LTKM 508 G 12 GILLIES

The law of criminal complicity.

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L J. CULLEN (BOOKBINDING)

THE LAW OF CRIMINAL COMPLICITY

Peter S. G illie s

Submitted for the Degree of Doctor of Philosophy in the Faculty o f Law, The University o f New South Wales.

April,1981

CONTENTS

Page

Preface

Abbreviations v

Case Index

Bibliography xx iii

1 INTRODUCTION 1• I Modes o f Participation in Crime - Structure and

Terminology 1II L iab ility as an Accessory at Common Law 4I I I The Rationale for a Doctrine of Accessorial L iability ;

and Issues of Reform Raised by the Law of Complicity 162 SOURCES AND STRUCTURE OF THE LAW OF COMPLICITY IN ENGLAND,

AUSTRALIA AND NEW ZEALAND 19I Complicity at Common Law 19I I Statutory Modification of the Law in England,

Australia and New Zealand 24I I I A General Comment on Terminology 48

3 DISTINGUISHING PRINCIPALS, AIDERS AND ABETTORS, ANDCOUNSELLORS OR PROCURERS 51

I Distinguishing Principals and Accessories 51II Distinguishing Aiders and Abettors from

Counsellors-cum-Procurers 614 ELEMENTS OF ACCESSORIAL LIABILITY: (a ) THE PHYSICAL ELEMENT 75

I The Act of Incrimination - in General 75II The Time of the Act of Accessoryship 7I I I Questions o f Causation and of Effectiveness 77IV Contrasting Accessorial L iab ility at the Level of

the Act o f Complicity 865 ELEMENTS OF ACCESSORIAL LIABILITY: ( b ) THE MENTAL ELEMENT;

GENERAL PRINCIPLES 90I Introduction 90I I General Principles of Accessorial Mens Rea 112I I I Further Aspects o f the General Part o f Accessorial

Mens Rea 1546 ELEMENTS OF ACCESSORIAL LIABILITY: (c ) THE MENTAL ELEMENT

PERTAINING TO THE SUBJECT OFFENCE ’ 151I Introduction 151I I Offences o f Intention 155I I I Offences of Constructive L iab ility 154IV Offences o f RedKlfessA jkp 156V Offences of Negligence ' 157VI Offences o f Strict L iab ility 158VII Conclusion 179

7 THE DOCTRINE OF COMMON PURPOSE 181I Introduction 181I I Applying the Doctrine o f Common purpose in the

Jurisdictions Preserving the Common Law o f Crime 189I I I Accessorial L iab ility for Incidental Crimes Under

the Australian Criminal Codes 217IV New Zealand: Accessorial L iab ility for Incidental

Crimes under the Crimes Act,1961 229V Conclusion 255

i i

8 the derivative nature of accessorial lia b il it y 256I At Common Law 256I I The Principle of Derivative Responsibility and the "

the Statutory Doctrines o f Complicity in Australiaand New Zealand 264

9 BECOMING- AN ACCESSORY THROUGH OMISSION 267I Introduction 267I I L iab ility as a Principal for a Crime Resulting from

a Personal Omission 268I I I Accessorial L iab ility Resulting from an Omission 272IV Conclusion 279

10 ISSUES OF ACCESSORIAL LIABILITY IN THREE STANDARD FACT SITUATIONS: BILATERAL OFFENCES: THE WITNESS TO CRIME: THE ACCESSORY SUPPLIER 284

I Issues o f Complicity Arising in Relation toB ilateral and Analogous Crimes 284

I I Witnesses to Crime 296I I I The Supply Cases 306

11 THE DOCTRINE OF COMPLICITY AND NON-STANDARD PARTIES 310I The Doctrine of Complicity,Companies and Their Officers 310I I Husband and Wife 312

12 DEFENCES AVAILABLE TO ACCESSORIES 313I Termination of Accessorial Involvement Prior to the

Crime 313I I Implied Exclusion of Accessorial L iab ility 326TTI Duress 329] / The Entrapment Situation 331V The General Criminal Defences 336VI Incapacity to Become a Principal Offender Does Not

Exculpate Defendant from Accessorial L iab ility 33813 PROCEDURAL ASPECTS OF THE INDICTMENT,TRIAL AND CONVICTION OF

ACCOMPLICES 340I Factors Affecting the Form o f the Charge:Where the

Defendant is Charged with a Crime According to One Mode o f Complicity, but Proven to Have Particip­ated in Another 340

I I Accessories not to be Treated as being Principalsfor a l l Procedural Purposes 331

I I I Conviction of Accessory ’Where Principal Offender HasNot Been Convicted 354

IV Inconsistent Verdicts in the Context o f Joint Crime 357V Differential Verdicts 562VI Sentencing 367VII Issues o f Joinder and Separation o f Trials 375VIII Accessory After the Fact/Assisting an Offender -

Questions o f Indictment and Procedure 38714 EVIDENTIAL ASPECTS OF THE TRIAL OF ACCOMPLICES 392

I The Corroboration of an Accomplice’s Evidence 392I I The Co-Conspirator’s Rule of Evidence 426I I I Miscellaneous Evidential Matters 434

15 ACCESSORY AFTER THE FACT/ASSISTING AN OFFENDER 436I Accessory After the Fact 436I I England - The Statutory Crime o f Assisting an Offender 455

i i i

16 REFORMING THE LAW OF COMPLICITY , 459I Introduction 459I I Should Secondary Criminal L iab ility be Retained •

in i t 3 Present Derivative Form? 46O

I I I The Overall Structure of the Law of Parties 472IV The Ambit of Secondary L iab ility 474V Supplementary Amplifications/Qualifications of

the Substantive Rules Governing Accessorial L iab ility 489

VI Issues of Procedure 495

iii

16 R~FORMING Ttlli LAW OF CO~~LICITY • 459 I Introduction 459 II Should SecondarY Criminal IJiability be Hetained

in its Present Derivative Form? 460

III '.rha Overall Structure of the Law of Parties 472 IV The Ambit of Secondary Lia.bili ty 474 v Supplementary Amplifications/Qualifications of

the Substantive Rules Governing Accessorial Liability 489

VI Issues of Procedure 495

i vPREFACE

(incorporating ABSTRACT)

This study deals with the law of criminal complicity in both its common

law dimensions and as modified by legislation in England, in the Australian

jurisdictions ( i . e . , the Australian States and in the Commonwealth Crimes

Act,19H ), and in New Zealand.

In the criminal law Mcomplicity" denotes partnership in crime. As such,

what might be called the doctrine of criminal complicity consists in that

corpus o f principle which governs the joint implication of each o f two or more

persons in a given crime. A person my become particeps criminis in one of

two ways,i.e ., by physically perpetrating this crime or by instigating,

encouraging the perpetrator to do this. The firs t offender is usually called

a principal in the crime , and the latter o f tnem an accessory, or secondary

party in its commission.

For the reasons noted at the outset of Chapter One, the major stress in

this study is upon the statement and evaluation of the law relating to

criminal participation as an accessory. Nonetheless, i t w ill of course be

frequently necessary to consider the position of the principal in some detail

in analysing the law o f complicity.

This analysis was motivated ay two ambitions, both of them traditional.

The fir s t of them was to state the law as i t presently stands. This was fe lt

to be justified , in particular, given that prior to this one (which was

published in an earlie r, and somewhat different form by the Law Book Co. Ltd.

of Sydney, in July of last year), no monograph-length study had been undertaken

of this topic in any o f the common law jurisdictions.The seoond objective, one obviously dependent upon the fulfilment of the

f i r s t , was to evaluate the effectiveness of this branch of the law and to

determine whether or not i t is in need of leg is lative reform in each of the

subject jurisdictions, and i f so, then in what terms. I have concluded, ( 1 ) that the law should continue to recognise a specifically derivative form of

accessorial l ia b i l it y (derivative, in the sense that the person who instigates,

encourages or assists the principal offender to commit a crime is made liab le

for this crime,rather than for an independent offence of an ancillary character);

and ( 2 ) that the law o f complicity - and in particular, that part o f it dealing

with accessorial l ia b i l i t y - is susceptible to reform at a number of levels,

in each of the subject jurisdictions.

I have sought to take account of the law as it stood in the subject

jurisdictions in the last months of 1980.

ABBREVIATIONS

A. The following abbreviations have bean used for frequently cited texts and certain of the frequently cited statutes:

Glazebrook(ed*)

Howard

Model Penal Code: Tentative Draft

Model Penal Code: Proposed O ffic ia l Draft

Russell on Crime, Vol. I

Smith and Hogan

Williams, CLGP

Williams, TCL

Working Paper No.43

Glasebrook(ed.) Reshaping the Criminal Law (Stevens,London,1978)•Howard, Criminal Law (3 ed, Law Book Co.,

Sydney, 1977).The American Law Institu te, Model Penal

Code - Tentative Draft, Nos. 1-4, Philadelphia, 1953, (r e p r . ).

The American Law Institu te, Model Penal Code - Proposed O ffic ia l Draft, Philadelphia, 1962, (re p r . ).

Russell on Crime (ed. Turner) (Stevens & Sons, London, 1964), Volume I .

Smith and Hogan, Criminal Law (4 ed, Butterworths, London, 1978).

Williams, Criminal Law - The General Part (2 ed, Stevens & Sons, 1961, (re p r . ).

W illiams, Textbook o f the Criminal Law (Stevens & Sons, London, 1978).

The B ritish Law Commission, Working Paper No. 43 (Codification of the Criminal Law - General Principles - Parties, Complicity and L ia b ility fo r the Acts of Another) (London, 1972).

Statutes

Queensland Criminal Code The Criminal Code Act, 1899 (Q ld .).

Tasmanian Criminal Code The Criminal Code Act, 1924 (T as .).

Western Australian Criminal Code The Criminal Code Compilation Act, 1913 (WA).

B. Occasionally the notation s.x/y is used, in re ferring to the Australian Criminal Codes. This is employed where i t is desired to re fer to identical or v irtu a lly identical sections in d ifferen t Codes; for example s.3/7 is used where appropriate to re fer to s.3 o f the Tasmanian Criminal Code and s.7 of the Queensland and Western Australian Criminal Codes, a l l o f which are identica l, or very nearly so. The context w il l make i t clear as to which sections of which Codes are being referred to.

C. The fu l l name of each reported case cited in the following pages has been given subject to two standard exceptions:

(1) Where the name commences "R v this commencement has beenomitted, and the name of the defendant alone given;

(2) Where the names of several defendants are lis ted in the heading to a reported decision, only the f i r s t of these is given.

v i

CASE INDEX.

The following symbols denote the jurisdiction or country in which the case

was heard:

A - Australia

C - Canada

E - England (including the Privy Council)

NI - North Ireland

NZ - Hew Zealand

SAf - South Africa

US - United States of America

Where a case name commences with a word or expression other than the standard

"R v*", this word or expression has been noted. However, it has been ignored

for the purpose of alphabetical lis t in g so that, for example, ex parte Parker;

re Brotherson is listed under "P" , DPP v. Merriman is listed under "M",

State v . Kennedy is listed under MK", and so forth.

Abbot v R, 1977, E: 331

Abley v Crosario , 1946 , A: 162,205Accessory, 1612 , E: 21 >

Ackroyds Air Trabel Ltd v DPP, 1950, E: 162,356

Adams, 1932, A: 189Addis, 1964, E: 428

Adriaanse, 1977, NZ: 380,384Aheame, 1852, E: 362

Allan, 1965, E* 62,$5, 75, 91 , 299, 304Allchurch v Cooper, 1963, A: 166,169,285,287

Allen , 1839, E: 76

Allen, 1964, E: 315

Alien, 1973, A: 401,402,406,422Alley; ex parte Mundell, 1886, A: 362

Anderson, 1965, NZ: 44

Anderson, 1966, E: 82,84,155,196-202,201-6

Anderson v Nystrom, 1941, : 172

Andrews , 1962, E: 445,451Angland v Hosken, 1935, NZ: 284

Anonymous, 1723, E: 1 84

Anthony, 1962, A: 396,401 ,405,406,40?

Anthony, 1965, E: 359,362,401

Appleby, 1940, S: 215

Ashbury v Reid, 1961, A: 1?5

Ashton, 1698, E: 104

v i i

Assim, 1966,Es 375,377-0,386 ‘

Atkinson,1706 ,Ei 377

Attorney-General’s Reference(No*1 of 1975), 1975,Es 9,12,15,24,281 ,114,128,323

Australasian Films Ltd,1921,A: 14-15

Bainbridge,1960,E: 80,114,118,123,128,139-40,306-8,492-3

Baker,1909,NZ: 12,45,47,114,308,351,482

B a ll ,1931 ,E: 371

Bank of England, v Vagliano Bros, 1891, E: 37

Banks,1873,E: 427-8

Barmen, 1844 »E: 238Banson v 0f f le y , l687,E: 20

Barlow,1962,A: 441,451

Barnes,1940,E: 378,385,401 ,404

-^arry, ex parte 0 'Connor, 1874,A: 288,306

Baskerville,191 o,E: 293,392-423 in pas aim.Bassett, 1952,A: 397-8,405,418,421-2

Bataman v Evans,1964,E: 307

Bavdez,1967,As 371-2 ,

Baynes,1731,E: 321

Baynon,1960,NZ: 300,434

Beaumont,1955,A: 371Becerra,1976,E: 316-18

Beebe,1925,E: 290,417Behn v R, 1936,A: 434

Benford v SLiris , 1898,E: 81 ,114,343,346

Bergin v Stack, 1953»A: 177

Bennett,1935,A: 428,435Betties,1966,F : 307

Betis,1930,E: 69 -70,142,208-9

Beuth,1937,NZ: 45

Bickley,l909,E: 332,334,403

Middell,1975,A: 371Billingham,1825,E: 301-2 Bingley,1821 ,E: 53

B irt le s ,1969,E: 333

Black,1970,C: 304Blackmore v Linton,1961,A: 162,288

B1 alee, 1844 ,E: 4 34B1amires Trans port S e rv ices ,1963,E: 4 00

Blatherwicke,1911,E: 393

,49,57,67,

v i i iB le a sd a le , 1848,E: 258Bloodworth,1913,Ei 292

Bona,1968,E: 4u1

Borg v R,1972,A* 3B,39,42,49,184-5,137,109,198,219,227^90,365

Bourne,1952,Es 246,252-3,312,355

Bowen, 1841,E: 191

Bowern,1915,NZ: 48

Bowker v P rem ier Drug Co Ltd,1928,E: 71,160, 164,168,306,344,346

Bowler, 1909,E: 393

Brandreth,1817,Es 439

Breene v Boyd,ex parte Boyd, 1970,A: 173

Breese v State, 1861,US: 'JO

Brennan v R,1936,A: 37,38-40,42,104,155,182,185,219,221-8,350

Briggs, 1971 ,E* 103Brindley,1971,E: 457

Brittain , 1848,E: 431

Brodie v R, 1977,A: 374Brown, 1841 ,Es 271

Brown,1878,E: 341Brown (Annie), 1896,NZ: 434

Brown, 1910,E: 292Brown,1911, E: 292

Brown,1928,Es 216

Brown,1965,Es 440,445,450Brown,1968,A: 330

Bubb,1851,E: 269

Buggy,1961,E: 378,383,385

Bullock,1955,E: 60,08, 114,307

B u rr id g e ,1735,E: 389,437,439Burton,1875,E: 21,22,341,345,356

Bush,1975»A: 177 B u t t ,1884,E: 238

C a ffe ra ta v W ils o n , 1936,E: 306,318

Cain v D o y le ,1946, As 6,31,259*347 C a ld w e ll v B e th e ll ,191 3 ,E: 286 C a r lo s ,1948,As 214 Commonwealth v C a li , 1925,USs 269 C a llow v T i l l s t o n e ,1900, Es 109, 180,166Camberwell v Green ,Vag is t r a t e ; ex p a rte C h ri.3i.ie , 1978,E s 380 Canty v I v e r s ,1913,A : 162,285,287 C a r lo s ,1946,A: 214

Carter v Mace,1949*2: 165,267*308

Caton ,1 874 »E: 196

Chappie,1840,E: 428,441

Charavanmuttu,1930,E: 293,317

Charles,1891,E: 55,432

Charles,1979,A: 371,373Charles worth v Penfold Wines Pty Ltd,1943»A: 1 5

Child,1962,E: 373Chivers v Hand,1914,6: 160,164

Chrimes,1959,2: 300Chruch,19'-6,E: 154

Clark,1959,A: 269Clarkson,1971»E: 9,29,62,75,80,85,87,91,121,299- 300,304Clayton,1843,E: 12,21,341C liffo rd , 1841 ,2: 238

Clow,1976,C: 267,3CH

Coe,1968,E: 371,374

People v Coffey,1911,US; 399

Cogan,1976,2: 29,57,239,243,338,344,346

Cohen,1914,2: 393 '

Colantino,1973,C: 289

Comerford,1964,2 : 445,451Coney,1882,E: 20,62,129,267,298-9,301f f .,305

Congress!,1874,A: 378,361-2,585Conroy, 1954,2: 312,383,431Continental Cablevision Inc,1975,C: 310

Cook v Stockwell, 1915,2: 114,306

Cooper,1833,E: 57,341Cooper,1946,E: 21

Cooper.1978,A: 373

Cooper v State,1913,US: 145

ex parte Correy,1944,A: 6 ,24, 30,31, 32, 163,349Cosgrove,1948,A: 432

Cosgrove, 1976 ,C: 267,301Cottle ,1958,NZ: 397,407,420-1

Coutler v R, 1926,K: 596

Cox,1898,E: 377

Cozens,1 84O,E: 341

Crane v DPF,1921,E: 375

Cratehley,1913,E: 338

Creamer,1066,E: 155

Grisham,1841 ,E: 340 ,Crocker,1922,E: 291

Croft,1944,E: 21.315-8,318

Crook well,1865,A: 213

Crocs,1971,Es 391,438

Cruise,1970,E: 304

Cuddy,1843,E: 299

Cunninghar,1930,A; 422

D v Parson3,1960,E: 76

Dacre (Lord), 1535»E: 184Daily Mirrors Newspapers Ltd,1922,E: 312

Daley,1979,E: 134Davey,1960,E: 427

Davies v DPP, 1954,S: 2,392-423 in passimDavies, Turner and Co Ltd v Brodie, 1954,E: 71,118,164-5,267,308

Daw3on,196l ,A: 440-1,448De Mamy,1907,E: 115,124

Dermody,1951 ,Es 372Demirok,1976,A: 379 -84,386,

Dennis,1924,E: 375

Dimes,1911, E: 292

Dolan,191,A: 30,31,347Donaldson,1978,A: 378,380,383,385

Doorey,1970,A: 34,69,70,182,267,297D’Ortenzio ,1 961 ,A: 371

Dowdle,1900,A: 189,213Downing, 184 5 ,E: 340

Drans fie ld , 1975^: 12

Draper,1929,E: 292,413

D.Stan ton and Son Ltd v Webber,1972,E: 162,165,267,310

Du Cros v Lamboume, i907,E: 21 ,22,23,274,341 ,343Duffey,1830,E: 191

Duguid,1906,E: 434

Dunlop,1978,C: 267,304

Dunn,l930,A: 70

Dunn v L ittle john,1900,A: 332,396

Durham v Ramson, 1907,A: 174

Dutchak,1824,C: 75,207,297

Duxley v Gilmore,1959,E: 276-7

Eclipse Motors Pty Ltd v Milner ,1950,A: 170%Edmeads,1828,Es 317

Edwards,1975,NZ: 397,420

E llis v Guerin,1925,A: 306,327

Emery,1975,A: 359-60

Evans,1965,E: 416

Evans,1976,A: 330-1

Everest,1909,Ej 395

Fairbum v Evans,19l6,E: 160,284,2 88

Fallon ,1862,E: 387Farduto ,1912 ,C : 482

Farid ,1945,E: 318,419,422

Fenwick ,1955,A: 376Ferguson,1916,A: 376

Ferguson,1948,i'JZj 399

Ferguson v Weaving, 1951 ,E: 162,276

Ferrier v Wilson,1906,A: 14

F ie ld ,1943,E: 337Fletcher, 1962,E: 316-7

Fletcher v Castrisios,1959,A: 289,396,423

Forgione,1969,A: 396,422-3Fraser v Beckett and Stirling Ltd,1963,NZ: 176

French,1977,C: 439Fretwell ,1862,E: 36,65,115

Frost v H,1969,As 219,221,227,364-5Fryer v Steele,1923,NZ: 289

Fuhrer,196l,A : 396,421,434F W Woolworth Co Ltd,1975, C: 114,167

Garforth,1954,E: 200 Gaylor,1875,E: 155

Geoghegan,1914»A: 191

Gibbins,1918,E: 269

G ille sp ie ,1947,NZ; 401

Glennan,1970,A: 6,21,23,24,35,109,163,166,171,274,342-3,349 Glover, 192.8,A j 395

Goddard, 1962 , : .',00-1 ,420

Gogerly,1 81 ,E: 70

Goldie, ex parte Picklum,1937,A: 2,30,31,32,49,339,347,353

Goodspeed,1911,315

Gordon,1789,6 : 341

x i i

Gough v Rees,1929,2: 24,68,160,164,169

Gould and Co Ltd v Hough ton, 1921,3: 21,Grand, 1903,A: 187,189,212

Grant,1844,2: 340Grant,1954*2: 209

Gray,1835,2: 540

Gray,1917,2: 297Greenacre,1837,2: 398Greenhalgh,1924,A: 362

Greenwood,1852,E: 21,341-2

Gregory,18o7,2: 6,11

G r iff ith ^ 555,E: 20 ,184,363

G riff ith s ,1965,E: 10, 224,427-8Grondkowski,91946,2: 378-9,581,385-6

Grundy, 1977,2 : 317Gumbs,1926,E: 372

Gunn,1930,A: 427,431,434

22,23,49,71,506,341,552

Guthrie v Doyle,Dane and 3embach,1977»A: 171

Hackett,1955,A: 363

Haddy,1944,2 : 419 *Hallet v R, 1969, A: 79,223

Halligan,1975,NZ: 397,423

Hammersley,1958,2: 427-8

Hancock (No 7) ,1975,0: 427

Hans i l l , 1849,2: 440-1 Hapgood,1870,2; 12

Harbach,1 *75,A: 578-9,581 ,383,385

Harding,1976,A: 9,20, 49,62,64,115,118,132,350,482

Hardy,1794,2: 429-50,453

Hargrave,1831,2: 155,301

Harrington,1851,E: 192,207Harris, 1753,2: 21

H arris,1964,2: 157

Harrison,1941,NZ: 275

Hartley,1978,NZ: 230-2,255,265,351 ,367,371 ,374Harvey, 1 843,2: 191

Hawkes,1924,A: 267Hedley v Halim K a l l i l ,1936,NZ: 284,356

Hendrie,1905,C: 276-9,312

H errnan,1904,A; 2 88,396,4 03

DPP v Hester,1972 ,2: 414

Heuser,1910,2: 403

x i i iHeydon,1586 ,E: 2,49

Hicks,1970,NZ: 397,421

Higgins,1801,E: 6,11,12

Killmann,1931»H: 362 Hodgson,169O,Es 1 84

Iloggan , 1966 ,C: 118

Hoggins,1967,E: 378

Holley, 19 -3,E: 439,449

Holt v Caine ran, 1979»A: 177

Holzer ,1968,A: 154,157Honey,1975,NZ: 397,400

Hotchkin v Hindmarsh,1891,E: 285-6

Hotel Regina (Torquay ) Ltd v Moon,1940,E: 14

Howard, 1921,E: 414

Houkamau,1951,NZ: 338

House v R, 1956, A: 372,381

Howell v Doyle, 1952,E: 8,30,31,67,347

Howells v Wynne,1863,E: 21,22,272,341

Humphreys, 1965,E: 389,437Hunt,1968,E: 360

Hunt v Maloney; ex parte Hunt,1959,A: 41,172-5

Hurley,1967,A: 329,330,439,443,446-7

Hurse,1841 ,E: 21,341Hutton,1932,A: 395,401-2

Hyam v DPP, 1975,E: 94,97-8,209Hynes, 1919,C: 288

Ianella v French,1968, A: 177

Ioannou,1975,E: 353

Instan,1893,E: 270

Irw in ,1966,E: 371

Jackson,1857,E: 209

Jackson v Home, 1965,A: 6

Jacobs, 1917,A: 362

James and ion v Smee, 1954 »E: 373

Jellyman,1838,E: 293,393

Jenkins,1845,E: 398

Jenks v Turpin,1384,8: 288-9

Jennings,1912,E: 393,423

Jessop,1877,E: 355,428

John Henshall(Quarried Ltd v Harvey,1965,6: 71,31 0-11 ,346

Johns ,1978»A: 124,182,185-6,189

Johns v R, 1979,A: 121-2,124,182,185-6,1 $9,192

Johnson,1805,E; 238

Johnson,1 841 ,E: 334-5

Johnston,1973,A: 39,76

Johnson v Youden,1950, E: 118,153,159-61 ,164-5,168-70

Jones ,1949,E: 445,448

Jones, 1971 »A: 359dorms, 1977,E: 75,91

Jordan,1836,E: 42,71,393re Judges of the Australian Industrial Court; ex parte CLM Holdings Pty

Ltd,1977 ,A: 310,312,338

Kalinowsk: ,1950,A: 34,185,191

Kams,1910,E: 393

Kearon,1955,E: 337Kehoe v Dacol Motors Pty Ltd; ex parte Dacol Motors Pty Ltd,1972,A: 172

K elly ,1820,Es 451

K elly ,1847,E: 53

State v Kennedy,1910,US: 145

Kemp,1968,E: 439- 40,445 ,

Kerekes,1953,A: 378,381,383,385DPP v Kilbourne,1973, E: 398,413-14,323

King,1817,E: 439,451King,1965,E: 358

King,1966,E: 427

Kinnersley,1719,E: 362

Kirkham,1909,E: 393,419

Kirkwood,1031,E: 53K ite ,1971,A: 371

Knowling,1877,E: 62Kray,1969,E: 68,330

Krulewitch v US, 1949»hS: 431

Kulbacki,1965,C: 275

Kupferberg,1918,E: 9

Kurucz v Mayne,1966,A; 169-171

Lacey,1848,E: 327,429

La Fontaine v R,197b,A: 97-8,101-6,223

Lake ,1976,E: 379

Lamb,1975,A: 414,422

Larkin,1943,E: 154

Lavalle,1978,NZ: 333,335-6 '

Lawlor91930,At 422 ,

Lawrence v Lake,1921,As 172

Leddington,1338,E: 555

Lee,1854,E: 440

Lenzi v M ille r ,1964,A: 2,21,25,55,49,82,167-9,171,541,343,549

Levinger,1069,A: 155

Levy,1912,E: 437-9,44-,448

Lewis ,1937,E: 395,413Lewis, 197">,NZ: 45-6,48,255,265,397,400,403,413

Lewis v Grafter,Cavendish Laboratories (Aust•) Ltd v Crafter,1942,A 72,310,312

Linnett v Commissioner of Metropolitan Po lice,1946,E: 13

Lindsay ,1963,A: 403

Lomas,1913,E: 66,307Lomax v Yvilson, 1 893 »A: 238

Longone,1938,SAf: 138

Lovelock v R,1978,As 370-4Lovesey,1970,E: 29,185,187,192,210,212

Lowe ,1850,11: 270

Lowe,1973,E: 269-70

Lowery(No.2),1972,A: 115Lucraft,1966,E: 445

Lynch,1971,A: 395,401 ,420-1

DPP for N.Ireland v Lynch,1975,E: 330-1

McAlister,1952,NZ: 293,397,420

McAteer v Lester,1962,NZ: 48 -9,328

McCafferty,1974,A: 331

McCarthy,1964,E: 55

McConnell,1977,As 330,376

McDaniel,1755,E: 64

McDonald,1904,A: 269 McDonald,1955, NZ: 420,423

McDonald, 1964 ,A: 191

McEvilly,1975,E: 333

McEwan,1979,A: 100

!£cKalley, 1611 ,E: 215

McKay v R, 1976,A: 476

McKenna, 1956,A: 395,418

McKenna,1960,Es 438,441

McEwen,1973,NZ: 351Maclin,1838,E: 193,196 McNamara v R, 1978,A: 380

x v iMcNee v Kay,1953,A: 392,397-8,403,409,411 ,421iMahadeo v R, 1936,E: 389,398

Majewski,197b»E* 337

Malcolm,1951»NZ: 47,155,230,351,387

Mal'lan v Lee,1949,A: 8,31 ,49,326,347,352,387Maloney,1901,A: 439,441,456

Mamote-Kulang o f Tamagot v R, 1984 ,A: 154-5

Manley,1844 ,E: 238Manners,1P37,E: 70

Manning, 1133 ,A: 362Mansell,1556,E: 184

Mapstone,1963,E: 377

Markby v R,1978,A: 155,192,198,205-6

Martin ,1910,As 404

Mason,1910,E: 393

Mas tin ,1834 »E: 157MatusevicVi,1976,A: 243

Matusevich,1977 (HC),As 56,239,241ff•Mawji v R, 19p7,E: .312

DPP for N Ireland v Maxwell,1978,E: 118,125-7,248,345,463,493Mayberry,1973,A: 9,39,42,62,76,132,350,482

Mayer v Merchant,1973,A: 177

Mealey,1974,Es 334Medcraft.,1931 ,A: 418

Me echam,19 77 »E: 4 01DPP v Merriman, 1973,E: 376

Meyrick,1929,E: 427-8Michael,184O,E: 238

M ille r ,1952 ,E: 380

Mirza Akbar v R, 1940,E: 433-4

M itchell,1964,E: 434

Mogar,1850, A: 187

Moghal,1977,E: 359,378-9,382,386

Mohan ,1975,Es 499

Mohan v R, 1967,E: 62,100,207,331,332

Mohun,1692,E: 184,267,298

Moland,1843,E: 21,341

Molloy v Rallam,1903,A: 172

Morgan,1972,E: 393,457

DPP v Morgan,1976,E: 62,100,338

Morris v Tolroan,1923,E: 258,327-9

Morrison,1980,NS: 47,1P5,230,232,351

Mraz v R, 1955,A: 210

Muhandi,1957»E: 57

Mull in s ,1848,E: 413

MundLay,1860,E: 587

Munevich,1942,C: 418

Murdoch v Taylor,1965»E: 412

Murphy,1857,E: 432Murphy,1870,A: 191

Murray v R,1962,A: 36-40,42,155,198,202,213,219,221,224,227,350,364- Murray Wright Ltd,1970,NZ: 44

National Coal Board v Gamble,1959,E: 9,71,116,277,308,310-11,343,346Naughton,1920,A: 395

Newbury,1932,E: 111,154,427

Nichols,1742,E: 362Nichols,1958,A: 40,42,221 ,224,350

Noakes ,1832,E: 414

Norris,1916 ,E: 323

*0’Connor,1980,A: 337

0lholm,1952,A: 397,408

Opie v Goldfinch, 1947»NZ: 20,45-6,310Ormerod,1969,0: 334

O'Sullivan v Bastian(No,2),1949,A : 284

0wen,1825,E: 7 0

Oxnam v Ferguson,1948,NZ: 397

Papadimitropoulos v R, 1957,A: 76ex parte Parker,re Brotherson,1957,A: 24,68,1 8,267,273,280

Partridge,1930,A: 427-8

Pate l,1970,E: 124

Paterson,1976,NZ: 43-5,48,265

Payne,1913»E: 416

Payne,1950,Ej 371

Payne,1965,E: 124,312

Peach, 1974,E: 401

Perkins,1831,E: 301

Perkins,1852,E: 70

Perry,1970,A: 395,403,418

Pethig,1977,NZ: 352,335,535,536

Phelan, 1964 ,E : 440,445,450 Ph illip s , 1848,E: 314

x v i i i

P h illip s , 1962,E: 314,404 ,

P h il l ip s ,1967,A: 219,221-2,227

Pickard,19t*0,A: 329

P ipe,1906,E: 399,411Pitson,1972,E: 371

Pittwood,1902,E: 269-70

Platt v State,1943,63: 362

Pluirinjer,1 701 ,E: 20,213

Plummer,1902 ,E s 362

Pol L o c k ,1973,NZ: 397,414,420

Poole,1959,E: 439-40,446Pope v Minton,1954,E: 274,307

P o rte r,,1873,E: 215-16Poultry World Ltd v Conder,1957,E: 165

Prater,196O,E; 404,422-3

Pres ton,1532,Ax 291 ,327Preston v R, 1949,0s 9,267,297,304Price ,1858,E: 196,207

P rice ,1968,Es 290,417,425Pridmore,1913,E s 130-1 ,189 ,

Proudman v Dayman,1941,As 176-7

Provincial Motor Cab Co Ltd v Dunning,1909,E

Queen's Case,1820,Es 432

Quick,1973,Es 240

Quinn,1898,Es 562

Radalyski,1899,As 213

Ram,1893 »E: 338Ramsay v Samuels,1975,A: 374

Ready,1942,A: 296,400,403,437,441,446Reardon,1965,NZs 44Reeve,1917 ,As 395

Regan,1939,Cs 362Reid,1976,E: 192,200-1,203,205-6

Remmillard v R, 1921,Cs 255,265-6

Reynolds v Austin and Sons Ltd, 1951,E: 170

Rhyne, 1945,C r 286

Richards,1877,E: 390,438-9,449-50Richards v R, 1097,E: 387

Richards,1974,E: 255ff.

Richards v McPherson,1943,A: 349,353

s 160

x i x

Hisneyf197‘3,A: 293,375-7,395,398,401 ,405-7,415,418

Robert M illar (Contractors) Ltd,1970,E: 24,71,157,310

Robinson v Torrisi, 1938,A: 174

Roper v Taylor’ s Central Garages,Exeter Ltd, 1951 ,18: 109-1

Rose, 1961 ,E: 441 ,445

Rountree, 1959,A: 385

Rowland,191 0,E: 435

Rowley,1948,E: 389,451

Royce-Bentley,1974,E: 301,306Rubens,1910,E : 209

Rubie v Faulkner,1940,E: 158,275Rudd,1948,E: 335

Russell, 1832,E: 57,116,355

Russell, 1933,A: 9,34,267,269,271,277,300-1

Ryan, 1966,A: 203-4,212-13,216-17

Salaliko,1970,C: 304

Salika, 1973,A: 214

Salisbury,1353,E: 199

Salmon, 1 880,E; 157,384 ,464 ,495

S a lte r ,1004,E: 430

Sang,1979,E: 335Saunders,1576,E: 21,138- 9,142,146

Sayce v Coupe, 1953 >E: 284

Sayers, 1943,A: 362

Saylor, 963,A: 318,322

Scruby, 1952,A: 396

See Lun, 1932,A: 6

Sellers, 184o,E : 432

Sergi,1974,A: 1 06

DPP v Shannon, 1975,E: 559,361-2,309

Shellard,1840,E: 429

Sherras v de Rutzen,1895,E: 158

Shershewsky,1912,E: 372Short,1932,E: 191

Simpson, 1922,A: 395,420

Slater, 1922,A: 189

Smith, 1783,E: 337

Smith, 1070,E: 387

Smith, 1842,E: 388

Smith,1924 »E: 399,412

Smith,1958,E: 376

0,163

Smith, 1960,E: 334 vSmith (Wesley), 1963,E: 192,199>200,206,363,409

Smith,1972 ,E : 297

Smith v Jennar,1968,E : 162,165,267Sneddon v Stevenson,1967,2: 333>335-6,402

Sneosby,195l>A: 293,398,411

Snow v Cooper, 19449 A: 41Sockett,1908,E: 290

Solomon,1959>A: 38,40,42,219,221,226,220

Sperotto,19/0,A: 100,376Spires v Smith, 1956,E: 343

Spragget, 1960,E: 190,191

Stacey v Whitehurst, 1865,E: 21,22,341

Stalley,1959,E: 76Standley,1816 ,E: 71Stanley,1663,E: 212Stanuard,1962,E: 300,404,4 1 2,422-3

Stansfeld A Co v Andrews ,1 909 ,E: 285-6

Stansfield, 1831,E: 328

S ta rr ,1969,A; 292 ,

S t e inhere,1947* 2 = 3 74

Steward,1963>E: 333

Stewart, 1018,E: 70

Stirland v D?P,1944,E: 319

stone, 1796,Ez 329, 333-4Stone,1910,E: 292

Stone, 970,E: 319

Stone,1977,E: 270

Stones, 1955,A: 95,100

Strawbridge,1970,RZ: 177

Stioud,1977,B; 271-2Stuart v R, 1974,A: 37,40,219-21,222-25,227-20,

Surridge,1942,A: 187,192,210,212,263,

Surujpaul v R, 1950,E: 6,358,435

Sweeney v Deness , 1954»A: 174

Swindall, 1846,E: 157

Sykes v DPP, 1962,E: 437,441-2, 448,453

State v Talley, 1094,lT8 ? 15,86,323

Tatem,1921,E: 293,338

Tate,i908,E: 293,393,395

Taylor,1785,E: 340,355

Taylor,1875,2s 65T e it ie r ,1959»A: 381-5,585,396-7,403,4^5,420-1

Terry,1975,NZ: 597,406

Tevendale,1955,A: 459-40,442,446,448Te Whiu, 1965,NZ: 597,406,4 12,/j20-1

Theeman, 1966 ,NZ: 158

Thody,1 975,2: 120,565

People v Thomas ,1953 ,US : 107

Thomas v Lindop,1950,E: 118,162,168,276Thomas v McEather, 1920,A: 172

Thompson,1051,E: 362

Thompson,1869,E: 55Thorley,1962,E: 450

Tliomton v M itchell,1940,Es 450,158,259

Tiddy,1969,A: 370Timbu Kolian v R, 1968,As 142,147

Tonkin,1975,A: 219,222,265,366

Towle,1955,A: 434

Trim,1943,A: 214

Tripodi v R,196I ,A: 395,416,418,429,432-3

Tuck v Robson,1970,E: 9,276-7

Tuckwell, 1 841 ,18: 341

Turner, 1864,E: 192, 207

Tyler,1838,E: 238,241ff.T y rre ll,1895,E: 291- 2,327

Vallance v R, 1961,As 93,95-6,98,100,227

V a lle r ,1844>E: 334

Vandine,1970,A: 34,211Van Beelen, 1973,A: 214

Varley v R, 1976,A: 155,192,204-5

Vernon, 1962,Es 307 ,408Vincent,1972,E: 391,458

Vlahos,1975,As 177

Walker,1912,E :390

Walker v Chapman,1904,A: 172

Wallace,1841 ,E: 57Wall is , 1 703 ,E: 184,215

Walsh v Sainsbury,1923»A: 6,30,31

War ren ,1909 ,E : 593Watson,1817,E: 329,430Vatson,1916,E: 286 ,387

Waudby, 1895 ,E: 21,341 ,34 3,34 3

Waugh,1976,E: 271 ‘Weaver,1931,A: 426

Y/ebbe, 1926,A: 396,401Welham,1845,E: 238

West,1962,E: 389,437,439West v Perrier, 1962,A: 174

West v Suzuka,1964 ,A : 41

Weston, 1725,8: 377’Wheat ,1921 ,E: 160,289,338

W’hitaker ,19H ,8: 432White v Ridley, 1978,A: 238,31 8ff .,3 2 4 ff.

Whitehouse,1941,C: 317-8Whitehouse., 1977 ,E: 291 ,327

Whittaker ,1848,*]: 22

Whittaker,1976,E: 423Widgee Shire Council v Bonney,1907,A: 172

Wilcox v Jeffery ,1951,E: 304

Williams, 1844, Es 12

Williams, 1932,A: 387,389,439,449

Williams, 1964,E: 427 '

Williams, 1978,A: 335

Williamson,1972,A: 329,439,446

Williamson v Norris, 1898,E: 285

W illis , 1916,E: 393,416

Wilson,1911,B: 413Wilson v Dobra, 1955,A: 4 1 , 168, 174Withers, 1924,A: 362

Woods v Samuels, 1974,A: 371,373Wyles; ex parte Attorney-General, 1977, A

Young, 1833,E: 299,314,Youth v R, 1945,8: 378

x x i i i

BIBLIOGRAPHY

Books, a rtic le s and other publications dealing sp ec ifica lly with the law of complicity or with cognate top ics :

American Law Institute

American Law Institute

Andrews

British Law Commission

Buxton

Buxton

Edwards

Edwards

E llio t

Pisse

Fisse

Fisse

Fisse

Fisse

Fletcher

G illie s

Hart and Honors

Heydon

Heydon

Heydon

Hogan

Model Penal Code - Tentative Draft, Nos. 1-4, Philadelphia, 1953 (r e p r . ) , p . l l f f .

Model Penal Code - Proposed O ffic ia l Draft, Philadelphia, 1962 (re p r . ), s.2,06 (p .3 2 ff).

"Reform in the Law of Complicity" (1972) Criminal Law Review 764.

Working Paper No. 43 (Codification of theCriminal Law - General Principles - Parties, Complicity and L ia b ility for the Acts o f Another) (London, 1972).

"Complicity and the Law Commission" [l973 ] Criminal Law Review 223.

“Complicity in the Criminal Code" (1969) 85 Law Quarterly Review 252.

"Duress and Aiding and Abetting" (1953)69 Law Quarterly Review 226.

"Accomplices in Crime" [1954] Criminal Law Review 324.

"The Mens Rea o f Accessories After the Fact* [1963] Criminal Law Review 159.

"The Distinction Between Primary and Vicarious Corporate Criminal L iab ility " (1967) 41 Australian Law Journal 203.

"Complicity in Regulatory Offences" (1968) 6 Melbourne University Law Review 278.

"The Elimination of Vicarious Responsibility in Regulatory Offences" (1968) 42 Australian Law Journal 199, 250.

"Vicarious L ia b ility fo r the Conduct ofIndependent Contractors" [1968] Criminal Law Review 537, 605.

'Vicarious Responsibility in Regulatory Offences" (1970) 44 Australian Law Journal 601.

Rethinking the Criminal Lav (L ittle Brown,1978'Chap»8 *The Law of Criminal Conspiracy • (Law Book C©** Sydney, 1981) ♦ ' .

Causation in the Law (0UP,1959) at p*336ff *’Entrapment and Unfairly Obtained Evidencein the House o f Lords" [1980] Criminal Law ,Review 129* •"The Corroboration of Accomplices" jl 973j Criminal Law Review 264* '

"The- Problems o f Entrapment" . [l 973] 32 Cambridge Law Journal 268.

"Victims as Parties to Crime" [1962]Criminal Law Journal 683*

AAJ.VHolman

Hughes

Lanham

Lanham

Lanham

Lanham

La Vaute

Levie

Montgomerie

Morris

Nichols

Perkins

Rabie

Rose

Scott

Smith

South Australian Criminal and Penal Methods Reform Committee

Williams

Williams

Williams

Williams

’’Evidence in Conspiracy Cases" (1930)4 Australian Law Journal 247*

"Duress and Aiding and Abetting - a Reply49 (1953) 69 Law Quarterly Review 354* ’

"Accomplices and Constructive L iability"(l980 ) Criminal Law Journal 78*

"Accomplices and Transferred Malice" (1980) 98 Law Quarterly Review 110 .

"Accomplices,Principals and Causation" (1980)12 Melbourne University Law Review 490*

"Complicity,Concert and Conspiracy" (1980) 4 Criminal Law Journal 276*

"Criminal L iab ility of a Participant in a Crime for the Death of a Fellow Participant" (1971) 22 Syracuse Law Review 1065*

"Hearsay and Conspiracy" (1954) 52 Michigan Law Review 1159*

"Aiding and Abetting Statutory Offences" (1950) 66 Law Quarterly Review 1159 •

"The Felon’ s Responsibility for the Lethal Acts o f Others" (1956) 105 University of Pennsylvania Law Review 50*

"Vicarious L iab ility in the Code States" (1978) 2 Criminal Law Journal 130*

"Parties to Crime" (1941) 89 University of ' Pennsylvania Law Review 50*

"The Doctrine of Common Purpose in the Criminal Law" (1971) South African Law Journal" 227.

"Vicarious L iab ility in Statutory Offences" (1971) 45 Australian Law Journal 252,

"Proof of Principal Offences and L iab ility of Secondary Party" (1974) 90 Law Quarterly Review 3H*

"Aid,Abet,Counsel , or Procure" ,inGlazebrook (e d .), Reshaping the Criminal Law,(Stevens,London,1978)•

Law

Fourth Report - The Substantive Criminal Law (S *A.,1977)9 Chap.8,

"Case and Comment - the Extension of Complicity (1975) 34 Cambridge Law Journal 182.

"Corroboration - Accomplices" 962j Criminal Law Review 588*

"Evading Justice - I" [1975] Criminal Law Review 430.

"Victims as Parties to Crime - a Further Comment" [1964] Criminal Law Review 686.

1

CHAPTER ONE

INTRODUCTION

This study deals with the doctrine of criminal complicity in its common law dimensions, and as modified by legislation in England,Australia and New Zealand. In ordinary usage, ‘'complicity'* denotes partnership in an evil purpose, so that in the criminal law the expression is used to refer to partnership in crime. The principles of complicity, therefore, govern the joint implication of each of two or more persons in the commission of a given crime,, At common law each of these may participate in this crime by either physically perpetrating it or by instigat.ir g, encouraging or assisting in this act.

The .stress in this study is upon the rules governing the inculpation of a person who becomes parti ceps criminis in one of the latter of these two criminal capacities, i&., as what might be called a secondary party. Where the law of complicity itself is concerned, it is this latter situation, rather than that of the transaction of crime by joint physical perpetrators, which has created the most problems, and in turn attracted the major part of judicial attention and legislative activity„ The principal such problems have of course concerned the substantive principles which determine precisely what contribution needs to be made by the alleged secondary party to the commission of the subject crime, for him to become incriminated in this crime. In comparison, the evaluation of the joint physical perpetrator's liability has presented very few issues significantly different from those arising from the evaluation of the sole perpetrator's liability. In the latter case/of course,no issue of complicity intrudes - the major questions of law which arise here will usually centre upon the definition of the crime itself. Tor all of this, it will frequently be necessary to refer to the position of the x^erpetrator in evaluating the law of complicity; in particular, it will be necessary to decide, in the first place, precisely how x>articipation as a perx^etrator as distinct from that as a secondary party, is to be identified. This will usually be a straight­forward process , although not always.'*"

(1) See p . V! ff» below

2

I n thi.;-' c r a p t o r th e s t r u c t u r e o f th* la w o f c o m p l i c i t y a n d t h e c u s to m a r y t e r m in o lo g y anuo"'i.a l o ! *5. t h i t w i l l ho o u t l i n e d , p e n d in g th e a m p l i f i c a t i o n o f e a c h o f t h e s e t o p i c s i n C n a p t e r s Two a n d T h r e e . As w e l l , i n t r o d u c t o r y com m ent;, w i l l h e .made a b o u t l i a b i l i t y a s a s e c o n d a r yparti cipant i n cr i mo, l 1 tia± j y b r i e f com ’.-en ! w i l l b e d i r e c t e d t o t h e r a t i o n a l ef o r a s p e c i f i c a l l y d e r i v a t i v e form o f s e c o n d a r y c r i m i n a l r e s p o n s i b i l i t y , a n d ‘ fco t h e m a jo r i s s u e s o f r e fo r m w h ic h a r e s e e n a s a r i s i n g fro m e x a m in a t io n o f t h e la w o f conp'i ic.iiy .

(1) MODES OF PARTICIPATION IN CRIME - STRUCTURE AND TERMINOLOGY

To reiterate, at common law the person who physically perpetrates ac r im e w i t h t h e r e q u ir e d g u i l t y m ind i n c u r s l i a b i l i t y f o r t h i scrime. And the person who instigates, encourages or assists him in thisw h i l e p o s s e s s i n g t h e r e q u ir e d g u i l t y m in d i s l i k e w i s e in c u lp a t e d * , Thefirst of these parties is usually referred to as being a '‘principal** and

2the second of them as an '’accessory" . Accessories may in turn be dividedinto those who are present at the commission of the crime and those who,though they have instigated, encouraged or assisted the principal tocommit it, are absent from this commission. In orthodox terms, theaccessory present at the crime is said to "aid and abet" its commission,while the accessory absent from this is said to "counsel or procure" its

3commission.

Where two or more persons jointly commit a crime, either as joint principals or as principals and accessories, they may be generally referred to as "accomplices".

Moreover, the ancient common law category of criminal liability knownas accessoryship after the fact identifies as an accessory the person whoassists another person to evade justice, after the latter's commission asprincipal of a felony. As such the accessory after the fact has been

5called an "accomplice" in the principal's crime, though it will be urged elsewhere in this study that such a classification is wholly inappropriate, given that this offender does not become liable for the principal's crime, 2 3 4 5

(2) ILg.Heydon (1386) 4 Co.Rep0 41a, 76 ER 985; R v Goldie ;_ex partePick!urn (19 37) 59 CLR 254 at 268 (Dixon J) ; Lenzi v MillerT~1965] SASR 1 at 2 (Chamberlain J) ; 13—14 (Bright J) ; Annie Brown (1896) 15 NZLR 18 at 31 (per Prendergast CJ)»

(3) .See p « 17 f f. a no pPC/Tf. below.

(4) For example Davies y DPP [19 4j AC y\'o 401 ( b o r d D in ion d s LC ) .

(5) Id.

3

unlike those accessories who instigate, encourage or assist the principalto commit the crime. The accessory after the fact is really guilty ofwhat in substance is an independent offence analogous to the numerousoffences involving the obstruction of justice, and usually he will beregarded as being less blameworthy than a participant (i.e. principal or

6accessory) in the principal offence.

1'n general, therefore, the parties to a crime may be divided broadlyinto principals and accessories, and the latter may be further divided intothose who (.1) aid and abet crime, or who (2) counsel or procure crime. Butthe older decisional law and textwriters reflect a more elaborate and morevaried terminology where accomplices are concerned. To begin with, theusages employed have differed according to whether the subject crime is afelony or a misdemeanour. The bulk of the older decisions dealing withsecondary participation have focused upon felony, so that the law has tendeduntil comparatively recent times to be enunciated in relation to felony.(This differentiation between complicity in felony and misdemeanour isnonetheless stylistic; the same substantive principles govern x^articipation

7in each of felony and misdemeanour at common law. ) In discussing the lawof parties in relation to felony, the judges and textwriters historicallyhave classified the physical perpetrator of the crime as being a "principalin the first degree", the person who is present, aiding and abetting him todo this as the "principal in the second degree" , and the person who "counselsor procures" him to do this (but who is absent when the felony is committed)

8as an "accessory before the fact1". This nomenclature is not merely cumbersome, it is also misleading, for in identifying the aider and abettor as a so-called "principal" , it tends to group him with the perpetrator, and to contrast thetwo of them with the "accessory"1 who counsels or procures. Whatever the old

9 . . .procedural law affecting parties to felony provided, the relevant distinction for substantive purposes has always been between the perpetrator on the one hand, and the accessories (whether they aid and abet or counsel or procure) on the other. The. mental and physical ingredients of accessoryshipnecessarily have always needed to be stated in terms quite different to

10those defining liability as a perpetrator of crime. In contrast, the

(6) See Chapter I’i. ft eon

(7) See below.

(8) Id .

(9) See Pp. 340-1 below.

(10) See p p • 7711 f * ,4 74 f

4

terminology used to denote parties to misdemeanour has been more straight­forward, with the perpetrator being identified as a principal, and thesecondary participants in the given crime as accessories who either aid and

11abet the principal or counsel or procure hirn to commit the crime.

A further source of terminological complication encountered in statingthe law of parties arises from its statutory restatement or reformation ina number of the common law jurisdictions. Of the jurisdictions specificallydealt with in this study for example, the law has been restated in a minorway in England and in the Commonwealth Crimes Act, 1914 (Aust) , and reformulated

12in codified form in Queensland, Western Australia, Tasmania and New Zealand.The legislative changes in the latter four jurisdictions are not of a fundamental character, and the common law authorities continue to be very relevant in construing these statutes 0 But these enactments have restructured the categories of secondary participation to some extent, making it impossible to apply certain of the traditional common law expressions in their enunciation.

The question of terminology will be returned to in the following 13chapter. For the moment, it may be briefly anticipated that subject to

what has just b e e n said in respect of the statutory doctrines of complicity, the- following terms will be employed in this study: (1) The person whophysically perpetrates the crime will be referred to as a '‘principal1' (or alternatively a ’perpetrator1) , and the person who instigates, encourages or assists him to do this will be referred to as an "accessory'' (or alternatively, as a "secondary party" ). (2) The accessory who at common law is referred toas "aiding and abetting" crime will be known as the 'aider' (who "aids" crime), and the accessory who at common law "counsels or procures" crime will be referred to as the "counsellor" (who "counsels" it).

(II) LIABILITY AS AM ACCESSORY AT COMMON LAW

The principal focus of attention in this study, it has been noted, is upon participation in crime as an accessory. In the following paragraphs it

(11) Though in order to emphasise that the parties to misdemeanour are notto be distinguished, by and large, for procedural purposes, the courts have frequently found it convenient to refer to them as being "principals": see p.23»

(12) See generally Chapter Two*

(13) See generally Chapter Two.

5is intended to outline briefly the constituent elements of accessoryship, to emphasise the derivative nature of accessorial liability at common law, and to contrast the doctrine of aeoessoryship with certain cognate doctrines in the criminal law,

(A ) ELEMENTS OF ACCESSORIAL LIABILITY

To incur liability as an accessory the defendant must perform an act of complicity with the mental state appropriate to an accessory. The act of complicity must be one of promotion or facilitation of the principal in the latter’s commission of the subject offence, The range of possible acts of Inis type is of course indefinite - the three verbs, "instigate, encourage or assist" would seem adequately to comprehend this spectrum of relevant acts. It would appear that, at the minimum, . the accessory's act need only conduce to the commission of the crime in a minor way, (The physical element in accessorial liability is considered more fully in Chapter Four.)

Analysis of the mental state required of the accessory must focus upon two matters: hir, attitude to his own act of complicity, and to the commission (by the principal) of the subject offence itself, The requirements governing the accessory’s mental state may be stated briefly (pending their elaboration in Chapters Five and Six): this party must, at the time of performing his act of complicity, (a) know that his act is capable of instigating, encouraging or assisting the principal in the latter's performance of the act constituting or causing the commission of the physical elements in the subject offence; and (2) know or believe that the principal is committing or that he will possibly commit the act constituting or causing the commission of the physical elements in the crime; and (3) have (with one exception) the same under standing or knowledge of the nature and/or circumstances of the principal's act as is required of the latter by the definition of the subject offence• (The exception relates to offences of strict liability,^)

The following general matters may be noted: Firstly, the mental andphysical elements of accessorial liability are the same in respect of boththose parties who are identified as aiding and abetting crime, and those whoare identified as counselling or procuring it. The only formal substantivedistinction between them is that the former is present at the commission of the

1 5crime rand the latter absent from this, Secondly, the principal and

(14) Which in the majority of the subject jurisdictions must be treated asoffences of intention, where the accessory is concerned: see p .1 5Bf f •

(13) See p.5Sff.

a c c e s s o r y n e e d n o t b e i n c o n c e r t f o r t h e c o m m is s io n o f t h e s u b j e c t c r i m e , th o u g h1 fju s u a l l y , p e r h a p s , t h e y w i l l b e . T h i r d l y , t h e a c c e s s o r y may p a r t i c i p a t e i n

t h e c r im e i n a d o m in a n t , c o e q u a l o r s u b o r d in a t e c a p a c i t y #He m y p e r fo r m h i s a c t ( o r a c t s ) o f c o m p l i c i t y p r i o r to i t s c o m m is s io n a n d / o r c o n c u r r e n t l y w i t h t h i s c o m m is s io n ; and i n a n y su c h c a s e h e m ay a c t i n t h e p r i n c i p a l ' s p r e s e n c e o r i n h i s a b s e n c e .

(B ) THU DERIVATIVE NAT tilth UF ACCESSORIAL LIA BILITY

A c c e s s o r i a l l i a b i l i t y i s d e r i v a t i v e i n t h e s e n s e t h a t t h e d o c t r i n e im p o s in g i t i n c r i m i n a t e s th e d e f e n d a n t n o t i n h i s own in d e p e n d e n t c r im e b u t i n t h e c r im e o f a n o t h e r p e r s o n ( i . e . , t h e p r i n c i p a l ) . A c c e s s o r y s h i p , t h a t i s , i s n o t an in d e p e n d e n t c r im e , b u t j u s t o n e o f tw o d i f f e r e n t m od es o f c r i m i n a l p a r t i c i p a t i o n w h ic h a r e p o s s i b l e i n r e s p e c t o f e a c h c r im e . The r e s u l t o f t h e a p p l i c a t i o n o f th e d o c t r i n e o f a c c e s s o r y s h i p i s o f c o u r s e t h a t t h e d e f e n d a n t i s e x p o s e d t o c o n v i c t i o n i n r e s p e c t o f t h e p r i n c i p a l ’ s c r im e an d to p u n is h m e n t f o r i t s c o m m is s io n , j u s t a s i f h e w e r e a p r i n c i p a l o f f e n d e r .(T h e c o u r t s h a v e n o t , h o w e v e r , p r e t e n d e d t h a t t h e a c c e s s o r y i s , l i t e r a l l y , t h e p r i n c i p a l o f f e n d e r . )

T h is d e r i v a t i v e s t a t u s a s s o c i a t e d w i t h a c c e s s o r i a l l i a b i l i t y h a s c e r t a i ns u b s t a n t i v e a n d p r o c e d u r a l c o n s e q u e n c e s . The g e n e r a l s u b s t a n t i v e c o n s e q u e n c e i sI s t h e o b v io u s o n e : a s a c c e s s o r i a l l i a b i l i t y i s d e p e n d e n t u p on t h e c o m m is s io nb y so m e o n e ( i n t h e c a p a c i t y o f a p r i n c i p a l . ) o f an o f f e n c e , i t f o l l o w s t h a t i ft h e c r im e f o r w h ic h a p e r s o n i s s o u g h t t o be m ade l i a b l e a s an a c c e s s o r y i sn o t a c t u a l l y c o m m it t e d , t h i^ p e r s o n c a n n o t b e t h u s c o n v i c t e d ( i . e . , a s ana c c e s s o r y ) m e r e ly u p on th e b a s i s t h a t , f o r e x a m p le , h e h a s u r g e d a n o t h e r

17 ,t o com m it i t , o r h a s o t h e r w i s e a c t e d w i t h t h i s o b j e c t i n v i e w , ( b e m ay ,

6

( 1 6 )(17)

S e e p p . 3 - 9 , 1 1 3 f f .Common la w a u t h o r i t i e s e x p r e s s l y c o n f i r m i n g t h a t a p e r s o n c a n n o t b ecom e an a c c e s s o r y t o c r im e u n l e s s a n d u n t i l t h a t c r im e i s c o m m it t e d b y t h e p r i n c i p a l i n c l u d e H ig g in s ( 1 8 0 1 ) 2 E a s t 1 8 , 102 SR 2 6 9 a t 279? G r e g o r y ( 1 .8 6 7 ) 1 0 C ox CC 4 9 9 a t 4 6 2 1 ; S u r u j p a u l [ 1 9 9 8 ] 5 A l l ER 5 0 0 ; S e e Lun ( 1 9 3 1 )32 S r ( nSW) 363 a t 3 6 4 ; Gl e n n an 1 9 7 0 ] 2 NSWR 4 2 1 a t 4 2 4 ,4 2 b ; H o w e ll v D o y le [ 1 9 5 2 ] VLR 1 2 9 a t 1 3 2 ; J a c k s o n v H o m e ( 1 9 6 5 ) 11 4 CLR 82 a t 9 4.

For authorities which make the same point in respect of s .5 of the Commonwealth Crimes Act, 19 M > see Walsh v Sainsburvf1Q 2 8) 36 CLR 464 at 477 (Isaacs j ) ; Kalian v L ee ( 1 9 4 9 ) 8 0 CLR 198 at 2 0 5 ,2 1 0 (Latham C J ); ex parte Co prey 0 944) 45 SR (NSW) 2 8 7 at 2 9 5 (Jordan CJ) ; Cain v D o y le (1 9 4 6 ) 72 CiU 4 0 9 at 417 (Latham C j ) ; Howe1.1 v Doyle, id. at ’ 1 33-4 (Herring CJ). As It h a p p e n s s,5 is in such terms a3 to make it apparent that the offence must have b e e n committed for accessorial liability to b e established. The same is clearly true of the general complicity provisions in the Australian C r im in a l Code Acts ( s , 7 of the Queensland and Western A u s t r a l i a n C o d e s ; s .5 of the Tasmanian Code.)

T he m a jo r c o m p l i c i t y s e c t i o n i n t h e C r im e s A c t , 1961 (H Z ) , i . e . , s . 6 6 , i s so m ew h a t a m b ig u o u s a s t o t h i s i s s u e w h e r e s u b s e c t i o n s ( 1 ) ( b ) , ( c ) a n d ( d ) a r e c o n c e r n e d * T ria l t h e c r im e m u st h a v e b e e n c o m m it te d w h e r e a c c e s s o r i a l l i a b i l i t y i s n o u g h t t o b e g r o u n d e d u n d e r a n y o f t h e s e s e c t i o n s w a s con f ir m e d in '•Jowern ( 1 9 * 5 ) 54 HZLR 696 a t ']QJ> ( S t o u t J , d e a l i n g w i t h s *90 0 r th e C r im e s A c t , 1908 (NZ) ,w h ic h i s s i m i l a r t o s .6 6 ( 1 )).

7however, incur liability for en inchoate (offence, such as conspiracy or incitement, in this circumstance.)

Such a rule, if unmodified, would clearly be capable of producing anomaliesin certain situations, her example A may, while possessing the mental staterequired of the accessory, instigate, encourage or assist P to commit thephysical element of crime X. p escapes criminal liability because he lacks themental element required for X. No crime , then, has been committed by anyperson in the capacity of a principal offender. Accordingly, A cannot be convicted,not at least in the capacity of an accessory. And he is not of course an actualprincipal, in that he did not personally perpetrate the physical elements of X.Or consider the situation where A procures P to place a chemical substance inV ‘s drink, following which act V drinks the mixture and dies. A knew thesubstance was a deadly poison; but he told P that it would do no more thanproduce mild diarrhoea. Conceivably P can be convicted of manslaughter, butcertainly not murder, A on the other hand, should be convicted of murder -certainly he satisfies the conditions governing accessorial liability formurder, with one vital exception - the person who personally administered thepoison, i.e., P, has not committed this more serious homicide. The balanceof authority is to the effect that a person cannot be convicted, qua accessory,of a more serious offence Ilian the principal, where their respective mentalstates would otherwise incriminate each of them in two different offences, one

1 8more serious than the other, which sliare the same actus reus. The courts have sought to overcome these anomalies affecting the substantive law of accessories in various ways, though their solutions are not wholly comprehensive ones. These judicial responses are discussed in Chapter Wine.

The procedural difficulties resulting from the division of criminal participants into principals, aiders and abettors, and counsellors-cum- procurers, and which reflect in part the derivative status of accessorial liability, are easily remedied by statute, and for the most part they have been thus overcome in the subject jurisdictions. They are discussed elsewhere(C) ACCESSORIAL LIABILITY CONTRASTED TO COGNATE CRIMINAL LAW DOCTRINES.

19

On a superficial view the doctrine of accessoryship closely parallels certain other criminal law doctrines or offences of an analogous character.D'i each ca ;e however, there are basic differences • Because a given fact

(18) See p.OSfff.(1 9 ) Sae pp.54Off., 49S

situation may attract bo th the .loo trine of accessory ship and one or more of these cof.ri.ate doctrines or offences, it may be useful to note these differences. These contrasts further emphasise the distictive features of accessorial res po ns i b ili ty.

8

(1 ) -C-omolicity and the Common haw Offence of ConspiracyPrima facie the doctrine of complicity and the common law misdemeanour

of conspiracy overlap - both are concerned with joint crime. Conceptually,however, there are significant differences. To begin with, conspiracy isan offence in itself whereby persons who agree to commit a crime or otherunlawful purpose capable of rendering an agreement for its commission

2 0 "criminal, are so liable upon the formation of agreement® In other words, the act of agreement is the criminal act of the offence of conspiracy. But the doctrine of accessorhsip per se is not an offence - it is simply a means whereby persons who knowingly instigate, encourage or assist another to perpetrate an independent offence are made liable for this offence along wi th the perpetrator .

Secondly, a person only becomes an accessory to an offence in reliance21upon the doctrine of complicity when this offence is committed. But the

conspirator is, jo it has just been indicated, guilty of 'he offence of conspiracy immediately the agreement for a crime or other unlawful purpose is in existence* iiis liability qua conspirator is not dependent upon the execution of this agreement. The crime or other unlawful object of theconspiracy forms no part of the actus reus of the conspiracy, but rather,

22is independent o r the latter.Thirdly, liability as an accessory is not in general dependent upon

consensus, via, the accessory need not have been party to an agreement with the principal for the commission of the crime (though in a majority of the reported cases in vo Ivin,, ac.ce. serial liability the accomplices have entered into an agreement with the principal for the commission of the subject crime). For example, A may see b pummelling C in the street, and shout encouragement to 3 to "let him (i.e., C) have it." A aids B in th© assault by this expression of moral support, even as B fails to acknowledge him. But there is no 20 * *

(20) Pot example, conspiracy to defraud. See Fillies, The Law ojr_.,Qr.iminaXCon, )iracy (haw Book Co, Sydney, 1930) , Chap® 4 ff•» for an account of thereco nised heads of indictable conspiracy -which comprehend objects not criminal in themselves.

( 2 1 ) (2 2 )

See p ®6 above, and Chap,8 .It is not denied of course that conspiracy - its "overt" acts - hevie, "Hearsay and Conspiracy" "Evidence in Conspiracy Cases"

the acts done in the transaction of the are evidentially vital. See for example 0994) 92 Michigan LR 1159; Holman,(1950) 4 Au st, Law J 2 4 7.

agreement between A and B; it is precisely because of this lack of acknowledge*ment that no bilateral arrangement in the nature of an agreement for the

23assault of C cornea into being. An obvious exception to this rule is the offence of conspiracy itself, where the several conspirators (who in complicity terms are joint principals) must be shown to have been in agreement. This requirement is imposed, however, by the doctrine of conspiracy, not by the doctrine of complicity.

But while concert is not a formal ingredient of common law accessoryship, the courts have, in appropriate situations, evaluated accessorial liability at common law by reference to the notion of a concert, or common purpose for the commission of crime. This common law initiative has been reflected in the drafting of certain of the supplementary provisions as to accessories

- 2din the Australian Criminal Codes and in the New Zealand Crimes Act of 1961,where the defendant's liability has been made to be contingent upon whetheror not he was party to a common purpose for the subject offence,, The so-called

2 bdoctrine of common purpose is discussed elsewhere. It is generally invoked when the court is confronted with the issue of A ’s liability qua accessory for a collateral crime committed by B in the course of the transaction of a plan to which both are party for the commission of another offence; for example, both agree to housebreak in the course of which one of them kills the householder. It is perhaps inevitable that a concept of common purpose ought to be resorted to ,for to prove in a hypothetical situation such as this that A had agreed with B that a prescribed quantum of violence would, if necessary, be offered to any person interfering with their plan will in practice satisfy the legal tests of accessoryship• For all of this it is submitted that B*s liability as an accessory to a collateral crime must ultimately be supportable in terms of the standard principles governing secondary liability - principles which may be formulated independently of a notion of common 23 24 25

9

(2 3 ) Examples of complicity cases where the court affirmed that liability asan accessory was not dependent upon proof of agreement (i .0 ., "consensus”, "conspiracy" or "concert") are Kupferberg (1 9 IB) 13 Grim App R 166; AttQrney-G.eneral Vs Reference (NoVLof, -19.771 D 975J 1 QB 773 at 779; Clarkson [1971] 3 All ER 344; Lowery 1972 VR 560 at 561 (Smith j); Harding~L 1976] VR 129 at 160 (Murphy J); Preston v R (1949) 93 CGO 81at 91 (K el lock J); Kravenia (1955) 112 CCC 81 at 82(Estey J).

Other complicity cases where the fact situation did not disclose an agreement between principal and accessory include Tuck v Robinson [4970]1 All ER 1171; Russell |J933]VLR 59; National Coal Board v Gamble [1959]1 QB 11; Mayberry P1975 j Qd R 211.

(2 4 ) Queensland and Western Australian Codes,sQ; Tasmanian Code, s.A; New Zealand Crimes Act.,1 9 6 1, s 0b6(2 )»

(2 5 ) See Chapter Seven.

10purpose*

In fact, tue courts dealing with charges of complicity in substantive offences rarely cite decisions concerning the substantive law of conspiracy, or more specifically, with the concept of agreement in conspiracy. Their reluctance in this regard has perhaps been strengthened by the recognition tnat in practice conspiracy is charged in factual contexts which frequently differ markedly from those associated with cases of complicity.

26For a mixture of procedural and substantive reasons the conspiracycount is typically preferred in situations where the alleged conspiratorshave apparently committed a large number of crimes or other unlawful actswhich are so closely related in character and circumstance that they may beregarded as representing the overt acts of one unified scheme, or conspiracy.Such a count represents de facto the charging of numerous crimes (or otherunlawful acts) in the one count, something not of course permitted in respectof substantive offences* It would obviously be inconvenient to require thatthe prosecution s p e c i f i c a l l y prove that each individual defendant agreed withanother or others to commit each and every one of these overt acts by referenceto which the content of the indicted conspiracy is to be inferred. Accordingly,the courts have in practive accepted that it is sufficient that the defendantbe inculpated in some degree in the conspiracy charged, it being irrelevantthat in fact he nay not be proven to have agreed with his co-conspirators inrespect of each and every one of the discrete purposes represented by theindividual overt acts proven in evidence or detailed by way of particular-

27isation of the count. This laxity has found its legal expression in the toleration by the courts of an overly elastic arid vaguely defined concept ofagreement in criminal conspiracy (this concept is of course the central

y 28element in the crime.)In comparison, the fact situations usually associated with complicity

cases are more limited and s traight for ward than are those represented by complex conspiracies. And the task of evaluating liability in these circumstances is further simplified in that each crime alleged against the defendant must be charged in a separate count, so that his liability in respect of this crime 26 * 28

(26) See Gil Lies, The....haw of. Criming._ClQ.ns.p.irac.y (Law Book Co, Sydney, 1981) at Chap. %

(2?) The classic allustra lion of this situation is found in Meyriek (1929)21 Grim App ii 94* The later decision of Griffiths (19657"A9 Crim App R279 is somevuat more de nan ding of the prosecution.

(28) See l.’eyrick, id., Griffith: , id. See generally Gillies, The Law of Criminal Conspiracy (Law Book Cc, Sydney, 1981) at p.20ff.

And sue Lanham, "Compli city, Cone or t and Conspiracy4' (19$0) 4 Crim Law J 276 t 285ff•, for a 'discussion of the question of whether the fact that A has on spired with P for the commission of a crime (where the existence of an agreement is, by implication, establ is bed by resort to the relatively lax r'uies governing the identification of an agreement for the purpose of purposes of tne offence of conspiracy), is sufficient to inculpate him as an accessory to this crime, if it is committed by P.

11may be determined separately from the question of his liability for any other crime, or crimes. The result is that there has been no impetus for the development of tests of liability as sweeping or formless as those represented by the idea cf conspiratorial agreement. The principles of accessorial liabili by are both more precise in their statement and more rigorous in their application in comparison with the principles defining accessorial liability.It is because of these factors, as well as that central feature of accessorial responsibility, i*e., that it is not in any event formally dependent upon proof of concert, that the principles of conspiracy are unable to be assimilated to the substantive law of comniicity.

There is, however, overlap between the doctrines in procedural matters. This is partly because conspiracy is after all, but an instance of the joint commission of crime by two or more accomplices.

(2 )

At common law liability as a misdemeanant is imposed upon any person29who incites or solicits another to commit a criminal offence, even though

30this offence is not committed*'' The inciter need not have initiated the suggestion that the subject crime be committed - the idea for this may have come from the incitee himself. It is enough that the defendant has encouraged the incitee,, It is unclear as to whether or not the offence of incitementmerges in the crime which is the object of such a solicitation, should it be

I?committed.' Normally, of course., the question never arises, for if the crime incited is committed the inciter is liable for it as an accessory and will becijarged w ith th is cri me •

The major points of difference between accessorial liability pursuant to the doctrine of complicity, and liability for the offence of incitement includes (l ) Incitement is an offence per se . The person perpetrating the act of incitement is Liable as a principal offender. The accessory (in his capacity as an accessory) becomes liable for the offence aided or counselled. (2) The offence in contemplation need not have been committed for a person to become liable for the offence of incitement; the converse is true where it is sought to make a person liable as an accessory, (3) Liability for 29 30

(2 9 ) It may be that the common law doctrine of incitement may only be invoked in respect of indictable offences, but the point has not been resolved: see Williams, CLGP at pp.609-10; Williams , TCh at p0385*

(3 0) See for example Higgins (1801 ) 2 East 8, 102 EH 269; Gregory (1867)1 0 Cox CC 499* Tee terms "solicit" and "incite" are used synonymously in idle decisional law,Williams, CI.-GP at p.e12,n.7, citing Crichton 1 91 3 SALR 1.3eo Higgins (180i) 2 East j at 19ff*,10? ER 2 6 9, where it is suggested that if a person is charged with incitement where the offence has been committed, a" it is left to the defendant to show if he pleases that the mi ode ni-1 no ur was. me rgod in the greater* offence" (per Grosd Jj*

(31 )(32)

the offence of inoi torrent 13 •-•a m->hlished where the defendant encourage5another to commit a crime, oven 7,here the inci tee had independently conceived

the idea or committing this crime • These acts of inculpation will obviouslyestablish cuessorial liability also (provided that the crime encouraged iscommitted) * But the latter liability extends also to comprehend acts whichwill not suffice for the of fence of incitement; for example, where A procures3 to commit an offence by an act in circumstances where B renains ignorantof this procurement The offence of incitement requires that the inciteehave become cognisant of the defendant’s act of encouragement (whether or not

• 54he is influenced by it)/

(3)

At an, abstract level, commission of the offence of attempt as a principal offender ana accessorial liability for crime resemble one another in that each involves the performance of an act in the contemplation that it may result in a crime. The principal differences between the doctrines include:(l) Attempt is a criminal offence in itself, independently of the crime attempted to be committed. The perpetrator of the act of attempt is a principal offender. (2) The person who aids and abets another to commit crime is not criminally liable at? an accessory unless this crime in contemplation is completed. The obvious ©.• ception to this rule is the offence of attempt itself. Whore the defendant aids or counsels another to commit crime, and the lat ter fails to do this, but with a guilty mind performs an act sufficiently proximate to the actus reus of this crime as to incriminate himself as a principal in a criminal attempt, the defaidant is liable as an

5 baccessory to this attempt.

(4)

Apart from a handful of specific common law crimes^ the courts have refused to countenance the imposition of vicarious liability except in respect of certain suriumary offences created by statute? vdii.ch are of a

(33) Attqrney-Genoral' s deference (No 1 of 1975) l_1973j 773 •(34) Sc© Williams CLGP at p.612; though see as well Smith and Hogan at

p.2i 3 (referring to attempted incitement).(35) Clayton (1643) 1 Car d K 123, 174 1® 743; Hapgood (1870) 11 Cox CC 471 ;

Drainsfield [1 9 7 5J Tas SR M9> 0909) 28 NZLR 536. (The lattertwo decisions concerned the Tasmanian Code and the Crimes Act,1900(NZ) (s.90ffcorrespondmg to s.bO of the Crimes Act, 19 6 1 (NZ)). Bee also (Ann) Willi&ms (1844 ) 1 Car A K 589? 174 Z’R 950, where it was assumed that a person could be liable as an accessory to attempt.

(56) 'Williams, CLCP at p„267ff * , TCL at p.926»n.3; Smith arid Hogan, p*14l •

15welfare character. Per practical purposes, the doctrine today may be viewed as being con Pined to this latter situation,

The central characteristic of vicarious liability is of course, thatthe defendant may be made liable as a principal offender, for an offencethe physical elements of which are committed by another person. Several heads of vicarious liability are discernible in the decided cases in the subject jurisdictions. Each of them affirms limit the imposition of such liability is dependent, firstly, upon the precise wording of the statute creating the offence, and secondly, the existence of some relevant relationship between I), end the person who actually perpetrates the physical elements of the offence. In England, the decisions may be viewed as resolving themselves into two heads of liability:(a) The delegation Principle : Decisions under this head confirm that liabilitymay be imposed upon 1) in respect of the acts of A, where the latter commitsthe subject offence while acting on D’s behalf, in that situation where Dhas delegated to him such *'duties,powers and autliority" as are vested in

37or imposed upon him (D) by the legislation creating this offence. Most of the cases of this type deal with the liability of licensees for offences createdby licensing legislation, the physical elements in which are created by their

58employees. In such situations, not only the physical act of the delegate may be .imputed to the delegator, but. as well, any relevant mental state that he may possess.(b) Broadly construed verbs: Where the operative verb in a statutory'- offenceis of a very general character, such as "sell" or "use", it may be soconstrued as to involve that th.o person who does not literally perform thefinal,discrete act grounding the offence, may be viewed nonetheless as

39engaging in the conduct comprehended by this verb. In such situations, necessarily, he will need to have a relevant relationship with the perpetrator of the discrete act. The classic situation is the sale situation, where D, a retailer, is sought to be made liable for the illegal sale effected by his employee* The employee "sells" in the sense that he performs the physical elements in the sale, however, "sells" also refers to a legal transaction, and as such the verb is broad enough to comprehend D ’s conduct (in setting up the arrangement, or. machinery which produces the physical act of sale ), He may, therefore, be viewed as being a principal offender,

(37) Linnet. v Metropolitan Police Commissioner J 1946] 1 KB 290 at 294*(38) See Williams, TCL at p.927ff•> Smith and Hogan at p,142ff.(39) See Williams, TCI, at p.93^ff»j Smith and Hogan at pp, 145-6,

uand his servant - dependending upon the precise form of the legislation -

40may be regarded as being either a co-principal, or as an accessory* On one view the defendant Lc directly rather than vicariously liable in this context - though he may he viewed as being the latter on the narrow basis, that his employee or other agent actually performs the discrete physical element or elements in which the offence consists.

In Australia the courts, while recognising this latter head of vicariousliability, have enunciated a different and in some situations at least, awider principle of liability than is represented by the doctrine noted under (a)above. This basis of liability might be termed the "course of employment"principle; and it is to tne effect that irrespective of whether or not therehas been what would amount to a sufficient "delegation" in English law tocreate vicarious responsibility,^ where an employee (or conceivably, otheragent) commits the subject offence (which likewise, must be of a welfarecharacter) during the course of his employment, the employer is vicariously

42liable. The imposition of vicarious liability in this circumstance must, however, b in conformity with the wording of the statute creating the offence: if for example, the statute is in such terms as to require mens rea, in the sense of an advertence to all of the essential facts constituting the offence, and the employer was without thi3 knowledge, then it would appear that he cannot be convicted of it by a knowing act on the part of his employee

4 5or agent, ' Obviously this type of vicarious liability is capable of overlapping with that outlined in (b) above, as applied by the English courts (for example, in the situation where an employee sells on behalf of his employer). Likewise, some of the fact situations comprehended by it could conceivably be * 29

(4 0) If the legislation is in such terms as to confine liability as a principal, to a person of D’s position and status, and none ether (for example, it may make it an offence for a ho tel licensee, and none other, to sell) then the employment cannot be viewed as being a co-principal,but car., only be convicted, if at all, as an accessory: see Smith and Hogan at p. 14 ?; Will jams ,TCh at p •933? and see generally at p,284ff. below,

(41 ) For consideration of this issue by the English courts see Williams, id* at pp,928-3 0? Smith and Hogan at pp,1 4 3-4 .

(42) Fee generally Fisse, "The Elimination of Vicarious Responsibilityin Regulatory Offences" (1968) 42 ALJ 199>230 , "Vicarious Responsibility in Regulatory Offences" (1970) 44 ALJ o01• The foundational authorities are Eerider v Wilson (1906) 4 CLR 788? and Australasian Films Ltd (1921 )29 CLR 195? and sec the other canes referred to in Fisse, "The Elimination of Vicarious Responsibility in .Regulatory Offences ", id# at 259, n#t35, 260,ru87.

(43) See Fisse, "The Ll Ruination of Vicarious Liability in Regulatory Offences", id, at 201, commenting upon Ferrior v Wilson, id,# where it was pronounced at 794 that vicarious liability can only be imposed underthis principl0 whore this is countenanced by the "express words of the statute or by ~iec assary implication" (Barton j).

15analysed in the alternative by resort to the more restrictive delegationprinciple outlined in (a) above, though for obvious reasons, the prosecutionwould, in the employment situation, prefer to resort to the course of

44employment principle.In light of the above (and accepting that the doctrine of vicarious liability

is confined, for all practical purposes, to the statutory context), the following matters, in particular, distinguish vicarious criminal liability from accessorial liability: (1) The person who incurs vicarious liability is made liable as a principal, rather than as an accessory; (2) vicarious liability

/ 45'may (subject to a handful of exceptions ' ), only be invoked in respect of statutory offences of a welfare character, triable summarily; in contrast, the doctrine of accessoryship may be invoked in respect of any offence. (3) In most of the subject jurisdictions, the accessory to an absolute offence is required to have mens rea , in the sense of a knowledge of all of the relevant circumstances of this offence; viz, from his viewpoint it is not absolute at all. Conversely, the defendant may be made vicariously liable for an absolute offence; and it is even possible for him to be made vicariously liable for an offence requiring mens rea, although his servant and not himself, possessed this relevant knowledge.(4) for the most part, the imposition of vicarious liability is dependent upon proof that a relevant relationship, such as master and. servant,1 inked the defendant and his vicar; conversely, the accessory need not be in any such relationship with the principal. It is possible forthe accessory to promote or facilitate the principal’s crime, without the

A'llatter being aware of this„1 44 45 46

(44) This is not to say that the delectation principle has not been employedin Australia: see for example fharlesworth v Penfolds Wines jjty Ltd [l943J VLR 76 which, may, on one view, be categorised as having relied upon it; fmd see the cases referred to in Fisse, "The Elimination of Vicarious Liability in Regulatory Offences", id. at 259» n.85, who is of idle view that overall the Australian courts have not relied very often upon the del egatj on pr inciple (id. at for example, 2 5 9)>and see also his comment in "Vicarious Responsibility in Regulatory offences" (1970) 4 ALJ 601 at 601-2.

(4 5 ) As referred to in the texts noted at 1 1 .36 above.(4 6) This is possible, for example, where the delegation principle is relied upon:

see Williams, TCL at p,920, Smi th and Logan at p.142 • On the other hand, the view is expressed in Vi 11iams, TCL that the mens rea of his vicar can no t be imputed to a defendant sought, to be made liable under the head of liability refrrod to under (h) above("Broadly construed verbs"): at p .943•

The course of empiyment doctrine enunciated by the Australian courts would appear to operate so as to impute the mens rea of his servant or other agent to the defendant , so that he may be convicted of an offence of mens rea, though he is personally without this knowledge* See Australasian Filns Ltd (192]) 2d ILL » though no to the comment on this case in Fisse, "The irinati on c f Vicarious Liability in Regulatory Of fences"(19o0) 4? ALJ 199 at 200.Fee, for example, A1 tcrne.y-Coneral *s__Reference (No»1 of _1_9Zli) j 1975] OR 773;F t ; . t o V J j y l Igy ( 1 1% ) 102 Al a . 2 5 ." ................... ..................(47)

16

A)

'lUllAb A V 0 :1 iaX/;]1(1: so i;. fj-J v

iisc 8j-:cv11'! ij AuY 0 A ..

5t i f ! c a t -ion i’o r in<a way b u; to 1n c u rn a m e ly , th a t i t 1:a c t s whi i eh e i th e n

AXIAL LIASrLfi'Y

( a t t h e m inim um ) make i t no r e l i k e l y t h a t a n o t h e r p e r s o n w i l l com m it a c r i m e / ’4 8

B u t s h o u ld s e c o n d a r y c r im i n a l l i a b i l i t y b e r e t a i n e d i n a s p e c i f i c a l l y d e r i v a t i v e form ? S h o u ld t h e d e f e n d a n t be I n c r im in a t e d i n a n o t h e r ’ s c r i m e , r a t h e r t h a n , p e r h a p s , in an in d e p e n d e n t o f f e n c e o f an a n c i l l a r y c h a r a c t e r ?

C l e a r l y , t h e r e w o u ld n o d i f f e r e n c e o f s u b s t a n c e b e t w e e n c o n v i c t i n g a p e r s o n o f b e in g an a c c e s s o r y to a n o t h e r ’ s c r i m e , a n d c o n v i c t i n g h im o f a d i s c r e t e o f f e n c e c o n s i s t i n g in c o n d u c t o f t h e ty p e p r e s e n t l y r e q u i r e d to g r o u n d a c c e s s o r i a l l i a b i l i t y , T h is i s b e c a u s e t h i s d i s c r e t e o f f e n c e w o u ld , b y d e f i n i t i o n , l i k e w i s e r e q u i r e t h e p r o s e c u t i o n t o e s t a b l i s h t h a t t h e d e f e n d a n t had a c t u a l l y c o n t r i b u t e d t o a n o t h e r ’ s c r i m e . I n e f f e c t , t h e r e f o r e , l i a b i l i t y f o r t h i s now o f f e n c e w o u ld i t s e l f b e c o n t i n g e n t up on t h e c o m m is s io n o f a n o t h e r ’ s c r im e ; a c c o r d i n g l y , l i a b i l i t y f o r i t w o u ld b e d e r i v a t i v e , j u s t a s a c c e s s o r i a l l i a b i l i t y i s .

