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5.1 - Overview

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Types of Complicity

  1. A person may be liable for the criminal acts of another where they:
  2. A person also commits an offence where they knowingly assist a person who has committed a serious indictable offence to avoid apprehension, prosecution, conviction or punishment.

    Statutory Complicity (Victoria)

  3. Crimes Act 1958 section 324 provides that a person is guilty of an offence as a secondary party when he or she is “involved in the commission of the offence”. That phrase is exhaustively defined in section 323 as applying where a person:

    (a) intentionally assists, encourages or directs the commission of the offence;

    (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or

    (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or

    (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence

  4. Paragraph (a) corresponds to the principles of aiding, abetting, counselling and procuring at common law and paragraph (c) corresponds to the principles of joint criminal enterprise. Paragraph (b) and (d) create extended forms of those offences, based on the accused being aware of the probability that a different offence would be committed in the course of carrying out the primary offence.
  5. These statutory forms of complicity only apply to offences committed on or after 1 November 2014.
  6. For more information on these four forms of complicity, see Statutory Complicity (From 1/11/14).

    Common Law Complicity

    Agreement to Pursue a Criminal Enterprise

  7. At common law, when two or more people agree to pursue a criminal enterprise, each person will be liable for the criminal acts of the others to the agreement (Osland v R (1998) 197 CLR 316; R v Stewart; R v Schofield [1995] 3 All ER 159; R v Tangye (1997) 92 A Crim R 545; Johns v R (1980) 143 CLR 108; R v McAuliffe (1995) 1883 CLR 108; Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500).
  8. Although many different terms were used to describe an agreement to pursue a criminal enterprise,[1] there were two distinct ways in which a person could be liable for taking part in such an enterprise:
    1. By taking part in a "joint criminal enterprise". This requires the accused to have agreed to pursue a criminal enterprise, to have participated in that enterprise in some way, and for a party other than the accused to have committed an offence within the scope of the agreement (see Joint Criminal Enterprise (Pre-1/11/14)).
    2. Where the offence committed was not planned by the accused, but was an "extension" of the common purpose of the parties. This required the accused to have agreed to pursue a criminal enterprise, for the accused to foresee the possibility that another party to the agreement would commit an offence other than those within the scope of the agreement, and for a party other than the accused to have committed the foreseen offence in the course of carrying out the agreement (see Extended Common Purpose (Pre-1/11/14)).

    Accessorial Liability

  9. The common law also punished an accessory, who was a person who was linked in purpose with the person who committed the offence, and acted to bring about or render more likely the commission of the offence (Giorgianni v R (1985) 156 CLR 473; R v Russell [1933] VLR 59; R v Wong [2005] VSC 96; R v Phan (2001) 53 NSWLR 480). See Aiding, Abetting, Counselling or Procuring (Pre-1/11/14).
  10. An accessory may assist or encourage the person who commits the offence by:
    1. Counselling or procuring the principal offender prior to that person committing the offence; or
    2. Aiding or abetting the principal offender at the time that person commits the offence.
  11. There is no need to prove the existence of an agreement between the accessory and the principal offender. The lack of an agreement is what distinguishes aiding, abetting, counselling or procuring from other forms of complicity (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448; R v Lowery & King (No 2) [1972] VR 560).

    Assisting an Offender

  12. A person commits an offence where they knowingly act to assist a person who has committed a serious indictable offence avoid apprehension, prosecution, conviction or punishment. This is the offence of being an "Accessory" (Crimes Act 1958 s325). See Assist Offender.
  13. Unlike other forms of complicity, this is a discrete substantive offence that is committed after the principal offence is complete. It will therefore not be relevant in the majority of cases concerning complicit liability. It is included here for historical reasons, as a person who commits this offence was previously called an "Accessory after the fact".

