before the fact or an accessory after the fact must not be present at the scene of the crime.

Question 23

Section 350 of the Crimes Act legislates what in relation to Accessory after the Fact?

Answer 23

Section 350 legislates the punishment/penalty of Accessories after the Fact. It states that “An accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted”.

Question 24

What did the case of R v Tangye find in relation to Joint principles and agreements?

Answer 24

R v Tangye found: “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” and

“A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime was committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime”.

Question 25

What is required to be responsible in a joint criminal enterprise?

Answer 25

An agreement and participation.

Question 26

Is presence necessary to prove participation in a joint criminal enterprise? Cite at least one authority.

Answer 26

No. Presence is not necessary to prove participation in a joint criminal enterprise.

Authorities include:
Likiardopoulos v R
R v LN; and
Dickson v R.

Question 27

What did the case of A M Blackmore and Hosking (citing McLean) find in relation to Common Purpose?

Answer 27

“It has been said in the NSWCCA that the doctrine of common purpose applies only when persons jointly agree to commit a particular (‘foundational’) crime but in the process of committing that crime one of them commits some other (‘incidental’) crime”.

Question 28

R v Jogee [2016] UK Supreme Court was a decision which diverts from Australian law in relation to common purpose. We maintain the High Court authority of McAuliffe as our authority. What was the main finding of Jogee which differs from Australian authority?

Answer 28

Jogee found that foresight doesn’t provide intent and foresight only provides evidence to infer if they would assist/encourage. It is a question of fact if the Defendant had the necessary intent.

Question 29

In relation to Common Purpose, is it a question of fact or of law?

Answer 29

It is a question of fact whether the Defendant had the necessary intent and is a subjective test.

Question 30

The HCA decision of IL v R [2017] found that there are 3 distinct flavours of Joint Common Purpose. What are they?

Answer 30

1. Joint Criminal Enterprise - both present. Arrangement to do “foundation offence” - equally guilty.
2. Common Purpose - Extended Joint Criminal Enterprise - carrying out foundation offence when incidental offence occurs - if within the scope of understanding, common purpose includes the incidental crime - both equally guilty (Johns v R) HCA.
3. Extended Common Purpose/Extended Concert: Offence not within the scope of understanding or arrangement but are foreseen (Miller v R HCA [2016]).