, 49I t h a s , h o w e v e r , b e e n s u g g e s t e d by a n .E n g l is h c o m m e n ta to r , B .J/t. B u x t o n , t h a t an o b v io u s a l t e r n a t i v e to c o n t i n u i n g to p e n a l i s e a c c e s s o r i a l p a r t i c i p a t i o n i n a n o t h e r ’ s c r im e ( o r f o r t h a t m a t t e r , th e o b v i o u s a l t e r n a t i v e to c r e a t e a s e p a r a t e o f f e n c e c o n s i s t i n g in th e i d e n t i c a l c o n d u c t ) , w o u ld b e to c r e a t e an in d e p e n d e n t a n c i l l a r y o f f e n c e d i r e c t e d a g a i n ; t th e p e r p e t r a t i o n o f a c t s c a l c u l a t e d t o i n s t i g a t e , e n c o u r a g e o r a s s i s t a n o t h e r t o com m it a c r im e , th e c o m m is s io n o f w h ic h i s n o t to be c o n t i n g e n t u p o n t h e a c t u a l c o m m is s io n , b y t h i s l a t t e r p e r s o n , o f a f u r t h e r c r im e . S u c h an o f f e n c e w o u ld f u n c t i o n a s an in c h o a t e o n e , th o u g h i t s p r o p o n e n t e n v i s a g e d t h a t i t w o u ld a l s o be c h a r g e d w h e r e t h e s e c o n d p e r s o n c o m m itte d h i s c r i m e , i . e . , t h a t i n t h i s s i t u a t i o n , i t

50w o u ld a p p ly i n l i e u o f a c c e s s o r i a l l i a b i l i t y , w h ic h d o c t r i n e w o u ld b e a b o l i s h e d .

A n ew o f f e n c e o f t h i s t y p e w o u ld , s e e m i n g l y , o v e r c o m e c e r t a i n fo r m a l a n d in f o r m a l a n o m a l i e s , o r d i f f i c u l t i e s a s s o c i a t e d w i t h t h e p r e s e n t la w o f a c c e s s o r y s h i p - e s p e c i a l l y t h o s e a s s o c i a t e d w i t h t h e d e r i v a t i v e s t a t u s o f a c c e s s o r i a l l i a b i l i t y - and i t w o u ld a l s o r e l i e v e th e l a t t e r o f c e r t a i n o f i t s

(46) S o e fo r examp1c the comment i:11 the introduction to the3 Ivodel Penal Code:Tenta hive Draft at pp.26-7*

(49) See p.463ff. bo: ow.(30) See 0.463 below •

iattendant procedural idiosyncrasies, and yet it would, like the doctrine of accessoryship,strike at the performance by L> of acts calculated to instigate, encourage or assist another person to commit a substantive crime*

It is considered that for a number of reasons, the law should continue torecognise a specifically derivative doctrine of secondary liability, as itdoes presently in all of the subject jurisdictions; viz, that this head ofliability should not be replaced by an independent ancillary offence of thetype just outlined. These reasons include, inter alia, firstly that such anancillary offence would not necessarily resolve the more intractable of thesubstantive problems associated -,v 1 th accessorial liability, and secondly,that it is important that the law should continue to compel the tribunal offact to d< ermine whether or not the defendant’s act did actually contributeto tte cornnission, by the person whom he has sought to instigate, encourageor assist, of this p e r s o n ’ s ovn crime. A specifically derivative head o fliability does of course compel such a finding. It is convenient to postponedetailed consideration of the precise terms of Hr Buxton’s proposal, and of thereasons favouring the continuation of a formally derivative form of secondary

51criminal liability in lieu of its adoption , until Chapter Sixteen, for the analysis of both of these matters is contingent, in large part, upon the detailed consideration of the conditions of accessorial liability, and of the problems associated with its application, which will be done in the intervening chapters.

In summary, it is considered that the law should continue to provide,subject :o appropriate specific tests, for a doctrine pursuant to which theperson who promotes or facilitates a n o t h e r ’ s crime s h o u l d , upon t h e commissionof this crime, be exposed to conviction for this crime) , and to the samepenalty maxima as is its literal perpetrator. Such a head of liability mightconveniently continue to take the form of accessorial liability ,though this isnot to say that its basic terms are not in need of reform, nor that the morespecific rules governing its application - especially those directed toovercoming the problems raised by its derivative status - are no in need ofmodification. Accordingly, the proposals for its modification detailed inthe following chapters (including the proposals for its more fundamentalalteration, set out in Chapter Sixteen), will be formulated upon the basis thatsecondary criminal liability wil continue to be derivative in the sense thatthe defendant rendered thus liable on account of his promotion or facilitationof another to comnii L a crime , will be incriminated not in his own crime, but in

52the crime committed by the person whose act ha..-, been promoted or facilitated."

(51)(52)

See p.46Off,Or, where Lhi., latter perpetrates a criminal, act but does not incur liab Lit !y for whatever rea son, in the crime corresponding to this act,

13

(B) ISSUES OF RFFUxdfThis study will proceed on tho basis tiiat the law of criminal complicity

is to continue to recognise a specifically derivative form of secondary liability; subject to this, however* the view will be taken that the present law in this area, as encountered in the subject jurisdictions warrants modification at a variety of levels, affecting both its substantive and procedural aspects. In particular, it is considered that the scope of accessorial liability is too broadly drawn at common law, and that this should be contracted; and tiiat the more specific rules governing the application of this doctrine in certain standard fact situations (including those concerning accessorial liability for omissions to act; and those where the perpetrator does not incur criminal liability, or incurs liability for a crime less serious tnan that for which the defendant is sought to be made liable, qua accessory),require amendment• Further, it has long been recognised that the categories of criminal participation should be limited to those of perpetrator and accessory, i.e., that the latter should not continue to be further divided divided into the idiosyncratic common law categories of accessories present at, and those absent from the principal's commission of the subject crime .

In chapters Two - Fifteen attention will be directed to the exposition of the substantive and procedural law affecting accomplices; to the identification of the more specific anomalies or other problem:', associated with its application; and to the formula.lion of proposals aimed at overcoming these difficulties. In Chapter Sixteen the focus of attention will be primarily upon .the question of whether or not secondary criminal liability should be retained in a derivative form; and (it being concluded that it ought to be taus retained), secondly, upon the question of whether or not the basic conditions of accessorial liability should be modified so as to contract its scope, and if so, the terms in which accessorial liability should be redefined. Consideration of those latter matters is most satisfactorily postponed until the final chapters, given that it must be based in a close scrutiny of the present law under a number of heads, which is done in the intervening chapters. Chapter Sixteen will also recapitulate the more specific proposals affecting accomplices outlined in the intervening cImpters.

(53) As it will be noted in Chapter Two, the substantive law of complicity is applied i n tho subject jurisdictions either directly in its common law form, or in a codified form which changes the substance of the common law in only a marginal way; viz, the law of complicity is mors or less tho same in each of these jurisdictions»

19

CHAPTER TWO

SOURCES AND STRUCTURE OF THE LAW OF COMPLICITY IN ENGLAND, AUSTRALIAAND NEW ZEALAND

In this chapter it is proposed to detail the sources, structure and terminology of the law relating to complicity in the jurisdictions to which particular reference will be made in this study, ie, England, the Australian jurisdictions, and New Zealand. In England, in the Australian Commonwealth Crimes Ac , 1914, and in the Australian States of New South Wales, Victoria and South Australia, the law of criminal parties is retained in its common law form, though it has been modified in its procedural dimensions. In the other of the Australian States (L.e, Queensland, Western Australia and Tasmania) and in New Zealand, the law in this area has been codified in terms which diverge from the common law doctrine (although not in a fundamental way.)

By way of preliminary, it will be convenient to outline the modes of criminal participation at common law. It is recognised that this will involve repetition of some of the introductory comments at the outset of Chapter One.

(I) COMPLICITY AT COMMON LAW

The substantive law of complicity is the same in respect of felony and misdemeanour at common law, though the terms in w^ich it has been stated differ in these two contexts.

(A) COMPLICITY IN FELONY AT COMMON LAW

Blackstone expressed the classic division of participants in felony atcommon law in his 1769 Commentaries in viewing them as being broadlydivided into *'principals and accessories/' with each of these being dividedin turn into principals in the first and second degree and accessoriesbefore and after the fact. The principal in the first degree was "he that

2is the actor, or absolute perpetrator of the crime", and the principal in the second degree is *'he who is present,aiding, and abetting the fact to

(1) Commentaries on the Law of England, Book 4 at p34ff. 2(2) Id.at 34

20

3 'be done". An "accessory" was stated to be "he who is not the chief actorin the offence, nor present at its performance, but is someway concerned

4therein, either before or after the fact committedSpecifically, anaccessory before the fact is "one/who being absent at the time of thecrime committed, doth yet procure, counsel, or command another to commit

5a crime." An accessory after the fact is a person who "knowing a felony gto have been committed, receives, relieves, comforts or assists the felon".

7Blackstone cited Hale by way of authority for his views, and this structuregwas adhered to a century later by Sir Fitzjames Stephen.

In England this terminology was universally reflected in the felony cases prior to the Criminal Law Act, 1967(UK) (s.l of which effectedprocedural changes in the law of complicity and gave the impetus to a

9modernisation of terminology ). Thus, the person present and assisting atthe commission of a crime has been characterised as a principal, or as aprincipal in the second degree, or as an aider and abettor, or as a personaiding, abetting, assisting and comforting, and so forth.^ And occasionallythe aider and abettor has been referred to not a principal but as an

11"accessory at the fact" (i.e*, of the crime ). Similarly, a person particeps criminis in felony who is absent from the commission of the crime has been known alternatively as an accessory before the fact, or as a 3 4 5 6 7 8 9 10

(3) Id.(4) id.at 35.

%(5) id.at 36, referring to Hale PC 615, 616.

(6) _Id,at 37, citing Hale PC 615,616.Though note that in this study the party known at common law as an

"act 'ssory after the fact" is viewed as not being an authentic accessory, in t lat he does not become incriminated in the crime of the principal felon whom he assists; see Chapter Fifteen*

(7) Hale PC 615,616.

(8) Stephen, Commentaries on the Laws of England (21 ed., Butterworth & Co., London, 1950, Vol. IV).

(9) See p *25ff. below.(10) Many cases could be cited. Examples include Griffith (1553) 1 Plow. 97>

75 ER 152 at 153;Bflnson v QffXe,Y(l687) 3 Mod*122;87 ER 78, Plummer(1701 ) Kely. 109 at 112, 84 ER 1103 at 1105; Coney (1882) 8 QBD 534 at 538,539 (Cave J ).

A more modern example of this old usage is found in a Victorian decision - Harding 11976 ] VR 129 at 137 (Gowans J) , and in Opie v Goldfinch [1947 ] NZLR 69 at 73 (Callan J).

( 1 1 )

21

12 13counsellor or procurer, or as one who procures and advises crime.

In those jurisdictions under discussion which retain both the felony/misdemeanour distinction and the purely common law doctrine of complicity(i.e. Jew South Wales, Victoria and South Australia) the old terminology

, 14continues to be employed.

(B) COMPLICITY IN MISDEMEANOUR AT COMMON LAW

A frequent statement in the reported cases identifies all of the15parties to a misdemeanour as being principals at common law. Taken

literally the maxim is misleading, for it is clear that the common law categories of complicity which because of historical circumstances, have been enunciated mainly in the felony context, apply likewise to misdemeanour. The result is that a person may only be proven to have participated in a misdemeanour as a principal in the first degree, aider and abettor, or counsellor or procurer. This is reflected in an

16observation by Darling J in the English case of Gould v Houghton (1921)that although "it would appear that there really are accessories inmisdemeanours" (ip„ conventionally, accessories before the fact, orprincipals in the second degree) "as they cannot be separated from their

17principals in the matter of punishment, it is not worth while to regard

(12) These two words are always used conjunctively to denote the one unified concept of accessoryship before the*fact.

(13) Saunders (1576) 2 Plow. 473, 75 ER 706; Harris (1753) Post. 113,168 ER 56; Croft (1944) 1 KB 295 at 297.

(14) See Pp.M-5 below.(15) Accessory (1612) 12 Co. Rep. 81, 77 ER 1359; Hurse (1841) 2 M &

Rob 360 > 174 ER 316; Mo land (1843) 2 Moo 276, 169 ER 110; Clayton (1843) 1 Car & K 128, 174 ER 743; Cooper (1846) 8 QB 533 at 536, 115 ER 976 at 977; Greenwood (1852) 2 Den 453 at 457, 169 ER 578 at 580, 581; Howells v Wynne (1863) 15 CB(NS) 3 at 15, 143 ER 682 at 687;688; Stacey v Whitehurst (1865) 18 CR (NS) 344 at 353-4, 144 ER477 at 481; Burton (1875) 13 Cox C.C. 71; Waudby Jl895j 2 QB 482. at 483; Du Cros v Lambourne [1907] 1 KB 40 at 43; Glennan (1970) 2 NSWR 421 at 423; Lenzi v Miller [1965] SASR 1 at 10 (Napier C J and Travers J.)

(16) [1921] 1 KB 509 at 520.(17) He was referring to the situation both at common law and under the

Summary Jurisdiction Act, 1848, (UK), s .5#

22

inferior criminals through a mi cross cope,or to classify them scientifically,as felons were treated when most felonies were capital offences so far asthe principals were concerned. It is commonly said that there are noaccessories ... in misdemeanour, but I think that this is a loose and

18misleading, though often sufficient, statement of the law.1'

The real significance of the maxim is a procedural one, viz.j forprocedural purpose the several categories of participation in crime areto be regarded as having been merged into one such category - that of

19pnncipalship. This procedural assimilation overcomes several of thepractical anomalies associated with the prosecution, trial and convictionof secondary parties to felony; in particular, it permits the person whocounsels or procures a misdemeanour to be prosecuted as a principal offenderand yet be convicted upon proof of being a counsellor-cum-procurer, which

20is not allowable in the felony context.This common law rule was restated in England in the Summary Jurisdiction

Act, 1848 (UK) (s.5), and again in the Accessories and Abettors Act, 1861 (UK)(s.8). More recent English legislative activity in this area is noted

21below. These enactments have been adopted in those of the subjectTjurisdictions which retain the felony/misdemeanour dichotemy New South

22Wales, Victoria and South Australia ). 18 19 20 21 22

(18) Other cases concerning the survival of the common law categories of complicity in the context of misdemeanours include Whittaker (1848)2 Car & K 636, 175 ER 267; Howells v. Wynne (1863) 15 CB (NS) 3 at 16> 143 ER 682 at 688; Stacey v. Whitehurst 1865) 18 CB (NS) 344 at 355, 144 ER 477 at 482; Burton (1875) 13 Cox CC 71; Waudby [l895] 2 QB 482 at 484; Du Cros v. Lambourne [1907] 1 KB 40 at 43. And see also the Earl of Reading's remarks in Gould & Co. Ltd, v. Houghton [l92l]1 KB 509 at 515.

(19) See the references in the previous footnote.(20) See p.341ff• and pp. 335-6 below.(21) See p.25 ff.(22) For indictable misdemeanours,see Crimes Act, 1900 (NSW) s.351;

Crimes Act, 1958 (Vic) s.333; Criminal Law Consolidation Act,1935 (SA), s.269. For summary misdemeanours see Justices Act,1902 (NSW), s.100; Justices Act, 1958 (Vic), s.77, Justices Act,1921 (SA), s.53.

23

The effect of this common law doctrine (as restated by statute) is thatthe accessory to a misdemeanour may be charged either as a principal or incompendious form, that he did "aid, abet counsel or procure" the subject

23offence. As a consequence, it has been unnecessary in practice to demonstrate whether or not the accessory misdemeanant was present and assisting at the commission of the crime, provided that he is shown to have inculpated himself as a accessory by an act of instigation, encouragement or assistance coupled with the appropriate mens rea. In other words, it is not a vital matter whether he is shown to have been an aider and abettor, rather than a counsellor or procurer, or vice versa.

Terminology

It is because of this, and because the accessory misdemeanant is in anyevent party to a crime in respect of which it has long been theconventional (if sweeping) wisdom that there are no degrees of participationbut that "all are principals/' that the terminology used by the courts todescribe the various parties to misdemeanour has been more informal inflavour than that encountered in the decisions analysing complicity infelony. In fact the courts have eschewed the usages of "principal in thefirst degree/* "accessory before the fact" and "principal in the seconddegree" in dealing with complicity in misdemeanour, except when referringto cases involving complicity in felony (which latter are fully relevantto the question of accessorial participation in misdemeanour, given thatthe substantive law of parties is, the matter of terminology aside, the samefor both felony and misdemeanour). Sometimes accessory participants in

24misdemeanour are identified simply as "accessories" each of whom "aids,25abets, counsels or procures" the subject crime. on other occasions/the

accessory in misdemeanour who is present at the crime has been termed an26"aider and abettor" Conversely, the accessory who is absent from its 23 24 25 26

(23) Such parties may nonetheless be charged simply as aiders and abettors or as counsellors or procurers, though this in practice uncommon.

For a fuller treatment of the form of the charge where accessory misdemeanants are concerned, and kindred issues, see below.

(24) eg Gould v Houghton [l92l] 1 KB 509 at 520 (Darling J); Lenzi v Miller [1955] SASR 1 at 2 (Chamberlain J.)

(25) Lenzi v Miller idt(26) Du Cros v Lambourne [1907] 1 KB 40 at 43; Morris v Tolman [1923] 1 KB

166 at 169; Glennan [1970] 2 NSWR 421 at 424.

24

commission is appropriately known as a "counsellor or procurer." Thelatter usages are, however, less common. More typically the courts havespoken simply of persons who counsel or procure, without resorting to the

28noun form (which presumably has been regarded as somewhat unwieldy ).And on one occasion at least a court has seen fit to speak of a "procurer"as distinct from "counsellor" in a novel situation where there was nocommunication between accessory and principal concerning the commission of

29the criminal act. Finally, the courts have from time to time chosen tocharacterise all accessories to misdemeanour, whether or not they have been

30present at the crime, as "aiders and abettors" This judicial shorthandis of an informal nature, however. It is justified in that the question of whether tl i accessory is present or absent is not in practice of any importance, given the procedural merger of the parties to misdemeanour. But it ought not obscure the nominal survival of the aiding/counselling dichotemy in this context.

(II) STATUTORY MODIFICATION OF THE LAW IN ENGLAND, AUSTRALIA AND NEW ZEALAND

The law of complicity has been modified by enactment to a greater or lesser degree in all of the jurisdictions under discussion. In Britain, in the Australian Commonwealth (i.e*under the Commonwealth Crimes Act, 1914) and in New South Wales, Victoria and Australia, the doctrine of complicity survives in an essentially common law form. Such statutory amendment as there has been has mainly concerned procedural matters. In the Australian Criminal Code States (Queensland, Western Australia and Tasmania) and in New Zealand, the common law has been formally displaced by a codified doctrine 27 28 29 30

(27) See e.g., Robert Millar (Contractors) Ltd [1970] 2 QB 54 at f°r this usage. The case concerned an offence of causing death by dangerous driving, which would have been a misdemeanour prior to the abolition of the felony/misdemeanour distinction in English criminal law by the Criminal Law Act. 1967, s.l. This section applied the procedural law governing what were formerly misdemeanours to all offences. Accordingly/ the decisional law dealing with the prosecution, trial and conviction of accessories to all types of offence in England since this time reflects the procedural law (and terminology) formerly applied to the prosecution, etc, of accessories to misdemeanour.

(28) E.g.,Gough v Rees (1929) 29 Cox CC 74 at 80.

(29) Attorney-General's Reference (No. 1 of 1975) [l975] QB 773 at 779.(30) Ex parte Coorey( 1944) 45 SR(NSW) 287 at 310 (Davidson J); ex parte

Parker; re Brotherson [1957] SR (NSW) 326 at 330; Glennan 1.1970] 2NSWR 421 at 424.

25

of criminal parties, though it is clear that a good many of the common law decisions continue to be relevant to the construction of these statutory doctrines.

These changes to the common law doctrine were effected wholly or partlyin response to two major procedural anomalies effecting the law of accomplices.The first of these is that at common law an accessory before the fact tofelony cannot be convicted if charged and tried as a principal (i.e.,in thefirst or second degree ). The converse also applies. This is inconvenientin that the prosecution may occasionally be uncertain prior to trial as towhether or not the defendant participated as an accessory before the fact.Alternatively, the evidence which unfolds at trial may be ambiguous as towhether or not the defendant was present at the crime, though otherwisesufficing to incriminate him as a accessory.31 Secondly, at common law anaccessory before the fact to felony may not be convicted before the principal

32offender has been convicted. This was also seen as anomalous.

(A) ENGLAND*

The principal modern statutes dealing with the procedural rules affectingaccomplices in crime in England are the Accessories and Abettors Act, 1861,the Magistrates Courts Act, 1952, the Criminal Law Act, 1967 and the CriminalLaw Act of 1977. To understand the present legislation it is useful toreview the framework of statutory rules relating to accomplices in theperiod up to the enactment of the Criminal Law Act^ 1967.

*

(1) Complicity in Felony and Misdemeanour Prior to the Criminal Law Act, 1967

Where complicity in felony was concerned, the principal procedural33provisions prior to 1967 were enacted ip the nineteenth century. The

Criminal Law Act of 1826 provided that an accessory before the fact was liable to conviction for a substantive felony irrespective that the principal may not have been convicted. It was not possible to convict the accessory before

(31) See P- ff below.(32) See P- ff below.(33) For the period prior to the nineteenth century see Holdsworth, A

History of the English Law (Lond, Methuen, 1942, repr. 1966) Vol III at p.310, Russell Vol I p. 156.

2 6

the fact in this circumstance at common law. The Accessories and AbettorsAct, 1861, dealt comprehensively with accessories before the fact, providingin s.l that the accessory before the fact could be indicted, tried, convictedand punished as if he were a principal felon (something not possible at

35common law ), and in s.2 that the accessory before the fact could be convicted of a felony whether or not the principal felon had been convicted (thereby superseding the earlier provision in the Criminal Law Act of 1826 ),

Legislation also restated the common law rule, that all accessories inmisdemeanour were to be regarded generally as being principal offenders for

36procedural purposes. This was done in relation to accessories to summarymisdemeanours by s.5 of the Summary Jurisdiction Act, 1848. This sectionwas replaced by the virtually identical s.35 in the Magistrates Courts Act,1952. Section 8 of the Accessories and Abettors Act, 1861, providedsimilarly in respect of accessories to indictable misdemeanours. Thissection varies slightly in wording from s.35 (or as it now is, s.35(l)) ofthe Magistrates Courts Act, but in substance it is an identical, parallelprovision. The text of each of these sections, as amended by the CriminalLaw Act, 1977, is noted below.>

(2) The Criminal Law Act, 1967

The Criminal Law Act, 1967, s.l, abolished the distinction betweenfelony and misdemeanour and provided that in respect of all mattersin which a distinction previously had been drawn between these two classesof offence the law and practice previously applicable to misdemeanour shouldin future be applied to all offences. Where complicity is concerned the onlydistinctions between felony and misdemeanour at common law involve matters

37of procedure. Accordingly, the effect of s.l was to apply the law previously applicable to complicity in misdemeanour to complicity in all offences.

As a consequence of this change accessorial liability for all indictable offences is now to be supported by reference to s.8 of the Accessories and 34 35 36 37

(34) See p.34^ below.(35) See p.^54 below.(36) See p. 21 f f. above, and p . • below,

(37) The substantive categories of complicity are the same for both felonyand misdemeanour : see p , 2 Iff, above.

27

Abettors Act, 1861 (as amended), or to the common law doctrine embodied in38it, taken together (in either case) with s.l of the Criminal Law Act, 1967.

Similarly, accessorial responsibility for summary misdemeanours was (and still is) to be supported by reference to the substantially identical provision in what is now s.35(l) of the Magistrates Courts Act, 1952, or to the common law doctrine embodied in it.

(3) The Present Position

The Criminal Law Act of 1977 has altered the legislative framework outlined in the preceding paragraphs,, though very slightly, This Act provides in s.14 that as regards the mode of trial there shall be three classes of offence, viz, offences triable only on indictment, offences triable only summarily, and offences triable either way (i.e.,on indictment or summarily ), The statutory provisions relating to complicity in each of these offences are as follows:

(1) Offences triable -pnly upon indictment: s .8 of the Accessories andAbettors Act, 1861, continues to govern the trial of indictableoffences. It has been slightly amended by Schedule 12 of the CriminalLaw Act, 1977, which statute substitutes the usage of "any indictableoffence" for that of "any (i.e., indictable) misdemeanour." Thisamendment does no more than reflect the change wrought in theapplication of s .8 by s.l of the Criminal Law Act, 1967. As a result

%s .8 now reads thus:Whosoever shall aid, abet, counsellor procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.

(2) The provision relating to complicity in summary offences in s.35of the Magistrates Courts Act 1952, has been retained, though it has

39been renumbered as s.35(l). Section 35(1) reads as follows:A person who aids, abets, counsels or procures the commission by another person of a summary offence shall be guilty of the like offence and may be tried (whether or not he is charged as a principal) either by a court having jurisdiction to try that other person or by a court having by virtue of his own offence jurisdiction to try him. 38 39

(38) In practice the courts rarely refer expressly to s .8 of the Accessories and Abettors Act, 1861.

(39) Criminal Law Act, 1977, Schedule 12,

28

As mentioned, this section is substantially similar to s .8 of the Aiders and Abettors Act of 1861, except that it deals with summary rather than indictable offences.(3) Principal provision for offences triable either way is found inthe new s.35(2) of the Magistrates Courts Act, 1952, which providesthat "Any offence consisting in aiding, abetting, counselling orprocuring an offence triable either way (other than an offence listedin Schedule 3 to the Criminal Law Act, 1977) shall by virtue of this

40subsection be triable either way." An accessory to one of the dualoffences created in Schedule 3 of the Criminal Law Act, 1977, isexpressed therein (in paragraph 33) to be himself triable either way,

41sub~ jet to a handful of exceptions noted in Schedule 3.

This legislation has not, in common with that preceding it, altered the substantive principles governing complicity. Rather, it has merely confirmed the procedural rule embodied in this earlier legislation, that all of the parties to an offence may be treated as principals for the purposes of the form of the charge, trial and verdict. As well, the Criminal Law Act, 1977, has| provided specifically for the mode of trial of a secondary party to an offence classifiable under it as being triable either way (i.e.,one triable summarily or on indictment). These latter defendants also possess the status of a principal for procedural purposes, irrespective of whether they are tried summarily or on indictment, for in either such case the legislation, as noted, provides for this status.

Given this procedural status, the secondary party to any offence maybe charged either as a principal, or in compendious form that he did "aid,

42abet, counsel or procure" this offence. And however he is charged, he may be convicted upon proof of participation in any one of the modes of complicity (i.e. ,that he committed the crime as a principal, or that he 40 41 42

(40) S.35(2) was created by the Criminal Law Act, Schedule 12.

(41) See paras. 26, 34 and 35 in Schedule 3.

(42) Of course, he could be charged simply that he did aid and abet crime, or alternatively, that he did counsel or procure it, though this is evidently uncommon: See pp, 344**6 below.

29

aided its commission, or that he counselled this ), Thus, the Court of44Criminal Appeal observed generally in Cogan in 1975 that "(t)he law no

. 45longer concerns itself with niceties of degrees in participation in crime..."In this case the court decided that a person who had been charged with aidingand abetting rape had been properly convicted on this count, though in law

46he was actually a principal. And where accessories are concerned, it will in practice be irrelevant as to whether or not the prosecution proves that the defendant was present at, or absent from the subject crime. He will be liable to conviction provided that it is demonstrated that he performed an act of complicity with the mens rea appropriate to the accessory in this circumstance. In other words the substantive distinction between aiders and counsellors, which is based upon the accessory's physical proximity to the crime, will be of merely nominal significance, though it is still extant in England.

43

(4) Terminology

One result of the Criminal Law Act of 1967 has been that the courtshave discarded the archaic terminology associated with complicity in felony,i.a,"principal in the first degree," "principal in the second degree" and"accessory before the fact." On occasions the judges have evaluatedcriminal liability qua a c c e s s o r y without expressly employing the traditional

47language of complicity at all. Otherwise they have spoken of "aiders and48 . . . . 49abettors" m opposition to the "principal offender," or of the "secondary

50party" as opposed to "principal," 43 44 45 46 47 48 49 50

(43) See pp*. 344-6 below*

(44) [1975] 1 217.

(45) Id. at 225.

(46) Though note that at common law a person could in any event be chargedas principal in a felony and be convicted upon proof of aiding, or vice versa: see pp, 340-1 .

(47) eg Lovesey [1970] 1 QB 352.

(48) Clarkson [1971] 3 All ER 344; Quick [l973] 1 QB 910 at 923.

(49) Cogan [1976 ] 1 Q43 217 at 22$.

(50) Attorney-General's Reference (No. 1 of 1975) [1975 ] QB 773 at 778.

30

(B) AUSTRALIA

(1) The Common Law Jurisdictions

(a) The Commonwealth Crimes Act, 1914

Pursuant to s.5 of the Crimes Act (Commonwealth) any person who ''aids, abets, counsels or procures" or who is by any act or omission "in any way directly or indirectly knowingly concerned in, or party to*' the commission of an offence against any law of the Commonwealth or of a Territory, is deemed to have committed that offence and to be punishable accordingly.

This section governs complicity in all offences under Commonwealth law including that applying in the Commonwealth Territories*(The felony/ misdemeanour distinction is not preserved under Commonwealth law.) And by s.4 of the Commonwealth Crimes Act the principles of common law are to be applied to the construction of the Act subject to any contrary provision in it.

1In its first branch Cue., that which penalises a person who "aids,

abets, counsels or procures" crime), s.5 is in orthodox common law terms,51and echoes s .8 of the Accessories and Abettors Act, 1861 (UK) . The

second branch, le., that penalising a person who is "knowingly concerned in"the commission of crime, is in less familiar terms. But this phrase hasbeen treated by the courts as not adding anything to the first — viz. t it isotiose. This analysis emerges in the consistent judicial characterisationof the section as an "aiding and abetting" section, even where the defendanthas been expressly charged with being "knowingly concerned" in an offence

52pursuant to s.5.

It has also been emphasised repeatedly that s.5 does not create a substantive offence in itself, for example, one of counselling , but is 51 52

(51) Which in turn reflects s.5 of the Summary Jurisdiction Act, 1848 (UK) .

(52) Walsh v Sainsbury (1925) 36 CLR 464 at 476-7 (Isaacs J) ; Goldie ; ex parte Picklum (1937) 59 CLR 254 at 268 (Dixon J) ; ex parte Coorey (1944) 45 SR (NSW) 287 at 310 (Davidson J); ^allan v Lee (1949) 80 CLR 198 at 205(Latham CJ),216 (Dixon C J , who referred generally to it as a section dealing with "accessories") -on the other hand, McTiernan J indicated at 218 that in his view this phrase did add something to the first branch of s.5, though he did not elaborate . And see Dolan[1919J VLR 55; Howell v Doyle [1952] VLR 128 at 153 (Herring CJ).

51

dependant upon the commission of a crime by another. This accords with54the principle that s.5 merely restates the common law of complicity.

The person sought to be incriminated as an accessory is deemed to havecommitted the offence under s.5, viz. by implication he is to be treatedas being a principal. As such, he may be charged directly with the offence,and it would seem to be unnecessary that any reference be made to s.5 in

55 56the count though this may be done. Alternatively, he may be charged57that he was '‘knowingly concerned" in the subject offence^ - or that he did

"aid, abet, counsel or procuren the offence.

Where he is charged directly with the offence, each of the common law58procedural problems referred to ante would seem to be overcome. The

defendant may be convicted upon proof of accessoryship, even though the principal offender has yet to be convicted. This is because of the accessory's implied status as a principal. And it is irrelevant that the prosecution is unable to prove conclusively whether or not he was present (ie., as to whether he was an aider and abettor or a counsellor or procurer) , provided that on a minimum yiew the evidence otherwise satisfies the mental and physical ingredients of accessoryship. This flexibility results from the compendious form of the count; if the defendant is charged as a principal he may be convicted upon proof of participation as a principal or as an aider and abettor or counsellor or procurer by reference to s.5, ie. , this form of charge comprehends all three common law modes of complicity.

%The same reasoning would seem to apply where the defendant is charged

directly as an accessory, with one possible exception. This is, if after being tried on a charge of accessorial involvement the evidence establishes that the defendant in fact participated as a principal offender, may he be 53 54 55 56 57

(53) Walsh v Sainsbury (1925) 36 CLR 464 at 477 (Isaacs J) : Malian v Lee (1949) 80 CLR 198 at 205, 210 (Latham CJ) ; ex parte Coorey (1944) 45 SR (NSW) 287 at 295 (Jordan CJ) ; 310 (Davidson J) ; Cain v Doyle (1946) 72 CLR 409 at 417 (Latham CJ) ; Howell v Doyle^id.at 133-4 (Herring CJ) .

(54) See eg. Ex parte Coorey, id.at 295 (Jordan CJ); 310 (Davidson CJ).

(55) Howell v Doyle [1952] VLR 128 at 132 (Herring CJ).

(56) Cain v Doyle (1946) 72 CLR 409.

(57) Dolan (1919) VLR 55; Goldie; ex parte Picklum (1937) 59 CLR 254; Malian v Lee (1949) 80 CLR 198.

See p.?5 above.(58)

32

convicted upon the original (Lxj. unamended) count? No decision expressly establishes this, but this consequence would be logical, given that on an overall view s.5 was clearly intended, having regard to the compendious forms of :ount permitted under it, to overcome the common law procedural rules governing complicity in felony and their preoccupation with distinctions between certain of the parties. More particularly, s.5 does by implication deem accessories to offences under Commonwealth law to be principals. Such an assimilation must be for procedural purposes - clearly s.5 has not merged the categories of secondary participation for substantive purposes.If this is so then the procedural situation would be as it is for accomplices in misdemeanour at common law.

And it is not without significance perhaps that s.5 virtually restatess .8 of the Accessories and Abettors Act, 1861 (UK) which, it has been noted, inturn restates this common law procedural rule affecting accomplices tomisdemeanour. Section 5 is not necessarily to be construed in exactly thesame way as s.8, however, given that s .8 was expressly concerned withindictable misdemeanours, whereas the felony/misdemeanour distinction is

59unknown under Commonwealth law.

Terminology

Because the Commonwealth Crimes Act discards the felony/misdemeanourdistinction, the terminology of 'principal in the first degree/ "principalin the second degree,” and 'accessory before the fagt," is not used inconstruing and applying s.5. Rather, the courts Employ the languageassociated with the analysis of the similarly worded s .8 in the Accessoriesand Abettors Act, 1861 (UK), viz, the secondary participant is referred toas an "accessory/1 or as a person who has "aided, abetted, counselled

61(or) procured."

(59) Jordan CJ seemed to assume such a nexus, in comparing s.5 with s.100 of the Justices Act, 1902 (NSW) which is in substance identical to s.5 of the Summary Jurisdiction Act, 1848 (UK) (which in turn was very similar to s .8 of the Accessories and Abettors Act, 1861 (UK)), in ex parte Coorey (1944) 45 SR (NSW) 287 at 295-6.

(60) Goldie ; ex parte Picklum (1937) 59 CLR 254 at 268 (Dixon J)*

(61) Goldie,id at 277 (McTiernan J).

35

(b) New South Wales, Victoria and South Australia

Though each of these three Australian States possesses a general criminal 62statute, none of the latter effects a general exclusion of common law

liability. For the most part these enactments restate the indictable offences existing at common law, though typically with some modification, for example, by imposing a penalty ceiling. And they also create a number of offences not found at common law.

The doctrine of complicity continues to exist at common law in each jurisdiction, though each statute contains provisions relating to accomplices. These mainly concern the procedural law, and are similar in each enactment.

Where complicity in felony is concerned it is provided in each Statethat an accessory before the fact may be indicted, tried convicted and

63 .punished as if he were a principal felon, i jb. , the accessory before thefact to felony is deemed to be a principal for procedural purposes. Theresult is that if a person is indicted as a principal and the evidence attrial discloses that he really participated as an accessory before the fact,he may nonetheless be convicted on this count. This is not possible at

64common law. No provision, however, is made for the converse situation, Le.,a person who is indicted as an accessory before the fact to felonycannot be convicted upon proof of participation as a principal, this

65being prohibited at common law. Further, it is specifically provided in New South Wales and South Australia that an accessory before the fact may be convicted of a given felony irrespective o£ whether the principal has been tried or not, or whether he is amenable to justice or not It is likely that this result would obtain under the Victorian legislation given that the accessory before the fact may be indicted, tried and 62 63 64 65 66 67

66

67

(62) The Crimes Act, 1900 (NSW) ; The Crimes Act, 1958 (Vic) ; the Criminal Law Consolidation Act, 1935 (SA).

(63) Crimes Act,1900(NSW), s.346; Crimes A c t , 1 9 5 8 ( V i c .),s.324? Crimi n a l La w C o n s o l i d a t i o n Act, 1935 (SA), s .267(1) •

(64) See p ,341 below.

(65) Id.(66) Crimes Act, 1900 (NSW) s.346; Criminal Law Consolidation Act, 1935

(SA), s .267(2).

(67) I.e., Crimes Act, 1958 (Vic.), s.324.

34

convicted as if he were a principal felon, although the statute does notexpressly provide for the conviction of the accessory before the fact

6 8independently of the conviction of the principal.

The Crimes Acts of New South Wales and Victoria also specify that theprincipal in the second degree to felony is subject to the same punishment

69as the principal felon. This restates the common law. As well, eachstatute contains similar sections dealing with procedural aspects of

70accessoryship after the fact.

The common law doctrine whereby secondary parties to misdemeanours are principals for procedural purposes and may be charged as if they were

71principals, is restated in legislation in each of these jurisdictions.These sections are in similar form to s .8 of the Accessories and Abettors Act, 1861 (UK). Accordingly they authorise the charging of the suspected secondary party in the alternative that he did "aid, abet, counsel or procure" the offence.

Terminology v

Where felony is concerned, the courts in these jurisdictions havetypically employed the old common law usages, ie., principal in the first

72degree, principal in the second degree and accessory before the fact. 68 69 70 71 72

(68) This is because it has never been an objection to the conviction ofa prin c i p a l that his co -principal ha s n o t b e e n c o n v i c t e d .Similarly the pr incipal in the second degree(or a i d e r a n d a b e t t o r ) m a y be c o n v i c t e d in dep e n d e n t l y of the p e r p e t r a t o r ( i e p r i n c i p a l ) - see p . 5 5 5 below.

(69) Crimes Act, 1900 (NSW) s.345; Crimes Act, 1958 (Vic), s.323.

(70) Crimes Act, 1900 (NSW) s.347; Crimes Act, 1958 (Vic), s.325;Criminal Law Consolidation Act, 1935 (SA), s.268.

(71) F o r provisions dealing with c o m p l i c i t y in indictable m i s d e m e a n o u r s see the Crimea Act,1900(NSW), s .354; the Crimes A c t , 1 9 5 8 ( V i c . ) , s . 3 3 3 . The C r i minal L a w Conso l i d a t i o n A c t ,19 3 5 ( S A ) , s . 2 6 9 deals with c o m p l i c i t y in misdemeanours general ly.

C o m p l i c i t y in summary mi s d e m e a n o u r s is p r o v i d e d for in the J u s t i c e s Act, 1 9 0 2 ( N S W ) , s .100j the Justices A c t ,19 5 8 ( V i c •), s,77$ the Justi c e s A c t ,1 9 2 1 (SA), s.53.

(72) Kalinowski (1930) 31 SR (NSW) 377 at 381 (Davidson J); Vandine [1970J 1 NSWR 252 at 254 (Herron CJ) ; Doorey F1970 H 3 NSWR 351 at 353;Russell fl933] VLR 59 at 67 (Cussen ACJ); Lowery [1972] VR 560 at 562 (Smith J).

35"

When discussing accessory misdemeanant's, the courts have employed the73orthodox terminology of "principal" and "accessory" ; and where accessories

74are concerned they have referred to the "aider and abettor^ or to75"counselling or procuring."

(2) The Criminal Code Acts : Queensland, Western Australia and Tasmania.

The common law of crime has been formally supplanted by a codified law of crime in each of Queensland, Western Australia and Tasmania. In other words, criminal liability at common law has been extinguished in each of these jurisdictions, and a person may only be exposed to penal consequences by resort to a statutory offence. The Criminal Code Acts detail a compre­hensive regime of criminal regulation; further offences, mainly of a

76summary character, are enacted in other statutes.

A statutory doctrine of complicity is provided for in sections 7-9 of the Queensland and Western Australian Codes (which are in identical terms) and in sections 3-5 of the Tasmanian Code (which are similar, but not identical, to sections 7~9 in the Queensland and Western Australian Codes.) The major complicity sections are s.7 of the Queensland and Western Austr­alian Codes, and s.3 of the Tasmanian Code. Further sections in eachstatute supplement each of these initial sections, and clearly provide a

77basis of liability unknown to the common law. For the moment, however, only s.7 of the Queensland and Western Australian Codes (corresponding to s.3 of the Tasmanian Code) is examined.

(a) Section 7 of the Queensland and Western Australian Codes (s.3 of the Tasmanian Code

Superficially, s.7 of the Queensland and Western Australian Codes was intended more or less to reproduce common law of parties, or at least, was cast in conventional common law terms. The major clauses in this section are as follows: 73 74 75 76 77

(73) Lenzi v. Miller [1965] SASR 1 at 2 (Chamberlain J) , 13-14 (Bright J) .(74) Glennan [1970] 2 NSWR 421 at 425.(75) Lc izi v. Miller [1965] SASR 1 at 13 (Napier CJ and Travers J.)(76) See generally Howard, p3ff.(77) I.e., Queensland and Western Australian Codes s.8, s.9; Tasmanian

Code s.4, s.5.

36

7. Principal Offenders. When an offence is committed, each of the following persons is deemed to have taken part in committing the ' offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;(d) Any person who counsels or procures any other person to commit

the offence.In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence...

Section 3(1) of the Tasmanian Code is very similar, except that the term"abets" is used instead of "aids" in ss.(l)(c), and the usage "instigates" is

78used instead of "counsels or procures" in ss(l)(d). These differences aremerely stylistic. "Aid" and "abet" are synonymous. This was clearly

7Qaccepted by Burbury CJ in W r y ay v R (1962) ~ who spoke generally of s ,3(1) &s80an aiding and abetting* section. His Honour clearly had in mind that

s.3(l)(b) (which refers to an act of aiding) and s.3(l)(c) (which refers to an act of abetting) are to be read conjunctively as enacting a unified concept of accessorial liability corresponding with the common law category of aiding and abetting. Certainly, his approach to the subsection reflects a view that the fact that different usages are employed in s.3(l)(b) and (c) is not of substantive significance. And elsewhere in Murray Crawford J

81construed "instigates" in s.3(l)(d) as meaning to "counsellor] ..procure."More generally, Burbury J spoke on this occasion of s.3 of the TasmanianCode as “corresponding substantially" to s.7 of the Western Australian

82Code (and therefore s.7 in the Queensland Code as well ). 78 79 80 81 82

(78) As well, ss.(l)(a) reads, "Every person who actually commits the crime." In substance this is identical to s.7(a) of the Queensland and Western Australian Codes.

(79) [1962] Tas SR 170.

(80) Id,at 173.(81) Id.at 198.

(82) Id,at 182. The other leading Tasmanian decision upon the complicity provisions in the Tasmanian Code is frost v R [1969] Tas SR 172.

37

Is s.7/3 to be construed as importing common law principles? In the83High Court decision of Brennan v R (1936)/ which dealt with the application

of sections 7 and 8 of the Western Australian Code, Dixon and Evatt JJnoted in relation to s.8 that "it forms part of a code intended to replacethe common law, and its language should be construed according to itsnatural meaning and without any presumption that it was intended to do nomore than restate the existing common law. It is not the proper course tobegin by finding how the law stood before the Code and then to see if the

84Code will bear an interpretation which will leave the law unaltered..."

In the later High Court case of S t u a r t v K (1974-)^ these comments w e r eendorsed by Gibbs J who further stated that it did "not mean that it isnever necessary to resort to the common law for the purpose of aiding inthe construction of the Code," as for example, when the text of the Codewas ambiguous, "or (where it) uses language which had previously acquired

..86a technical meaning..." Though Stuart dealt with the complicityprovisions of the Queensland Criminal Code Act, His Honour's remarks were

87not made specifically in relation to these sections.

Obviously s.7/3 employs words which previously had acquired a technicalmeaning. And there is Tasmanian authority to the effect that the complicityprovisions in that State's Criminal Code are to be interpreted in common lawterms. In the view of Chief Justice Burbury in Murray v R (1962), Hs.3 attemptsto express in statutory form well established principles of the common law

u89relating to the liability of participants in criminal enterprises. This, * 90approach was endorsed by Gibson J on the same occasion though Crawford J

was of the contrary opinion^

(83) (1936) 55 CLR 253.

(84) Id,at 263, referring to Bank of England v Vaglio Bros [1891 ] AC 107 atpl44,5 (Lord Herschell.) And see Howard there.

at p .3, and the cases cited

(85) (1974 ) 4 ALR 945.

(86) Id. at 555.

(87) Id

(88) [1962] Tas SR 170.(89) Id.at 175,

(90) Id,at 188ff; see 191 especially.

(91) Id,at 195.

58

In one area at least the judicial construction of s.3/7 demonstratesstarkly that the section is not necessarily to be read simply as areformulation of the common law. The courts have consistently affirmed thatthe common law concept of presence, which segregates accessories into aidersand counsellors, is irrelevant to the application of the Code complicityprovisions. A person may be criminally liable under each Code for aidingand abetting crime, though he was absent from its commission; conversely,he may be guilty as a counsellor or procurer (or in Tasmania, an instigator)

92of crime, though present at this.

Subject to this qualification, however, and subject also to the cautionary terms of the joint remarks by Dixon and Evatt JJ in Brennan, the courts have generally approached the evaluation of accessorial liability 92

(92) This is reflected in the High Court case of Brennan v R (1938) 55 CLR 255/ which concerned a charge partly formulated under s.7 of the Western Australian Criminal Code dje. , the general complicity section ). Dixon and Evatt JJ accepted that a man who was party to an agreement to shopbreak and who stood outside the shop on watch, so that he was constructively present in common law terms, could be made liable for a subsequent homicide committed in the shop by his confederates if he were shown to have remained on watch either for the purpose of aiding them in carrying out that plan and so commit the assault, or that he had counselled them to do so (at 263). In the Queensland case of So'omon (1959) 53 QJPR 97 Philp J remarked that "By s.7" (ie, of tin Queensland Code) "the counsellor or procurer is a principal offender and may be charged as actually having committed the offence if counselled; he does not cease to be a counsellor or procurer because he is at or near the scene of the crime" ( jt 101 ), And in the Tasmanian case of Murray V R [1962] Tas SR 1 7 0 , Cr a w f o r d J recognised that an instigator under s.3(l)(d) of the Tasmanian Criminal Code (whom he regarded as a person who counsels, procures or commits crime), could be present at the offence (in evaluating the liability of an accessory who had been present at the commission of the crime) : id. at 198.

But see Borg y R [1972] W A R 194 a t 197 where J a c k s o n CJ c l e a r l y assumed that s.7 of the Western Australian Code restates the common law categories of accessoryship.

The view that accessories u n d e r this p r o v i s i o n are no l o n g e r to be di v i d e d into those present at or a b s e n t f r o m the commission o f crime has been s u p p o r t e d by N e w Zea l a n d a u t h o r i t y on s»66(l) o f the Crimes A c t ,1961 (NZ), w h i c h is similar to s»7* see p . 4 5 bel o w .

That s.7 of the Queensland and Western Australian Codes (and thus section 3 of the Tasmanian Code, and indeed s.66(l) of the New Zealand Crimes Act, 1961) is to be construed as dispensing with the common law idea of presence is emphasised, perhaps, in the terms in which s.7(b) is constructed. Though concerned with an act of "aiding" as distinct from one of counselling or procuring, it seems clearly to envisage (especially when contrasted with section 7(c), which is also an "aiding" section) that the accessory made liable under it may be absent from the commission of the crime.

39

under s.7/3 of the Codes in a manner indistinguishable from that manifested in the common law authorities. This has been particularly evident in the cases concerning the commission of a collateral crime during the course ofthe execution of a joint plan for the commission of another crime 93 Itis likewise evident in complicity cases disclosing more straightforward

94 95fact situations. More specifically, in both Western Australia and,it has been seen Tasmania^recent Supreme Court authority expressly assumesa close concurrence between common law principles and the doctrine ofcomplicity stated in s.7/3. The leading High Court decisions do not goas far as this, though their analysis of s.7/3 is essentially a common law

97 98one. The Queensland approach is similar to that of the High Court.In principle - and indeed in practice - it is difficult to see how or

why the aggregate ambit of accessorial liability provided for in s.7/3 ought differ from that existing at common law. The section describes a common law concept (ie, complicity) in standard common law terms. It is silent as to the precise ingredients either of accessorial mens rea and actus reus, so that the natural tendency would be to resort to the common law analysis in stating these. Implicitly or explicitly the judges have done this. The result has been^that in general the courts have given effect to the common law position that any person who instigates, encourages or otherwise assists a crime with the mens rea appropriate to this crime, is

(93) Brennan v R (1936) 55 CLR 253; Borg v r |1972|WAR 1 9 4{Murray v R i~1962] Ta s 770. It is to be noted that this type of secondary liability is also provided for in the supplementary provisions in the Codes, i,e„ sections 8 and 9 of the Queensland and Western Australian Codes; sections 4-5of the Tasmanian Code, which are also dealt with in these decisions. These provide bases of liability unknown to the common law. See generally Chapter Seven.

(94) E.g., Johnston[1973] Qd R 303; Mayberry [1973] Qd R 211.

(95) See Borg v R [l 972] WAR 194 at 197 (Jackson CJ).(96) Murray v R [1962] Tas SR 170 at 175 (Burbury CJ) ; 188ff, 191

especially (Gibson J); contrast Crawford J at 195.

(97) Brennan v R (193*-') 55 CLR 25$ (which concerned the construction o f s .7 and s .8 of the Western Australian Code ); Stuart v R (1974) 4 AL R 545 (which concerned the construction of sections 7,8 and 9 of the Queensland Code ),

(98) Mayberry [l973] Qd R 211; JohnstonT1973] Qd R 303.

40

liable in exactly the same way as he would be at common law. And it is because the courts have adopted this approach in construing the Code provisions that it is reasonable to suppose that many of the common law authorities are relevant to the construction of the Code provisions on matters of detail, as well as general principle. There will, however, always be cases where the courts choose not to adhere to the common law analysis.

But if the courts have not, since the introduction of the Codecomplicity provisions in each State, divided accessories according totheir physical proximity to the commission of the crime, when is itappropriate to view an accessory as being liable under the counselling orprocuring/instigating clause, as opposed to the aiding and/or abettingclause? The approach of the courts would seem to be that a person is to beregarded as an aider and abettor, rather than a counsellor-cum-procurer, orvice versa, according to the nature of the act of complicity performed byhim. Thus, a person who takes the initiative and inspires another to commitcrime is clearly a counsellor or procurer or instigator - these terms beingmore apt to describe the apcessory's activity than '‘aid" or "abet,"Similarly, "counsel" is appropriately applied to one who offers moral

99encouragement to the principal offender. The terms "aid11 or "abet” would most naturally be applied to the person who performs a subsidiary act of facilitation as distinct from one of instigation or moral encouragement, whether or not he is present at the commission of the crime.^

■m-

(99) In Nichols [1958] Qd R 200 Mansfield CJ noted of ''counsel'* (in s.7(d) of the Queensland Code, ie s.7(d) of the Western Australian Code) that "[t]he ordinary meaning of the word is to advise or recommend, and there is . . .nothing in the section to indicate any other meaning than the ordinary one is intended' (at 215 ), And see Philp J in Solomon (1959) 53 QJPR 97 who considered that ''if two persons plan to commit ce tain offences each counsels and (if the offence be committed) procures the other to commit the offence. If these two persons actually take part in the commission of the offence, one performing the criminal act and the other aiding, the latter is nonetheless a counsellor and procurer, but I think that it is the same whether he is treated as an aider or a counsellor or procurer" (at 100 ),

In Tasmania, it has been seen, the word "Instigates'' (which appears in s.3(l) (d) of the Code) has been regarded as being synonymous with the usage ^counsels*1 or "procures": see Murray v R pl962) T a s SR 1 7 0 at 199 (Crawford J ). And see generally S tuart v R (1*974) 4 A L R 545*

(100) Brennan v R (1956) 55 CLR 255 at 265 (Dixon and Evatt JJ).

(b) Sections 8 and 9 of the Queensland/Western Australian Codes (Sections 4-5 of the Tasmanian C o d e ) ___________ _________ __ ’___

These sections provide for the liability of the party to a joint planfor the commission of a given crime if during the transaction of this planhis confederate commits another crime, where this latter crime was anobjectively "probable" consequence of the transaction of this preconceivedpurpose. This basis of accessorial liability is unknown to the common law,where the accessory is required, at the minimum, to h-rve in his contemplationthat the principal may perforin the act constituting or causing the actus reus

101of the offence for which he is sought to be made liable. These sectionsstate a basis of liability for collateral crimes which is an alternative tothat pr o v i d e d for in s .7/3 o f the Codes. W h e r e s.7/3 is concerned, theCrown must prove that the al l e g e d a c c e s s o r y h a d the mental element appropriate

102to the collateral crime, as at common law.(c) Complicity in Summary. O ffe n c e J ji, Ahe da S tates

The courts have held that the complicity provisions in each of theQueensland and Western Australian Codes apply to offences created bystatutes other than the particular Code itself, in addition to offencesin the latter. Most of these non-Code offences would be summary in

103nature. In Tasmania the Justices Act, 1959, s.73, inculpates secondaryparticipants in summary offences in terms similar to those found in s.3 of the Tasmanian Code (which is confined in operation to indictable offences ),

(d) Form of Charge %

Under the Code provisions the secondary party is deemed to be liable as if he had actually committed it. It is further provided that he may be charged as such, be., as a principal (s.7/3). Note, however, that s.7 also provides that a person inculpated by virtue of an act of counselling or procuring may be expressly charged with counselling or procuring, in the alternative. Secondary parties to crime in fact are usually charged as principals under the Code provisions, it being open to the prosecution as

(101) See generally Chapter Five. The degree of knowledge, if any, which is as to the relevant circumstances surrounding the principal’s act which is required differs from offence to offence - see generally Chapter Six.

(102) See generally Chapter Seven.(103) Hunt v Maloney (1959) 53 QJPR 109; Snow v Cooper (1944) 57 WALR 92;

Wilson v Dobra (1955) 57 WALR 95; West v Suzuka [1964J WAR 112. And see s.2 of the Queensland and Western Australian Codes.

42

to precisely what section or sections (or indeed, subsections) it105would rely upon to establish the defendant's liability. In other words,

the Crown will usually charge the defendant in general form (ie. as aprincipal) and having done this it may subsequently seek to prove its casepursuant to any one of the grounds of liability contained in thesecomplicity provisions, or pursuant to several of them in the alternative.Because of this flexibility, and in particular, because the secondary partyis identified as being a principal in the legislation, none of the

106procedural problems earlier referred to arise in the Code jurisdictions.

(e) Terminology under the Codes

The usage of "accessory" is not employed in the Code provisions.Indeed, persons liable under s.7/3 are expressly identified as being principaloffenders. There is judicial support, however, for the characterisation ofeach of the secondary parties to crime under the Code provisions as being

107an '‘accessory" in contrast to a "principal offender." Elsewhere the108courts have spoken of participation as an "aider" or as an "aider and

109abettor." Presumably also, a person who counsels or procures crimeTpursuant to s.7(d) of the Queensland and Western Australian Codes could be called a counsellor or procurer, and one who instigates under s.3(l) (d) of the Tasmanian code could be Galled an instigator.

It is thought that the common law usage of "accessory" represents a* * 4

(104) Secondary liability may be supported by reference to one or more ofthe following: Queensland and Western Australian Codes s.7(b)-(d),s.8, s.9; Tasmanian Code s.3(1)(b)- (d), s.4, s.5.

(105) Nichols [1958] Qd R 200; Mayberry [1973] Qd. R 211; Stuartv R (1974)4 ALR 545;Brennan v R(193&) 55 CLR 295;Borg v R [1972] WAR 194;Murray v R [1962] Tas SR 170.

(106) See p .25 above, and see p.MOff* generally, below.

(107) Borg v R [1972] WAR 194 at 197 (Jackson CJ).(108) Solomon (1959) 53 QJPR 97 at 106 (Mack J, dealing with s.7(c) of the

Queensland Code ).

(109) Murray v R jl 962] Tas SR 170 at 184(dibson J,dealing with s.3(l)(b) and(c) of the Tasmanian Code).

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convenient shorthand way of referring to secondary participants under the complicity sections in each Code. The terms "aider” , "abettor” , "counsellor or procurer" ought not to be used in such a way as to not obscure one of the vital features of the Code provisions, viz,, that the common law division of accessories into those present at and those absent from crime is inapplicable under the Codes. (These common law phrases, if unqualified, would of course retain this connotation.)

(c) NEW ZEALAND

The New Zealand Crimes Act of 1961 represents a comprehensive criminal Code which like the Criminal Code Acts of Queensland, Western Australia and Tasmania excludes liability for common law c r i m e s . T h e result is that persons may be made criminally liable only in respect of offences created by the Crimes Act or by other legislation. The latter offences are mainly summary in nature.

The principal complicity provision in the Crimes Act is s.66j

66. Parties to offences - (1) Every one is a party to and guilty of an offence who -

(a) Actually commit's the offence; or(b) Does or omits an act for the purpose of aiding any person to

commit the offence; or(c) Abets any person in the commission of the offence; or(d) Incites, counsels or procures any person to commit the offence.

(2). Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Subsection (1) of s .66 is cast in common law terms and is, moreover, virtuall' identical to s.7 in the Queensland and Western Australian Codes (i.e s.3 in the Tasmanian Code ), Subsection (2) is more clearly divergent from the common law. Consideration of ss.(2) will be postponed for the moment.

(110) New Zealand Crimes Act s.9; and see for example Paterson [l976 ] 2 NZLR 304 at 396.

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(1 ) Section 66(1)

Section 66(1) employs the technical language of the common law. It is therefore capable of being viewed as restating the common law doctrine of criminal complicity. As in the case of its counterparts in the Australian Codes, however, it is by no means certain that this is how it ought beconstrued. The New Zealand court of Appeal declared in Paterson (1976) that ”a common law principle as to liability cannot be applied in New

111

Zealand if the relevant provisions of the Crimes Act are plainly inconsistentwith the application of that principle.. 112 On the other hand, this courthas more than once had recourse to accepted principles of the common law as

1*113an aid to the interpretation of particular provisions of the Crimes Act,Paterson was itself a decision concerning the construction of s.66(l), andon this occasion the court resorted to a concept evolved as part of thecommon law doctrine of complicity (i<s, the so-called doctrine of innocent

114agency ) in construing s.66(1)(a). It seems reasonable that, as in the case of the principal complicity provisions in the Australian Criminal Codes, the common law concepts and authorities should be resorted to in construing s.66(l), having,regard to two factors in particular; first, ss.(l) is formulated in common law terms and/secondly, these terms are not elaborated in any way by the Act, so that in the absence of common law principle the rules governing the basic physical and mental elements in accessoryship would have to be painstakingly formulated by the courts treating these questions largely as matters of first impression.

In fact,it is submitted, the overall approach of the courts has been 111

(111) Ii.at 396.(112) Citing by way of illustration R v Murray Wright Ltd [1970] NZLR 476.

(113) Citing by way of illustration Anderson [l965] NZLR 29, Reardon [l965] NZLR 473.

(114) According to this doctrine a person who procures another to commit a crime is deemed to be a principal offender should his so-calledhuman instrument be without mens rea. See p. 237ff • below*

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to construe s.66(l) against a background of common law principle, subject to one possible exception. This is that under s.66(l) it may be of no moment, legally, whether or not the accessory is present at the commission of the crime. In other words, an aider and/or abettor (s.66(b) and (c)) may be absent from the commission of crime, and a counsellor or procurer (s.66(l) (d)) may be present at this. Such a construction would concur with

115

116 The principalthat accorded its Criminal Code counterparts in Australia.117New Zealand authority to this effect is Baker (1909). Supporting obiter

comment is found in Opie v Goldfinch (1947).118 Apart from these two cases,

(115) The following cases illustrate the employment of a common law analysis, or indicate a preference for it where s.66(l) is concerned:Beuth [1937] NZLR 282 at 289 (commenting upon s.90 of the Crimes Act, 1908 (NZ) (which corresponds to the present s.66(l)); Opie v Goldfinch [1947] NZLR 69 at 72-3 especially (Callan J) (note that the comments on s.90 of the Crimes Act, 1908 (NZ), which is almost identical to s.66(l) of the Crimes Act, 1961, are obiter. Strictly, the accessorial liability on this occasion was upheld by resort to the general complicity section (ie s.54) in the Justices of the Peace Act, 1927 (NZ). The latter was based upon s.5 of the Summary Jurisdiction Act, 1^48 (UK) which restates the common law. As it happened His Honour considered s.54 to be substantially (if not stylistically) identical to s.90); Lewis [1975] 1 NZLR 222 at 227ff; Paterson [l976_] 2 NZLR 394 at 396 (though note the general warning at this page that the Crimes Act is not necessarily to be construed as a restatement of the common law, if for example "the relevant provisions of the Crimes Act are plainly inconsistent with the application of that principle...On the other hand, this court has more than once had recourse to the accepted principles of the common law as an aid to the interpretation of pai^iicular provisions of the Crimes Act").

(116) Le. ,s.7 of the Queensland and Western Australian Codes; s.3 of the Tasmanian Codes.

(117) (1909) 28 NZLR 536. Here Chapman J considered that a person who wrote a letter to another in response to the latter's query instructing him how to blow open a safe was both an aider and a counsellor in any subsequent offence of this type, pursuant to s.90 of the Crimes Act, 1908 (NZ) (which was in the same terms as the present s.66(l)) - at 545. Mr Justice Cooper considered the actto be one of aiding, supporting the inference that the concept of presence was legally irrelevant (at 544). More conventionally, however, Denniston J considered the act as being one of counselling (at 542) .

(118) [l947j NZLR 69. The case concerned the imposition of accessorial liability upon a person in respect of a summary offence pursuant to s.54 of the Justices of the Peace Act, 1927 (NZ) (since repealed.) Callan J remarked, however, that s.90 of the Crimes Act 1908 (NZ)0.e, corresponding to the present s.66(l)) was like s.54, in that '“actual presence at the site and time of the offence is not always necessary to support a charge of aiding and assisting . (at 73).

46

] ighowever, the New Zealand decisions are neutral as to the issue.

In practice the question is not a significant one, given that allegedaccessor es are charged as principals pursuant to s .66 (se;e below). IfBaker ana Opie v Goldfinch are not accepted as resolving the issue, sothat the question of presence is irrelevant, then the terms "counsellor,'*"aider” and so on will presumably be applied to the defendant according totheir aptness to describe his act of inculpation, having regard to theirdictionary meaning. (This is not to say that the common law is nototherwise to be resorted to in applying s.66(l) - for example, in determiningwhether the defendant has the mens rea required for the accessory, or whetherhis act - the question of presence aside - is of a type sufficient to ground

120accessorial liability. ) This latter approach, it has been seen, would seem to be the preferred one in the Code States of Australia.

The obvious alternative view would be that the words are to be construed in the common law sense, so that the aider and abettor must be present at the commission of the crime, and the counsellor absent from this.

(2) Section 66(2)

Section 66(2) provides that a person who joins with another or others inthe prosecution of a crime becomes liable for any other crime committed byhis confederate/s if this was known by him to be a probable consequence ofthe prosecution of the initial of these two crimes. Liability for a%collateral crime in this circumstance has always been able to be established at common law, where its commission was within the subjective contemplation

(119) For example, a person who, on one view of the alleged facts, was present and assisting another to commit crime, has been characterised by a court as a possible "aider and abettor." This is not to say, however, that the court was definitely of the view that an aiderand abettor could not be absent from the crime. It may be that this term was used because the court considered that the defendant may merely have assisted the crime in a subsidiary way rather than instigated it : see Lewis [1975] 1 NZLR 222 at 230.

But contrast Bowern (1915) 34 NZLR 696 at 702-3, where the court seemingly inclined to regard an alleged accessory as a counsellor rather than an aider, if absent from the crime. It is obvious, however, that the court's attention was not directed specifically to this issue.

See generally the discussion of this issue of presence in relation to the very similar provisions of the Australian Criminal Codes, at p.38* above.

(120) For example, at common law an act of assistance committed after the crime cannot inculpate as an accessory.

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of the accessory, and equally should be able to be grounded in terms of the general doctrine of complicity set forth in s.66(l)0 In these tems/ s.66(2) represents an alternative and supplementary form of accessorial liability vis-a-vis s.66(l). Section 66(2) is not formulated in common law terms. It is examined elsewhere.

SIL_ Other Complicity Provisions in the Crimes Act, 1961

Sections 68-71 also deal with aspects of criminal complicity, or with accessoryship after the facto Sections 68-9 deal with jurisdictional questions, s.70 with the incitement, counselling or procuring of offences where the offence committed is committed in a way different from that envisaged by theinciter, etc, or where the offence committed is different from that contemplated

122 123by the inciter, etc, and s.71 with accessories after the fact.

(4) Application of Complicity Provisions in the Crimes Act, 1961 to Summary_____Offences_____________________________________________________________

124By s.3(l)(d) of the Summary Offences Act, 1957 (NZ) the whole of Part IV of the Crimes Act of 1961 is applied to summary offences. This Part includes the complicity provisions in s.66 and sections 68-70, and s.71,which penalises the accessory after the fact to an offence.

(5) Form of Charge

Persons suspected of secondary participation in crime pursuant to s.6612are charged as principals, i.e., with having themselves committed the crime.

Accordingly, the jury (or other tribunal of fact)* may be invited toevaluate the liability of the defendant under any one or more of the

126heads of liability specified in s.66. That the secondary party may be

(121) See pp. 2 3 2 - 3 below.(122) See p. 149below.

(123) See pp, 251-2 below.(124) As substituted by the Summary Proceedings Act Amendment Act, 1961, s.2.(125) E.g.,Baker (1909) 28 NZLR 536 (this case concerned, inter alia, s.90 of

the Crimes Act, 1908 (NZ) , which is in similar terms to the present s.66(1); Malcolm [1951] NZLR 470; Morrison [1968] NZLR 156.

(126) I.e,, that the defendant was a principal offender (s.66 (1) (a) ) ; or an aider and/or abettor (s.66(l)(b) and (c)); or an inciter, counsellor or procurer (s.66(1)(d)); or in terms of s.66(2).

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charged as a principal (iA, that in effect the modes of complicity havebeen merged for procedural purposes) would seem to overcome the procedural

127problems referred to earlier in this chapter.

(6) Terminology

Section 66 does not formally identify the secondary participant incrime as an "accessory" but merely as a "party/* in common with theperpetrator. The courts have, however, spoken of the person who aids and/or abets crime (i,ew pursuant to s.66(l) (b) and (c)) as an "aider and

12 8abettor" or "aider" or 'abettor.' similarly, the term "counsellor" or"procurer" would be apt to describe a person who incites, counsels orprocures crime (s.66(l)(d)). The archaic common law terms appropriateto complicity in felony (iA, "principal in the first degree" "principalin the second degree" and "accessory after the fact") have only beenemployed by the New Zealand courts in recent years at least, when discussingcommon law authorities dealing with complicity in felony which have been

129seen as being relevant to the construction of s.66. on another occasiona judge, when evaluating liability in terms of s.90 of the former Crimes*Act, 1908 (NZ) (which section corresponds to s.66(l)), contrasted the"principal" in an offence with the "accessory” (Ia # one who aids and abets

130or who counsels or procures ). This form of legal shorthand is as appropriate in New Zealand as it is in the other jurisdictions under discussion.

(Ill) A GENERAL COMMENT ON TERMINOLOGY

The common law categories of complicity, i.e„ those providing for participation as a principal offender, as an aider and abettor, and as a counsellor-cum-procurer, continue to exist in England, under the Commonwealth Crimes Act, (Aust.), and in New South Wales, Victoria and South Australia, notwithstanding that legislation affecting the procedural law relating to accomplices has been passed in these jurisdictions. Accordingly, it is possible to adhere to a uniform terminology in

(12 7) see pj?j> abom

(128) Lewis L1075 ] 1 NZLR 222 at 230.

(129) E a ,Paterson [ 1976] 2 NZLR 394 at 395, 396.

McAteer v Lester | 1962 ] NZLR 485 at 486 (Henry J) .(130)

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discussing the law in these jurisdictions. It was indicated in ChapterOne that the following shorthand would be applied: (1) the physicalperpetrator of a crime will be called the '‘principal" (or "perpetrator");and the person who instigates, encourages or assists him in this act will

131be called an '‘accessory" (or "secondary party "). (2) Accessories whoaid and abet crime will be referred to as "aiders"; and those who counsel

132or procure crime will be called "counsellors." These persons will be viewed as "aiding" and "counselling" crime respectively.

Given that the division between perpetrators and secondary participants has necessarily survived in the codified doctrines of complicity found in the Criminal Codes in Queensland, Western Australia and Tasmania, and in the New Zealand Crimes Act, 1961, it will be convenient to use the terminology of "principal" and "accessory" in discussing these provisions. (It is to be

(131) The courts have frequently adopted the generic terms "principal" and "accessory" in contrasting the person who perpetrates crime and the person who aids or counsels its commission, in both the felony and misdemeanour context^. For examples of this in the felony context see Heydon (1586) 4 Co. Rep. 41a, 76 ER 985; Harding [1976] VR 129 at 137-9 (Gowans J) . For examples in the misdemeanour context see Gould v Houghton [ 1921 ] 1 KB 509 at 520 (Darling J) ; Lenzi v Miller 1 1965 ] SASR 1 at 2 (Chamberlain J) ; 13-14 (Bright J) . It is alsofound in the jurisdictions relying upon a statutory doctrine of complicity - for example, Goldie ; ex parte Picklum (1937) 59 CLR 254 at 268 (Dixon J); Malian v Lee (1949) 80 CLR 198 at 210, 211 (Latham CJ); 215 (Dixon J) (which both concern the construction of section 5 of the Crimes Act, (Commonwealth^ ; Borg [1972] WAR 194 at 197 (Jackson CJ, dealing with the application of the Criminal Code of Western Australia); McAteer v Lester Cl962] NZLR 485 at 486 (Henry J, dealing with the construction of s.90 of the Crimes Act, 1908 (NZ), which is similar to s.66(l) of the Crimes Act, 1961 (NZ) .)

In their Working Paper No 43 the British Law Commission's working party on complicity have constructed their proposals around a "principal" and "accessory" dichotemy - see p.5. In contrast the American Law Institute's Model Penal Code provisions regarding complicity do not expressly distinguish principal and secondary parties by formal nomenclature, though they are constructed around this distinction de facto : see the Proposed Official Draft at s.2.06.

The term "secondary party" in the sense of "accessory" has been used to denote the accessory by the English Court of Appeal in Attorney-General's Reference (No.l of 1975) Cl975] 03 775at 778. This usage is not of course a novel one.

(132) These short-hand usages are arbitrary - "abettor" or "procurer" could equally as well have been used. R.M. Perkins for example prefers "abettor" to "aider" .in his article "Parties to Crime" (1941) 89 U Penn LR f}581 at p.584

(though note Mr Justice Bright's reference to the usage of "anet" as being "colourless" : Lenzi v Miller Cl965] SASR 1 at 15.)

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noted, however, that these enactments do not themselves identify the secondary party as an '’accessory " ). But it will not be possible to employ the further more specific shorthand usages of "aider" and "counsellor" because the categories of secondary participation under these criminal codes do not correspond exactly with the two common law categories, even as these statutory doctrines of secondary participation are clearlybased upon the common law doctrine of accessoryship. There are of course

133more than two categories of secondary liability under the Codes. Itwill,in fact,be necessary when discussing these enactments and the associateddecisional law, to specify the basis of secondary liability in issue by

, . , , . 134referring to the particular clause or section grounding this.

On a limited number of occasions the old language associated with complicity in felony will be employed in the following pages, where the context makes it convenient to do this.

>

%

(133) The accessory may be inculpated by reference to any one or more ofthe following provisions in each statute: Queensland and WesternAustralian Codes, s.7(b)-(d), s.8, s.9; Tasmanian Code s.3(1)(b)- (d), s.4, s.5; New Zealand Crimes Act s.66(1)(b)- (d), s.66(2).

(134) Given that this is done, no ambiguity should flow from the common practice of referring to "aiding and abetting* under one or another of these Codes (for example, s.3(l)(b) and/or (c) of the Tasmanian Criminal Code ). Again, these are merely terms of convenience employed to denote a mode of secondary liability created by specific statutory provisions.

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CHAPTER THREE

DISTINGUISHING PRINCIPALS, AIDERS AND ABETTORS, AND COUNSELLORS OR PROCURERS

This chapter deals in greater detail than was possible in Chapter Two, with the common law tests for distinguishing first, who is a principal as opposed to an accessory; and secondly, where accessories are concerned, with distinguishing between those who aid and abet crime and those who counsel or procure it. As well, comment is directed to the issue of whether or not it is necessary to continue to distinguish parties in this way.

(I) DISTINGUISHING PRINCIPALS AND ACCESSORIES

(A ) TESTS FOR DISTINGUISH TICThe principal offender is the person who personally perpetrates

the act or acts which either constitute the physical part of the subject offence, or which cause this latter conduct to take place. In contrast, the accessory does not personally perpetrate, or participate in the perpetration of the physical elements of this offence, nor is his own act the most immediate cause of the physical elements of this offence, viz , his conduct, in itself, will not satisfy the actus reus requirement of the offence. Rather, he is implicated by virtue of his performance of an act which instigates, encourages or assists the perpetrator to commit the subject crime. *

In those situations where the accessory cannot be viewed as having instigated, procured or caused the commission of the offence by the principal, it is unlikely that there will be any difficulty in classifying each of the accomplices as a principal or accessory. Problems may arise, however, if the apparent accessory does play so dominant a role in the commission of the crime by the principal offender that he may be viewed as having instigated, procured or caused this commission. This is because, by definition, the principal offender’s act need not itself constitute the actus reus of a given offence; he is likewise inculpated if he does the act which solely or substantially causes the commission of the actus reus. The nature of some offences is such that the principal can only ever commit

1. See the discussion of causation at p. 7?Tf

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them in this latter way - for example, murder (as contrasted to theft, where the principal’s act or acts may themselves constitute the required taking and carrying off) .

Where murder (or any other criminal homicide) is concerned, the principal offender must perpetrate an act solely or substantially causing death. If therefore, P stabs V, as a result of which injury V dies, P will have committed the actus reus of (inter alia), murder. Suppose, however, that V is stronger than P, and offers resistance. P's two powerful companions, A1 and A2, pinion V's arms against a wall, so that V may drive the knife into V’s body. V dies. Here it might be argued that A1 and A2 have also, like P, done an act which substantially causes V ’s death, so that their conduct, likewise, is directly comprehended by the definition of the physical conduct constituting the offence, and that they are, accordingly, co-principals, along with P. Or what of the situation where A hires a contract killer, to shoot his (A’s) enemy V. Clearly the hired killer is a principal offender; may it not also be argued that A, who has done an act causing V ’s death, is a co-principal, and not a mere accessory?

>It is submitted that the courts in the subject jurisdictions would

classify A, A1 and A2 in the above hypothetical situations, as accessories2and not as principals. On what basis are persons whose act of complicity

may be viewed as causing, wholly or substantially, the perpetration of theprohibited harm, in that situation where a more immediate perpetratorconcurrently acts so as to cause to this event, to*be classified as%accessories? One obvious approach is to say that in the strict conceptualsense, the less immediate perpetrator does not ’’cause", even substantially)(much less solely) the perpetration of the criminal harm. He may contributeto its "causation" in the popular sense in which this word is used, but notin its legal sense. Glanville Williams (in a discussion directed atconsideration of the operation of the novus actus interveniens rule which

3is associated with the legal concept of causation , in the context of 2

2. See the cases referred to below at p.57. One commentator believes thatthis should not necessarily be done: See Lanham "Accomplices, Principalsand Causation" (1980) 12 Melb. Univ. R. 490, which proposition is discussed below at p.56.

It is assumed for the purposes of the present discussion, that the (most immediate) perpetrator of the criminal actus reus incurs criminal liability, and is not an innocent or irresponsible agent. The situation is quite different where the defendant acts through an innocent or irresponsible agent, in his quest to commit a criminal act: See below at p. 23?ff.See below at p.yyff*3.

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accessorial liability, and not specifically to consideration of the problematical aspects of distinguishing principals and accessories),expressed this situation thus:

The novus actus rule is of fundamental importance at common law, because it underlines the doctrine of accessoryship. If D2 incites D1 to kill V, and D1 complies, D2 has caused Dl to perpetrate the crime, but he has not in law caused V's death.The interposition of Dl's wicked volition severs the legal chain of causation between D2’s incitement and the evil consequence.^

In other words, the law identifies as principal offender the person whose5act is the most proximate cause of the perpetration of the physical element

in the subject crime, in that situation where two or more persons act so as to contribute to its perpetration. (Of course, if two or more persons contribute to its commission in an equally proximate way, and none other contributes in a more proximate way, then these two or more participants will be joint principals.) This analysis may be expressed very succinctly by the description in Smith and Hogan, Criminal Law, of the principal offender as

6being the person "whose act is the most immediate cause of the actus reus."

This general conception of who is a principal offender, as opposed to accessory (i.e., that the principal is the person whose act constitutes the most immediate cause of the criminal actus reus), must be qualified or amplified as follows:

(1) The principal need not, to be liable as such, have personallytransacted the whole of the actus reus. It is enough that he has transacted

0some part of it even if, for example, he is absent*from the transaction of7the remainder by another or others. 4 5 6 7

4. Williams, TCL at p.339.5. Using this word in its everyday, and not necessarily its legal sense.6. Smith and Hogan at p.112. Even if Glanville Williams is wrong in his

view noted above, and that A may, in the legal sense of the word, "cause"P to commit an offence, the "most immediate/proximate cause" principle still offers a satisfactory solution for resolving the problems of classification associated with fact situations of the type noted above.

7. Ferguson (1916) 17 SR (NSW) 69 at 76 (Street J); and see Bingley (1821)Russ & Ry 446; 168 ER 890; Kirkwood (1831) 1 Moody 304, 168 ER 1281; and Kelly (1847) 2 Car & K 379, 175 ER 157 (though it should be noted that in the latter cases the courts did not expressly state that the accompl­ices were a]1 liable as principal offenders; rather, they were identified simply as being in common "principals," a usage which in the felony context extends to embrace principals in the second degree (i.e., aiders ). That each was a principal offender would, however, seem to have been assumed.And see Wyles; ex parte Attorney-General [1977] Qd R 169 which deals with

participation as a principal offender under s.7 of the Queensland Code (s.7 Western Australian Code; s.3 Tasmanian Code, and which section is similar to s.66 of the New Zealand Crimes Act.)

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The reported cases of this type have concerned common criminal purposes; and it may be, as one commentator has suggested, that the co-principals must be in concert (i.e., party to a conspiracy) for thegcommission of the crime, in order that this principle may operate. This would be upon the basis, apparently, that it is only because such a party commits his part of the actus reus pursuant to a conspiracy with the others, that responsibility for this act may be attributed to each of the others. Such an attribution of his act could be justified on the basis that given the fact of the conspiracy, each conspirator may be viewed as acting as the agent of each of the others.

It is not inconceivable, however (though it is certainly veryunlikely) that each of two (or more) persons could to the knowledge ofone another, perpetrate a part of the criminal actus reus, and betweenthem complete the whole of the actus reus, although they are not, strictlyspeaking, party to an agreement (i.e., conspiracy) for the perpetration ofthis conduct. In this situation a court presumably would incriminate themas co-principals - the alternative would be to find that there was no single

9principal, which would cleanly be anomalous.

(2) The principal may transact the actus reus alone, or jointly with another or others.^

(3) The defendant may be liable as a principal in certain circumstanceseven though he has not personally participated in -the transaction of the%actus reus of an offence:

(a) Most typically this happens where resort may be had to the doctrine of vicarious liability, which has been discussed briefly in Chapter One. In situations where vicarious liability is resorted to, the perpetration of the relevant harm by another (such as his delegate, where the delegation principle is resorted to, or his servant or agent, where the "course of employment" principle is resorted to) is notionally viewed as being the act of the defendant, although it is not, literally. Another head of

8. Lanham, "Conspiracy, Complicity and Concert" (1980) 4 Crim LJ 276 at 278-9.

9. If there was no principal, then liability could not be imposed upon anyone in this capacity. And given the derivative status of accessorial liability, the lack of a principal would frustrate their incrimination as accessories. To view them as co-principals would represent a straightforward resolution of the apparent problem in a situation of this type.

10. See footnote 7 ante.

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vicarious liability, however, concerns the imposition of liability for offences the operative verb in which may be construed very broadly (such as those concerning an illegal "user"). Here the prohibited conduct may be viewed as being the defendant’s directly, even as the discrete physical act constituting or causing the perpetration of the criminal actus reus is done by another.

(b) Another common situation where a defendant may be deemed to have committed the physical act of a crime and thus be a principal by operation of law is that of illegal joint possession, where A may be regarded as a joint principal with B in the illegal possession by B of a proscribed article even though B actually has physical possession. A becomes a constructive principal on the basis, usually, that he is knowingly associated with Bin this illegal possession. An alternative view of A ’s liability for anoffence of possession might have been that he aids B in the latter'spersonal possession, were it not for this common law concept of joint

11possession.

(c) At common law the person who instigates another to commit a criminal act while possessing the mental element for the corresponding crime, may be deemed to be a principal offender by resort to the so-called doctrine of innocent agency, in situations where the perpetrator does not incur liability because he is without the requisite mental element, or is irresponsible.This doctrine was evolved by the courts to overcome the logical difficulty, that if the defendant were to be regarded as a secondary party to the crime, or at least the criminal act, he could not be made liable for it at all, because accessorial liability is dependent upon the commission by another of an offence. Strictly the innocent agent does not commit an offence, being without the required mental element or being irresponsible. It may be strongly argued that the person who assists or encourages an innocent agent to perpetrate a criminal act, may likewise be incriminated as a constructive principal, provided that he (the defendant) acts with the appropriate mental element. * 12

H . McCarthy [1964] 1 WLR 196. See also Thompson (1869) 11 Cox CC 362; Charles (1891) 17 Cox CC 499.

12. See below at p. 237ff*,240-1 •

Further, several of the judgements in an Australian High Court case envisage that the person who is in concert with an insane person for the commission of a criminal act becomes liable for the corresponding crime, upon the commission of this act (subject to possession of the required mental element), even as the insane person does not incur liability. It may be that these justices had in mind that the sane party is a constructive principal.

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(d) Is the person who instigates/procures/causes another to commit acrime, to be viewed as being a principal offender himself, rather than anaccessory? Professor David Lanliam has suggested as much:

... when in reality the so-called accessory is so central a figure that he can be held to have caused the prohibited act or event, he should no longer be treated as an accessory with liability dependent upon that of the immediate actor but as the principal offender in his own right.15

This classification could, he believes, overcome certain problems associatedwith the law of complicity, including those arising from the derivativestatus of accessorial liability. His conclusion, that the dominant partymay be so classified, is based principally upon certain U.S. cases. It issubmitted that Anglo-Australian authority - as Professor Lanham acknowledges"*"'- is consistent in the main with the more orthodox view, viz , that thedefendant who instigat.es/procures/causes another to commit a crime (i.e.,which latter is not an innocent or irresponsible agent) is to be classifiedas an accessory (unless of course, the offence is in such terms as toexpressly render the defendant a principal - for example, an offence of"causing" another to perpetrate a prescribed harm)*. That this is so isreflected in the cases enunciating the doctrine of innocent agency, wherethe courts clearly evinced a recognition that they were creating an exceptionto general principle. Were all dominant secondary parties to be viewed as(constructive) principals, whether or not the person through whom they actedwas innocent or irresponsible, there would have been no need to evolve the 13 14 15 16

13. Matusevich v. R. (1977) 137 CLR 633.14. See p. 24 Iff.15. "Accomplices, Principals and Causation" (1980) 12 Melb. Univ. R.

490 at 515.16. Id. at 490.

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doctrine of innocent agency. Other cases may likewise be cited, which17affirm the orthodox position.