    Commonwealth complicity

  14. Sections 11.2 (complicity and common purpose) and 11.2A (joint commission) of the Criminal Code (Cth) provide forms of derivative liability for Commonwealth offences.
  15. Before the Criminal Code commenced, section 5 of the Crimes Act 1914 (Cth) deemed a person who aided, abetted, counselled, or procured the commission of the Commonwealth offence to have committed that offence. Section 5 also applied to any person who was knowingly concerned in or party to a Commonwealth offence being committed. Common law principles applied to establish liability under section 5.
  16. Under section 11.2 of the Criminal Code, a person is taken to have committed an offence where their conduct aids, abets, counsels or procures the commission of an offence by another person.
  17. The section codified the law of complicity for Commonwealth offences. It extends beyond the common law to cover circumstances where a person is reckless about a different offence being committed than the one they intended. For further information on the operation of s 11.2, see Commonwealth Complicity (s 11.2).
  18. Section 11.2A of the Criminal Code (Cth) provides for joint commission of Commonwealth offences and broadly corresponds to common law principles of joint criminal enterprise and extended joint criminal enterprise.
  19. Section 11.2A applies to offences committed after 20 February 2010. Common law principles of joint criminal enterprise applied to offences committed before the Code was enacted; however, before section 11.2A was introduced, the Code lacked any provision extending criminal liability in circumstances involving an agreement to commit an offence. As such, this form of liability did not exist for Commonwealth offences between the Code’s enactment in 1995 and its amendment in 2010 (Handlen v R; Paddison v R (2011) 245 CLR 282 [1]; see also Explanatory Memorandum, Crimes Amendment (Serious and Organised Crime) Bill 2009, Item 4).
  20. Under section 11.2A, a person is taken to have committed a joint offence where:
    1. they enter into an agreement with other(s) intending to commit an offence, and the conduct of one or more parties in accordance with the agreement constitutes an offence of the same type as that agreed to; or
    2. they enter into an agreement with other(s) intending to commit an offence, being aware of a substantial risk that another party to the agreement would commit the offence charged in the course of carrying out the agreement, and it is unjustifiable to take that risk in the circumstances known to them.
  21. For further information on the operation of s 11.2A, see Commonwealth Joint Commission (s 11.2A).

    Only Introduce Necessary Categories

  22. The different types of complicity can be confusing for juries. Each category should be treated separately, and should only be introduced into a trial if it is necessary (R v Lao & Nguyen (2002) 5 VR 129; R v Stokes & Difford (1990) 51 A Crim R 25).
  23. If the prosecution has only sought to attribute responsibility to the accused in one particular way (e.g., as principals acting in concert), and the trial has proceeded entirely on that basis, the judge should not introduce the possibility of convicting the accused on a different basis (e.g., as aiders and abettors) in his or her summing up. This denies the accused the opportunity to meet the case against them, and will ordinarily result in a miscarriage of justice (R v Abbouchi & Allouche [2008] VSCA 171; R v Falcone [2008] VSCA 225; Arafan v R (2010) 31 VR 82).
  24. The judge must clearly explain the differences between the different categories. The jury must be satisfied that the actions of the accused meet all the elements of one category. It is not permissible to run the types of complicit liability together (R v Totivan & Dale Vic CA 15/8/1996).
  25. It will only be necessary to introduce the issue of complicity if the prosecution seeks to attribute the conduct of a principal offender to a co-offender, or if the identity of the principal offender is unknown (R v Tangye (1997) 92 A Crim R 545; Clough v R (1992) 28 NSWLR 396. See also R v Coombe Vic CCA 10/2/98).
  26. Where the principal offender may be found guilty of a lesser charge, the jury may need to be directed about any viable bases of accessorial liability for those alternative verdicts (see, e.g., R v Nguyen [2010] VSCA 23).[2]

    Order of Charge

  27. The jury should consider whether an agreement to pursue a criminal enterprise has been established before they consider the issue of accessorial liability (R v Franklin (2001) 3 VR 9).

     

    Notes

[1] Some of the terms used in the cases are "common purpose", "common design", "common enterprise", "joint enterprise", "joint criminal enterprise", "concert", "acting in concert" and "a plan" (R v McAuliffe (1995) 1883 CLR 108; R v PDJ (2002) 7 VR 612; R v Lao & Nguyen (2002) 5 VR 129). In Likiardopoulos v R (2010) 30 VR 654; [2010] VSCA 344 and Arafan v R (2010) 31 VR 82, the Court of Appeal acknowledged the recurring problems of nomenclature in this area.

[2] The "viable" bases of accessorial liability may vary for each verdict. For example, while complicity on the bases of acting in concert or extended common purpose may be viable in relation to a verdict of murder, in some cases these forms of complicity may not be viable in relation to a verdict of manslaughter (see, e.g., R v Nguyen [2010] VSCA 23).

Last updated: 9 March 2018