Accessorial Liability

Criminal Laws, S2 2014, Class 19

Revision
1.) What would the prosecution need to establish for multiple individuals
to be held guilty by virtue of a joint criminal enterprise?
2.) Where a joint criminal enterprise is proven, what precisely is attributed
to each member of the group?
3.) In what circumstances might Person A who actually commits the actus
reus receive a lesser sentence than Persons B or C, who did not?
4.) Can a person be acting under an agreement and simultaneously be
acting under self-defence or provocation?
5.) When will Persons B or C be held liable for a crime committed by
Person A that was outside the agreement/common purpose?

Huynh v The Queen [2013] HCA 6

[28] The appellants' consolidated grounds of appeal in the Full Court were
prepared by new counsel. They included a ground that the trial judge had
erred "in directing the jury that an accused could be found guilty of murder
without any act of participation in the joint enterprise on that accused's part".
[36] Their submissions were apt to suggest that it had been incumbent on the
prosecution to prove an act of "participation" beyond presence at the scene
pursuant to the agreement. The submissions in this respect require
consideration of proof of participation in a joint criminal enterprise of the kind
alleged here. So, too, does one submission made by the respondent.
[37] Liability attaches to all the parties to the agreement who participate in
some way in furthering its execution. [38] A person participates in a joint
criminal enterprise by being present when the crime is committed pursuant
to the agreement.

Complicity
1. Joint Criminal Enterprise
Accused is present when crime committed according to an agreement or
understanding with others (thereby participating in offence), and has
necessary mens rea

2. Extended Joint Criminal Enterprise

Accused foresaw a possibility that one member of the group would commit
a crime outside the common purpose with the necessary intention

3. Accessorial Liability

Accessorial Liability
aiding, abetting, counselling or procuring a criminal offence

Principal in the Second

Degree

Accessory Before the Fact

Accessorial Liability
Aiding, Abetting, Counselling or
Procuring a Criminal Offence

Aids, Abets

Counsels,
Procures

Present at scene of crime

and
aids,
assists
or
encourages the commission
of a criminal offence.

Not present at scene but

takes part in preliminary
stages
by
urging
or
contributing
toward
commission of the offence.

Principal in the Second

Degree

Accessory Before the

Fact

Procedure
345

Principals in the second degree-how tried and punished

Every principal in the second degree in any serious indictable 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.

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
with the principal offender, or indicted, convicted, and sentenced, as a principal in
offence, and shall be liable in either case to the same punishment to which the person
have been liable had the person been the principal offender, whether the principal
has been tried or not, or is amenable to justice or not.

together
the
would
offender

Conduct Amounting to A, A, C or P
1.) Does there need to be any communication (meeting of the minds) between the
primary and secondary participants?
2.) Will mere presence be sufficient to establish that a person aided or abetted another?
3.) Does the principal in the first degree need to be aware of the aiding and abetting
conduct?
4.) Does the prosecution need to prove that the principal in the first degree was in fact
assisted or encouraged by the conduct?

Conduct Amounting to A, A, C or P

Meeting of the minds

Attorney-Generals Reference (No 1 of 1975) [1975] QB 773
Aiding, abetting and counselling /vs/ procuring

Mere presence
Phan [2001] NSWCCA 29
Lam [2008] VSCA 109
Wilcox v Jeffery [1951] 1 All ER 464

Effect of Conduct on Principal

Lam
Principal aware of aiding and abetting acts? Assistance vs Encouragement
Conduct in fact assisted principal? No

Presence at scene
McCarthy and Ryan (1993) 71 A Crim 395 (constructive presence)

Brawls
Annakin (1998) 37 A Crim R 131

Mental Element for Accessorial Liability:

Giorgianni
1.) Can accessorial liability apply where the offence committed is culpable driving
causing death or grievous bodily harm?
2.) Can accessorial liability apply where the offence committed is manslaughter by
unlawful act? (i.e. can a person aid, abet, counsel or procure an unintended act?)
3.) What mental element is required for a secondary participant to be held guilty under
the rules of accessorial liability?

Mental Element for Accessorial Liability

Intent is an ingredient of the offence of aiding and abetting or counselling and
procuring and knowledge of the essential facts of the principal offence is necessary
before there can be intent. It is actual knowledge which is required and the law does
not presume knowledge or impute it to an accused person where possession of
knowledge is necessary for the formation of a criminal intent. Giorganni
Test = intention to aid, abet, counsel or procure + knowledge of essential matters of the offence

What is the relevance of wilful blindness?

What are the essential matters of an offence?
Stokes and Difford
Bainbridge
Ancuta
What if the secondary participant doesnt want the offence to be committed, or is
indifferent to whether the offence is committed?
National Coal Board v Gamble

Other Issues
Withdrawal
Truong
Principal commits a more serious offence
Chai
Victims
Can a person aid or abet a crime to be committed against
themselves?
Tyrell vs Keane

Innocent Agency

Secondary participant derives liability from the criminal liability of the

primary offender
Therefore need offence to have taken place
Doctrine of innocent agency operates as something of an exception to this
rule, although more accurate to look at the primary responsibilty of an
offender with the relevant intent
See Pinkstone, Cogan and Leak, Hewitt
Undercover police officers (Pinkstone)
Agent must be innocent for doctrine to apply (though in that case
conviction upheld for other reasons)

Accessory After the Fact

Barlow, quoting Stephens Digest of the Criminal Law
Every one is an accessory after the fact to felony who, knowing a felony to have
been committed by another, receives, comforts, or assists him, in order to enable him
to escape from punishment; or rescues him from an arrest for the felony; or having
him in custody for the felony, intentionally and voluntarily suffers him to escape; or
opposes his apprehension.

350
Punishment of accessories after the fact to other serious indictable
offences
An accessory after the fact to any other serious indictable offence is liable to
imprisonment for 5 years, except where otherwise specifically enacted.

349 Punishment of accessories after the fact to murder etc

(1) Every accessory after the fact to murder shall be liable to imprisonment for 25
years.
(2) Every accessory after the fact to the crime of robbery with arms or in company
with one or more person or persons, or the crime of kidnapping referred to in section
86, shall be liable to imprisonment for fourteen years.

316 Concealing serious indictable offence

(1) If a person has committed a serious indictable offence and another person who
knows or believes that the offence has been committed and that he or she has
information which might be of material assistance in securing the apprehension of
the offender or the prosecution or conviction of the offender for it fails without
reasonable excuse to bring that information to the attention of a member of the
Police Force or other appropriate authority, that other person is liable to
imprisonment for 2 years.