A defendant may by reference to the same fact situation, conceivablybe guilty of a given crime in dual capacities, i.e., as a principal and asan accessory. This circumstance is uncommon and is possibly confined tosituations where, inter alia, the defendant may be inculpated as a principalby virtue of a mere omission to act, i.e., independently of the doctrine ofaccessoryship. One illustration of it is found in the Victoria case of

18Russell (1933) where R had stood by and watched while his estranged wife drowned their infant children and herself in a suburban swimming pool. The Full Supreme Court of Victoria accepted that he could be convicted of homicide on two bases. First he was liable as a principal in his wife’s unlawful homicide (probably manslaughter rather than murder) of the infants in that he had omitted to act and preserve their lives in a situation where he was under a legal duty to do so which arose from parenthood. (2) He became an accessory to her murder of the children by virtue of his non- communicative presence, on the basis that this, having regard to the surrounding circumstances including in particular the fact of his relation­ship with her, and their estrangement, positively encouraged her to act as she did."^ 17 18 19

17. Though curiously, few of the reported cases in the subject jurisdictionsdisclose fact situations where the accessory was the dominant, as distinct from coequal or subordinate party. See, however, the following where the (apparently) dominant secondary par£y was classified as an accessory: Cooper (1833) 5 Car & P 535, 172 R 1087; Wallace (1841) Car& M 200, 174 ER 471; Bourne (1952) 36 Crim App R 125 (the court clearly classified the husband as an accessory, though it has been argued that the wife did not commit any offence, and that accordingly, the husband should have been incriminated as a constructive principal (this case is discussed below at p. 2 ^ 2 )); Muhandi v. R. (1957) Crim LR 814 (the reference in this briefly summarised decision to a "principal offender to the crime of murder" was (according to the headnote) one to a "principal in the second degree"); Attorney-General's Reference (No. 1 of 1975) [1975] QB 773; Cogan [1975] 2 All ER 1059 (although the defendant's conviction was upheld upon the basis that he was a constructive principal, by virtue of the doctrine of innocent agency, the court clearly envisaged that if the perpetrator of the criminal act had had the mental element required for the corresponding crime (with the circumstances otherwise being the same, i.e., that the defendant had instigated the commission of the crime), then the defendant would have been incriminated as an aider and abettor).

18. [1933] VLR 59.19. Russell is also dealt with at pp.271-2 below.

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(B) THE SIGNIFICANCE OF DISTINGUISHING PRINCIPALS AND ACCESSORIES

(1) The Substantive LawAs the law stands, it is necessary to distinguish principals and

accessories for substantive purposes at a variety of levels. At the mostfundamental level, that concerning the definition of the basic elementsconstituting liability as an accessory, as opposed to liability as aprincipal, the differences are striking. Given the different characterof these two parties’ respective contributions to a given crime, it wasinevitable that the courts should have ended up distinguishing them forthe purpose of enunciating the basic conditions of criminal liability.The principal offender is incriminated by virtue of the performance ofthe act which constitutes or causes the commission of the physical elementsin a given offence; while the accessory is incriminated by reference to aless immediate act of promotion or support. Accordingly, the dimensionsof the operative act required of each have had to be spelt out in differentterms by the courts. And it is because of this fundamental differencebetween the physical conduct required of each, that their mental elementshave had to be defined in different terms. Where the principal offender’s>mental state is concerned, reference need only be made to his attitude tohis own a t of commission. In contrast, the accessory's mental state had hadto be defined in relation not only to his own act of complicity, but alsoto the principal's or prospective principal's act of commission of the

20subject crime itself.

Differences between the principles determining liability as aprincipal and as an accessory appear in many other areas at common law.Three examples are noted. Firstly, the accessory, because his liabilityis derivative, probably may not be convicted of a more serious crime thanthe principal, even if the accessory (unlike the principal) has the mens reaappropriate to this graver crime. No such restriction, of course, mitigates

21the principal's liability in situations of joint crime. Secondly, the accessory - in most of the jurisdictions under discussion which recognise a doctrine of strict liability - must be shown to have had guilty knowledge in order to be convicted of complicity in an absolute offence. This is not

21

20 For a comment on some of the distinctions between the basic conditions of liability as a principal offender, and as an accessory, see p p .I"] ,,See p. 2r;3f f* 4 74 IT.

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of course true of the principal. Thirdly, the accessory's criminalliability for omissions would appear to be more broadly based than that

23of the principal offender.

(2) The Procedural LawIt is noted elsewhere in this study that two procedural idiosyncrasies

in particular have emerged in the development at common law of the doctrine ofcomplicity, in the context of felony. Firstly, an accessory before the factto felony may not be charged as a principal and be convicted upon proof ofcounselling. The converse also applies. Secondly, an accessory before the

24fact may not be convicted before the principal felon is convicted. These rules do of course make it necessary to distinguish principals and accessories (or more p irticularly, principals and counsellors).

They have, however, been wholly or partly overcome by legislation inthose of the jurisdictions specifically under discussion which retain the

25common law doctrine of complicity. The exception to this situation is that in New South Wales, Victoria and South Australia (which retain the common law classification of offences i?ito felony and misdemeanour), a person may not be charged as an accessory before the fact to felony and be convicted upon proof of participation in the felony as a principal, i.e., legislation has not been directed to this anomaly. In this respect, it is still relevant to distinguish those who perpetrate crime and those who counsel it.

These problems do not arise in relation to^nisdemeanour at common law.This is because all of the parties to misdemeanour are classified as beingprincipals for procedural purposes (which principle has in effect been restatedby statute in those of the subject jurisdictions retaining the felony/

26misdemeanour dichotomy).

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22. Seep.158ff.23. See Chap. 9.24. See p . 3 4 0 f f *25. I.e., in England, under the Commonwealth Crimes Act, 1914 (Aust.), New

South Wales, Victoria and South Australia. See pp.25ff, 3 4 0 f f , 3 54 f f.I.e., New South Wales, Victoria and South Australia. See pp.26.

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(C) DISTINGUISHING PRINCIPALS AND ACCESSORIES IN THE AUSTRALIAN CODE JURISDICTIONS OF QUEENSLAND, WESTERN AUSTRALIA AND TASMANIA, AND IN NEW ZEALAND

The Criminal Code Acts in Queensland, Western Australia and Tasmania, and the New Zealand Crimes Act, 1961, do not employ the term "accessory” in their general complicity provisions, but instead identify all of the partic­ipants in an offence as being either "parties" or "principals". Nonetheless,

27the distinction between perpetrators and secondary participants survives.This being so, it is necessary to distinguish principals and accessories under these enactments for the purposes of stating the substantive law of parties, just as it is necessary to do this at common law. In particular, it is evident that the basic mens rea and actus reus requirements governing liability as an accessory under these Codes diverge from those associated with liability as a principal under them, in the same terms in which the basic ingredients of accessoryship distinguish this form of liability from liability as a principal at common law. These points of divergence arise (as at common law), from certain basic differences inherent in the nature of a primary, as opposed to secondary act of criminal implication* '

There is, however, no reason to distinguish principals and accessoriesin these jurisdictions for procedural purposes. All participants in crimeare classified as principals for the purposes of the form of charge, trial

29 *and verdict.

27. See p. 3 5 ff .above.28. See P P . 7 7 , H 3 f f . . 4 7 4 f f .29. See p.350.

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(II) PIST NGUISHING AIDERS AND ABETTORS FROM COUNSELLORS - CUM - PROCURERS

It was noted in Chapters One and Two that accessories at common law are divisible into those who aid and abet the principal while present at the commission of the subject crime, and those who counsel or procure this commission but who are absent from it. It is apparent that the range of promotional or supportive acts for which each such party may be incriminated is precisely the same in each case. The only matter which separates them is the question of whether or not the party is present at the commission of the crime. These propositions need to be elaborated.

(A> IDENTIFYING THE AIDER AND ABETTOR

30Blackstone, it had been seen elsewhere, identified the aider, or"principal in the second degree" and "he who is present, aiding, and abetting

31the fact to be done." This conventional formulation assumes of course thatthe act of aiding must itself have been perpetrated in the presence of theprincipal at or before the time he commits the crime as well as that the aider

32have been present at this commission. Such a prescription has never been applied literally by the courts. A man who has acted to instigate, encourage or assist a crime will logically qualify as an aider simply because he is present at its commission, whether or not his supportive act was perpetrated at this time. For the courts to have held otherwise would frequently have resulted in the exoneration of a person from secondary liability. For example, if he performs a supportive act in advance* of the commission of the crime, but is present at this, neither encouraging or assisting the principal, he would not become an accessory on the traditional statement of the law favoured by Blacks tone, because he did not aid and abet at the time the crime was committed and in the presence of the principal. And he would not be a counsellor precisely because he was present at its commission. Of course, were the Blacks tone formulation to be pressed in this situation, a

30. See p. -|c) above,31. Commentaries on the Laws of England Book 4, c.3, p.34.32. Other textwriters have adhered to this description; for example, it is

proposed in Russell that "principals in the second degree are those who aid and abet the commission of a felony at the very time when the felony is being committed" (Vol. I at p.132).

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court (or jury) would doubtless find it convenient to conclude that the mere fact of the principal’s presence at the crime must have encouraged the principal, whether or not it actually did this. However, such a presumption is unnecessary. It is proposed that the only sensible conclusion to be drawn from the decisional law is that a person is an aider and not a counsellor provided that he is present at the crime, irrespective of where or when his supportive act is committed (provided, of course, that it is perpetrated before or during the commission of the crime, and not afterwards).

It is evident from the cases that the range of facts which may sufficeto incriminate the defendant as an aider are not to be limited by regard tothe literal meaning of the traditional description of him as one who ’aidsand abets crime. So construed these words might be thought to confineliability to those who act in a merely auxilliary capacity vis-a-vis theprincipal, i.e., those who assist the principal, or who offer him moralsupport. But the cases make it evident that these words are to be viewedsimply as a time-hallowed expression denoting a unified concept of secondaryparticipation in a crime by a person who happens to be present at, ratherthan absent from the commission of this crime. Thus, liability as an "aiderand abettor" has been imposed in consequence of knowing acts of participationirrespective of whether the aider's role in the commission of the subjectcrime was dominant, equal or subsidiary in character. In practice - at leastto judge from the reported cases - few aiders are revealed as having

33initiated the subject crime. But very many have participated in thecrime as a co-equal of the principal or at least, the evidence does not%specifically attribute responsibility for the conception of the crime to

34the principal. And, of course, numerous cases disclose participation as35an authentic assistant, or subsidiary party in crime.

(B) IDENTIFYING THE PERSON WHO COUNSELS OR PROCURES

The "accessory before the fact" is he who, in traditional language, 33 34 35

33. But see DPP v. Morgan [1976] AC 182.34. Indeed, the evidence may be inconclusive as to which of two persons who

jointly prosecuted a criminal purpose is responsible as a principal, and which of them is an aider and abettor - see, for example, Mohan v. R. [1967] 2 AC 187; Knowling (1877) Knox 329 (NSW).

35. Coney (1882) 8 QBD 534; Allan [1965] 1 QB 130; Clarkson [1971] 3 All ER 34 Harding [1976] VR 129; Mayberry [1973] Qd R 211.

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"counsels or procures" crime. These words are always used conjunctively to express the single common law concept of secondary participation by a person who happens to be absent from, rather than present at the subject crime. The fact that this type of accessory is popularly referred to as being he who "counsels or procures" crime rather than as he who "counsels and procures" crime (which would parallel the usage of "aids and abets") is without substantive significance in these terms. Rather, the expression is a stylistic convention.

It is submitted that, with one exception, the spectrum of conduct required to incriminate the absent accessory as a "counsellor or procurer" is precisely the same as it is in respect of the accessory who is present at the commission of the crime, and who, therefore "aids and abets" it.The exception of course concerns the fact of presence - the counsellor or procurer will, by definition, always be absent from the commission of the crime and the aider and abettor will always be present at this commission.This line of separation is a very arbitrary one. The result of this principle of parallelism would be that the ingredients of accessorial liability are identical in respect of both^of its possible modes - subject again to the question of presence. If this is the situation, then the words "counsel or procure" are not to be given their literal meaning, when attempting to analyse the scope of the liability of the absent criminal party. Rather, they represent no more than an archaic expression which has assumeda technical meaning. If they were to be construed literally one result, conceivably, would be that acts of subordinate facij-itation of the principal’s or prospective principal's crime, as distinct from\hose done by the dominant, or coequal participant who actually "procures" or "counsels" the perpetration of the crime, would not incriminate the doer in this crime. That this head of accessoryship, notwithstanding the apparently restrictive terms of its orthodox description, does embrace minor acts of facilitation or encouragement as well as more significant acts of instigation or encouragement, is reflected in, for example, Hale's claim that an "accessory before the fact is he that being absent at the time of the felony doth yet procure, counsel, command or 36

36. For expressions of this formula see p. 20.ff

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abet." This broad view of the ingredients of "counselling or procuring1"38is also reflected in the old decision of McDaniel (1755) where the court

remarked that "the best writers on the Crown law agree that persons procuring, or even consenting beforehand, are accessories before the fact.'1 Accepting that this view is correct, it follows that the defendant may become what has historically been termed an accessory before the fact by, inter alia, performing a minor act of physical support on behalf of the principal offender or prospective offender.

Were the words "counsel or procure" to be construed literally andthis head of liability limited thereby, the results would occasionally beabsurd. Consider, for example, the situation in a hotel bar. V, thelicensee, who is well-known to the patrons, is drinking with a group ofthem. He has an enemy, Dl, who hires D2 to kill him (V). D2 does not knowV personally. He comes into the bar and asks A to point out V. A, whoknows of this enmity between Dl and V, and that D2 is a hoodlum, suspectedof past "contract" murders, reluctantly points to V, knowing that it ispossible that D2 will shoot V. A remains on the premises, when this happens.Clearly he becomes an accessory (qua "aider and abettor") to murder. If,however, A leaves the premises before the shooting he would - if a narrowview is taken of the complementary head of accessoryship - escape criminalliability. This would be because he had neither "counselled" the crime, norhad he "procured" it. (In this latter regard, he was only one of a number ofpeople in the room who could have identified V). Clearly, the courts wouldnot countenance such a contraction of the scope of «accessoryship after the

40fact in such a situation.

There is, it is true, the odd case which would seem to suggest that something more than a mere subordinate act of assistance is required to 37 38 39 40

37

37. (Emphasis added). 1 PC 615. Professor J.C. Smith also notes the following passage from Hale (at 1 PC 438), as supporting his own view, that the two categories of accessoryship do, subject to the question of presence, embrace the same spectrum of behaviour: "To make an abettor to a murderor homicide principal in the felony, there are regularly two things requisite: 1. He must be present. 2. He must be aiding and abetting(with the required mental element). If he were procuring, or abetting, and absent, he is accessory in case of murder and not principal ...(cited in Smith, "Aid, Abet, Counsel, or Procure" in Glazebrook (ed.) p.120 at p.126.

38. (1755) Fost 121 at 126, 168 ER 60 at 62.39. See the Victorian case of Harding [1976] VR 129, though note that the

background facts there were not necessarily similar.40. See also the comment in J.C. Smith, "Aid, Abet, Counsel, or Procure" in

Glazebrook (ed.) , p.120 at p.127.

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incriminate the defendant, qua counsellor or procurer, in the principal’s.41crime. One such is the English decision of Fretwell (1862). The defendant,

at her request and under the influence by her of threats of self-destruction,had procured poison for use by a woman who was pregnant by him, so that shemight produce an abortion. She died as a result of taking this poison. Thejudges held, on a case reserved, that he did not become an accessory beforethe fact to her murder, on these facts. One possible implication arisingfrom this case, then, is the scope of accessoryship after the fact is to becontracted, so as to exclude conduct which does not induce an element of

A 2instigation and/or persuasion. It is commented elsewhere, however, thatthe decision is to be explained upon the basis of a desire on the part ofthe judges to avoid the application of the death penalty (another aspect of

43its reasoning is likewise to be distrusted for this reason). Certainlythere is no suggestion in the judgements that had the circumstancesotherwise been identical, but that he had been in the woman's vicinity

44when she took the poison, that his liability would have been different: the court had not, that is, given any indication that it was its intention to distinguish the two categories of accessorial liability by reference to the type of conduct which woilld incriminate each such party. If such a radical departure from orthodox thinking had been meant, it may be speculated that the court would have acknowledged this.

45In Taylor (1875) , also an English case, the judges held that a manwho acted as stakeholder for two men who proposed to fight one another with their fists, but who did nothing otherwise to encoulage them in the plan, did not become an accessory before the fact to manslaughter, following upon the death of one of the combatants during this fight. Technically, the decision is probably to be regarded as erroneous, though given the minor nature of the act of assistance rendered by the defendant, it is understand­able that the court should have wished to exonerate him. That court did not really intend thereby to limit the scope of counselling-cum-procuring, is reflected in the language of two of the judges in particular. Bramwell B said that "there is no evidence that the defendant counselled or procuredthe fight lo take place. Abetting means giving some assistance towards the

46act." Mellor J. said 41 42 43 44 45 46

41. (1862.) Le & Ca 161, 169 ER 1345.42. See the judgement of Erie CJ in id. at 164/1346.43. See the discussion of the decision at pP .65,>31 ,11 5 •44. But which presence, ex hypothesi, was not such as to constitute a

further element of: persuasion of the victim to administer the poison.45. (1875) 13 Cox CC 68.46. Id. at 76.

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similarly, that "there is no evidence that the defendant aided, or counselled 47the men to fight." In their view, then, (one which may be questioned) the

defendant’s act did not even amount to a relevant act of assistance. By implication, if his conduct was able to be so classified, he would have become an accessory before the fact. It is also to be noted, that they described the scope of accessoryship after the fact in terms of, inter alia, words conventionally used to characterise its counterpart (the principal in the second degree) viz , "abetting" and "aid[ing]" or "assist[ing]", which usages clearly reflect their view that the range of conduct required to incriminate the aider and abettor parallels precisely that pertaining to the counsellor-cum-procurer (subject to the factor of presence). Cockburn CJ's judgement was of like effect - in his view the defendant simply did not participate in the fight - rather, he "was perfectly passive.

49In Lomas (1913) the English Court of Appeal seemingly left openthe possibility that a mere act of assistance (in this case, the defendant'sreturning of a tool owned by the prospective principal to the latter, whichwas subsequently used by him to commit a housebreaking offence) would notground liability for counselling or procuring, remarking that the claim bythe prosecution that "an accessory is one who gives assistance with theknowledge that a crime is to be committed," was not necessarily an accurate"definition of an accessory before the f a c t . T h e court did not elaboratethis remark and the precise basis of its decision is unclear. However, thisobiter dictum (if indeed the court did believe that the person who performsa mere act of assistance does not become an accessory before the fact) was

* 51expressly disapproved by the same court in Bullock (1955), which case 47 48 49 50 51

47. Id.48. Id_. at 170. On the other hand, he did indicate, more ambiguously, that

in order to be made liable (i.e., as an accessory before the fact) the defendant would need to have "procure[d] or incite[d] them to fight or in some way to [have] encourage[d] them to do so." When put in context, however, these sentiments are not to be read as an exclusive statement of the conduct required. Apart from the statement noted in the primarytext above, he would also have considered the Crown case to have been made out had proof been forthcoming of "some active proceeding" on the part of the defendant directed towards the commission of the crime charged.Clearly this phrase is adequate to comprehend acts of simple assistance, as well as of instigation/encouragement.

49. (1913) 9 Crim App R 220.50. Id. at 222.51. [1955] 1 All ER 15.

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likewise concerned an appeal by the appellant from his conviction as an accessory before the fact to offences which had been committed by principals using equipment (here, a car) supplied by the appellant. In the court’s view, such an act of assistance, done with the mental element appropriate to the secondary party was sufficient to incriminate the appellant as an accessory before the fact to the subject offences. The court noted that in Lomas the principal actually owned the tool used in the subject offence, and that "the appellant was not in a position to withhold" it - viz , by implicatior, this factor was to be taken as the true basis of decision inT 52Lomas.

Finally, there may be noted the English Court of Appeal’s decision53in Attorney-General’s Reference (No. 1 of 1975) where the appellant had

procured the commission by P of an offence of drunken driving, bysurreptititiously lacing each of P’s drinks with a double measure of spirits,prior to P's departure to drive home, and had thus been convicted ofcounselling or procuring this offence. The court, in explaining why theappellant had been properly convicted, said, almost incidentally, that indeciding whether the defendant had become an accessory pursuant to s.8 ofthe Accessory’s and Abettor’s Act, 1861, which restates the common law inproviding for the incrimination of those who "aid, abet, counsel, or procure"

54a misdemeanour, , it was appropriate to construe this section upon the basis"that the words [i.e., in it] should be given their ordinary meaning, if

55possible." On this basis the appellant had clearly become an accessory,in that he had "procured the commission of the offence charged. If thewords were to be construed literally - and it is to be remembered thatnotwithstanding the assimilation of the two common law modes of accessorial

56participation for procedural purposes in the modern English law, the division of accessories into those present and those absent from the

52. Id.53. [1975] QB 773.54. The section is today, no longer limited to accessorial liability for

offences formerly classifiable as felony - see p.2 5ff» above,55. Attorney-General’s Reference (No. 1 of 1975) [1975] QB 773 at 779.56. See pp. 2 5 f f .,344f'f.,556

6 8

commission of the subject crime is still extant for substantive purposes- the result would be that the absent accessory would indeed literally haveto perpetrate an act of counselling or procuring and not merely one of

5 8facilitation. The decision has been criticised for this implication, and it should not be considered a persuasive authority for any such limitation upon the scope of the liability of the absent accessory. Quite simply, the court was not required to consider on this occasion, whether or not an act of mere assistance, as opposed to one of instigation (or other persuasion) would incriminate the absent secondary participant in another's crime, as an accessory (i.e., one who counsels or procures).

None of these decisions, therefore, may be considered as unambiguouslyholding that liability as an absent accessory may not be established byproof of an act of mere facilitation, as opposed to one of procurement orpersuasion. On the other hand, there are a number of strong decisions inthe subject jurisdictions which clearly establish that such an act ofsimple facilitation will suffice to incriminate a person as a counsellor-cum-procurer. The majority of these cases concern the incrimination ofpersons who, although disinterested in whether or not the prospective principalwill go on and commit a crime, nonetheless supply him with goods or informationsubsequently used in this crime, in the contemplation that he (the prospectiveprincipal) will possibly do this. A strong case in this line is Bullock,

59which has just been referred to. Other cases of like effect include two where liability was imposed upon each of the respective defendants as a

60counsellor or procurer, upon the basis of an omissioti to act on his part.%

Another decision which may be noted is that of the English Court of 61Appeal in Kray (1969). The facts are not fully reported. The court 57 58 59 60 *

57. See p. 25ff.58. See J.C. Smith, "Aid, Abet, Counsel, or Procure" in Glazebrook (ed.),

p.120 at p.126.59. For other such cases see the discussion below at p.306ff.60. See ex parte Parker; re Brotherson (1957) SR (NSW) 326, where on one view,

of the facts the defendant’s act of complicity consisted in a simple failure to intervene and to frustrate the commission of the principal's crime, in circumstances where he had imposed upon him a legally recognised duty soto act (Parker is discussed below at p.273 ) > and similarly, see Gough v. Rees (1929) 29 Cox CC 74 at 79-80.

61. (1969) 53 Grim App R 569.

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accepted that if B carried a gun to one K, knowing that K intended to use it to kill V in B's absence, B would become an accessory before the fact to this murder. On one view of the facts, B ’s conduct was that of a subordinate participant, rather than that of an instigator or coequal. He may even have been a reluctant participant; though certainly his plea of duress failed to

6 2persuade the jury that he should be exonerated upon this basis, at his trial. This possible fact situation well illustrates the unfortunate results which might arise if the scope of accessoryship after the fact/counselling or procuring was to be confined to acts of instigation or persuasion. Were it to be, a person who, participating in a subordinate and disinterested capacity, acted as B did, would incur liability for murder if he remained in the principal’s vicinity while the latter committed it, but would evade liability if he removed himself a sufficient distance from the shooting, so as to not be classified as being "present" (i.e., according to the principles defining this concept in the context of accessorial liability at common law).

Aid rs and counsellors are not, therefore, to be distinguished by reference to the level of their participation in the perpetrator's crime.The solitary factor dividing Sccessories is that of whether or not the given secondary party is present at the commission of the crime. In what circum­stances is a person present at a crime in law, and thus an aider rather than a counsellor?

(C) THE CONCEPT OF PRESENCE%

(1) GenerallyAt common law a person may be actually or constructively present at

crime, and thereby be constituted an aider rather than a counsellor. He is6actually present if physically present within sight and sound of the crime.

A person is constructively present if though not within sight and earshot ofthe crime, he is in - traditional language - sufficiently near to this so"as to be able readily to come to assistance" of the principal should this

64be required. This standard test for defining the ambit of constructive 62 63 64

62. See p.3 3 0.63. Betts (1930) 22 Crim App R 148 at 154.64. Doorey [1970] 3 NZWLR 351 at 353-4.

70

presence has been reiterated many times. It is unimportant that it may not in fact be a part of the arrangement between principal and accessory that the aider actually come to the principal’s assistance if required. Rather, this test merely expresses an objective limit on the ambit of the concept of constructive presence - if an accessory is not so physically near to the crime as to be technically capable of being summoned by the principal to come to his assistance, or to see the need for this and to do this on his own initiative, then he cannot be present constructively.

In fact, the aider may be constructively present for any one of avariety of reasons. This view of constructive presence emerges in the

6 6English case of Manners (1837) where it was seen as sufficient so as torender him present that the defendant had stationed himself near to theprincipal so as to give the latter "an appearance of respectability" as he

6 7uttered counterfeit coins. In another case a court apparently recognisedthat it would be enough if the constructive presence of an alleged aiderfortified the resolve of the principal in the latter's commission of thecrime by offering moral support, even if it was not actually intended thatthe accessory should join with the principal in resisting interference with

68their joint criminal enterprise. The doctrine of constructive presencehas been invoked in a variety of situations; for example, the aider may bewaiting a short distance from the scene of his accomplice's commission of a

69robbery at the wheel of a get-away vehicle, or the accessory to theft may70wait outside a house to keep watch while his confederate steals within.

At its most extreme constructive presence has on one occasion at least been treated as a purely fictional concept, so that a person who assisted the principal to commit crime concurrently with this has been deemed to be present irrespective that he was in fact a great distance away.^ Such a circumstance

65. Gogerly (1818) Russ & Ry 343, 168 ER 836; Manners (1837) 7 Car & P 801 at802, 173 ER at 349; Perkins (1852) 2 Den 459, 169 ER 582; Betts (1930) 22Crim App R 148 at 154. And see Stewart (1818) Russ & Ry 363, 168 ER 846 for an example of a case where the defendant was not present or sufficiently near to the scene of the crime so as to become an aider.

66. T d.

67. Manners, id., at 350.68. Doorey [19701 3 NSWR 351 at 353-4.69. Betts (1930) 22 Crim App R 148; Dunn (1930) 30 SR CNSW) 210.70. Which was apparently the situation in Owen (1825) 1 Moody 96; 168 ER 1200.71. Breese v. The State 12 Ohio 146 (1861) cited in Russell, Vol 1, p.139.

71

is more likely to occur nowadays, given the development of electronic forme of communication, though there are no reported cases of this type. But it is equally arguable that such a long-distance assisting would constitute the accessory a counsellor rather than an aider, having regard to the authorities and the terms in which they have traditionally defined constructive presence.

(2) Partial PresenceWhere an offence possesses an actus reus which is continuous in time

(for example larceny), the accessory will be regarded as being present and thusan aider even though he is actually present during part only of the transaction

72of this actus reus.

(3) Companies and the Concept of PresenceA company is an incorporeal abstraction, so that prima facie the

concept of presence would seem to be irrelevant. But given that a company73must act through a human being in order to incur criminal liability,

whether as a principal or as an accessory, it might possibly be argued that it is the physical proximity of this person to the offence which will determine the company's notional physical proximity to this offence.

This superficially persuasive approach has been followed on a coupleof reported occasions, so that if the crime has been committed in the absenceof the person who performs the company's act of accessorial incrimination,

74the company has been regarded as a counsellor or procurer. Generally,*however, the issue has not arisen in that companies* which are usually

sought to be convicted of committing summary offences, have nearly always been charged in compendious form, i.e., that each of them did "aid, abet, counsel or procure" the subject offence, so that it has never been relevant to determine conclusively as to whether or not the relevant company representative was present at this offence.^

Of course, if the person capable of acting for the company himself commits an offence as a principal, with the prosecution seeking to incriminate 72 73 74 75

72. Standley (1816) Russ & Ry 305; 168 ER 816; Jordan (1836) 7 Car & P 432 at 434, 173 ER 192 at 193.

73. Which person must have such a relationship with the company as to be capable of representing it for the purpose of attracting criminal liability to it: see generally at p.j10 below.

74. See for example Bowker v Premier Drug Co Ltd. (1928) 1 KB 217 at 229 (Lord Hewart CJ); Robert Millar (Contractors) Ltd. (1970) 2 QB 54.

75. See for example Gould v Houghton (1921) 1 KB 509; Davies, Turner & Co.Ltd, v Brodie (1954) 3 All ER 283; National Coal Board v Gamble [1959] 1 QB 11; John Henshall (Quarries) Ltd v Harvey [1965] 2 QB 233.

72

the company as an accessory, it will be inevitable that the latter will be. regarded as an aider rather than a counsellor, it being present through this representative.^

(D) THE SIGNIFICANCE OF DISTINGUISHING AIDERS AND ABETTORS FROM COUNSELLORS-CUM-PROCURERS

(1) The substantive lawThe formal division of accessories at common law into those who aid

and abet, and those who counsel or procure is both arbitrary and unnecessary. In particular, subject to unusual fact situations there is no necessary distinction to be drawn between accessories present at and those who are absent from crime in respect of culpability.

The cases indicate that the range and quality of the acts of support which are sufficient to attract secondary liability are the same for both aiding and counselling. Notwithstanding the literal import of the terms in which each category of accessoryship is described, each comprehends acts which are instigative in character, or which represent participation as an equal with the principal, or which are of an auxilliary character. In each case the act of accessoryship may be one of instigation, or moral encourage­ment (as for example words of mute presence), or physical assistance. The issue of presence aside, the reported cases in the subject jurisdictions have not, for the most part, sought to distinguish those who aid and abet from those who counsel or procure, for the purposes of the substantive law.

The assumption in the cases that the principles delimiting liability as an aider and as a counsellor are uniformly concurrent has marked the enunciation of fundamental principles (for example, the mental and physical ingredients of accessoryship) as well as those concerning matters of detail.^ 76 77

76. Lewis v Crafter; Cavendish Laboratories Ltd v Crafter (1942) SASR 30.77. For example, the defence of withdrawal (i.e., of dissociation by the

alleged accessory from the criminal purpose of the commission of the crime) is identical for aiders and counsellors (see p. Or the rulesgoverning the mental element which must be proven in order to convict a person of complicity in an absolute offence (in those jurisdictions preserving the common law doctrine of strict liability) are the same for counsellors as for aiders. - see p.l^Off. below.

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Indeed where the form of the charge has been non-specific as to the preciserole played by the secondary party (for example, where in the case of

78misdemeanour the defendant has been charged in general form that he did"aid, abet, counsel or procure" an offence) it has occasionally happenedthat the appellate court has chosen not to identify conclusively the defendantas an aider or counsellor, where the evidence has been ambiguous as to whether

79or not he was present at the crime.

In reality, therefore, and putting aside the question of presence, the distinction between aiders and counsellors is without substantive significance. For this reason, so it will be proposed in Chapter Twelve, any statutory reformation of the law ought to dispense with this historic division, and enact simply that there should be one category of secondary participation.

In the interim, and for the same reason, that of a want of substantive difference between aiders and counsellors, it will be possible in the following chapters to state a unified law of accessorial liability by reference both to cases of aiding and cases of Counselling. On occasions it will be appropriate to distinguish aiders and counsellors, however, mainly in discussing the cases themselves.

(2) Procedural Reasons for Distinguishing Aiders and CounsellorsAt common law no distinctions need to be drawn between aiders and

counsellors for procedural purposes, in the context of misdemeanour. Thisis because they are each regarded as being principals for the purposes ofthe form of the charge, trial and verdict. A secondary misdemeanant mayto be charged with participation as a principal; alternatively, he may be

80charged generally that he did "aid, abet, counsel or procure" the crime.In England and under the Commonwealth Crimes Act, 1914 (Aust.), a similarsuch rule applies in respect of all offences, i.e., accessories may be treatedas principals for procedural purposes and charged as such, or alternatively,charged generally that they did "aid, abet counsel or procure" the subject

81crime. 78 79 80 81

78. I.e., in those jurisdictions preserving the felony/misdemeanour distinction.79. See, for example, ex parte Parker; re Brotherson [1957] SR (NSW) 326 (on

the available evidence the defendant was definitely an accessory, though it was evidently unclear as t:o whether or not he was present, actually or constructively, at the offence.

80. See p. 541ff.81. See p. 344

74

Of the jurisdictions specifically under discussion, only in New Sojith Wales, Victoria and South Australia is it necessary to distinguish aiders and counsellors. This is because these jurisdictions preserve the felony/ misdemeanour dichotomy. Where felony is concerned, at common law a person may not be charged with participation in a crime as a principal in the first or second degree (i.e., a principal or aider) and be convicted upon proof of participation as an accessory before the fact (or counsellor), nor is the converse possible. As a result of legislative reform the first of these

8:anomalies has been overcome in each jurisdiction, but not the second of them. Further, at common law a person who becomes a counsellor to felony may not be convicted unless and until the principal is convicted, though there is, apparently, no such fetter upon the liability of the aider. This anomaly has also been overcome by statute in New South Wales, Victoria and South Australia

(E) ACCESS> RIES IN THE AUSTRALIAN CODE JURISDICTIONS AND IN NEW ZEALAND

The common law division of accessories into aiders and counsellors isirrelevant to the construction of the complicity provisions in each of theQueensland, Western Australian and Tasmanian Criminal Codes, and in the NewZealand Crimes Act, 1961. Though the traditional common law verbs used todescribe accessories, such as "aid," "abet," "counsel," and "procure" areemployed in these provisions, the courts, it lias been seen, have declined tolimit their application by reference to whether or not the secondary

84participant was present at the commission of the subject crime.

Each enactment discloses several alternative heads of accessoryship,but it is perhaps inappropriate to regard them as dividing accessories intoseveral discrete types. This is because there is considerable overlap betweenthese heads. A defendant conceivably may become liable under several of themsimultaneously. This is reflected in the procedural rules affecting accomplicesunder these provisions. The usual form of charge in these jurisdictions allegesparticipation as a principal whether or not the prosecution proposes to provesecondary participation in terms of one or more of the several clauses or

85sections providing for accessorial liability in these codes. Note, however, that it is provided in s.7 of the Queensland and Western Australian Codes that a person may in the alternative be charged specifically with counselling or procuring an offence pursuant to s.7(d).

82 . See p p.34O f f •, 34 8.83. See pp.354ff.,356.84* * The Australian Code authorities confirm that physical proximity is not a

formal issue .in deciding whether a defendant "aids" and/or "abets", as distinc from "counsels" or "procures" - sec p. 38ff JPhe New Zealand authorities adopt the same approach in obiter comment, and no N.Z. case contradicts it - pp#45-6

• See pp.350-1.85

75

CHAPTER FOURELEMENTS OF ACCESSORIAL LIABILITY:

(A) THE PHYSICAL ELEMENT

In order to become an accessory a person must perform an actof incrimination with the mental element appropriate to the secondaryoffender. If,therefore,he commits an act which promotes or supportsthe commission by another person of a crime, but lacks the requisitemental element, or vice versa, he cannot become an accessory.^ Theonly exception to the requirement that the accessory perform an actof promotion or support is encountered in the relatively uncommonsituation where he may be incriminated as a secondary offender onthe basis of his failure to intervene and to frustrate the commission

2of another’s crime. This topic is dealt with elsewhere.

This chapter deals with the accessory’s act of incrimina­tion. The mental dimension of accessoryship is canvassed inChapters Five and olx.

(I) THE ACT OF INCRIMINATION - IN GENERAL

Virtually any act of instigation, encouragement or assistanceof another person to commit a crime is capable of amounting to anact of accessorial incrimination. This act may be a tangible onegoing beyond words or gestures, or it may be confined to words orgestures. It is well-established that mute presence may inculpate thewitness to a crime as an accessory if this presence (to his knowledge)encourages the perpetrator to proceed to commit this crime. The actmay be. done before or during the commission of the crime, but notafter its completion (see below). It may be done in the presence ofthe principal either before or during the commission of the crime, orit may be done in the principal’s absence, either before or during

3this crime. 1 2 3

1. See generally Allan [1965] 1 QB 130; Clarkson [1971] 3 All ER 344: Jones (1977) 65 Grim App R 250; and see Dutchak [1924] 4 DLR 973 at 976 (^rendergast JA) .

2. See Chapter Nine.3. Note, however, that the question of whether or not the accessory is

present at the crime determines whether he is to be classified at common law into an "aider and abettor" as distinct from a "counsellor or procurer" - a division of accessories which is otherwise entirely a r b i t ' see. p . I i - •• *

76

( I I ) THE TIME OF THE ACT OF ACCESSORY SHIP

T h e a c t o f c o m p l i c i t y m u st t a k e p l a c e p r i o r t o t h e c r im e o r d u r in g i t s c o m m is s io n . I f i t i s p e r p e t r a t e d a f t e r t h e c r im e h a s b e e n c o m p le t e d t h e d e f e n d a n t c a n n o t b e an a c c e s s o r y t o t h i s c r im e , f o r h e h a s n o t p a r t i c i p a t e d i n i t s c o m m is s io n . He may w h e r e a p p r o p r i a t e b e l i a b l e a s an a c c e s s o r y a f t e r t h e f a c t , o r b e c r i m i n a l l y r e s p o n s i b l e i n som e o t h e r w a y .

I t may b e im p o r t a n t t h e r e f o r e t o d e t e r m in e w h en t h e c r im e w a sc o m p le t e d . In t u r n t h i s may i n v o l v e a c o n s i d e r a t i o n o f w h e t h e r o rn o t t h e s u b j e c t c r im e i s c o n t in u o u s i n c h a r a c t e r . In t h e E n g l i s h c a s e

5o f S t a l l e y ( 1 9 5 9 ) i t w a s d e c id e d t h a t a man who e n t e r e d a m o to r v a nb e i n g d r i v e n by h i s c o m p a n io n k n o w in g t h a t i t h ad b e e n t a k e n w i t h o u t

6l a w f u l a u t h o r i t y w a s n o t g u i l t y o f a i d i n g t h i s o f f e n c e i n t h a t t h e c r im e h ad b e e n c o n c lu d e d b e f o r e t h i s t ir n e .^ I n t h e Q u e e n s la n d c a s ego f J o h n s t o n ( 1 9 7 3 ) on t h e o t h e r h a n d , a p e r s o n who h a d t a p p e d ont h e w in d o w o f a sh o p t o w a tn h i s f r i e n d o f t h e a p p r o a c h o f a t h i r dp a r t y w h i l e h i s f r i e n d w a s w i t h i n t h e sh o p s t e a l i n g , w a s c o n v i c t e do f a i d i n g h im i n t h e o f f e n c e o f b r e a k in g , e n t e r i n g an d s t e a l i n g , i ns p i t e o f t h e f a c t t h a t t h e r e w a s n o c o n c e r t b e tw e e n th e m , an d t h a tt h e d e f e n d a n t h ad o n l y com e a c c i d e n t a l l y upon t h e s c e n e . T h is w a sb e c a u s e t h e o f f e n c e w a s a c o n t in u o u s o n e , c o m p le t e o n l y u p o n t h ec o m p l e t io n o f t h e s t e a l i n g (w h ic h i n t u r n r e q u ir e d b o t h a c r i m i n a l

9t a k i n g and a s p o r t a t i o n ) .

4 . S e e C h a p te r F i f t e e n ,5 . [ 1 9 5 9 ] 3 A l l ER 8 1 4 .6 . C o n tr a r y t o s . 2 8 ( 1 ) o f t h e Road T r a f f i c A c t , 1 9 3 0 (U K ).7 . And s e e D . (a n i n f a n t ) v . P a r s o n s [1 9 6 0 ] 2 A l l ER 4 9 3 ,8 . [ I S 7 3 ] Qd. R 3 0 3 .9 . Q u e e n s la n d C r im in a l C od e A c t , s . 6 , s . 4 2 1 ( 1 ) . S e e a l s o L o w ery

[ 1 9 7 2 ] VR 5 6 0 a t t h i s p a g e ; and M aybe r r y [ 1 9 7 3 ] Q d.R 2 1 1 , w h e r e H a n g er C.J c o n s i d e r e d r a p e t o b e a c o n t i n u i n g o f f e n c e i n r e l i a n c e u p on s . 6 an d s . 3 4 7 o f t h e Q u e e n s la n d C o d e , s o t h a t a man who p r e v e n t e d a g i r l fr o m g o in g t o h e r g i r l f r i e n d ' s a i d a f t e r s h e h ad s c r e a m e d e i t h e r b e f o r e o r d u r in g f o r c i b l e i n t e r c o u r s e , w a s g u i l t y o f a i d i n g r a p e , i r r e s p e e f i v e o f w h e th e r p e n e t r a t i o n h ad t a k e n p l a c e a t h i s t im e . On t h e o t h e r h an d Skerm an J . d i s s e n t e d on t h e b a s i s t h a t h e r a p e w a s c o m p le t e u p on p e n e t r a t i o n , s o t h a t G 's a c tw as n o t n e c e s s a r i l y a n a c t o f a i d i n g , g i v e n t h a t t h e s c r e a m m ig h t h a v e f o l l o w e d p e n e t r a t i o n : i d . a t 2 8 5 - 6 , c i t i n g A l l e n ( 1 8 3 9 ) 9 C ar & P 3 1 , 173 ER 7 2 7 ; an d P ap a d i m i t r o p o u l o s v .R . ( 1 9 5 7 ) 9 8 CLR 2 4 9 .H a rt J a g r e e d w i t h H a n g e r CJ t h a t t h e c o n v i c t i o n s h o u ld b e u p h e l d , th o u g h on a n o t h e r g r o u n d , i d . a t 2 9 4 ,

III. QUESTIONS OF CAUSATION AND OF EFFECTIVENESS MUST THE ACCESSORY’S ACT BE OF CAUSAL SIGNIFICANCE?(A)The accessory, it has been seen, must perform an act which

instigates, encourages or assists the principal to commit the subject crime. Must this act be of causal significance?

It is a general rule in the common law of crime, of course, that (with the exception of criminal omissions), where the principal's act does not itself constitute the criminal event, then it must cause this event, i.e. the infliction of the relevant harm, to take place. The accessory’s liability is not, however, limited by this principle,viz, his act need not contribute to the principal’s commission of the subject offence, in such a way that it may be viewed as a cause of its commission. But this is not to say, of course, that where the defendant does cause the principal to commit the offence, he will not be liable as an accessory. Rather, what is meant is that it is not a necessary condition of secondary liability, that the accessory’s act should be of causal significance.

That the accessory need not cause the commission of theoffence, in the sense in which this word is used in the criminal law,has been accepted by Hart and Honore in t h e i r Causation in the Law,where, commenting upon the position of the accessory, they remarkedthat "to speak of 'causal connection' as a universal element incriminal liability may be misleading"; and that where the secondaryparticipant "merely assists he neither ’causes' the principal toact nor does the latter act ’in consequence' of his assistance!1Professor J. C. Smith has similarly expressed the view, that thereneed not be any connection between the accessory's act of complicity

12and the crime charged. Professor Glanville Williams would, apparently,

10. Except, doubtless, at the level of his own act of complicity. It is only sensible to suppose that where his act does not itself constitute the conduct which instigates, encourages or assists the principal, it must cause this latter event to take place.

11. Causation in the Law (Oxford UP, 1959) at p. 347; and see generally at pp.336-47.

12. In "Aid, Abet, Counsel, or Procure", in Glazebrook (ed). at p. 131 ff.

7 8

go further, and take the view that in the strict conceptual sense, therecannot even be a causal link between the accessory’s act of incitementof another to commit a crime and the latter's subsequent commissionof this crime, in that the perpetrator’s "wicket volition" constitutesa "novus actus interveniens" which "severs the legal chain of causation"

13between the incitement" and the "evil consequence."

In making this proposition, it is evident that each of thesewriters has had in mind the orthodox meaning attributed to theexpression of "causation" as it is employed in the criminal law (to theextent that it is possible to define the corresponding concept inthis context, with any degree of precision). Thus, Hart and Honore,in their chapter on secondary liability, refer, inter alia, to theneed for the alleged causal factor to have "provided a reason" for thecommission of the crime; or they note that it must have been a " ’condition’

14of the completion" of the crime, or that the alleged causal event15must ha1 i been a "sine qua non" of the crime, or that the crime

must be a "consequence" of the causal event.Professor J. C. Smith characterises the essential conditions of the causal relationship in similar terms.^

Professor Williams explains causation by resort both to the18sine qua non principle and what he terms "the imputable cause." The 13 14 15 16 17 *

13. TCL at p. 339. And see Fletcher, Rethinking the Criminal. Law (Little Brown, 1978) at pp. 582, 656, who also makes the point that the accessory need not cause the prohibited infliction of harm, in the traditional sense of this word.

14. Hart and Honore, Causation in the Law (Oxford UP, 1959) at p.344.15. Ld. at 346-16. Id.at 347.17. "Aid, Abet, Counsel or Procure" in Glazebrook (ed,), at for

example, p. 133 (referring to the sine qua non principle).

TCL at p.326.18.

79

sine qua non principle (i.e. the requirement that the alleged causalevent be a sine qua non of the commission of the crime) representsa threshold test of causation. Unless it is satisfied, there is noteven a prima facie indication of causality. But even supposing thatit is fulfilled, the defendant's conduct must also be classifiable asthe "imputable" cause of the infliction of harm. This means that itmust be "sufficiently closely connected with the consequence toinvolve him in responsibility." In effect, therefore, even as hisact may satisfy the sine qua non principle, it may be declassifiedas the sole, or a partial cause, in law, of the crime by resort toany one or more of a further series of tests of causation. Inorthodox parlance, one or more of the further factors identified, orreflected in these tests, may suffice to rupture the prima faciecausal chain. Thus (to note the more important of the factorsenumerated by Professor Williams) the chain of causation otherwiseestablished may be broken by application of the "reasonable foresightprinciple", i.e. in that situation where the happening of the consequence*was procured by the interaction of the defendant's act with anotherevent, the conjoint operation of which was not the reasonably foreseeable

19outcome of the defendant's act. Or the chain may be broken by a newintervening act (or novus actus interveniences) on the part ofanother person, which takes over as the operative cause of the harm,

20and renders the defendant's act "too remote" a cause of this harm.Further, limiting factors of this type, he noted, may be givenexpression to in different formulations: for example, it has occasionallybeen said, where there has been doubt as to the existence of a causallink, that the defendant's act must have been the "substantial

21cause" of the crime. As Professor Williams commented, limitingtests such as these, which are directed towards identifying "imputable"causes, are in sufficiently general terms as to involve that a jurymay determine the matter of causation, not scientifically, as much

22as psr medium, of "a moral reaction." 19 20 21 22

19. Id. at pp.333-4»i.e., it was not the natural, predictable orordinary consequence of the defendant's act; and see Hal lett v R |l9 9| SASR 141 at12bff„ ft is to be stressed, of course, that the question of causation is to be evaluated objectively - it is irrelevant that the defendant himself may not have foreseen the consequence of his act - Hallet, id. at

20. Id. at p. 337ff.21. Id. at p. 33122. "If the term 'cause' must be used,it can be best be distinguished as the

"imputable"or"irresponsible"or"blameable"cause, to indicate the value- i ndp-mer •’ volved" lid. n.329^-

80

Given these conceptions of causation, with their stress

upon the sine qua non principle (subject to further qualifying tests

of the type just outlined), it is obvious that the courts have

affirmed, on many occasions, albeit by implication, that accessorial liability is not dependent upon proof that the defendant's conduct caused the crime, either solely or in part. These cases of course, by and large concern what may be called minor, or subordinate acts of secondary participation, in situations where the principal has indepen­dently resolved to commit the crime and the accessory’s conduct amounts to a less than decisive act of encouragement or assistance. In other words, they concern situations where the principal could certainly, or quite likely have committed the crime, whether or not the accessoryhad intervened. A relevant decision is that of the English Courts-

23Martial Appeals Court in Clarkson (1971) ' where it was accepted,ex hypothesi, that for a man to stand by as a mute spectator watchinganother man rape a girl, knowing that his presence encouraged therapists or discouraged the victim, would incriminate him as anaccessory to this rape. Given the precise fact situation in this case,it is evident that the court had in mind that the defendant may havebeen attracted to the scene simply as a voyeur, and that the principals

2 4would in any event have committed the rapes. Other cases dealing withthis incrimination of witnesses to a crime similarly assume that itwill be sufficient merely that the defendant's presence encourages its

25perpetrators, rather than causes its commission, in whole or in part.The cases dealing with the imposition of secondary liability uponthose who supply equipment used to commit a crime are of like tenor.

2 6In the English case of Bainbridge (1960) the defendant was convicted of being an accessory to an offence of office-breaking, upon the basis that he had supplied the oxygen-cutting equipment used in the commission of this offence. It may be supposed that the principal could just

27as easily have obtained the equipment from someone else, as from him.The cases dealing with the imposition of accessorial liability in certain circumstances upon persons on the basis of their omission to prevent an independently resolute principal from committing a crime, are especially graphic illustrations of the proposition, that there need not be a causal link between the act of accessoryship and the commission of the subject crime.

2 3 . [ 1 9 7 1 ] 3 A l l ER 3 4 4 .2 4 . See i d . c i t 34 7.2 5 . See P ~ 7 9 6 r r .2 6 . U ( - 0 ] ] n n 1 2 9 *0 7 t“ Vi ir «■ ' n cs <31 n n n f this and comparable cases at p. 306ff.

81

In t h e v a s t m a j o r i t y o f r e p o r t e d c a s e s d e a l i n g w i t h a c c e s s o r i a ll i a b i l i t y , l i a b i l i t y h a s b e e n e v a lu a t e d w i t h o u t r e f e r e n c e t o t h e c o n c e p to f c a u s a t i o n . I n a h a n d f u l , h o w e v e r , t h e l e x i c o n o f c a u s a t i o n h a s b e e ne m p lo y e d . In t h e E n g l i s h C o u rt o f Crown A p p e a l ' s d e c i s i o n i n Fr e t w e l l

2 8( 1 8 6 2 ) M a r t in B. o b s e r v e d t h a t t h e a c t s o f t h e d e f e n d a n t , who w asc h a r g e d w i t h b e in g an a c c e s s o r y b e f o r e t h e f a c t t o m u r d e r , w e r e " to or e m o te fro m t h e c a u s e o f d e a t h . . . i n o r d e r t o m ake h im g u i l t y o fm u r d e r " . T he d e c i s i o n w a s an u n u s u a l o n e . The c o u r t w a s o b v i o u s l yd e t e r m in e d t o e x o n e r a t e t h e d e f e n d a n t from t h i s c a p i t a l c h a r g e , g i v e nt h e e x c e p t i o n a l c i r c u m s t a n c e s , a l t h o u g h h e w as c l e a r l y l i a b l e a c c o r d in gt o o r t h o d o x p r i n c i p l e . T h is a s p e c t o f i t s r e a s o n i n g , a s w e l l a s i t se q u a l l y n o v e l s t i p u l a t i o n t h a t t h e a c c e s s o r y b e f o r e t h e f a c t m u st a c tw i t h t h e p u r p o s e t h a t t h e c r im e s h o u ld b e c o m m itte d b e f o r e h e may in c u rl i a b i l i t y , m u st b e e v a l u a t e d i n t h i s l i g h t . T he d e c i s i o n i s d i s c u s s e d

29 30f u r t h e r e l s e w h e r e . I n B e n fo r d v . S m ith (1 8 9 8 ) a m a g i s t r a t e w as r e p o r t e da s h a v in g d i s m i s s e d an i n f o r m a t io n a g a i n s t B f o r c o u n s e l l i n g t h ei l l t r e a t m e n t o f a h o r s e , in t h a t h i s p u r p o r te d a c t o f c o u n s e l l i n g "w as t h er e m o te c a u s e o f t h e c r u e l t y i n som e d e g r e e , and n o t t h e p r o x im a t ec a u s e o f t h e c r u e l t y i n an y d e g r e e , and t h e r e f o r e , n o t t h e c a u s e o f t h ec r u e l t y w i t h i n t h e m e a n in g o f t h e s t a t u t e . . . " T h e K in g ’ s B e n c h D i v i s i o n a lC o u r t d e c i d e d , h o w e v e r , t h a t t h e a c t w as s u f f i c i e n t t o fo u n d t h e

31c h a r g e . In t h e A t t o r n e y - G e n e r a l ' s R e f e r e n c e ( N o. 1 o f 1 9 7 5 ) ( 1 9 7 5 )t h e E n g l i s h C o u rt o f A p p e a l o b s e r v e d t h a t " you c a n n o t p r o c u r e an o f f e n c eu n l e s s t h e r e i s a c a u s a l l i n k b e tw e e n w h a t yo u do and t h e c o m m is s io n o f

32t h e o f f e n c e " B u t t h i s w a s a c a s e w h e r e t h e a p p e l l a n t h a d a c t u a l l y c a u s e d a n o t h e r p e r s o n t o com m it an o f f e n c e . ^ I t i s a p p a r e n t t h a t t h e c o u r t i n t e n d e d t o s a y n o m ore th a n t h a t w hen th e w ord " p r o c u r e " ( a s i t a p p e a r s i n t h e c o m p e n d io u s e x p r e s s i o n w h e r e b y t h e a l l e g e d s e c o n d a r y p a r t i c i p a n t in m isd e m e a n o u r may b e c h a r g e d , i . e . , t h a t h e d id " a i d , a b e t , c o u n s e l o r p r o c u r e " ) i s a p p l i e d a l o n e t o a c c e s s o r i a l p a r t i c i p a t i o n , i t d e n o t e s t h a t t h e d e f e n d a n t h a s i n s t i g a t e d , o r c a u s e d t h e c o m m is s io n o f

2 8 . (1 8 6 2 ) Le & Ca 1 6 1 , 1692 9 . S e e p p .65, 115.3 0 . [ 1 8 9 8 ] 2 QBD 6 4 1 a t 6 4 2 .3 1 . [ 1 9 7 5 ] QB 773.3 2 . I d . a t 68 7 .3 3 . As i t h a p p e n e d w i t h o u t t l a t t e r ' s k n o w le d g e . T h e a p p e l l a n t h ad la c e d

e a c h o f t h e a p p e l l a n t ' s d r in k s w i t h a d o u b le m e a s u r e o f s p i r i t s , p r i o r t o t h e l a t t e r ' s d r i v i n g hom e fro m a p a r t y . P w a s c o n v i c t e d o f t h e a b s o l u t e o f f e n c e o f d r i v i n g w h i l e i n t o x i c a t e d .

82

t h e o f f e n c e . T h e c o u r t d id n o t i n t e n d t h e r e b y t o s a y t h a t t h e a c c e s s o r y34m u st i n a l l c a s e s c a u s e t h e c o m m is s io n o f t h e s u b j e c t o f f e n c e . And i n

35t h e S o u th A u s t r a l i a n c a s e o f L e n z i v . M i l l e r ( 1 9 6 5 ) B r i g h t J . s a i dt h a t p e r h a p s i t o u g h t b e r e q u ir e d t h a t "a n e x u s s u f f i c i e n t i n c h a r a c t e ran d d e g r e e " b e e s t a b l i s h e d b e tw e e n t h e a c t o f t h e a l l e g e d a c c e s s o r y andt h e c r im e c h a r g e d i n o r d e r t o c o n v i c t h im o f t h i s c r im e , i n c o n t r a s t t ot h a t s i t u a t i o n w h e r e " t h e n e x u s may b e t o o t e n u o u s b e c a u s e i t i s t o o

36r e m o te i n t h e c h a i n o f c a u s a t i o n " . '

T h e d e c i s i o n d e a l i n g w i t h a c c e s s o r i a l l i a b i l i t y i n w h ic h t h e c o n c e p t o f c a u s a t i o n w as a p p a r e n t l y a c c o r d e d a p o s i t i o n o f c e n t r a l im p o r -

37t a n c e , i s t h a t o f t h e E n g l i s h C o u r t o f C r im in a l A p p e a l i n A n d e r s o n ( 1 9 6 6 ) .T h e a p p e l l a n t A h a d b e e n c o n v i c t e d o f m u r d e r , and t h e a p p e l l a n t M c o n v i c t e d o f m a n s la u g h t e r . T he Crown h a d a l l e g e d t h a t A and M h a d a g r e e d t o a s s a u l t V b y p u n c h in g h im , and t h a t s u b s e q u e n t l y A had a s s a u l t e d V i n t h i s m an n er w h i l e M s t o o d a t V f s b a c k , an d t h a t i n t h e c o u r s e o f t h i s a s s a u l t A p r o d u c e d ; k n i f e an d s t a b b e d V t o d e a t h . In r e s p e c t o f M, t h e Crown a l l e g e d t h a t e v e n s u p p o s in g t h a t h e w a s ig n o r a n t t h a t A p o s s e s s e d t h e k n i f e an d t h a t h e w o u ld u s e i t a g a i n s t V , h e w o u ld s t i l l i n c u r l i a b i l i t y a s an a c c e s s o r y t o a s s a u l t . T h is w a s u pon t h e b a s i s t h a t a u t h o r i t y p r o v id e d t h a t i f " tw o o r m ore p e r s o n s e n g a g e i n an u n la w f u l a c t [ h e r e , t h e i n f l i c t i o n o f a common a s s a u l t ] and o n e s u d d e n ly d e v e l o p s t h e i n t e n t i o n t o k i l l o r t o i n f l i c t g r i e v o u s b o d i l y harm w h e r e b y d e a t h r e s u l t s , t h e

38k i l l e r i s g u i l t y o f m u rd er an d t h e o t h e r p e r s o n s a r e g u i l t y o f m a n s la u g h t e r "

T h e C o u r t o f C r im in a l A p p e a l r e j e c t e d t h i s c o n t e n t i o n , r e m a r k in g t h a t i t

s e e m s t o t h i s c o u r t t o s a y t h a t a d v e n t u r e r s a r e g u i l t y o f m a n s la u g h t e r w h en o n e o f th em h a s d e p a r t e d c o m p l e t e l y fr o m t h e c o n c e r t e d a c t i o n o f t h e common d e s i g n and h a s s u d d e n ly fo rm ed an i n t e n t t o k i l l and h a s u s e d a w ea p o n and a c t e d i n a w ay w h ic h n o p a r t y t o t h a t common d e s i g n c o u l d s u s p e c t i s s o m e t h in g w h ic h w o u ld r e v o l t t h e c o n s c i e n c e o f p e o p l e t o d a y 34 35 36 37 38

3 4 . As c o n f ir m e d b y P r o f e s s o r J . C. S m ith in " A id , A b e t , C o u n s e l , o r P r o c u r e " , i n G la z e b r o o k ( e d . ) , at. p . 1 3 1 .

3 5 . [ 1 9 6 5 ] SASR 1 .3 6 . "T hus t h e m ere s u p p ly o f g o o d s b y a w h o l e s a l e r t o a r e t a i l e r d o e s

n o t n e c e s s a r i l y e s t a b l i s h a s u f f i c i e n t n e x u s b e t w e e n t h e w h o l e s a l e r and t h e r e t a i l e r . . . " I d . a t 1 4 . T h is c a s e i s d i s c u s s e d b e lo w a t P.1Obff•

3 7 . [ 1 9 6 6 ] 2 QB 1 2 0 .3 8 . I d . a t 1 1 4 •

T h e c o u r t s a i d g e n e r a l l y , i n t h e l i g h t o f t h e C r o w n 's f a c t h y p o t h e s i s , t h a t

C o n s id e r e d a s a m a t t e r o f c a u s a t i o n t h e r e may w e l l b e an o v e r h e lm in g s u p e r v e n in g e v e n t w h ic h i s o f s u c h a c h a r a c t e r t h a t i t w i l l r e l e g a t e i n t o h i s t o r y m a t t e r s w h ic h w o u ld o t h e r w i s e b e lo o k e d u p on a s c a u s a t i v e f a c t o r s . ( 3 9 )

I t i s a p p a r e n t t h a t t h e c o u r t n e e d n o t h a v e r e f e r r e d t ot h e q u e s t i o n o f c a u s a t i o n , i n e x p l a i n i n g i t s d e t e r m i n a t i o n t o q u a sh M 'sc o n v i c t i o n f o r m a n s la u g h t e r . I t i s l i k e l y t h a t i t d id s o o n l y b e c a u s et h e Crown e x p r e s s l y c h a r a c t e r i s e d t h e q u e s t i o n o f M 's l i a b i l i t y a s

40r a i s i n g , i n t e r a l i a , a q u e s t i o n o f c a u s a t i o n . I f M 's l i a b i l i t y w a st o b e a n a l y s e d i n te r m s o f t h e d o c t r i n e o f common p u r p o s e ( w h ic h i sd i s c u s s e d i n C h a p t e r S e v e n ) , t h e n c l e a r l y h e w o u ld h a v e t o b e e x o n e r a t e dfro m l i a b i l i t y f o r m a n s la u g h t e r , u p on t h e b a s i s t h a t t h e a c t c a u s i n gd e a t h w a s , a s t h e C o u r t o f C r im in a l A p p e a l r e c o g n i s e d , a l t o g e t h e r b e y o n dt h e s c o p e o f h i s common a r r a n g e m e n t w i t h A. I t w a s a s i f A h a d s im p lys t e p p e d o u t s i d e o f t h e i r a g r e e d up on p u r p o s e , an d c o m m it te d h i s ownin d e p e n d e n t c r im e . E x a c t l y t h e sam e r e s u l t i s d e r i v e d i f M 's l i a b i l i t yi s a n a l y s e d i n m ore g e n e r a l "t e r m s , i . e . , i n d e p e n d e n t ly o f t h e d o c t r i n eo f common p u r p o s e . A c c o r d in g t o t h e s e p r i n c i p l e s , a p e r s o n b e c o m e san a c c e s s o r y u p on t h e b a i s s t h a t h e k n o w in g ly I n s t i g a t e s , e n c o u r a g e so r a s s i s t s t h e p r i n c i p a l o r p r o s p e c t i v e p r i n c i p a l t o com m it t h e s u b j e c to f f e n c e ( p r o v id e d t h a t t h e o f f e n c e i s a c t u a l l y c o m m it t e d ) . I n o r d e r t odo t h i s , h e m u st o f n e c e s s i t y know t h a t t h e p r i n c i p a l i s c o m m it t in g t h i so f f e n c e o r (w h e r e h e a c t s i n a d v a n c e o f t h i s c o m m is s io n ) t h a t t h e

41p r o s p e c t i v e p r i n c i p a l w i l l po: > 3 i , f l y com m it i t . In t h e s e t e r m s M d id n o t i n c u r l i a b i l i t y f o r A ' s k i l l i n g o f V . W h ile o b j e c t i v e l y p e r h a p s ( a c c e p t i n g t h e C r o w n 's f a c t u a l h y p o t h e s i s ) h e a s s i s t e d A t o m u rd er V i n a c c o m p a n y in g h im t o t h e s c e n e o f t h e a s s a u l t and i n s t a n d i n g a t V ' s b a c k , t h e r e b y d i s c o u r a g i n g V ' s f l i g h t , h e d id n o t c o n t e m p la t e t h a t A w o u ld s t a b V , v i z , h e d id n o t c o n t e m p la t e t h e c o m m is s io n o f t h e f i n a l a c t w h ic h w a s n e c e s s a r i l y r e l i e d up on b y t h e Crown a s t h e b a s i s f o r i n c r i m i n a t i n g h im a s an a c c e s s o r y t o m a n s la u g h t e r . To r e i t e r a t e , t h e a c t d o n e b y A w a s o f a t y p e w h ic h w as a l t o g e t h e r b e y o n d h i s c o n t e m p l a t i o n . I t w a s n o t s o much t h a t M 's own c o n d u c t w as a l t o g e t h e r d e v o id o f c a u s a l , o r a t l e a s t f a c i l i t a t i v e s i g n i f i c a n c e ) ( a s n o t e d , i t c o u l d h a v e b e e n 39 40 41

3 9 . I d . a t 1 2 0 .4 0 . I d . a t 1 1 5 .4 1 . S e e e s p e c i a l l y C hap. 5 a t p . 2 o f f .

84

r e g a r d e d , o b j e c t i v e l y , a s b e i n g o f a s s i s t a n c e t o A ) , b u t r a t h e r , t h a t M • w a s l a c k i n g i n t h e m e n ta l e le m e n t r e q u i r e d , i n t h i s p a r t i c u l a r s i t u a t i o n t o g r o u n d l i a b i l i t y a s an a c c e s s o r y t o M 's v o l u n t a r y m a n s la u g h t e r o f V .T h is i t i s s u b m i t t e d , w a s t h e t r u e b a s i s o f h i s e x o n e r a t i o n o f m a n s la u g h t e r i n A n d e r s o n .

A n d e r s o n i s f u r t h e r r e f e r r e d t o , and k in d r e d d e c i s i o n s d i s c u s s e d ,42i n C h a p te r S e v e n .

I t i s c o n s i d e r e d , t h e r e f o r e , t h a t a l t h o u g h , c e r t a i n l y , A may c a u s e 43B t o com m it a c r im e and t h e r e b y b e i n c r i m i n a t e d a s an a c c e s s o r y ,

p r o o f o f s u c h a c a u s a l r e l a t i o n s h i p b e tw e e n A 's a c t o f c o m p l i c i t y andB ' s p e r p e t r a t i o n o f t h e c r im e i s n o t an i n d i s p e n s a b l e c o n d i t i o n o fa c c e s s o r i a l l i a b i l i t y . T h a t t h i s i s s o i s i n e s c a p a b l e , h a v i n g r e g a r d t o t h er e p o r t e d c a s e s w h e r e t h e a c t o f c o m p l i c i t y w a s o f a p u r e l y s u b o r d i n a t ec h a r a c t e r . T h i s i s n o t t o s a y , o f c o u r s e , t h a t t h e a c c e s s o r y ' s a c t ,e v e n w h en i t i s n o t a s i n e q u a n on o f t h e c o m m is s io n o f t h e o f f e n c e ,w i l l n o t f r e q u e n t l y b e o f c a u s a l s i g n i f i c a n c e , u s i n g t h i s e x p r e s s i o n i n ap o p u la r , i f n o t l e g a l l y e x a c t w a y . V er y many o f t h e r e p o r t e d c a s e sf o r e x a m p le c o n c e r n a s i t u a t i o n o f c o n c e r t , in w h ic h t h e a c c e s s o r y ' sa g r e e m e n t w i t h t h e p r i n c i p a l f o r t h e c o m m is s io n o f t h e s u b j e c t c r im e ,h a s o b v i o u s l y c o n t r i b u t e d i n a m a t e r i a l l y s i g n i f i c a n t , i f n o tn e c e s s a r i l y d e c i s i v e w ay t o t h e c o m m is s io n o f t h i s c r im e . E v en w h e r ea c c e s s o r i a l l i a b i l i t y h a s b e e n im p o se d i n d e p e n d e n t ly o f c o n c e r t , t h ed e f e n d a n t ' s c o n t r i b u t i o n t o t h e c o m m is s io n o f t h e p r i n c i p a l ' s o f f e n c eh a s b e e n m a t e r i a l l y s i g n i f i c a n t , i f n o t n e c e s s a r i l y c a u s a l l y

44d e c i s i v e . 42 43 44

4 2 . S e e p . 1 9 6 f f .4 3 . I . e , i n t h a t s i t u a t i o n w h e r e B w o u ld n o t o t h e r w i s e h a v e c o m m itte d

i t , b e i n g w i t h o u t c r i m i n a l p u r p o s e .4 4 . S e e f o r e x a m p le H a r d in g [ 1 9 7 6 ] VR 1 2 9 , H ere t h e a p p e l l a n t w a s

i n c r i m i n a t e d a s an a c c e s s o r y t o m u r d e r , on t h e b a s i s t h a t h e p o i n t e d o u t V t o a t h i r d p e r s o n who d id n o t know V b y s i g h t , k n o w in g t h a t t h e l a t t e r w o u ld p o s s i b l y s h o o t V. T h is a c t w a s o b v i o u s l y o f s i g n i f i c a n c e i n c o n t r i b u t i n g t o V ' s d e a t h , a l t h o u g h g i v e n t h a t t h e k i l l e r w a s i n d e p e n d e n t l y r e s o l u t e , an d t h a t h e c o u l d , p r e s u m a b ly , h a v e a s c e r t a i n e d V 's i d e n t i t y b y o t h e r m ean s h ad t h e a p p e l l a n t n o t c o o p e r a t e d , i ti s t h o u g h t t h a t t h e a p p e l l a n t ’ s a c t c a n n o t b e r e g a r d e d a s h a v in g c a u s e d V ' s d e a t h .

85

I s i t a p p r o p r i a t e v h o w e v e r , t h a t t h e a c c e s s o r y s h o u ld b e i n c r i m i n a t e d , n o t w i t h s t a n d i n g t h a t h i s a c t may n o t b e o f c a u s a l s i g n i f i c a n c e i n r e s p e c t o f t h e c o m m is s io n o f t h e c r im e ? Pr im a f a c i e , t h i s d o e s l e a v e h im i n an a n o m a lo u s p o s i t i o n i n c o m p a r is o n t o t h e p r i n c i p a l , w h o s e a c t m u st c a u s e t h e i n f l i c t i o n o f t h e r e l e v a n t h arm , b e f o r e h e i n c u r s l i a b i l i t y . B e f o r e c o n s i d e r i n g w h e t h e r t h e a c c e s s o r y ’ s l i a b i l i t y m ig h t n o t p r o p e r ly b e c o n t r a c t e d a t t h e l e v e l o f t h e a c t u s r e u s , p e r h a p s i n t e r m s o f t h e l e g a l c o n c e p t o f c a u s a t i o n , o r an a p p r o x im a t e ly s i m i l a r c o n c e p t , b r i e f r e f e r e n c e w i l l b e m ade t o t h e d e g r e e t o w h ic h an a c c e s s o r y ’ s a c t m u st c o n t r i b u t e t o t h e c o m m is s io n o f t h e p r i n c i p a l ’ s o f f e n c e , i f i t d o e s n o t a c t u a l l y c a u s e t h i s c o m m is s io n ( a s f r e q u e n t l y i t w i l l n o t ) .

(B) EFFECTIVENESS OF THE ACCESSORY'S ACT OF INCRIMINATION

I t w o u ld a p p e a r t h a t a t t h e m inim um , t h e a c c e s s o r y ’ s a c t o fc o m p l i c i t y n e e d o n ly b e o f m e r e ly n o m in a l s i g n i f i c a n c e i n e n c o u r a g in go r a s s i s t i n g t h e p e r p e t r a t i o n o f t h e c r im e , o r p e r h a p s , l i t t l e m oreth a n n o m in a l . I t I s w e l l e s t a b l i s h e d t h a t t h e a c c e s s o r y ’ s r o l e i nt h e c o m m is s io n o f t h e c r im e n e e d o n ly b e o f a s u b o r d i n a t e n a t u r e . T h a ti t n e e d n o t r e p r e s e n t a n y t h in g m ore th a n a v e r y m in o r c o n t r i b u t i o n t ot h e c o m m is s io n o f t h i s c r im e , i s im p l i e d 1n t h e c o u r t ' s f a i l u r e t oq u a l i f y t h e t r a d i t i o n a l f o r m u l a t i o n , t h a t i t i s e n o u g h t h a t t h e a l l e g e da c c e s s o r y s h o u ld h a v e " e n c o u r a g e d ” o r " a s s i s t e d " t h e p r i n c i p a l i n t h i sc o m m is s io n , w i t h an y s u c h a d v e r b a s " m a t e r i a l l y , " " t a n g i b l y , " o r" s i g n i f i c a n t l y . ” T h u s , i n t h e r e c e n t i l l u m i n a t i n g d e c i s i o n o f C la r k s o n

45( 1 9 7 1 ) t h e E n g l i s h C o u r t s - M a r t i a l A p p e a l C o u r t a f f i r m e d t h a t a p e r s o nwho s t o o d b y , a s a m u te s p e c t a t o r t o a c r im e , c o u ld o n l y b e i n c r i m i n a t e da s an a c c e s s o r y t o t h i s c r im e p r o v id e d t h a t t h i s p r e s e n c e h a d ( t o h i s

46k n o w le d g e ) " g iv e n e n c o u r a g e m e n t" t o t h e p r i n c i p a l s . T h a t t h i s e n c o u r a g e m e n t n e e d o n l y r e p r e s e n t a v e r y m a r g in a l , c o n t r i b u t i o n t o t h e c o m m is s io n o f t h e c r im e w a s c l e a r l y r e c o g n i s e d b y t h e c o u r t i n o n e o f t h e h y p o t h e s e s o f f a c t w h ic h i t c o n s t r u c t e d . A c c o r d in g t o i t , a man w ho i s a t t r a c t e d t o t h e s c e n e o f a r a p e o r r a p e s and who s t a n d s s i l e n t l y w a t c h i n g , b e c o m e s a n a c c e s s o r y t o t h i s c r im e o r c r im e s p r o v id e d t h a t h i s p r e s e n c e ( t o h i s k n o w le d g e ) " in f a c t e n c o u r a g e [ s ] t h e r a p e r s o r d i s c o u r a g e [ s ] t h e v i c t i m " . ^

I t i s a p p a r e n t t h a t t h e f i r s t o f t h e s e tw o fo rm s o f e n c o u r a g e m e n t i f n o t t h e s e c o n d , c o u ld r e p r e s e n t an e x c e e d i n g l y m a r g in a l a c t o f s u p p o r t , g i v e n 45 46 47

4 5 . [ 1 9 7 1 ] 3 A l l EE 3 4 4 .4 6 . I d . a t 3 4 7 .4 7 . I d . a t 3 4 7 .

t h e o v e r a l l h y p o t h e s i s , t h a t t h e p r i n c i p a l s had i n d e p e n d e n t l y r e s o l v e d u p on t h e r a p e s and th a t: t h e d e f e n d a n t h a d m e r e ly com e u p on t h e s c e n e , s u b s e q u e n t t o t h e i r r e s o l u t i o n , and ( a s i f t o r e i n f o r c e t h i s p o i n t ) t h e a c c e s s o r y ’ s a c t o f e n c o u r a g e m e n t w as ( a g a i n , e x h y p o t h e s i ) o n e o f p a s s i v e p r e s e n c e .

86

A p r e c i s e l y s i m i l a r c o n c l u s i o n w a s d raw n b y t h e E n g l i s h C o u r t48o f C r im in a l A p p e a l i n t h e e a r l i e r and p a r a l l e l c a s e o f A l l a n ( 1 9 6 5 )

49w h ic h i s d i s c u s s e d e l s e w h e r e i n t h i s s t u d y .

I t i s a p p a r e n t , t h a t i f t h e d e f e n d a n t ’ s a c t o f c o m p l i c i t y i s a l l e g e d t o c o n s i s t s o l e l y i n h i s m o r a l e n c o u r a g e m e n t o f t h e p r i n c i p a l t o com m it t h e s u b j e c t c r im e , t h e n t h e l a t t e r m u st b e a w a r e o f t h i s e n c o u r a g e m e n t , f o r o t h e r w i s e t h e d e f e n d a n t ’ s a c t w i l l h a v e b e e n o f n o e f f e c t a t a l l , i n c o n t r i b u t i n g t o t h e h a p p e n in g o f t h i s e v e n t . O n t h e o t h e r h a n d , t h e r e i s n o r e a s o n why an a c t o f a s s i s t a n c e r e n d e r e d t o t h e p r i n c i p a l b y t h e d e f e n d a n t s h o u ld n o t am ou nt t o a n a c t o f a c c e s s o r y s h i p , a l t h o u g h t h e l a t t e r i s u n a w a r e o f t h i s a s s i s t a n c e , p r o v id e d t h a t t h i s a c t d o e s a c t u a l l y f a c i l i t a t e , t o som e d e g r e e a t l e a s t , t h e p e r p e t r a t i o n o f t h e s u b j e c t o f f e n c e .

(IV ) CONTRACTING ACCESSORIAL LIABILITY AT THE LEVEL OF THEACT OF COMPLICITY__________________________________________________

T h e f o r e g o i n g d i s c u s s i o n may b e su m m a r ise d t h u s : an a c t o f a c c e s s o r y s h i p n e e d n o t c a u s e t h e p r i n c i p a l t o com m it t h e s u b j e c t c r im e , i n t h e s e n s e i n w h ic h t h i s te r m i s u s e d i n t h e c r i m i n a l la w ; r a t h e r , i t w i l l b e s u f f i c i e n t i f ( a t t h e m inim um ) i t may b e r e g a r d e d a s e n c o u r a g in g o r a s s i s t i n g t h e p r i n c i p a l t o do t h i s e v e n a s t h i s a s s i s ­t a n c e o r e n c o u r a g e m e n t may b e o f o n ly m a r g in a l e f f e c t i v e n e s s . On o n e v i e w , a t l e a s t , t h i s w o u ld seem t o l e a v e t h e a c c e s s o r y i n an a n o m a lo u s o p p o s i t i o n v i s - a - v i s t h e p r i n c i p a l , f o r i t i s a g e n e r a l p r i n c i p l e o f c r i m i n a l la w t h a t i f t h e l a t t e r ' s a c t d o e s n o t i t s e l f r e p r e s e n t t h e a c t c o n s t i t u t i n g t h e s u b j e c t c r im e , i t m u st c a u s e t h i s e v e n t t o t a k e p l a c e . (T h e s o l i t a r y e x c e p t i o n t o t h i s p r i n c i p l e i s r e p r e s e n t e d b y t h e la w o f c r i m i n a l o m i s s i o n ) . 48 49 50 51

4 8 . [ 1 9 6 5 ] 1 QB 1 3 0 .4 9 . S e e p.299*5 0 . So c o n f ir m e d b y J . C. S m ith i n h i s " A id , A b e t , C o u n s e l o r P r o c u r e ”

i n G la z e b r o o k ( e d . ) a t p p . 1 3 2 -3 *5 1 . S e e S t a t e v . T a.1 l e y ( 1 8 9 4 ) 10 2 A la . 2 5 , e n d o r s e d b y S m ith i n i d . a t

1 3 2 .

87

I t w o u ld b e d i f f i c u l t , h o w e v e r , t o l i m i t t h e a c c e s s o r y ' s l i a b i l i t y b y r e s o r t t o t h e c o n v e n t i o n a l c o n c e p t o f c a u s a t i o n , g i v e n t h a t t h e s u b j e c t c r im e m u s t , b y d e f i n i t i o n , b e c o m m itte d b y a p r i n c i p a l who

frequently wilx h&vo resolved indepeni&nUy to commit it, so that

i t s im p ly c a n n o t, b e s a i d t h a t t h e a l l e g e d a c c e s s o r y ' s a c t w a s a s i n e q u a n o n o f t h i s c o m m is s io n . To s o L im it t h e a c c e s s o r y ' s l i a b i l i t y w o u ld c o n t r a c t i t t o o g r e a t l y , i t i s t h o u g h t , in t h a t t h e r e w i l l b e v e r y m any c a s e s o f s e c o n d a r y p a r t i c i p a t i o n in a n o t h e r ' s c r im e w h e r e t h e c ir c u m ­s t a n c e s do j u s t i f y t h e i m p o s i t i o n o f s e c o n d a r y l i a b i l i t y , a l t h o u g h i t c a n n o t s t r i c t l y b e s a i d t h a t t h e a c c e s s o r y ' s a c t w a s a n i n d i s p e n s a b l e c o n d i t i o n o f t h e p r i n c i p a l ' s a c t .

On t h e o t h e r h a n d , i t may b e c o n s i d e r e d t h a t t h e p r e s e n t d o c t r i n e o f a c c e s s o r y s h i p , w h ic h p e r m it s t h e i m p o s i t i o n o f s e c o n d a r y l i a b i l i t y i n , i n t e r a l i a , s i t u a t i o n s w h e r e t h e a c c e s s o r y ' s a c t o f c o n t r i b u t i o n ( i . e . t o t h e p e r p e t r a t i o n o f t h e c r im e ) h a s b e e n o f o n l y m a r g in a l e f f e c t , i s u n d u ly b r o a d i n s c o p e .

Any s u c h u n d e r t a k in g t o l i m i t t h e a c c e s s o r y ' s l i a b i l i t y a t t h e l e v e l o f a c t u s r e u s m u s t , i t i s a p p a r e n t , b e f o r m u la t e d i n t h e l i g h t o f t h e p r e su m e d r a t i o n a l e f o r a d o c t r i n e o f s e c o n d a r y l i a b i l i t y . T he j u s t i ­f i c a t i o n f o r p u n i s h in g s e c o n d a r y o f f e n d e r s i s , c l e a r l y , t h a t t h e i r c o n d u c t e n h a n c e s t h e l i k e l i h o o d t h a t t h e p r i n c i p a l w i l l com m it a g i v e n o f f e n c e ; an d t h a t a c c o r d i n g l y , t o r e p r e s s c o n d u c t o f t h i s t y p e w i l l m ake i t l e s s l i k e l y t h a t s u c h an o f f e n c e w i l l b e c o m m it te d . T h is b e i n g s o , i t may b e a r g u e d t h a t c o n d u c t w h ic h d o e s n o t m a t e r i a l l y e n h a n c e t h e p r o s p e c t t h a t an o f f e n c e w i l l b e c o m m it t e d , e v e n th o u g h i t may b e m o r a l ly r e p r e h e n s i b l e , i s n o t o b v i o u s l y o f a t y p e w h ic h s h o u ld s u f f i c e t o i n c r i m i n a t e t h e p e r s o n who p e r fo r m s i t i n t h i s o f f e n c e , e q u a l l y w i t h t h e p r i n c i p a l . A h y p o t h e t i c a l e x a m p le o f t h i s t y p e o f v e r y m a r g in a l p a r t i ­c i p a t i o n i n a n o t h e r ' s c r im e i s a f f o r d e d b y t h e E n g l i s h C o u r t s - M a r t i a l

52A p p e a l C o u r t i n C la r k s o n ( 1 9 7 1 ) , w h ic h h a s b e e n d i s c u s s e d a b o v e . T he c o u r t , i t w i l l b e r e c a l l e d , e n v i s a g e d t h a t a man who i s a t t r a c t e d , q u a v o y e u r , t o a room w h e r e o t h e r men a r e r a p in g a g i r l , an d who r e m a in s w a t c h in g t h e s e r a p e s , a s a m u te s p e c t a t o r , b e c o m e s an a c c e s s o r y t o t h e s e r a p e s , p r o v id e d t h a t h i s p r e s e n c e " e n c o u r a g e s " t h e s e p r i n c i p a l s ( a n d , m o r e o v e r , t h a t h e k n ow s o f t h i s f a c t . ) I t w o u ld b e d i f f i c u l t t o c o n c e i v e 52

5 2 . [ 1 9 7 1 ] 3 A l l ER 344-

88o f a m ore m a r g in a l c a s e o f a c c e s s o r y s h i p ,' th a n e n c o u r a g e m e n t o f a c r im e w h ic h3 —'13 n o t o f an a u d i e n c e - c o n t i n g e n t v a r i e t y , t h r o u g h p a s s i v e s p e c t a t o r s h i p . E ven g r a n t e d t h e h y p o t h e s i s t h a t t h i s p r e s e n c e d o e s a c t u a l l y e n c o u r a g e t h e p r i n c i p a l s , i t i s e v i d e n t t h a t i t d o e s a lm o s t n o t h in g t o e n h a n c e t h e p r o b a b i l i t y t h a t t h e r a p e s w i l l b e c o m m it te d . F u r t h e r m o r e , i t i s a p p a r e n t t h a t t h e m o r a l c u l p a b i l i t y o f t h e s p e c t a t o r , th o u g h d e f i n i t e e n o u g h , i s v a s t l y l e s s th a n t h a t o f t h e p r i n c i p a l . And y e t t h e s p e c t a t o r i s i n c r i m i n a t e d i n t h e r a p e s , j u s t a s i f h e w e r e a p r i n c i p a l .

As i t i s e v i d e n t t h a t t h e d e fe n d a n t , i n t h i s e x a m p le p o s s e s s e st h e m e n t a l e l e m e n t r e q u ir e d o f t h e a c c e s s o r y , i n t h a t h e k n o w in g lye n c o u r a g e s t h e i r c o m m is s io n , i t i s t h e n a r g u a b le t h a t h i s l i a b i l i t y i sp r o p e r ly t o b e l i m i t e d a t t h e l e v e l o f a c c e s s o r i a l a c t u s r e u s . Onew ay t h a t t h i s c o u ld b e d o n e i s b y f o r m u la t in g t h e p h y s i c a l e l e m e n t i na c c e s s o r i a l l i a b i l i t y b y r e s o r t t o a q u a l i f y i n g a d v e r b , s o t h a t f o re x a m p le , t h e a c c e s s o r y , i f h e d o e s n o t a c t u a l l y i n s t i g a t e t h e p r i n c i p a lt o com m it t h e s u b j e c t c r im e m u s t , s a y , " s u b s t a n t i a l l y , " " t a n g i b l y "o r " m a r g in a l ly " e n c o u r a g e i t s c o m m is s io n . S u ch a f o r m u l a t i o n i s n o th o w e v e r , u n a t t e n d e d b y d i f f i c u l t y . T he T e n t a t i v e D r a f t o f t h e M o d el P e n a lC ode p r o p o s e d t h a t a c c e s s o r i a l l i a b i l i t y s h o u ld b e im p o se d u p o n t h e p e r s o nw h o , th o u g h l a c k i n g t h e " p u r p o s e " t o p r o m o te o r f a c i l i t a t e a n o t h e r ' sc r im e , n or - t h e l e s s " k n o w in g ly " f a c i l i t a t e d i t s c o m m is s io n , p r o v id e d t h a t

54t h i s f a c i l i t a t i o n w as a " s u b s t a n t i v e f a c i l i t a t i o n " . I t w a s a c k n o w le d g e d55i n t h e co m m en ta ry t o t h e T e n t a t i v e D r a f t t h a t t h e e x p r e s s i o n o f

" s u b s t a n t i a l l y f a c i l i t a t e s " c o u ld b e c r i t i c i s e d a s l a y i n g down " t o o v a g u ea t e s t o f l i a b i l i t y t o g u id e a j u r y v e r d i c t . . . " , an d i t may b e t h a t i tw a s f o r t h i s r e a s o n , t h a t t h i s f o r m u la t io n o f l i a b i l i t y w a s o m i t t e d fro m

5 6t h e M o d e l P e n a l C ode - T e n t a t i v e D r a f t . F u r t h e r , i t i s n o t w i t h o u ts i g n i f i c a n c e , p e r h a p s , t h a t t h e B r i t i s h Law C o m m is s io n 's w o r k in g p a p e r on c o m p l i c i t y ( i . e . W o rk in g P a p e r N o . 4 3 ) d o e s n o t p r o p o s e t h a t t h e s c o p e o f a c c e s s o r i a l l i a b i l i t y s h o u ld b e l i m i t e d i n t h e s e , o r a n y c o m p a r a b le , t e r m s . 53 54 55 56

5 3 . U n l i k e , s a y , an i l l e g a l p r i z e f i g h t .5 4 . S t r i c t l y , t h e T e n t a t i v e D r a f t p r o v id e d , in s . 2 . 0 4 ( 3 ) ( b ) t h a t a

p e r s o n i s an a c c o m p l i c e in a n o t h e r ' s c r im e i f " a c t i n g w i t h t h e k n o w le d g e t h a t s u c h o t h e r p e r s o n w as c o m m it t in g o r h a d t h e p u r p o s e o f c o m m it t in g t h e c r im e , h e k n o w in g , s u b s t a n t i a l l y f a c i l i t a t e d i t s c o m m i s s i o n . . ."

55. Model Penal Cpde: Tentative Draft- at p.ji.5 6 . S e e s . 2 . 0 6 ( 3 ) .

89

B u t e v e n g r a n t e d t h i s r e l a t i v e u n c e r t a i n t y i n t h e M o d e l P e n a lC o d e ’ s p r o v i s i o n a l f o r m u l a t i o n , i t d o e s , i t i s s u b m i t t e d , p o i n t t h ew ay t o a d e s i r a b l e c o n t r a c t i o n o f a c c e s s o r i a l l i a b i l i t y i n t h e c o n t e x t

57o f , a t l e a s t , c e r t a i n o f t h e c a s e s o f m in o r p a r t i c i p a t i o n i n a n o t h e r ' s c r im e . I t i s c o n s i d e r e d , h o w e v e r , t h a t t h e o p e r a t i v e a d v e r b m ig h t b e t t e r b e " m a t e r i a l l y ' 1, r a t h e r th a n " s u b s t a n t i a l l y " . T he l a t t e r i s a r a t h e rs t r o n g e r w o r d , an d c o n n o t e s t h a t t h e a c c e s s o r y ' s a c t m u st h a v e c o n t r i b u t e d t o t h e c r im e i n a m a jo r w a y , w h ic h may b e i n a p p r o p r i a t e i f i t i s c o n s i d e r e d t h a t t h e d o c t r i n e o f a c c e s s o r i a l l i a b i l i t y o u g h t t o c o n t i n u e t o i n c r i m i n a t e t h e r e l a t i v e l y s u b o r d in a t e p a r t i c i p a n t . " M a t e r i a l l y " , on t h e o t h e r h a n d , w h i l e c l e a r l y r e c o g n i s i n g t h a t m in o r p a r t i c i p a t i o n i n t h e c r im e o f t h ein d e p e n d e n t l y r e s o l u t e p e r p e t r a t o r may i n c r i m i n a t e , i s c a p a b le o f f u n c t i o n i n g s o a s t o e x c l u d e a c t s w h ic h a r e o n ly o f v e r y m a r g in a l e f f e c t i v e n e s s , i n c o n d u c in g t o t h e c o m m is s io n o f c r im e . I f a p r o v i s i o n t h a t t h e d e f e n d a n t ’ s a c t m u st m a t e r i a l l y e n c o u r a g e o r a s s i s t t h e p r i n c i p a l t o com m it t h e s u b j e c t c r im e b e f o r e h e may b e i n c u l p a t e d a s an a c c e s s o r y i s c o n s i d e r e d t o b e t o o f a v o u r a b le t o h im , s u c h a q u a l i f i c a t i o n may b e s t a t e d i n a n e g a t i v e w a y; v i z , t h a t i t s h a l l b e a d e f e n c e f o r a p e r s o n c h a r g e d w i t h a c c e s , o r i a l p a r t i c i p a t i o n i n a n o t h e r ’ s c r im e t o d e m o n s t r a t e t h a t h i s a c t d id n o t m a t e r i a l l y a s s i s t o r e n c o u r a g e t h e c o m m is s io n o f t h i s c r im e . E i t h e r w a y , s u c h a l i m i t a t i o n upon a c c e s s o r i a l l i a b i l i t y

58s h o u ld g i v e p r a c t i c a l e f f e c t t o t h e p r i n c i p l e o f d e m in im is n o n c u r a t l e x i n t h i s a r e a o f t h e la w . 57 58

I

s

5 7 . I . e . , i n t h e s e n s e t h a t t h e d e f e n d a n t p e r fo r m s a m e r e ly s u b o r d i n a t e a c t o f a e n c o u r a g e m e n t o r a s s i s t a n c e on b e h a l f o f an in d e p e n d e n t l y r e s o l u t e p r i n c i p a l .

5 8 . I . e . , t h a t t h e la w i s n o t c o n c e r n e d w i t h t r i f l e s .

90

CHAPTER FIVE

ELEMENTS OF ACCESSORIAL LIABILITY - (B) THE MENTAL ELEMENT : GENERAL PRINCIPLES

(I) INTRODUCTION

(A) THE STRUCTURE OF ACCESSORIAL MENS REAIn general (and subject to certain minor qualifications to be noted

below), the accessory is required to possess at the time that he performs his act of incrimination, both (a) an intention to instigate, encourage or assist the principal in the commission of the criminal actus reus, or, alternatively, (and at the minimum) the knowledge that his act does this, with (b) a mental element appropriate to the subject crime. At common law, the accessory in general will possess this latter mental element where he sees, or foresees that the principal will commit, or do an act causing the commission of the physical act of the crime in those circum­stances which disclose its criminal nature. Two obvious exceptions to this principle arc represented by offences o f constructive liability and of negligence.^ These two distinct aspects of accessorial mens rea might conveniently be termed the primary and secondary elements of the mental state required of this criminal participant.

Such a division of concepts in this context is logically inescapablein what might be termed the more marginal cases of accessorial liability.For example, a person may knowingly instigate, encourage or assist another fcocommit the actus reus o f a crime o f intention, such as l a r c e n y /but not be liablebecause he failed to see that the act is being done or will be done in

2circumstances disclosing its criminality. On the other hand, he may perceive that the principal is committing, or will commit the actus reus 1 2

(1 ) : 5 t o w h ic h s e e b e lo w a t pp .1 01 f f . ?1 5 4f f • >1 5 7 - 8 *(2) For example, A helps B, a stranger, to start a car believing that the

car is B's. B subsequently drives off in the car. In fact, he has stolen it. A is not liable as an aider, because of his misapprehension.

91

of a crime in circumstances disclosing its criminal nature, and do an act which does actually encourage or assist the principal, without being aware of this. For example, the defendant may stand by witnessing the commission of a continuing crime, in circumstances where his presence actually encourages the perpetrator/s, and yet be unaware that hispresence has this effect. Accordingly, he cannot be viewed as aiding

, , . . 3and abetting crime.

It must be noted, however, that the courts do not usually analyse accessorial mens rea under precisely these heads, for in a majority of cases the accessory desires that the criminal act be counselled and he knows that it will be performed in circumstances disclosing its criminality. Thus the distinction is either not made by the courts, or if it is, then it is made sub silentio. And likewise, while it is acknowledged that the distinction must be borne in mind in this area of the law it will not always be convenient to adhere to it rigidly in the exploration of the subject of accessorial mens rea in the following pages. This is partly because the courts have not in general adhered to it in stating the law, and any discussion of the topic must reflect the terms of the decisional law. As well, it is thought that it would be artificial to att< mpt to state the general elements of accessorial mens rea by wholly divorcing consideration of the type of intention, or knowledge which relates specifically to the performance of the act of accessoryship, from his awareness of the circumstances of its commission (i.e., in the terms which have just been noted, his possession of secondary mens rea) . For these reasons, the principles underlying a c c e s s o r i a l mens rea will be discussed under the following heads, the first of which will be canvassed in this chapter, and the second of them in the next chapter:

(a) General PrinciplesComment here will be directed to the general regime of principle

governing accessorial mens rea which has been enunciated expressly or by implication by the courts. This discussion will deal mainly with the requirement of intention or knowledge which is peculiar to the 3

(3) See, for example, Allan [1965] 1 QB 130; Clarkson [l97l] 3 All ER 344;Jones (1977) b5 Crim App R 250.

92

accessory, i.e., which pertains to his performance of the act of acoessory- ship *but if v’d'l ! also reflect; the requl.-naent that he must act with that degree of awareness as to the circumstances of the commission of the particular crime, which is required o f rha a o e e c o orv,

(b) The Requirement Thart (i n General) the Accessory Must Know of the Essential Elements of the OffenceAs it will be emphasised in the following chapter, at common law the

access >ry must, at the time that he performs his act of complicity, ingeneral know that the principal is committing or will commit the actus reusof this offence in those circumstances which disclose the criminal natureof this act, Tliis is true of offences of intention (or in an alternative

4 5expression, of full mens rea), of recklessness, and of strict liability (which at common law, are in most of the subject jurisdictions to be treated as if they were offences of intention, where the accessory isconcerned). On the other hand, where offences of constructive liability

oand of n e g l igence are concerned, the accessory n e e d have no more knowledgeof the material circumstances of the given offence than is required of the principal *

Put another way, thfe degree of awareness as to the relevant circum­stances of the subject crime is the same for both principal and accessory, with, the solitary exception of offences of strict liability which, as noted, are in most of the subject jurisdictions notionally elevated to the status of offences of intention, for the purpose of accessorial liability.

(B) DEFINING SOME RELEVANT CONCEPTSIt will be appropriate, before adverting in detail to the principles

of accessorial mens rea in both this chapter and elsewhere, to indicate the meaning intended where the following conventional terms are employed: 4 5 6

(4) I.e., which require both that the principal should deliberately commit the actus reus (or the act causing this with the object of bringing this about) and, moreover, that when he acts in this way that he knows of the essential circumstances constituting this offence.

The concept of intention, and of an intentional offence in the criminal lav/, are referred to at Pp ,93f f ,,11 0-11 .

(5) In the sense of inadvertent risk-taking. The concepts of recklessness and of a reckless offence, are further discussed below at pp,1-1f f,,11 1 •

(6) Negligence is used in th is context i j re fe r to an offence o f i nadver tont care 18 s r.necss sgo p * 1 0(j , 1 1 1 *

(1 )

93

"In ten tio n : (or in an A lternative Expression , "Purpose"

This concept may be discussed under two headings:

(a ) Actual Intention

In ordinary usage, as w ell as in the crim inal law, a person may be

said to act in ten tio n a lly in respect of a given a c t , where he acts with7the aim, or d e s ire , to bring about th is act. "Intention" may re la te to

circumstances as w ell as to consequences, in that i t w i l l frequently be

necessary to re fe r to the surrounding circumstances in characterisin g8the nature o f the consequence which a person d esires to bring about.

The usage o f "purpose" may likew ise be applied to th is concept; and in

th is respect at le a s t , the two expressions, "purpose" and "in ten tion" are

synonymous. This is re flecte d in the characterisation of "purpose" in the

Model Penal Code as meaning, in ter a l i a, a "conscious o b je c t" , i . e . , of

behaviour. ^

(b) Constructive Intention

(i ) Foresight o f Consequence as Certain to Result

I t may a lso be argued strongly that where a person does an act and

thus causes a given consequence, without desiring that th is consequence

should follow from his act, but foreseeing i t as "certa in " or as "v ir tu a lly

certa in " or as "su b stan tia lly certain" that i t w il l flow from h is a c t , he

is to be regarded as intending th is consequence. Such a concept of crim inal

(7) In th is formulation "d esire" is used n eu tra lly , i . e . , in the sense of an immediate, as opposed to ultim ate, or u lte r io r m otivation for action. In the criminal law, of course, an in d iv id u a l's ultim ate motive fo r committing a criminal act is not u su ally le g a lly re levan t, though obviously i t w il l frequently be o f e v id en tia l s ig n ifica n c e .

Contrast Windeyer J . ' s view in Vallance v . The Queen (1961) 108 CLR 56 a t 82-3, that the word "desire" ought not to be used in defining in ten t, as th is produces the r is k that "an emotional ingredient" w il l be introduced into an Intellectiaal concept. A man may seek to produce a re su lt while regrettin g the need to do so.

(8) Thus, in G lan ville W illiam s’ i l lu s t r a t io n , any man who in ten tio n a lly takes an a r t ic le , mistakenly thinking that i t i s h is own, does not in ten tio n a lly tcike an a r t ic le belonging to another: TCL at p .5 2 ; and the man who has intercourse with a woman who in fa c t has not consented, under the mistaken b e l ie f that she has done th is , does not in ten tio n a lly have intercourse with her without her consent.

(9) See the Model Penal Code: Proposed O ffic ia l D raft a t s .2 .0 2 (a ) .

94

intention might conveniently be termed constructive, or imputed intention ,

as opposed to actual intention. This view has been adopted by G lan ville

W illiams, c itin g Lord Hailsham L .C .'s opinion that "Intention [includes]

the means as w ell as the end and the inseparable consequences o f the end10as w ell as the means." Professor Williams would require fo resigh t by the

actor that the given consequence was "the v ir tu a lly certain accompaniment11 ~ of what he intended." Professors Smith and Hogan in th e ir Criminal Law

note that the au th o rities do not in every case support th is extended

conception of in ten tion , though they indicate that i t i s sound "in 12p rin cip le ,*1 Conversely, Colin Howard would confine "in ten tion" in the

crim inal law to that situ ation where the defendant acts with the "conscious

object" that the prohibited consequence should re s u lt from h is conduct,

and is o f the view that where the defendant merely foresees that i t w i l l ,

or may re su lt from h is act, but is in d iffe re n t to th is prospect, he should13rath er, be viewed as acting reck less ly in respect o f th is consequence.

(ii .) Foresight o f the Consequence, But Not as Certain to Happen

While i t may be supposed that in practice the d elib erate doing of an

act with the fo resig h t ttaat. the given crim inal consequence is su b stan tia lly

or v ir -ually "certa in " to re s u lt , although i t is not p o s it iv e ly planned,

or desvred that th is should happen, w ill normally s u ff ic e to e sta b lish

the relevant "intention" in an offence of in ten tion , there is considerable

doubt as to whether th is notion of imputed intention may be extended any

fu rth er. At i t s most f le x ib le , i t has occasion ally been suggested, i t

functions so as to impute intention to the person who does an act fo re ­

seeing that the p a rticu la r crim inal consequence is "p ro b a b le " , while not

(10) Hyam v. DPP [l975] AC 55 at 74, cited in Williams TCL a t p .65 , with the q u alify in g comment, "What he ( i . e . , Lord Hailsham) evidently meant was the consequences of the end as w ell as the means."

(11) TCL at p .65; and see Williams in CLGP at p .3 8 f f .

(12) Smith and Hogan at p .5 1 . And see Smith " 'In te n t ' - a Reply" [1978]Crim LR 14 .

(13) Howard at p .360.

95

desiring that i t should thereby re su lt, (Such a mental s ta te could of

course, equally be viewed as amounting to an instance o f reck lessn ess.)

Thus, in an ob iter comment in a context which made i t apparent that

i t was speaking in re latio n to the criminal law g en e ra lly , the New South14Wales Court of Criminal Appeal said in Stones (1955) that

t e standard te s t of a man's mind in the commission of an act

is the foreseeable consequences. I f he applied h is mind to

the consequences, and without concluding that they would

probably happen (which is crim inal intent) h is s ta te o f mind

was that he did not care whether they happened or not, that 15is reck lessn ess.

16And in the A ustralian High Court case of Vailance v . The Queen (1961),

which concerned an appeal from a conviction for a statu to ry offence of

unlawful wounding, Dixon CJ cited with approval from Kenny's Outlines of

Criminal Law to the e f fe c t that in the crim inal law gen erally "the word

'in te n tio n ' l ik e the word 'm alice' covers a l l consequences whatever which

the doer o f an act foresees as lik e ly to re su lt from i t , whether he does

the ac t with an actual ddsire o f producing them or only in recklessness17as to whether they ensue or not." S im ilarly Windeyer J was of the view

in th is case that ” [t]he common law treats what was done re ck le ss ly . . . 14 15 16 17

(14) (1955) 56 SR (NSW) 25.

(15) IcL at 34 (Street CJ, Roper CJ in Equity, Herron J ) . Stones dealt with a conviction for murder. I t is to be noted, in c id e n ta lly , that the same court has since held in Solomon [ I98Q] 1 hbW Lii y ? 1 f that the head of reck less murder in s .18 of the Crimes Act, 1900 (NSW) (which incrim inates those who cause death by an act or omissiondone or omitted to be done with reckless in d ifferen ce to human l i f e , requires proof that the accused foresaw that death would "probably" re su lt from the act or omission.

(16) (1961) 108 CLR 56.

(17) Id . at 127 . While Dixon CJ applied the term "reck lessn ess" to the fo resigh t of p rob ab ility s itu a tio n , he viewed i t as equivalent to "actu al in ten t." His context makes i t apparent that he was speaking g en era lly , and not merely in respect of the offence of unlawful wounding.

96

as i f i t had been done with actual intent.. I t says that a man who aqtually

re a lis e s what must be, or very probably w ill be, the consequence of what3 8he does, does i t intending that consequence." " I t is to be noted,

however, that the other three members of the court resolved the in stan t

question, as to whether or not a statutory offence of unlawful wounding

could be committed re ck le ss ly rather than with actual in ten tion , on a . . 19more narrow b a s is . 18 19

(18) Id . a t 82.

(19) V allan ce, i d . , was concerned with an appeal from a conviction for the offence o f unlawful wounding created in s .17 2 o f the Tasmanian Criminal Code, 1924. I t would seem to have been accepted by most of the ju s t ic e s that whether or not the common law of crime (even supposing that i t was able to be applied to the construction of the Tasmanian Criminal Code in th is context) knew a general doctrine of constructive intention according to which fo re sig h t of probable consequences was equivalent to actual intention , an offence of unlawful wounding (both that in s .17 2 and i t s equivalent in other ju risd ic tio n s) could be committed not only in te n tio n a lly , but also re c k le ss ly , in the sense that the defendant foresaw th is consequence as a probable re su lt of h is act though he did not desire that i t should happen - see V allance at 60 (Kitto J , 69 (Taylor J ) , 74 (Menzies J ) , 78 (Windeyer J ) .

The situ a tio n in Vallance was made more complex by v irtu e of the existen ce of s . 1 3 of the Tasmanian Criminal Code which provides, in te r a l i a , that an individual could not be convicted in respect of an act which was not "voluntary" or " in te n tio n a l." I t is apparent that in the eyes of most of the ju s t ic e s , th is provision was to be construed in a lim ited way, as providing simply that at the minimum (and in the absence of any further and sp e c ific provision) the actus reus o f an offence under Tasmanian law had to be committed d e lib e ra te ly , in the sense of v o lu n ta r ily . As to whether or not some further element of awareness or intention was required to be determined in respect of each and every offence/ see Vallance at 68 (Taylor J) , 72 (Menzies J) , 79 (Windeyer J ) ) . Dixon CJ on the other hand, construed s . 1 3 more broadly as requiring that the crim inal consequences have been desired , or a lte rn a t iv e ly , foreseen as a probable re su lt of a given defendant's a c t , i . e . , he construed "in ten tio n a l" as re la tin g to consequences as w ell as to the defendant's immediate act (at 6 1) .

See a lso Buzzard "In ten t" [.1978] Trim LR 5, who argues that fo resig h t o f a consequence as probable, is equivalent to intending that consequence; though see also Smith " 'In te n t ' ~ a Reply" [1978]Crim LR 14 .

The m inority o f the working party responsible fo r the B r it is h Law Commission's Working Paper No. 31 ("C odification of the Criminal Law: General P rin c ip le s : The Mental Element in Crime") (HMSO, London, 1970) favoured the adoption o f the foresigh t o f probable consequences te st as a b asis fo r a concept o f imputed intention (at pp .44-5); the m ajority , however, favoured lim iting this concept to the situ a tio n where the defendant has "no substantia l doubt as to the occurrence of the prohibited consequence"(at pp.44-5).

97

These ob ite r comments asid e, the law in the sub ject ju risd ic tio n s

does not by and large affirm as a general proposition , that where a man

acts with the fo re sig h t that a given crim inal consequence w il l probably

re su lt from h is a c t , though he does not desire th is , he may be deemed

to have intended th is consequence. Certainly the courts have applied

such a concept or one sim ilar to i t , in grounding l i a b i l i t y in respect

o f sp e c ific crimes; but i t i s by no means c lear that they have thereby

intended to a rt ic u la te a general prin cip le o f constructive in tention .

Rather, in numerous of these cases the courts have been concerned to

affirm no more than that certain o ffences, which may be committed in ten t­

io n a lly , may in the a lte rn ativ e be committed re ck le ss ly ( i . e . , in the

sense that the defendant, while not desiring that the crim inal consequence

should re su lt from h is act, foresees i t as probable that th is w il l happen).

And furthermore, while i t i s now apparent that a number of in ten tion al

offences may, in the a lte rn a tiv e , be committed re c k le ss ly , th is feature

o f th e ir in d ividual mens rea requirement is not n e cessarily able to be

applied in every such case. Thus some offences o f in ten tion , conceivably,

may only be committed by persons possessing the mental state c la s s i f ie d

by the law as in te n tio n .> I f th is la t te r concept does not extend to

embrace what i s , de facto , a concept of recklessness ( i . e . , fo re sig h t o f

(undesired) consequences as a probable outcome of one's own behaviour),

then lo g ic a lly l i a b i l i t y cannot be imposed upon defendants by re so rt

to the fo resigh t of probable consequences te s t .

The fo re s ig h t o f probable consequences p rin c ip le has frequently been

resorted to in cases o f murder. I t i s , fo r example, now w ell-

established in A u stra lia that at common law a person who does an act

causing death or grievous bodily harm, foreseeing that e ith er of these

consequences w il l probably re su lt , although neither i s d esired , is g u ilty

o f m urder;^ and English authority is in more or le ss s im ila r te rm s.^ 20 21

(20) See the High Court decision in La Fontaine v . The Queen (1976) 136 CLR 62; and see also the same cou rt’ s e a r l ie r decision in Pemble v.The Queen (1971) 124 CLR 107, where McTiernan J (at 127) and Menzies J (at 135) were of the same view; contrast, however, Barwick C J 's view on th is occasion that fo resigh t of death or grievous bodily harm as a p o s s ib il ity would be su ff ic ie n t (at 1 2 1 ) .

(21) l ' . e . , Hyam v. DPP [ 1975 ] AC 55, where the House of Lords upheld ther -p e llan t's conviction for murder a fte r the t r ia l judge had instructed t le jury that she had to have acted with the fo resig h t that death or grievous bodily harm was a "highly probable" outcome of her act. The House did not decide whether foresight merely of "p ro b ab ility " in these terms was s u ff ic ie n t for murder; on the other hand, nor did i tru le out th is p o s s ib i l i t y . See the discussion of th is case in Smith and Hogan at p .2 8 6 ff.

98

But these cases, i t i s suggested, are not n ecessarily to be treated as

applying a concept of intentional murder (consisting in the doing of an

act causing death with the intention to k i l l or to i n f l i c t grievous

bodily harm) in re lian ce upon a general, concept o f constructive intention ;

rath er, they are concerned with the application of an a lte rn ativ e and

independent head of reck less murder of the type re ferred to , for example,22by S ir James Stephen in h is Digest of the Criminal Law in 1877.

The fo resigh t of probable consequences te s t has a lso been resorted

to in the context of crim inal assau lt so as to ground l i a b i l i t y , though

again, without any necessary im plication that i t represents a general

concept: of extended intention which may be applied elsewhere in the23crim inal law. The English Court of Appeal has held in Venna (1975)

that the mental element fo r common a ssau lt , and thus of assau lt occasioning

actual bodily harm (the crime charged on th is occasion) could be s a t is f ie d

by proof that the defendant has done an act without d esirin g to hurt a

person, but foreseeing i t as "probable" or " l ik e ly " that a person would 24be hurt. The court viewed such behaviour as "re ck le ssn e ss", commenting

that there is "no reason-1 in logic or in law why a person who re ck le ss ly

applies physical force to the person of another should be outside of the25crim inal law of a s s a u lt ." The obvious ra t io of Venna, th erefo re , is

(22) And which consisted in the doing of an act causing death in the knowledge that death or grievous bodily harm w il l probably r e s u lt , although such knowledge is accompanied by in d ifferen ce to e ith er prospect or even by a wish that neither should re s u lt .

Stephen's views were referred to or c ite d , fo r example, by Lord Cross in Hyam v. DPP [l975] AC 55 at: 9 5 1; and in La Fontaine v . The Queen (1976) 136 CLR 62 at 68-9 (Barwick CJ) ; 75,7 (Gibbs J) ; 94 Jacobs J ) .

That reck less murder is a d iscrete head, or offence of common law murder was accepted for example, by Barwick CJ in La Fontaine v .The Queen at 68.

That these cases are to be read r e s t r ic t iv e ly was accepted by J .C . Smith in " 'In te n t ' - a Reply" [1978] Crim LR 14 , though contrast Judge Buzzard’ s view in "Intent" [l978] Crim LR 5, that Hyam v . DPP [1975] AC 55 could be construed more gen erally as contending fo r a concept of constructive intention.

For a discussion of the authorities in th is area see gen erally Lanham, "Murder, Recklessness and Grievous Bodily Harm" [1978]2 Crim LJ 255.

(23) [1975] 3 WLR 737.

(24) I d . , at 742. The words cited were used by the t r i a l judge.

I d . , at 743. See a lso the reference to Vallance v . The Queen (1961) 108 CLR 56 immediately above at pp,99--b»

(25)

99

that proof of reck lessn ess, in th is sense, w il l s u ff ic e as an

a lte rn ativ e to proving in ten tion , in the context of (at le a s t some)

crim inal a s s a u lt s , rather than that recklessness i s a form of

in tent on. The sig n ifican ce of th is d istin ctio n of course, i s that th is

reasoning may not be applicable to every offence of in ten tion , fo r not

a l l of these offences may in the a ltern ative be defined by reso rt to a

concept o f reck lessn ess.

26Thus in Mohan (1975) the English Court of Appeal held that in

order to be convicted of the common law offence of attempt (in this case,the attempted commission of an offence of wanton driving causing bodilyharm), the defendant must actually have intended the prohibited consequence.This was because attempt is an offence of intention. Thus, it wasincorrect for the trial judge in effect to have instructed a jury inrelation to this charge that where the mental element was concerned, itwould be sufficient if the Crown proved that the defendant knew orco rrectly foresaw that the consequences of his act unless interrupted

would be " l ik e ly " to cause the in flic t io n of bodily harm, or that he was

"re ck less" as to th is p o s s ib i l i t y , although he did not a c tu a lly want th is 2 7 2 8to happen. And in BeIfon (1976) the same court held that i t was

in correct for a t r i a l judge to in stru ct a jury that proof of a statutory

offence of wounding "with in ten t" to cause grievous bodily harm, would be

s a t is f ie d by proof that the defendant had foreseen that h is act of a ssau lt

would probably re su lt in the in f l ic t io n of grievous bodily harm. Both of

these cases a re , then, c le a r ly against the proposition that, the crim inal

law, in England at le a s t , knows a general concept of extended intention

in these term s, and likew ise repudiate the idea that a twin concept o f

recklessness w i l l s u ff ic e to supply me ns rea where an offence i s unambig­

uously defined as being one o f in tention .

Also o f relevance, in th is context, are decisions in both England and

A u stralia which have established that the crime o f rape, which is an offence

(26) [1975] 2 WLR 859.

(27) Icl. , at 8 6 2 ff.

(28) [1976] 3 A ll ER 46.

100

of intention, may be committed recklessly. This offence requires, mostobviously, that the man should intentionally have penetrated her knowingthat she has not consented. In the alternative, however, he also possessesthe mental element for rape where he deliberately has penetration of her"realis[ing] that she might not be consenting [but being determined] to

29have intercourse with her whether she was consenting or not." There is no indication in these decisions that the courts were relying upon a general concept of constructive intention. They are best viewed as confirming the more limited principle that the crime of rape may, in the alternative, be committed recklessly.

(c) An OverviewIn England authority is perhaps to be regarded as being against the

proposition that foresight or probable (but undesired) consequences amounts to constructive intention; and that rather, this state of mind is best viewed as amounting to recklessness, one which will suffice to establish mens rea in lieu of intention in certain, but not all offences of intention.

In Australia there have been a handful of judicial endorsements ofthe idea that the law knows a general concept of constructive intention

30in these terms, but in none of these cases was it the express basis of decision. Otherwise, the courts have chosen not to enunciate criminal liability by resort to a general concept of imputed intention.

It is concluded, therefore, that in the subject jurisdictions the concept of intention in the criminal law is primarily treated by the courts as being concerned with the situation where the defendant acts with the desire or purpose to bring about the criminal consequence. Moreover, it is logical to suppose that a foresight of this consequence as certain,

(29) Sperotto (1970) 92 WN (NSW) 223 at 226 (a decision of the Court of Criminal Appeal); though note that this decision has been overruled on another aspect of its reasoning by the same court in McEwa-n [1979] 1 NSWLR 926. The House of Lords reached a similar conclusion inDPP v Morgan [.1975] 2 All ER 347, the effect of which decision was codified in the Sexual Offences (Amendment) Act, 1976 (UK), s.l.

(30) I.e., in Stones (1955) 56 SR(NSW) 25, and in Vallance v. The Queen (1961) 108 CLR 56. See above at P^.9‘3-6,

101

or virtually certain to result from his act, although he does not desire this consequence, would be treated as equivalent to actual intention, and thus a sufficient mental element in respect of all offences of intention. This latter state of mind might be called constructive, or imputed intention, given that the defendant does not act with the literal purpose of effecting the given consequence.

The expression "intention" as employed in the following pages of this study will be understood as comprehending these latter two states of mind. When necessary they will be distinguished, i.e., as actual or constructive intention.

(2) Recklessness(a) In Genera,!

Recklessness, in ordinary usage as well as in the law, may beregarded as consisting in the taking of an unjustified risk. Inrequiring that the individual must be aware of this risk, it is to becontrasted with negligence, where this concept is regarded as being

31confined to inadvertent risk-taking. In the criminal law a person mayact recklessly in respect of circumstances, or consequences, or both.

«>(In practice a given instance of recklessness will often be describable in terms of either of these two heads, i.e., in the alternative.)

A person may be said to have acted recklessly in respect of circum­stances where he is aware that they may exist, though he does not actually know that they do.

He may be said to act recklessly in respect of a prohibitedconsequence where although he does not want it to happen, he does anact foreseeing that it will possibly result from this act, and, moreover,he acts without justification. His attitude to the happening of theprohibited event may be one of neutrality; alternatively, he may positively

32wish that it should not eventuate. What will distinguish his behaviour 31 32

(31) See the reference in Williams CLGP to recklessness as being "advertent negligence"; as opposed to "inadvertent negligence", at p.53.

(32) See for example the Australian High Court's decision in La Fontaine v. The Queen (1976) 136 CLR 62, where the Australian High Court confirmed a conviction for reckless murder at common law (see p. below). The trial judge had instructed the jury, inter alia that it was legally unimportant that the do fendant may have wanted to avoid killing V, provided that he acted recklessly m the sense required by the definition of: this offence. This conception of the crime was endorsed by the members of the court (see La Fontaine at 63 (Barwick CJ) , 74,9 (Gibbs J’> , 89 (Mason J) , 94ff., hlf, 10oTTo4 (Jacobs J) , though note that Jacobs J would have allowed the appeal on the basis that the trial judge's language in referring to this aspect of the crime was at one point significantly ambiguous: at 104.

as recklessness, in both situations, is that he acts in a way unjustified33by moral or social considerations. Where his act is of social value,

this factor must, it is supposed, at least counterbalance the potential for harm inherent in his risk-taking, having regard both to the degree

34of risk entailed in the conduct, and the nature of the threatened harm.

There is not of course, a general offence of recklessness in anycommon law system. Rather, there are different offences of recklessnessin any given system, each of which will possess its own elements; andthese offences v/ill differ, in part or in whole, according to the h a mwhich must be foreseen (and avoided) by the defendant, and the degree ofrecklessness with which he must act before incurring liability. Onewell-known example of an offence of recklessness is what might be calledreckless murder at common law. This offence is committed where thedefendant does an act causing death, while foreseeing at this time thathis act will probably cause death or grievous bodily ham, even as he

35does not intend that either of these consequences should happen. Thisoffence has been described generally as consisting in the causing of death

3 6by the doing of an act with reckless indifference to human life. Theusage of "indifference" is not to be construed literally, i.e., asrequiring that the defendant should have been neutral in his attitude to

37the foreseen ham. On the contrary, as it has just been noted, a person may be incriminated in respect of reckless murder even if he was adverse to the eventuation of this ham. In this context, "indifference" is instead 33 34 35 36 37

102

(33) See Jacobs J in La Fontaine, id.; and see Lanham, "Murder, Recklessness and Grievous Bodily Harm" ["l978l 2 Crim LJ 255 at 262ff, who like Jacobs J. explores this concept in relation to reckless murder.

(34) See generally Williams CLGP at p.58ff.

(35) See above at Pp.97-8#(36) See for example La Fontaine v. The Queen (1976) 136 CLR 62 at 94

(Jacobs J).

(37) 3 ee p . 101 above»

! 03

to be construed as requiring that the defendant should have actedwithout any such justification as would be sufficient to counterbalancethe potential for harm entailed in his risk-taking. Thus, one judgehas de cribed "reckless indifference to known consequences" asconsisting in "a wanton lack of any morally or socially acceptable

3 8aim, purpose or motive."" What is required, essentially, is that knowing his act was unjustified, and that death or grievous bodily harm was a probable outcome of this, he was nonetheless willing to expose the potential victim to this risk.

Another example of an offence of recklessness is afforded by anoffence of "reckless[ly]" damaging property, contained in an English

39statute. This has been interpreted as requiring that the defendantmust, at the time that he commits the act which causes damage, knowthat "there is some risk of damage ..." i.e., inherent in the performance

40of this act. The test of eventuality governing the relevant foresightof harm in this situation is of course, one of possibility, rather than"probability" as in the case of reckless murder, (the difference betweenthese two tests is commented upon below.) Similarly, the common lawoffence of rape (and its statutory equivalents) which, it has been seen

41above, may be committed recklessly, requires no more than that the defendant have realised that the woman might not have consented. In other words, it is sufficient that he have realised that she possibly had not consented, rather than that she probably had not.

(b) Some Specific IssuesTwo matters relevant to the concept of recklessness in the criminal

law are further commented upon: * 39 40 *

G8) Jacobs J in La Fontaine v. The Queen (1976) 136 CLR 62 at 98.

(39) Criminal Damage Act, 1971, (UK), s.l (1).

(40) See Briggs (Note) [1977] 1 WLR 605; Parker [l977] 1 WLR 600 at 604(CA) .

See p.QQ.(41)

104

(i) "Probable" Contrasted to "Possible" Foresight42As noted, some offences are so defined as to require that the

defendant foresee the eventuation of harm as being "probable" or "likely"43(the two may be treated as being synonymous ); while others may require

no more than that he foresee that this harm is "possible" (which ideamay be expressed in other comparable terms - for instance, foresight

44that he foresee that the given harm "might" happen). What in practical terms, is the distinction between these tests of eventuality? It would appear that the courts have in general been of the view that these expressions (i.e., "probable" and "possible") need not be defined in instructing a jury, and that accordingly, they may be treated as bearingthe same meaning as they have in everyday usage (i.e., they are not

45technical terms in the context of the criminal law) . Thus construed,these expressions, or their equivalents, are distinguishable. "Probability"is clearly a much stronger word than "possibility". In ordinary usage a"probable" (or "likely") event is, perhaps, one which is substantially

46likely to happen. (On an alternative view, "probability" could be 42 43 44 45 46

(42) Such as reckless murder at common law, and similarly, a variety of assaults which can be committed recklessly as well as intentionally: see above at p.97ff»

(43) See for example Brennan v. The King (1936) 55 CLR 253 at 264 (Dixon and Evatt JJ); La Fontaine v. The Queen (1961) 136 CLR 62 at 68( arwick CJ, who endorsed the trial judge's conception of reckless m lrder in his summing-up in which he referred to the need for the Crown to prove foresight that the relevant harm would "probably" or be "likely" to result from the appellant's act (at 63), with the remark that reckless murder requires that the individual act with the realisation that death or grievous bodily harm is "likely" ).t

(44) Of course, an offence of recklessness need not necessarily be definedin terms of either such test - other possibilities include for instance, a requirement that the harm have been foreseen as being "highly probable" to result. The usages of "probable" and "likely" on the one hand, and "possible" (or an equivalent statement) on the other are, however, predominant in this area of the law.

(45) It is apparent, for example, that the majority of the several members of the Australian High Court in La Fontaine v. The Queen (1976) 108 CLR 62, who considered that the relevant test of recklessness in this regard was one of a foresight of the "probability" of death or grievous bodily harm, were of the view that the meaning of "probable" or "likely" need not be elaborated to juries; or at least, they did not indicate a preference for any particular gloss on the word. Note, however, Jacob J's disapproval of the notion that the word could be explained in what amounted to percentage terms - at 99, 104. His comments on this matter are elaborated immediately below.

(46) For example, where it is said that "the train will probably be late again today;" or that "it will probably be hot today."

105

conceived as meaning "more likely than not", i.e., in terms of a "betterthan fifty percent chance" of eventuation. To instruct a jury in these

47terms would, it is submitted, be unrealistic. ) A "possible" event, however, is one that conceivably might happen; in everyday language its occurrence may at the minimum be seen as no more than an outsidechance (though strictly, of course, the term may be extended to denote

48both probable, and near certain risks). * 62

(47) See for example Jacobs J in La Fontaine v. The Queen (1976) 136 CLR62 at 99, 104, who considered that in instructing a jury as to the elements of reckless murder at common law, it was inappropriate for a trial judge to explain "probable" as meaning "odds on against", or as involving "a better than balanced" chance - though note, incidentally, that he would explain a "probable" outcome as meaning something other than a "substantial risk" (see below this page). Similarly, the High Court has declined to define "probable" in percentage, or equivalent terms, in construing sections 8 and 9 of the Queensland and Western Australian Criminal Codes, and sections 4 and 5 of the Tasmanian Criminal Code.

On the other hand, the Supreme Court of South Australia, in referring to reckless murder, conceived of a "probable" event as one which is more likely than not to occur (i.e., in percentage terms, as being more than fifty percent likely to occur (see p. below ); and the Supreme Court of Victoria (sitting as a Courtof Criminal Appeal) considered that "probable" as used in the definition of reckless murder at common law, required that the defendant have seen that the specified h a m was "more likely than not to eventuate, or that he have realised that the "odds were against" the victim escaping without at least suffering grievous bodily ham" (Sergi [1974] VR 1 at 10) .

To require a tribunal of fact to detemine whether or not an accused person foresaw an overt act as being more than fifty percent likely to happen would often be to set it in an impossible task. But an equally substantial objection to this conception of "probable" would be that accused persons would escape conviction where they should be convicted. See the example in Brett and Waller, Criminal Law, Cases and Texts (3 ed. Butterworths, Syd.) at p.228, of the man who plays Russian roulette with a sleeping baby, using a revolver with one bullet in the cylinder. The statistical chance of it firing is only 1/5 or 1/6, and yet there c in be little doubt that he would, and should, be convicted of reckless murder at common law. (See also Lanharn, "Murder, Recklessness and Grievous Bodily Ham" [1978] 2 Crim LJ 255 at 258, and note the authorities cited by the author at 258ff, on this general question of defining "probable" in the context of criminal recklessness).

Professor Lanharn would likewise characterise "probable foresight" in the murder context, as amounting to "foresight of ... substantial risk" (at p.269).

48. In the opinion of Jacobs J in La Fontaine v. The Queen (1976) 136 CLR 62, "to say that a man knows ... that a consequence of his act is possible though not probable is to say that he believes that the consequences will not happen or that he expects that it will not happen even though he would be prepared to concede that it may happen" (at 96).

106

In these terms then, a defendant who foresees an event as a "probable" result of his conduct, as opposed to the defendant who believes that its occurrence is a less than probable prospect, is clearly the more culpable. The first of them realises that there is a substantial risk that the consequence will eventuate, while the second of them realises, simply, that there is a "risk".

This disparity between these two concepts of recklessness will beaccentuated if "probable foresight" is defined more restrictively, asthe Victorian Supreme Court, (sitting as the Court of Criminal Appeal) would

49have done in Sergi (1974) , as would Jacobs J in the High Court decision50in La Fontaine v. The Queen (1976). The court said of reckless murder at

common law, adverting to the requirement of probable foresight, that itwould not be sufficient merely that the accused realised that he was"creating a substantial risk of death or grievous bodily harm"; rather, hewould need to have foreseen the specified harm as being "more likely thannot" to eventuate; or (similarly), he would need to have realised that "the

51odds were against" the harm not eventuating." Jacobs J endorsed thispassage, though with the qualifying comment that the test of "more likelythan not" or "odds against" ought not to bo used. He conceived "probable"foresight, in this context as denoting more than, simply, foresight of"subst mtial risk"; in his view, the probable foresight test requires that"the ac:cused must have had in his mind, must expect that the victim willsuffer death or serious bodily injury even though his mind is less than

52certain that this is so." In the view of one commentator, "probableforesight" in the mind of Jacobs J "seems to have meant something near to

53certainty." Thus, to Jacobs J.there was a significant difference betweenthe "probable" and "possible" foresight tests; for each required a state ofmind which was "very different in moral and social content" when compared

54to the other. 49 50 51 52 53 54

(49) [1974] VR 1.(50) (1976) 136 CLR 62.(51) Id. at 10.(52) La Fontaine v. The Queen (1976) 136 CLR 62 at 99.(53) Lanham, "Murder, Recklessness and Grievous Bodily Harm" (1978) 2 Crim

LJ 255 at p.260.(54) Id. at p .96.

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(ii) The Notion of JustificationAs noted, the idea that the actual element of risk-taking should have

been unjustified, is intrinsic to the concept of recklessness. Thus, aperson is not reckless for the purposes of the criminal law, if the moraland social utility of his act counterbalances the potential for harminherent in it. This principle would exonerate the transplant surgeon,who replaces V's heart. He realises that there is a risk that V willprobably die as a result of this operation, in that there is a substantial

55risk that his body will reject the transplant organ; on the other hand,it is apparent (and so believed by the surgeon) that V will certainly die

56very soon if his diseased heart is not replaced.

This aspect of recklessness has been little commented upon by thecriminal courts, in that the issue of justification has rarely been putin issue by the evidence in cases dealing with offences of recklessness.Doubtless this is because prosecutions have not been instigated in the(uncommon) case where what would otherwise amount to criminal risk-takinghas been redeemed by its, social utility. It would no doubt be difficultto define generally the matters which would constitute justification inall cases of risk-taking, having regard to the variety of quite differentoffences of recklessness. One conception of the element of justificationin the crime of reckless murder has it that a person acts without this whenhis conduct exhibits "a base, anti-social motive ... with wanton disregard

57for human life.” More generally (in a case dealing likewise with reckless murder) it has been said that a person acts with "reckless indifference to known consequences" (i.e., without justification) when he exhibits "a wanton 55 56 57

(55) Accepting that a "probable" event is one which is substantially likely to happen.

(56) See Hyam v. DPP [1975] AC 55 at 74; and the commentary in Lanham, "Murder, Recklessness and Grievous Bodily Harm" [1978] 2 Crim LJ 255 at 262-3.

(57) Traynon J. in People v. Thomas (1953) 261 P. 2d 1 at 7, cited approvingly by Jacobs J. in La Fontaine v. The Queen (1976) 13 CLR 62 at 98. And see Lanham, id. at 262ff.

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lack of any morally or socially acceptable aim, purpose or motive."Of course, purity of motivation simpliciter does not amount to a generaldefence in the criminal law, so that in addition to believing in thepropriety of his act, there can be no doubt that the risk-taking mustalso be socially or morally justifiable an objective view. In the wordsof Glanville Williams, "[o]ne must [also] ask whether in the circumstancesa reasonable man having such foresight would have proceeded with his

59conduct notwithstanding the risk."

(3) NegligenceIn the criminal law, a person may be said to act negligently in

respect of a prohibited event when he inadvertently causes it to happen, in circumstances where a reasonable person would have adverted to the element of risk and avoided engaging in the same risk-producing conduct.A person may likewise be negligent in respect of circumstances, where he does an act in ignorance of those circumstances the existence of which would be perceived or suspected by a reasonable man placed in the defendant's situation.^ In another equivalent formulation, it has been said that a person is negligent "if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise."^'

"Negligence" is, then, to be contrasted to "recklessness", as that concept has been described in (2) above, in that the defendant need not, where negligence is concerned, advert to the element of risk produced by his conduct. Rather, his behaviour is to be assessed solely upon an objective basis. 58 59 60 61

(58) Jacobs J. in La Fontaine, id.., at 98.

(59) CLGP at p.58.

(60) See Williams, CLGP at Chap. 9, TCL at p.69; Smith and Hogan at pp.54-5; Howard at p.370ff.

(61) British Law Commission, Working Paper No. 31 ("The Mental Element in Crime") (HMSO, Lond., 1970), Propositions 7B, C. And see the Model Penal Code, Proposed Official Draft, s.2.02(2) (d) , which is essentially similar, in confining the concept of negligence to objective rather than subjective departures from a prescribed£ andard of care.

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(4) Knowledge, or_AwarenessThe terms "knowledge" and "awareness" may be regarded as synonyms

which are used to refer to the situation where an individual possesses cognisance of a given set of facts. In the criminal law, they will usually be employed to denote actual knowledge, or awareness, though there is authority to the effect that in some contexts at least, a person may be deemed to have relevant knowledge in certain circuits tances, although he does not actually possess this. These cases have usually been concerned with the construction of statutory offences which either stipulate, or imply that the defendant, in order to incur liability, must act wi h a knowledge of certain relevant matters.

Thus, in the well-known statement by Devlin J in the King’s Bench6 2Divisional Court decision .in Roper v. Taylor's Central Garages Ltd. (1951)

The case of shutting eyes is actual knowledge in the eyes of the law; the case of merely neglecting to make enquiries is not knowledge at all -- it comes within the legal conception ofconstructive knowledge, a conception which, generally speaking,

63has no place m the criminal law.Devlin J was referring to the situation whore the defendant is put onenquiry as to the existence of certain facts by other facts which arefully known to him, and which are such, having regard to the overallsituation, as to insist that he should make enquiries as to the existenceof these relevant facts, notwithstanding which he deliberately refuses to

6 4undertake such enquiry. In Glennan (1970) the New South Wales Court of Criminal Appeal has said that in order to support a conviction for an offence the definition of which requires that the defendant have acted in the knowledge of relevant facts, it must be shown (at the minimum) that he

either knew or suspected the existence of facts which would constitute the commission of the offence or, perhaps, that he acted recklessly, not caring whether the facts existed or not.Mere failure to make an enquiry which, if made, would yield knowledge of an essential fact, is not in itself enough to constitute knowledge of the fact, for it is accepted that to

65act negligently does not make a person an aider and abettor. 62 63 64 65

(62) [l95l] 2 TLR 284.

(63) Id. at 288.

(64) [1970] 2 NSWLR 421.

(65) I_d. at 42 5, citing Cal, low v. Tills tone (1900) 83 TLR 11.Glennan are referred to at p.ibb below.

The facts in

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This situation has been referred to as one of "wilful blindness"; asimilar expression would be "wilful oversight." Other cases reflecting

6 7this concept of knowledge are referred to in the following chapter.

This type of knowledge is obviously very close to the notion of reck­lessness as to circumstances, as outlined in two above. While Devlin J was of the view, in Roper v. Taylor's Central Garages Ltd., above, that it should not be termed "constructive knowledge", taking the view, evidently, that it virtually amounted to actual knowledge, it is considered that this expression is a convenient one with which to denote this aspect of knowledge, and it will, accordingly, be used in the following pages. This is considered to be justified in that a reckless oversight of relevant facts in these terms does not amount strictly to actual knowledge, any more than does the reck­less causation of an (undesired) criminal consequence amount to the commission_ . . , , . . 6 8 of it with actual intention.

(5) An Offence of IntentionAn offence of intention may be regarded as being one, the definition of

69which requires that the defendant should intentionally commit or cause thecommission of the physical element in this offence, in the knowledge of those

. . 70circumstances which disclose the criminal nature of this event. 66 67 68 69 70

(66) Williams, CLGP, at p.l57ff., TCP, at p.84.

(67) See p.l6~5fT.And see other authorities referred to in Williams, CLGP at p.l57ff., TCL, 83ff.; Smith & Hogan at pp.102-3.

(68) While this term i.e., "constructive knowledge" will be used in this sense, it is to be emphasised that it is not intended, thereby to refer to the quite different concept of constructive knowledge in the civil law, whereby a person may be viewed as being knowledgeable of facts of which he could have become cognisant simply "if he had taken reasonable steps" (Williams, TCL, p.84). As outlined, the criminal counterpart of this concept is narrower, requiring for example a deliberate determination not to make enquiries where the known facts are such as to insist upon this, having regard to the overall circumstances.

(69) The meaning of this word in the criminal law context has been outlined under (1 ) above.

(70) Or in an alternative formulation, "in the knowledge of those facts which render the conduct illegal" (Lord Hailsham LC in Kamara v. DPP [l974] AC 104 at 119, talking of conspiracy at common law, which is an offence of intention).

It is to be noted, however, that although the defendant is required to have cognisance of these relevant facts, i.e., those which disclose the true (and criminal) character of the act effected by him, this does not of course mean that he must actually know that this conduct is prohibited by the criminal law, for ignorantia juris non excusat.

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Such offences have also been called offences of "full" mens rea orintention, to emphasise that unlike offences of negligence or of strictliability, the defendant is required to possess more than the rudimentaryintention simply to commit the physical element in the crime, or to commit

71the act which causes this event to take place.

(6) An Offence of RecklessnessAn offence of recklessness will be conceived as one of the definition

of which requires that the defendant must act recklessly (rather than intent:' anally) in the sense in which this latter word has been outlined under i2) above. Thus, he must consciously engage in risk-taking conduct which produces the criminal consequence, viz , his voluntary conduct must cause the specified harm to happen, and at the time of this conduct he must foresee that the consequence may thereby be caused to happen (subject in certain cases, to a stipulated test of eventuality), even as he does not intend that it should.

(7) An Offence of NegligenceAn offence of negligence will be conceived as one the definition of

which requires inadvertent negligence, or risk-taking on the part of the defendant, which negligent conduct produces a. criminal consequence the happening of which is not desired by the defendant (see under (3) above).

(8) An Offence of Strict LiabilityAn offence of strict liability (otherwise known as an offence of

strict responsibility, or as an absolute offence) will be conceived an an offence which while not being in form one of recklessness or of negligence, is so defined as to require no more than that the defendant should voluntarily commit (or cause the commission of) its physical element, even as he is unaware of any such surrounding circumstances as disclose that this consequence is criminal in nature. 71

(71) For a similar reason, offences of "intention" have been described asbeing offences of "specific" intention, as opposed to those of "basic" intention, such as offences of negligence and strict liability. See for example DPP v. Newbury [1976] 2 WLR 918 at 923, per Lord Salmon, who distinguished murder and manslaughter in these terms, remarking that an offence of "basic intent", such as manslaughter, requires no more than that the defendant have the intent to do the acts constituting the crime.

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(II) GENERAL PRINCIPLES OF ACCESSORIAL MENS REA

Having regard to the authorities, it is proposed that in general aperson may be regarded as possessing the mens rea required for anaccessory to a crime provided that when he commits an act of complicityhe (1) has knowledge of the principal's or prospective principal'sintention to commit the actus reus of the subject crime (or, where offences

72other than those of intention are concerned, that the principal at least possesses the intention to commit the act which causes the criminal consequence); and (2) he knows that his act conduces (in the sense of instigates, encourages or assists) the commission of this relevant act by the principal, or, where he acts in advance of the crime, that his (i.e., the accessory's) act has the potential to do this); and (3) he has the same degree of awareness as to the circumstances surrounding the commission of the actus reus which is required of the principal by the definition of the crime in order for this latter party to be incrimin­ated in it. (With the exception of absolute offences, as to which see Chapter Six.)

An exception to the first of these principles is encountered in the circumstances of what is called an instigation of crime as opposed to the encouraging or assisting of another to commit crime, i.e., where the accessory causes another who was initially without criminal intention or purp­ose to commit the crime. In this case,of course,the defendant is not requiredto have knowledge of the prospective principal’s intention,, because this would he logically impossible at the time of his act of instigation.

Moreover, it is to be noted that certain factors are formallyirrelevant to proof of mens rea in the accessory, though they may berelevant in evidentiary terms. Firstly, the accessory need not sharethe principal's intention to commit the actus reus of the crime (oralternatively, the act causing the actus reus), though in general his

* 73mental state must otherwise parallel that required of the principal. 72 73

(72) I.e., offences of recklessness, negligence and strict liability.

(73) See p.113ff

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The accessory may he .indifferent as to whether or not the principal . commits the crime - he may even dislike this possibility. Secondly, where the act of accessoryship is done in advance of the crime, the accessory need not have foresight of its commission according to a specific test of likelihood, such as probability or near certainty.It is enough that the accessory appreciates that the crime may possibly be transacted. (This requirement of foresight as to possibility is of course necessarily implied in the principles of mens rea stated in (1)- (3) above).

The issues associated with the element of accessorial mens reareferred to in (3) above (i.e., the secondary component in accessorial

74mens rea ), will be traversed in the next chapter. For the remainder of this chapter, the matters otherwise raised by this formulation of the mental state required of the accessory, will be analysed under several convenient headings.

(A) THE ACCESSORY NEED NOT SHARE THE PRINCIPAL'S INTENTION TO COMMIT THE CRIMINAL ACT

(1) The Principal's Position ConsideredThe principal must act with some element of intention, or purpose,

in respect of all crimes. Where an offence of intention is concerned, he must act with the intention of bringing about the prohibited consequence. Where offences of recklessness and negligence are concerned, he must voluntarily (i.e., intentionally) commit the act which causes the prohibited consequence to happen, although he is without the desire that this latter should eventuate. Where an offence of strict liability is concerned, he must, also intentionally perform the act which constitutes or causes the criminal consequence, even as he may be ignorant of those surrounding material circumstances which disclose its criminal nature

The principal's position in this respect may, then, be generalised in the proposition that he must at the minimum intentionally commit the actus reus or act causing this, in order to incur liability; and that some though not all crimes will require that he also possess a further element of intention, or awareness as to surrounding circumstances. 74

(74) See pp.90-?,1 12

114

In most com plicity cases perhaps, the accessory does have the same

crim inal in ten tion , or purpose as the p rin cip al in that, both of them

desire that the crime, or at le a s t , the physical conduct required by

i t s d e fin it io n , be committed. This does not n ecessarily involve that75they are in concert, however, though th is i s ty p ic a lly the s itu a tio n .

.An accessory may for example adopt the crim inal purpose of the p rin cip al

as h is own and encourage or f a c i l i t a t e the la t te r in i t s transaction ,

without there being such a reciprocation of assent as would constitute

a consensus between them. He may indeed in stig a te another to commit

an o ffen ce, without the la t te r becoming aware of the in st ig a tio n .

That the accessory need not act with the purpose or desire that thecrime, or alternatively, its physical elements, be committed has beenrecognised by the courts on numerous occasions. The decisions dealingwith the imposition of accessorial liability upon the person who suppliesgoods or information used by others in the transaction of crimeillustrate this situation. In these cases the purpose of the supplierhas been a limited one, such as to earn money, to gratify a friend, or

77to sal _sfv a client.

78Numerous other cases may be cited. In Benford v. Sims (1898) the Queen’s Bench Divisional Court held that the respondent veterin­arian had counselled the commission of an offence of cruelly ill-treating

79a horse by causing it to be worked in an unfit state m that he had examined a mare and issued a certificate that she was fit for work, knowing this to be untrue. The owner had subsequently worked the horse. The veterinarian was, it may be supposed, indifferent to this possibility

(75) See p p .8-9,11J f f .(76) See Attorney-General's Reference (No. 1 of 1975) [1975] QB 773. 77 78 79(77) E.g., Cook v. Stockwell (1915) 38 TLR 426 (supply by a brewer of

Ibeer to villagers, who subsequently sold it, though unlicensed, to a company of soldiers quartered in their village); Bainbridge [i960] 1QB 129 (supply of oxygen-cutting equipment subsequently used by thieves after breaking into a bank) ; see also Bullock [1955] .1 All ER 15, Pope v. Minton [.1954] Crirn LR 711.

In Baker (1909) 28 NZLR 536 the defendant was convicted of counselling safebreaking. He had instructed the prospective principal in a technique for blowing safes. He had been approached by the principal for this information and he (i.e., B) gave it gratuitously, for the principal Weis a friend.

The supply cases are discussed generally at p.2,16 ff. below.See also F. W. Woolworth Co. Ltd. (1975) 18 CCC (2d) 23 at 34

(Ontario CA, per Kelly JA).(78) [1898] 2 QB 641.(79) Contrary to s.2 of 12 & 13 Vic. c.92.

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even as he had certain foreknowledge of it. In Harding (1976) ~ itwas accepted by the Full Supreme Court of Victoria that if A pointsout another man to B at the latter's request, knowing of B's intentionto shoot this person, he is an accessory in the subsequent murder,although he had no personal desire to see the shooting occur and believedthat it would not occur because of some supervening event (for example,

81a change of heart by B) .

(2) The AccessoryThe accessory need not share in this aspect of the principal's

mental state; viz , he need not, when he commits his own act of complicity, possess the intention, or purpose that the principal should commit the physical conduct in the offence. He may be indifferent as to whether or not the principal is committing, or will commit the actus reus of this crime; or he may even be hostile to this commission, or the prospect of it.

On only two reported occasions have judges contended for a require­ment of criminal purpose in the accessory extending beyond the performanceof his inculpatory act. In the earlier of these two, i.e., Fretwell

82(1862) the Court for Crown Cases Reserved found it convenient to exonerate the appellant upon the basis of an absence of desire on his part that the person whom he had assisted to commit a crime should do this, so as to mitigate the harshness of the felony-murder rule. The appellant had supplied poison to a woman who had become pregnant by him, at her request and indeed under the influence of threats by her of self-destruction, in the knowledge that she intended to take it to procure an abortion. She had died from the effects of the poison.Erie CJ considered that it was crucial that the appellant "was unwilling that the woman should take the poison ... the facts ... are quite consistent with the supposition that he hoped and expected that she would 80 81 82

(80) [1976] VR 129.(81) See especially Gowans, and Nelson, JJ id_. at 160. For a case where

fie court upheld complicity without proof of motive and where (onc. le view at least, there was none) , see De Marny [.1907] 1 KB 388; and see also Lowery [1972] VR 560 at. 568 (Smith J) .

8o

(82) (1862) Le & Ca 161, 169 ER 1345.

1 1 6

change her mind and not resort to it." '' The circumstances were extreme, and had the charge not been a capital one it may well be that the court would not have seized upon the absence of an element of purpose, in the terms just outlined, as a basis for denying liability.

Mure r e c e n t l y , i n h i s d i s s e n t i n g j u d g m e n t i n t h e Q u e e n ' s B e n c h84Divisional Court decision in National-Coal Board v. Gamble (1959)

Slade J. considered that the words "encourage" and "assist" as used in defining aiding and abetting "necessarily import motive, i.e., purpose or object", so that a person would not be an aider unless the act of aiding "was done or made with a view to assisting or encouraging the principal offender to commit the offence . In this case, theaccessory clearly had no desire that the offence be committed but was rather, either indifferent to this possibility or reprobated it. Nonetheless, the court by majority upheld his conviction majority.

Prima facie, it would appear that the failure of the courts to require proof in the accessory of the same comprehensive purpose as is required of the principal for conviction, extends the scope of secondary liability beyond that countenanced in respect of the principal.

On the other hand, the accessory must, at the minimum, voluntarilyperform an act which encourages or assists the principal to commit, orcause the commission of the physical element in the crime, and he must

86know, moreover, that his act rs of this character.

This aspect of the accessory's mental state (i.e., the absence ofany requirement that he should act with the intention that the criminal

8 7act be committed) will be returned to later in this study. 83 84 85 86 87

(83) Id_. , at 164/1346. E’rle CJ distinguished Russell (1832) 1 Moody 356, 168 ER 1302. Martin B, Blackburn and Keating JJ concurred with the Chief Justice.

(84) [1959] 1 QB 11.(85) Id., at 25-26.(86) Though this is not to say that he must in all cases know that his

act conduces to the prohibited consequence, as distinct from any antecedent act done by the principal which causes this. This distinction is well illustrated in relation to crimes of negligence: See pp,118,15 7 -8 b e low•

(87) See Pp.475-7 below.

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(B) THE ACCESSORY MUST KNOW THAT THE PRINCIPAL INTENDS TO COMMIT THE CRIMINAL ACT, OR THE ACT CAUSING THIS EVENT

(1) PreliminaryWith the exception of those persons who instigate another to commit

a crime (as to which see under (5) below), the person sought to be incriminated as an accessory must at the time that he commits his act of complicity, know that the principal (or prospective principal) possesses the intention to commit, either presently or in the future, the act constituting the happening of the criminal consequence.

As noted elsewhere, the accessory in general is required, at the time of his act, to possess the same awareness of the material circum­stances surrounding the commission of the principal's act of incrimination,

88as is required of the principal by the definition of the crime. The only exception to this rule is constituted by absolute offences, which must in most of the subject jurisdictions, be treated as offences of intention, where the accessory is concerned.

Thus, this general ^requirement of knowledge by the accessory as to the principal's intention, may be stated more precisely, as follows, under the following headings: (1) Offences of Intention (which category includes, where the accessory is concerned, what are otherwise classified as offences of strict liability): Here the accessory must know at the time of his act of complicity, that the principal possesses the intention to commit the subject crime, i.e., that the principal intends to commit the phvsical element in the crime while knowing of those surrounding material circumstances which disclose its criminal nature; (2) Offences of recklessness: Here the accessory must know that the principal or prospective principal possesses the intention to commit the act which causes the criminal consequence, although this is undesired by the principal, and, moreover, that he (i.e., the principal) is committing or will commit it in the knowledge of those surrounding relevant circum­stances which disclose to him that this act is attended by a (specified) element of risk that the prohibited consequence will thereby result; 88

(8 8 ) S e e C h a p , 6

118

(3) Offences of negligence: Here the accessory is required to know no more than that the principal (or prospective principal) has the intention to commit the act constituting or causing the prohibited consequence, in those circumstances from which the inference of negligence may be drawn (even as neither the accessory nor principal actually draws this inference).

This requirement, that the accessory know that the principal intendsthe present or future commission of the criminal act, is an essential one,for otherwise his alleged act of complicity would usually be an innocentone. For example, A may s e l l B a gun in the ordinary course of h is

trade as a gunsmith, not re a lis in g that B wants to use i t in a robbery.

In most cases of accessoryship, no doubt, the defendant is either inconcert with the principal for the commission of the crime, or aids himwhile present at this commission, so that the need for this requirementto be s a t is f ie d has ra re ly preoccupied the appellate courts. Nonetheless

a large number of the decisions contain incidental reflections upon the89basic need for this type of knowledge m the accessory.

(2) The Scope of "Knowledge"The accessory may have actual knowledge at the relevant time, that

the principal has the intention to commit the criminal act, either 89

(89) See for example Bainbridge [i960] 1 QB 129 at 132ff, where the English Court of Criminal Appeal affirmed that in order to be liable for counselling an offence of office-breaking the appellant had to be shown to have contemplated that a felony of that kind was intended by the prospective principals at the time that he supplied them with equipment subsequently used in the office­breaking. And see generally Johnson v. Youden [l95o] 1 KB 544;Thomas v. Lindop [l95o] 1 All ER 966; Davies, Turner & Co. Ltd, v. Brodie [l954~j 3 All ER 283; DPP for N. Ireland v. Maxwell [l978X 3 All ER 1140 at 1144, 5 (Viscount Dilhorne); 1146 (Lord Hailsham) ; 1149 (lord Fraser); 1150, 1151 (Lord Seaman); ex parte Parker; re Brotherson [1957] SR (NSW) 326 at 330 (Owen J); Canty v. Ivers (1913) 19 ALR 403 at 405 (Hood J); Harding [1976] VR 129 at 137ff (Gowans J); 145ff (Nelson J); 159 ff (Murphy J); and Hoggan(1966) 3 CCC 1 at 5 (Johnson JA).The cases on the scope of the common purpose also illustrate the

requirement of knowledge, in emphasising that in order to be incriminated as an accessory to a crime counselled by his confederate in the execution of a joint purpose for another crime to which both of them are party, the defendant must have contemplated that his confederate wouli possibly commit this further crime: see Chap*7*

119

presently or in the future. However, as it has been noted earlier in•90 . . . .this chapter, there is also considerable criminal authority to the

effect that deliberate, or perhaps, reckless oversight as to the existence of material facts by a defendant, may be regarded as equivalent to actual knowledge in the defendant. This principle of what might be called "constructive" knowledge is applicable in that situation where the defendant is put on notice of the existence of these relevant facts by other facts which are actually known to him and which point strongly to the existence of the further facts; and, moreover, the known circum­stances are such as to insist upon enquiry by him which enquiry would, if instituted, reveal the further facts.

A number of decisions have unambiguously applied this concept in91respect of accessorial involvement m summary offences; the same

comment, however, cannot be made in respect of accessorial involvementin more serious offences. Nonetheless, some decisions of this lattertype may, on one view at least, be regarded as being consistent withtiie idea that an accessory who is not actually knowledgeable of theprincipal's possession of criminal intention, but who is constructivelyknowledgeable of it in terms which have been outlined, may be regardedas possessing such knowledge. (If this is so then this is one of theways in which a defendant may become incriminated as an accessory by

92virtue of what is in effect, recklessness on his part. ) These cases are, however, equally susceptible to another (and less radical) interpretation.

One such decision is that of the Queensland Court of Criminal Appeal 93in Mayberry (1973). On this occasion the court upheld the conviction

of one G for rape on the basis that he had aided one M to commit this offence. The Crown case was that G had restrained a girl with him from going to the aid of her friend, who was with M in a car in the scrub a short distance away, when the latter girl had screamed either before or during her raping by M. Though there was evidence to support knowledge by G of M's criminal purpose, the court accepted for the sake of argument that G may not have known definitely that M was planning to have inter­course with the girl irrespective of consent; in particular, G's liability 90 91 92 93

(90) See p.109.(91) See p.l6}fl\(92) An idea further referred to below(93) [ 973] Qd R 211.

1 2 0

was upheld independently of preplanning. On appeal G particularlydisputed the use of the word "might" in the trial judge's direction tothe jury that "[t]o be responsible an aider must know either whatoffence is being committed or at least what offence might be committed

95by the person he is aiding." Mr. Justice Hart accepted the formulationas being correct, remarking that "[w]hen a person does an act for thepurpose of enabling another person to commit an offence he very often

96can only know that the offence might be committed."

This remark is somewhat ambiguous. On one view it is certainly authority for the application of a principle of constructive knowledge in the context of alleged secondary participation in the most serious of crimes, with the result that the defendant need not actually know of the principal's possession of criminal intention. On the other hand, it may be that Mr. Justice Hart (and the trial judge before him) meant to affirm no more than that given that an accessory knows of the prospective principal's criminal purpose where he acts to assist the perpetrator in advance of the commission of the crime (or acts concurrently with this, though absent from it), he need not foresee that the principal will definitely enact his (known) preconceived criminal intention, but rather that it is sufficient that the accessory foresees simply that this is a possibility. This latter recognition would be unexceptionable, given that where the principal resolves definitely to commit a crime at some time in the future, this event may not eventually take place, given that there is always the possibility that some intervening event will frustrate the principal's plans (for that matter, he may simply change his mind). This aspect of the accessory's mental state is examined under (D) below.

It may be that further support for the application of a principle of constructive knowledge in the alleged accessory of the prospective principal's criminal intention is to be found in some of the decisions 94 95 96

(94) Td., at 216-17. G *s liability was evaluated pursuant to s.7 of the Queensland Criminal Code Act, 1899, which substantially imports common law complicity principles.

(95) Id., at 294.(96) Id. , at 294. See the decision at 228 also (Hanger CJ) ; 281, 285

(Skerman J) who, however, dissented on another ground).

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dealing with the doctrine of common purpose. According to thisdoctrine (which, i t i s proposed, does no more than re-express the

98basic principles of accessorial mens rea ) a person who agrees with another (or others) for the commission of a given crime or crimes, is liable for any other crime committed by his companion or companions in the course of the execution of this common purpose, in that situation where they had also agreed, expressly or tacitly, that this further crime should be committed, if the circumstances called for its commission. In its nature, therefore, the commission of this further crime will be subject to one or another contingent events.

To the extent that the commission of this further crime is a matter of tacit agreement, there is obvious scope for the application of a principle of constructive knowledge, where the alleged accessory's knowledge of his companion's (conditional) intention to commit it is concerned. If there is no definite discussion (or no proof of definite discussion) by them in respect of the (possible) commission of the future crime, there may not necessarily be actual knowledge on the part of the defendant, as to his companion's possession of the (conditional) intention to commit it, so much as the strongest suspicion of this.

Occasional formulations of the doctrine seemingly endorse a concept

of constructive knowledge in these terms. One such is found in the99Australian High Court case of Johns v . R. (1979). The appellant was

alleged to have agreed with two other men for the robbery of V. As

p art of th is agreement, he drove the two other men to V 's f l a t , knowing

that o e of them had a gun and knowing, moreover, that the la t te r was

quick-rempered. In fa c t the gun-man had shot and k il le d V. The appellant

was convicted as an accessory before the fa c t to murder. The t r i a l judge

instructed the jury in terms which seemingly assumed that given that th e ir

common purpose was robbery, and that one of h is confederates possessed a

gun, he did not have to have l i t e r a l knowledge that he was prepared to 97 98 99

97. See below at p . 1 3 6 ; and see generally Chap. 7#

98. See pP*182-3*99. [1979] 28 ALR 155 .

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shoot V, if provoked (he may for example, have had certain knowledge of no more than that his confederate intended to use the gun simply to fright n V). Thus, the judge told the jury, inter alia, that they should convict the appellant if they found that "the parties [i.e., including the appellant] must have had in mind the contingency that for the purpose of carrying [their joint enterprise] out or attempting to carry it out the firearm might be discharged and kill somebody." He further told them that if a party to the enterprise "must have been aware of such a possibility or contingency, then he is responsible for the death

These statements were approved by the High Court, which rejectedthe appellant's appeal against his conviction for murder. However, theHigh Court's conception of the ambit of the doctrine of common purposewas in somewhat different and less ambiguous terms. In the joint view ofMason, Murphy and Wilson JJ (citing with approval the words of Street C.J*in the New South Wales Court of Criminal Appeal's decision in this case),a person sought to be made liable as an accessory pursuant to the doctrineof common purpose incurs "criminal liability for an act which was withinthe contemplation of both himself and the principal in the first degreeas an act which might be done in the course of carrying out the primarycriminal intention - an act contemplated as a possible incident of theoriginally planned particular venture."^^ Here the stress on the elementof contingency in this type of situation (referring to "might" and"possibly") is, perhaps, directed rather more clearly to the expressionof the idea that granted that the defendant knows of his confederate'sconditional intention, it is enough that he (therefore) foresees thelatter's commission of the crime as a possible, rather than definiteoutcome of the execution of the common purpose, and not so much to theexpression of the quite different notion, that it is unimportant thatthe defendant may not have actual knowledge, in the first place, of hisconfederate's possession of this (conditional) intention. On the otherhand, their Honours did not thereby definitely exclude the possibilitythat constructive knowledge could be relied upon by the Crown so as to

102affect the defendant v/ith the relevant knowledge. 100 101 102

100. 103. , at p.157 (emphasis added).101. Ich , at p.173, citing Street CJ. in Johns (1978) 1 NSWLR 282 at 290.102. Johns is further referred to in Chap. "( at pp. 1 82,5 *6 >9 •

125

As noted, it is well-settled that a concept of constructiveknowledge may be relied upon to affect the accessory with knowledge ofthe principal's intention to commit the criminal act, in the context of

1 0 1regulatory offences. There is no reason in principle (or m fairness)why this approach should not also prevail in the context of serious indictable offences. Were it to be applied, the defendant would, in effect, often be incriminated by resort to a concept of recklessness (and to the extent that the courts have applied a principle of constructive knowledge, as in the context of the minor offences, they have, perhaps, resorted to the notion of reckless self-inculpation, even as they have not, so far as is known, evaluated accessorial liability in any case expressly in terms of recklessness). This matter will be returned to later.103 104 105 106

(5) How Detailed Must the Accessory's Knowledge as to the Principal'sCriminal Intention Be?_____________________________________________It may be allowed, therefore, that the accessory must have knowledge

of the principal's criminal intention. But it is evident that he need not know the precise criipe which the principal has in mind, in those circum­stances where he encourages or assists the prospective principal in

105of the crime. It is sufficient that the crime actually committed is ofthe same type as that which he had in contemplation, i.e., that his conception of the principal's criminal purpose closely approximates the reality. This was affirmed in the English case of Bainbridge (I960)100 where the English Court of Criminal Appeal upheld the appellant's conviction for counselling an offence of office-breaking. He had supplied oxygen-cutting equipment to persons who had jointly broken into a bank and stolen from it, using the equipment to do this. The prosecution had claimed that he had known that the perpetrators had planned to use it in a breaking offence. The court endorsed the trial judge's direction to the jury that it was sufficient if the appellant "knew that a felony of that kind [i.e., 'a breaking and entering ... and ... stealing ... from ... premises'] was intended ...M The knowledge that is required to be

(103) See p.163*(104) See pp.1 34 , 474ff.(105) And of course the same principles would govern the less common

situation where the defendant encourages or assists the principal concurrently with but while absent from the commission of the subject crime.

(106) [i960] 1 QB 129.

124

proved "is not the knowledge of the precise crime 106a He explainedthat by "precise crime" he meant that the defendant did not have to knowthe precise circumstances of the crime, such as for example, that theparticular branch of a particular bank was going to be broken into. Hisoverall remarks rrmrke clear, however, his view that it would not havemattered that the defendant believed that one breaking offence rather thananother was to be committed. On the other hand, he said that given thatthe perpetrators planned a breaking offence, it would not be sufficientfor conviction if the defendant had believed that the equipment was to

107be used for an offence of disposing of stolen property.

The Bainbridge principle, i.e., that the defendant, if he does notanticipate the "precise" crime to be committed, is liable as an accessoryprovid d that he knows the "kind" or type of crime to be committed, is adesirable one. Where the inexactitude in his knowledge pertains to amarginal difference in the circumstances of the commission of thecontemplated crime, it is an inescapable one in the criminal law. Forwhere the accessory acts in advance of the crime, it will often happen thathe does not, and indeed gannot, foresee the precise circumstances of its

108commission. Similarly where this inexactitude relates likewise tolegal category, in that situation where because of a marginal change in the circumstances of its perpetration by the principal, the act actually committed grounds liability for some offence other than that which would have been committed had the principal transacted the exact purpose originally in contemplation, the defendant ought not thereby be permitted to evade liability. In any given jurisdiction, after all, there will be, in certain areas, a number of cognate offences which are distinguishable only in marginal detail, and not in type.^^

(106a) Id., at 132.(107) Id., at 132-3.

The Bainbridge principle was endorsed in Australia by Lusher J. in Johns (1978) NSWLR 282 at 301.

in which the Bainbridge principle cannot be applied.(108) See also De Marny [1907] 1 KB 388, and Payne |l965] Grim LR 543, where

it was likewise recognised that it was unimportant that the alleged accessory need not foresee the precise circumstances of the crime's commission, where it is in substance the same as that contemplated.

See as well Patel Crim LR 274 which illustrates a situation

(109) For example, as noted above, there may be a number of more or less similar breaking and entering offences.

125

Bainbridge was approved by the Court of Criminal Appeal in NorthernIreland and the House of Lords, in their respective decisions in DPP for N .Ireland v. Maxwell (1978)^^, though it is apparent that on one view atleast, the issue of liability in this case was of a broader character, thanthat canvassed in Bainbridge. The appellant in Maxwell had been convictedas an accessory to two offences under the Explosive Substances Act, 1883,

111(UK). He had led several members of a terrorist organisation to an innknowing that they planned an attack upon these premises. In fact they hadattempted to blow up the inn, but failed in this objective. The trialjudge (who was also the tribunal of fact) found that while the appellantmay not have known what form the attack was going to take, he knew that"the means of the attack, be they bomb, bullet or incendiary device, were

„112present m that car. In the view of the Court of Criminal Appeal sucha finding amounted to one that the offences actually committed were within the defendant's contemplation. In such a situation, where the alleged accessory assists or encourages a prospective principal knowing that he intends to commit one or more of a number of definite crimes, he incurs liability for each such crime as is actually committed, for he "knows that the principal is committing or is about to commit one of a number of specified illegal acts and with that knowledge helps him todo so. „113

The House of Lords likewise dismissed the appellant's appeal. Two alternative bases of reasoning are discernible in their several opinions. Lord Hailsham LC indicated at one point that matters could be resolved simply by reference to the Bainbridge principle, in stating that "bullet, bomb or incendiary device, indeed most if not all types of terrorist violence would all constitute offences of the same 'type' within the * 111

(110) [1978] 3 All ER 1140 (HL); 1151 (CCA for N. Ireland).(111) T.e., doing an act with intent to cause an explosion by a bomb

(contrary to s.3(a); and possession of a bomb (contrary to s.3(b)).(112) id., at 1155.(113) Id., at 1162.

126

meaning of R. v. Bainbridge"; so that each such offence, (i .e. , those . associated with each of these different forms of attack) "were within the guilty knowledge of the appellant . And the fact that the principals had selected one rather than another or others of these alternative forms of attack did not impair his liability, for to reiterate, each of these "alternatives [was] within his contemplation."^^

Lord Scarman on the other hand, while approving Bainbridge, was ofthe view that the Court of Criminal Appeal in Northern Ireland had gone"further" in the present case than the Court of Criminal Appeal in Englandhad found it "necessary" to go in Bainbridge. In his view the evidencedid not establish that the appellant "knew the particular type of crimeintended." Rather, the Court of Criminal Appeal had grounded hisliability upon the basis that the appellant had "contemplate[d] thecommission of one (or more) of a number of crimes by the principal and[had] intentionally [lent] his assistance in order that such a crime[would] be committed." This principle, in Lord Scarman's words,“hasgreat merit. It directs attention to the state of mind of the accused:

not what he ought £0 have in contemplation, but what he did have. It avoids definition and classification, while ensuring that a man will not be convicted of aiding any offence his principal may commit, but. only one which is within his contemplation. He may have in contemplation only one offence, or several; and the several which he contemplates he may see as alternatives. An accessory who leaves it to his principal to choose is liable, provided always the choice is made from the range of offences from which the accessory contemplates the choice will be made.Although the court's formulation of the principle goes further than the earlier cases, it is a sound development of the law and in no way inconsistent with them. I accept it as good judge-made law in a field where there is no statute to offer guidance. H 5

Viscount Dilhorne similarly adhered to the broader approach reflected in Lord Scarman's opinion. Viscount Dilhorne said that in his opinion "liability as an aider and abettor should not depend upon categorisation,“ In this case the appellant had been properly convicted, because given his

(114) Id., at 1147.(115) Id., at 1151.

'he must haveknowledge of the particular terrorist group's activities, " known that [their attack] would involve the use of a bomb or shooting or the use of incendiary devices. Knowing that he led them there and soaided and abetted whichever of these forms the attack took."^"^ Lord„ , . . ., 117Fraser s analysis was similar.

This broader analysis thus revealed in Maxwell is unexceptional,and indeed, as the facts there illustrate, a necessary one in the law.It is unexceptional in being consistent with decisions in other contextsconcerning accomplices. An essential aspect of it is the recognitionthat at common law, where the accessory acts in advance of the crime, heneed not foresee the commission of this crime as being more than merelypossible. This matter is referred to under (D) below. As well, thefact that the defendant does not know with certainty, just which ofseveral possible offences will eventually be committed, but merely thatone or another of them will be, does not diminish his culpability. AsLord Fraser noted of the appellant in Maxwell, the "possible extent ofhis guilt was limited to the range of crimes any of which he must have

118known were to be expected that night."

The application of the Maxwell principle should not involve that hewill be liable for any crime at all which is committed by the person whomhe assists or encourages. As Lord Scarman noted, the principle "ensure[s]that a man will not be convicted of aiding and abetting any offence hisprincipal may commit, but only one which is within his contemplation."Conceivably he may become liable for any crime at all which is committedby the principal, but this would be rare. As the Court of Criminal Appealin Northern Ireland said, "[t]he relevant crime must be within thecontemplation of the accomplice and only exceptionally would evidence befound to support the allegation that the accomplice had given the principal

119a completely blank cheque."

(116) Id., at 1145.(117) Id., at 1148ff. Lord Edmund-Davies simply endorsed the judgement of

the judgement of the Court of Criminal Appeal for N. Ireland.(118) Id., at 1150.(119) Id., at 1162.

128

(4) Where the Principal Deliberately Departs from the Purpose in theAlleged Accessory's Contemplation_________ _______________________

120Notwithstanding the recognition in Bainbridge (1960) (see ante) that the alleged accessory need not know the precise circumstances in which the prospective principal will act in order to be incriminated, this does not mean that in every case where the principal commits a crime of the same kind as that in contemplation, the alleged accessory will necessarily incur liability. Rather, where the principal deliberately allows the crime to take effect upon a victim other than the person specifically in the mutual contemplation of the principal and the alleged accessory at the time of the latter's act of complicity, and, moreover, the matter of identity is a material one, the latter in general will not incur liability. In this circumstance the principal may be regarded as doing an act foreign to any common purpose subsisting between the two of them; or, if there is no such purpose, then he may be regarded as doing an act beyond the accessory's contemplation. He will, in fact, be viewed here as committing an independent act, for which he alone is liable. This topic will be dealt with later in this chapter.

( ) An Exception to the Requirement, of KnowledgeA person who while possessing criminal purpose himself, instigates or

encourages another person without this purpose to commit a crime, cannot logically be required to have knowledge of the prospective principal's mental state at the time of this act of instigation or other encouragement. This is because ex hypothesi the prospective principal does not have it at this earlier time; and the accessory may indeed only become aware that the principal has intention at the time when the latter actually commits it -

121aor even afterwards, where the accessory is not present at this commission In such a circumstance the would-be accessory acts at his peril. Note, however, the qualification referred to under the preceding paragraph.

(120) [i960] 1 QB 129.(121) See p. 1 36ff.(121a) See Attorney-General's Reference (No. 1 of 1975) [l975] QB 773.

(C) THE ACCESSORY MUST KNOW THAT HIS ACT DOES OR WILL CONDUCE TO THE COMMISSION OF THE PHYSICAL ELEMENT IN THE SUBJECT OFFENCE (OR THE ACT CAUSING THIS)

(1) Offences of IntentionThe authorities clearly establish that before a person may be

regarded as possessing the mens rea appropriate to an accessory, he must, where offences of intention are concerned, have been aware at the time of perpetrating his act of complicity that it either did or would have the potential to conduce to the commission of this offence. In other words, it is not sufficient merely that he performs an act which is on an objective view of this character, if he does not know this himself - even as he may be aware of the criminal intention of a prospective or actual principal.

This issue will arise infrequently. Illustrations in the reportsinclude cases where the prosecution has sought to make liable asaccessories persons who were on one view of the evidence, merely passivespectators to the commission of a crime. One such is the decision of the

122English Court of Criminal Appeal in Clarkson (1971) where the prosecution case against two of the appellants was that they had aided and abetted a series of rapes by passively standing by and thereby giving encourage­ment to the principals. The court held that it was not enough merely to show in such a situation that the presence of the alleged accessory had in fact given encouragement to the rapers or encouraged the victim; it hadto be "proved that each of the accused intended to give encouragement;

123that he wilfully encouraged." This would necessarily have involved afinding that he appreciated that his act was actually conducive to the

124crime.

(2) Offences of Recklessness and NegligenceIt is assumed that a modified version of this principle of knowledge

outlined immediately above in relation to offences of intention, is to be applied to offences of recklessness and negligence. The result would be

(122) [l97l] 3 All ER 344.(123) Id., at 347.(124) See also Coney (1882) 8 QB 534 at 557-558 (Hawkins J.). The

incrimination of a witness to crime as an accessory is discussed at p. 296ff.

130

that the defendant sought to be made liable as an accessory must at the minimum be aware that his act conduces to the present or future performance of the risk-producing conduct by the principal. This is not to say, however, that a person who is sought to be incriminated as an accessory to an offence of negligence (as opposed to one of recklessness) must have known that this conduct on the part of the principal actually was producing (or would produce) the relevant risk. As it is noted elsewhere, neither principal nor accessory need act with an awareness of risk, where offences of negligence are concerned.

(3) Offences of strict liabilityWhere the accessory is concerned, offences of strict liability are

in most of the subject jurisdictions to be treated as though they are offences of intention. Accordingly the comments under (1) above apply.

(D) THE ACCESSORY NEED NOT FORESEE THE COMMISSION OF THE CRIME AS BEING "PROBABLE" OR AS "CERTAIN"

At common law, the courts have not soiaght to limit the ambit of accessorial liability in that situation where he acts in advance of the crime, by requiring foresight on his part of the commission of this crime (or, where the offence is one of recklessness, or negligence, the perpetr­ation of the risk-taking act), subject to a more demanding test of eventuality, such as certainty, or probability. Rather, it is clearlysufficient that the defendant should foresee the commission of the crime

2 2 5(or risk-taking conduct) as being no more than a possibility.

ery occasionally, however, the incautious language of foresightas to probability has cre£>t into the decisions. For example, in the

127English case Pridmore (1913) the trial judge told the jury that before they could convict P of aiding another to shoot with intent to murder, in circumstances when he had been engaged with the principal in the joint

(125) See pp .118,1(126) For a discussion of the difference between the foresight of a

consequence as being "probable" as opposed to foresight of it as "possible", see above at p.l04ff.

(127) (1913) 8 Grim App R 198.

131

commission of an offence of poaching in the course of which his companiondischarged the gun, it had to be demonstrated (assuming that there hadbeen no preconcert) that "the nature of the enterprise was such that both

128must have realised that resistance at all costs was likely to happen."

The Court of Criminal Appeal was critical of this passage, givenits tendency to detract from the requirement that the prosecution provethat a person in the appellant's situation had in fact contemplated thatit might be necessary for one of his companions to use a gun to resistarrest. (As it happened the Court of Criminal Appeal considered thatproof of this mental state would necessarily have involved proof thatthe appellant had resolved with the principal to employ the gun should

129this be necessary.)

The trial judge's direction in Pridmore neatly illustrates, as the Court of Criminal Appeal confirmed, how the employment of a phrase such as that used can work against the defendant's interests by declaring him to be liable as an accessory to the crime committed incidentally by his confederate during the cpmmission of another crime to which both are admittedly party, on the basis of an objective test of eventuality, notwithstanding that the law requires proof that he actually contemplate the commission of the act constituting the crime, or the act causing this to happen, as a basis of such liability. But in other circumstances the use of the language of probable (or near certain) foresight could work decisively in the alleged accessory's favour. If the prosecution was to be required to prove that he foresaw at the time when he knowingly encouraged or assisted the prospective principal that the latter was "probably" or "almost certainly" going to commit the crime in the future, then accessory convictions would be rather less frequent.

(128) Id., at 202.(129) Id . , at 202-3. The court upheld the conviction, however, considering

that on a total view the trial judge's summing-up was adequate.And see the S.A. Supreme Court's decision in Slater [l922] SASR

494 at 500 (per Poole J.) for a similar remark that "it must be established that the parties ought to have known that it was not improbable that the particular thing that was done in execution of the unlawful object would be done...".

132

The courts have on many occasions recognised that the accessorywho acts in advance of the crime need foresee its commission (or strictly,the commission of its physical element, or of the act causing this) onlyas possible, rather than as probable, or nearly, certain. In for example,

130Harding (1976) the Full Supreme Court of Victoria accepted thatprovided that H knew of the principal's declared intention to shoot a man,and that H knowingly did an act to facilitate this, it was unimportant thathe might have believed that the shooting would not ultimately take placebecause the principal would change his mind or for some other reason. He

131was held to have been properly convicted as an accessory to murder.

The cases dealing with the doctrine of common purpose are a fruitfulsource of incidental confirmations of the principle. A typical such case

132is that of Johns v. R. (1979) where the High Court (and before it the133New South Wales Court of Criminal Appeal ) disapproved the appellant's

contention that he could only be convicted of a murder committed during134the course of a joint robbery which he had assisted if he was proven

to have foreseen this robbery as a "probable" consequence of the execution of the robbery. On the fcontrary it was held, it was sufficient for conviction if a person in the appellant's position had, in common with the principal, contemplated that this crime "might be done in the course of carrying out the primary criminal intention [i.e., that it was] an actcontemplated as a possible incident of the originally planned particular

„135 . 136ventiire. Numerous like cases may be cited. Typically these cases

(130) [1976] VR 129.(131) Id_. , at 139 (Gowans J.), 145 (Nelson J.) , 159 (Murphy J.).

And see Hart J.'s comment in Mayberry [1973] Qd R 211 at 294, that "[w]hen a person does an act for the purpose of enabling another person to commit an offence he very often can only know that the offence might be committed." (And see Mayberry at 228 (Hanger CJ), and 281, 285 (Skerman J., who, however, dissented on another groimd).) But note that Hart J.'s remark is open to another interpretation, given the fact situation in this case - see pp.81-82 above.

(132) (1979) 28 ALR 155.(133) Johns [1978] 1 NSWLR 282.(134) In this case, by driving the principals to the address of their

victim.(135) Street CJ in Johns (1978) 1 NSWLR 282, as cited with approve], by

Mason, Murphy and Wilson JJ. in Johns v. R. (1979) 28 ALR 155 at 173.(136) See generally Chap. 7.

133

have concerned the use of violence against persons who have sought tointerfere with the commission of the crime which the defendant and hisconfederate/s have expressly undertaken to commit. The courts haveemployed a variety of formulae in charging juries which take account ofthe element of contingency governing the commission of the crime; forexample, it has been said that before the alleged accessory may beconvicted of murder it must be shown that he had "resolved with theprincipal to resist at all hazards, if necessary," any interference withthem in the execution of the crime directly in contemplation, or thatthey had resolved to resist interference with their plan with "as much

137force as they found necessary."

Is this approach to accessorial liability a reasonable one? Thatthe accessory who acts in advance of the principal need foresee onlythat the commission of the crime is a possible event clearly permitshis incrimination upon the basis of recklessness on his part, inrespect of crimes which in certain cases(i.e, crimes of intention)probably cannot be committed by the principal upon such a basis. Evenwhere crimes of intention can, in the alternative, be committed by areckless, as opposed to purposive principal, this party’s recklessnesswill i sually need to be of a high order. In such cases he willtypically be required to foresee the happening of the prohibited

13 8consequence as a probable rather than merely possible event.This is one of the ways in which an accessory's basis of liability may,perhaps, be viewed as being of a more expansive character, vis-a-visthat of the principal. The question of recklessness as a basis ofaccessorial liability is further referred to below, in this chapter

139and in Chapter 16.

(137) For these or very similar expressions see the cases cited at p.137 n.?4»(138) See for example the discussion of reckless murder at common law,

at p.8.(139) See Pp.4^fi\ ,474ff . ,466 .

134

(III) FURTHER ASPECTS OF THE GENERAL PART OF ACCESSORIAL MENS REA

(A) ACCESSORIAL LIABILITY AND THE CONCEPT OF RECKLESSNESS

It is proposed to confine the following remarks as to the issue of accessorial incrimination on the basis of recklessness, to the situation of an offence of intention; though as will be apparent, they could be applied to offences of recklessness and even of negligence, subject to appropriate qualifications.

The person who performs an act of criminal complicity with the intention that a prospective principal should thereafter commit the subject crime, is not, it is submitted, to be viewed as becoming incriminated as an accessory upon the basis of recklessness, even as there will always be some doubt at the time that he acts, as to whether or not the crime will eventually be committed. (For example, the prosp­ective principal may change his mind about committing the crime; or circumstances may change, and make it impossible to commit the crime.)

But the person sought to be made liable as an accessory need not act with the intention that the crime should be committed. It is sufficient for accessorial liability, so it has been seen, that (at the minimum) the defendant should, while possessing knowledge (which concept may include a narrow concept of constructive knowledge) of the principal's intention to commit the criminal consequence, or acts causing this, voluntarily to do an act which he knows has the potential to conduce to the principal's commission of this criminal act. Alternatively, where he acts in such a way as to instigate a crime, it is sufficient that herealises that his act has the potential to cause another to commit a

140crime.

The non-purposive accessory (i.e., the person who does not act with the intention that the criminal act be committed) may conceivably be viewed as being incriminated by resort to a general concept of criminal recklessness in at least three different ways:

(140) The person who instigates a crime knowing that his act is of this character will, no doubt, usually act with the intention that it will be committed, but he will not necessarily have this intention.

135

(1) Where he encourages or assists a prospective principal (i.e., •rather than instigates him) to commit a crime, he may not have actual knowledge that the principal plans to commit this crime. It is, so it has been seen, likely to be sufficient in all cases that he has, at the relevant time, strong reason for suspecting that this is so, and deliberately refrains from making enquiries to confirm this, where the circumstances are such as to insist that he do this.(2) As well (although there appears to be no authority), it is logical to suppose that the same concept of constructive knowledge may be applied so as to permit the attribution to the defendant of knowledge that his act has the potential to conduce to the crime. This latter issue has not been expressly dealt with by the courts doubtless because of the relatively vague terms in which this requirement as to liability must necessarily be defined; very often after all, the defendant will never know for sure that his act encourages or assists the principal or prospective principal - he can only believe that this is so, in the sense of appreciating that his act has this potential.(3) Finally, the alleged accessory who acts in advance of the crime (whether he does an act Which is of the character of instigation, encouragement or assistance) can never be sure that the principal will eventually go on and commit the crime. The prospective principal's resolve, for example, may weaken; or a change in circumstances may make the crime difficult or impossible to cornmi t„ It is because of this want of certainty, it has just been seen under the preceding heading (i.e., 11(D)) that the courts have held that the accessory in this situation need do no more than foresee the future commission of the subject crime as a mere possibility.

It is this latter aspect of the accessory's mental element whichmost clearly distinguishes him from the principal in the context ofoffenc s of intention. In effect it is enough for incrimination thatthe accessory does an act of facilitative significance, foreseeing nomore than that the commission of the crime is a possibility - even aslight one. In contrast, where the principal can be incriminated inwhat otherwise would be considered to be an offence of intention, byvirtue of conscious risk-takinq, or recklessness on his part, it isperhaps most usually true that he must foresee that the (undesired)

141harm is, at the minimum, a probable outcome of his behaviour.

(141) The difference between "possible" and "probable" foresight of a given criminal consequence is discussed at p.

See generally at p.97^»on offences of intention which m?iy, in the alternative, be committed recklessly.

136

Prima facie this disparity between respective mens rea requirementsleaves the accessory in an anomalous position; or at least, it extendshis liability beyond the scope of that countenanced by the courts wherethe principal is concerned. As to whether or not the accessory'smental state should, therefore, be redefined in more restrictive terms,which advert expressly to the idea of risk-taking, will be considered

142in the final chapter of this study.

(B) THE DOCTRINE OF COMMON PURPOSE

In certain fact situations accessorial liability has been evaluatedby reference to the doctrine of common purpose. This matter is discussed

143later m this study. For the moment, it is to be observed that thedoctrine is fully consistent with the general principles of accessorialmens rea outlined in this chapter, and merely re-expresses them in a

144different way.

(C) WHERE THE PRINCIPAL DELIBERATELY, ACCIDENTALLY OR MISTAKENLY DEPARTS FROM THE CRIMINAL PURPOSE IN THE CONTEMPLATION OF THE ACCESSORY

There is little authority in the subject jurisdictions dealing with the liability of the putative accessory who commits an act of complicity knowing that the prospective principal plans to commit an offence in certain circumstances (they may or may not be in concert), only to see the principal go on and deliberately, accidentally or mistakenly depart from this preconceived purpose. These situations will be discussed in turn, in the light of common law principle, following which certain relevant statutory provisions in the Australian Code States and in New Zealand, will be referred to. It will be assumed in the following discussion that an offence of intention is contemplated, and that one is committed.

(1) At Common Law

(a) Where the Principal Deliberately Departs from the Contemplated Purpose________ ________ ___ ________ _____________________________Prima facie, the person who instigates, encourages or assists another

to commit a given crime in advance of this crime will not be liable where

(142) See p..j86ff\(143) See Chap. 7#(144) See p. 18?ff •

137

this latter goes on and deliberately commits another crime. This will be because, at one extreme at least, the crime? actually committed is wholly disconnected from the would-be accessory's conduct, and represents, rather, the independent act of the principal for which he alone is responsible.

But there may be a closer affinity between the conduct of the alleged accessory (who will henceforth be referred to as the defendant) and the crime actually committed by the principal. For instance, the principal may commit the same offence as that contemplated by the defendant, but against a victim not in the defendant's contemplation; or the principal may commit another offence altogether, whether in addition to or in lieu of the contemplated offence; or the principal may commit the contemplated offence against the contemplated victim, but the circumstances of its commission may otherwise vary (for example, it may be committed at a different time or place, or the physical mode of its commission may differ in some respect). These instances of deliberate variation from the jointly contemplated purpose are not of course exhaustive of all the possibilities, but they are it is felt, representative of them.

It. is suggested that the problems of liability in these types of situation may be resolved by resort to the general principles of accessorial liability outlined in this and the preceding chapter. To reiterate, generally speaking the defendant, in order to be incriminated as an accessory to an offence of intention, must (1) have committed an act which instigates, encourages or assists the commission of the subject offence; and (2) he must know both that his act is of this character and further, that (except where he instigates a person who is, initially without criminal resolution) the principal is committing, or proposes to commit this offence. In short, he must consciously perform a promotional or facilitative act in the knowledge that the principal is committing, or in the contemplation that he will commit the subject offence.(i) The Principal Commits the Same Offence Against a Different Victim

The hypothesis referred to in this heading is that the defendant commits an act of ccmplicity (whether of instigation, encouragement or assistance) in the contemplation that the prospective principal will commit a given offence against a specified victim; and that the principal thereupon commits this offence, but deliberately chooses a different victim. In this situation, it is submitted, the defendant is not liable as an accessory. His act of complicity is directed towards the promotion

158

or facilitation of the offence in circumstances which in one respect ‘atleast (i.e., the identity of the victim) are substantially different; andfurther, the offence committed is in turn different to that contemplatedin one vital circumstance- The leading authority here is Saunders (or

145Saunders and Archer) (1576). On this occasion A confided to B hisdesire to murder his (A's) wife, whereupon B advised him to give her apoisoned apple. A did so, but in his presence and thus to his knowledgeshe handed the apple to their daugher. Rather than betray his purpose,he watched the child eat it, of which she died. A was convicted ofmurder, but the judges exonerated B of accessorial liability. Byimplication, this was because the criminal purpose in his contemplationwas confined to the specific object of the murder of A's wife, not anotherperson. Through his deliberate failure to intervene and to remove theapple from the child, A in effect wilfully committed an independent

146murdei not in B's contemplation. This decision has been criticised.Glanville Williams for example, regards the facts in it as disclosing"an involuntary miscarriage of the plan rather than of a deliberate

147change of victim." This conclusion as to the facts has not gone148unchallenged, but it is thought that the general principle apparently

contended for in it (i.e., that a deliberate choice by the principal to depart from the purpose in the defendant's contemplation, so that the * S.

(145) (1576) 2 Plow 473; 75 ER 706.(146) A case the facts in which parallel those of Saunders id. , is the

S. African decision of Longone (1938) AD 532. The defendant had instructed X to place poison in the drinking water in the hut usually occupied by Y , in order to kill Y. X did this, but subsequently realised that the hut was presently occupied by Z. X failed to intervene, Z drank the water and died. The Appellate Division exonerated the defendant of liability for murder upon the basis that he could have been incriminated if it could have been said that he should reasonably have foreseen as likely the poisoning of Z. This case would be inapplicable, as a statement of common law principle, in the subject jurisdictions, where it has beenconfirmed that liability is not to be imposed upon an alleged accessory upon the basis simply that the commission of the crime was the object­ively probable consequence (or for that matter, objectively possible consequence) of his act of complicity (see above at p.^50))»This objective foresight of consequences test was first suggested by Foster in his Crown Pleas (1809) at p.370 (see below at p. 185 ) •

Longone is discussed in Lanham, "Accomplices and Transferred Malice" (1980) 96 LQR 110 at 113.

(147) Williams, CLGP at p.403; and see also Lanham, id_. , especially at n . 34.

(148) See for example Ashworth "Transferred Malice and Punishment for Unforeseen Consequences", in Glazebrook (ed) Reshaping the Criminal Law (Stevens, Lond., 1978) at p.81.

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c rim e i s com m itted a g a i n s t a v ic t im o th e r th a n t h a t s p e c i f i c a l l y in th e149d e f e n d a n t 's c o n te m p la tio n ) i s a r e a s o n a b le o n e . P r o f e s s o r s S m ith and

H ogan, i n t h e i r C r im in a l Law, s e e S au n d ers a s b e in g " in i t s r e s u l t a tl e a s t " c o n s i s t e n t w i th th e g e n e r a l n o t io n t h a t w here th e p r i n c i p a ld e l i b e r a t e l y d e p a r t s from th e p la n c o n te m p la te d by th e d e f e n d a n t (anda l l e g e d a c c e s s o ry ) in r e s p e c t o f a " m a te r i a l ly d i f f e r e n t " c i r c u m s ta n c e ,a l th o u g h th e same c r im e , l e g a l l y s p e a k in g , i s co m m itte d , th e n th ed e f e n d a n t i s n o t in c r im in a te d as a se c o n d a ry o f f e n d e r ; and th e y e n d o rs e

150t h i s r e s u l t a s b e in g "sound in p r i n c i p l e . "

I t i s n o t to b e su p p o se d , how ever, t h a t th e d e f e n d a n t w i l l e sc a p e l i a b i l i t y i n e v e ry s i t u a t i o n w here th e p r i n c i p a l d e p a r t s from th e p la n and com m its a c rim e o f th e same ( l e g a l ) ty p e as t h a t in c o n te m p la t io n , a g a i n s t a d i f f e r e n t v i c t im . He w i l l in c u r l i a b i l i t y , l o g i c a l l y , when th e i d e n t i t y o f th e v ic t im i s n o t a m a t e r i a l l y s i g n i f i c a n t a s p e c t o f th e p la n i n c o n te m p la t io n by th e p r o s p e c t iv e p r i n c i p a l and a c c e s s o r y .

T h u s, f o r e x am p le , th e p r o s p e c t iv e p r i n c i p a l and a c c e s s o ry may c o n te m p la te t h a t th e l a t t e r w i l l b re a k in to bank A, and s t e a l from i t , f o r th e p u rp o se o f f i n a n c i a l g a in . I t may, h ow ever, be i n s i g n i f i c a n t t o th e a c c e s s o r y , a s to w h e th e r o r n o t th e p r i n c i p a l a c t u a l l y b re a k s i n t o bank B, o r f o r t h a t m a t t e r , some o th e r bank ( o r in d e e d , p re m is e s o th e r th a n th o s e o c c u p ie d by a b a n k ) , in o rd e r t o s t e a l . In f a c t th e p r i n c i >al may b re a k and e n t e r bank B, and s t e a l from i t . In t h i s s i t u a t i o n , i t i s zhough t, th e a c c e s s o r y w i l l in c u r l i a b i l i t y n o n e th e l e s s .

Where th e a c c e s s o r y a c t u a l l y c o n te m p la te d t h a t th e p r o s p e c t iv ep r i n c i p a l m ig h t b re a k i n t o scxne o th e r p r e m is e s , a t th e tim e t h a t hei n s t i g a t e d th e p r i n c i p a l , o r o th e rw is e e n co u rag ed o r a s s i s t e d h im , c l e a r l yt h e r e i s no o b s t a c l e to h i s c o n v ic t io n . B ut ev en w here he d id n o te x p r e s s ly c o n te m p la te t h i s , i t i s c o n s id e re d t h a t he may b e c o n v ic te d .S u p p o r t f o r t h i s p r o p o s i t i o n may be d e r iv e d from th e d e c i s io n o f th e

151E n g l is h C o u rt o f C r im in a l A ppeal in B a m b r id g e (1960). The f a c t s i n B a in b r id g e w ere n o t o f c o u rs e i d e n t i c a l to t h i s p r e s e n t s i t u a t i o n , in

(149) T h is i s n o t to sa y t h a t a d e fe n d a n t in th e p o s i t i o n o f th e a l l e g e d a c c e s s o ry in S a u n d e rs (1576) 2 Plow 473, 75 ER 706 , w ould n o t be l i a b l e f o r a n o th e r o f f e n c e , such as in c i te m e n t t o m u rd e r , as n o te d in A sh w o rth , id_. , a t p .8 1 .

(150) S m ith and Hogan a t p p . 1 2 8 -9 .(151) [ i9 6 0 ] 1 QB 129. See th e d i s c u s s io n o f t h i s c a s e a t p . 506*

140

t h a t th e d e fe n d a n t in B a in b r id g e was u n c e r ta in a t th e o u t s e t as to th e p r e c i s e c i r c u m s ta n c e s in w hich th e p r i n c i p a l w ould commit th e c o n te m p la te d c rim e o f b r e a k in g , e n t e r i n g and s t e a l i n g . As s u c h , B a in b r id g e was n o t c o n c e rn e d w ith th e d e l i b e r a t e d e p a r tu r e by th e p r i n c i p a l from a j o i n t l y c o n te m p la te d p u rp o s e . H ow ever, t o th e e x t e n t t h a t B a in b r id g e may be v iew ed g e n e r a l l y as s u p p o r t in g th e id e a , t h a t i t i s s u f f i c i e n t f o r a c c e s s o r i a l mens r e a f o r th e a c c e s s o ry to have known, a t th e r e l e v a n t t im e , th e " k in d " o r ty p e o f c rim e w hich w ould b e co m m itte d , i n t h a t s i t u a t i o n w here (a s i t becom es a p p a r e n t , r e t r o s p e c t i v e l y ) h e d id n o t know th e p r e c i s e c i r c u m s ta n c e s in w hich i t w ould a c t u a l l y be c o m m itted , th e B a in b r id g e d e c i s io n may b e a p p l ie d in th e p r e s e n t c o n t e x t . In B a in b r id g e te rm s , th e n , th e p e rs o n who i s s o u g h t to b e made l i a b l e a s an a c c e s s o r y and who i n s t i g a t e d , en co u rag ed o r a s s i s t e d th e p r i n c i p a l in th e e x p e c ta t io n t h a t he w ould b re a k i n to bank A, becom es l i a b l e in r e s p e c t o f th e l a t t e r ' s c rim e a g a i n s t bank B, on th e b a s i s t h a t th e s e two c r im e s , th e one c o n te m p la te d and t h a t a c t u a l l y c o m m itte d , a re o f th e same k in d , o r ty p e .

Of c o u r s e , i t c o u ljl b e a rg u ed t h a t th e B a in b r id g e p r i n c i p l e may be a p p l i e d more b r o a d ly , so as to in c r im in a te a s an a c c e s s o r y th e d e fe n d a n t who i n s t i g a t e s , e n c o u ra g e s o r a s s i s t s th e p r i n c i p a l to com m it a g iv e n c rim e a g a i n s t v i c t im A, w here th e i d e n t i t y o f th e v ic t im i s m a t e r i a l l y s i g n i f i c a n t t o th e d e f e n d a n t , in t h a t s i t u a t i o n w here th e p r i n c i p a l d e l i b e r a t e l y d e p a r t s from t h i s c o n te m p la te d p u rp o s e and i n s t e a d com m its t h i s c rim e a g a i n s t a n o th e r v i c t im , on th e b a s i s t h a t th e s e two c r im e s , one c o n te m p la te d and th e o th e r a c t u a l , a re o f th e same " k in d " . I t i s s u b m i t te d , h o w ev er, t h a t B a in b r id g e i s n o t to be r e a d so e x p a n s iv e ly , i . e . , t h a t i t d o es n o t s a n c t io n th e e x te n s io n o f a c c e s s o r i a l l i a b i l i t y to a c rim e c o m m itted by th e p r i n c i p a l , as an outcom e o f h i s in d e p e n d e n t r e s o l v e , s im p ly b e c a u s e i t i s o f th e same l e g a l c l a s s a s a n o th e r c rim e w h ich th e a l l e g e d a c c e s s o r y so u g h t to p rom ote o r f a c i l i t a t e p r i o r to t h i s t im e . Q u ite s im p ly t h e r e w i l l , in t h i s s i t u a t i o n , be no s u f f i c i e n t c o n n e c t io n b e tw e e n th e d e fe n d a n t and th e c rim e a c t u a l l y co m m itted . He w i l l n o t h av e c o n te m p la te d i t s com m ission , n o r i s any a c t o f h i s r e a s o n a b ly to b e v iew ed a s p ro m o tin g o r f a c i l i t a t i n g i t .

141

( i i ) The P r i n c i p a l Commits A nother and D i f f e r e n t O ffen ce in A d d itio n ' t o , o r in L ieu o f th e C o n tem p la ted O ffence___________________________________

The h y p o th e s i s h e re i s t h a t th e d e fe n d a n t p e rfo rm s an a c t o f f a c i l i t a t i o n o r p ro m o tio n o f a n o th e r p e rso n (P) in t h e c o n te m p la t io n t h a t e i t h e r P , o r th e d e f e n d a n t , o r b o th o f them to g e th e r (a s j o i n t p r i n c i p a l s ) w i l l com m it c rim e X, in th e c o u rse o f th e com m ission o r a t te m p te d com m ission o f w hich c r im e , o r even in l i e u o f i t s co m m issio n ,P com m its a n o th e r o f f e n c e o f a q u i t e d i f f e r e n t ty p e .

I t h a s b e e n w e l l - e s t a b l i s h e d by th e a u t h o r i t i e s d e a l in g w ith th ed o c t r in e o f common p u rp o s e t h a t th e d e fe n d a n t i s n o t l i a b l e to t h i s f u r t h e r(o r a l t e r n a t e ) c r im e a s an a c c e s s o r y , u n le s s i t was in h i s c o n te m p la t io nt h a t i t m ig h t a l s o be com m itted in a d d i t io n t o , o r i n l i e u o f th e

152com m ission o f th e f o u n d a t io n a l c r im e . Even w here t h e r e i s , in th es t r i c t s e n s e , no c o n c e r t b e tw een th e d e fe n d a n t and P f o r th e com m ission o f o f f e n c e X, b u t r a t h e r , th e s i t u a t i o n i s one w here know ing o f P 's i n t e n t i o n to com m it i t , h e com m its an a c t o f en c o u ra g e m en t o r o f f a c i l i t ­a t i o n (o r a l t e r n a t i v e l y ,, he i n s t i g a t e s P to com m it i t ) , th e r e l e v a n t p r i n c i p l e s o f l i a b i l i t y a r e th e same : was th e com m ission o f t h i s c rim e

153by P in h i s c o n te m p la t io n as a p o s s i b l e i n c i d e n t o f th e com m ission o f X?

( i i i ) Where th e P r i n c i p a l V a r ie s th e Mode in Which th e Crim e i s C om m itted in a M a t e r i a l l y I n s i g n i f i c a n t Way__________________________ ______________

Where th e p r i n c i p a l com m its th e crim e in th e d e f e n d a n t 's (and a l l e g e d a c c e s s o r y 's ) c o n te m p la t io n , b u t d e l i b e r a t e l y c h o o se s to com m it i t in c i r c u m s ta n c e s w hich a r e d i f f e r e n t to th o s e in th e d e f e n d a n t 's c o n te m p la t io n , i t i s c o n s id e re d t h a t th e l a t t e r w i l l n o t e sc a p e l i a b i l i t y w here t h i s d i f f e r e n c e i s , from h i s own v ie w p o in t , m a t e r i a l l y i n s i g n i f i c a n t . P u t t i n g a s id e th e i d e n t i f y o f th e v ic t im (w hich i s s u e h a s b e e n d i s c u s s e d in ( i ) a b o v e ) , su ch m in o r v a r i a t i o n may r e l a t e , f o r e x a m p le , to th e tim e

(152) The d o c t r i n e o f common p u rp o se i s d i s c u s s e d in C hap. 7 .(153) In t h a t th e d o c t r in e o f common p u rp o se m e re ly r e - e x p r e s s e s th e

g e n e r a l p r i n c i p l e s o f a c c e s s o r i a l l i a b i l i t y : See p . 1 8 2 f f .

1 4 2

and place of the crime, or the precise manner of its execution. For example, the victim whom, the defendant contemplates, will be stabbed to death, may actually be shot; or he may be killed not on a Tuesday, as was planned, but on a Friday; or he may be killed not in Melbourne, as was planned, but in Sydney.

That such a variation is not legally relevant to the evaluation ofthe defendant's liability has been stated by Foster:

"... if the principal in substance complieth with the temptation, (i.e., the solicitation by another), varying only in circumstances .f time or place, or in the manner of execution, in these cases “he person soliciting to the offence will, if absent, be an accessory before the fact, if present a principal.1^4

(b) Where th e P r i n c i p a l A c c id e n ta l ly D e p a rts from th e C o n tem p la tedP u rp o s e , o r A l t e r n a t i v e l y , A c c id e n ta l ly Commits th e S u b je c t Crim e in C irc u m s ta n c e s O th e r Than Those in C o n te m p la tio n _______________ _

In g e n e r a l , i t i s th o u g h t , th e d e fe n d a n t w i l l n o t i n c u r l i a b i l i t y ( i . e . , a s an a c c e s s o ry ) w here in th e p r o c e s s o f c o m m ittin g , o r a t te m p t in g to com m it th e c o n te m p la te d c r im e , he a c c i d e n t a l l y com m its a n o th e r d i f f e r e n tc r im e , w here th e p o s s i b l e com m ission o f t h i s f u r t h e r c r im e i s beyond th e_ _ _ , _ 155d e f e n d a n t s c o n te m p la t io n .

W here, h o w ev er, th e c rim e in c o n te m p la t io n i s a c t u a l l y co m m itted , b u t , a s th e r e s u l t o f some u n e x p e c te d s h i f t in c i r c u m s ta n c e , i t t a k e s e f f e c t a g a i n s t a d i f f e r e n t v i c t i m , i t i s a rg u a b le t h a t th e d e fe n d a n t i s n o n e th e le s s in c r im in a te d a s an a c c e s s o r y , j u s t as th e p e r p e t r a t o r in c u r s l i a b i l i t y a s a p r i n c i p a l .

In such a c ir c u m s ta n c e th e p r i n c i p a l may b e in c r im in a te d upon th e156b a s i s o f th e s o - c a l l e d d o c t r in e o f t r a n s f e r r e d m a l ic e . T h is common

law d o c t r in e i s c o n c e rn e d w ith th e s i t u a t i o n w h ere th e p r i n c i p a l a t te m p ts

(154) In h i s Crown Law a t p .3 6 9 , w hich p a s s a g e was a p p ro v e d by th e E n g lis h C o u rt o f C r im in a l A ppea l i n B e t t s (1930) 22 Crim App R 148; s i m i l a r l y s e e P lo w d e n 's com m entary on S au n d ers (1576) 2 Plow 473 a t 4 75 , 75 ER 706 a t 709 ; and s e e t h e f u r t h e r i n s t i t u t i o n a l w r i t e r s r e f e r r e d toin Lanham, "A cco m p lices and T r a n s f e r r e d M a lic e " (1980) 96 LQR 110 a t 1 21 , n .5 7 .

(155) For reflections on the concept of accident in a criminal law context see Timbu Ivolian v i( (i960) 119 OUi 47 at 52ff(Barwick CJ), 56 (Menzies j)~, 5off,60 69 (Windeyer J).

(156) The c o n v e n t io n a l d e s c r i p t i o n o f i t by th e t e x t w r i t e r s in r e l i a n c e ,e v i d e n t l y , upon H a l e l P £ 4 66 , w here he t a l k s o f th e " law ...................................transfer[ring] the malice" in a situation of this type. The doctrinei s d i s c u s s e d in f o r ex am p le , W ill ia m s , CLGP a t p , 1 2 5 f f . , W il l ia m s , TCL a t p p . 1 4 4 -5 , S m ith and Hogan a t p p .5 9 -6 1 , A sh w o rth , " T r a n s f e r r e d M alice and P u n ish m en t f o r U n fo re se e n C on seq u en ces" i n G la z e b ro o k , e d . , R eshap in t The C r im in a l Law (S te v e n s , bond. 1 9 7 8 ) , a t p . 7 1 f f ; and se e a l s o Lanham "Acromolicos and Transferred Malice" (19801 96 LOR 110.

143

to com m it a g iv e n crim e in a chosen way, b u t m i s c a l c u l a t e s , o r i s o th e rw is e th w a r te d by an u n e x p e c te d s h i f t in c ir c u m s ta n c e , so t h a t th e same c rim e ta k e s p la c e a g a i n s t a d i f f e r e n t , u n in te n d e d v ic t im . To th e d e g re e t h a t th e p a r t i c u l a r harm d o es ta k e p la c e a g a in s t a v ic t im o t h e r th a n th e p e r s o n a c t u a l l y in h i s c o n te m p la t io n , th e outcom e o f h i s a c t may b e term ed a c c i d e n t a l ; b u t h i s i n i t i a t i n g a c t i s n o t o f c o u rs e o f t h i s c h a r a c t e r .

F o r e x am p le , th e p r i n c i p a l may throw a punch to w ard s A, in te n d in g toh u r t h im , b u t owing to h i s own p o o r c o o r d in a t io n , o r to a sudden d e fe n s iv emovement by A, h i s f i s t may i n s t e a d h i t B. S t r i c t l y s p e a k in g , he does n o ti n t e n t i o n a l l y a s s a u l t B. B u t a c c o rd in g to th e d o c t r i n e , he may b e deemedt o h ave in te n d e d t h i s r e s u l t , f o r th e d o c t r in e o p e r a te s to co u p le ( i . e . ," t r a n s f e r " ) th e r e l e v a n t m e n ta l e le m e n t ( h e r e , th e i n t e n t i o n to punch A)

157to th e a c t a c t u a l l y co m m itted .

I t i s im p o r ta n t to n o te t h a t th e d o c t r in e i s n o t c o n c e rn e d w ith th e m is ta k e n , r a t h e r th an a c c i d e n t a l i n f l i c t i o n o f harm . F o r ex am p le , th e p r i n c i p a l , w is h in g to a s s a u l t A, may d e l i b e r a t e l y a s s a u l t B m is ta k e n ly b e l i e v i n g him to b e A. H ere th e d e fe n d a n t i s c l e a r l y l i a b l e , in t h a t a l l o f th e i n g r e d i e n t s o f th e crim e a re p ro v a b le a g a i n s t h im . He in te n d e d to i n j u r e th e v e ry p e r s o n who was a c t u a l l y a s s a u l t e d , and co m m itted th e p h y s ic a l a c t o f a s s a u l t a g a i n s t him .

T h ere i s n o t , e v i d e n t l y , any r e p o r te d a u t h o r i t y i n th e s u b j e c tj u r i s d i c t i o n s e s t a b l i s h i n g t h a t th e d o c t r in e o f t r a n s f e r r e d m a lic e i sa p p l i c a b l e to th e a c c e s s o r y , so t h a t he can be in c r im in a te d in a c rim ein t h a t s i t u a t i o n w here i t s p e r p e t r a t o r (whom he h a s i n s t i g a t e d , e n c o u ra g e do r a s s i s t e d to commit th e a c t c a u s in g th e harm) i s o n ly a b le t o be madel i a b l e by r e s o r t to i t . T here i s , how ever, no fo rm a l b a r r i e r to i t sa p p l i c a t i o n a g a i n s t th e a c c e s s o r y , and e v e ry p r a c t i c a l re a s o n why i t sh o u ld

158b e . T h u s, F o s te r f o r one was o f th e view t h a t i t was th u s a p p l i c a b l e .

(157) I t i s assum ed h e re t h a t he i s so u g h t to b e made l i a b l e on th e b a s i s o f an i n t e n t i o n to harm . Of c o u r s e , i t i s p o s s i b l e t e a t he c o u ld be made l i a b l e upon th e b a s i s o f r e c k l e s s n e s s , d e p e n d in g upon th e f a c t s , in t h a t a t common law c rim e s o f a s s a u l t may, in th e a l t e r n a t i v e , b e co m m itted r e c k l e s s l y : See p .H Q ff ,

(158) Crown Law a t p .3 7 0 ; and s i m i l a r l y se e S a y re , " C r im in a l R e s p o n s ib i l i t y f o r The A c ts o f A n o th e r" (1930) 43 H a rv a rd LR 697 a t n .3 5 .

144

The a l l e g e d a c c e s s o ry d o e s , a f t e r a l l , c o n te m p la te t h a t th e a c t a c tu a - l ly done by th e p r i n c i p a l w i l l b e done by h im , and t h a t th e l a t t e r , m o re o v e r, w i l l p o s s e s s th e m e n ta l s t a t e a p p r o p r ia te to th e s u b j e c t c r im e , ev en as th e e le m e n t o f m i s c a l c u l a t i o n by th e p r i n c i p a l , o r u n e x p e c te d d e f l e c t i o no f th e i n j u r y upon a p e rs o n o th e r th a n the c o n te m p la te d v i c t im , was n o t

159i n th e c o n te m p la t io n o f e i t h e r o f them . P u t s h o r t l y , a l l o f th ec o n d i t io n s o f th e p r i n c i p a l ' s c r im in a l l i a b i l i t y w ere in th e c o n te m p la t io n o f th e a l l e g e d a c c e s s o r y ,

(c) Where th e P r i n c i p a l M is ta k e n ly D e p a rts from th e C o n te m p la te d P u rp o s e ,o r A l t e r n a t i v e l y , M is ta k e n ly Conunits th e S u b je c t Crim e in C irc u m sta n c e s - O th e r Than Those in C o n te m p la tio n ____________ ______________________ _____ ____

The p r i n c i p a l m ay, w h ile t r a n s a c t i n g th e p u rp o s e in th e c o n te m p la t io n o f th e a c c e s s o r y and h i m s e l f , m is ta k e n ly commit a q u i t e d i f f e r e n t c r im e .I t i s th o u g h t t h a t th e a c c e s s o ry w ould n o t b e l i a b l e f o r t h i s c r im e , u n le s s i t was a l s o in h i s c o n te m p la t io n t h a t i t m ig h t be c o m m itted .

The s i t u a t i o n may be d i f f e r e n t w here th e p r i n c i p a l , b e c a u s e o f an e r r o r on h i s p a r t , com m its th e same crim e as t h a t c o n te m p la te d , b u t i n d i f f e r e n t c i r c u m s ta n c e s . Where th e d iv e rg e n c e i s n o t m a t e r i a l , th e a c c e s s ­o r y 's l i a b i l i t y s h o u ld n o t b e a l t e r e d , f o r i t i s c l e a r l y a r g u a b le t h a t th e p r i n c i p a l i s s t i l l a c t i n g , f o r a l l p r a c t i c a l p u r p o s e s , in p u rs u a n c e o f th e p u rp o s e in th e c o n te m p la t io n o f th e a c c e s s o r y . Even w here th e p r i n c i p a l ' sd iv e rg e n c e i s m a t e r i a l , th e a l l e g e d a c c e s s o r y 's s i t u a t i o n , i t i s s u b m i t te d , s h o u ld n o t be d i f f e r e n t . Such a m is ta k e n d iv e rg e n c e w o u ld , i t may be s u p p o se d , r e l a t e t o th e i d e n t i t y o f th e v ic t im ; so t h a t , f o r ex am p le , th e a l l e g e d a c c e s s o ry may i n s t i g a t e , e n co u rag e o r a s s i s t B w ith th e i n t e n t i o n , o r i n th e c o n te m p la t io n t h a t he w i l l k i l l X, b u t B may n o t know w hat X lo o k s l i k e , and i n s t e a d k i l l Y, b e l i e v in g him to be X. To p e r m i t th e a l l e g e d a c c e s s o r y 's e x o n e r a t io n in t h i s s i t u a t i o n w ould b e u n f o r t u n a t e . A gainst, h im , i t may be o b s e rv e d t h a t h i s c o n d u c t h as i n s t i g a t e d . , e n c o u ra g e d o r a s s i s t e d B to a c t a s he h as done; and f u r th e r m o r e , B 's a c t (w hich i s o f

(159) k o r a d i s c u s s i o n o f a l t e r n a t e p o s s ib le a p p ro a c h e s to th e a n a l y s i s o f the. a c c e s s o r y 's l i a b i l i t y in t h i s s i t u a t i o n , b a s e d upon th e i n s t i t u t i o n a l w r i t e r s , see Lanham, "/acco m p lices and T r a n s f e r r e d M a lic e " (1980) 96 LQR 110.

(160) See th e d i s c u s s io n a t p . ab o v e .

e x a c t l y th e same ty p e a s t h a t c o n te m p la te d , ev en a s th e c i r c u m s ta n c e s - o f i t s com m ission d i f f e r from e x p e c ta t io n ) i s done by him in th e a t te m p te d e x e c u t io n o f th e v e ry p u rp o s e in c o n te m p la t io n , a l b e i t in th e m is ta k e n know ledge t h a t th e c ir c u m s ta n c e s o f i t s com m ission a re th e v e ry c ircu m ­s ta n c e s in t h e i r jo in t: c o n te m p la t io n . The s i t u a t i o n i s o b v io u s ly d i f f e r e n t to t h a t o u t l i n e d a b o v e , w h e r e th e p r i n c i p a l c o n s c io u s ly p u ts a s id e th e j o i n t l y c o n te m p la te d p u rp o s e , and i n s t e a d , r e s o lv e s in d e p e n d e n t ly to com m it an a l t e r n a t i v e c rim e n o t in th e a l l e g e d a c c e s s o r y 's c o n te m p la t io n

T here i s , h o w ev er, no a u t h o r i t y d e a l in g w ith t h i s s i t u a t i o n in th es u b j e c t j u r i s d i c t i o n s . T here i s A m erican a u t h o r i t y to th e e f f e c t t h a tth e a l l e g e d a c c e s s o ry i s in d e e d l i a b l e in t h i s s i t u a t i o n ; so t h a t w hereA a g r e e s w ith B to m u rd er X, and B th e reu p o n s h o o ts Y by m is ta k e , th in k in g

X 6 2him t o b e X, A i s l i a b l e a s an a c c e s s o ry to t h i s m m rder.

(d) C o n c lu s io n

I t i s c o n s id e re d t h a t th e q u e s t io n o f t h e d e f e n d a n t 's l i a b i l i t y a s an a c c e s s o ry in th e ty p e s o f s i t u a t i o n o u t l i n e d u n d e r th e p re c e d in g h e a d in g(a) - (c) may, in g e n e r a l , b e r e s o lv e d by c o n s id e r in g f i r s t l y , w h e th e r o r n o t th e a c t o f i n s t i g a t i o n , en co u rag em en t o r a s s i s t a n c e done by him h a s p ro m o ted o r f a c i l i t a t e d th e com m ission o f th e s u b j e c t c r im e ; and s e c o n d ly , w h e th e r o r n o t w hat th e p r i n c i p a l h as done was in th e c o n te m p la t io n o f th e a c c e s s o ry a t th e tim e o f h i s a c t o f c o m p l ic i ty , s u b j e c t to any su ch q u a l i f i c a t i o n s a s h av e b e e n n o ted in t h i s d i s c u s s i o n .

I t m u st b e ack n o w led g ed , how ever, t h a t t h e r e i s l i t t l e a u t h o r i t y d e a l in g w ith c e r t a i n o f th e m a t te r s c a n v a sse d u n d e r (b) and (c) a b o v e , i . e . w h e th e r an a c c i d e n t a l o r m is ta k e n d e p a r tu re 5 by th e p r i n c i p a l from th e j o i n t l y c o n te m p la te d p u rp o s e , o r a l t e r n a t i v e l y , th e a c c i d e n t a l o r m is ta k e n cominis io n o f th e c o n te m p la te d c rim e in c i r c u m s ta n c e s o th e r th an th o s e c o n te m p la te d , h a s th e e f f e c t o f r e l i e v i n g th e d e fe n d a n t from a c c e s s o r i a l l i a b i l i t y . W here th e p r i n c i p a l commits a q u i t e d i f f e r e n t c r im e , th e n i t i s l o g i c a l t o su p p o se t h a t th e l a t t e r w i l l e s c a p e c o n v ic t io n , so i t h a s b e e n s u g g e s te d , u n le s s t h i s p o s s i b i l i t y was a l s o i n h i s c o n te m p la t io n *

(161) See p . 4 «(162) So h e ld in S t a t e v . Kennedy (1910) 67 SE 1 5 2 , c i t e d by Lanham, in

"A cco m p lices and T r a n s f e r r e d M alice" (1980) 96 LQR 110 a t 118 , who a l s o r e f e r s to C ooper v , S t a t e (1913) 154 SW 9 8 9 .

P r o f e s s o r Lanham o b s e rv e s t h a t th e i n s t i t u t i o n a l w r i t e r s a re d iv id e d on w h e th e r o r n o t th e a l le g e d a c c e s s o r y in c u r s l i a b i l i t y in t h i s s i t u a t i o n ( a t 1 1 7 -9 ) .

Where the crime committed is of the same type as that in contemplation,

but (owing to an element of accident or mistake) the circumstances of i t s

commission are m ateria lly d iffe re n t, then, i t has been proposed, the

defendant ought to be inculpated as an accessory. In the circumstances of

an accidental departure from the contemplated purpose, i t may w ell be that

the defendant would be incriminated by resort to the doctrine of tran sferred

m alice. The situ atio n is less c lear where the p rin cip a l mistakenly commits

the crime in a m ateria lly d iffe re n t circumstance ( i . e . , most obviously,

aga in st a victim other than that in contemplation).

Given th is uncertainty, i t i s thought that any such statutory

reform ulation o f the law of complicity as may be undertaken should provide

that a person sh a ll not be exonerated from accessory l i a b i l i t y so le ly upon

the b asis that the crime in h is contemplation is committed in d iffe re n t

circum stances, owing to a chance event, or to a m iscalcu lation by the163p rin c ip a l or to an erro r on the part of the p r in c ip a l.

(163) For an a lte rn ativ e view as to the an alysis o f accesso ria l l i a b i l i t y in s itu a tio n s of the type outlined in (a) - (c) above, see Lanham, i d . , Professor Lanham favours the application o f what he id e n tif ie s as Plowden's "d ire c t consequences" approach, in order to determine the alleged accesso ry 's l i a b i l i t y in these circumstances. According to th is a n a ly s is , "he who advises or commands an unlawful thing to be done sh a ll be adjudged accessory to a l l . . . that follow s from the same thing, but not from any other d is t in c t thing" (which sentiment is found in h is Commentary on Saunders (1576) 2 Plow 473 at 475, 75 ER 706 at 10'j . in Professor Lanham* s view, Plowden thereby (correctly) id e n tif ie s the issu e in these cases as being one o f "causation", and not one o f "the construction of a mens re a " , in the accessory (at 1 1 7 ) . (Hrofessor Lanham assumes, eviden tly , that the p rin c ip a l actu a lly commits the same crime, le g a lly speaking, as that in the a lleged accesso ry 's contemplation, a lb e it in d iffe re n t circumstances - though fo r h is own part Plowden indicated in h is commentary, that h is p rin c ip le was a lso to be applied so as to incriminate the defendant as an accessory to a crime of a quite d iffe re n t type, provided only that i t was committed by the p rin cip a l in the course o f committing the contemplated crime, irre sp e ctiv e that th is further crime was not in the a lleged accesso ry 's contemplation.)

plowden5s analysis would, represent a straightforward resolution oftno problems in chase s i t u a t i o n>® i t is to be quosti p n e d ® h o wever . whether the fundamental (or the sole) .issue in the circumstance o f ap r in c ip a l 's d e lib erate , accidental or mistaken departure from the contemplated purpose is properly to be regarded as being one simply o f causation, given the modern stress on a close scrutiny of the terms of the putative accesso ry 's contemplation. In any event, while no doubt a person who causes another to commit a crime w il l normally be incriminated as an accessory, th is is not to say that causation is in teg ra l to the establishment of accesso ria l l i a b i l i t y , "father , i t is s u ff ic ie n t i f , (at the minimum) the alleged accessory encourages or a s s is t s a prospective or present prin cipal who has independently resolved to commit the subject crime (see, p. 'rj,) , .F in a lly , t:o .the , ,extent that the Plowden p rin cip le would incrim inate as an accessory

he person who in s t ig a te s , encourages or a s s is t s the prospective prin cipal to commit a given crime again st a given v ictim , it. i s not re a lly concerned with the issue of causation, the p r in c ip a l 's

(2) L i a b i l i t y U nder th e A u s t r a l i a n C rim in a l Codes and th e New Z e a lan d C rim es A c t, 1961 ___ _________

(a ) The A u s tr a l ia n C r im in a l CodesI t may be sa id that the common law p rin cip les o f l i a b i l i t y described

i n th e p r e v io u s p a g e s a r e t o be r e s o r t e d to w here th e Crown se e k s toe sta b lish crim inal l i a b i l i t y pursuant to the primary com plicity provisions

i n e a c h o f th e A u s t r a l i a n c r im in a l codes and th e New Z e a la n d C rim es A c t,16419 6 1. I t i s to be noted, however, that according to s .2 3 o f the

Queensland and Western A ustralian Codes, a person, "su b ject to the express

provisions o f the Code re la tin g to negligent acts and omissions . . . i s not

crim inally l ia b le for an act or omission which occurs independently o f the

exerc ise o f h is w i l l , or for an event which occurs by acc id en t." This

section was re lie d upon by the High Court, in Tirrtbu Kolian v. The Queen•>65 . “(1968) to exonerate from l i a b i l i t y for mail slaughter a person who

presumably would have incurred th is at common law by reso rt to the doctrine

o f tran sferred m alice. I t is unlikely that th is decision is to be read

as preventing the application o f the doctrine of tran sferred malice to

the p rin cip a l in these ju r isd ic t io n s , in a l l o f those s itu a tio n s where

he w ould be in c r im in a te d p u r s u a n t to i t a t common la w . '* '^ In Timbuth e a p p e l l a n t had th ro w n a s t i c k a t h i s w ife in th e d a r k , in te n d in g ,i t i s apparent, to i n f l i c t no more than a minor in ju ry . He was ignorant

independent change o f reso lve functioning as a novus actus i nterveniens which is s u ff ic ie n t to rupture any such causal nexus as might otherwise have linked the act o f the a lleged accessory and the p r in c ip a l 's commission o f the crime.

Plowden's p rin c ip le might w ell operate with complete fa irn e ss in those s itu a tio n s where the p rin cip al commits the same crime but in d iffe re n t circumstances (whether the divergence from the contemplated purpose is m aterial or otherwise) owing to an unexpected tw ist in circum stances, or to a m iscalcu lation , or e rro r on h is p art. I t must be questioned, however, as to whether i t ought to be re lie d upon to incrim inate an a lleged accessory in that s itu a tio n where the p rin c ip a l d e lib e ra te ly discards the purpose jo in t ly contemplated by the two of them and resolves to commit the same crime in quite d iffe re n t circumstances.

(164) I . e . , the Queensland and Western Australian Codes, s .7 ; the Tasmanian Criminal Code, s .3 ; the New Zealand Crimes Act, 19 6 1, s .66(1) .

(165) (1968) 119 CLR 47.(166) Of the sev era l members o f the court, only Berwick CJ expressly

re ferred to the doctrine, in id . , at 50.

148

that she was holding th e ir baby in her arms. The s t ic k struck the baby,

k i l l in g i t . This situ a tio n is very d iffe re n t to , fo r example, that where

the defendant f ir e s a gun towards X, intending to k i l l him, but because

of a sudden movement by X, the b u lle t instead h its Y, and k i l l s him.

Here, although the harm takes e f fe c t against an unintended victim , the

event aimed a t , i . e . , the death of a person, re s u lts . C learly s .2 3 would

not be applied in the defendant's favour in th is s itu a tio n .

Hov^ever, to the extent that s .2 3 may be re lie d upon by the alleged

p rin cip al so as to avoid l i a b i l i t y in at Least some o f these situ atio n s in

which he would be incrim inated at common law, pursuant to the doctrine

of transferred m alice, the a lleged accessory in these ju risd ic t io n s may

likew ise be protected in these s itu a tio n s . But i t i s not n ecessarily to

be supposed that s .2 3 w il l function in tills way, v i s - a -v is the accessory.

His b asis o f l i a b i l i t y i s , a fte r a l l , s ig n if ic a n t ly d iffe re n t to that of

the p erpetrator, in certain resp ects. For example, the accessory does

not him self commit the crime, but is n ecessarily dependent upon the

p rin cip a l to exercise h is own w il l to commit i t . And yet i t is apparent

that the alleged accessory cannot thereby plead that the commission o f the

crime was independent of h is w i l l . C learly s .2 3 must be read sub ject to

the primary com plicity provisions in the Codes, which envisage that

secondary l i a b i l i t y may be incurred notwithstanding that the perpetration

o f the crime i s the independent product of the w il l o f the p rin c ip a l,

and that the person sought to be made lia b le as an accessory has merely

encouraged or a ssisted him in th is , without the p o sit iv e desire that theX6 Vcrime should be committed.

As an a lte rn ativ e to the primary com plicity provisions in the A ustralian

Criminal Codes, the Crown may seek to estab lish a ccesso ria l l i a b i l i t y in ,

in ter a l i a , s itu atio n s o f th is type in re lian ce upon s .8 and s.9 of the

Queensland and Western A ustralian Codes (corresponding to s .4 and s .5

o f the Tasmanian Code).

(167) See also s . 1 3 of the Tasmanian Criminal Code, which corresponds to s .2 3 o f the Queensland and Western A ustralian Codes, though i t is not id e n tica l to s .2 3 .

Section 8 of the Queensland and Western A ustralian Codes (s.4 o f

the Tasmanian Code) incrim inates the defendant in any crime which is an

o b je c tiv e ly probable consequence of the prosecution of a common purpose

for another crime to which he is party, and s .9 o f the Queensland and

Western A ustralian Codes (s .5 of the Tasmanian Code) deals with the

defendant’ s l i a b i l i t y fo r a crime which is the o b je c tiv e ly probablet • , . . 1 6 8consequence o f counsel given by mm.

(b) New Zealand

The Crown may, as an a ltern ative to re lian ce upon s .6 6 (l) in the

New Zealand Crimes Act, 1961 (the primary source of secondary l i a b i l i t y

under th is A c t) , seek to estab lish accesso ria l l i a b i l i t y pursuant to

s .66 (2) o f th is Act.

Section 66(2) i s in sim ilar terms to s„8 o f the Queensland and

Western A ustralian Codes, excepting that the commission of the subject

crime must have been a probable consequence of the transaction of th is

purpose ( i . e . , by im plication , the defendant must have had fo resigh t169of th is p o s s ib i l i t y ) . „ Further, s .7 0 (l) provides that a person who

" in c ite s , counsels or procures another to be a party to an offence of which

that other is afterwards g u ilty is a party to that o ffen ce, although i t may

be committed in a way d iffe re n t from that which was in c ite d , counselled or

suggested ." No reported decision deals with the construction of th is

provision . I t may be that i t is directed to the circumstances of a

m ateria lly in s ig n ific a n t d ifference in the mode in which the crime is170executed by the perp etrator; or, conceivably, i t could be construed

more broadly. F in a lly , s.72(2) provides that everyone "who in c ite s ,

counsels or procures another to be a party to an offence is a party to

every offence which that other commits in consequence of such in c it in g ,

counse lin g or procuring, and which the first-m entioned person knew to be

l ik e ly to be committed in consequence th e re o f." This provision may be

re lie d upon to incrim inate a person qua accessory upon the b asis o f

(168) See p .2 1 9 f f .(169) See p 0 2J2 f f •

(170) See the discussion o f this matter at common law, at p.^21 f«

reck lessn ess. I t is broadly sim ilar to s .66(2) , excepting that i t

requires fo resigh t as to "lik e lih o o d " rather than "p ro b ab ility" (the

te s t in s.66(2)) - which d ifferen ce i s , perhaps, immaterial - and unlike

s.66(2) , s .70(2) does not require that the defendant have been united

with the perpetrator in a common criminal purpose.

150

rE~cklessness. 1 t is broadly similar to s. 66 ( 2) , exr.epting that it

requires foresjght. as to 11 likelihood" rather than "probability" (the

test in s. 66 (2 )) - which difference is, perhaps, irnma·terial - and unlike

s.66(2), s. 70(2) does not require that lhE': defendant have been united

with the perpetrator in a common criminal purpose.

CHAPTER oIX151

ELEMENTS OF ACCESSORIAL LIABILITY(c) THE MENTAL ELEMENT PERTAINING

TO THE SUBJECT OFFENCE

ILL. INTRODUCTIONAs it was noted at the outset of the preceding chapter, the accessory

must both (1) intentionally or (at the minimum) knowingly instigate, encourage or assist the principal or prospective principal to commit the physical act of the subject crime or, at the minimum, the act causing this to happen, with (b) a mental element appropriate to this offence.The present chapter is concerned with this second component of accessorial mens rea.

This latter component of the accessory's mental state concerns the degree of knowledge of the circumstances surrounding the commission by the principal, of the physical event constituting the crime, or the act causing this, which must be possessed by the accessory (or prospective accessory) at the time that he performs his act of complicity. The terms of this knowledge must be sought for in the definition of the subject crime. In general, it is proposed, the accessory's knowledge as to these relevant circumstances precisely parallels that required of the principal, with the solitary exception of offences of strict liability. This requirement of knowledge may be broadly outlined in relation to the following general categories of offence, pending its elaboration in the following pages;

%

(1) Offences of IntentionThe accessory must know or foresee that the principal acts, or will

act in those circumstances which disclose the criminal nature of his (i.e., the latter's) act. This is of course, likewise true of the principal, who must also act with this comprehensive knowledge. It could, therefore, be said in an approximately correct way that the accessory must in this circumstance, have the same mens rea as the principal. Such a statement, however, must be qualified in one crucial respect in particular: though the accessory must share in the principal's knowledge as to the surrounding

(I) See p.HOabove, for a definition of an offence of intention.

152

circumstances, he need not act with the intention that the crime becommitted. This principle applies to all cases of accessoryship,

2irrespec ive of the offence m issue.

(2) Constructive Murder and Constructive ManslaughterThe accessory must see (or foresee) the commission by the principal of

the act causing death, while possessing the same (limited) knowledge of surrounding circumstances as is required of the principal in respect of each of these offences.

3(3) Offences of RecklessnessThe accessory must, at the relevant time, know or foresee that the

principal is committing or that he will commit the risk-producing conduct in those circumstances which, he knows, disclose that the principal's conduct is or will be of this character, i.e., that it produces the risk (subject to the applicable test of eventuality) that the prescribed harm will result, even though neither the principal nor accessory desire that this harm should result.

y

4(4) Offences of NegligenceThe accessory must see or foresee the commission by the principal of

the risk-producing conduct, in those circumstances from which an inference as to its negligent nature can be drawn. Unlike the offence of recklessness, however, neither the principal nor accessory need actually draw this inference. %

5(5) The Sole Exception; Offences of Strict LiabilityIn most of those of the subject jurisdictions which recognise the

doctrine of strict liability, the accessory is required to have a compre­hensive knowledge of the essential elements of the principal's offence of strict liability. In this respect, therefore, his mental state diverges 2 3 4 5

(2 ) S e e p . 152 .(3 ) S e e p . 111( 4 ) S e e p .1 1 1 .(5 ) S e e p . 111 .

for a definition of an offence of this type.

153

markedly from that required of the principal. In requiring that the accessory should know or foresee the commission by the principal of the physical elements in the offence in those circumstances which disclose its criminal nature, the common law in effect transforms the absolute offence into one of intention, where the accessory is concerned.

In that something less than knowledge of all of the relevant circum­stances surrounding the commission of the principal's act, will suffice to incriminate the accessory in respect of offences other than those of intention and of strict liability, the well-known and often cited state-

6ment of the English Court of Criminal Appeal in Johnson v. Youden (1950) , i.e., th. t a person cannot be convicted of aiding and abetting the commission of an offence if he does not know of the "essential matters" which [wouldj constitute this offence, must be read in a qualified way. Johnson v. Youden itself dealt with the mental element required for secondary participation in an offence of strict liability, and is to be read in this light.Plainly it has not been relied upon as requiring that the accessory must possess such a knowledge, in respect of offences of recklessness, negligence or constructive liability. *

Further comments will now be made in respect of the above categories of offence:

(II) OFFENCES OF INTENTION

As noted above, the accessory must at the relevant time, know that the principal is committing, or that he will commit the criminal act of an offence of this type in those circumstances which disclose its criminal nature.

This principle of accessorial mens rea is a straightforward one, and the courts have never expressly confirmed it in decisions concerning this type of offence, assuming that the requirement that the accessory must possess the same degree of knowledge of relevant matters as is required of the principal, is too obvious to warrant statement. Most of the reported complicity cases of course assume this principle sub silentio. 6

(6) [1950] 1 KB 544 at 546.

154

(III) OFFENCES OF CONSTRUCTIVE LIABILITY(A) CONSTRUCTIVE MURDER

The courts have always assumed that it is enough that the accessorypossesses the same knowledge of the relevant circumstances of an offenceof felony murder at common law or under statute, as is required of theprincipal. Thus, where felony murder at common law is concerned, it issufficient that the accessory knows that the principal is committing, orthat he will possibly commit a felony and that, moreover, the principalmay, in the course of committing this felony, commit a violent or dangerous

7act. Neither the principal or accessory need foresee that this act will, or might cause death.

Certain of the authorities dealing with accessorial incrimination8in offences of constructive murder are discussed in the following chapter.

(B) CONSTRUCTIVE MANSLAUGHTERIt has been well-settled in England that the commission of an act

which is both unlawful (in the sense of amounting to a crime) and dangerous(i.e., is of such a nature^that a reasonable man would recognise that itwould expose some person to the risk of some harm, though not necessarilyserious harm), and which causes death, renders the perpetrator guilty of

9manslaughter. Though the defendant must have the mental element appropr­iate to the foundational crime, it is unnecessary that he should appreciatethat his act is dangerous, in this sense.^ This doctrine is also applicable

11in Australia at common law. As well, there is ^Australian authority to 7 8 9 10 11

(7) See the discussion of the ingredients of felony murder in Howard at p.56ff.

(8) See p.?07ff*(9) See for example Larkin [l943] 1 All ER 217; Church [l966] 1 QB 59;

Lamb [1967] 2 QB 981; DPP v. Newbury [l976] 2 WLR 918 (HL); Daley [1979] 2 WLR 239 (PC).

(10) See for example DPP v. Newbury, id., at 922 (Lord Salmon).(11) See for example Mamote-Kulang of Tamagot v. The Queen (1963-64) 37

ALJR 516 at 522-3 (Windeyer J) ; Turner~~[l962] VR 30; Holzer [.1968]VR 481 at 482 (Smith J); though note that his Honour conceived the test of dangerousness in somewhat different terms, being of the view that the act could only be so regarded if a reasonable person in the defendant's position" would have realised that he was exposing another or others to an appreciable risk of really serious injury."

And see generally Howard at 108ff. for the common law position in Australia, and at pp.114-5 for a discussion of the relevance of the concept of constructive manslaughter under the Australian Criminal 'Codes.

For the New Zealand situation see the Crimes Act, 1961, s.160.

155

the effect that the doing of an unlawful act with an intention to hurt, although it is not intended to be fatal or to cause grievous bodily harm, and which act causes death, renders the assailant guilty of manslaughter.

Notwithstanding some earlier contention that as involuntary manslaughteramounted to an unpremeditated killing, it was not possible for a person to

13become an accessory to such a killing, it is now well-settled in Englandthat a person may become an accessory to constructive manslaughter at common

14 15law. The same is true in Australia, and it has likewise been confirmedthat a person may be incriminated as an accessory to manslaughter in theCode States (i.e., pursuant to each Criminal Code) In New Zealand,similarly, it has been recognised that a person may become an accessory to

17a statutory crime of involuntary manslaughter.

In all of these decisions, it is apparent, the court accepted that the alleged accessory needed to have no fuller an awareness of the essential matters of the crime than was required of the principal. Thus, it would be sufficient, where the unlawful and dangerous act doctrine is relied upon, that the defendant sought ^o be convicted as an accessory knew that the principal was committing, or that he would possibly commit the act which grounds liability for the foundational crime; and he must further have had the same awareness as to the surrounding relevant circumstances as is 12 13 14 15 16 17

(12) Mamote-Kulang, id., at 523 (Windeyer J); Holzer, id. at 483, 5 (Smith J).(13) For decisions which were ambiguous as to whether or not this was so,

see Hargrave (1831) 5 Car & P 170, 172 ER 92*5; Mastin (1834) 6 Carr & P396, 172 ER 1292; Gaylor (1857) Dears & B 288, 169 ER 1011, citing 1 East PC 218 and 2 Hale PC 437 (at 291/1012); and see the discussion in Creamer [1966] 1 AB 72 at 80, citing Blackstone, 4 Commentaries (23 ed) at p.38.

(14) See for example Gaylor, id.; Buck (1960) 44 Crim App R 213; Creamer, id., Anderson [1966] 2 AB 110 (though note that the Court of Criminal Appeal quashed such a conviction on this occasion, having regard to the facts); Reid (1976) 62 Crim App R 109.

(15) See for example Varley v. R. (1976) 12 ALR 347 (HC); Markby v. R. (1978)21 ALR 448 (HC) (both decisions confirmed that a person could be incriminated as an accessory to the statutory crime of manslaughter contained in s.l8(l)(b), which reproduces the common law offence of manslaughter); Levinger (1869) 6 WW & AB 147 (Vic.).

(16) See for example Brennan v. R. (1936) 55 CLR 253; Borg v. R. [l972] WAR 194; Murray v. r5 [T9T 2] Tas SR 170; Frost v. R. [1969] Tas SR 172.

(17) E.g., Malcolm [l95l] NZLR 471; Morrison ^1968] NZLR 156. (The recognitionthat manslaughter attracted the doctrine of accessoryship was purely obiter in these two cases. In fact in both pf them the appellant's. . , .convictions for murder were upheld.)

156

required by the perpetrator of this crime; and finally, he must, like the principal, have known of those circumstances which disclose that this act was in the relevant sense dangerous - though neither of them, of course, need to have drawn this inference.

(IV) OFFENCES OF RECKLESSNESS

The reported cases in the subject jurisdictions disclose few instances of acces orial incrimination in offences of recklessness. All of them concern negligent manslaughter at common law.

Though this category of manslaughter is usually so described, i.e.,as consisting in the doing of a negligent act causing death, it is thoughtthat modern authority is to the effect, rather, that the perpetrator mustact recklessly; i.e., that he must advert to the fact that his conductproduces a risk that a person or persons will suffer harm. This wouldappear to have been in Lord Atkin's mind in the leading decision of

18Andrews v. DPP (1937) when he said that of all the epithets which can*be used to characterise the requisite degree of negligence, "reckless"

is the most appropriate; though he said further that it may not cover allsuch cases, "for reckless suggests an indifference to risk, whereas theaccused may have appreciated the risk, and intended to avoid it, and yethave shown in the means adopted to avoid the risk such a high degree of

19negligence as would justify a conviction." Although Lord Atkin identified only one of these situations as amounting to recklessness, it is clear that he recognised that the defendant must be recognisant of the element of risk. Today both of these instances of misconduct would be viewed as constituting recklessness. It is unnecessary for this, that the individual must have acted with indifference to the prospect of harm - he may nonetheless be regarded as being reckless, even though he may have desired that the consequence should not happen. (But to reiterate: whatever the labelling, Lord Atkin and with him, the other law lords were clearly of the view that the defendant has to consciously engage in wrongdoing.) 18 19

(18) [1937] AC 576.(19) Id., at 573.

157

That the crime does not require advertence to risk has subsequently20 21been confirmed, both in England and Australia.

As noted, the courts have (in several older English cases) confirmed22that a person may become an accessory to this category of manslaughter.

In each of them it was clearly accepted that an accessory to negligent, or reckless murder did not need to have any more comprehensive a knowledge of the relevant circumstances surrounding the performance of the risk- producing conduct, than did the principal. Thus, in the light of the modern definition of the crime, it would be sufficient that the accessory knows that the principal does (or will) perpetrate the relevant conduct, and further, that this conduct does produce the risk that physical harm may thereby result to another person or persons.

(V) OFFENCES OF NEGLIGENCE

The reported cases in the subject jurisdictions concerning accessorialliabilit' for offence of negligence deal with this party's incrimination instatutory offences of this^character. (This is not surprising, in thatvirtually all crimes of negligence, i.e., of inadvertent carelessness, are

23of statutory creation. Very few common law crimes of negligence exist. )Thus, it has been confirmed in England that a person may become an accessory

24to an offence of causing death by dangerous driving, and one of careless

(20) See for example the English Court of Appeal's decision in Stone [1977]2 All ER 341 at 347. %

(21) Holzer [1968] VR 481 at 482 (Smith J.).(22) See Mastin (1834) 6 Car & P 896, 172 ER 1292; Swindall (1846) 2 Car & K

230, 175 ER 95; Salmon (1882) 6 QB 79. (In this latter case, threemen practised firing at a target in a field with a rifle which was deadly for a mile. They did not realise that a boy had climbed a tree in a field some 400 yards distant to the rear of the target which was itself some 100 yards from the firing point. One of the shots had killed him. Each was convicted of the offence on the basis that he was either a principal or an aider.)

(23) Williams, CLGP at p.115.(24) Harris [1964] Crim LR 54 (the defendant supervisor of a person with a

provisional driver's licensed failed to intervene when the driver increased the speed of the vehicle to a dangerous level, as a result of which the vehicle struck and killed a pedestrian); Robert Millar (Contractors) Ltd. [l97o] 2 QB 54 at 66 (the appellant company and its managing director were convicted of counselling this offence, in that they sent a heavily laden lorry out on the road with a manifestly defective tyre, as a result of the failure of which a fatal collision occurred).

That this offence (which has since been abolished by the Criminal Law Act, 1977, was an offence of negligence, is confirmed in Smith and Hogan at pp. 88-9.

158

driving; and it has been confirmed in New Zealand that a person may be an26accessory to another s offence of careless drivxng.

In each of these cases it was clearly assumed that the alleged accessory need not possess any more comprehensive a knowledge of the relevant facts of the offence than need the principal; viz , it will be enough in such a case that the accessory knows that the principal does (or that he possibly will) commit the relevant conduct in those circum­stances which disclose to the reasonable onlooker that it produces the requisite degree of risk, even as neither the principal nor the accessory himself, of course, needs to have drawn this inference as to its negligent character.

(VI) OFFENCES OF STRICT LIABILITY (A) INTRODUCTION

An offence of strict liability has been described in the preceding chapter as one which while not being in form one of recklessness, or negligence, is so defined as to require no more of the defendant than that he should voluntarily commit (or cause the commission of) its physical element, even as he is unaware of any such surrounding circumstances as disclose that this consequence amounts to a crime.

The conventional description of this type of offence which is foundin the reports is that it is an offence which does not require mens rea,in the sense of a guilty mind. This is reflected- in the frequently cited

% 27statement of Wright J. in Sherras v. de Rutzen (1895), in referring to offences of this type:

(25) Ruble v. Faulkner [ 1 9 4 0 ] 1 KB 571 (where the supervisor of a learner- driver failed to intervene when the pupil drove "without due care and attention" (Motor Vehicles (Driving Licences) Regulations 1937 (UK), reg. 1 6 ( 3 ) (a); and see Thornton v. Mitchell [ l 9 4 o ] 1 All ER 339 where the conductor of a bus had been convicted of aiding the drivet in driving without due care and attention and with driving without reasonable consideration for other persons using the road (Road Traffic Act, 1930 (UK) (c.43) s . 1 2 ( 1 ) ) . He had signalled the driver that the road was clear so as to permit him to reverse the bus; in fact it was not and struck and killed a pedestrian. The conductor was exonerated solely upon the basis that as the driver had not himself been guilty of either offence, there could be no accessory. (On this latter point see p.6,259).

(26) See Theeman v. Police [1966] NZLR 605, where the supervisor of a learner- driver was exonerated of aiding and abetting the latter's offence of careless driving solely on the facts.

(27) [1895'] 1 QB 918 at 921....................................................

159

There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of an act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.

As it has been suggested in the previous pages, the authorities are in the main consistent with a principle of parallelism, whereby the accessory is required to have the same awareness as the principal of the essential circumstances constituting the subject offence, no less and no more, whether it be an offence of intention, constructive liability, recklessness or negligence. In most of those of the subject jurisdictions in which the courts recognise the doctrine of strict liability, however, this principle is inapplicable in the context of the absolute offences.In these jurisdictions, the courts have instead required that (to cite thewell-known words of the Queen's Bench Divisional Court in Johnson v

2Youden (1950) ) the accessory to such an offence must have known of the"essential matters" constituting it, i.e., that he must have known that theprincipal's act was, or would be committed in those circumstances disclosingits criminal nature. In this respect, of course, his position is stronglydistinguished from that of the principal. In effect, therefore, in thesejurisdictions an offence of strict liability must be treated as being an

29offence of intention where the accessory is concerned. (Though this is not to say that the accessory cannot in certain situations be incriminated on the basis of recklessness; for example, by resort to a principle of constructive knowledge.

The exceptions to this analysis are encountered in South Australia (where the principle of parallelism has been applied, so that the accessory need not oossess comprehensive knowledge of the relevant circumstances), and in Queensland (where the Supreme Court has held that the common law 28 29 30

(28) [1950] 1 KB 544 at 547.(29) See p. 21 .(30) See p.163 below,- and for a general discussion of

recklessness in relation to accessorial liability see pp. 45,474ff.,486ff•

160doctrine of strict liability is inapplicable, so that the issue of secondary liability for an offenco of this type does not anise)* Because of these two points of divergencet it is convenient to discuss this issue of accessorial liability in relation firstly to the jurisdictions possessing the common law of crime, and secondly, to those jurisdictions possessing a codified criminal law.

(B) THESTANDARD COMMON IAW ANALYSIS (ENGLAND, NEW SOUTH WALES AND VICTORIA (1) The Principle of Full Knowledge (a) England

The English decisions prior to 1950 were inconclusive as to whetherthe accessory to an absolute offence needed to know of all of the relevantcircumstances of this offence. On several reported occasions anAppellate Court upheld the convictions of appellants for secondary partici-

(31)pation in absolute offences where they were without this knowledge. Intwo of the cases the appellants were observed to have been careless intheir conduct but these remarks were meant as elaborative detail only,rather than as a stipulation of a formal legal requirement that theaccessory needed to have acted negligently for the purpose of incrimination

32in an absolute offence.

By way of contrast the Queen's Bench Divisional Court in 1900 and the King's Bench Divisional Court in a number of cases in the succeeding, years^ 31 32 33 34

(31) Provincial Motor Cab Co. Ltd, v. Dunning [l909] 2 KB 603; Wheat (1921) 2 KB 119 (the two parties to a bigamous marriage were convicted of bigamy, as principal - the party already married - and as accessory. The court held that it would be of no consequence even had they both believed on honest and reasonable grounds that the principal had been divorced.Such was the finding of the jury. In relation to the offence of bigamy itself, which was first enacted in English law in 1603 (in I Jac I, c.LL) it. has since been confirmed that an honest belief on reasonable groundsin his or her freedom to marry does give the principal a complete defence: See Thomas (19 37) 59 CLR 2 70; Gould [.1968] 2 Q b 65; Carter v. Mace [194? ] 2 All ER 714). “

(32) Provincial Motor Co. Ltd, v. Dunning, id; Carter v. Mace, id.(33) Callow v. Tills tone (.1900) 19 Cox CC 576 (A veterinarian who allegedly

counselled or procured a farmer to sell impure beef in breach of a regulatory offence by negligently certifying it to be sound had his conviction for this offence quashed on the basis that mere negligence could not suffice in these circumstances).

(34) Olivers v. Hand (1914) 24 Cox CC 520 (where it was held that a person who purchased goods from a shopkeeper on Sunday was not. an accessory to an off nee by the shopkeeper under the Sunday Observance Act, 1677 (UK) of carrying on his ordinary calling upon a Sunday, in that he did not know that the instant sale was but one of a continuing sequence of sales such as would constitute the carrying on of a calling (j.e. , in this case, retail, business) ) ; Bowker v. Premier Drug Co. Ltd. fl928] 1 KB 217.

The- twin case of Fairburn -y.- Evans'Tl 916'] 1 KB 218 was' in conformity with the decision in Chivers v. Hand; here, however, the appellant was held to have been properly convicted on the basis that he had this wider knowledge.

1 6 1

held that the defendant must have full knowledge of the vital circumstances35of the offence to become an accessory.

3 6In Johnson v . Youden ( 1 9 5 0 ) the X i n g ' s B e n c h D i v i s i o n a l C o u n tfinally resolved the issue by stipulating that the accessory must have fullknowledge in these terms. It is because there has not been a contrarydecision since, and because the basis of decision was expressed so emphatically,that Johnson v. Youden is now cited as the leading authority in this area.The facts in Johnson v. Youden came before the court by way of a case statedby the justices. The three appellants were partners in a firm of solicitorswho had been charged with aiding a builde;r to sell a house at a price exceeding

3 7that stipulated by legislation. Their firm had acted for the builder on thesale of the house. The excess part of the price was to be paid under theguise of a collateral bargain, an arrangement described by the

3 8Divisional Court as a mere "colourable" device. The court exonerated two ofthe three partners not directly concerned with the conveyance in that theydid not ) low of the "essential matters" which would constitute the offence,

3 9this being required for aiding and abetting. By this formulation was obviously meant those facts which must be proven in order to convict a person of the offence, not merely those which must be proven to have been within the knowledge of the principal offender (though on these facts, obviously, the principal necessarily knew of all of the material circum­stances in that he set the illegal price). 35 36 37 38 39

(35) But note, however, that in Gough v. Rees (1929) 29 Cox CC 74 the court, while affirming that a man "cannot counsel or procure unless he knows and intends what is to be done" (at 80) evidently accepted that such an alleged accessory could be deemed to be thus knowledgeable if he knew that an offence "would happen unless he took precautions" (at 80). In other words negligence, or perhaps wilful oversight, would inculpatean accessory. This notion is discussed at p.16j below.

(36) [ 1950] 1 KB 544.(37) The Building Materials and Housing Act, 1945 (UK) s.7(l). This offence

was an absolute one.(38) Johnson v. Youden [l95o] 1 KB 544 at 547.(39) Id.

162

It would not be enough therefore, merely for the two exoneratedpartners to have known that the sale was to be handled by their office,if they were ignorant as to the price. But the court remitted the caseto the justices with an order to convict the third partner, on the basis

40that the story told to him by his client was "on the face of it a mere41colourable evasion" which put him on enquiry. He should therefore have

investigated the client's story. As he did not do so, either through42neglect or through wilful oversight, he was affected with constructive

knowledge of the actual price. The court thereby allowed that the general principle requiring full knowledge of the essential circumstances by the accessory in respect of absolute offences was to be qualified by a principle of constructive knowledge. This issue is examined below.

The Johnson v. Youden analysis has been confirmed in a succession of„ ,. . 43English cases.

(b) New South Wales and VictoriaIt was assumed as early as in 1913 by a judge of the Supreme Court of

Victoria that to be convicted of being an accessory to an absolute offencev 44a person needed to have full knowledge of the essential circumstances. 40 41 42 43 44

(40) The builder's story was that he had placed the additional money in a separate deposit account to be spent on payment for such work as the builder might be called upon by the owner to do to the house in the future. The partner handling the sale was informed of this arrange­ment by the purchaser's solicitor prior to completion.

(41) Johnson v. Youden [l95o] 1 KB 544 at 547. %(42) See p.I6}ff.(43) Ackroyd's Air Travel Ltd. [1950] 1 All ER 933; Thomas v. Lindop [l95o]

1 All ER 966; Ferguson v. Weaving [l95l] 1 KB 814; Smith v. Jenner [1968] Crim LR 99; D. Stanton & Son v. Webber [l972l~ Crim LR 544 (in each of the last four cases the appellants were exonerated on the facts).

(44) Canty v. Ivers (1913) 19 Argus LR 403 (Hood J). (The appellant, a waiter, was exonerated of aiding his employer, who was a cafe proprietor, in selling alcoholic drinks after 11.30p.m. in breach of the latter's licence. The waiter testified that he thought that the liquor had been ordered prior to 11.30. Mr. Justice Hood spoke of some "mysterious arrangement" at the cafe whereby people gaves order prior to 11.30 which were subsequently to be supplied from neighbouring hotels, but noted as well that there "was evidence from which it might have been inferred that the defendant honestly believed that he was not aidingand abetting an illegal sale" (at 405). Needless to say Hood J. made no reference to any concept of constructive knowledge, and the decision might perhaps have been decided differently in more recent years. See this chapter at p.

163

This principal was confirmed in subsequent Victorian decisions. A recentdecision of the Full Supreme Court of New South Wales adheres to this

, 46approach.

(2) Constructive or Imputed Knowledge Sufficient for LiabilityThe concept of constructive (or imputed) knowledge in the criminal law

47has been referred to in the previous chapter . As noted there the phrasemay be applied to the rule according to which a person who is not actuallyknowledgeable of a certain fact or facts (cognisance of which is essentialto his incrimination) may be deemed to be thus knowledgeable, on the basis(to use Devlin J.'s words, in an English Divisional Court decisionthat he deliberately "shut [his] eyes" to the existence of this fact or

48facts. Devlin J. evidently had in mind the situation where, after having been put on notice of the possible existence of a given fact or facts by another fact or facts, the defendant has deliberately chosen not to make enquiries, although a reasonable man, placed in his situation, would do th i s.

Numerous of the authorities dealing with this principle concern accessorial incrimination in absolute offences. They confirm that an accessory can be deemed to have knowledge of all of the relevant circum­stances of an offence, and thus be convicted, by resort to it.

There are, it is true, some earlier exceptions to this analysis.

In England the possibility that an accessory could be constructively knowledgeable was ignored prior to 1929 in at least two cases the facts of 45 46 47 48

(45) Abley v. Crosario [1946] VLR 53; Blackmore v. Linton [l96l] VR 374 (where the court expressly observed that to be liable as an accessory to an absolute offence, the defendant had to "have been aware of the essential matters which constitute that offence" (at 377).

(46) Glennan [l970] 2 NSWLR 421. This decision renders otiose the remarkof Davies J. in ex parte Coorey (1944) 45 SR (NSW) 287 that the English decision in Provincial Motor Cab Co. Ltd, v. Dunning [1909] 2 KB 599 established that in respect of absolute offences the aider did not need to have full mens rea for conviction any more than did the principal offender (Coorey ,t 310, citing Provincial Motor Cab Co. Ltd, v. Dunning at 602, 3). The comment was purely obiter; he regarded the offence charged here, which was created by the Black Marketing Act, 1942 (Commonwealth) as requiring mens rea in any event (at 311). Ex parte Coorey was not cited in Glennan.

(47) See p. 109ff.(48) I.e. , as opposed to inadvertent oversight of them: in Roper v Taylor1 s Central.

Garages Ltd. (1951) 2 TLR 284.

1 tu;

which would have otherwise demanded that its application be considered.50The same was true of the Victorian Supreme Court. In 1929, however, the

English Court of Criminal Appeal upheld the conviction of the proprietor ofa bus company for counselling the commission of an offence by a conductoremployed by his company, in that the defendant had failed to take adequate

51steps to prevent instances of overloading by the conductor. The defendanthad previously been convicted of this offence on a number of occasions so

52that "he knew what would happen unless he took precautions."

53In Johnson v. Youden (1950), the facts of which have been noted,t h e King’s Bench D i v i s i o n a l C o u r t h e l d t h a t i f a n alleged accessory i s p u t o n e n q u i r y a s t o t h e e x i s t e n c e o f a f a c t w h i c h w a s e s s e n t i a l t o t h e c o m m i s s i o n b y t h e p e r s o n a i d e d o f a n o f f e n c e , i n c i r c u m s t a n c e s w h e r e t h e l a t t e r s o u g h t t o d i s g u i s e t h i s f a c t b y a s t o r y w h i c h w a s " o n t h e f a c e o f i t " a " c o l o u r a b l e e v a s i o n " o f t h e s t a t u t e c r e a t i n g l i a b i l i t y , t h e n t h e a l l e g e daccessory would be constructively knowledgeable of this fact, assuming that

54h e m a k e s n o g e n u i n e e f f o r t t o e n q u i r e i n t o t h e m a t t e r .

But exactly what degree of awareness or suspicion must the defendanthave as to a material circumstance before he is constructively knowledgeable?

55In Davies, Turner and Co. Ltd, v. Brodie (1954) the same court observedthat knowledge of the relevant circumstances could be imputed to an accessoryif he "shuts his eyes to the obvious or, perhaps, refrains from making any

56enquiry where a reasonably sensible man would make enquiry." On this 49 50 51 52 53 54 55 56

(49) Chive cs v. Hand (1914) 24 Cox CC 520; Bowker v. Premier Drug Co. Ltd. ri92f:r 1 KB 217.

(50) Canty v. Ivers (1913) 19 Argus LR 403,(51) Which was an offence under the Railway Passenger Duty Act, 1848 (UK) .(52) Gough v. Rees (1929) 29 Cox CC 74 at 80.(53) [1950] 1 KB 544.(54) Johnson v. Youden [l95o] 1 KB 544 at 547.(55) [1954] 3 All ER 283.(56) Id., at 286.

165

occasion the court quashed the appellant's conviction on the basis that itlacked even constructive knowledge of a vital circumstance. There had been

57no deliberate oversight of suspected facts, nor even simple negligence.This formulation of abstract principle in Davies, Turner and Co. Ltd, v.Brodie is as accurate and fulsome as any offering in this line of cases.Certainly a defendant who hides from the facts by a process of wilfuloversight is to be regarded as constructively knowledgeable. And Johnsonv. Youden (1950)^ as well as Davies, Turner and Co. Ltd, v. Brodie isauthority for the proposition that a person who is put on notice as to thepossible existence of a vital fact by knowledge of another fact or factswhich arouse reasonable suspicion of this vital fact and who refuses to

59investigate further, is constructively knowledgeable. But will mere unthinking negligence, or carelessness as to the existence of a vital fact result in the defendant being imputed with knowledge of it? The answer would appear to be no. Unless the circumstances known to the defendantattain the threshold of provoking reasonable suspicion as to the existence

60of the vital fact, there is no constructive knowledge. 57 * 59 60

(57) The court distinguished its own previous decision in Carter v. Mace [1949] 2 All ER 714 as being factually different, which it was, in that here the circumstances were such as to insist on enquiry. Carter was scarcely so restrictive, however; the decision (which predated Johnson v. Youden [l95o] 1 All ER 300) clearly assumed that an accessory need not have full mens rea in the first place. It was not elaborated in terms of a culpable oversight or failure to enquire.

(58) Id.(59) A sentiment repeated in substance in Poultry eWorld Ltd, v. Conder [1957]

Crim. LR 803 where the English Court of Criminal Appeal said that a deliberate abstention from obtaining knowledge would suffice for constructive knowledge; and in D. Stanton & Son Ltd, v. Webber (1972) Crim. LR 544.

(60) In D. Stanton & Son Ltd, v. Webber, id. , the English Court of Appeal noted at 545 that mere laxity in carrying out a duty of care was insufficient to convict of aiding and abetting (i.e., an offence of strict liability).

Poultry World Ltd, v. Conder, id. , is another example of a case where the Court of Criminal Appeal quashed the conviction of an alleged accessory to an absolute offence. In this case clearly the circumstances known to the defendant did not attain the threshold of reasonable suspicion.

And see Smith v. Jenner [l968] Crim. LR 99.

This analysis is supported in the observation of the New South Wales Court of Criminal Appeal in Glennan (1970)^’ that it is enough for conviction if the alleged accessory to an absolute offence

either knew or suspected the existence of facts which would constitute the commission of the offence or, perhaps, that he acted recklessly, not caring whether the facts existed or not. Mere failure to make an enquiry which, if made, would yield knowledge of the essential fact, is not in itself enough to constitute knowledge of the fact, for it is accepted that to act negligently does not make a person an aider andabettor.62

The court affirmed too that a deliberate oversight of a suspected (and essential) fact would likewise be tantamount to actual knowledge in the defendant.

(C) SOUTH AUSTRALIA - AN EXCEPTION TO THE STANDARD COMMON LAW ANALYSIS In two decisions prior to 1965 the Supreme Court of South Australia

quashed the conviction of alleged accessories to absolute offences wherethese appellants lacked knowledge of the essential circumstances of the

6 3offence, on this ground expressly. In the 1965 decision of Lenzi v.64 IMiller, however, the Full Supreme Court of South Australia upheld a

decision by Chamberlain J. sitting as a single judge, to confirm the conviction of the appellant as an accessory to an offence of strict liability notwithstanding that the prosecution had not proven that he had this comprehensive knowledge. The prosecution had alleged that the appellant had aided or counselled the principal to drive an uninsured vehicle upon the road, this being an offence under the Motor Vehicles Act, 1959-62 (SA). The magistrate did not believe that the question of whether or not the appellant had been < jnorant of the central fact that the vehicle was uninsured was germane, given that the offence was an absolute one. As it happened, however, he had not been prepared to find beyond reasonable doubt that L knew of this fact. 61 62 63 64

(61) [1970] 2 NSWLR 421.(62) Id., at 425; citing Callow v. Tillstone (1900) 83 TLR 11. The court

upheld the appellant's conviction for aiding another person to drive his car while the latter possessed the prescribed concentration of alcohol in her blood so as to put her in criminal breach of The Motor Traffic Act, 1900-68 (NSW), s.4E(l). He had sat beside her while she drove.

(63) Allchurch v. Cooper [1923] SASR 370; O'Sullivan v. Bastian (No. 2) [1948] SASR 17.

(64) (1965) SASR 1.

167

In Mr. Justice Chamberlain's view the accessory to an absolute offenceneeded no higher awareness of the material circumstances of the offence thanwas required for the principal. He rejected the proposition that "becausethe responsibility of secondary parties exists at common law [it] is therefore

G 5subject to the common law requirement of mens rea." In substance hisobjections were twofold. Firstly, in his view there is at common law a nexusbetween the mens rea requirement of a principal and an accessory in respectof indictable offences, whereby the same degree of knowledge and intention wasrequired in each, and it was reasonable to suppose that the legislatureintended to maintain this relationship when it imported the common law doctrineof accessoryship into the realm of summary offences, where offences of strict

66liability are a "common phenomenon." In other words, he was postulatingan unqualified principle of parallelism between principals and accessoriesin respect of mens rea. If therefore, the principal did not need to have fullmens rea, then neither did the accessory. Secondly, there were policy reasonsfor incriminating accessories as readily as principals, for the summary offence

6 7"more often than not" was aimed mainly at the accessory.

The first of these objections is an attractive one. Generally, it hasbeen seen, the secondary mental element (i.e., that pertaining specificallyto the offence) required of the accessory does parallel that required of thep r i n c i p a l B u t t h i s a rg u m en t o v e r lo o k s th e c o n s id e r a b le a u t h o r i t y in E n g lan dand in Australia, including that in South Australia, which indicates that

68an exception is to be made in the context of absolute offences. The second69is likewise defensible. „ 65 66 67 68 69

(65) Id_., a t 3 , c i t i n g W illia m s in C r im in a l Law - The G e n e ra l P a r t (1 e d . , S te v e n s , London, 1953) a t p p .2 1 3 -1 4 . See now th e 3 rd e d . (1961) a t p .3 9 5 .

(66) S t r i c t l y , s .5 3 o f th e J u s t i c e s A ct (SA) m e re ly r e s t a t e d th e common law d o c t r i n e o f c o m p l ic i ty a f f e c t i n g summary o f f e n c e s : s e e p p . 2 1 f f . , 34*

(67) L en z i v . M i l l e r [ l9 6 5 ] SASR 1 a t 3.(68) D e c is io n s w h ich w ere g iv e n , m o re o v e r, a g a i n s t th e b a c k g ro u n d o f l e g i s ­

l a t i o n i n a lm o s t i d e n t i c a l te rm s to th o s e o f s .5 3 o f th e J u s t i c e s A c t,1921 (SA) .

I t h a s b een e s t a b l i s h e d in Canada l ik e w is e t h a t th e a c c e s s o r y t o an a b s o lu t e o f f e n c e m u st h av e f u l l mens r e a : s e e F . W. W oolw orth Co. L td .(1975) 18 CCC (2d) 23 .

(69) S ee p. 1 76 b e lo w .

168

Mr. Justice Chamberlain considered that "none of them [i.e., theauthorities] supports the appellant's claim that in order to convict anaccessory of an absolute offence it is necessary to prove the case as if

70mens rea were a necessary element." This interpretation of the cases mustbe disputed. Certainly one of the decisions cited, i.e., Provincial Motor

71Cab Co. Ltd, v. Dunning (1909) does not require full knowledge on thepart of the accessory. But this is an earlier case which clearly has beenimpliedly overruled in Britain, especially since the time of Johnson v. Youden

72(1950). Several of the other decisions cited by him clearly demonstrate thatcognisance of essential matters in the form of actual or constructive knowledge,

73is required for accessorial liability.

What appears to have influenced Chamberlain J's interpretation of theauthorities is the assumption of parallelism between principal and accessory,i.e., that to convict the latter no greater an awareness than was requiredto convict the principal was needed. This certainly guided his interpretation

74of Johnson v. Youden (1950); here, as he saw it, they know the actual price to be charged, so that "the same degree of knowledge had to be proved against the accessory [i.e., as for the principal], no less and no more."^ Now as a practical proposition, in the limited circumstances of Johnson v. Youden Chamberlain J's rule would have given the same result as did that formal principal of accessorial mens rea propounded in the more recent decisions of the Lnglish courts (i.e., that the accessory must have full knowledge of the essential circumstances of the offence). But this is only because the absolute offence in Johnson v. Youden (i.e., selling real estate in excess of a prescribed price) was such that the principal, if he was guilty at all, necessarily had to know of all of the material circumstances of the case.On the other side of the line, numerous statutory offences are of a type which do not necessarily involve that the person perpetrating them (or at least, the actus reus of each of them) will ipso facto have this comprehensive 70 71 72 73 74 75

(70) Lenzi_ v. Miller [.1965] SASR 1 at 7.(71) [1909] 2 KB 599.(72) [l950] 1 KB 544.(73) Bowker v. Premier Drug Co. Ltd. [1928] 1 KB 217; Thomas v. Lindop [l95o]

1 All ER 966; Wilson v. Dobra (1955) 57 WALR 95.(74) [i960] 1 KB 544.(75) Lenzi v. Miller [l965] SASR 1 at 5.

169

k n o w led g e . L en z i v . M i l l e r i t s e l f i s co n cern ed w ith su ch an o f f e n c e - a.p e r s o n d r iv in g a n o t h e r 's c a r may g iv e no th o u g h t a t a l l t o th e q u e s t io n o fw h e th e r i t i s i n s u r e d . And th e r e a r e o th e r r e p o r te d c a s e s w here th e a c c e s s o ryh a s b e e n e x o n e r a te d (o r h i s l i a b i l i t y upheld ) by r e f e r e n c e to th e q u e s t io no f w h e th e r o r n o t he p o s s e s s e d f u l l know ledge, in c i r c u m s ta n c e s w here th eo f f e n c e was n o t in su ch te rm s as to n e c e s s a r i l y in v o lv e t h a t a l l p e r s o n sco m m ittin g i t s c r im in a l a c t w ould have know ledge o f a l l o f th e m a t e r i a l

76c i r c u m s ta n c e s . In d e e d i f th e r e w ere n o t o f f e n c e s o f t h i s ty p e , th e77d o c t r i n e o f s t r i c t l i a b i l i t y w ould n e v e r have b een e v o lv e d .

H is H o n o u r 's p r i n c i p l e o f p a r a l l e l i s m becom es r a t h e r m ore c o n t e n t i o u s , th e r e f o r e ,w h e n a p p l i e d in c a s e s o f t h i s ty p e . C e r t a in ly i t i s no lo n g e r c o n te rm in o u s w ith th e Jo h n so n v . Youden r a t i o in th e p r a c t i c a l r e s u l t s to w hich i t s o p e r a t io n w ould g iv e r i s e , j u s t as i t was q u i t e c o n t r a r y to t h i s r a t i o and th e num erous e n d o rse m e n ts o f i t in s u b s e q u e n t c a s e s . When th e c o n t r a s t b e tw een th e s e two ty p e s o f r e g u la to r y o f f e n c e i s b o rn e in m in d , i t i s c l e a r t h a t Mr. J u s t i c e C h am b erla in d id n o t a d e q u a te ly e x p la in Jo h n so n v . Youden and i t s s u c c e s s o r s . H is d e c i s io n , though i t e n d o rs e d t h a t in Jo h n so n v . Y ouden, was in th e f i n a l ^ a n a l y s i s q u i t e in c o m p a t ib le w ith Jo h n so n v . Y ouden. 76 77

(76) See Gough v . Rees (1929) 29 Cox CC 74 (w hich i t h a s b e e n s e e n c o n c e rn e d th e c o u n s e l l i n g by a b u s company p r o p r i e t o r o f an o f f e n c e b y a c o n d u c to r o f o v e r lo a d in g h i s b u s . As p r i n c i p a l th e c o n d u c to r d id n o t n e c e s s a r i l y a c q u i r e know ledge o f th e f a c t t h a t th e number o f p a s s e n g e r s on h i s b u s e x c e e d e d t h a t p r e s c r i b e d by la w , in th e s im p le a c t o f a l lo w in g p e o p le to b o a rd . He may s im p ly h av e b een c a r e l e s s . And s e e A llc h u rc h v . C ooper(1923) SASR 370 (w here a shop a s s i s t a n t was e x o n e r a te d o f a id in g h e r em p lo y e r (a r e t a i l c h e m is t) i n th e s a le o f aft a l c o h o l i c b e v e ra g e on th e b a s i s , i n t e r a l i a , t h a t sh e was ig n o r a n t a s to th e c o n te n t s o f t h i s b e v e ra g e . She h ad s o ld a b e v e ra g e w hich c o n ta in e d m ore th a n two p e r c e n t a l c o h o l . The c h e m is t w ould n o t need to have known o f t h i s e x c e s s i n o r d e r t o b e c o n v ic te d a s a p r i n c i p a l , g iv e n t h a t th e o f f e n c e was an a b s o lu t e o n e ) . And se e G lennan [l97o] 2 NSWR 421 (where th e d e fe n d a n t was c o n v ic te d o f a id in g a n o th e r to d r iv e w h ile u n d er th e in f lu e n c e o f a l c o h o l to th e p r e s c r i b e d l e v e l . The C o u rt o f C rim in a l A ppeal r e q u i r e d t h a t he b e a c t u a l l y o r c o n s t r u c t i v e l y k n o w led g eab le o f t h i s , b u t e x p r e s s ly o b s e rv e d t h a t th e d r i v e r , a s p r i n c i p a l , d id n o t need t o h av e any su ch a w a re n e ss( a t 2 4 ) .

The f a c t s i n K urucz v . Mayne [ l9 6 6 ] SASR 82 w ere s i m i l a r t o th o s e in th e l a t e r c a s e o f G le n n a n , b u t on t h i s o c c a s io n th e c o u r t u p h e ld th e c o n v ic t io n o f th e a i d e r in r e l i a n c e upon L en z i v . M i l l e r [1 9 6 5 ] SASR 1 , c o n s id e r in g i t t o be i r r e l e v a n t w h e th e r o r n o t h e h ad know ledge o r s u s p ic io n a s to th e p r i n c i p a l ' s i n t o x i c a t i o n .

(77) I . e . , i f a l l p r i n c i p a l s n e c e s s a r i l y a c q u ir e d k now ledge o f a l l o f th e m a t e r i a l c i r c u m s ta n c e s o f a c rim e by th e v e ry a c t o f p e r p e t r a t i n g i t s a c tu s r e u s .

170

The F u l l Suprem e C o u r t 's d e c i s io n in L enzi v . M i l l e r (1965) e n d o rs e dMr. J u s t i c e C h a m b e r la in 's d e c i s io n , th o u g h in som ew hat in c o n c lu s iv e te rm s .C h ie f J u s t i c e N a p ie r and Mr. J u s t i c e T ra v e rs in a j o i n t ju d g em en t c o n s id e r e dt h a t th e m a g i s t r a t e h ad b een w rong in n o t h o ld in g t h a t th e a p p e l l a n t knewt h a t th e v e h i c l e was u n in s u r e d , o r t h a t he had b e e n g u i l t y o f a d e l i b e r a t e

79o v e r s i g h t o f t h i s , so t h a t t h e i r o b s e r v a t io n s on th e g e n e r a l p r i n c i p l e s d i s c u s s e d by C h am b erla in J . a r e o b i t e r . They d id n o t e x p r e s s ly deny th e Jo h n so n p r i n c i p l e , th o u g h th e y rem arked t h a t an a c c o m p lic e w ould lo s e th e p r o t e c t i o n o f t h i s p r i n c i p l e o r a t l e a s t , w ould b e a f f e c t e d w ith c o n s t r u c t i v e know ledge o f m a t e r i a l c i r c u m s ta n c e s i f th e a c t c r e a t i n g th e o f f e n c e i s "co u ch ed in su c h te rm s a s t o im p ly a d u ty to f o r e s e e and p r e v e n t th e a c t o r th in g t h a t i s th e o f f e n c e . In su c h c i r c u m s ta n c e s , any p a r t y , who c o u ld and sh o u ld

80p r e v e n t th e a c t . . . b u t o m its t o do s o , i s a p a r t y to . . . th e o f f e n c e ."Such a p e r s o n s h o u ld n o t , h o w ev er, be p u n is h e d f o r an a c t "he c a n n o t

81r e a s o n a b ly b e e x p e c te d t o in f lu e n c e o r c o n t r o l . "

78

T hese re m a rk s a r e p ro b a b ly w id e r th a n th e d o c t r i n e o f c o n s t r u c t i v e82know ledge e n u n c ia te d in t h i s c o n te x t a t common law , and te n d t o p l a c e an

onus upon th e d e f e n d a n t to d e m o n s tra te t h a t he was w i th o u t a c t u a l o r c o n s t r u c t i v e know ledge o f th e f a c t s co n d u c in g t o i l l e g a l i t y .

83In K urucz v . Mayne (1 9 6 6 ) , h o w ev er, W a lte r s A-CJ a c c e p te d t h a t L en z i v . M i l l e r d e n ie d a l t o g e t h e r th e p r i n c i p l e t h a t to r e n d e r a p e r s o n g u i l t y a s an accessc cy to an a b s o lu te o f f e n c e he m ust b e p ro v e n t o h av e f u l l know ledge , a c t u a l l y o r c o n s t r u c t i v e l y . T h is i s i r o n i c g iv e n t h a t i n K urucz v . Mayne th e c o u r t p u r p o r te d to a p p ly th e d e c i s io n in Lenzi* v . M i l l e r , w h ich l a t t e r in t u r n p u r p o r te d t o b e in harm ony w ith t h a t in Jo h n so n v . Y ouden. The r e s u l t i s t h a t a c c o rd in g to th e m o st r e c e n t S o u th A u s t r a l i a n a u t h o r i t y th e a c c e s s o r y to an a b s o lu t e o f f e n c e i s to be t r e a t e d a s i f a p r i n c i p a l , t o th e 78 79 80 81 82 83

(78) [1 9 6 5 ] SASR 1 a t 8 f f .(79) C i t i n g E c l ip s e M oto rs P ty . L td , v . M iln e r [ l9 5 0 ] SASR 1 a t 3; s e e L en z i

v . M i l l e r , i d . , a t 10 .(80) L en z i v . M i l l e r , i d . , a t 12.(81) C i t i n g D e v lin J . i n R eyno lds v . A u s tin [ l 9 5 l ] 2 KB 135; i n L e n z i v .

M i l l e r , i d . , a t 12.(82) See p.163 above.(83) [1966J SASR 82.

171

e x t e n t t h a t he n eed n o t h ave any f u l l e r a know ledge th a n i s r e q u i r e d o f th ep r i n c i p a l , o f th e m a t t e r s c o n s t i t u t i n g an o f fe n c e o f t h i s ty p e . T h isc o n c lu s io n m ay, h o w ev er, n eed t o b e q u a l i f i e d in th e te rm s r e f l e c t e d in th e

84j o i n t ju d g em en t o f N a p ie r CJ and T ra v e rs J . in L en z i v . M i l l e r .

I t i s to be n o te d t h a t S t . John J . o f th e A u s t r a l i a n F e d e r a l C o u rte n d o rs e d b o th K urucz v . Mayne and L en z i v . Mi l l e r i n h i s d e c i s io n in G u th r ie

85v . D o y le , Dane and B ern b ach (1977) , in h o ld in g t h a t an a c c e s s o ry d id n o t n e e d t o h av e any m ore co m p re h e n s iv e a know ledge o f th e m a t e r i a l f a c t s o f an a b s o lu t e o f f e n c e th a n d id th e p r i n c i p a l . ^

(D) THE AUSTRALIAN CODE STATESIn Q u e e n s la n d an d W este rn A u s t r a l i a th e a c c e s s o ry to w h a t a t common law

i s c l a s s i f i e d a s an a b s o lu t e o f f e n c e , i s r e q u i r e d to know o f a l l o f th e e s s e n t i a l f a c t s c o n s t i t u t i n g th e g iv e n o f f e n c e . The r e a s o n s f o r t h i s r e q u i r e ­m en t d i f f e r , h o w ev er, a s b e tw een Q u een slan d and W e s te rn A u s t r a l i a . In Q u e e n s la n d th e Code p r o v i s io n s h av e been so i n t e r p r e t e d a s t o im p in g e fu n d a ­m e n ta l ly upon th e r e l e v a n t common law p r i n c i p l e s . In W este rn A u s t r a l i a , n o tw i th s ta n d in g t h a t th e Co<^e i s in s i m i l a r te rm s , t h e common law a u t h o r i t i e s h av e b een f o l lo w e d . In T asm ania t h e r e h as been no r e p o r t e d d e c i s io n on th e s u b j e c t .

(1) In Q u een slan dIn Q u een slan d th e Suprem e C o u rt h as r e q u i r e d t h a t th e a c c e s s o r y s h o u ld

know o f a l l o f th e e s s e n t i a l f a c t s c o n s t i t u t i n g th e o f f e n c e ( in r e s p e c t , a t%l e a s t , b o th o f o f f e n c e s o f i n t e n t i o n and o f w hat w ould am ount t o a b s o lu te

o f f e n c e s a t common law ; th o u g h n o t n e c e s s a r i l y o f o f f e n c e s o f c o n s t r u c t i v e l i a b i l i t y , r e c k l e s s n e s s and n e g l i g e n c e ) , b u t by r e f e r e n c e t o th e C r im in a l Code A ct r a t h e r th a n to common law d e c i s io n s . In s .2 3 and s .2 4 r e s p e c t i v e l y p e r s o n s a r e e x o n e r a te d f o r a c t s o r o m is s io n s done in d e p e n d e n t ly o f th e e x e r c i s e o f t h e i r w i l l , o r f o r a c t s done u n d e r an h o n e s t and r e a s o n a b le th o u g h m is ta k e n b e l i e f i n th e e x i s t e n c e o f f a c t s w h ich i f t r u e w ould mean t h a t t h e i r a c t was l a w f u l . The g e n e r a l e x c u lp a t io n i n s .2 3 i s made s u b j e c t t o e x p r e s s p r o v i s io n s o f th e Code r e l a t i n g to n e g l ig e n t a c t s o r o m is s io n s 84 85 86

(84) I . e . , a s n o te d ab o v e : s e e L e n z i v . M i l l e r [l965~J SASR 1 a t 12 .(85) (1978) ATPR 4 0 -0 3 7 .(86) Though h i s H onour a l s o c i t e d th e New S ou th W ales Suprem e C o u r t 's

d e c i s io n in G lennan [ l9 7 0 ] 2 NSWLR 421 w h ic h , a s i t h a s b e e n se e n a b o v e , i s o f th e o p p o s i te t e n o r . He may have h a d i n m in d , h o w e v e r, t h a t G lennan a l s o e n d o r s e s th e id e a t h a t - a n a c c e s s o r y may be - a f f e c te d w ith a w a re n ess o f th e r e l e v a n t f a c t s by r e s o r t t o a c o n c e p t o f c o n s t r u c t i v e k n o w led g e , a s o u t l i n e d ab o v e .

172

an d t h a t i n s .2 4 to e x p re s s o r im p lie d p r o v i s io n s o f th e law r e l a t i n g to*87th e s u b j e c t .

The e f f e c t o f b o th s e c t i o n s , i t h a s been h e l d , i s t h a t th e common law p r i n c i p l e s o f mens r e a ( v iz , c r im in a l i n t e n t i o n , o r a w a re n ess) a r e n o t

88d i r e c t l y a p p l i c a b l e in Q u e e n s la n d . In W idgee S h ir e C o u n c il v . Bonney (1907)G r i f f i t h CJ a s s e r t e d t h a t " i t i s n e v e r n e c e s s a ry to h av e r e c o u r s e to th e o ldd o c t r i n e o f mens r e a . . . th e t e s t now to be a p p l i e d i s w h e th e r t h i s p r o h i b i t e da c t w as, o r was n o t , done a c c id e n t ly o r in d e p e n d e n t ly o f th e w i l l o f th e a c c u se d

89p e r s o n ." T h is p r i n c i p l e c o u ld p e rh a p s be so c o n s t r u e d a s to a llo w a q u a l i f i e d c o n c e p tio n o f s t r i c t l i a b i l i t y ; on th e o t h e r h an d i t may b e e q u a l ly a rg u e d t h a t in e x c lu d in g th e common law p r i n c i p l e o f mens r e a from d i r e c t a p p l i c a t i o n i t a l s o n u l l i f i e s any common law d o c t r i n e o f s t r i c t l i a b i l i t y , th e l a t t e r c o n c e p t b e in g b u t th e o b v e rs e s id e o f th e d o c t r i n e o f mens r e a .I t w ou ld seem t o b e g e n e r a l ly t r u e to d a y t h a t th e s e s e c t i o n s r e q u i r e t h a t th e o f f e n d e r i n a l l c a s e s a p a r t from th o s e in v o lv in g o f f e n c e s o f n e g l ig e n c e , h a v e mens r e a in th e s e n s e o f an aw aren ess o f a l l o f th e e s s e n t i a l f a c t s o f th e o f f e n c e . ^

v

A c c e p tin g t h a t th e common law d o c t r in e o f s t r i c t l i a b i l i t y i s n o t d i r e c t l y a p p l i c a b l e u n d e r th e Code th e r e i s no re a so n to d i s t i n g u i s h th e m e n ta l e le m e n t r e q u i r e d o f th e a c c e s s o r y in th e c i r c u m s ta n c e s o f w h a t i n a common law j u r i s ­d i c t i o n w ould b e re g a rd e d as an a b s o lu te o f f e n c e , from t h a t s p e c i f i e d f o r th e p r i n c i p a l o f f e n d e r . B oth e q u a l ly r e q u i r e a f u l l know ledge o f m a t e r i a lf a c t s . Such i s i n d i c a t e d in th e le a d in g d e c i s io n o f H unt v . M aloney; ex p a r t e

91H unt (1959) , w h ich c o n c e rn e d an a p p e a l by th e p r o s e c u t io n from th e d i s m is s a l * 88 89 90 91

(.87) See g e n e r a l l y Howard p .3 9 3 f f on th e s e s e c t i o n s , and a l s o s e c t i o n s 1 3 -14 o f th e T asm anian Code.

(88) (1907) 4 CLR 9 77 .(89) I d . , a t 9 8 1 -2 , a d ic tu m c i t e d a p p ro v in g ly i n , i n t e r a l i a , Thomas v . M cE ather

Y l9 2 0 ] S t R Qd 166 a t 174-5? A nderson v . N ystrom [ l 9 4 l ] S t R Qd 56 a t 6 0 - 72; H unt v . M aloney; ex p a r t e H unt (1959) 53 QJPR 109 a t 122; Kehoe v .D acol M oto rs P ty . L td ; ex p a r t e D acol M otors P ty . L td . [1 9 7 2 ] Qd R 59 a t 72 .

(90) A r e c e n t c a s e s t r o n g ly s u g g e s t in g t h i s i s Kehoe v . D aco l M otors P ty . L td ; ex p a r t e D acol M otors P ty . L td . , i d . , a t 7 0 f f . See a l s o Howard S t r i c t R e s p o n s i b i l i t y (S w eet & M axw ell, London, 1963) a t p . l 5 0 f f , who c i t e s , i n t e r a l i a , M olloy v . H allam [1 9 0 3 ] S t R Qd 282; and L aw rence v . Lake [ l 9 2 l ]QWN 30. See a l s o W alker v . Chapman; ex p a r t e Chapman [ l9 0 4 ] S t R Qd 330; H unt v . M aloney; ex p a r t e H unt (1959) 53 QJPR 1 0 9 , e s p e c i a l l y a t 124 .

(91) I d .

173

by a m a g i s t r a t e o f a c o m p la in t a g a i n s t a h o te l l i c e n s e e f o r an o f f e n c e a g a i n s t h e a l t h r e g u l a t i o n s . I t had b een a l l e g e d t h a t a barm an em ployed by him s e r v e d b e e r in an unw ashed g l a s s . The b a s i s o f th e Crown c a s e was in e f f e c t t h a t th e re s p o n d e n t had a id e d o r c o u n s e l le d th e com m ission o f an o f f e n c e , p u r s u a n t to s .7 o f th e Code. He had n o t known t h a t t h e barm an had s o ld b e e r in an unw ashed g l a s s , and e v id e n c e e s t a b l i s h e d t h a t t h i s had b e e n done c o n t r a r y to h i s e x p re s s i n s t r u c t i o n s .

Mr. J u s t i c e S ta n le y h e ld t h a t s .2 3 o f th e Code e x c u se d th e re s p o n d e n tfrom any su ch b re a c h o f r e g u l a t i o n in t h a t h e re th e a c tu s r e u s o f th e o f f e n c ewas c o m m itted by th e b a rm an , and t h a t t h i s a c t was g e n u in e ly in d e p e n d e n t o fth e w i l l o f th e r e s p o n d e n t . He c o u ld h ave b een made l i a b l e on a b a s i s re s e m b lin gt h a t o f s t r i c t l i a b i l i t y in th e common law i f th e r e g u l a t i o n c r e a t i n g th eo f f e n c e h ad e x c lu d e d th e re s p o n d e n t from " th e p r o t e c t i o n o f s .2 3 o f th e C o d e ,"

92b u t th e r e g u l a t i o n h as n o t done t h i s . In th e s e c i r c u m s ta n c e s h e v iew ed th ecommon law d e c i s io n s c i t e d t o him c o n c e rn in g b o th th e common law d o c t r i n e s o fs t r i c t l i a b i l i t y and v i c a r i o u s l i a b i l i t y a s b e in g i n a p p l i c a b l e . Mr. J u s t i c e

93Mack re a s o n e d in s i m i l a r te rm s .

The r e s u l t o f t h i s r e a s o n in g i s to r e a f f i r m t h a t th e common law d o c t r in e o f s t r i c t l i a b i l i t y h a s no a p p l i c a t i o n to o f f e n c e s c r e a t e d by s t a t u t e in Q u een slan d (and a l l c r im e s in th e Code j u r i s d i c t i o n o f Q u e e n s la n d m u st o f c o u rs e b e c r e a t e d by s t a t u t e ) . I f t h e r e f o r e th e l e g i s l a t u r e d e s i r e s to p r o v id e f o r t h i s i t m ust do so e x p r e s s ly in th e f o r m u la t io n o f th e o f f e n c e . 92 93

(92) I d . , a t 119 . %(93) He e m p h a s ise d t h a t th e d o c t r in e o f s t r i c t l i a b i l i t y c o u ld r e a l l y o n ly b e

a p p l i e d w here th e common law d o c t r in e o f mens r e a a p p l i e d . T h is was n o t th e c a s e i n Q u e e n s la n d ; in p a r t i c u l a r , th e d o c t r i n e o f s t r i c t l i a b i l i t y was r o o te d i n a d i s c r i m i n a t i o n be tw een " c r im e s and q u a s i - c r i m i n a l o f f e n c e s o r o f f e n c e s n o t c r im in a l i n any r e a l s e n s e ," w h ich c o u ld n o t b e made in Q u e e n s la n d , " b e c a u se s .3 6 o f th e Code a p p l i e s t o e v e ry s t a t u t o r y o f f e n c e i r r e s p e c t i v e o f ty p e " ( i d . , a t 1 2 4 ) . The d e c i s i o n in H unt v . M aloneywas a p p l i e d in B reene v . Boyd; ex p a r t e Boyd [ l9 7 o ] Qd R 2 9 2 , a l i c e n s e e c a s e w hich was in p r i n c i p l e i d e n t i c a l . H ere th e l i c e n s e e h ad l e f t th e p re m is e s s h o r t l y b e f o r e th e p r e s c r ib e d c lo s in g t im e , h a v in g i n s t r u c t e d h e r b a r m anager t o c lo s e th e h o t e l a t t h i s t im e . The p r o s e c u to r s o u g h t to r e l y upon th e common law p r i n c i p l e s o f v i c a r i o u s l i a b i l i t y , r a t h e r th a n upon th e common law p r i n c i p l e s o f c o m p l ic i ty . A gain th e Suprem e C o u r t r e j e c t e d th e id e a t h a t th e s e common law a u t h o r i t i e s c o u ld b e a p p l i e d d i r e c t l y i n Q u e e n s la n d , and e x o n e ra te d th e d e fe n d a n t in any e v e n t upon th e b a s i s o f s . 2 3 , w h ich was v iew ed as n o t h a v in g b een e x c lu d e d in c l e a r la n g u a g e by th e s t a t u t e c r e a t in g th e o f f e n c e ( i . e . , t h e L iq u o r A c t,1912-70 ( Q d .) ) .

H 4

The Supreme Court cited Hunt v. Maloney; ex parte Hunt in the decision94of West v. Perrier (1962), where the appellant had been convicted of

counselling the illegal carriage of goods under the State Transport Facilities Acts, 1946-59 CQd). Here the conviction was upheld on the simple basis that the appellant (inevitably) had full knowledge of the facts of this offence to be committed.

The cases do not reveal whether constructive knowledge in the accessorywould render him liable under the Code in situations of the type underdiscussion. In certain circumstances, however, the protection of s.23 maybe lost if a defendant is at least reckless (if not merely negligent) as tothe existence of further facts which, if actually known, would involve thathe is aware of all of the facts which render his act or omission an illegal

95one.

(2) Western AustraliaNotwithstanding that the Western Australian Criminal Code is for the

most part identical to that in Queensland and certainly so in respect of thecomplicity provisions (i.e. sections 7-9) and sections 23 and 24, theSupreme Court of Western Australia has on occasions imposed strict liabilityupon a principal offender without reference to the possibility of protection

96of this party under s.23 or s.24 of the Western Australian Code.

In relation to accessorial participation in offences which in commonlaw terms are absolute, however, the court has in the one reported case whichrelates directly to this issue, required an awaren<*ss of all of the essential

97facts of this offence for conviction. Thus, in Wilson v. Dobra (1955)the Supreme Court held that to be liable for aiding and abetting an offenceunder s.7 of the Criminal Code (a complicity provision) and s.11(c) of theMarketing of Onions Act, 1938-53 (WA) the respondent had to have been proven

98to have "a guilty knowledge." The respondent had provided transport for the carriage of G's onions and had helped him to negotiate their sale without any proven knowledge that G did not have the written authority of the Onion Marketing Board to sell the same. In other words, an accessory needed to know of all the external elements of the offence. The court made no reference 94 95 96 97 98

(94) (1962) 56 QJPR 48.(95) See Howard at pp. 396-9.(96) See Howard Strict Responsibility (Sweet and Maxwell), London, 1963) at

p.l62ff, citing Durham v. Ramson (1907) 9 WALR 76; Robinson v. Torrisi, , (19,38) 40, WALR 62,; and Sweeney v. Den ness (1954) 56 WALR 52.

(97) (1955) 57 WALR 95.(98) Id., at 97.

175

however, to the basis of this principle, i.e., whether it was importeddirectly from the common law or whether it arose from construction of the

99Code.

(3) TasmaniaT here a p p e a rs n o t to b e any r e p o r te d a u t h o r i t y on w h e th e r o r n o t th e

doctrine of strict liability is applicable in Tasmania. Given that s.13 ands.14 of the Tasmanian Code are in substance similar to sections 23 and 24 ofth e Q u e e n s la n d and W este rn A u s t r a l i a n C odes, i t i s o pen t o th e c o u r t s tofollow the Supreme Court of Queensland in Hunt v. Maloney; ex parte Hunt

101(1959) and to require in reliance upon s.13 (i.e., s.23 of the Queensland and Western Australian Codes) that the accessory (and for that matter the principal) to an offence which is otherwise absolute in form, have knowledge of all of the essential circumstances of this offence. 99 100 101

(99) But contrast Ashbury v. Reid [l96l] WAR 49 where the Supreme Court seems to have assumed that a person could be guilty of complicity in an absolute offence though without complete mens rea, in that it exonerated him upon the somewhat unusual ground that his acts, j .e. , instructing an independent contractor to clear ttfees on his property and supplying the contractor with the equipment for this, did not sufficiently "connect" him with the subsequent offence, viz , the illegal cutting of timber in a state forest, so as to make him an accessory. If a principle of full mens rea had obtained, this would have been the obvious ground of exculpation, forhe had given proper instructions as to the boundary of his land. Again, the :ourt made no reference to the defences under sections 23 and 24 of the Code, but the case is far from being conclusive as to whether or not these sections modify or displace the common law doctrine of mens rea in Western Australia. %

(100) See Howard at p.393ff. on sections 23 and 24 of the Queensland and Western Australian Codes; and at p.410 for sections 13 and 14 of the Tasmanian Code. The author notes that s.14 apparently imports "the general law of reasonable mistake of fact in statutory offences," in contrast to s .24 of the Queensland and Western Australian Codes*which creates an independent doctrine of this character* The differencem a y no t be of s u b s t a n t i v e significance: Howard at p p . 406 - 7 *

(101) [1959] 53 QJPR 109*

176

Alternatively, the courts could adhere to the same approach to these matters which has been taken by the Supreme Court, of Western Australia in respect of a virtually identical criminal code, and import both the doctrine of strict liability and the common law exemption from its operation which is accorded to accessories. In this case the accessory would still be required to have comprehensive knowledge.

Another possibility, of course, is that the courts could require no more comprehensive a knowledge by the accessory in respect of an offence of this type, than is required of the principal.

(E) NEW ZEALANDNew Zealand authority, like that in Tasmania, is silent as to the

issue. However, the doctrine of strict liability is recognised in New 102Zealand, so that the courts could choose either to apply the principle

endorsed in the majority of the subject jurisdictions, and thus require knowledge by the accessory to an absolute offence of all of its essential facts. Alternatively, the courts could equate him with the principal in this respect, consistent wi^h the approach of the courts in the subject jurisdictions in respect of those offences which are not absolute, and to require of this party no greater a degree of awareness of the essential matters than is required of the principal.

( F ) SHOULD THE ACCESSOhY BE FAVOURED AS COMPARED TO THE PRIN CIPAL, OF ABSOLUTE O F F IC E S ? _____________________________________________

IN RESPECT

In the majority of the subject jurisdietiong% it has just been seen, the accessory is favoured vis-a-vis the principal in the context of absolute offences, in that unlike the latter, he may only be convicted of an offence of this type provided that he knows of all of the material circumstances constituting this offence.

This is not to say that an entirely blameless perpetrator of an absolute offence will of necessity be convicted. In Australia and New Zealand, at least, the alleged principal can defend himself by resort to what has been called the Proudman v. Dayman defence of honest and reasonable mistake. In the (obiter) view of Dixon J. in the decision of Proudman v. Dayman (1941)?'^ "it is probably still true that, unless from the words, 102 103

(102) See s.20 of the Crimes Act, 1961 (NZ); see also Fraser v. Becket & Sterling Ltd. (1963) NZLR 480.

(103) .(1941) 67-CLR.536-at 540-1. .....................................

177

context, subject matter or general nature of the enactment some reason to contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence." He suggested of this defence that it imposed a burden "in the first place upon the defendant" to prove that he had reasonable grounds for believing as he allegedly did, though this "burden ... may not finally rest upon him of satisfying the tribunal in case of doubt."

That such a defence may be raised has since been accepted by theAustralian Courts on a number of occasions, though generally in obiter

104 105comments, and in New Zealand. The effect of such a defence, of course,is that the defendant, provided that he can adduce enough evidence to make itproper that the issue of honest and reasonable mistake should be left to the

106jury, may only be convicted (at the minimum) on the basis of negligence. 104 105 106

(104) In tnis connection see Bergin v. Stack (1953) 88 CLR 248 at 175 (Fullagar J); lane11a v. French (1968) 41 ALJR 389, especially at 393-4 (Barwick J) ; Vlahos [1975"] 2 NSWLR 580 (where the Crown conceded that the defence was known to the law, though the Court of Criminal Appeal declined to comment on the issue, in that it was unnecessary to do iso in the circumstances); Bush (1975) 5ALR 387 (New South Wales Court of Criminal Appeal exercising Federal jurisdiction); Mayer v. Marchant [1973] SASR 567 at 570 (Bray CJ) and Zelling J. (at 580),(who were of the view that the defendant bore merely an evidentiary onus in respect of the Proudman defence; Hogarth J. Cat 579) on the other hand, considered that the defendant was required to prove the defence on the balance of probabilities); Holt v. Cameron (1979) 27 ALR 311 (a decision of the Full Supreme Court of South Australia) which was overruled by the High Court in Cameron v. Holt (1980) 28 ALR 490, but on a ground not concerned with the Proudman defence.

(105) See Strawbridge [1970] NZLR 909.(106) Accepting that he bears no more than an evidential onus in respect

of it.

178

But even accepting this to be the situation, the accessory is still favoured; for at the minimum (accepting that the prosecution may, where appropriate, resort to the doctrine of constructive knowledge outlined above), he may only be convicted on the basis of what in effect amounts to a reckless disregarding of the surrounding material circumstances.

Assuming that the doctrine of strict liability is in general soundly based (anc- it is beyond the scope of this study to evaluate its merits), it is considered that prima facie it should be sufficient for liability that the accessory to an absolute offence possesses the same (i.e., minimal) degree of knowledge as to material circumstances, as is required of the principal. In the abstract, no doubt, an argument can be mounted in favour of requiring a wider cognisance of essential matters on the part of the accessory. It might be argued, for instance, that given that he does not personally participate in the transaction of the actus reus, so that he may be further removed from its commission in a causal sense, he may be less well-placed to take account of the other factors arising in its commission and which render it illegal, in comparison with the role of the perpetrator. Another specific justification for favouring the accessory is that he may not be privy to all of the information customarily available to the principal and by resort to which the latter may avoid committing the subject offence. The imposition of absolute liability upon the principal will, after all, frequently be based upon the supposition that he is well able because of his knowledge, experience or circumstances to avoid infringing the statute by the exercise of due care. An example of such af disparity in basic knowledge of the circumstances potentially conducive to the commission of an absolute offence would be that of the part-time waiter who sells liquor on behalf of a licensed restaurant proprietor in breach of the latter's licence, while ignorant of its terms. Another example is that of the employee of a retail pharmacist who while mistakenly believing a drug to be non-toxic, sells it without entering the sale upon a register required to be kept pursuant to poisons legislation.

But it must be acknowledged that this supposed greater capacity of the principal to conduct himself lawfully in the context of regulatory offences is a matter of fact and degree rather than of absolute principle. In many cases the alleged accessory will instigate, encourage or assist the principal to commit the actus reus with the same amount of knowledge as is available 107

(107) It is assumed in.both examples .that the,employee may be.regarded as aiding the sale by the employer: see generally at p. 284-ff•

179

to the latter, or even, with a more comprehensive knowledge than the latter.

Another factor in favour of incriminating the accessory on the same basis as the principal (viz , in respect of the issue of their knowledge of the essential circumstances of the offence), is that this would be consistent with the approach of the courts in relation to every other category of offence, i.e., of intention, constructive liability, recklessness and negligence. And further, just as the courts were, presumably, motivated in these other contexts by an acceptance that the policy objectives sought to be served by the particular (type of] offence could only be made good if the secondary party was to be incriminated on the basis that he possessed the same know­ledge of relevant matters as sufficed to incriminate the principal, so then, it may be argued, the policy objectives sought to be served by classifying a given offence as one of strict liability, are ikewise only to be fully served if the secondary participate in such an offence is to be incriminated on the same basis as the perpetrator.

It is assumed that were this general principle of parallelism, asbetween principal and accessory, to be applied in the strict liability context,*that the accessory would similarly be permitted to avail himself of the Proudman defence. The result would be that the defendant could only be incriminated as an accessory on the basis that at the minimum he (like the principal) acted negligently. In the final result, therefore, a person will only incur liability as an accessory to an absolute offence in that situation where he acts (1) in the knowledge that the principal is committing, or might in the future commit the physical act of an offenc!fe of this type, and, moreover,(2) in the knowledge or belief that this commission is or may take place either (a) in the circumstances disclosing its criminal nature, or (b) in those circumstances which apparently (though not actually) render this act an innocent one, provided further that these circumstances are not such as to make this misapprehension on his part a reasonable one.

(VII) CONCLUSION

With one exception, the accessory is required to have the same degree of knowledge as is the principal, of the matters constituting the subject offence, in each of the subject jurisdictions. Thus, where offences of intention are concerned, the accessory must, like the principal, know of all of the essential circumstances of the offence. Something less than fhts comprehensive knowledge will suffice in respect of offences of

180

constructive liability, recklessness and negligence. The one exception to this principle of parallelism is encountered in the majority of the subject jurisdictions, in respect of absolute offences. As noted, in these juris­dictions an absolute offence will be treated as being an offence of intention, where the accessory is concerned.

It is considered that such a principle of parallelism ought to prevailin respect of all offences, including absolute offences. This would seemto be necessary, if the policy objectives which are sought to be served by a

108given offence are to be fulfilled.

%

(108) Necessarily, such a conclusion cannot take account of any such policy objections as might be directed against individual offences upon the basis that they do not require intention, or at least, advertent risk­taking, as a basis of liability. The common law crime of constructive murder has, for example, often been impugned upon the basis that it imposes liability for one of the most serious of crimes, notwithstanding that the defendant may not have intended to kill or to inflict grievous bodily harm, nor even have foreseen the possibility that one or another of these events might result from his conduct. Such an objection is of course a general one, applicable to the situation of both the principal and the accessory. It does not, that is, relate uniquely to the imposition of liability upon the latter.

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CHAPTER SEVEN

THE DOCTRINE OF COMMON PURPOSE

(I) INTRODUCTION

(A) THE DOCTRINE STATED

The so-called doctrine of common purpose has been frequently referred toin the cases and textbooks.^ According to this doctrine, a person becomes liableas an accessory for any crime committed by another person, in that circumstancewhere the two of them are concurrently party to an agreement for the commissionof this crime. Where this agreement expressly comprehends the transaction ofthe subject crime and no other, the evaluation of the alleged accessory'sliability will generally be a straightforward process. Issues of liabilityraised in this situation would scarcely have required the enunciation andapplication of any such doctrine of common purpose, for the incrimination ofthe defendant in his co-conspirator's crime would be readily explicable in

2terms of standard complicity principles. This matter is discussed below.

In practice the doctrine of common purpose has generally beem employed to resolve issues of liability in a relatively specialised standard fact situation which is encountered throughout the reports, i.e., where A and B jointly agree to commit crime X (the "foundational" crime) in the course of the commission of which crime B commits a further crime (the "incidental"crime). To reiterate, normally there will be no dispute as to their liability for the foundational crime, both clearly being liable for it according to one or another of the degrees of complicity. The issue is that of A's liability for the incidental crime.

In relation to this latter issue in particular, the courts have, pursuant to the doctrine of common purpose, instructed juries in appropriately specific terms that if two or more persons enter into an agreement for the commission of a crime (i.e., for what has been called the "foundational" crime) then they are each liable as accessories for any incidental crime committed by one of their number which crime they agreed either expressly or tacitly should 1 2

(1) For the employment of this expression see for example Rabie, "The Doctrine of Common Purpose in the Criminal Law" (1971) 88 S Af.LJ 227; Williams, CLGP, p.396ff; Williams, TCI., p.299ff; Howard, p.275ff.

(2) See p.182ff.

182

(usually, subject to a contingent event) be committed in order to consummate the commission of this foundational crime, or in order to affect seme related purpose (for example, to escape an arrest which is threatened during their attempted commission of the foundational crime).

This conception of the doctrine of common purpose is reflected in thefollowing description of it by Street CJ in the New South Wales Court of

3Criminal Appeal in Johns (1978) , which statement was endorsed by Mason,Murphy and Wilson JJ in a joint judgment in the High Court decision of

4Johns v. R. (1979) , i.e., that an accessory bearsa criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture ... (5)

Such a statement stresses that what is critical is a scrutiny of the termsof the agreement, i.e., of what exactly was in the mind of the allegedaccessory. It is to be contrasted with more ambiguous formulations in someearlier cases, which on one reading suggest that the determination of whetherthe incidental crime is a part of the common purpose is to be assessedobjectively in terms of whether or not it was done in the course of committingthe foundational crime. That such a conception of the doctrine can no longerbe accepted is discussed under (C)(1) below.

(B) CONFORMITY OF THE DOCTRINE WITH GENERAL PRINCIPLE

Such an analysis of the basis of accessorial liability has proven very%useful in cases involving the commission of a given crime during the joint

commission by two or more persons of another crime. But it should not be permitted to obscure the fact that the doctrine does not represent a substantive addition to, or a supplanting of the general principles of complicity. These are the principles noted earlier in this study which may be resorted to m respect of all fact situations raising the issue of secondary incrimination in 3 4 5 6

(3) [1978] 1 NSWLR 282 at 290.(4) (1979) 28 ALR 155 at 173.(5) Similarly, see Brennan v. R. (1936) 55 CLR 253 at 259 (Starke J), and

Doorey [l970] 3 NSWR 351 at 353.(6) See generally Chap. ^

185

crime. It has been proposed that the defendant becomes an accessory to 4given crime either where (1) he (knowingly) instigates another to committhis crime or (2) he (knowingly) encourages or assists another to commitit. It is evident that where A agrees with P for the commission of anoffence (which commission may be made contingent upon the happening ofsane event, as is frequently the case in the type of situation whichattracts the doctrine of common purpose) , then obviously he is to be -viewedas encouraging P in the commission of this offence. It may even be (subjectto the facts) that A thereby instigates P to commit this offence, or atleast, that this act of agreement is inextricably bound up with an act ofinstigation on his part. Furthermore, where A accompanies P to the sceneof the commission of the subject offence,and performs some further act of assist­ance or encouragement (as has usually been the case in the decisions concerning tne doctrine), then he performs an additional act or

7acts of complicity.

Thus, the doctrine of common purpose need not have been evolved to resolve the questions of liability in respect of which it has usually been invoked. But whether because of historical accident, or because a general concept of a common criminal^ concert was conceived to be an especially convenient and even graphic basis for focussing attention upon the essential issues of liability in a fact situation of this type, the courts have repeatedly enunciated a doctrine of common purpose, both in instructing juries and in reviewing convictions at the appellate levels. It becomes necessary therefore to detail its statement in these cases almost as though it were a basis of liability apart from the general principles of complicity while acknowledging, ultimately, that it is in perfect conformity with them.There is a further justification for considering this line of cases independ­ently of other decisions dealing with accessories, i.e., that in representing a standard (and unique) fact situation in the complicity cases they have given rise to the development of principles of law of a collateral and specialisedcharacter which are also relevant to the evaluation of accessorial liability

8for what is referred to in this chapter as an incidental crime. 7 8

(7) Indeed, he may do this even where he does not accompany P: for example, where he both agrees with P that the latter should commit an offence, and gives P equipment or information needed for this purpose.

(8) For example, where A and B combine to inflict a common assault upon V,in the course of which B suddenly forms the intention to inflict grievous bodily harm upon V, or to kill him, and fatally wounds him, must A be convicted of manslaughter, or may his liability be confined to that of common assault? See p.-jo^ff. below.

184

(C) TWO BASIC FEATURES OF THE DOCTRINE

The broad dimensions of the doctrine have been indicated under (A) and (B) above. It is convenient at this point to comment more fully upon two of its essential features:

(I) The Accessory's Liability is to be Evaluated on a Subjective Basis (a) Offence of Intention

The commission by his confederate of the crime (i.e., the "incidental" crime) for which he is sought to be made liable pursuant to the doctrine of common purpose must have been in the defendant's contemplation, i.e., in the terms of i lis doctrine, this event must have been expressly or tacitly agreed upon by them. Put shortly (in terms independent of the doctrine of common purpose) the defendant must have had in mind that his confederate would definitely or possibly commit this crime. This requirement, that the crime must have been within his (subjective) contemplation is of course fundamental to the law of accessoryship, whether or not it is formulated in terms of the doctrine of common purpose.^

This requirement of subjective contemplation on the part of the accessory has not always prevailed. Prior to 1700, a number of English judges took the view that a person who had agreed with another for the commission of crime X could be inculpated as an accessory to the latter's commission of crime Y,

10provided that Y was objectively incidental to their joint commission of X.Other cases more or less contemporary with these, however, conform with the

11requirement of subjective knowledge. It was inevitable that the courts%would in the years following take the latter, more discriminating view of

accessorial responsibility in this context. The imposition of liability onan objective basis would of course have the anomalous result, that a defendantwithout a r e l e v a n t guilty mind would in certain situations be incriminatedin an offence which requires mens rea in the principal. Modern casesconfirming that the defendant must actually contemplate the commission of thesubject offence are noted in the following page. An especially emphaticcomment is encountered in the Western Australian decision of Borg v. R.

12(1970) where Jackson CJ endorsed a textwriter's comment upon the common law doctrine of common purpose affecting accessories, viz , that "the test 9 10 11 12

(9) See Chap. 5 at p.112£'f.(10) For example Lord Dacre (1535) Moore (K.B.) 87, 72 ER 458; Mansell (1556)

2 Dyer 128b, 73 ER 279; Lord Mohun (1692) Holt KB 479, 90 ER 1164; Ashton (1698) 12 Mod. 256, 88 ER 1304; Wallis (1703) 1 Salkend 334; 91 ER 294.

(11) For example Griffith (1553) 1 Plow. 97, 75 ER 152; Thody (1663) 1 Free. 514, 89 ER 386; Hodgson (1690) 1 Leach 6, 168 ER 105; Anon (1723) 8 Mod 165, 88 ER 121.

(12) [1970] WAR 194.

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[i*e., of accessorial liability for the incidental crime] should be subjective and the person charged as accessory should not be held liable for anything but what he either expressly commanded or realised might be involved in the per­formance of the project agreed upon. It would, on this principle, therefore,by a question of evidence to satisfy the jury that the accused did contemplate

13the prospect of what the principal has in fact done." Otherwise the courtshave customarily required that the incidental crime must have been "included"

14 15m the "common design," or that it "was part of the common design." In16the Australian High Court decision of Brennan v. R. (1936) Dixon and Evatt

JJ explained in the course of commenting upon the common law notion of common purpose that whether a person was able to be convicted as an accessory to a crime committed by his confederates in the course of the joint commission by all of them of another preconceived crime depended upon "the nature of the plan to which he lent his aid and ... his knowledge of his confederates' intentions.

The subjective approach was again confirmed by the New South Wales Court18of Criminal Appeal in Johns (1978) and by the High Court in Johns v. R.

19(1979) where, as it has bqen seen above, the doctrine of common purposewas descri ied as imposing "criminal liability for an act which was withinthe contemplation of both [the accessory] and the principal ... as an actwhich might be done in the course of carrying out the primary criminalintention - an act contemplated as a possible incident of the originally

20planned venture." Mason, Murphy and Wilson JJ expressly confirmed m Johns v. R., that the often cited statement by Sir.Michael Foster (referring 13 14 15 16 17 18 19 20

(13) Id., at 199, citing Russell on Crime 12 ed. p.162. Similarly see Johns 1T978] 1 NSWLR 282 at 289 (Street CJ).

(14) Lovesey (1970) 1 QB 352 at 356? Brennan v. R. (1936) 55 CLR 253 at 263 (Dixon and Evatt JJ. Note that although the decision concerned the construction of s.7 of the Western Australian Code, their Honours were talking of the requirements of the common law principles of accessoryship at this point which they regarded as having been imported into the Western Australian Code by s.7.

(15) Kalinowski (1930) 31 SR (NSW) 277 at 380; similarly Surridge (1942) 42 SR (NSW) 278 at 282; Borg v. R. [l972] WAR 194 at 197 (Jackson J.).

(16) (1936) 55 CLR 253.(17) Id. , at 266 (Evatt and Dixon JJ). Note that although this decision concerns

the application of the complicity provisions in the Western Australian Code, their Honours were discussing general law principles at this point. See footnote 14 ante.

(18) [1978] 1 NSWLR 282.(19) (1979) 28 ALR 155.(20) Street CJ in Johns [1978] 1 NSWLR 282 at 290, as endorsed by Mason, Murphy

and Wilson JJ. in id., at 173.

106

as it happened, to the accessory before the fact), i.e., that "where the .principal goeth beyond the terms of the solicitation, if in the event thefelony committed was a probable consequence of what was ordered or advised,

21the person given such orders or advice will be accessory to that felony," was no longer to be regarded as expressing the common law, in its suggestion that accessorial liability in this and other situations was to be evaluated objectively:

Its effect is to bring the act within the common purpose if it is [an objectively] probable consequence of carrying out this purpose. However this may be, the statement reflects a view of the common law which was based on an objective approach to the relationship between the common purpose and the act charged. As Street CJ pointed out(22), a subjective approach to criminal liability has prevailed in more recent times. In any case, the subjective test may well involve an accused person in criminal liability for an act which is a probable consequence of the execution of the common purpose to which he is a party because, if the act is a probable consequence of the execution of the common purpose, there is evidence from which a jury can conclude that it was within the parties' contemplation.21 22 23

The application of formulae in these or similar terms, which give effect to the requirement of subjective contemplation, is well illustrated in the numerous cases where the Crown has sought to implicate the defendant as an accessory to a crime of intentional murder committed by his confederate during the commission of some other crime. Here, in conformity with the mental element in this type of murder, the courts have required that the plan have contemplated either the killing of, or at least the infliction of

(21) Crown Law (1809), p.370. See the discussion of Foster's suggested principle in relation to certain of the modern authorities in Lanham, "Accomplices and Constructive Liability" [1980] 4 Crim LJ 78.

(22) I.e., in Johns [1978] 1 NSWLR 282 at 289.(23) Johns v. R. (1979) 28 ALR 155 at 173. Similarly see Stephen J. at 161,

162, 165. On the other hand see Barwick CJ's judgement at 158-9, where he said that the ambit of the doctrine of common purpose includes "all those contingencies which can be held to have been in the contemplation of the participants or which in the circumstances ought necessarily to have >een in contemplation ...". On one view, the second part of this formeLation envisages that liability can indeed, be imposed objectively,a conclusion which is clearly counter to modern authority and to the other judgements cited in Johns v R« Perhaps, however, he was referring to the incidental crime or crimes which the parties to a given common purpose tacitly understood might need to be committed, as opposed to those which they expressly discussed. Such tacitly agreed upon crimes would of course be within their subjective contemplation, and be able to be regarded as implied elements in their agreement.

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grievous bodily harm upon any person interfering with the transaction of .their plan should this prove necessary (which latter phrase recognisessimply that the commission of the incidental crime, viz. (as here) murder,will usually be made subject to a contingent event, such as resistance by

24the victim, a threatened arrest, or whatever).

Notwithstanding that the courts have for many years now, insisted thatthe accessory's liability for a crime of intention is to be evaluated upona subjective basis, whether or not the doctrine of common purpose is resortedto, occasional modern formulations of this latter are, taken in isolation,somewhat equivocal. One such is the assertion by the New South Wales Court

25of Criminal Appeal in Surridge (1942), thatIf two combine to effect a common criminal purpose, each is liable for any act done by the other in order to effect the purpose which was common to both of them, but not for anything done by the other which was not incidental to the carrying out of their common purpose.

In its apparent suggestion that the defendant becomes an accessory to anycrime committed by his confederate which is objectively related to theexecution of their joint criminal purpose, although this incidental crimewas not part of their plan ( ind thus, was not necessarily in the contemplationof the defendant), this statement is clearly incompatible with the analysis

26of the same court in its later decision in Johns (1978). It is evident,however, that this formulation in Surridge was incautiously worded, and itsimplication, that accessorial liability could be imposed upon a subjectivebasis, was unintended. In fact the decision as a whole makes it clear thataccessorial liability for an incidental offence of-intention can only be

%imposed upon a person who contemplated its commission. 24 25 26

(24) For examples of relevant cases see Borg v. R. [l972] WAR 194 at 197 (Jackson CJ). Lovesey £1970] 1 QB 352 at 356 (the plan must have "included the use of whatever force was necessary ... even if this involved killing, or the infliction of grievous bodily harm ...); Surridge (1942) 42 SR (NSW) 278 at 282 (use of "any violence, without any limitation as to quantum which might be necessary ..."); Mogar (1850) 1 Legge 655 (NSW) at 656 (Stephen CJ: were the defendants prepared to accomplish their common purpose (here, escape from lawful custody) "by all means, and at all risks" ...); Grand (1903) 20 WN (NSW) 107 at 108 (Rogers A-J: had the defendants "resolved, if necessary, to resist at all hazards any interference with them in the execution of their common purpose" (i.e., burglary). Note that Stephen A-C's remarks were far too broad in this decision: at 110).

( 2 5 ) ( 1 9 4 2 ) 4 2 SR(NSW) 2 7 8 a t 2 8 2 .( 2 6 ) [ l 9 7 8 j 1 NSWLR 2 8 2 .

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(b) Offences Other Than Those of IntentionThe principles outlined immediately above in respect of offences of

intention are likewise applicable to offences with different mental elements,27such as those of constructive liability, recklessness and negligence,

subject to the obvious qualification, i.e., that the alleged accessory'sawareness of the material circumstances of an offence of this type need not

2 8exceed the t required of the principal. Thus, in general terms, the accessory (whether or not he is sought to be made liable by resort to the doctrine of common purpose) need not contemplate anything more than that the perpetration by the principal of the physical element in the given offence, or the act causing this, in those circumstances of which the principal is required to have knowledge (which knowledge, clearly, may be a very attenuated one).

Many of the cases dealing with the doctrine of common purpose whichconcern incidental crimes of this character centre upon felony murder atcommon law, or a statutory variety of constructive murder. Thus, in orderto be incriminated pursuant to this doctrine as an accessory to a felonymurder committed by his confederate, it is sufficient that the defendant wasparty to an agreement to commit a felony of the relevant type, and moreover,that it was an element of this agreement, express or tacit, that hiscompanion would possibly commit an intrinsically violent or dangerous act(assuming that the doctrine of felony murder at common law requires thatthe act causing death have been of this character). The cases dealing withthe application of the common law doctrine of felopy murder, and with

% 29certain of its statutory equivalents, are considered below.(2 ) Irrele v a n c e of a P r o b a b i l i t y Requir e m e n t

C o n t r a r y to some l o ose exp r e s s i o n s o f the doctr i n e of c o m m o n purpose, it is l e g a l l y u n n e c e s s a r y that the pers o n sought to be m a d e l i a b l e as a n a c c e s s o r y

to his c o n f e d e r a t e ’s incidental crime have foreseen at the time that they a g r e e d to c o m m i t the fo u n d a t i o n a l crime that the incidental crime w o uld be a "l i k e l y 4' 27 28 29

(2 7 ) Se e pp.11 7 , 1 N o t e that offences o f strict l i a b i l i t y . a r e treated as o f f e n c e s of i n t e n t i o n in the context of accessorial l i a b i l i t y , inm o s t o f the s u b j e c t jurisdictions: see p. i^Bff.

(28) S e e Chap. 6.

(29) See p . 2 0 ? f f •

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29ao r "probable" consequence o f the foundational crime. The c o rrect expression

o f p r i n c i p l e is that it is enough that the d e fendant c o n t e m p l a t e s that his

c o m p a n i o n will p o s s i b l y commit the subject crime as a n in c i d e n t of their29bj o int c o m m i s s i o n o f the foundational crime. O f course, the circumstances

o f the t r a n s a c t i o n of their c ommon purpose will u s u a l l y o n l y be f u l l y knowna t the time o f this transaction, and these may n o t r e q u i r e the com m i s s i o n of

a f u rther crime. A c c o r d i n g to the general principles o f a c c e s s o r i a l liability,

so it has b e e n seen, it is u n necessary that at the time o f p e r f o r m i n g hisac t o f c o m p l i c i t y the a c c e s s o r y have had foresight s u bject to a p r e s c r i b e d

test of e v e n t u a l i t y that the subject c r ime w o uld be c o m m i t t e d b y the29cp r i n c i p a l . It is enou g h that he contemplates this as a p o s s i b i l i t y .

(II) AP P L Y I N G T HE DOCTRINE O P COMMON P U RPOSE I.N THE JURIS D I C T I O N S PRESERVING THE COMMON L A W OP CRIME ______

In England, N e w S o u t h Wales, V i c t o r i a and South A u s t r a l i a , the doctrine

is, b r o a d l y speaking, a p p l i e d in its common law dimesnions, as o u t l i n e d in the f o r e g o i n g pages. Its o p e r a t i o n has, however, been largely c o n f i n e d to a li m i t e d

n u m b e r o f standard fact situations. In certain of these the courts have be e n

o b l i g e d to develop s p e c i f i c / collateral principles a f f e c t i n g it s ap p l i c a t i o n .

This process has been p a r t i c u l a r l y evident in those s i t u a t i o n s where the i n c i d e n t a l crime ha s been one of homicide. Accordingly, it will be convenient

to s u r v e y the a p p l i c a t i o n o f the doctrine under the f o l l o w i n g heads: (1) Acc e s s o r i a l l i a b i l i t y for incidental crimes other than h o m i c i d e . (2) A c c e s s o r i a l l i a b i l i t y for crimes of homic i d e . Under this h e a d i n g it is n e c e s s a r y to d i s t i n g u i s h the s i t u a t i o n whe re the a c c e s s o r is liable for homic i d e i n d e p e ndently * 31

(29a) F o r a n example of this erroneous notion see P r i d m o r e ( 1913) 8 G r i m A p p R 198 at 199,202 ( though see 203). The trial judge d i r ected the jury in these terms, though the Court of Criminal Appeal was less emphatic; S l a t e r [1922] SASR 494 at 300 (where Poole J spoke of the n e e d to e s t a b l i s h that the par ties "ought to have known that it w a s n o t improbable" that the incidental crime w o uld be c o m m i t t e d during the t r ansaction of the common purpose.

(29b) L o v e s e y [ 1 9 7 0 ] 1 Q3 352 at 356; Mo gar [1850] 1 Legge 655 at 656 (Stephen Cj")V G r a n d ( 1 9 0 3 ) 20 WN ( N S W ) 107 at 108 (Rogers A-CJ); K a l inowksi (1930)31 S R ( n S w ) 377 at 380; S u r r i d g e (1942) 42 SR(NSW) 27 8 a t 282; A d a m s [1932] V L R 222 a t 224; D o w d l e (l90Q) 26 V L R 637 at 639? B o r g v R ft972] W A R 194 a t 199 (Jackson CJ); Johns 11 9JBj 1 NSWLR 282 at 287-9 (Street CJ); 2 9 3 - 8 (Begg j); J o hns v R (1979) 28 ALR 155 at '1 5 7 - 8 (Barwick CJ), 162ft (Stepaen j), 168ff (Mason,Murphy and Wilson J J ) .

(29c) See p. 130.

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o f a n y doctrine o f constructi ve murd e r and those where these doctrines m a y b e

r e s o r t e d to, ( H i s t o r i c a l l y , m a n y o f the reported c a s e s have c o n c e r n e d the e v a l u a t i o n o f an a l l e g e d a c c e s s o r y ’s liabi l i t y for murd e r where his confederate

ha s k i l l e d a person during their joint c o m mission o f felony,)

(A) ' INCI D E N T A L CRIMES O T H E R TnAN HOMIC I D E

W h e r e the incidental crime for w h i c h the a c c e s s o r y is soug h t to be made

l i a b l e is n o t a killing, f e w conceptual difficulties aris e . He m u s t be

d e m o n s t r a t e d to have h a d subjective c o n t e mplation that the p rincipal w o u l d

p o s s i b l y commit the actus reus o f this crime d u r i n g the t r a n s a c t i o n o f the

c o m m o n p u rpose a n d ,moreover, that this would be done in those circumstances

d i s c l o s i n g that this act is a crime • If ,however, h e has n o t a s s e n t e d

e x p r e s s l y or t a c i t l y to the c o m m i s s i o n of an a p p a r e n t l y identicalcrime, h e is not liable for it, the v i e w being taken that it is the i n d e p endent

a c t o f the principal and therefore bey o n d the scope o f the com n o n purpose, A29dm o d e r n i l l u s t r a t i o n of this latt e r situation is found in S p r a g g e t (196Q), 7w h ere the E n g l i s h Court of Criminal Appeal q u a s h e d the a p p e l l a n t ' s conviction

nf o r a s s a u l t w i t h intent to rob. The C r o w n p r o v e d that he h a d combined with oth e r s to b u r g l e a shop, in the course o f w h i c h the o w n e r h a d a p p e a r e d and h a d b e e n k n o c k e d down. The evidence di d n o t e s tablish that the appe l l a n t had been

p r e s e n t at this as s a u l t . The trial judge h a d told the jury in substance that if he was prov e n to have b e e n p a r t y to the robbery, he was a u t o m a t i c a l l y liable

for a n y acts w h i c h were o n an objective view, incidental to the b u rglary. The C o u r t of Criminal A p p e a l d i s a p p r o v e d this direction, h o l d i n g that to be liable for a s s a u l t the a p p e l l a n t h a d to be shown to have shared w i t h his comp a n i o n s the p r e c o n c e i v e d inten t i o n o f u s i n g v i o l e n c e to resist a r r e s t o r a n y interference

(29d) [i960] Grim LK 8 4 0.

w i t h the burglary. O t h e r cases confirming this subjective analysis appear 29 fin the reports. x Even where the app a r e n t l y incidental crime is, on an objective

view, an o r d i n a r y o r even nat ural consequence of the t r a n s a c t i o n of the joint purpose, the a l l e g e d a c c e s s o r y cannot be convicted o f it unless it ispro v e n to have been in hi s c o n t e m p l a t i o n . o f course, if this crime is a

n a t u r a l c o n s e q u e n c e the jury will be more disposed to infer that its c o m m i s s i o n was an expressi o r tacit term of the foundational conspiracy.

(B ) W H E R E T H E I N C I DENTAL C R I M E 13 ONE OF HOMICIDE

(1 ) W h e r e the E v a l u a t i o n of L i a b i l i t y is U n a f f e c t e d by a n y C o m m o n L a w o rS t a t u t o r y Doctrine o f Constructive Murd e r ______________________________________

(a) G e n e r a l

W h e r e a n a c t causing ueath is committed in circu m s t a n c e s a t t r a c t i n g

the o p e r a t i o n o f one of the two common la w heads o f con s t r u c t i v e murder, the * S

19129e

(29e) Id. a t 841 . Contrast B o w e n (1841) Car & M 149» 174 EH 443, whereColeridge J's direction to a jury in a joint robbery case involving the infliction of a wounding with intent to -do grievous bodily harm by one accomplice, reflects the 3ame fallacy as the trial judge's direction inS pragget, id.

S e e a l s o the N e w ^ S o u t h ’Wales case o f M c D o n a l d (1 964) 00 ,N(N S W )1716, where the a p p e l l a n t ha d been c o n v i c t e d o f a n a s s a u l t o c c a s i o n i n g actu a l b o d i l y h a r m a l l e g e d to have aris e n in the course o f the t r a n s a c t i o n of a joint p l a n to obtain m o n e y without the consent of the owner. Both trial judge a n d the Full Supreme C o urt a s s u m e d that p r o o f of the joint p u rpose woul d inevitably entail p r o o f o f the ass a u l t against e a c h p a r t y p r i v y to it, though the Full Court q u a s h e d the con v i c t i o n o f the a l l e g e d a c c e s sorie s to the assault on the basis that the trial judge h a d n o t s t r e s s e d that this had to be done for the purpose o f t r a n s a c t i n g the common purpose, " a n d n o f o r some o t h e r r e a s o n such as to sat i s f y a grudge" (at 1713). This still seems to make l i a b i l i t y for the further pur p o s e objective, however, though h a v i n g r e g a r d to the common pur p o s e it is understandable, for it will happen in most c ases a part f r o m fraud, that an owner will only be able to be di v e s t e d of h is m o n e y , without his consent but with his k n o w l e d g e , b y viole n c e or the threat of it. As a general approach, however, the an a l y s i s in this case is s u r e l y unsound.

Contr a s t M u r p h y (1870) 9 SCR(N3\Y) 281, w h e r e the trial judge wascareful to instruct the jury that before they c o uld convict M of unlawful w o u n d i n g where he had combined w i t h one K in a joint ass a u l t u p o n another, in the course of which K had inflicted g r i e v o u s bodily h a r m w i t h the us e of a stic k to which he had s u d d e n l y resor t e d , they h a d to b e s a t i s f i e d that M co ntemplated that ttiis more serious assault might he committed; o t h e r w i s e he was to be c o nvicted o f a common a ssault merely.

(29f) Fo r ex a m p l e , H a r v e y (1843) 1 Cox CC 21. See D u f f y (1830) 1 L e w 194,168 E R 1009, S h o r t (1932) 23 Crim A p p R 1 7O 5 G e o g h e gan ( 1 9 1 4 ) 31 W N ( N S W ) 81; K a l i n o w s k i (1930) 31 S R(NSW) 377.

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principal in this killing and, by and large, any person encouraging or assisting him in the conduct causing death, may be convicted of murder irrespective that neither of them otherwise acted with the mental element required for murder in the principal and accessory, as appropriate. The extent to which these heads may presently be resorted to in order to ground accessorial liability for murder in the subject jurisdictions is examined in (2) below.

For the moment attention is focussed on those situations where thedefendant is sought to be convicted as an accessory to a homicide committedas an incident of a common purpose in circumstances not attracting a headof constructive murder. In such a case the defendant's liability for murdermust of course be evaluated on a subjective basis. Thus, in order to beconvicted of murder it must be shown that the alleged accessory was partyto an agreement which contemplated that either he or his confederate wouldkill a person, or intentionally inflict grievous bodily harm upon a person,definitely, or subject to a contingency.^^ Alternatively, where theagreement contemplates the doing by one of the parties to it of an actcausing death, in those circumstances which disclose that this person therebyincurs liability for manslaughter, then each of his confederates becomes . . . 31similarly liable. In general, such instances of manslaughter would amount

to constructive manslaughter, i.e., (1) where the act causing death is both unlawful, in the sense of amounting to a crime, and as well, objectively 30 31

(30) And in rare cases, where the common law doctfine of reckless murder is sought to be invoked, it would have to be demonstrated that the agree­ment contemplated the doing of an act with the foresight (though not the desire) that death or grievous bodily harm would probably result: see generally Pp.97-8.That the agreement must contemplate the commission by the perpetrator

of the act causing death, in those circumstances which disclose that he thereby incurs liability for murder, was recognised for example in Macklin (1838) 2 Lew 225, 168 ER 1136; Harrington (1851) 5 Cox CC 231; Turner (1864) 4 F & F 338, 178 ER 590; Smith [1963] 3 All ER 597; Lovesey [19693 1 QB 352; Reid (1976) 62 Crim App R 109; Surridge (1942) 42 SR (NSW) 278; Varley v. R. (1976) 12 ALR 347; Markby v. R. (1978) 21 ALR 448; Johns v. R. (1979) 28 ALR 155.Certain of these cases, (i.e., Varley, Markby and Johns) deal with two

of the statutory heads of murder in s.18 of the Crimes Act, 1900 (NSW), which re-expresses the common law heads of murder based upon the doing of acts either with the intention to kill, or with the intention of inflicting grievous bodily harm.

(31) See for example Harrington, id., Turner, id., and Macklin, id. See also the references at p.1j>4ff«

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dangerous; or (2) it amounts to an assault (these two heads obviously over- 32lap); though it is not inconceivable that the agreement could include the

reckless performance of an act causing death which is sufficient to ground33liability for negligent manslaughter.

In certain situations, it is possible that the liability of each oftwo (or more) confederates for a homicide committed pursuant to a commoncriminal purpose, will be differentiated, so that the principal incurs

34liability for murder, and the accessory for manslaughter. Certain conceptual difficulties arise in this situation, however, and certain of the decisions are not obviously reconcilable. This matter is next considered.

(b) Where the Principal Incurs Liability for Murder, and his Confederate in a Criminal Concert Incurs Criminal Liability for Manslaughter, or for a Lesser Crime^________________________________________________

(i) PreliminaryThese conceptual difficulties arise in that situation where A and B

agree to assault V in such a manner that if death results each of them (whether as joint principals, or as principal and accessory) will incur liability for manslaughter only; but in fatrt one of them (say A) secretly possesses the intention to kill V or to inflict grievous bodily harm upon him (the formation of which intention may be antecedent, or take place after the conclusion of this agreement) , and in fact commits the act causing death. Now clearly A incurs liability for murder; and because he did not contemplate the doing of an act accompanied by the mens rea for murder, B cannot incur liability forthis crime. Rather, B's liability will be one for'‘either manslaughter, or

36 ^for one of the lesser assaults. 32 33 34 35 36

(32) See enerally at PP*154~5*(33) As to which, see pp.156-7*(34) It would be more difficult to have a reverse differentiation, given the

derivative nature of the accessory's liability. See p. 253ff•(35) See the discussion of this topic in Lanham, "Accomplices and Constructive

Liability" (1980) 4 Crim LJ 78 at 82ff.(36) While this discussion will be directed to the situation of a common

purpose to commit an assault, it is considered that the same fundamental considerations apply to the situation where B hecomes an accessory to an assault otherwise than per medium of concert - where for example, he sees A assaulting V in the street, and shouts encouragement to A to continue with this assault.

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In certain situations, it is supposed, B may properly be convicted of manslaughter, even as A is convicted of murder. Where the act causing death done by A is, on an objective view, of the same quantum of violence as is contemplated by the agreement, there would seem to be no conceptual obstacle to convicting A of murder (because he had the mens rea appropriate to this crime), but B of manslaughter (because he had agreed only to the commission of a lesser assault, and not to the commission of an act with the intention to kill or to inflict grievous bodily harm). Such a situation would be one, for example, where A's blow is dealt with a fist alone. A knows that V has a grossly diseased heart, and that a blow with a fist may provoke a fatal heart attack, and secretly intends that this should happen, whereas B being ignorant of V's precarious health, contemplates no more than a common assault.

The situation is obviously different, however, where the act causing death, as perpetrated by B, is of a type, and associated level of violence which is not comprehended by the agreement. For example, A and B may agree to assault V, who is young and robust, with their fists, intending no more than a common assault; in the course of this assault, however, A may suddenly produce a knife (which unknown to B, was in his pocket) and stab V, killing him. In this situation A incurs liability for murder, but B incurs liability (whether as accessory or principal) only for assault. B cannot be made liable either for murder or manslaughter. In the abstract, no doubt, he acted with a me; t;al element appropriate to manslaughter, viz , in agreeing upon the unlawful infliction of an assault. But he did not knowingly encourage or assist the act causing death, viz , A's act of stabbing. And it is only by reference to this act, ultimately, the act constituting or causing the commission of the homicide, that secondary liability for homicide may be imposed upon him. Analysed in terms of the doctrine of common purpose, he obviously cannot incur liability for this act, for it was not comprehended by their agreement, but was outside of it. In other words, A has disregarded their common purpose, and committed his own independent crime. Analysed in more basic terms, independently of the doctrine of common purpose, B similarly avoids liability. While he encouraged and assisted A in the pummelling of V with fists (and may have participated in this himself), and while he may even have encouraged and assisted B in the stabbing - for example, his presence may have afforded moral encouragement to B, or have discouraged V from flight, he did not knowingly encourage or assist B in this stabbing. This is because B did not know at this time that it was in A's mind to stab V, viz , the doing of such an act was not in A's contemplation. His acts of encouragement or assistance where of course, voluntary and deliberate, but they were wittingly directed to the assault with fists alone, and not to the stabbing,

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which latter act was the only relevant cause of death. It is a basic principleof accessorial liability that before a person may be made an accessory to agiven crime, he must perform an act of encouragement or assistance knowing(at the minimum) that the act constituting or causing its commission is being,or will possibly be committed. An unwitting act of encouragement or assistance

37does not incriminate the defendant as an accessory.

In such a circumstance, B cannot very well be incriminated in man­slaughter upon the basis that he did agree upon the perpetration of the conduct (i.e., the assaulting of V with fists) which caused death. While the stabbing is clearly subsequent to the assault with fists, and indeed follows instantaneously upon its commission, there is no relevant causal connection in law, between the two events. A's independent resolve to stab V clearly represents a novus actus interveniens which is sufficient to rupture any such causal nexus as otherwise might be sought to be established. It is not clear, however, that there is even a prima facie indication of causal nexus; the assault with fists was not (necessarily) a sine qua non of the stabbing - B could just as easily, for example, have independently stabbedV, perhaps from behind; and *the stabbing was not a natural, predictable,

38(objectively) foreseeable outcome of the assault with fists. To repeat, the logical result would, therefore, be that in such a situation A would incur liability for manslaughter, but that B would incur liability for assault only. Several authorities it will be seen, support this analysis, though a number of others are to the effect that prima facie, where A and B agree to commit an unlawful assault upon V, in the course o£ which A independently resolves to kill V (or to inflict grievous bodily harm upon him) and does an act causing death, then even as this is of a quantum of violence not sanctioned by their agreement, B will incur liability for manslaughter.

The first of these conflicting lines of authority will be firstly considered.

(ii) Cases Favouring the Conviction of the Alleged Accessory of Assault Only39An earlier such case is that of Macklin (1838), where Alderstone, B.

said, in the course of instructing a jury, that 37 38 39

(37) See p.129ff.(38) See the brief discussion of causation in the criminal law at p. 77^f*(39) (1838) 2 Lew 225, 168 ER 1136.

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If several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all. The act, however, must be in pursuance of the common intent. Thus, if several were to intend and agree to­gether to frighten a constable, and one were to shoot him through the head, such an act would affect the individual only by whom it was done.

40In Price (1858) Byles J. in effect instructed a jury that if six menattacked a person with their fists, five of them intending only a simpleassault, and the sixth produced a knife and stabbed and killed the victim,he alone would be guilty of homicide, with the others being entitled to be

41acquitted of both murder and manslaughter. In Caton (1874) , Lush J. instructed a jury trying a person charged as an accomplice in manslaughter that "if two men concerted together to fight two other men with their fists, and one struck an unlucky blow causing death, both would be guilty of manslaughter. But if one used a knife, or other deadly weapon ... without the knowledge or consent of the other, he only who struck with the weapon

h 4 2would be responsible for the death resulting from the blow given by it. Ineach of these latter two cases, it was apparent, the judge's reasoning was similar to that in Macklin; \ as the act causing death within the scope of the common criminal purpose?

Precisely the same analysis was employed by the English Court of43Criminal Appeal in Anderson (1966). The Court accepted that assuming that

A and M had agreed to assault V with their fists, not intending the inflictionof grievous bodily harm, and that M had stood behind V while A assaulted himthus, but that A had suddenly pulled out a knife which (unknown to M) wasin his pocket, and stabbed and killed V, then M would not incur liability formanslaughter, but merely for assault. (A was convicted of murder.) Thecourt, rejecting the Crown's contention that "if two or more persons engage... in an unlawful act and one suddenly develops an intention to kill wheredeath results, not only is he guilty of murder, but all those who have engaged

44m the unlawful act are guilty of manslaughter, said that this suggested 40 41 42 43 44

(40) (1858) 8 Cox CC 96.(41) Caton (1874) 12 Cox CC 624.(42) Id., at 624-5.(43) [1966] 2 QB 110.(44) Id., at 119.

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principle is wholly out of touch with the position today. It seems to this court to say that adventurers are guilty of man­slaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.(45)

The court referred additionally to the situation where two people form acommon design to do an unlawful act and death results from an "unforeseenconsequence," saying that here they would both be guilty of manslaughter.This expression, i.e., "unforeseen consequences" has apparently been conceived as being of especial significance in certain later cases (see under (iii) below), but it is apparent that the court in Anderson, in using it, meant tosay no more than that it is fundamental to constructive manslaughter thatdeath will have been unintended by the person or persons perpetrating theunlawful assault which is relied upon to ground such liability, and that(in this context) where the alleged accessory has admittedly aided such anassault, and that this very assault has, unexpectedly, caused death, then

46he is guilty of manslaughter nonetheless.

The court also justified this conclusion, that M did not incur liabilityfor manslaughter, by reference to the legal concept of causation. It isapparent that this was done, however, only because the Crown had referred,inter alia, to this issue as being one of causation. In fact, so it has

47been suggested in Chapter Four, the liability of the alleged accessory(i.e., to manslaughter) in this situation is not obviously to be thus analysed.It goes without saying that A caused the death in the legal sense, and thatalthough he may well have unwittingly assisted A ip this very act (ex hypothesi,by standing at V's back) , M did not cause this event to take place, eitherwholly or in part. But the central reason why he did not incur liability inthis situation, one confirmed by the court's analysis, is that the stabbingwas not in contemplation. It matters not that M agreed upon (and encouraged)the antecedent (common) assault by A - to repeat, this event was not the legalcause of V's death, and participation in it could not, therefore, found

48liability for homicide. 45 46 47 48

(45) Id., at 120.(46) This interpretation was placed on this remark by the same court in

Lovesey [l970] 1 QB 353 at 356.(47) See p.77i'f.(48) Anderson [1966] 2 AB 110 was endorsed in Lovesey [1970] 1 QB 353.

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The Anderson analysis was followed in the Western Australian decision49 .of Borg v. R. (1972). The appellant had been implicated m a common design

with another man to demand money from a third person with menaces, contempl­ating no more than that a common assault might be necessary to achieve this end. While the appellant waited outside the third person's house, his confederate shot and killed him along with his wife. Given the lack of proof that the appellant knew of his companion's possession of the pistol,Chief Justice Jackson considered that there was no evidence sufficient to make him an accessory to either murder or manslaughter; the killing with thepistol "was ... an act so far outside the common purpose as to constitute a

50separate and distinct crime, entirely foreign to the plan."

(iii) Cases Incriminating the Alleged Accessory in Manslaughter: An Independent Rule of Accessorial Liability?_____________________________________________Numerous other decisions are to the effect that where two persons agree

to commit an unlawful assault upon V, which act is not to be accompanied bythe mens re a appropriate to murder (so that in the event of death, eachwould incur liability for manslaughter only), but in the course of thisassault one of them acts upon a secret, preconceived or spontaneously formedresolution to kill V (or to inflict grievous bodily harm upon him), and doesan act causing V's death, his confederate is nonetheless guilty of manslaughter(and he of murder).

The incrimination of the confederate as an accessory to manslaughter inthis situation cannot, it has been seen, logically be justified in terms of

*the doctrine of common purpose or the general principles of accessorial liability which underly it. Perhaps for this reason, the courts have not sought to justify this conclusion in these terms. Their explanations have been unduly equivocal, or circular - the more so since Anderson, given their desire to defer to its authority, or to endorse its reasoning, and yet to avoid the same result in respect of the facts presently before them. It might be concluded, therefore, that the courts have in effect evolved an independent (and specific) rule of common law, which clearly operates by way of exception 49 50

(49) [1972] WAR 194.(50) Id., at 200; see also the remarks of Wickham J. at 201-2.

See as well Crawford J's dissenting judgment in Murray v. R. [1962] Tas SR 170 at 197, where he likewise subscribed to this analysis (see below at p. 202 ); and see Murphy J's judgment in Markby v. R. (1978) 21 1 jR 448 at 456 (see below at p. 206 ) .

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to the doctrine of common purpose, and its underlying general principles..This rule can be characterised in the terms in which the Crown sought to define it in Anderson (19 66) (though on that occasion the court disapproved is unequivocally) , i.e., (as noted in (.ii) above) , that "if two or more persons engage ... in an unlawful act [i.e., assault] and one suddenly develops an intention to kill, whereby death results, not only is he guilty of murder, but all those who have engaged in the unlawful act are guilty of manslaughter." As such a rule cannot in strict logic, be justified, it may be supposed that it has, de facto,been upheld upon the ground of public policy.

Nearly all of the decisions of this type are of very recent origin. In53the English case of Smith (1963), it was established by the Crown that the

appellant, along with several companions, had become involved in a brawl at a public house, and that the appellant, who had gone outside, commenced to attack the bar and incidentally the barman by throwing bricks in through the doorway. one of his companions, who was inside, and who possessed a knife, produced this knife and stabbed and killed the barman. The appellant was convicted of manslaughter; and for a reason or reasons which do not appear from the report, none of his companions was convicted of murder. On the basis that appellant knew that one of his companions carried two knives, and that it was therefore

clearly within [his] contemplation ... that if the barman did his duty to quell the disturbance and picked up the nightstick, anyone who knew that he had a knife in his possession, like Atkinson, might use it on the barman, as Atkinson did. By no stretch of the imagination, in the opinion of this court, can that be said to be outside of the scope of the concerted action in this case. In a case of this kind it is difficult to imagine what would have been outside the scope of the concerted action, possibly the use of a loaded revolver, the presence of which was unknown to the other parties; but that is not this case, and I am expressing no opinion about that ... (54)

This reasoning is difficult to follow. If the appellant contemplated that his companion would use a knife against the barman, then he would have had

(51) [1966] 2 qB 110.(52) Id_. , at 119, citing Salisbury (1553) 1 Plow 100, 75 ^ 158*(53) [1963] 3 All ER 597.(54) Id. at 602.

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the (accessorial) mens rea for murder. If on the other hand, he did not contemplate the use of the knife in this way - if its use was not a tacit part of what was clearly a spontaneously formed criminal concert, then the doing of the act causing death was not a matter for which he could be made liable, whether for murder or manslaughter.

For his own part, the trial judge would appear to have envisaged thateven supposing that the appellant had not contemplated the use of the knife,but he had nonetheless taken "part in the general attack on the bar directedin part at the barman" (i.e., by throwing bricks), he would still be liablefor the killing effected by the stabbing, as an accessory to manslaughter.The trial judge told the jury that ”[m]anslaughter is unlawful killing withoutan intent to kill or to do grievous bodily harm. Anybody who is a party toan attack which results in an unlawful killing ... is a party to the killing."Given that this death was caused by a stabbing which on one possible view ofthe evidence, was not contemplated by the appellant (as noted, the trialjudge's summing up, as reflected in other passages cited in the Court ofCriminal Appeal’s report, did not make this liability contingent upon anysuch contemplation), it is arguable that the trial judge envisaged thatthere was indeed an independent rule of accessorial liability in the termsoutlined above, which operated by way of exception to the doctrine of commonpurpose, and the general doctrine of accessorial liability underpinning it.The Court of Criminal Appeal endorsed the above-cited statement as a "wholly

56unexceptionable direction on the law," in these circumstances.

The issue was returned to in the English Coutt of Appeal's decision in57 . *Reid (1976) which purported to apply Anderson. The appellant had been

convicted of manslaughter, and his two confederates of murder. The facts as evidently found by the jury, were that his confederates had gone to V's house possessing weapons intending to kill him or to inflict grievous bodily harm upon him, and that one of them had shot and killed him; but the appellant, on the other hand, while agreeing to accompany them, had contemplated no more than that his confederates intended to frighten V by pointing the guns at him. 55 56 57

55

(55) Though granted that no one was convicted of murder qua principal, it isunlikely that such liability could, in the ultimate issue, have been established in the appellant: See p.6, Chap.8.

(56) See Smith [1963] 3 All ER 597 at 600-1. See also the earlier case of Garforth (1954) Crim LR 936, which is, however, too briefly reported both as to the facts and to the court's reasoning, for any definite conclusions to be drawn as to the court's conception of the law in this context.

(57) (1976) 61 Crim App R 109.

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If this was so, then the appellant did not have the mens rea appropriate to an accessory to manslaughter, in that the perpetration of the act causing death was not part of his agreement with the perpetrator; it was not, that is, in his contemplation. This being so, his liability, in Anderson terms, would be confined to that of being an accessory to assault, as well as unlawful possession of an offensive weapon.

In the Court of Appeal's view, however, he had properly been convictedof manslaughter. The court focussed upon the unlawful possession of offensiveweapons, to which offence the appellant was admittedly party, apparentlyviewing this as the relevant cause of death, saying that the death was, inAnderson terms, a "mere unforeseen consequence" of this "unlawful" and

58"dangerous" act. If this joint possession was, indeed, the operative causeof death, then this reasoning would be unassailable - for it would clearly betrue that the defendant had agreed upon the commission of the act causingdeath. The court elaborated thus:

When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circum­stances are such as to justify an inference that the very least they intend to do witl^ them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or seriousinjury.59

The problem in this reasoning is, however, that the joint possession simpliciter did not cause the death - it was the resolution of one of the appellant's confederates to present the gun at V and to pull the trigger which caused death. This clearly represented a novus actus int>erveniens, supposing that a causal nexus between the unlawful possession of offensive weapons, and the shooting, could otherwise have been established.

That this reasoning was tenuous, was recognised by the court, in its statement immediately after the above cited passage, that "[i]f such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter ..."^This statement, which is clearly incompatible with the reasoning in Anderson 58 59 60

(58) Id*/ at 112, citing Anderson [l966] 2 AB 110 at 120.(59) Reid, id., at 112.(60) Id., at 112 (emphasis added).

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(its application would have resulted in the confirmation of the appellant;M's conviction for manslaughter^) really put the issue of the appellant's liability on a quite different footing. According to it, he was guilty of manslaughter because he joined in a common purpose for an unlawful and dangerous act which if it had caused death would have grounded liability in the perpetrator, even as death was in fact caused by the independent and unforeseen act of one of his confederates in shooting V (i.e., one the doing of which was not part of their common purpose ). Clearly, therefore, the court accepted the existence of the independent rule of accessorial liability noted at the outset of the discussion under the present heading.

The existence of such a rule has, by implication, been accepted bycertain Australian courts. It was apparently accepted by the majority of

62the Tasmanian Supreme Court in Murray v. R. (1962), who held that giventhat the appellant had been party to a common purpose to assault V, thoughnot to employ such a quantum of violence as would incriminate the perpetratorin murder, in the course of which assault his confederate had formed themens rea appropriate to murder and killed V, the appellant had been properly

6 3convicted of manslaughter. On the other hand, Crawford J. would have quashedthe appellant's conviction, justifying himself in terns which clearlyanticipated the reasoning in Anderson. He said that in such a situation,i.e., where two persons agree to the infliction of a lesser quantum of force,and one of them secretly resolves to inflict force of a greater quantum, onesufficient to ground liability for murder if it causes death, then the otheris not properly to be convicted of manslaughter, i© this event:

The other party should not as a matter of logical reasoning or as a matter of morality be found guilty of manslaughter, because it becomes impossible to say that the death of the victim would have been caused by the carrying out of the plan agreed to by the other party . ..(64) 61 62 63 *

(61) See the statement of facts at p.19b.(62) [1962] Tas SR 170.(63) Id.. , at 175, 181 especially (Burbury CJ) . Gibbs J. did not comment in

detail on precisely this point, but clearly concurred with the Chief Justice's views: i_d., at 190. While liability for homicide is provided for in the Tasmanian Criminal Code, 1924, both judges considered that the common law rules governing this issue were applicable in Tasmania per medium of the Code.

(64) Id., at 197.

203The Full Supreme Court of Victoria in Ryan (1966) also accepted that

where two people agree to apply a lesser quantum of violence against V which, if it was to result in death, would involve that they were guilty of man­slaughter only, but one of them secretly resolves to kill V or to inflictgrievous bodily harm upon him, and in fact does kill him, the other of them

66is guilty of manslaughter. In this case the two appellants, R and W, hadagreed to use force, if necessary, in their commission of a felony of escaping

6 7frcm gaol. R shot and killed a prison officer during this escape. By implication, the jury had found that W had not agreed to the use of sufficient force as to ground liability in the perpetrator for intentional murder, should death have resulted frcm its application. That W was nonethe­less guilty of manslaughter was explained by the court on the basis that

if the act involved more force than W in fact contemplated, it remained nonetheless an act which flowed from and was the result of his assent to the use of force for the unlawful purpose of effecting the escape.^®

The court further explained that the shooting was not the result of the"independent act" of R - "for it was the arrangement between [r] and [w]

69which initiated R's act...".v

These statements of principle must be questioned, at least in their literal terms. In so far as they purport to establish a causal link between the agreement to which W subscribed, i.e., the use of a lesser quantum of force, and the shooting, they are clearly to be criticised in the same terms as the English decision in Reid, as discussed above, i.e., that R's act of killing V was indeed his own independent act and a sufficient novus actus interveniens as to rupture any causal chain linking^ the agreement and the shooting, supposing that one could otherwise have been established. The 65 66 67 68 69

65

(65) [1966] VR 553.(66) Putting aside the doctrine of felony murder. In fact the court considered

that Walker, the alleged accessory to the instant killing, could properly have been incriminated as an accessory to murder pursuant to this doctrine.

(67) Created by s.35 of the Gaols Act, 1958.(68) Id., at 567.(69) Id., at 567.

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conception of the doctrine of common purpose expressed by the court is clearly contrary to authority; for the court clearly accepted that a person who joinec in an agreement for one crime would became incriminated in each other crime done by his confederate in its transaction, irrespective that the commission of this further crime or crimes was not a part of the agree­ment, viz-, not in his contemplation. In effect accessorial liability would be imposed upon an objective basis. Ryan's conclusion on this matter can, therefore, only be supported on the basis that, as suggested, accessorial liability in this situation (i.e., for manslaughter) is to be upheld by resort to an independent rule.

The High Court has considered the issue on two occasions. In Varley 70v. R. (1976) the appellant had agreed with two other men that another should

be assaulted by fists, and he stood by while this was done. It was allegedby him that during the assault one of the assailants (both of whom were claimedto be policemen) had produced a police baton which, unknown to the appellant,was in his possession, and inflicted a fatal blow. Even supposing that thiswas indeed so, i.e., that death had resulted from the application of thisweapon, the appellant did ncyt, it was held, come within the protection of theprinciple in Anderson. Barwick J. in whose judgment the other members ofthe court concurred, said that the circumstances in Anderson were different -though the opposite could, prima facie at least, equally be argued. He saidfurther that the trial judge had

placed the weapon in its correct perspective when he treated it, if its use was not foreseen by the appellant, as no more than an unexpected incident in carrying out the comm<5n design ... Here the use of a baton or cosh, even if not actually contemplated, was clearly a likely means of carrying out the plan of beating up Burton: and obviously within the scope of the plan. There is therefore, no need to discuss the question of whether or not the judge gave specific attention in his summing up to the scope of the common design.^

These comments, at first glance, are enigmatic: the fact that the use of a weapon is an "unexpected incident" in the carrying out of the common design surely involves that it was beyond the scope of this. A possible interpret­ation of them is, however, that Barwick CJ was of the view that the use of the baton, while it was not specifically foreseen by the appellant, represented the application of a level of violence which was in the contempl­ation of the agreement. In other words, what was done was in substance if not in form, actually agreed upon by the several parties, including the 70 71

(70) (1976) 12 ALR 347.(71) Id. , at 353.

appellant. This conclusion is supported by his immediately preceding observ­ation, that the "deceased was a man of considerable physical size and strength,expert in judo, both likely and well able to give a good account of himself in

72physical combat." By implication then, the appellant and his confederates did contemplate that if the beating-up was to be effected by bare fists, a considerable level of violence would need to be employed, one which, conceivably, could (to the appellant's knowledge) have been equal to that which was (according to his story) actually produced by the use of the baton.

The decision may, therefore, to be viewed as being compatible with Anderson, on the narrow basis that where the appellant agrees to the application of a given quantum of force, he is not relieved from a killing which results from the perpetration of an act of violence by his confederate in the purported execution of their agreement, which violence is at the same level as that contemplated, only upon the basis that the means whereby this force is applied differ from those contemplated by the agreement.

Finally, there may be noted the High Court's decision in Markby v. R.73(1978) , where the majority accepted that if A and B agree to rob V, and

to take with them a loaded i?ifle in order to frighten V, but in the course of this robbery one of them independently resolves to shoot V and does so, then (putting aside any possible application of a common law or statutory doctrine of constructive murder), the other of them is guilty of manslaughter. Gibbs ACJ (whose judgment was concurred in by Stephen J and Aickin J.) did not seek to explain this result, other than by citing from certain of theauthorities which have been outlined in the preceding pages, such as Smith

74 75 76(1963), Anderson (1966), Reid (1975) , and Varley. Principal reliance was placed upon Reid, which decision is seemingly irreconcilable with Anderson and with general principle, so it has been noted above. Because he 72 73 74 75 76

205

(72) Id.,(73) (1978) 21 ALR 448.(74) [1963] 3 All ER 597.(75) [1966] 2 QB 110.(76) (1975) 62 Crim App R 109.

206

did not attempt to reconcile these two decisions, it is unclear as toprecisely how he considered that accessorial liability for manslaughter wasto be justified in this type of situation. Given the terms in which heconceived the ratio in Smith, it may be that he ultimately viewed theaccessory's liability in this circumstance as being based upon an independent

77rule of the type outlined.

(iv) Conclusion: The Competing AnalysesA decision such as Anderson on the one hand, and decisions such as

Smith, Reid and Markby v. R. on the other, propose contrasting approachesto the analysis of the defendant's liability in that situation where afterhe agrees with another to apply such a degree of violence against V as wouldnot ground liability for murder in either of them, in the event that deathunintentionally results, his confederate, in the course of committing thisassault, suddenly manifests an intention to kill or to inflict grievousbodily harm and does an act causing death. It is proposed that these twoanalyses are not ultimately compatible - certainly none of the decided casesindicates a basis for reconciliation - and that logically, a choice must bemade between them, in each jurisdiction. It is submitted that the Andersonanalysis should be favoured, as it correctly bases liability for what is aserious crime, i.e., constructive manslaughter, upon a subjective basis, inrequiring that the defendant must agree upon the perpetration of the actcausing death, or, where the doctrine of common purpose is not relied upon,then he must knowingly encourage or assist this act, in order to become anaccessory. The Anderson principle, it has been noted,conforms completely

%with the law of accessorial liability, as it applies in other contexts.

If the alternative approach is to be relied upon, it must be justified, in the general sense, upon policy grounds, rather than upon strict logic. It is considered that if this analysis is to be grounded upon a coherent technical basis, the obvious solution is to see it as representing an independent rule of criminal liability, which operates by way of exception to the general principles of accessorial liability. 77

(77) Markby v. R. (1978) 21 ALR 448 at 451. Murphy J also considered that the alleged accessory could "properly be convicted of manslaughter" in the fact situation outlinedbut he said further that he "could be acquitted entirely if what [the principal] did was sufficiently far removed from any common purpose." (at 456). This latter statement defers to Anderson, but it is somewhat inexact. The relevant question (in Anderson terms) is, simply, whether the perpetration of the act which in fact causes death is within or outside of the scope of the

, , common, purpose, not whether it is, "sufficiently" outside of .it, , , , ,

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(c:) Uncertainty as to IdentityWhere there is joint participation in an assault which has resulted in

death and there is uncertainty as to the role that each accomplice has playedin this assault, the courts have held such a failure of identification to besignificant only where the circumstances are such that it is possible that agiven party had a mental content differing frcm that of his confederates, and

78that this difference is legally significant. In Mohan v. R. (1967) for example, it was not crucial to identify which of the two men who had jointly stabbed a person who died as a result of this assault, had actually inflicted the one fatal wound revealed by post-mortem examination, for in wielding cutlasses against the victim each had manifested an intention to inflict grievous bodily harm or to kill and to assist the other to do this, thereby rendering himself guilty of murder according to conventional principles.

In other cases, however, if the demonstration of a given mental elementin A was crucial to his conviction for either murder or manslaughter, and afailure to identify the man inflicting homicidal violence meant that theevidence failed to identify A with this mental element, then the courts haveof course required that he b^ convicted of no more than manslaughter, oracquitted utright, as the circumstances have required. This will typicallyhappen where two men assault X, one of them intending the infliction of asimple assault, the other unexpectedly producing a gun or knife and killing X.If the killer can be identified, he will be convicted of murder, and the otherwill be convicted of manslaughter, or acquitted (see under (b) above). If theprincipal offender cannot be identified, both must he treated upon the basis

7 %that they intended no more than a simple assault.

(2) Where the Incidental Crime is One of Constructive MurderTwo types of constructive murder exist at common law: (1) felony-murder;

(2) where the victim is an officer of justice killed by a person unlawfully resisting the officer in the latter’s discharge of his duty. They are examined in turn.

(a) Homicide Committed During Felony(i) General

The conventional view of the courts has been that the accessory to felony-murder is required to have the same awareness of essential matters as the principal, and no more. According to this common law doctrine the principal 78 79

(78) Mohan v. R. [1967] 2 AC 187.(79) S6e, fob example, Harrington (1851) 5 Cox CC 231; Price (1858) 8 Cox CC

96; Turner (1864) 4 F & F 338; 178 ER 590.

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is guilty of murder if during the commission of a felony he commits an actcausing death, even if this act is unaccompanied by the mens rea otherwiserequired of murder, i.e., an intention to kill or to inflict grievous bodilyharm. The doctrine is subject to the important limitation, however, thatthis act must be one of deliberate violence, or it must be dangerous to

80the person. In other words, the only mental element required of the principal is that he have had the intention to commit the foundational felony, for example, robbery, and further, the intention to perform the act causing death, even as he may not have appreciated its homicidal potential. Accordingly, it is sufficient for the conviction of the principal's confederate in this foundational felony, as an accessory to the murder committed by the latter, that he is proven to have had the mental element required in the accessory by the definition of this felony, and that he would have contemplated that a violent or dangerous act would possibly be committed by his confederate.

Such was certainly assumed in England prior to 1957, which year saw the81enactment of the Homicide Act and the abolition of the felony-murder rule.

82A classic such decision is that of Betts (1930) where the English Court ofCriminal Appeal held that ar accessory to robbery was constituted an accessoryto murder upon the killing of the victim by his confederate, provided that theaccessory had contemplated when he combined with the principal for the commissionof the robbery, that "some violence" was to be used: "it is clear upon theauthorities that if he was a party to this felonious act of robbery with violence- some violence - and that the other person, the principal in the first degree,in the course of carrying out that common design does an act which causes the

* 83death, then the principal in the second degree is equally responsible in law."It was irrelevant that the accessory had not contemplated that his companion

84would seek to inflict grievous bodily harm. The only preconceived intent85required w is that "to rob with some degree of violence." The only possible

defence which would have been available to the alleged accessory was that the 80 81 82 83 84 85

(80) See generally Howard at p.56ff.(81) Homicide Act, 1957 (UK), s.l.(82) (1930) 22 Crim App R 148.(83) Id., at 154.(84) Id., at 155.(85) Id., at 155.

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common purpose embraced the taking of the money withoxrt violence.

Earlier decisions confirm the approach of the court in Betts.

In the Australian jurisdictions the approach of the courts has been similar.

(ii) England - the Present PositionThe felony-murder rule is now inapplicable to either principal or

accessory in England. Firstly, the common law division of offences intofelony and misdemeanour has disappeared, following upon the enactment ofthe Criminal Law Act of 1967, s.l of which abolishes all such distinctions.But before this, it has been seen, the Homicide Act of 1957 (UK) s.l, abolishedthe doctrine of felony-murder, though it otherwise left the common lawprinciples which had governed the mens rea for murder in England, intact.Thus, at the present time, a person may be convicted of murder if he had atthe time of the act or omission causing death, the intention either to kill

88or to inflict grievous bodily harm upon a person.

Accordingly, in order that a person may be convicted as an accessoryto a murder committed by his confederate during their joint commission ofsome preconceived offence, it is essential that the defendant should havecontemplated that his companion was prepared to inflict grievous bodily harmat least upon a person during the course of committing the foundational crime,should this be necessary. If the defendant envisaged the infliction of alesser quantum of violence, then at most he is liable as an accessory tomanslaughter. This subjective approach was confirmed by the English Court

89of Appeal in Lovesey (1969). 86 87 88

87

(86) Id., at 155. The appellant had waited in a car nearby during the robbery. He testified that he had left it to his confederate tocarry out the scheme, and that he had not desired violence, contemplating that his companion would snatch the bag or push the victim, whom they knew was elderly. The evidence was ambiguous as to whether his companion had used a weapon, or merely used his closed fist.

(87) See for example Jackson (1857) 7 Cox CC 357 (though note that Bramweil B's charge to the jury was in rather wide terms, in that he told them that "the rule of law is [that] ... if two persons are enaged in the pursuit of an unlawful object, the two having the same object in view, and, in the pursuit of that common object, one of them does an act which is the cause of death, under such circumstances that it amounts to murder in him, it is murder in the other also ..." (at 360)> though given that the homicide occurred during the robbery, it did not mislead the jury as to the legal tests applicable); Rubens [1909] 2 Crim App R 163 ( a joint robbery-homicide case); Grant (1954) 38 Crim App R 107 (a joint burglary- homicide case).

(88) Or alternatively, that he acted recklessly in respect of either of these events, in the terms defined in Hyam v. D.P,P. [l975] AC 55. See generally Smith and Hogan at p.285ff.[1970] 1 QB 352.(89)

210

The analysis now to be adopted in Britain in relation to the issue .of the accessory's liability for incidental crimes of homicide is outlined more fully in (1) above.90 91 92 93 94

(iii) The Australian States; New South Wales, Victoria and South AustraliaEach of these jurisdictions preserves the common law classification of

offences into felony and misdemeanour. Each of them but New South Wales preserves the common law rule of felony-murder. In New South Wales this doctrine has been truncated, so that its operation may only be invoked in respect of felonies punishable by death or life imprisonment.

New South WalesAlthough the doctrine of felony-murder may be invoked in respect of

foundational felonies punishable by death or by penal servitude for life,91pursuant to s.18 of the New South Wales Crimes Act, 1900, this does not

of course mean that a participant in a joint felony not so punishable cannotbe made liable qua accessory for a murder committed by his confederate during

92the transaction of this foundational felony. These two situations might be examined in turn.

l

Section 18 of the Crimes Act, 1900, specifies inter alia that murdershall be taken to have been committed where the act or omission causing deathwas done in an attempt to commit or during or immediately after the commissionby the accused or some accomplice with him of a crime punishable by death or

93penal servitude for life. All of these crimes so identified are felony. Ithas been established that this head of constructive murder parallels the commonlaw head of constructive murder, excepting that only felonies thus punishableare capable of attracting its operation, in that the only mens rea requiredto be proven in relation to the principal is that appropriate to the

94foundational felony. Doubtless he must as well intend the act or the

(90) . See p.191 above.(91) Which section displaces the common law of murder.(92) Surridge (1942) 42 SR (NSW) 278 at 282.(93) See s.9.(94) Mraz v. R. (1955) 93 CLR 393; and see generally Howard at p.65-7.

211

omission causing death; but this act need not be accompanied by any of the other form; of intention prescribed in respect of the crime of murder in s.18. That the accessory's knowledge of the essential matters constituting the offence need not be any more comprehensive than that required of the principal is clearly indicated in s.18, in that he is specifically implicated in constructive murder in the same terms as the principal, which head ofmurder is prescribed as an independent and alternative basis of liability

„ 95vis-a-vis the other such heads of murder enumerated in this section.

The solitary reported decision dealing with the inculpation of a personas an accessory to murder in reliance upon this statutory doctrine of constr-

. 96uctive murder is that m Vandme (1970) , where the New South Wales Court ofCriminal Appeal upheld the conviction of the appellant for murder in expressreliance upon s.18 in conjunction with s.98 of the Crimes Act. The lattersection provides a penalty of penal servitude for life for a robbery incertain circumstances of aggravation detailed in it, including inter aliathat the principal or his accomplice, while armed with an offensive weaponor instrument, have wounded or inflicted grievous bodily harm upon the victimduring or immediately befor<= or after the commission of the robbery. It wassufficient in the view of the court that the appellant had assisted theprincipal robber in the knowledge that the latter would effect this robberywhile in possession of an iron bar, which by implication he was prepared touse against the victim or any person interfering with the robbery. In factof course he fatally w o u n d e d the victim with this instrument. In havingthis knowledge the appellant was necessarily an accessory to the robberyin the aggravated circumstances defined in s.98; and so in turn one to the

97felony murder deriving from its commission. 95 96 97

(95) I.e., where the act or emission causing death is accompanied by an intention to kill, or to inflict grievous bodily harm, or is done with reckless indifference to human life.

(96) [1970] 1 NSWR 252.(97) Such is implicit in the reasoning of Herron CJ in id., at 256. Of

course, the appellant would in any event have been implicated in murder independently of the felony-murder doctrine, in that he inferentially contemplated the infliction of grievous bodily harm, if necessary, upon the victim, in assisting the principal robber in the knowledge of his possession of the bar and his preparedness to use it.

212

It is unclear as to whether the doctrine of felony-murder in s.18 is to be limited in the same terms as it is at common law, viz , that the principal (and for that matter his accessory) should have performed the act causing death during the commission of a felony that was intrinsically violent, or the performance of which involved an inherent element of physical danger to another. On most occasions the point will not arise, in that the majority of felonies in the Crimes Act, 1900 (NSW) which are punishable by death or penal servitude for life do have this potential; for example, rape (s.163), robbery in aggravated circumstances (s.96, s.98),arson in aggravated circumstances (s.196, s.19'7), or the use of explosives in specified circumstances (s.203).

Where a person is sought to be made liable as an accessory to a murdercommitted by his confederate during their joint commission of a felony whichdoes not attract the operation of the constructive murder clause in s.18, itmust be demonstrated that he has the mental element required in the accessoryby the definition of one of the other heads of murder prescribed in s.18 of

98the Crimes Act.TThe evaluation of the accessory's liability for homicide in circumstances

not attracting the doctrine of felony-murder disclosed in s.18 will be in99conformity with the principles discussed in (1) above.

VictoriaThe felony-murder rule remains intact in its common law form in Victoria,

so that a person is liable as a principal to murdef- where he does an act causing death during the commission of any felony which is deliberately violent or which is dangerous to the person. It has been confirmed by the Full Supreme Court of Victoria recently that it is irrelevant that this violence may not have been intended to inflict grievous bodily harm i.e., any degree of violence suffices. 98 * 100

(98) I.e., that he contemplated that his confederate would kill or inflictgrievous bodily harm upon a person during the commission of the foundational felony, should this prove necessary, or that he would be responsible for an act or omission causing death in circumstances which disclose that he acted with reckless indifference to human life, should this prove necessary- See Surridge (1942) 42 SR(NSW) 278, especially at 282-3 (a robbery-homicide case). See also Grand (1903) 20 WN(NSW)107 (a burglary-homicide case) though note that Stephen A-CJ's remark at .110 is far too broad as a general proposition of law, though in the circumstances of the case the practical result of it accords with the law properly stated.

'(99) See p.191 above......................................................(100) Ryan [i960] VR 553 - see especially at 567. Other Victorian authorities

are cited in Howard at p.56ff.

215

This approach has been confirmed in relation to persons alleged to.be accessories. In Dowdle (1900)^^ the trial judge commented obiter in a ruling that if several men combined to rob a person and one of them pushed him over and killed him (which had in fact happened), all of them would be guilty of murder if they contemplated that "violence" would be used. But if the agreement had been merely that the victim would be hustled, and his pockets picked, the independent act of one of them in pushing him over and

102 Inkilling him would not implicate the others in constructive murder.103Ryan (1966) the Full Supreme Court of Victoria took the view that a

104prisoner who combined with another in the felony of gaol-break would beguilty of murder by resort, inter alia, to the doctrine of felony murder incircumstances where his confederate shot and killed a warder during thisgaol-break, if he had contemplated the use of some force, but not necessarily

105force being accompanied by the intention to inflict grievous bodily harm.

The operation of the felony-murder rule has been altered in respect of the felony of abortion, in Victoria. An earlier Victorian authority had imposed liability for murder upon a person who counselled an illegal abortion in circumstances where the subject of this abortion had died during its commission, on the simple basis that the death "was one of the ordinary results of this illegal operation. The principal of course had been likewiseconvicted on this basis. More recently, however, the Supreme Court has contracted the scope of the rule in relation to principal offenders. According to it, the abortionist who causes death is liable to conviction for murder, on 101 102 103 104 105 106

(101) (1900) 26 VLR 637.(102) Id_. , at 639ff. See also Murray v. R. [1924] VLR 374 for a case dealing

with accessoryship in constructive murder. Note, however, that given the facts (joint robbery with a gun) the accessory would in any event have had the mental element required of an accessory to murder, contemplating as he did the shooting of the victim, if necessary.

(103) [1966] VLR 553.(104) As created by s.35 of the Gaols Act, 1958 (Vic.).(105) Such at least would seem to be the implication of the court's remarks:

Ryan [1966] VLR 553 at 567. Ryan is further referred to at p.216 below.(106) Radalyski (1899) 24 VLR 687 at 689.

214

the basis of the felony murder doctrine, only in that situation where it.wasreasonably foreseeable (even as he may not himself have had foresight) that

107death or grievous bodily harm would thereby be occasioned. If neither ofthese events was reasonably foreseeable, from an objective standpoint, then the abortionist would be guilty of manslaughter only. Logically, the liability of the accessory to an abortion which results in death, has similarly been contracted.

South AustraliaThe felony-murder rule has been confirmed in its common law dimensions

in South Australia as not requiring of the principal any more than thecommission during a felony for which he has mens rea, of an act resulting in

108death, provided that this act has been a violent or dangerous one. Though there is no reported case dealing with the accessory's liability for a murder committed by his confederate during their joint transaction of a foundational felony, it must be assumed that the accessory is required to have no fuller an awareness of the relevant circumstances of the offence than the principal, as in the case for example of Victoria (or England prior to 1957) .

The question of the accessory's (or indeed the principal's) liabilityfor a death caused by an illegal abortion is unlikely to arise in SouthAustralia, given the legislative liberalisation of the law governing the

109availability of abortion.

(b) Killing of an Officer of JusticeThis doctrine is of relevance to Victoria and South Australia alone, of%

the jurisdictions under present discussion. It was abolished in Britain in 1957^^ and in New South Wales in 1900.^^

Because the liability of the person causing death in these circumstances is constructive, the only mental element which needs to be proven is that he

(107) Salika [l973] VR 272 at 274ff., and see also the earlier cases of Trim ^1943] VLR 109; Carlos (1946) VLR 177. See generally Willis "Felony Murder at Common Law in Australia" [1977] 1 Crim LJ 231; and also Howard at p.58.

(107 108 109 110 111) Van Beelen [l973] 4 SASR 353.(109) Criminal Law Consolidation Act, 1935 (SA), s.82A (which was amended in

these terms by the Criminal Law Consolidation Amendment Act, 1969, in s.3).(110) Homicide Act, 1957, (UK), s.l.(111) It was abolished by implication in NSW, following upon the enactment of

a comprehensive offence of murder in s.18 of the Crimes Act, 1900, (NSW), , , which, made no,reference,to it..............................................

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had first.'/, an awareness of the victim’s identity as an officer of justice,and secondly, an intention to resist arrest or to escape, by the use of someviolence (though this violence need not have been intended to amount to

112grievous bodily harm). Today these "officers of justice" would in practicebe police or prison officers, but an old authority identifies such officersvariously, as any one of a "sheriff, justice of the peace, chief constable,petit constable, watchman or any other ..." killed in the execution of hiso f f i c e . A s this citation makes clear, the officer must have been acting

114m the performance of his public duty.

Because the liability of the principal offender is constructive, so tooany accessory engaged with him in the joint unlawful purpose which hasattracted the attention of the officer will prima facie be guilty of murderalong with the confederate who kills the officer, provided that in adheringto this common purpose the accessory contemplated the use of violence againstany such intervening officer. The courts have with near unanimity imposed such

115a liability upon the accessory, though on one or two occasions during thenineteenth century a court indicated that in order to become liable for themurder of an officer of justice in these circumstances, the defendant had to

y

have intended or contemplated the infliction of a greater quantum of force than is associated with a common assault.

The modern English decision of Appleby117 emphasises that this form

(112) See Porter (1873) 12 Cox CC 444 (Brett J) ; Appleby (1940) 28 Crim AppR 1 at 5. *%

(113) McKalley (1611) 9 Co Rep 61b, 77 ER 824.(114) See also Stephen’s Digest of the Criminal Law (7 ed) p.225, which was

judicially approved in Appleby (1940) 28 Crim App R 1 at 4, and which identified such officers of justice as persons having the lawful custody of persons, for example prison officers. In this regard see Ryan [1966]VR 553 at 564, which concerned the killing of a prison warden by an escaping convict.

(115) Old cases confirming this are McKalley (1611) 9 Co Rep 61b, 77 ER 824; Stanley (1663) Kelyng 86, 84 ER 1094; Plummer (1701) Kelyng 109, 84 ER 1103; Wallis (1703) 1 Salkend 334, 91 ER 294. A modern case is Appleby, id

(116) Macklin (1838) 2 Lew 225; 168 ER 1136. (The defendants had been engaged in an affray during which a constable who sought to intervene was killed, Alderson B told the jury that they had to consider the role of each accom­plice separately. All were proven to have combined in an assault upon the constable; some used sticks or stones, while others used their fists only.He required that the jurors be able to infer of each defendant that he had intended to kill (as for example, by using a deadly weapon, or by continued "excessive violence", even if it be contributed to merely by fists) before they could convict each of murder); Crookwell (1865) 5 SCR (NSW) 119 (where the trial judge told,the .jury trying the several confederates of a man who had shot and killed a constable when they tried to escape from lawful custody, that in order to be convicted of murder, each had to be "engaged in the same common design to escape, and to carry out that by any means and at all risks ..." (at 119-201).

(117) (1940 ' 8 Crim App R 1.

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of liability in either principal or accessory is purely constructive. Theappellant had appealed to the Court of Criminal Appeal from his conviction asan accessory to the murder of a policeman who had been shot and killed by hiscompanion when the latter had intervened during their commission of an offenceof warehouse-breaking. The court reflsed his contention that the jury ought tohave been told that in order to be liable for murder he must have agreed withhis confederate to kill or to inflict grievous bodily harm upon any person

118seeking to frustrate their plan, should this prove necessary. The trialjudge had told the jury that it was sufficient if they had resolved "to resistby violence any constable who should oppose them, and Fthatj the shot was

119fired ... m pursuance" of this. He had not specifically instructed the jurythat it was a matter of importance whether or not A knew that his companionpossessed a pistol. In the view of the Court of Criminal Appeal a person inthe appellant's position would be liable to conviction once it was shown thatsome violence, even that falling short of grievous bodily harm, was intended.But the court noted that he had to have contemplated that "real violence" would,if necessary, be inflicted, "that is to say, something more than a mere refusal

120to submit to arrest." This quantum was unspecified, but clearly on thisreasoning an intention merelly to commit a simple assault would suffice. Onedefence available to the alleged accessory would be that he was not linked in

121a common design to resist arrest by violence, if necessary. Another wouldbe that the act causing death was an accidental one; i.e., if the principal"accidentally causes an injury ... in the course of a struggle ... it would be

122manslaughter." In the latter case the alleged accessory would escapeliability for homicide, as in the former. *

123The Victorian decision of Ryan (1966) is a reminder that in the jurisdictions retaining the general common law doctrine of felony-murder, 118 119 120 121 122 123

(118) Id., at 7.(119) b3., at 2-3, referring to Brown (1928) The Times (Lond) April 28, and to

Avory J's summing-up in that case, which was similar.(120) Id., at 5.(121) Id., at 9.(122) Id., at 8, citing Brett J. in R. v. Porter (1873) 12 Cox CC 444, which

deals with the liability of the principal in this situation.(123) [1966] VR 553.

2 1 7

liability for murder may be imposed constructively upon persons who combine toescape from prison in the course of which a prison warder or other person iskilled, where the prison-breach is itself felonious, by way of an alternative

124to the head of constructive murder presently under consideration.

Where two or more confederates are interrupted in the commission of acrime, and go separate ways, and one of them at this time kills a pursuingofficer, it is logical that the others will not be implicated in this killingby resort to this type of constructive murder, in that their joint purpose willusually be able to be viewed as having been terminated upon the parting of ways

125and the consequential severance of mutual interest into individual interests.

( I l l ) ACCESSORIAL LIABILITY FOR INCIDENTAL CRIMES UNDER THE AUSTRALIAN CRIMINAL CODES____________ ______ ____________________________________________________A participant in a joint criminal purpose may be inculpated as an

accessory to a crime committed by his confederate during the course of thetransaction of their conspiracy for another crime by resort to three doctrines:(1) a doctrine of common purpose closely resembling that existing at common law,which has been enunciated in reliance upon s.7 of the Queensland and WesternAustralian Codes (s.3 of the Tasmanian Code); (2) the doctrine of joint criminalpurpose stated in s.8 of the Queensland and Western Australian Codes (s.4 of theTasmanian Code), which imposes liability upon persons for any offence which isan objectively "probable consequence" of the transaction of a joint unlawfulpurpose to which they are party; and (3) the doctrine enunciated in the firstbranch of s.9 of the Queensland and Western Australian Codes (s.5 of theTasmanian Code), which provides in effect that whdte a person counsels a givencrime, he is deemed to have counselled any other crime committed by the person 124 125

(124) In Victoria prison-breach is a felony pursuant to s.35 of the Gaols Act 1958 (Vic.). On this occasion the Full Supreme Court upheld the liability of the actual killer of a prison warder for murder, by resort to each of these two heads of murder: see Ryan, id. at for example, 556, 564.Curiously the court did not indicate that the principal killer's accessory in this joint prison-breach might have been convicted of murder by resort to the doctrine of constructive murder affecting officers of justice, but canvassed his liability solely by reference to the doctrine of felony­murder (Ryan, id., at 565ff).

(125) See generally Williams CI.GP at 400-401 and the cases cited there.

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counselled which is an objectively "probable consequence" of the carrying out of this counsel. (This latter section is not of course confined in operation to the incrimination of accessories to crimes committed incidentally during the commission of a common criminal purpose.) Each of these heads of liability will be examined in turn.

(A) SECTION 7 OF THE QUEENSLAND AND WESTERN AUSTRALIAN CODES (SECTION 3______ OF THE TASMANIAN CODE) ; A DE FACTO COMMON LAW BASIS OF LIABILITY

X 2 6Section 7 of the Queensland and Western Australian Codes, which insubstantive terms is the same as section 3 of the Tasmanian Code, though thewording of the two sections differs slightly, has been construed as providingfor a doctrine of complicity which is more or less identical to that existing

127at common Law. The only difference between the Code principles of accessory-ship provided in section 7 (s.3 Tasmania) and the common law principles affecting accessories is that under s.7/3 the common law distinction between accessories present at and those absent from crime (i.e., those who aid and abet and those who counsel or procure crime respectively) has disappeared under the Codes. One who aids crime may be absent; one who counsels crime may be present. This being so, the secondary participant is described in Code jurisdictions as aiding and/or abetting, or as counselling or procuring (or in Tasmania instigating) crime according to the aptness of the particular verb to describe his act."*’

Accordingly, the common law doctrine of common purpose as outlined in 129the preceding pages may be resorted to per medium of s.7/3. This doctrine,

it has been suggested, is in conformity with the general common law principles of accessorial liability. The result is that in the Code as in the common law jurisdictions, where the defendant combines with another to commit crime X, he is liable for the commission by his companion of crime Y during the course of committing crime X, provided that the defendant contemplated at the inception of or during the currency of their concert that his companion planned, if necessary, to commit crime Y. Numerous decisions in the Code jurisdictions 126 127 128 129

(126) For text see p. 3b above.(127) See pp.37-8.(128) For example, one who instigates crime will obviously be described as a

counsellor, while one who plays a merely subsidiary role in its commission will usually be regarded as aiding and/or abetting crime. Where an individual both instigates the principal and assists him to commit the crime, he both aids and/or abets and counsels/instigates. See generally at p .40 above.

(129) ,ITe t, at ,p,1 01 ff .above ..................................................

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confirm this essentially common law approach in canvassing the defendant'^130liability for an incidental crime in terms of s.7/2.

(B) SECTIONS 8 AND 9 OF THE QUEENSLAND AND WESTERN AUSTRALIAN CODE ______ (SECTIONS 4 AND 5 OF THE TASMANIAN CODE)_______________________

The text of sections 8 and 9 is as follows:8. When two or more persons form a common intention to prosecute

an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

9. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of the carrying out of the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him. *

Sections 4 and 5 of the Tasmanian Code are similar (the major difference beingthat the word "instigates" is used rather than "counsels" in section 5 (though

131this distinction is evidently without substantive significance ). Attention in the following pages will be directed to s.8/4 and to the first branch of s .9/5.

Section 8 is formally independent of s.7 of the Queensland and Western Australian Codes (i.e., s.3 of the Tasmanian Code), which latter represents the general complicity provision in each Code, in that it is itself a source 130 131

(130) See Brennan v. R. (1936) 55 CLR 253 at 259-60 (Starke J); 263-66 (Dixon and Evatt JJ) (a case concerning a joint shopbreaking giving rise to an incidental homicide to which B was allegedly accessory); Borg v. R. [1972] WAR 194 at 196ff (Jackson CJ who cited common law authorities dealing with the doctrine of common purpose. The case concerned a combination for the offence of demanding money by threats of force and if required, a common assault - with the appellant being sought to be made liable for an incidental crime of homicide); Murray v. R. [1962] Tas SR 170 at 173-5,178ff (Burbury CJ)/ 190 (Gibson J) (robbery - M allegedly accessory to incidental homicide)j Frost v. R. [1969] Tas SR 172 at 181 (Crisp J) (robbery - F allegedly guilty of incidental homicide); Solomon (1959) 53 QJPR 97 at 106 (Mack J)j (note, however, that the comments of Philp SPJ on the operation of s.7 of the Queensland Code taken together with s.23 of this Code, at 98ff, have not prevailed: see Murray v. R. id-, at 184-5 (Burbury CJ); Stuart v.R.. (1974) 4 ALR 545 at 561 (Gibbs J) (robbery - S allegedly accessory to incidental homicide); 1 Phillip^ [1967] Qd R 237 at 247-8 (Mack CJ); Tonkin [1975] Qd R 1 at 4-5 (D.M. Campbell J).

(131) Though this usage in the context of s.3 of the Tasmanian Code has been construed as meaning "counsels or procures": see p.56 above.

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of liability. In this s„8 resembles s.7. But s.8 differs from s.7 in several obvious ways: (1) Section 8 is limited to the concert situation, in that the expression "a common intention to prosecute an unlawful purpose" is presumably to be construed as meaning a common purpose, common design or conspiracy (the terms are synonymous) for a crime or crimes. Section 7 may of course be resorted to in order to incriminate the secondary party to crime who instigates, encourages or assists another to commit crime without actually being in concert with him. (2) Practically speaking, s.8 will be used only to inculpate the defendant as an accessory to a crime incidentally committed by his confederate during the joint transaction by both of them of a conspiracy for some other crime. Section 7 may be invoked in respect not only of this but as well, of all other fact situations in the complicity context. (3) Liability for an incidental crime is to be imposed upon the accessory under s.8 on an objective basis, i.e., he is guilty of this crime provided that it is an objectively probable consequence of the commission of the foundational joint unlawful purpose to which he is party. Under s.7 the defendant must be proven to have had it in his subjective contemplation that his confederate would, if necessary, commit the incidental crime.

Section 9 does not provide for an independent basis of accessorialliability. A person who counsels crime is deemed to be liable for this crimeby virtue of s.7(d) (s.3(l)(d) of the Tasmanian Code). But in order to beliable as a counsellor under s.7(d) the defendant must be proven to haveintentionally counselled the instant crime and to have had the mental elementrequired of an accessory to it. What the first branch of section 9 does is to extend his liability so that he is liable for ajpy other crime which is an objectively probable consequence of the carrying out of his original counsel, i.e., it is irrelevant that he may not have intended to bring about the commission

132of this further crime.

In its first branch s.9, like s.8, may be resorted to in order to incriminate the defendant in a crime which is committed by another person during the course of committing seme other crime in which the defendant was admittedly an accomplice. Moreover, as under s.8, the defendant’s liability for this incidental crime is to be evaluated on an objective basis - was it an objectively probable consequence of the commission of the crime expressly in contemplation? However, s.9 differs from s.8 in two major ways: (1) S.9 is not confined, as is s.8, to those circumstances where the defendant is in concert with the defendant. 132

(132) See Stuart v. R. (1974) 4 ALR 545 at 560 (Gibbs J.).

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It will be sufficient that the defendant instigates or encourages the principalto commit the foundational crime whether or not he is enrolled in a conspiracywith the principal; (2) Section 9 is confined to situations of counselling,i.e., the defendant's act must, strictly, be classifiable as such. Thisdifference may be more apparent than real, however, given that the commonlaw distinctions between aiders and counsellors has disappeared under theCodes. Presumably words of encouragement, whether of the character of instigationor of merely subordinate moral support, will qualify the maker as a counsellor

133in terms of s.9.

A person may be liable under any one or more of the heads of liabilityspecified in sections 7-9 (sections 3-5 of the Tasmanian Code), depending oncircumstances. In practice the courts have preferred to canvass questions ofaccessorial liability for incidental crimes committed during the prosecution

134of a common unlawful purpose by reference to section 7 and section 8; lessfrequently they have evaluated a given defendant's liability by reference to

135all three sections.

Technically, a defendant's liability could be evaluated by reference to the objective bases of liability in sections 8 and 9 only, and not by referenceto the subjective basis of liability embodied in s.7, though this would seem tov. 136be uncommon.

Each of sections 8 and 9 will be further commented upon separately. 133 134 135 136

(133) It is suggested in this latter regard that the same situation prevails under s.5 of the Tasmanian Code as in respect of s.9 of the Queensland and Western Australian Codes. Although this section refers to an instigation rather than a counselling, the usage "instigages" in the context of s.3(l)(d) has been construed as being synonymous with "counsels" or "procures". (See p. 56 above).

(134) Solomon (1959) 53 OJPR 97; Phillips [l967] Qd R 237; Murray v. R. [l962]Tas SR 170; Frost v. R. [1969] Tas SR 172; Brennan v. R. (1936) 55 CLR 253; Borg v. R. [l972j WAR 194.

(135) Stuart v. R. (1974) 4 ALR 545 (though note that the court relied mainly upon s.8 and s.9 in upholding the appellant's liability for murder qua accessory ) #

(136) Note, however, that in Nichols [l958] Od R 200 the court relied mainly upon the objective basis of liability as set forth in s.9, though referring briefly to s.7 and s.8 also. (Strictly speaking, s.9 cannot be relied upon to ground liability independently of s.7, in that s.7(d) creates liability for counselling crime in the first place. But if s.7(l) (d) is relied upon merely to ground liability pursuant to s.9, the assessment of the defendant's liability for a given crime committed as an incident of his counsel forsome other crime will, where the incidental crime is concerned, be based upon the objective principle in s.9 and not the subjective analysis embodied in s.7).

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(1) Section 8 o f the Queensland and Western A ustralian Codes (s.4 of ______ the Tasmanian Code)_________________________________________________

The conditions for l i a b i l i t y under s .8 may be commented upon under three

headings:(1) The requirement of a "common intention to prosecute an unlawful purpose

in conjunction with one another": what is c le a r ly envisaged here is that the

defendant and h is confederate, who performs the sub ject crime as a p r in c ip a l,

are in concert, i . e . , in common law terms that they are engaged in a common

purpose (common design, or conspiracy). The rather more general usage of

"unlawful purpose" is presumably employed to take account of the fa c t that the

concert may possess from conception, or acquire during i t s currency sev era l

crim inal ob jects (fo r example, a conspiracy to housebreak, and to assau lt any

person o ffe r in g re s is ta n c e ) .

The scope o f th is common purpose must of course be determined on a

su b jective b a s is . Further comments on th is topic are made under (3) below.

(2) The crime fo r which the defendant is sought to be made l ia b le must have

been committed "during the prosecution of such purpose" ( i . e . , the foundational

common purpose). I f the tribal judge does not employ th is phrase (or perhaps,

a very s im ilar one emphasising that the subject crime must have been committed

in the course of prosecuting the common purpose) in d irectin g a jury pursuant137to section 8, th is d irection w i l l be fa ta l ly impaired.

(3) The commission o f the in cid en tal crime must, in the view of the tribunal

of fa c t , be a "probable consequence" o f the prosecution o f the foundational

jo in t unlawful purpose. This expression has been construed as requiring such

tribunal to assess th is p ro b ab ility upon an ob jective view , i . e . , the fa c t

that the person sought to be made lia b le under s .8 did not actu a lly know that

h is confederate was prepared to commit the crime or contemplate that he might138do th is , i f necessary, i s le g a lly ir re le v a n t. 137 138

(137) P h illip s [1967] Qd R 237 a t 258 ff (Hanger J ) ; Brennan v . R. (1936) 55 CLR 253 at 263-4 (Dixon and Evatt J J ) .

(138) See Brennan v. R.. (1936) 55 CLR 253 at 260-1 (Starke J) ; Murray v . R.[1962] Tas SR 170 at 179 (Burbury C J) ; Stuart v . R. (1974) 4 ALR 545 at 559 (Gibbs J) and at 568 (Jacobs J . , who sa id that "[t]h e probable consequence i s the consequence which would be apparent to an ordinary reasonable man in the p osition of the applicant, that i s to say, in h is sta te of knowlege"); and Tonkin [l975] Qd R 1 a t 5-6 (D.M. Campbell J . who, however, commented that in p rin cip le l i a b i l i t y ought to be assessed upon an o b jective b a s is ) ; 24 (Kneipp J ) ; 32-33 (Dunn J ) .

223

The courts have not defined the meaning of the usage of "probable" inthe context of section 8. On one view "probable" is to be construed as bearingthe meaning or range of meanings ascribed to it, in ordinary usage. In thislatter coi text, it might be used to refer to an event which (in an approximateway) is substantially likely to happen; or more technically, one which is morelikely than not to occur, i.e., one which in statistical terms, is more thanfifty percent likely to occur. In one decision unrelated to the construction

139of s.8, a "likely" event was identified in these latter percentage terms.It is apparent, however, that a jury need not be instructed according to either of these meanings, where liability is sought to be imposed under s.8.Obviously it would, in very many cases, be difficult for the prosecution to prove that a given incidental crime was, statistically speaking, more than fifty percent likely to have resulted from the prosecution of the foundational unlawful design proved by it.^"^

I t i s for th is reason, perhaps, the desire not to unduly weaken the14 1sectio n , that Starke CJ in the High Court decision of Brennan v . R. (1936)

explained the requirement in the following general (and rather c ircu lar) terms:

"A probable consequence i s . . . that which a person o f average competence and

knowledge might be expected*to see as lik e ly to follow upon the p a rt ic u la r act;

though i t may be that the p a rticu lar consequence i s not intended or foreseen by 142the a c to r ." Shortly afterw ards, he spoke of the section as requiring that

the in ciden tal crime have been a "not improbable consequence" o f the prosecution

of the jo in t unlawful purpose. This la t te r statement o f the p ro b ab ility requ ire­

ment was very favourable to the prosecution, for "not improbable" simply does not143mean the same as "probable." In the same case%Dixon and Evatt J J viewed

144"probable" as meaning no more or le ss than " l ik e ly " . I f the requirement is

put to the ju ry in terms as terse as these, they w i l l obviously be more in clin ed

to convict than i f i t i s expounded in percentage terms. 139 140 141 142 143 *

(139) Hallet [ 1969] SASR 1 4 1 at 155* discussing so-called reckless murder. Contrast Jacob J*s remarks in this context in ha Fontaine v R (1976)11 ALR 507 at 536* And see generally at p.lCtyff#

(140) Proof o f th is would very often require that, the p rin c ip a l be shown to have planned to commit the crime, i f necessary, in which case evidence of purpose would usu ally be needed. The defendant would be aware of the fa c ts supporting th is inference (for example, in the circumstance o f the execution of a jo in t robbery resu ltin g in homicide, that h is confederate carried a gun) so that he too would have had th is knowledge. This being so, he would be g u ilty under s .7 - the head of l i a b i l i t y would be o tio se .

(141) (1936) 55 CLR 253 a t 261.

(142) Icl. , at 260-1; see a lso the observation of Jacob J . in Stuart v . R. (1974)4 ALR 545 at 568.

(143) .Brennan ,v., R, ,id,. ,, a t 26 1., B is fopmylgtion turns, the, statutory, requirement, on i t s head. "Probable" and "not improbable" are not synonymous; the la t te r tends much more towards the neutral - i t r e a lly p o sits no te s t of eventuality at a l l , whereas "probable" imposes a d e fin ite onus upon the Crown toe stab lish the occurrence of the incidental offence as being more like]- to happen than not.

(144

224

Whether the in ciden tal crime was a "probable" consequence of the tran s­

action o f the common purpose must be assessed by reference to the p a rt ic u la r

circumstances of the case, and not in the ab stract. For example, the arson in

the e a rly hours o f an old wooden hotel f u l l of sleeping guests i s much more

l ik e ly to re su lt in death than is the arson of a school building in the early. 145hours.

In assessin g whether or not the incidental crime i s an o b je c tiv e ly

probable consequence o f the prosecution of the common purpose, regard i s of course

to be had only to the unlawful purpose to which the defendant is actu a lly p arty ,146v iz , i t s terms are only such as have been agreed upon by the defendant.

This means, fo r example, that i f A, B and C a l l agree to roh a person without

re so rt to an o ffen sive weapon, then the jo in t purpose by reference to which the

jury i s to be asked to evaluate the objective p ro b ab ility or otherwise o f the

commission o f a homicide in the course of i t s transaction cannot be extended to

include the unexpected use by B of an offensive weapon which he carried without

the knowledge of A and B, and which he uses to k i l l th e ir v ictim . C w il l be

lia b le for the homicide as a p rin cip al offender, but A and B are hardly to be

made responsible fo r i t in therms of S .8 . The purpose which was common to a l l147of them simply did not include the prospective employment o f such a weapon.

In other words, the scope o f the i l l e g a l jo in t purpose must be assessed

su b je c tiv e ly , even i f the a lleged accessory 's re sp o n sib ility fo r h is

con federate 's act i s th erea fter to be evaluated according to the o b jective

te s t o f even tu ality in s .8 .

A s p e c if ic issu e associated with the p ro b ab ility requirement in s .8 is

encountered in the homicide context. In order to be made l ia b le fo r manslaughter

under s .8 , must the accused be proven to have p artic ip ated in a common purpose

the transaction of which would be " l ik e ly " to re su lt in an act o f violence

which would "probably" cause death, or is i t enough that th is common purpose

was one of which i t could be said that i t would probably r e s u lt in force

amounting to a simple a ssau lt which might possib ly cause death? The f i r s t

conception o f p rin c ip le verges upon a contradiction in terms - i f a person

(in th is circumstance, the p rin cip al) commits violence which w il l probably

re su lt in death then u su ally i t w il l be read ily in ferred that th is violence

was accompanied by the mens rea appropriate not to manslaughter but to murder, 145 146 147

(145) See fo r example Nicholas [1958] Qd R 200 at 236-7 (Stanley J . ) ; Murray v .R. [1962] Tas S R 170 at 179 (Burbury C J) ; Stuart v . R. (1974) 4 ALR 545 at 559 (Gibbs J ) .

(146) E ither expressly or t a c i t l y . ....................................................................................................

(147) See Brennan v . R. (1936) 55 CLR 253 at 262ff (Dixon and Evatt J J ) ; Murray v . R~ [l962] Tas S R 170 at 179 (Burbury C J) ; S tu art v . R. (1974) 4 ALR 545 at 567 (Jacobs J ) . And see generally the conspiracy case of G r if f ith s

225

i . e . , that the performer had an intention to k i l l or to i n f l i c t grievous

bodily harm. However, Dixon and Evatt J J were of the view that to e stab lish

an alleged accesso ry 's l i a b i l i t y fo r manslaughter under s .8 the f i r s t of

these propositions must be s a t i s f ie d , in the High Court decision in Brennan 148v . R. (1936). The la t t e r view was expressed by Jacobs J . m the High

149Court case of Stuart v . R. (1974).

In p rin cip le Mr. Ju s t ic e Jaco b 's views are to be p re ferred . They

would involve, more g en e ra lly , that a person becomes lia b le as an accessory

fo r a crime under s .8 i f i t was probable that the p rin c ip a l would during

the course of transacting the common purpose, commit the actus reus of th is

crime while possessed of the mens rea appropriate to i t . Thus, fo r murder

i t would be unnecessary that death be a probable consequence of the

prosecution of the common purpose; ra th er, i t would be enough that the

in ten tion al in f l ic t io n o f grievous bodily harm at le a s t , was a probable

consequence, which force as i t happened, resulted in death.

(2) Section 9 (Queensland and Western Australian Codes (s .5 in theTasmanian Code) )__________________________________________________

The operation of th is section as i t a ffe c ts the defendant's l i a b i l i t y

fo r a crime committed by another as the "probable consequence" of the carrying

out of the defendant's counsel has been l i t t l e analysed by the courts. The

comments made above in re la tio n to the meaning of "probable" in s .8 and the

application of th is te s t in the context of s .8 s itu a tio n s , lo g ic a lly apply

likew ise to s .9 ; v iz , th is te s t o f l i a b i l i t y is an o b jective one; ju r ie s

need not be instructed that a "probable" event is one which s t a t i s t i c a l l y ,

i s more than f i f t y percent l ik e ly to occur; and whether or not a crime is a

probable consequence of the counsel i s to be evaluated by reference to the

p recise nature of the counsel and the circumstances in which i t was contem­

plated that i t would be sought to be carried out, rather than in the ab stract.

(148) (1936) 55 CLR 253 at 264.

(149) (1976) 4 ALR 545 at 568. * *

(1 9 6 5) 49 Cri m App R 279 which makes it apparent that a person cannot be privy to an illegal agreement extending to the consummation of an unlawfulobject where he has no awareness of this object. See Griffiths at 290 especially.

226

(C) MISCELLANEOUS ISSUES AFFECTING SECTIONS 7-9 OF THE QUEENSLAND AND . WEST AUSTRALIAN CODES (SECTIONS 3-5 OF THE TASMANIAN CODE) AND THEIR OPERATION IN RELATION TO INCIDENTAL CRIMES

(1) Applying section 23 of the Queensland and West A ustralian Codes ( s .13 of the Tasmanian Code) to the Code Complicity Provisions

Section 23 o f the Queensland and Western A ustralian Codes provides

that a person sh a ll not incur crim inal re sp o n sib ility fo r an act (or

omission) which occurs independently o f the exercise of h is w i l l , or fo r an

event which occurs by accident. Though not in id e n tica l terms, the Tasmanian

Code provision in s . 1 3 i s in substance sim ilar. Phelp J . proposed in the150Queensland case o f Solomon (1959) that while th is section could not be

regarded as being applicable to sections 8 and 9 of the Queensland Code

( i . e . , s .8 and s .9 of the Western A ustralian Codes; s .3 and s .4 o f the

Tasmanian Code) , fo r "otherwise they would be m eaningless," i t did apply

to s .7 o f the Queensland Code (s .7 o f the Western A ustralian Code; s .3 in

the Tasmanian Code) . The re su lt would be that s .7 could not be resorted to15 1as reproducing the common law doctrine of com plicity. I f an accomplice

of the defendant committed a crim inal act without the sanction o f the

defendant, the la t t e r could Tnot be held lia b le for th is , so "[r]ead ing

s .7 (c ) with s .2 3 i t i s apparent that i f A aids in B 's commission of the

offence of robbery A i s crim inally responsible for the robbery but i f he

does not w ill in g ly aid him in the commission of a homicide done in the152course of a robbery A is not criminally responsible for the homicide".

Section 7(c) deals with aid ing. The im plication here was that whereas

A might be l ia b le on common law p rin c ip le s simply l:or jo in ing a common

purpose to rob in the contemplation that his confederate i s w illin g to k i l l

in the transaction of th is , s .2 3 would prevent th is l i a b i l i t y from being

imposed upon him unless he s p e c if ic a l ly assented to the homicide in a way

going beyond mere confederation in these terms. He must not only contemplate153the homicide, he must "w ill" i t ; hence, Phelp J. remarked, " [ i ]n my view

s .7 is not intended to create re sp o n sib ility for unwilled acts a r is in g out

of a plan or concert. The creation and lim itation of re sp o n sib ility for

unwilled acts a r is in g out of a plan or concert is to be found so le ly in s .8 . "

He allowed that this view was "contrary to the dicta of the judges in Brennan." 150 151 152 * 154

(150) Solomon (1959) 53 QJPR 97.

(15 1) I d . , a t 99.

(152) I d . , a t 100.

(15 3) I d . , a t 100 ............................................

(154) I . e . , Brennan v. R. (1936) 55 CLR at 100.

253 - see Solomon (1959) 53 QJPR 97

227

. . . 155These remarks were implicitly dissented from m Solomon by Mack, J,who construed s .7 in the way i t was analysed in Brennan, i . e . , as importing

the common law doctrine o f com plicity into the Code ju r is d ic t io n s , including

that part o f i t governing accesso ria l l i a b i l i t y fo r in c id en ta l a c ts . Section

7 (s .3 in the Tasmanian Code) has been construed s im ila r ly in succeeding156 157cases; for example, P h illip s (1967) , Frost v . R. (1969) , Borg v . R.

158 159(19 72), and Stuart v . R. (1974). In Murray v. R. fo r example, Burbury

J . stressed that the operative act fo r the purpose o f s . 1 3 of the Tasmanian

Code ( i . e . , s .2 3 in the Queensland and Western A ustralian Codes) was the

act of aiding and abetting (or for that matter, cou n sellin g , procuring or

in stig a tin g ) so that s . 1 3 would only exonerate an alleged accessory of an

act of incrim ination in a given crime i f th is act i t s e l f (such as, in th is

context, the fa c t of adherence to and/or p artic ip a tio n in a jo in t crim inal

purpose in the contemplation that the p rin cip al would or might commit a given

crime during the consummation of th is purpose, i f necessary) had been a160matter o f accident or chance or a happening independent o f h is w i l l .

These remarks were endorsed by Gibbs J . in the High Court case o f Stuart

v . R. (19 74). 155 156 * 158 159 160 16 1 162 163

>162(2) Constructive Murder Under the Codes

In the Queensland and Western A ustralian Codes i t is provided that a

person is g u ilty of murder, in te r a l i a , i f lie does an act causing death

which act was f i r s t l y done in the prosecution o f an unlawful purpose, and163secondly, was of such a nature as to be lik e ly to endanger human l i f e .

(155) I d . , a t 1 0 5 f f .

(156) P h illip s [1967] Qd R 237.

C157) Frost v . R. [1969] Tas SR 172 .

(158) Borg v . R. [l9 72] WAR 194.

(159) Stuart v . R. (1974) 4 ALR 545.

(160) Murray v . R. [l969] Tas SR 170 at 184. He noted fu rth er that the High Court had held in Vallance v. R. (1961) 108 CLR 56 that the "a ct" in s .13 C l) o f the Tasmanian Code (sim ilar to s .2 3 o f the Queensland and West A ustralian Codes) was the physical action o f the defendant and not the complete actus re u s , so that "whether the 'a c t ' i s the conduct ofthe p rin c ip a l in the second degree or of the p rin c ip a l in the f i r s t degree, i t is c le a r . . . that i t does not include the death caused by the unlawful a s s a u lt .” (In Murray Burbury CJ was re fe rrin g to a jo in t robbery which had resu lted in homicide. In other words, i t would be s u ff ic ie n t that the defendant accessory be shown to have contemplated some violence fo r him to be g u ilty o f homicide a ris in g in a jo in t robbery (su b ject to the demonstr­ation of acce sso ria l mens rea according to general p r in c ip le s ) .) See Murray v . R. a t 18 5 ; a lso note Gibson J ' s remarks at 87).

(16 1) Stuart v . R* (1974) 4 ALR 545 at 561. ...............................................................................

(162) For a d iscussion of th is matter see Lanham, "Accomplices and Constructive L ia b i l i t y " , [l980] 4 Crim LJ 78 at 89 ff.

(163) Queensland Code s . 302(2); Western A ustralian Code s . 279(2).

228

This provision creates an offence of constructive murder analogous to the

felony-murder ru le at common law (which is inapplicable under the Codes), in

that i t dispenses with any requirement that the defendant have had the mens164rea otherwise applacable to murder under the Codes. To convict a p rin c ip a l

of murder under these p ro v isio n s, therefore, i t w i l l be s u ff ic ie n t that the

p rin c ip a l is proven to have had the mens rea appropriate to the underlying

unlawful purpose and that he in ten tio n a lly performed an act causing death

during h is prosecution o f th is purpose which was o f such a nature as to be

objective^. / l ik e ly to endanger human l i f e , even as he was unaware at th is time

that i t had th is q u a lity . A person may be inculpated as an accessory upon

sim ila r p r in c ip le s . Thus, under s .7 of the Queensland and Western A ustralian

Codes, taken together with the re levan t constructive murder provision , i t i s

enough fo r l i a b i l i t y fo r murder that the defendant combines with the p rin c ip a l

k i l l e r in the transaction o f an unlawful purpose (for which, obviously, he

must have the g u ilty mind required of an accesso ry), contemplating that his

confederate i s prepared, i f necessary, to do an act which o b je c tiv e ly i s o f

such a nature as to be l ik e ly to endanger human l i f e , and that th is act does

re su lt in death. As with the p r in c ip a l, i t i s ir re le v a n t that the accessory

may not re a lis e that th is adt has th is q u a lity . In these terms the su b jective

an alysis of a cce sso ria l l i a b i l i t y otherwise required under s .7 i s d isp laced.

A ccessoria l l i a b i l i t y in th is context may also be estab lish ed by reso rt

to s .8 and s .9 of the Codes. Under s .8 , i t i s enough that the defendant is

p rivy to a jo in t unlawful purpose which w i l l , on an o b jective view, probably

g ive r is e to an act which in turn w i l l , on an o b jective view, be o f such a%nature as to be likely to endanger human life, where such an act in fact

results in death. Under s.9 it is sufficient that the probable result of the carrying out of the defendant's counselling of another to commit an offence is that an act likely to endanger life will be committed,which act resultsin death. In e ith er case the mental element required in respect o f the

, , , _ 165accessory is even more attenuated than under s .7 .

In Tasmania s . 1 5 7 ( 1 ) (c) provides that a person i s g u ilty of murder i f ,

in te r a l i a , he causes death by "an unlawful act or omission which [he] . . .

ought to have known to be l ik e ly to cause death in the circum stances, though

(164) Which i s provided fo r in e s s e n t ia lly common law terms, exp ressly or in substance. For a d iscussion o f th is topic see Howard at p .3 9 f f , and fo r a d iscussion of constructive murder under these Codes see Howard at p .6 7 ff .

(165) Cases d ealin g , in te r a l i a , with accesso ria l incrim ination in constructive murder pursuant to the Queensland and Western A ustralian Codes include Solomon (1959) 53' OJPR 97; Brennan v . ,R„ (1936) ,55, C,LR 253,; S tu a rt , v . R. , (1974) 4 ALR 545.

229

he had no wish to cause death or bodily harm to any person." As theevaluation of whether or not this act has this quality is objective, this

166provision also embodies a head of constructive murder. Similarly, anaccessory may be made liable for this type of murder pursuant ss.3, 4 or5 of the Code, although otherwise without the mental element required of

167the accessory to murder. He will be liable for it under s.3 if hecombines with the principal in the commission of any unlawful act which he ought to have known would be likely to cause death to a person, if this act actually causes death. Presumably too, he is so liable under s.4 of the Code if he confederates with the principal killer in an unlawful purpose the commission of which will probably result in an act of the type specified in s .157(1)(c); or he may be liable under s.5 if the probable result of the carrying out of his counselling of another to commit an offence is the commission of an act of this type.

(3) Differential Verdicts Under the Code ProvisionsThis topic has been adverted to. Where the principal commits a given

offence (for example, murder) it is possible for another person who encouraged or assisted him in the condi*ct constituting this offence to be convicted as an accessory to a less serious offence, where the latter is sought to be incrimin­ated pursuant to s.7 of the Queensland and Western Australian Codes (corresp­onding to s.3 of the Tasmanian Code). In general, these parties will be distinguished according to their mental states, though they will both be sought to be convicted by reference to the same actus reus. It is unlikely that thisdifferentiation is possible under s.8 or s.9 of the Queensland and Western

%

Australian Codes (ss.4-5 of the Tasmanian Code). This topic is discussedi v, 1 6 8elsewhere.

(IV) NEW ZEALAND: ACCESSORIAL LIABILITY FOR INCIDENTAL CRIMES UNDER THE______ CRIMES ACT, 1961_____________________________________________________

There would appear to be two possible bases for imposing accessorialliability upon the defendant for a crime committed by his confederate as an

(166) See Howard at 71 ff. for a discussion of s.157(1)(c).(167) The Tasmanian Code includes the traditional common law heads of murder:

see Howard p.39ff.(168) At pp*364ff.

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incident of the transaction of a conspiracy for another crime to which both are party. These are found in s.66(l) and (2) of the New Zealand Crimes Act of 1961.

(A) SECTION 66(1) OF THE CRIMES ACT, 1961169Section 66(1) of the Crimes Act of 1961 provides for a doctrine of170complicity which, the courts have made clear, is more or less identical to

the common law doctrine of complicity, except that where accessories areconcerned the common law division between persons present at and those absent

171from crime is probably to be regarded as being inapplicable under s.66(l).This being so it would presumably be open to the prosecution to seek toimplicate a person in an incidental crime committed by his confederate duringthe prosecution of their conspiracy for another crime. Thus, the defendantbecomes an accessory to this further crime if he contemplated that hiscompanion was prepared to conmit it during the transaction of their common

172purpose if this should prove necessary.

There have, however, been few reported cases under the Crimes Act of1961 dealing with the question of the accessory's liability for an incidentalcrime committed during the course of transacting a common purpose for another

173crime, and these decisions are neutral as to whether or not s.66(l) may be174resorted -to in these terms. An instance is Morrison (1968), which

concerned a homicide committed during the course of a joint assault which wasin turn committed in an attempt to escape from prison. The Court of Appealchose to evaluate the appellant's liability qua accessory for this assaultby reference to s.66(2) which, it is noted below, specifically provides forthe liability of a participant in a common criminal purpose for an incidentalcrime committed by his confederate during the transaction of this purpose,subject to certain tests, and not by reference to the common law-type analysiswhich may be resorted to per medium of s.66(l) . It may, however, be that thetrial judge in Morrison instructed the jury in the latter terms, on the issue

X V 5 X 7 6of the appellant's liability as an accessory. In Malcolm (1951), the * 2

(169) For the text of this section see p.43 above.(170) In their construction of this section and its predecessor, s.90 of the

Crimes Act, 1908 (NZ).(171) See p*43ff%(172) See p .181ft*(173) See Malcolm [l95l] NZLR 470; Morrison [1968] NZLR 156; Hartley [1978]

2 NZLR 199.(174) Id. ....................................................................(175) Id., at 159.(176) [l95l] NZLR 470.

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prosecution based its case solely upon s.90(2) of the Crimes Act of 1908.which, like s.66(2) of the current Act, provided specifically for theliability of accessories for crimes committed during the prosecution of ajoint criminal purpose to which they were privy, subject to certain tests,

177(though the latter differed somewhat.) Accordingly, the Court of Appealchose to evaluate liability solely in terms of s.90(2) , ignoring altogetherthe possibility that the appellant was guilty according to the principlesapplicable under s.90(l) of the Act of 1908 (which is in the same terms as

1 7 8s.66(l) of the Crimes Act of 1961).

Notwithstanding that the prosecution on these two occasions chose not to rely to rely upon s.66(l) (or its equivalent in the 1908 Act), and that accordingly the Court of Appeal did not advert to it, it is considered that the enactment of s.66(2) does not impliedly exclude resort to s.66(l) to establish accessorial liability for incidental crimes. Quite simply, s.66(l) does provide for a comprehensive doctrine of accessoryship (in ss.(b)-(d)) which has been enunciated in such terms as to indicate that it is almost identical to the common law doctrine of accessoryship, whether or not s.66(l) is to be formally viewed as^importing these principles. And at common law the accessory's liability for an incidental crime is dependent upon the general principle of secondary liability, whether they are applied directly, or indirectly in the practical and convenient guise of the doctrine of common purpose. In principle, it is irrelevant whether or not the crime for which the defendant is sought to be convicted as accessory is committed on its own or in combination with some other crime. In either case, at common law, and sensibly, by resort to s.66(l), the defendant is liable because he aided or counselled the principal in its commission, i.e., that upon the minimum view, he has given encouragement or assistance to the principal in the knowledge that the principal intends, if necessary, to commit the subject crime.

(177) See p *232 below.(178) Icl. , at 482, similarly, see Hartley [1978] 2 NZLR 199, where an appellant's

liability for a homicide committed during the course of a joint breaking and entering which culminated in a series of assaults, was upheld unders .66(2) .

2 3 2

In these terms the enactment of a basis of liability in s.66(2) is. strictly by way of an alternative to that already enforceable under s.66(l).Such an assumption has been verified in the court's construction of the

179similarly structured complicity provisions in the Australian Criminal Codes.

(B) SECTION 66(2) OF THE CRIMES ACT, 1961 (NZ)Section 66(2) of the Crimes Act is as follows:(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the pros­ecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

It resembles, but is not identical to s.90(l) of the Crimes Act of 1908 (NZ), which was more or less identical to s.8 of the Queensland and Western Australian Codes (i.e., s.4 of the Tasmanian Code ), These latter sections specify (or in the case of s.90(l), did) that the incidental crime need only be a probable consequence of the transaction of the joint criminal purpose, and not that the defendant must have known that this was so.

Section 66(2), it mayTbe surmised, was intended to prevent the incrimin­ation of accessories upon an objective basis, as was provided for under the previous legislation, for s.66(2) insists that the party to the common purpose have foreseen that the crime for which he is sought to be made liable would probably be committed by his confederate during the course of transacting the common purpose. Very few reported authorities deal with the application of s.66(2). One such is Morrison (1968). The cou^t did not on this occasionindicate how the meaning of "probable" is to be explained to a jury. Presumably it is not to be elaborated, but the jury left to ascribe to it its meaning in everyday usage. In Morrison the trial judge had told a jury that they could convict the appellant of murder if the appellant, who had combined with the principal killer in an attempted gaol-break and a concurrent assault upon a warder, had foreseen simply that the infliction of grievous bodily harm uponSome person was "a probable consequence" of the execution of this common purpose.

181The word "probable" was, therefore, treated as self-explanatory.

(179) Section 7 in the Queensland and Western Australian Codes, and s.3 in the Tasmanian Code, are virtually identical to s.66(l) of the New Zealand Code.. Section 8 in the Queensland and Western Australian Codes (s.4 in the Tasmanian Code) resembles s.66(2) in the New Zealand Crimes Act of 1961, though the latter is more demanding of the principal.

(180) [1968] NZLR 156. See also Hartley [1978] 2 NZLR 199.(181) , Ld. , at .160., That, "probable," need, not, be explained in percentage terms

has been accepted by the Australian courts in construing s.8 and s.9 of the Queensland and Western Australian Codes (s.4 and s.5 of the Tasmanian Code) - see p.223 above.

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Section 66(2) certainly provides a basis of accessorial liability nowider than that found in s.66(l). It is obvious that if A encourages orassists B in conduct which A can see will probably result in a given crime,then A will certainly be convicted of this crime, qua accessory. On thecontrary, s.66(2) is more demanding of the prosecution than is s.66(1) -or the common law doctrine of accessoryship which it reflects. Under thelatter, it is enough that the accessory foresees that the principal mightpossibly commit the crime, where the accessory's act of complicity is donein advance of this event. There is certainly no requirement that he have

182foresight of its commission subject to a prescribed test of probability.That s.66(2) is more demanding of the prosecution is not, however, especially significant provided that, ap it has been proposed, the accessory may in any event be made liable for an incidental crime under s.66(l).

(V) CONCLUSION

If the general doctrine of accessorial liability at common law isaccepted to be sound (and it is inappropriate of course, to give consideration

X83to the adequacy of its terms at this time ), then no criticism is to be directed at the common law doctrine of common purpose. This is because, as it was noted earlier in this chapter, it faithfully re-expresses the general doctrine of accessoryship, in terms appropriate to a particular type of common fact situation.

In respect of the Australian Criminal Codes, a similar comment may bemade in relation to the incrimination of accessories in incidental crimes under

%

s.7 of the Queensland and Western Australian Codes (s.3 of the Tasmanian Code), given that these sections provide for the assessment of accessorial liability according to principles more or less indistinguishable frcm those existing at common law, including those constituting the doctrine of common purpose. The supplementary provisions in each Code dealing with the defendant's liability as an accessory for a crime committed incidentally during the course of the prosecution of a common purpose for another crime or crimes (i.e., s.8 of the Queensland and Western Australian Codes, and s.4 of the Tasmanian Code), are obviously to be criticised, in that they may be resorted to so as to impose

(182) See p.130ff.(183) See generally CUi&pter Sixteen on this latter topic*

254

liability upon this defendant on a purely objective basis. The same criticism is to be made of s.9 of the Queensland and Western Australian Codes (s.5 of the Tasmanian Code), the first branch of which provision may be relied upon (inter alia) to incriminate the participant in a common criminal purpose for a crime not contemplated by him, which is committed by his confederate as a consequence of the transaction of this agreed upon purpose.

It is likely that these supplementary sections were based upon aformulation of accessorial liability by Foster in his Crown Law, which has

184been referred to earlier in this chapter. Foster's formulation is to becriticised for the same reason, and, as the High Court has recently made

185clear, it does not express the common law.

In New Zealand, it has been suggested, the common law doctrine ofcommon purpose should be able to be resorted to per medium of s.66(l) ofthe New Zealand Crimes Act, 1961. Section 66(2) makes specific provisionfor incidental crimes committed in the course of executing a common criminalpurpose, though as noted, it is not subject to the same criticism as is its

y(approximate) counterpart in the Australian Criminal Codes, in that thedefendant must, actually contemplate the commission of the given incidentalcrime as a probable consequence of the transaction of this purpose. Section66(2) sits rather oddly alongside s.66(l), however. If it is sufficientthat an accessory sought to be made liable under s.66(l) should foresee hisconfederate's commission of the subject offence (whether or not he is in« 188concert for this or any other offence) as a mere possibility, why should

187he be required to foresee the commission of this crime as a probability if sought to be made liable under s.66(2), (and vice versa)? The fact that

(184) See pp.185-6.(185) See p.106.(186) Where he acts in advance of the perpetrator's crime, the accessory, at

common law, need not foresee the commission of this crime as being more than merely possible - see p. IJOff.

As it was suggested earlier in this study, s.66(l) has been inter­preted as more or less reproducing the common law principles of accessorial liability.

(187) For a discussion of the difference between foresight of an event as possible and foresight of it as probable, in the criminal law, see generally at p.104.

235

under s.66(2), he must have been in concert with the perpetrator of the incidental crime, for the commission of some other crime, whereas he need not have been thus in concert, if sought to be convicted under s.66(l), is surely an arbitrary basis for interposing a different test of eventuality in the tests of liability provided for, or comprehended by each subsection. The truth would appear to be that s.66(2) is a less than fully considered historical hybrid. Its predecessor, s.90(2) of the Crimes Act, 1908 (NZ), which was virtually identical to s.8 of the Queensland and Western Australian Codes (i.e., s.4 of the Tasmanian Code), imposed accessorial liability in respect of the incidental crime upon an objective basis. It was presumably desired to liberalise its operation by providing that there must be actual contemplation on the part of the accessory, of the commission of this crime, and so this was done in the new S.66C2). Too little thought, however, seems to have been given to the fact that s.66(2) requires a greater level of culpability in the accessory (and thus imposes a more demanding task of proof upon the Crown) , than does s.66(l) , when chere is no circumstance of any substance justifying such a differentiation.

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2 J6

C t l A F i t l H lu X G -IIT

THE DERIVATIVE NATURE OF ACCESSORIAL LIABILITY

(I) AT COMMON LAWIt has been noted in Chapter One that accessorial liability at

common law is not an offence in itself, but merely a secondary mode of participation by the defendant in another's crime.^ Hence if the crime for which he is sought to be made liable has not been committed by another, the defendant cannot:, prima facie at least, become an accessory.

Whether or not the liability of the person who instigates,encourages or assists another to commit a crime should continue to be

2derivative in nature is considered elsewhere, In this chapter, attention will be confined to the strategies which have been employed by the courts to overcome the substantive problems produced by the derivative status of accessorial liability as it exists in the present law. As well, consideration will be given to proposals which, while assuming that the law of complicity continues to be based upon the notion of derivative responsibility, are directed to overcoming the problems produced by this central principle underpinning it.

These problems, which are briefly referred to in Chapter One, are discussed under several headings:

(A) LIABILITY OF THE PERSON WHO INSTIGATES, ENCOURAGES OR ASSISTS ANOTHER TO COMMIT A CRIMINAL ACT, WHERE THE LATTER DOES NOT INCUR CRIMINAL LIABILITY____________

(1) Where the Perpetrator Lacks Mens ReaThe defendant may Instigate, assist or encourage a person to commit

the actus reus of a crime, but the latter may lack the mental element required for this crime (because he lacks relevant knowledge, is intoxicated, insane, or whatever), and thus not incur criminal liability. Prima facie, the defendant escapes liability, given that no offence has been committed by the perpetrator. The courts have developed two devices so as to fasten liability upon the defendant:

1. See p. 6 f f *See p .4 60ft.2.

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( a ) Th e D o c t r i tie o f I n n o c e n t A g e n cy

A num ber o f d e c i s i o n s e s t a b l i s h t h a t w h e r e A , w h i l e p o s s e s s i n g c r i m i n a l k n o w le g e , i n s t i g a t e s o r c a u s e s a s e c o n d p e r s o n B , who i s w i t h o u t t h e a p p r o p r ia t e , m e n ta l e l e m e n t , to com m it t h e a c t u s r e u s o f a c r im e , and t h i s c r im e i s , m o r e o v e r , o f s u c h a t y p e t h a t i t c o u ld h a v e b e e n c o m m itte d b y A p e r s o n a l l y , t h e l a t t e r may b e c o n v ic t e d o f t h i s c r im e a s a c o n s t r u c t i v e p r i n c i p a l ( i . e . i n o r t h o d o x t e r m s ,a p r i n c i p a l i n t h e f i r s t d e g r e e ) . He c a n n o t b e an a c c e s s o r y t o B ' s c r im e , f o r B h a s n o t c o m m itte d a c r im e , b e in g w i t h o u t a g u i l t y m in d . Nor ca n A b e a l i t e r a l p r i n c i p a l , f o r h e h a s n o t p e r s o n a l l y p e r p e t r a t e d t h e c r i m i n a l a c t u s r e u s . T he im p u t a t i o n t o h im o f t h e s t a t u s (a n d a s s o c i a t e d l i a b i l i t y ) o f a c o n s t r u c t i v e p r i n c i p a l i s t o b e e x p l a i n e d in te r m s o f t h e s o - c a l l e d d o c t r i n e o f i n n o c e n t a g e n c y . A c c o r d in g t o t h i s d o c t r i n e (w h ic h o p e r a t e s b y w ay o f e x c e p t i o n t o t h e d o c t r i n e o f a c c e s s o r i a l l i a b i l i t y ) , A i s t o b e r e g a r d e d a s p e r s o n a l l y p e r p e t r a t i n g t h e c r im e th r o u g h an u n t h in k in g human in s t r u m e n t ( i . e . B ) .

I t I s t h o u g h t t h a t a s t h e d o c t r i n e c r e a t e s a l i a b i l i t y v i r t u a l l yi d e n t i c a l t o t h a t o f a c c e s s o r y s h i p ( t o r e i t e r a t e , A i s , n o t w i t h s t a n d i n gh i s s t a t u s o f c o n v e n i e n c e n o t t h e a c t u a l p e r p e t r a t o r o f t h e c r i m e ) , i ti s r e a s o n a b l e t o s u p p o s e t h a t t h e m e n ta l c le m e n t r e q u ir e d o f t h ec o n s t r u c t i v e p r i n c i p a l p u r s u a n t t o t h i s d o c t r i n e , i s e x a c t l y t h e sam ea s I s r e q u ir e d f o r t h e a c c e s s o r y who i n s t i g a t e s c r im e ; i . e b r o a d l y ,t h e d e f e n d a n t m u st k n o w in g ly p e r fo r m h i s a c t o f p r o m o t io n ( o r o f s u p p o r t ,t o t h e e x t e n t t h a t t h e d o c t r i n e a l s o i n c r i m i n a t e s t h o s e who e n c o u r a g e o ra s s i s t t h e in n o c e n t p e r p e t r a t o r , a s d i s t i n c t fro m c a u s e h im t o a c t ) ;a n d , m o r e o v e r , h e m u s t , w h e r e t h e c r im e i s o n e o f i n t e n t i o n ( a s i tu s u a l l y w i l l b e , i n t h e s i t u a t i o n a t t r a c t i n g t h i s d o c t r i n e ) , knowt h a t t h e p e r p e t r a t o r ’ s a c t w i l l b e c o m m itte d i n t h o s e c i r c u m s t a n c e s

3w h ic h d i s c l o s e i t s c r i m i n a l n a t u r e . The sam e c o n c l u s i o n i s o b v i o u s l y t o b e draw n a s t o h i s a c t o f i n c r i m i n a t i o n : l i k e t h e a c c e s s o r y , h i s a c t m u st p e r t a i n p r e c i s e l y t o t h e p e r p e t r a t o r ' s a c t . I f t h e c o n s t r u c t iv e - p r i n c i p a l m u st i n s t i g a t e , o r c a u s e t h e p e r p e t r a t i o n o f t h e c r i m i n a l a c t , t h e n i t m u st b e sh ow n t h a t t h e p e r p e t r a t o r d id a c t i n c o n s e q u e n c e o f t h e c o n s t r u c t i v e p r i n c i p a l ' s a c t ; and i f t h e l a t t e r may b e i n c r i m i n a t e d b y v i r t u e o f a c o e q u a l o r s u b s i d i a r y a c t , th e n i t m u st b e sh ow n t h a t h i s a c t d id in d e e d e n c o u r a g e o r a s s i s t t h e p e r p e t r a t o r ' s a c t .

,3 ., , S e e g e n e r a l l y , C haps.. 5 , 6 ,

Among t h e e a r l i e r d e c i s i o n s a f f i r m i n g t h e e x i s t e n c e o f t h e d o c t r i n e o f i n n o c e n t a g e n c y i n t h e te r m s o u t l i n e d a b o v e , may b e n o t e d t h e E n g l i s h c a s e o f M ic h a e l ( 1 8 4 0 ) On t h i s o c c a s i o n t h e d e f e n ­d a n t w a s c o n v i c t e d o f t h e m u rd er o f h e r c h i l d a f t e r s h e h a d p r o c u r e d a p e r s o n h a v in g i t s c a r e t o a d m i n i s t e r t h i s t o t h e c h i l d , t e l l i n g t h i s p e r s o n t h a t t h e p o i s o n w a s a m e d i c i n e . The t r i a l j u d g e h e l d t h a t " t h e a d m i n i s t e r i n g o f t h e p o i s o n w a s u n d e r t h e c i r c u m s t a n c e s o f t h e c a s e , a s much a s i n p o i n t o f la w , an a d m i n i s t e r i n g b y t h e p r i s o n e r a s i f t h e p o i s o n e r h ad a c t u a l l y a d m i n i s t e r e d i t w i t h h e r own h a n d " .^ T he d o c t r i n e h a s a l s o b e e n a p p l i e d , o r r e f e r r e d t o in r e c e n t E n g l i s h c a s e s , w h ic h a r e n o t e d im m e d ia t e ly b e lo w .

T h e a p p l i c a t i o n o f t h e d o c t r i n e in t h e s i t u a t i o n r e f e r r e d t o ,w h e r e a p e r s o n c a u s e s a n o t h e r in n o c e n t p e r s o n t o p e r p e t r a t e a c r i m i n a la c t , w a s e n d o r s e d by s e v e r a l m em bers o f t h e A u s t r a l i a n H ig h C o u r t i n

6W h ite v . R i d l e y ( 1 9 7 8 ) . T he a p p e l l a n t had c a u s e d an a i r l i n e t o c a r r y 4 5 6

4 . ( 1 8 4 0 ) 9 C ar & P 3 5 6 , 1 7 3 ER 867-5 . Ld. a t 3 5 8 / 8 6 8 . I n f a c t S d id n o t a d m i n i s t e r t h e p o i s o n h e r s e l f ,

but. l e f t i t i n r e a c h o f h e r own i n f a n t c h i l d , w ho g a v e p a r t o f i t t o t h e v i c t i m . T h is c i r c u m s t a n c e w as h e l d n o t t o h a v e b r o k e n t h e c a u s a l c h a in b e tw e e n M’ s i n s t r u c t i o n s to S an d t h e d e a t h . C o n t r a s t J o h n s o n ( 1 8 0 5 ) 7 E a s t 6 5 , 1 0 3 ER 2 6 , w h ic h c o n c e r n s t h e c o u n s e l l i n g o f l i b e l . C l e a r l y t h e e d i t o r o f t h e p a p e r i n w h ic h J ’ s l i b e l s w e r e p u b l i s h e d w as k n o w le d g e a b le o f t h e i r c h a r a c t e r s o t h a t h ew a s n o t w i t h o u t g u i l t ; and s e e M a n ley ( 1 8 4 4 ) 1 Cox CC 1 0 4 .O th e r d e c i s i o n s c o n f i r m in g t h e e x i s t e n c e o f t h e d o c t r i n e o f i n n o c e n t a g e n c y i n c l u d e C l i f f o r d ( 1 8 4 5 ) 2 C ar & K 2 0 2 , 1 7 5 ER 8 4 ; B l e a s d a l e ( 1 8 4 8 ) 2 C ar & K 7 6 5 , 17 5 ER 3 2 1 ; W elham ( 1 8 4 5 ) 1 C ox CC 1 9 2 ] B u l l ( 1 8 4 5 ) 1 C ox CC 2 8 1 ; B u t t ( 1 8 8 4 ) 15 Cox CC 5 6 4 .F o r t h e p u r p o s e s o f t h e d o c t r i n e an a g e n t w h o , w h i l e k n o w le d g e a b le o f t h e i l l e g a l p u r p o s e o f t h e p r i n c i p a l s , g o e s a l o n g w i t h h i s i n s t r u c t i o n s f o r t h e p u r p o s e s o f e n t r a p m e n t , h a s b e e n c o n s i d e r e d i n n o c e n t ; B an n en ( 1 8 4 4 ) 2 M oody 3 0 9 , 169 ER 1 2 3 .An e a r l y c a s e w h ic h i s n o t i n c o n s i s t e n t w i t h t h e d o c t r i n e o f i n n o c e n t a g e n c y , b u t w h ic h may b e a c c o u n t e d f o r i n o t h e r t e r m s , i s t h a t o f T y le r ( .1 8 3 8 ) 8 Car & P 6 1 6 , 17 3 ER 6 4 3 , w h ic h i s d i s c u s s e d b e lo w a t p .

6 . ( 1 9 7 8 ) 140 Obn 34 2 a t 346 (G ib b s J ) , 353 ( S t e p h e n J ) , 3 6 3 ( A ic k e n J c o n c u r r i n g w i t h S te p h e n J ) . J a c o b s J an d M urphy J d id n o t f i n di t n e c e s s a r y t o c o n s i d e r t h e d o c t r i n e on t h i s o c c a s i o n .Set a l s o t h e e a r l i e r V i c t o r i a n d e c i s i o n o f Lom ax v . W i ls o n ( 1 8 9 3 )19 VLR 40 4 w h ic h Im p o sed l i a b i l i t y f o r an o f f e n c e u n d e r t h e P o s t O f f i c e A c t , 18 9 0 ( V i c . ) w h ic h w a s p e r p e t r a t e d t h r o u g h an i n n o c e n t a g e n t . Hood J u p h e ld t h i s l i a b i l i t y by a p r o c e s s o f s t a t u t o r y c o n s t r u c t i o n , b u t h i s r e a s o n in g m ir r o r e d t h a t a s s o c i a t e d w i t h t h a t o f t h e d o c t r i n e o f in n o c e n t a g e n c y .

239

u n k n o w in g ly a p r o h i b i t e d im p o r t i n t o A u s t r a l i a , and h a d b e e n c o n v i c t e d o f an o f f e n c e o f im p o r t in g a p r o h i b i t e d im p o r t , q u a p r i n c i p a l . Thed o c t r i n e w a s a l s o r e f e r r e d t o i n M a t u s e v ic h v . R ( 1 9 7 7 ) ^ w h ic h i s d i s c u s s e db e lo w .

What i f t h e c r im e f o r w h ic h t h e d e f e n d a n t s o u g h t t o b e m ade l i a b l e a s a c o n s t r u c t i v e p r i n c i p a l , i s o n e w h ic h , i n t h e p a r t i c u l a rc i r c u m s t a n c e s , h e c o u ld n o t h a v e c o m m itte d h i m s e l f ? T h e E n g l i s h C o u r t o f C r im in a l A p p e a l c o n f ir m e d i n C ogan ( 1 9 7 6 ) t h a t t h i s c i r c u m s t a n c e w o u ld n o t p r e v e n t r e s o r t t o t h e d o c t r i n e o f i n n o c e n t a g e n c y . T he c o u r t u p h e ld t h e a p p e l l a n t ' s c o n v i c t i o n f o r a i d i n g and a b e t t i n g a n o t h e r to r a p e h i s ( i . e . t h e a p p e l l a n t ' s ) w i f e , n o t w i t h s t a n d i n g t h a t t h ec o n v i c t i o n o f t h e a l l e g e d p r i n c i p a l w a s q u a sh e d f o r a w a n t o f

9m ens r e a . T he c o u r t c o n s i d e r e d t h a t t h e a p p e l l a n t w a s " in t h e o l dt e r m in o lo g y " ( i . e . p r i o r t o t h e e n a c t m e n t o f t h e C r im in a l Law A c t , 1 9 7 7

10(UK) ) , a " p r i n c i p a l i n t h e f i r s t d e g r e e " , b e c a u s e h e h a d e f f e c t e d t h e r a p e o f h i s w i f e th r o u g h t h e " in n o c e n t a g e n [ c y ] " o f t h e man who h a d h a d c o n n e c t i o n w i t h h e r w i t h o u t h e r c o n s e n t . ^

T h is d e c i s i o n h a s b e e n c r i t i c i s e d . S u ch an a p p l i c a t i o n o f t h ed o c t r i n e d o e s o f c o u r s e e m p h a s is e i t s f i c t i o n a l n a t u r e . To r e p e a t , t h ed e f e n d a n t s im p ly c o u ld n o t h a v e b eco m e a l i t e r a l p r i n c i p a l , g i v e n h i sr e l a t i o n - n ip w i t h t h e v i c t i m , an d y e t i t w as o n l y b y im p u t in g t h i ss t a t u s t o h im t h a t h e c o u ld b e m ade c r i m i n a l l y l i a b l e . In G l a n v i l l eW i l l i a m s ' w o r d s , n [ t ] h e d o c t r i n e o f in n o c e n t a g e n c y i n v o l v e s c o n v i c t i n gt h e d e f e n d a n t a s p e r p e t r a t o r , an d t h i s l o o k s w ro n g w h e r e t h e c r im e r e f e r s

12t o p e r s o n a l b o d i l y b e h a v io u r t h a t h a s n o t t a k e n p l a c e , " T he a p p l i ­c a t i o n o f t h e d o c t r i n e in s u c h a s i t u a t i o n may n o t , t h e r e f o r e , r e p r e s e n t t h e n e a t e s t s o l u t i o n t o t h e u n d e r ly i n g p r o b le m , i . e . t h a t t h e a p p e l l a n t c o u ld n o t b e c o n v i c t e d a s an a c c e s s o r y , th o u g h i t i s o b v io u s why t h e c o u r t f e l t c o m p e l le d to p r e s e r v e t h e c o n v i c t i o n i n t h i s w a y . 7 8 9 10 11 12

7 . (1 9 7 7 ) 15 ALR 1 1 7 .8 . [ 1 9 7 6 ] QB 2 1 7 .9 . S e e C ogan [ 1 9 7 6 ] 1 QB 2 1 7 a t 2 1 8 , T he j u r y fo u n d t h a t h e h ad

m is t a k e n l y b e l i e v e d t h a t t h e v i c t i m had c o n s e n t e d ,1 0 . S e e p . 2 '/ a b o v e ,1 1 . C ogan [ 1 9 7 6 ] 1 QB 2 1 7 a t 2 2 3 .1 2 . [ 1 9 7 5 ] C a m b r id g e LJ 18 2 a t 1 8 4 . S i m i l a r l y , s e e J .' C . S m ith i n

G .la z e b r o o k ( e d . ) a t p . 1 3 5 .

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A n o th e r u n a n sw e r e d p r o b le m a s s o c i a t e d w i t h t h e d o c t r i n e o f13i n n o c e n t a g e n c y i s w h e t h e r a c o e q u a l o r s u b o r d in a t e a c t o f p a r t i c i ­

p a t i o n b y t h e d e f e n d a n t i n t h e in n o c e n t p e r p e t r a t o r ’ s a c t , w i l l a t t r a c t i t s o p e r a t i o n ; o r i s t h e d o c t r i n e , r a t h e r , c o n f i n e d t o t h o s e s i t u a t i o n s w h e r e , i n t h e w o r d s o f o n e c o m m e n ta to r , t h e p e r s o n s o u g h t t o b e i n c r i m i n a t e dp u r s u a n t t o i t " d o m in a te !" s i h i s [hum an] i n s t r u m e n t ? " ^ T he E n g l i s h

■ J 15C o u r t o f A p p e a l in Q u ic k ( 1 9 7 3 ) ' h a s e x p r e s s e d t h e o b i t e r v i e wt h a t a s u b o r d i n a t e p a r t i c i p a n t may b e in c r i m i n a t e d i n r e s p e c t o f ac r i m i n a l a c t u s r e u s w i t h o u t c r i m i n a l m ens r e a . I t may b e t h a t t h ec o u r t h ad i n m in d t h a t t h e s u b o r d i n a t e p a r t i c i p a n t w o u ld b e i n c r i m i n a t e d ,i f a t a l l , a s a c o n s t r u c t i v e p r i n c i p a l b y r e s o r t t o t h e d o c t r i n e o fin n o c e n t a g e n c y . T he a p p e l l a n t , Q, h ad e v i d e n t l y c o m m itte d an a c t o fa s s a u l t w h i l e i n an a u t o m a t o n ic s t a t e ; and t h e Crown h a d a l l e g e d t h a th i s c o - a p p e l l a n t P h ad e n c o u r a g e d h im t o do t h i s . The c o u r t q u a s h e dt h e c o n v i c t i o n o f Q on t h e b a s i s t h a t th e t r i a l j u d g e h a d r e f u s e d t oa l l o w h im t o p u t h i s d e f e n c e o f a u to m a tis m t o t h e j u r y . T h e c o u r ts a i d t h a t s u b j e c t t o t h e e v i d e n c e a p e r s o n i n P ’ s a l l e g e d s i t u a t i o n

16c o u ld c o n v e i v a b l y b e c o n v i c t e d a s an " a id e r and a b e t t o r " . T he c o u r t d id n o t f e e l i n c l i n e d t o p u r s u e t h i s i s s u e , h o w e v e r , g i v e n i t s f u r t h e r v ie w t h a t i f ” Q . . . h ad a c t e d w i t h o u t c o n s c i o u s v o l i t i o n , i t i s m o st u n l i k e l y t h a t P . . . w o u ld h a v e known w h a t h e in t e n d e d t o do" ( i . e . t h a t P h i m s e l f l i k e w i s e la c k e d m ens r e a ) . It: i s u n c l e a r t h e n , a s t ow h a t , i n t h e c o u r t ’ s v i e w , w a s t h e t h e o r e t i c b a s i s f o r t h e c o n v i c t i o n o f t h e p e r s o n who w i t h o u t g u i l t y k n o w le d g e , a i d s an d a b e t s (b y t h e e n c o u r a g e m e n t o f ) a n o t h e r p e r s o n t o i n f l i c t u n la w f u l i n j u r y u p on V , w h i l e t h i s p e r p e t r a t o r i s i n an a u t o m a t o n ic s t a t e . As t h e p e r p e t r a t o r d id n o t i n c u r l i a b i l i t y , t h e a l l e g e d " a id e r an d a b e t t o r " c o u ld n o t b e c o n v i c t e d u p on t h e b a s i s t h a t h e w a s an a c c e s s o r y ; p r e s u m a b ly , t h e r e f o r e , t h e c o u r t h a d i n m in d t h a t s u c h a p e r s o n ( a s a d e f a c t o " a id e r and a b e t t o r " ) c o u ld b e d eem ed a p r i n c i p a l , by r e s o r t t o t h e d o c t r i n e o f i n n o c e n t a g e n c y . 13 14 15 16

1 3 . In t h e s e n s e o f a s s i s t a n c e o r e n c o u r a g e m e n t , r a t h e r th a n i n s t i g a t i o n *1 4 . S e e F l e t c h e r , R e t h in k in g t h e C r im in al. Law ( L i t t l e B ro w n , 1 9 7 8 ) a t

p . 6 6 6 , r e f e r r i n g t o E n g l i s h and US a u t h o r i t y .1 5 . [ 1 9 7 3 ] 1 QB 9 1 0 a t 9 2 3 .1 6 . To b e p r e c i s e , t h e c o u r t s a i d t h a t t h e a n s w e r t o t h e q u e s t i o n o f

w h e t h e r o r n o t a p e r s o n who k n o w in g ly e n c o u r a g e s a n o t h e r p e r s o n who i s in an a u t o m a t o n ic s t a t e t o com m it t h e a c t u s r e u s o f a s s a u l t , c o u ld b e " deem ed " t o h a v e a id e d and a b e t t e d t h i s a s s a u l t , w a s ( a s a g e n e r a l p r o p o s i t i o n o f l a w ) a ’■ q u a lified y e s " : j ld . a t Q?-J , .......................

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W ould t h e e x t e n s i o n o f t h e d o c t r i n e t o c o e q u a l and ( i n p a r t i c u l a r ) s u b o r d ir i i .e e p a r t i c i p a n t s i n a n o t h e r Ts c r im i n a l a c t ( e s p e c i a l l y an i r r e s p o n s i b l e p e r s o n , s u c h a s o n e who i s in an a u t o m a t o n ic s t a t e , o r who i s l e g a l l y i n s a n e ) e x t e n d t h i s h e a d o f c r i m i n a l l i a b i l i t y t o o b r o a d l y , an d in d u c e i n t o i t s o p e r a t i o n an u n p r e d i c t a b l e d yn am ism ? A t l e a s t o n e c o m m e n ta to r i s a p p a r e n t ly o f t h i s v i e w . ^ I f , h o w e v e r , t h e p e r s o n w ho i s s o u g h t t o b e in c r i m i n a t e d a s a c o n s t r u c t i v e p r i n c i p a l i n r e l i a n c e u p on i t , i s , a s i t h a s b e e n s u g g e s t e d a b o v e , t o b e r e g a r d e d a s a d e f a c t o a c c e s s o r y , t h e e x t e n t o f w h o se l i a b i l i t y i s l i m i t e d b y r e s o r t t o t h e p r i n c i p l e s g o v e r n in g t h e p h y s i c a l an d m e n t a l e l e m e n t s o f a c c e s s o r i a l , l i a b i l i t y , o r p r i n c i p l e s i n p a r a l l e l t e r m s , t h e n t h i s o b j e c t i o n t o t h e a p p l i c a t i o n o f t h e d o c t r i n e i n t h i s t y p e o f s i t u a t i o n , may b e o v e r c o m e . T h u s , a m in o r p a r t i c i p a n t s o u g h t t o b e m ade l i a b l e i n r e s p e c t o f t h e n o n - r e s p o n s i b l e p e r p e t r a t o r ’ s a c t w o u ld n e e d t o w i t t i n g l y e n c o u r a g e o r a s s i s t h im t o a c t a s h e h a s d o n e , k n o w in g t h a t h e i sc o m m it t in g o r t h a t h e w i l l com m it t h e a c t u s r e u s o f t h e s u b j e c t c r im e i n t h o s e c i r c u m s t a n c e s ( i f a n y ) bo w h ic h t h e a c c e s s o r y m u st a d v e r t . T he c o m m is s io n o f t h i s a c t m ustt h a t i s , b e i n t h e c o n t e m p la t io n o f th e a l l e g e d c o n s t r u c t i v e p r i n c i p a l . O t h e r w i s e , t h e r e s e e m s t o b e n o b a s i s f o r im p u t in g t o h im t h e r e l e v a n t g u i l t y m in d . T h is a n a l y s i s w a s o b v i o u s l y in the. m in d o f t h e C o u r t o f C r im in a l A p p e a l i n Q u ic k , i n i t s d e t e r m i n a t i o n t o q u a sh P ' s c o n v i c t i o n , t h e b a s i s o f w h ic h h a s j u s t b e e n r e f e r r e d t o . ( I t i s a s su m e d t h a t t h e c o u r t ' s r e a s o n i n g i n r e s p e c t o f P w a s b a s e d u p on t h e d o c t r i n e o f i n n o c e n t a g e n c y . )

( b ) C o n c e r t w i t h an I n s a n e P e r p e t r a t o r( i ) T h e D e c i s i o n s i n T y l e r an d M a t u s e v ic h

Two d e c i s i o n s h o ld t h a t w h e r e D e n t e r s i n t o a c o n c e r t w i t h a l e g a l l y i n s a n e p e r s o n t o com m it t h e a c t u s r e u s o f a c r im e , in c o n s e q u e n c e o f w h ic h t h e l a t t e r p e r p e t r a t e s t h i s a c t u s r e u s , D , p r o v id e d t h a t h e h a s t h e m e n t a l e l e m e n t a p p r o p r i a t e t o t h i s c r im e , i s b y v i r t u e o f t h i s c o n c e r t i m p l i c a t e d i n i t . T h e m ore r e c e n t o f t h e s e d e c i s i o n s a ssu m e (b y m a j o r i t y ) t h a t i t i s t h e c o n c e p t o f c o n c e r t , r a t h e r th a n t h e d o c t r i n e o f i n n o c e n t a g e n c y , w h ic h g r o u n d s l i a b i l i t y i n s u c h a c a s e . 17

1 7 . S e e L anham , " C o m p l ic i t y , C o n c e r t and C o n sp ir a c y ® ( I 9 6 0 ) 4 C rimLJ 27 6 a t 2 8 2 - 3 .

242

T he f i r s t o f t h e s e a u t h o r i t i e s i s t h e E n g l i s h c a s e o f T y le r( 1 8 3 8 ) w h ic h r e p o r t s p a r t o f t h e sum m ing up o f t h e t r i a l j u d g e on t h i so c c a s i o n , L o rd Denman C J . T he f a c t s , a s e v i d e n t l y a c c e p t e d b y t h e j u r y ,w e r e t h t t h e tw o d e f e n d a n t s e n t e r e d i n t o a c o n c e r t w i t h o n e T , who w asi n s a n e , f o r t h e s h o o t i n g o f V , o f w h ic h wound V d i e d . I f i t w asa c c e p t e d t h a t T w a s i n s a n e , L o rd Denman t o l d t h e j u r y , t h e d e f e n d a n t sc o u ld n o t b e c o n v i c t e d a s a c c e s s o r i e s t o m u r d e r , " f o r t h e r e w i l l b e no

"19f o u n d a t i o n on w h ic h t h e a c c e s s o r y c r im e can r e s t . S u b j e c t t o t h ee v i d e n c e , h o w e v e r , t h e y c o u ld c o n v i c t them o f an a l t e r n a t i v e c o u n t ,w h ic h c h a r g e d th em w i t h t h e c r im e a s p r i n c i p a l s ( i . e . i n t h e f i r s td e g r e e ) . T h is w o u ld b e on t h e b a s i s t h a t t h e y s h a r e d i n T ’ s

" m a lig n a n t p u r p o s e . . . and w e r e p r e s e n t a i d i n g an d a b e t t i n g , an d a s s i s t i n gh im i n t h e c o m m is s io n o f a c t s f a t a l t o l i f e , i n t h e c o u r s e o f a c c o m p l i s h in g

70t h i s p u r p o s e . . . " ' T h ey w e r e c o n v i c t e d on t h i s c o u n t .

Now c l e a r l y t h e y w e r e n o t l i t e r a l p r i n c i p a l s , i n t h a t t h e y d id n o t p e r s o n a l l y p e r p e t r a t e t h i s a c t ( i . e . o f s h o o t i n g ) w h ic h c a u s e d d e a t h . T h is L ord Denman r e c o g n i s e d , in r e f e r r i n g t o t h e i r b e h a v io u r ( i n s u b s t a n c e ) a s a m o u n t in g t o an a i d i n g an and a b e t t i n g o f t h e a c t o f s h o o t i n g , c o n c u r r e n t l y w i t h t h e c o n t in u in g f a c t o f c o n c e r t . I t i s u n c l e a r , t h e r e f o r e , a s t o why h e w a s o f t h e v ie w t h a t t h e s t a t u s o f p r i n c i p a l o f f e n d e r c o u ld in t h i s s i t u a t i o n b e im p u te d t o th e m . He m ak es n o r e f e r e n c e t o an y d o c t r i n e o f in n o c e n t a g e n c y - an d t h i s d o c t r i n e w a s n o t , i n d e e d , e x p r e s s l y r e c o g n i s e d b y t h e c o u r t s , a t l e a s t i n r e p o r t e d d e c i s i o n s , u n t i l som e y e a r s l a t e r . T y l e r c a n , no d o u b t , b e e x p l a i n e d i n te r m s o f t h e d o c t r i n e , On th e o t h e r h a n d , i t i s e q u a l l y s u s c e p t i b l e t o a d i f f e r e n t a n a l y s i s , v i z } t h a t t h e f a c t o f c o n c e r t i t s e l f , i n s u c h a s i t u a t i o n ( i . e . w h e r e t h e p e r p e t r a t o r i s w i t h o u t c r i m i n a l m ens r e a ) i s s u f f i c i e n t q u i t e in d e p e n d e n t ly o f a n y d o c t r i n e o f i n n o c e n t a g e n c y , t o im p u te t h e s u b s t a n t i v e s t a t u s o f p r i n c i p a l o f f e n d e r t o t h o s e o f h i s c o n f e d e r a t e s who p o s s e s s t h e m e n t a l e le m e n t a p p r o p r i a t e t o t h e c r im e . (W ere t h e p e r p e t r a t o r t o p o s s e s s m en s r e a t h e n h i s c o n f e d e r a t e s i n a common c r i m i n a l p u r p o s e w o u ld o f c o u r s e b e c l a s s i f i e d a s a c c e s s o r i e s , ) 18 19 20 21

18

1 8 . (1 8 3 8 ) 8 C ar & P 6 1 6 , 1 7 3 ER 6 4 3 .1 9 . I_d. a t 6 1 8 , 644«2 0 . I d , a t 6 1 8 - 1 9 , 6 4 4 -2 1 . S e e g e n e r a l l y C h ap , 7-

243T h in latter analysis appealed to the Victorian C o u r t of CriminalO O

Appeal in Matusevich( 1976)''and it (or a modified version of it) also2 7'appealed to a majority of the High Court in jV.atusevich v R (1977)* ^

Tne f a c t s a c c e p t e d b y t h e C o u r t o f C r im in a l A p p e a l w e r e t h a t t h e a p p e l l a n t I\‘ e n t e r e d i n t o an a g r e e m e n t w i t h o n e T to h i t V w i t h an a x e , a s a c o n s e q u e n c e o f w n ic h a t t a c k h e d i e d ; a n d t h a t T , a l t h o u g h c a p a b le o f a s s e n t i n g to a n a g r e e too n t f o r t h i s a c t , was l e g a l l y i n s a n e , a n d th a .t T , an d n o t t h e a p p e l l a n t , may h a v e b e e n s o l e l y r e s p o n s i b l e f o r t h e p h y s i c a l p e r p e t r a t i o n o f th e b l o w s .

A c c o r d in g to t h e C o u r t o f C r im in a l . p e n a l , t h e f a c t t h a t a man" i s i n s a n e f o r t h e p u r p o s e s o f t h e c r im i n a l la w d o e s n o t n e c e s s a r i l y meant h a t h e i s i n c a p a b l e o f a s s e n t i n g t o g e t h e r w i t h a n o t h e r man t o do an

24 r. ~sa c t . " Huch a n " a s s e n t j in g j t o g e t h e r " o f a s a n e e n d an i n s a n e manw o u ld i n v o l v e t h a t t h e fo r m e r w as g u i l t y ( h e r e , o f m u r d e r ) i f h e h a d t h ea p p r o p r i a t e m ens r e a - " S u ch a c o n c l u s i o n , we t h i n k , a c c o r d s n o t o n l y w i t hl e g a l p r i n c i p l e b u t a l s o w i t h common s e n s e . The s a n e man i s a p a r t y to th e

2Sd o i n g o f t h e a c t a n d h e h a s t h e n e c e s s a r y g u i l t y m in d ." T he c o u r t r e f e r r e d ,2 g

i n t e r a l i a , t o C ogan ( 1 9 7 6 ) a s s u p p o r t i n g i t s c o n c l u s i o n , b u t t h a t i t d id n o t c o n s i d e r t h a t th e a p p e l l a n t ’ s l i a b i l i t y i n t h i s s i t u a t i o n w as t o b e j u s t i f i e d b y r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y ( t h e b a s i s o f d e c i s i o n in C o g a n ) , i s r e f l e e t e d i n i t s a f f i r m a t i o n e l s e w h e r e t h a t t h e a p p e l l a n t ’ s l i a b i l i t y d id n o t n e e d t o b e t h u s j u s t i f i e d , o n l y i f t h e p e r p e t r a t o r i n s u c h a s i t u a t i o n w as a f f l i c t e d b y s u c h a d e g r e e o f i n s a n i t y t h a t h e w a s u n a b le to a s s e n t to t h e f o r m a t io n o f a c o n c e r t , w ould i t b e n e c e s s a r y t o e v a l u a t e th e l i a b i l i t y o f t h e s a n e p a r t y i n d i f f e r e n t t e r r a s j i n s u c h a c a s e " t h ec o n c e p t o f i n n o c e n t a g e n c y m ig h t w e l l a p p ly to make h im l i a b l e f o r t h e a o t s

2 7o f th e i n s a n e m an,"

22

25'26

27

pi 976] VR 470.(1977) 137 CLR 653• 2ee the discussion of these decisions in Lanham, "Complicity,Concert and Conspiracy" (19H0) 4 Crim LJ 276 at 280ff.Hiatus evich [19 7 6] VR 470 at 478• The court considered that this could be so even in the situation where the defendant was insane in terms of both of the McNaughten branches.Id, at 478*[1976] QJB 217 - id. at 479- Id, at 480.

?44

C l e a r l y , t h e r e f o r e , c o n c e r t w a s i n t e g r a l t o t h e a p p e l l a n t M 'sl i a b i l i t y on t h i s o c c a s i o n . An a m b ig u it y p e r s i s t s i n t h e d e c i s i o n ,h o w e v e r . To b e g i n w i t h , t h e c o u r t d id n o t i n d i c a t e w h e t h e r M w a sf o r m a l l y a ( n o t i o n a l ) p r i n c i p a l i n t h e f i r s t d e g r e e , o r a p r i n c i p a l i n

28t h e s e c o n d d e g r e e . P r o c e d u r a l l y , n o t h in g tu r n e d on t h e m a t t e r , b u t i t i s o f s u b s t a n t i v e r e l e v a n c e , a t l e a s t i n a t t e m p t in g t o d i s c e r n t h e e x a c t b a s i s o f t h e d e c i s i o n . I f M 's l i a b i l i t y w as c o n c e i v e d t o b e t h a t o f an a c c e s s o r y ( h e i s i d e n t i f i e d a s a " p r i n c ip a l " b u t t h i s te r m i s com m only u s e d t o r e f e r t o t h e p r i n c i p a l in t h e s e c o n d d e g r e e a s w e l l a s t h e p r i n c i p a l in t h e f i r s t d e g r e e ) , t h e n t h e c o u r t d id n o t s a t i s f a c t o r i l y e x p l a i n how h e c o u ld b e th u s l i a b l e , g i v e n t h a t a c c e s s o r i a l l i a b i l i t y i s d e r i v a t i v e o f t h e p r i n c i p a l o f f e n d e r , and t h a t i n t h i s c a s e , t h e r e w a s n o ( a c t u a l ) p r i n c i p a l o f f e n d e r . I f on t h e o t h e r h a n d ,t h e c o u r t v i e w e d h im a s b e in g ; a p r i n c i p a l in t h e f i r s t d e g r e e , n o t w i t h s t a n d i n g t h a t t h e e v i d e n c e f a i l e d t o p r o v e t h a t h e p e r s o n a l l y w i e l d e d t h e a x e , on w h a t h a s .iS w as t h i s c o n s t r u c t i v e s t a t u s to b e im p u te d t o h im ? As t h e c o u r t w a s o f t h e v i e w t h a t t h e d o c t r i n e o f i n n o c e n t a g e n c y d id n o tn e e d t o b e r e s o r t e d t o h e r e , i t m u st h a v e h ad i n m in d t h a t t h e

29 30c a s e o f T y le r ( 1 8 3 8 ) (w h ic h i t c i t e d by way o f s u p p o r t ) , e s t a b l i s h e dan in d e p e n d e n t r u l e , w h ic h o p e r a t e s b y way o f e x c e p t i o n t o t h e g e n e r a lla w , and w h ic h i s t o t h e e f f e c t t h a t w h e r e a s a n e p e r s o n a g r e e s w i t h ani n s a n c e p e r s o n t o com m it a c r i m i n a l a c t , t h e fo r m e r o f t h e s e b e c o m e s ap r i n c i p a l , o f f e n d e r i n t h e c o r r e s p o n d in g c r im e , p r o v id e d t h a t h e h a s t h e

31a p p r o p r i a t e g u i l t y m in d .

T he H ig h C o u r t r e v e r s e d t h e d e c i s i o n o f t h e S u p rem e C o u r t i n32t h i s c a s e , i n M a t u s e v ic h v . R ( 1 9 7 7 ) p r i n c i p a l l y on t h e g r o u n d t h a t

t h e p r o s e c u t i o n h a d w r o n g f u l l y c r o s s - e x a m in e d t h e a p p e l l a n t M a s t o h i s p r i o r c o n v i c t i o n s a t h i s t r i a l . F u r t h e r , i t i s e v i d e n t t h a t t h e c o u r t w a s o f t h e v i e w t h a t t h e t r i a l j u d g e h ad n o t a d e q u a t e l y summed up t h e la w

2 8 . S e e p .2 9 . ( 1 8 3 8 ) 8 C ar & P 6 1 6 , 1 7 3 ER 6 4 3 .3 0 . I d . a t 47 9 .3 1 . I t i s a ssu m e d ( t o r e p e a t ) t h a t t h e p e r s o n who a g r e e s w i t h a n o t h e r

u p on t h e c o m m is s io n o f a c r im e , w h e r e b o t h p o s s e s s a r e l e v a n t g u i l t y m in d , b e c o m e s an a c c e s s o r y i n h i s c o n f e d e r a t e ' s c o m m is s io n o f t h i s c r im e , r a t h e r th a n a p r i n c i p a l : s e e C hap. 7.F o r a c o n t r a r y s u g g e s t i o n ( i . e . o n e t h a t t h e d e f e n d a n t in t h i s s i t u a t i o n w i l l b e a " c o - p e r p e t r a t o r ;M in t h e s e n s e o f a p r i n c i p a l o f f e n d e r , o r p r i n c i p a l i n t h e f i r s t d e g r e e ) s e e F l e t c h e r ,R e t h i n k i n g t h e C r im in a l Law ( L i t t l e iir o w n , 1 9 7 8 ) a t p .6 4 7 r e f e r r i n g * 32t o US a u t h o r i t y ; and s e e t h e com m ent in L anham , " C o m p l i c i t y , C o n c e r t and C o n s p ir a c y " ( 1 9 8 0 ) 4 C rim LJ 276 a t 28 6 .

3 2 . ( 1 9 7 7 ) 137 CLR 6 3 3 .

245

t o t h e j u r y r e l a t i n g t o t h e a l l e g e d c r im in a l c o n c e r t b e t w e e n Man d h i s i n s a n e c o - d e f e n d a n t and A i c k in J , a t l e a s t , e x p r e s s e d t h e v ie w

33t h a t t h i s d e f i c i e n c y w a r r a n t e d t h e o r d e r in g o f a new t r i a l . E ach o f t h e j u s t i c e s r e f e r r e d t o t h e b a s i s upon w h ic h M c o u ld b e c o n v i c t e d , s u p p o s in g t h a t t h e Crown m ade g o o d i t s a l l e g a t i o n s o f f a c t a t h i s r e t r i a l . T h e ir v i e w s w e r e i n g e n e r a l c o n f o r m i t y w i t h t h o s e o f t h e C o u r t o f C r im in a l A p p e a l , s u b j e c t t o c e r t a i n q u a l i f i c a t i o n s *

A c c o r d in g t o G ib b s J , i t w as p o s s i b l e f o r a s a n e man an d ani n s a n e man t o a g r e e u p on t h e c o m m is s io n o f t h e a c t u s r e u s o f a c r im e ,p r o v id e d t h e i n s a n i t y i s n o t o f s u c h a t y p e t h a t i t r e n d e r s t h e l a t t e ri n c a p a b l e o f s u c h an a s s e n t . I n t h e e v e n t t h a t t h e r e i s c o n c e r t , an dt h a t t h e i n s a n e man c o m m its t h e a c t , t h e s a n e m an, a s s u m in g t h a t h ep o s s e s s e s t h e m ens r e a f o r t h e c o r r e s p o n d in g c r im e , w i l l t h e r e b y in c u r

34l i a b i l i t y f o r t h i s c r im e . T h is r e a s o n in g p a r a l l e l l e d t h a t o f t h eC o u r t o f C r im in a l A p p e a l . P r e s u m a b ly G ib b s J w as o f t h e v i e w t h a t t h ef a c t o f c o n c e r t i n t h i s s i t u a t i o n in c r i m i n a t e d t h e s a n e p e r s o n i n t h ec r im e a s a c o n s t r u c t i v e p r i n c i p a l i n t h e f i r s t d e g r e e , f o r h e c o u ld n o tb e c o n v i c t e d a s an a c c e s s o r y , g i v e n t h a t t h e p e r p e t r a t o r d id n o t in c u rc r i m i n a l l i a b i l i t y . T h a t t h e d e r i v a t i v e s t a t u s o f a c c e s s o r i a l l i a b i l i t yw o u ld , p r im a f a c i e a t l e a s t , p r e v e n t su c h a r e s u l t , w a s a c c e p t e d b yG ib b s J i n h i s com m ent e l s e w h e r e t h a t w h e r e t h e r e w a s n o c o n c e r t b u tt h e s a n e man w h i l e p o s s e s s i n g a g u i l t y m in d , h ad n e v e r t h e l e s s i n c i t e d h i si n s a n e c o m p a n io n t o com m it t h e c r i m i n a l a c t , t h e s a n e p e r s o n c o u ld b e

33c o n v i c t e d b y r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y . (A s n o t e d , t h i s d o c t r i n e w a s o f c o u r s e , sp a w n ed b y t h e c o u r t s t o o v e r c o m e t h e s u b s t a n t i v e p r o b le m p r e s e n t e d b y t h e d e r i v a t i v e n a t u r e o f a c c e s s o r i a l l i a b i l i t y ) . B u t h i s H on ou r d id n o t e n t i r e l y r u l e o u t t h e p o s s i b i l i t y

3 3 . S e e i d . a t 6 6 3 , 6 6 8 . He c r i t i c i s e d th e t r i a l j u d g e ?s i m p l i c a t i o n , t h a t w h e t h e r o r n o t T w a s i n s a n e h ad no b e a r i n g u p on t h e q u e s t i o n o f w h e t h e r o r n o t t h e r e w as a c o n c e r t b e tw e e n th em f o r t h e k i l l i n g of V.

3 4 . Id * a t 6 3 7 -8 *3 5 . M . a t 6 3 7 He a l s o s e e m e d t o b e l i e v e t h a t t h e d o c t r i n e o f in n o c e n t

a g e n c y c o u ld i n c r i m i n a t e a s a c o n s t r u c t i v e p r i n c i p a l , t h ep e r s o n who m e r e ly a s s i s t e d t h e i r r e s p o n s i b l e p e r p e t r a t o r t o com m it t h e c r i m i n a l a c t - a t 63 8 *

246

t h a t a p e r s o n c o u ld a i d and a b e t a n o t h e r t o p e r p e t r a t e a c r im e , and t h u s in c u r c r i m i n a l l i a b i l i t y a s an a c c e s s o r y , n o t w i t h s t a n d i n g t h a t t h e p e r p e t r a t o r d o e s n o t in c u r c r i m i n a l r e s p o n s i b i l i t y . He r e g a r d e d t h ela w on t h i s t o p i c a s " u n s e t t l ed^’ r e m a r k in g t h a t i t w a s “ u n n e c e s s a r y

, „ 36t o p u r s u e t h e m a t te r .

T h e o n l y o t h e r ju d g m e n t i n w h ic h t h i s i s s u e w a s c o n s i d e r e d a t3l e n g t h w a s t h a t o f A i c k in J (w ho v i e w s on i t w e r e e n d o r s e d b y M ason J ,

I n t h a t a s p e c t o f h i s a n a l y s i s w h ic h r e l a t e d t o t h e s i g n i f i c a n c e o f ap r o v e n c o n c e r t b e tw e e n a s a n e an d an in s a n e p e r s o n , A i c k i n J ’ s r e a s o n in gw a s s i m i l a r t o t h a t o f G ib b s J , i n t h a t h e a c c e p t e d t h a t s u c h ana r r a n g e m e n t b e t w e e n t h e two w o u ld i n v o l v e t h a t w h e r e t h e i n s a n e p e r s o np e r p e t r a t e s t h e a c t u s r e u s o f a c r im e , h i s s a n e c o n f e d e r a t e w o u ld( s u b j e c t t o h i s p o s s e s s i n g m en s r e a ) , t h e r e b y b e i n c r i m i n a t e d i n t h i sc r im e . He f u r t h e r e x p l a i n e d ( a s d id G ib b s J ) , t h a t t h e f a c t t h a t o n eo f tw o p e r s o n s i s i n s a n e , may i n v o l v e t h a t h e i s i n c a p a b l e o fe n t e r i n g i n t o an a g r e e m e n t f o r t h e c o m m is s io n o f a c r i m i n a l a c t , i f t h ei n s a n i t y i s o f s u c h a form a s t o r e n d e r h im i n c a p a b l e o f s u c h a g r e e m e n t .He s p e c i f i c a l l y r e p r o v e d t h e t r i a l j u d g e f o r i n s t r u c t i n g t h e j u r y t h a tt h e i s s u e o f i n s a n i t y w as i r r e l e v a n t t o t h e d e t e r m i n a t i o n o f w h e t h e r

38t h e r e w a s a c o n c e r t b e tw e e n M an d T f o r t h e a s s a u l t u p on V . 36 37 *

3 6 . Ld. a t 6 3 8 c i t i n g , i n t e r a l i a , B o u rn e ( 1 9 5 2 ) 36 C rim A p p . R 2 5 , w h ic h i s r e f e r r e d t o a t p . 2^2 b e lo w .

3 7 . T h ou gh h e d id s o i n s u c h te r m s a s t o i n d i c a t e t h a t h e d id n o t n e c e s s a r i l y e n d o r s e e v e r y t h i n g s a i d b y A i c k in J on t h i s t o p i c ~ n o r n e c e s s a r i l y d i s a g r e e . W hat h e s a i d w a s t h a t h e a g r e e d w i t h A i c k in J ' s o b s e r v a t i o n s on t h e d i r e c t i o n s w h ic h s h o u ld h a v e b e e n g i v e n r e s p e c t i n g t h e t o p i c o f t h e a p p e l l a n t ’ s a c t i n g i n c o n c e r t w i t h an i n s a n e p e r s o n . T h is d o e s n o t n e c e s s a r i l y im p ly t h a th e a g r e e d w i t h A i c k in J ’ s f u r t h e r a s s u m p t io n , t h a t i f n o c o n c e r t c o u ld b e m ade o u t , t h a t t h e d o c t r i n e o f in n o c e n t a g e n c y c o u ld n o t , i n t h i s c a s e , b e r e s o r t e d t o ( s e e b e l o w ) .S te p h e n J e n d o r s e d t h e r e a s o n i n g b o th o f G ib b s and A i c k in J J , s o t h a t h i s ju d g m e n t c a n n o t b e r e l i e d upon in o r d e r t o s u p p o r t on< a g a i n s t t h e o t h e r , w h e r e t h e r e a r e d i f f e r e n c e s b e t w e e n t h e r e a s o n i n g o f e a c h o f th em ( a t 6 3 9 ) .

3 8 . I d . a t 6 6 1 .

247

He d i f f e r e d from G ib b s J i n h i s v i e w t h a t s u p p o s in g t h a t t h e e v i d e n c e d id n o t e s t a b l i s h a c o n c e r t in t h e te r m s a l l e g e d b y t h e C row n , t h e n t h e r e w a s no b a s i s , g i v e n t h e s t a t e o f t h e e v i d e n c e , f o r r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y in t h e a l t e r n a t i v e . S p e c i ­f i c a l l y , h e s a i d t h a t t h e " e v id e n c e g i v e n a t t h e t r i a l . . . w o u ld n o th a v e j u s t i f i e d t h e v ie w t h a t t h e r e w a s a n y t h in g i n t h e n a t u r e o f

39in n o c e n t a g e n c y i n t h i s c a s e . " H is p r e c i s e r e a s o n i n g a t t h i s p o i n t w as u n c l e a r . T h is s t a t e m e n t ca n b e i n t e r p r e t e d i n tw o w a y s , i t i s t h o u g h t : ( 1 ) h i s H on ou r may h a v e b e e n o f t h e v i e w t h a t i t w as s im p ly u n r e a l i s t i c t o r e g a r d an i n s a n e p e r s o n , b e in g an i r r e s p o n s i b l e p e r s o n , a s an i n n o c e n t a g e n t , p r e f e r r i n g i n s t e a d t o c o n f i n e t h e d o c t r i n e t o th e . m ore c o n v e n t i o n a l s i t u a t i o n i n w h ic h i t h a s b e e n a p p l i e d , v i z , t h e k n o w in g i n s t i g a t i o n b y t h e d e f e n d a n t o f a n o t h e r p e r s o n who i s r e s p o n s i b l e b u t ig n o r a n t ( i n t h e s e n s e o f l a c k i n g an a w a r e n e s s o f t h e e s s e n t i a l m a t t e r s o f t h e s u b j e c t o f f e n c e ) t o p e r p e t r a t e t h e c r i m i n a l a c t . ( C e r t a i n l y h i s s t a t e m e n t d o e 3 n o t r e f l e c t a g e n e r a l b e l i e f t h a t t h e r e i s n o su c h d o c t r i n e i n t h e common l a w ) . Or (2) i t may b e t h a t h e w a s s im p ly o f t h e m ore l i m i t e d v ie w t h a t h a v in g r e g a r d to t h e p a r t i c u l a r e v i d e n c e i n t h i s c a s e , c o n c e r t w as t h e o n l y b a s i s o f l i a b i l i t y w h ic h c o u ld f e a s i b l y b e a r g u e d , a s a m ean s o f a f f e c t i n g M w i t h l i a b i l i t y f o r t h e a c t o f k i l l i n g , s u p p o s in g t h a t i t w a s e s t a b l i s h e d t o h a v e b e e n c o m m itte d b y h i s i n s a n e c o m p a n io n . I n t h e e v e n t t h a t s u c h p r o o f ( i . e o f c o n c e r t ) w a s n o t f o r t h c o m i n g , t h e n , A ic k in J may h a v e c o n s i d e r e d , t h e r e w as n o o t h e r p r o o f o f r e l e v a n t p a r t i c i p a t i o n b y M i n T ' s a c t - no p r o o f o f i n c i t e m e n t f o r e x a m p le , o r o f o t h e r k n o w in g e n c o u r a g e m e n t , o r a s s i s t a n c e o f T in h i s d e e d . I n t h e s e te r m s t h e a t t a c k w o u ld in d e e d b e T ' s in d e p e n d e n t a c t , an d n o t o n e w h ic h w o u ld a t t r a c t t h e d o c t r i n e o f i n n o c e n t a g e n c y .

T h a t A i c k in J in t e n d e d t h i s s e c o n d i m p l i c a t i o n , i s p e r h a p s r e f l e c t e d i n h i s o m i s s io n t o i n d i c a t e ( s u p p o s in g t h a t T h a d c o m m itte d t h e a c t c a u s i n g d e a t h , an d m o r e o v e r , t h a t h e w as a t t h i s t im e l e g a l l y i n s a n e ) , on w h a t b a s i s M c o u l d b e fo u n d g u i l t y , i n t h e e v e n t t h a t t h eCrown w a s , a t t h e r e t r i a l , t o f a i l t o p r o v e c o n c e r t , b u t t h a t i t was^ e x h y p o t h o s i , t o s u c c e e d I n p r o v in g t h a t • M i n c i t e d T ( o r e n c o u r a g e d h im a t som e l e s s e r l e v e l , o r a s s i s t e d h im ) to k i l l V . A s n o t e d , a n y a t t e m p t t o in v o k e a c c e s s o r i a l l i a b i l i t y w o u ld h a v e com e up a g a i n s t t h eo b v io u s p r o b le m , t h a t s u c h l i a b i l i t y i s d e r i v a t i o f t h e p e r p e t r a t o r ' s 39

39. Id. at 663.

248

l i a b i l i t y . Ilad h e s u p p o s e d t h a t t h i s a 1 t e r n a l i v e h y p o t h e s i s c o u ld r e a s o n a b ly h a v e a r i s e n i n t h e c o u r s e o f t h e r e t r i a l , t h e n h e w o u ld , p r e s u m a b ly , h a v e f e l t i t t o b e n e c e s s a r y t o e x p l a i n an a l t e r n a t i v e b a s i s o f l i a b i l i t y . I f t h i s ( s e c o n d ) i n t e r p r e t a t i o n o f h i s r e m a r k s i s c o r r e c t , i t i s p e r f e c t l y c o n c e i v a b l e t h a t i n t h i s new an d d i f f e r e n t c i r c u m s t a n c e , h e w o u ld h a v e s u p p o r t e d t h e a p p l i c a t i o n o f t h e d o c t r i n e o f in n o c e n t a g e n c y a s a n e c e s s a r y a l t e r n a t i v e t o t h e d o c t r i n e o f c o n c e r t .

M urphy J w a s c l e a r l y o f t h e v ie w t h a t p r o o f o f c o n c e r t w o u ld s u f f i c e t o i n c r i m i n a t e a s a n e man and an in s a n e m an , w h e r e t h e l a t t e r p e r p e t r a t e s a c r i m i n a l a c t u s r e u s . He s e e m in g ly l e f t o p e n t h e p o s s i ­b i l i t y t h a t t h e i s s u e o f M’ s l i a b i l i t y , s u p p o s in g t h a t T d i d , w h i l e i n s a n e , p e r p e t r a t e t h e k i l l i n g , c o u ld j u s t a s w e l l b e e v a l u a t e d upon, an a l t e r n a t i v e b a s i s . He r e f e r r e d t o p r o o f o f a c t i n g i n c o n c e r t w i t h an i n s a n e p e r s o n , a s r a i s i n g " p r o b le m s o f p h i l o s o p h i c a l an d p s y c h o l o g i c a l s u b t l e t y w h ic h a j u r y s h o u ld n o t h a v e t o d e a l w i t h i f t h e p r o s e c u t i o n c a s e c a n f a i r l y b e p r e s e n t e d w i t h o u t i t . The p r o s e c u t i o n i s n o t o b l i g e d t o r e l y u p on e v e r y c o n c e i v a b l e b a s i s f o r c o n v i c t i o n . A c o m p l ic a t e d

40t h e o r y i s b e s t a v o id e d i f i t s s u b s t a n c e can b e p r e s e n t e d m ore s im p ly .M I t may b e t h a t h e h a d in m in d t h e o b v io u s a l t e r n a t i v e p o s s i b i l i t y , t h a t t h e d o c t r i n e o f i n n o c e n t a g e n c y c o u ld b e r e s o r t e d t o .

( i i ) C o n c lu s io n

T h e e f f e c t o f t h e H ig h C o u r t ’ s d e c i s i o n i n M a t u s e v ic h ( o n e s u p p o r t e d b y t h e C o u r t o f C r im in a l A p p e a l ’ s d e c i s i o n in t h i s c a s e , and a u l t i m a t e l y i n a m ore a p p r o x im a t e w a y , b y L ord D en m an ’ s sum m ing up i n T y l e r ) i s t h a t w h e r e a s a n e p e r s o n and an i n s a n e p e r s o n a g r e e t o com m it a c r i m i n a l a c t , and t h e in s a n e p e r s o n p e r p e t r a t e s t h i s a c t , h i s s a n e c o n f e d e r a t e , a s s u m in g t h a t h e h a s t h e m e n ta l e l e m e n t a p p r o p r i a t e t o t h e c o r r e s p o n d i n g c r im e , i s p r o p e r ly t o b e made l i a b l e f o r t h i s c r im e n o t b y r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y , s o m uch a s b y r e s o r t t o t h e n o t i o n o f c o n c e r t i t s e l f . B o th o f t h e ju d g m e n ts i n w h ic h t h i s a s p e c t o f t h e c a s e w e r e c a n v a s s e d i n d e t a i l i . e . t h o s e o f G ib b s an d A i c k in J J , w e r e o f t h i s v i e w . M urphy J on t h e o t h e r h a n d , may h a v e b e e n o f t h e v ie w t h a t t h e d o c t r i n e o f i n n o c e n t a g e n c y c o u ld b e r e s o r t e d t o i n t h e a l t e r n a t i v e . 40

4 0 . I d . a t 6 4 8 -

T h e C o u r t o f C r im in a l A p p e a l , and G ib b s J i n d i c a t e d t h a t i n249

t h e a b s e n c e o f c o n c e r t , t h e d o c t r i n e o f in n o c e n t a g e n c y w a s t o b e r e s o r t e d t o s o a s t o i n c r i m i n a t e t h e s a n e p e r s o n a s a c o n s t r u c t i v e p r i n c i p a l , a s s u m in g t h a t h e i n c i t e d h i s s a n e c o m p a n io n to com m it t h ec r i m i n a l a c t ( o r p e r h a p s , m e r e ly e n c o u r a g e d o r a s s i s t e d h im t o do t h i s ) .I n th o a b s t r a c t , i t h a s b e e n s e e n f A le n in J may n o t h a v e r u l e d o u t t h i s p o s s ­i b i l i t y , th o u g h c o r t a i i i l v , h e d id n o t cone- Id o r t h a t t h e d o c t r i n e o f i n n o c e n t a g e n c y c o u ld r e a s o n a b ly b e a r g u e d h a v in g r e g a r dt o t h e e v i d e n c e i n Ma t u s e v i c h i t s e l f .

S i g n i f i c a n t a m b i g u i t i e s , o r u n c e r t a i n t i e s , h a v e r e s u l t e dfr o m t h e s e d e c i s i o n s . F i r s t l y , i s t h e s a n e p e r s o n , who i s i n c r i m i n a t e dp u r s u a r . t o t h i s c o n c e r t d o c t r i n e , t o b e r e g a r d e d a s a p r i n c i p a l o r a san a c c e s s o r y ? As n o t e d , h i s c l a s s i f i c a t i o n in a f a c t s i t u a t i o n l i k et h a t a l l e g e d b y t h e Crown i n M a t u s e v ic h i s o f no p r a c t i c a l s i g n i f i c a n c e ,g i v e n t h a t a t common la w a p e r s o n c a n b e c h a r g e d w i t h p a r t i c i p a t i o na s a p r i n c i p a l o f f e n d e r an d c o n v i c t e d upon, p r o o f o f p a r t i c i p a t i o n a s

41an a i d e r and a b e t t o r , and v i c e v e r s a . I t i s , h o w e v e r , o f t h e o r e t i c im p o r t a n c e , i n e x p l a i n i n g t h e t e c h n i c a l f o u n d a t io n o f t h e s a n e d e f e n d a n t ’ s l i a b i l i t y . A ssu m in g t h a t t h e C o u rt o f C r im in a l A p p e a l an d t h e H ig h C o u r t i n M a t u s e v ic h w e r e m in d f u l o f t h e m a jo r p r o b le m r a i s e d b y t h e d e r i v a t i v e s t a t u s o f a c c e s s o r i a l l i a b i l i t y , i . e . t h a t t h e p e r p e t r a t o r , c o n v e n t i o n a l l y , i s r e q u ir e d t o com m it a c r im e b e f o r e h i s a c c e s s o r y c a n b e c o n v i c t e d , (a n d t h e r e p e a t e d r e f e r e n c e s t o t h e d o c t r i n e o f in n o c e n t a g e n c y w h ic h w as e v o l v e d t o o v e r c o m e t h i s p r o b le m , w o u ld i n d i c a t e t h a t t h e c o u r t s w e r e c o g n i s a n t o f t h i s p r o b le m ) , t h e n , i t i s s u p p o s e d , t h e y r e g a r d e d t h i s p e r s o n a s a c o n s t r u c t i v e p r i n c i p a l i n t h e f i r s t d e g r e e . ( C e r t a i n l y L o rd Denman w as o f t h i s v i e w , i n t h e e a r l i e r and p a r a l l e l c a s e o f T y l e r ,) I f t h i s i s s o , t h e n t h e s e d e c i s i o n s a r e t o b e e x p l a i n e d t h u s : t h e d o c t r i n e o f c o n c e r t , l i k e t h e d o c t r i n e o f in n o c e n t a g e n c y , r e p r e s e n t s a s p e c i f i c d e v i c e w h e r e b y t h e ( s a n e ) d e f e n d a n t may be e l e v a t e d to t h e n o t i o n a l s t a t u s o f c o n s t r u c t i v e p r i n c i p a l o f f e n d e r , t h e r e b y o v e r c o m in g t h e l i m i t a t i o n i n h e r e n t i n t h e a c c e s s o r y ’ s d e r i v a t i v e s t a t u s .

An a l t e r n a t i v e p o s s i b i l i t y i s t h a t t h e c o u r t s i n M a t u s e v ic h d id c l a s s i f y t h e s a n e p a r t i c i p a n t a s a p r i n c i p a l i n t h e s e c o n d d e g r e e , b u t v ie w e d t h e d o c t r i n e (a n d t h e f a c t ) , o f c o n c e r t a s b e in g 41

4 1 . A p r o c e d u r a l f a c i l i t y w h ic h h a s b e e n e x t e n d e d b y s t a t u t e i n t h e s u b j e c t j u r i s d i c t i o n s i n a r e a s w h e r e p r o b le m s h i t h e r t o a r o s e a t

' ' common' la w , e s p e c i a l 1 y ' i n r e s p e c t : o f t h e a c c e s s o r y b e f o r e t h e .............................f a c t t o f e l o n y : s e e p . 3 4 O f f ,

250

s u f f i c i e n t t o o v e r c o m e t h e p r o b le m o f t h e a c c e s s o r y ' s d e r i v a t i v e s t a t u s .I n o t h e r w o r d s , t h e y w e r e c o n c e r n e d t o p r o p o u n d t h e v i e w t h a t n o t w i t h ­s t a n d i n g t h a t a p e r s o n c a n n o t n o r m a l ly b eco m e an a c c e s s o r y , w h e r e h i s a l l e g e d p r i n c i p a l w a s w i t h o u t m ens r e a , a s p e c i f i c e x c e p t i o n t o t h i s r u l e e x i s t s i n r e s p e c t o f a l l e g e d a c c e s s o r i e s w ho a r e in c o n c e r t .T h is w o u ld r e p r e s e n t a s u r p r i s i n g l y a r b i t r a r y d i s t i n c t i o n b e t w e e n d i f f e r e n t t y p e s o f a c c e s s o r i a l p a r t i c i p a t i o n .

T h e s e c o n d i s s u e r a i s e d b y t h e d e c i s i o n i s t h u s : w h y , w h e r et h e d e f e n d a n t i s i n a g r e e m e n t w i t h an in s a n e p e r s o n , s h o u ld t h i sc o n c e r t d o c t r i n e a p p ly i n l i e u o f t h e d o c t r i n e o f i n n o c e n t a g e n c y ? C o n c e r t ,a s i t h a s j u s t b e e n n o t e d , i s an a r b i t r a r y b a s i s f o r c l a s s i f y i n g andd i s c r i m i n a t i n g b e tw e e n t h o s e who p a r t i c i p a t e i n a n o t h e r ' s c r im e ( o ra s h e r e , a n o t h e r ' s c r i m i n a l a c t ) . A p e r s o n i s n o t n e c e s s a r i l y t h e l e s sp o t e n t i a l l y h a r m f u l , o r c u l p a b l e , w h e r e h e i n s t i g a t e s , e n c o u r a g e s o ra s s i s t s a n o t h e r t o p r o d u c e a p r o h i b i t e d h arm , s im p ly b e c a u s e h e h a s n o ta g r e e d w i t h t h e l a t t e r u p on t h e p e r p e t r a t i o n o f t h i s h a rm . T h is b e in gs o , i t i s c u r i o u s t h a t t h e c o u r t s i n M a tu s e v ic h h a v e s e e n f i t t oc o n s t r u c t a t h e o r y o f l i a b i l i t y a r o u n d t h i s d i s t i n c t i o n . Of c o u r s e , i fa s i t h a p p e n s , a s e c o n d a r y p a r t i c i p a n t i n an in s a n e p e r s o n ' s c r i m i n a la c t c a n b e i n c r i m i n a t e d i n t h e c o r r e s p o n d in g c r im e b y r e s o r t t o t h ed o c t r i n e o f in n o c e n y a g e n c y , i n e v e r y s i t u a t i o n w h e r e h e w o u ld n o to t h e r w i s e b e i n c r i m i n a t e d p u r s u a n t to t h e c o n c e r t d o c t r i n e , b e c a u s e h ei s n o t a c t u a l l y i n c o n c e r t , n o i n j u s t i c e i s d o n e - th o u g h i n t h i sc a s e , i t w o u ld b e d i f f i c u l t t o s e e w h a l p u r p o s e t h e a p p r o v a l ( o rr e c o n f i r m a t i o n ) o f t h e c o n c e r t d o c t r i n e a t t h i s l a t e s t a g e , g i v e n t h a tt h e d o c t r i n e o f in n o c e n t a g e n c y h a d b e e n s e t t l e d i n a n u m ber o f c a s e sp r e v i o u s l y , w a s d e s ig n e d t o a c h i e v e . On t h e o t h e r h a n d , i f t h e c o u r t sh a d i n m ind t h a t t h e c o n c e r t d o c t r i n e wcJuld i n c r i m i n a t e t h e s a n ec o n f e d e r a t e , i n c i r c u m s t a n c e s w h e r e h e w o u ld n o t o t h e r w i s e b e i n c r i m i n a t e d( i . e . b y r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y ) , t h e n t h ela w h a s b e e n l e f t i n a r a t h e r p e c u l i a r p o s i t i o n - f o r t o r e i t e r a t e ,t h e f a c t o f c o n c e r t i s , i n w h a t a r e , d e f a c t o , c a s e s o f a c c e s s o r i a lp a r t i c i p a t i o n I n a n o t h e r ' s i n f l i c t i o n o f p r o h i b i t e d h a rm , an a r b i t r a r yd i s c r i m i n a n t b e tw e e n t h o s e who s h o u ld b e p e n a l i s e d an d t h o s e who o u g h t

A 2n o t t o b e . 42

4 2 . S e e th e d i s c u s s i o n i n L anham , " C o m p l ic i t y , C o n c e r t an d C o n s p ir a c y " ( 1 9 8 0 ) 4 C r im . LJ 27 6 a t 2 8 2 - 3

T h i r d l y , i t i s u n c l e a r a s t o w h e th e r t h e c o n c e r t d o c t r i n e m a y ’ b e e x t e n d e d t o s i t u a t i o n s i n v o l v i n g an a g r e e m e n t w i t h t h e p e r p e t r a t o r o f a c r i m i n a l a c t , who d o e s n o t h a v e th e m e n ta l e le m e n t f o r t h e c o r r e s p o n d i n g c r im e , f o r a r e a s o n o t h e r th a n i n s a n i t y ( f o r e x a m p le , h e may l a c k t h e c o m p r e h e n s iv e k n o w le d g e o f t h e e s s e n t i a l e l e m e n t s o f t h e c o r r e s p o n d i n g o f f e n c e r e q u ir e d b y i t s d e f i n i t i o n ) . I f i t may b e t h u s e x t e n d e d , d o e s i t d i s p l a c e t h e o p e r a t i o n o f t h e d o c t r i n e o f in n o c e n t a g e n c y i n c o n c e r t s i t u a t i o n s , o r m e r e ly o p e r a t e a s an ( o p t i o n a l ) a l t e r ­n a t i v e a s i s o f l i a b i l i t y ?

( 2 ) W here t h e P e r p e t r a t o r i s R e l i e v e d o f L i a b i l i t y b e c a u s eo f t h e O p e r a t io n o f a L e g a l D e f e n c e w h ic h i s P e r s o n a l t o h im

I t may b e t h a t t h e p e r p e t r a t o r in t h e t y p e o f s i t u a t i o n u n d e r d i s c u s s i o n , h a s d e f a c t o t h e m e n t a l e le m e n t a p p ly in g t o t h e s u b j e c t c r im e , i n t h a t h e h a s t h e e le m e n t o f i n t e n t i o n a n d /o r k n o w le d g e r e q u ir e d o f t h e c r im e , b u t i s r e l i e v e d o f l i a b i l i t y f o r i t b e c a u s e h e i s a b l et o r e s o r t t o o n e o f t h e l e g a l d e f e n c e s , su c h a s y o u t h , d u r e s s , s e l f - d e f e n c e , p r o v o c a t i o n , o r d im i n i s h e d r e s p o n s i b i l i t y ( w h ic h l a t t e r tw o a p p ly to m u rd er o n l y ) . I n s u c h a c a s e t h e r e may be som e u n c e r t a i n t y , i n t h e c o n c e p t u a l s e n s e , a s t o w h e t h e r o r n o t h e may b e r e g a r d e d a sp o s s e s s i n g m ens r e a . I f t h e v i e w i s ta k e n t h a t o n e o f t h e r e s u l t s o f h i s s a t i s f y i n g a g i v e n d e f e n c e i s t h a t h e i s t o b e r e g a r d e d a s h a v in g a c t e d w i t h o u t me n s r e a , t h e n t h e s e c o n d a r y p a r t i c i p a n t i n h i s a c t ca n b e i n c r i m i n a t e d p u r s u a n t t o t h e p r i n c i p l e s n o t e d u n d e r t h e p r o c e e d i n g h e a d in g . C o n v e r s e l y , i f i t i s c o n s i d e r e d t h a t t h e a p p l i c a t i o n o f t h e d e f e n c e d o e s n o t i n v o l v e t h a t t h e p e r p e t r a t o r w a s w i t h o u t m ens r e a t h e n t h e v i e w may b e t a k e n t h a t t h i s p a r t y d id a c t u a l l y com m it an o f f e n c e ( i . e . t h a t h e p e r p e t r a t e d i t s p h y s i c a l e l e m e n t s w h i l e p o s s e s s i n g t h e p r e s c r i b e d m e n t a l e l e m e n t ) , i n w h ic h c a s e t h e f a c t t h a t h e i s r e l i e v e d o f t h e c o n s e q u e n c e o f c o n v i c t i o n b y v i r t u e o f a l e g a l d e f e n c e , s h o u ld n o t i n v o l v e t h a t an a c c e s s o r y w ho i s n o t t h u s r e l i e v e d ( i n t h a t h e c a n n o t s a t i s f y t h e s a m e , o r any o t h e r l e g a l d e f e n c e ) , s h o u ld n o t b e c o n v i c t e d , q u a a c c e s s o r y . F o r i n t h i s t y p e o f c a s e , i t c a n n o t b e s a i d t h a t n o o f f e n c e h a s b e e n c o m m it te d . T h is l a t t e r b a s i s o f a c c e s s o r i a l l i a b i l i t y i s d i s c u s s e d u n d e r t h e n e x t h e a d i n g .

( 3 ) W here t h e P e r p e t r a t o r i s A b s o lv e d from C r im in a lL i a b i l i t y f o r a R e a so n O th e r t h an a L ack o f M ens R ea

W here a p e r s o n c o m m its t h e a c t u s r e u s o f a c r im e w i t h t h e p r e s c r i b e d me n s r e a , b u t i s r e l i e v e d o f c r im i n a l l i a b i l i t y

because o f some further circumstance, ' i t would be

s e n s i b l e t o s u p p o s e t h a t a d e f e n d a n t who i n s t i g a t e s , e n c o u r a g e s o r a s s i s t s h im t o do t h i s n o n e t h e l e s s i n c u r s l i a b i l i t y a s an a c c e s s o r y .T h is w o u ld b e u p on t h e b a s i s t h a t , a s h a s j u s t b e e n n o t e d , t h e p e r p e t r a t o r d o e s in fa c t : com m it a c r im e , e v e n a s h e i s p r o t e c t e d fr o m c o n v i c t i o n f o r t h i s . C e r t a i n l y t h e r e w o u ld seem to b e no p r o s p e c t o f i n c r i m i n a t i n g t h e s e c o n d a r y p a r t i c i p a n t i n t h i s c r im e a s a c o n s t r u c t i v e p r i n c i p a l b y r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y , g i v e n t h a t t h e p e r p e t r a t o r i s n o t i n n o c e n t .

T h is a n a l y s i s w a s a d h e r e d t o b y t h e E n g l i s h C o u r t o f C r im in a l4 AA p p e a l i n B o u r n e (1 9 5 2 )> w h ic h d e c i s i o n h a s n o t e s c a p e d c r i t i c i s m . T he

a p p e l l a n t h a d b e e n c o n v i c t e d o f a i d i n g and a b e t t i n g h i s w i f e t o com m itan u n n a t u r a l o f f e n c e w i t h a d o g . S h e w a s fo u n d b y t h e j u r y t o h a v eb e e n c o m p e l le d t o do t h i s i n c i r c u m s t a n c e s w h ic h w e r e s u c h , t h e C o u r to f C r im in a l A p p e a l c o n s i d e r e d , t h a t h ad s h e b e e n p r o s e c u t e d f o r t h eo f f e n c e a s a p r i n c i p a l s h e w o u ld h a v e b e e n a b l e t o a v a i l h e r s e l f o ft h e d e f e n c e o f d u r e s s . I t h ad b e e n o b j e c t e d b y t h e a p p e l l a n t ’ s c o u n s e lt h a t i n v i e w o f t h e e le m e n t o f d u r e s s h i s w i f e h ad n o t i n e f f e c tc o m m itte d an o f f e n c e , s o t h a t h e c o u ld n o t h a v e b ec o m e an a c c e s s o r y ,i t b e in g i m p o s s i b l e t o a i d an d a b e t a n o n - e x i s t e n t o f f e n c e . T heC o u r t o f C r im in a l A p p e a l r e j e c t e d t h i s a rg u m en t on t h e b a s i s t h a t s h ew as t o b e v ie w e d a s h a v in g c o m m itte d t h e o f f e n c e , e v e n th o u g h s h e w ass u b s e q u e n t l y e n t i t l e d t o b e e x c u s e d from c o n v i c t i o n b e c a u s e o f t h e

45d u r e s s .

G l a n v i l l e W i l l ia m s h a s c r i t i c i s e d t h e d e c i s i o n , t a k i n g t h e v ie w t h a t s h e s im p ly h a d n o t c o m m itte d t h e o f f e n c e , b e c a u s e o f t h e e le m e n t o f d u r e s s ; and h e s u g g e s t e d i n h i s C r im in a l Law - T he G e n e r a l P a r t t h a t t h e h u sb a n d s h o u ld t h e r e f o r e h a v e b e e n c o n v i c t e d a s a c o n s t r u c t i v e p r i n c i p a l , b y r e s o r t t o t h e d o c t r i n e o f in n o c e n t a g e n c y 43 44 45

4 3 . A g o o d i l l u s t r a t i o n o f a c ir c u m s t a n c e o f t h i s t y p e w o u ld b e t h e f a c t o f d i p l o m a t i c s t a t u s (w h ic h w o u ld p e r m it t h e p e r p e t r a t o r t o r e l y u p on t h e p r o c e d u r a l d e f e n c e o f d i p l o m a t i c im m u n it y ) , o r t h a t h e h a d b e e n f r i e d i n r e s p e c t o f t h e sam e a c t p r e v i o u s l y an d a v e r d i c t r e c o r d e d ( t h u s p e r m i t t i n g h im t o p le a d a u t r e f o i s a c q u i t / c o n v ic t ^ ) ,

4 4 . (1 9 5 2 .) 36 C rim A pp. R 1 2 5 -4 5 . I d - a t 1 2 8 - " A ssu m in g t h a t s h e c o u ld h a v e s e t up d u r e s s , w h a t d o e s

t h a t m ean? I t m ean s t h a t s h e a d m its t h a t s h e h a s c o m m itte d t h e c r im e b u t p r a y s t o b e e x c u s e d from p u n is h m e n t b y r e a s o n o f t h e d u r e s s ."

( a s t o w h ic h , s e e a b o v e ) . On a l a t e r o c c a s i o n h o w e v e r , h e com m en ted t h a t t h e d o c t r i n e o f in n o c e n t a g e n c y i t s e l f , w a s an i n e l e g a n t s o l u t i o n :

T he d o c t r i n e o f in n o c e n t a g e n c y i n v o l v e s c o n v i c t i n g t h ed e f e n d a n t a s a p e r p e t r a t o r , and t h i s lo o k s w ro n g w h e r et h e c r im e r e f e r s t o p e r s o n a l b o d i l y b e h a v io u r t h a t h a sn o t t a k e n p l a c e . I t w as n o t s u g g e s t e d in B o u r n e t h a t t h eh u sb a n d w a s g u i l t y o f b e s t i a l i t y , th r o u g h h i s w i f e : i tw o u ld b e a g r o s s f i c t i o n t o s a y t h a t h e c o m m itte d t h e

47c r im e t h r o u g h h e r b o d y .

To e x t e n d t h e d o c t r i n e o f in n o c e n t a g e n c y t o s i t u a t i o n s l i k e t h i s d o e s , i t w a s n o t e d a b o v e , e m p h a s is e i t s f i c t i o n a l n a t u r e . B u t i n t h e a b s e n c e o f an a l t e r n a t i v e d o c t r i n e , o r l e g i s l a t i v e m o d i f i c a t i o n o f t h e d e r i v a t i v e s t a t u s o f a c c e s o r i a l l i a b i l i t y , i t s e x t e n s i o n i s , p e r h a p s , i n e v i t a b l e .

46

(B ) CAN THE ACCESSORY BE GUILTY OF A MORE SERIOUS ORIME THAN THE P R I C I P A L ? _________________ _ _____

G iv e n t h a t t h e a c c e s s o r y ’ s l i a b i l i t y i s d e r i v a t i v e , i t . w o u ldb e l o g i c a l t o c o n c lu d e t h a t t h e p e r s o n who i n s t i g a t e s , e n c o u r a g e so r a s s i s t s a n o t h e r t o p e r p e t r a t e a c r im i n a l a c t c a n n o t b e g u i l t yo f a m ore s e r i o u s c r im e t h a n t h e p e r p e t r a t o r , i n t h e s i t u a t i o n w h e r et h i s a c t i s o t h e r w i s e c a p a b le o f g r o u n d in g l i a b i l i t y f o r tw o o rm ore c r i m i n a l o f f e n c e s o f d i f f e r i n g g r a v i t y , a c c o r d in g t o t h e m e n ta ls t a t e w i t h w h ic h i t i s d o n e . T h e r e h a v e , h o w e v e r , b e e n s u g g e s t i o n st o t h e c o n t r a r y . H a w k in s c o n s i d e r e d t h a t w h e r e t h e p e r p e t r a t o r o f anu n la w f u l b lo w w h ic h h a s k i l l e d a n o t h e r , la c k e d t h e m e n t a l e le m e n tf o r m u r d e r , an d t h u s in c u r r e d l i a b i l i t y f o r m a n s la u g h t e r o n l y , ap e r s o n who a id e d an d a b e t t e d h im i n t h i s b lo w an d who h a d t h e m e n ta l

4 8e le m e n t f o r m u r d e r , c o u ld b e c o n v i c t e d o f t h i s l a t t e r c r im e . B u t 46 47 48

4 6 . CLGP a t p . 3 8 9 .4 7 . W i l l i a m s , "The E x t e n s i o n o f C o m p lic i t y " ( 1 9 7 5 ) 34 C a m b r id g e LJ

1.82 a t 1 8 4 . And s e e J . C. S m i t h ’ s com m ent i n " A id , A b e t , C o u n s e l o r P r o c u r e " I n G la z e b r o o k ( e d ) . p , 120 a t p . 1 3 5 .

4 8 . H a w k in s 2 PC c . 2 9 s . 7 : l i k e w i s e s e e H a le 1 PC 3 7 8 - 9 : an d s e e t h e d i s c u s s i o n i n J .C . S m ith " A id , A b e t , C o u n s e l o r P r o c u r e " i d . a t p . 1 2 8 W i l l i a m s , TCL a t p . 3 2 2 .

254

H a w k in s w a s a l s o o f t h e v i e w t h a t an a c c e s s o r y b e f o r e t h e f a c t ( o r i nm od ern t e r m s , t h e a b s e n t a c c e s s o r y ) a s d i s t i n c t fro m a p r i n c i p a l int h e s e c o n d d e g r e e , c o u ld n o t b e c o n v i c t e d o f a m ore s e r i o u s c r im e th a n

49t h e p r i n c i p a l i n t h e f i r s t d e g r e e . G la n v iL le W i l l ia m s c o n s i d e r s t h a t a s e c o n d a r y p a r t y s h o u ld b e a b l e t o b e c o n v i c t e d o f a m ore s e r i o u s c r im e th a n t h e p r i n c i p a l o f f e n d e r : " I f a p e r s o n ca n a c t t h r o u g h a c o m p l e t e ly in n o c e n t a g e n t , t h e r e i s n o r e a s o n why h e s h o u ld n o t a c t th r o u g h a s e m i - i n n o c e n t a g e n t . I t i s w h o l ly u n r e a s o n a b l e t h a t t h e

50p a r t i a l g u i l t o f t h e a g e n t s h o u ld o p e r a t e a s a d e f e n c e t o t h e i n s t i g a t o r . . . "

P o l i c y r e a s o n s may in d e e d s u p p o r t t h e i n c r i m i n a t i o n o f t h e s e c o n d a r ' p a r t y a t a h i g h e r l e v e l , w h e r e h e p o s s e s e s t h e m e n t a l e le m e n t a p p r o p r i a t e t o a m ore s e r i o u s c r im e , v i s - a - v i s t h e p e r p e t r a t o r . F o r e x a m p le , A a s k s B t o a d m i n i s t e r a c h e m ic a l t o V i n t h e l a t t e r ’ s d r in k , t e l l i n g B t h a t t h e c h e m ic a l w i l l c a u s e d i a r r h o e a , and t h a t i t w i l l b e fu n t o w a tc h t h e r e s u l t s ; unknow n t o B , h o w e v e r , b u t know n t o A , t h e s u b s t a n c e i s a d e a d ly p o i s o n , an d i t s a d m i n i s t r a t i o n c a u s e s V ’ s im m e d ia te d e a t h . C l e a r l y B ' s l i a b i l i t y c o u ld n o t e x c e e d m a n s la u g h t e r ; on t h e o t h e r h a n d , A s h o u ld p r o p e r l y b e c o n v i c t e d o f m u r d e r . B u t c o n s i d e r a n o t h e r e x a m p le : A h i r e s B , w ho i s a ch a m p io n b o x e r , t o pum m el Vw i t h su c h f o r c e t h a t h e w i l l s u f f e r s e r i o u s b o d i l y h a rm . B , h o w e v e r , g o e s up t o V , h i t s h im on t h e arm w i t h m o d e r a te f o r c e , an d r u n s

o f f . R i n c u r s l i a b i l i t y f o r a common a s s a u l t o n l y . S h o u ld A be

c o n v i c t e d o f b e in g an a c c e s s o r y t o an a s s a u l t w i t h i n t e n t t o i n f l i c t g r i e v o u s b o d i l y harm ? S u ch a r e s u l t w o u ld b e m ore a r g u a b l e . W h ile i t may b e p r o p e r t h a t t h e p e r s o n w ho i n s t i g a t e s , e n c o u r a g e s o r a s s i s t s a n o t h e r t o com m it a c r i m i n a l a c t u s r e u s , o r d i n a r i l y o u g h t t o b e a b l e t o b e c o n v i c t e d o f a m ore s e r i o u s o f f e n c e t h a n t h e p e r p e t r a t o r , b e c a u s e o f h i s d i f f e r e n t m e n t a l e l e m e n t , t h e s i t u a t i o n s h o u l d , i t i s c o n s i d e r e d , d i f f e r w h e r e t h e p e r p e t r a t o r d e l i b e r a t e l y c h a n g e s h i s m in d and c o m m its a l e s s e r o f f e n c e , e v e n th o u g h t h e a c t p e r fo r m e d b y h im i s c a p a b l e , w hen c o u p le d w i t h a d i f f e r e n t m e n ta l e l e m e n t , o f g r o u n d in g l i a b i l i t y f o r t h e m ore s e r i o u s o f f e n c e i n t h e s e c o n d a r y p a r t i c i p a n t ' s c o n t e m p l a t i o n . 49 50

4 9 . H a w k in s , 2 PC c . 29 s ,1 5< .5 0 . TCL a t p . 323-

T h e Mew Z e a la n d C o u r t o f A p p e a l , a d h e r in g t o t h e o r t h o d o x v ie wt h a t a s t h e l i a b i l i t y o f t h e a c c e s s o r y i s d e r i v a t i v e , t h i s p a r t y c a n n o tin c u r a g r e a t e r l i a b i l i t y th a n t h e p e r p e t r a t o r , h a s s a i d o b i t e r on tw oo c c a s i o n s t h a t t h e a c c e s s o r y c a n n o t b e c o n v i c t e d o f a m ore s e r i o u s c r im e

51th a n h i s p r i n c i p a l . T h ou gh t h e s e c a s e s d e a l t w i t h t h e s t a t u t o r y d o c t r i n e o f c o m p l i c i t y i n t h e New Z e a la n d C r im es A c t , 1 9 6 1 , i t i s c o n s i d e r e d t h a t t h e s e com m en ts w e r e c l e a r l y i n s p i r e d b y w h a t w as c o n c e i v e d t o b e a common la w r u l e . ( I n p a r t i c u l a r , t h e c o u r t s d id n o t s e e k t o j u s t i f y t h i s c o n c l u s i o n b y r e f e r r i n g p a r t i c u l a r l y t o t h e s t r u c t u r e o r w o r d in g o f t h e s e p r o v i s i o n s * )

C o n v e r s e l y , t h e S u p rem e C o u r t o f C anada d e c id e d i n R e m i l la r dv . R ( 1 9 2 1 ; t h a t a s e c o n d a r y p a r t i c i p a n t i n c r im e c o u ld b e c o n v i c t e d o fa m ore s e r i o u s c r im e th a n t h e p e r p e t r a t o r , l i a b i l i t y i n e a c h c a s e b e in ge s t a b l i s h e d p u r s u a n t t o o n e o f t h e m a jo r c o m p l i c i t y p r o v i s i o n s u n d e rt h e C a n a d ia n C r im in a l C o d e , 1 9 0 6 ( i . e . s . 6 9 ( l ) ) . A n g l in J a p p e a r e d t oa ssu m e t h a t t h i s s i t u a t i o n w o u ld o b t a i n a t common la w a s w e l l a s u n d e r

53t h e Code* M ig n a u l t J on t h e o t h e r h a n d , b a s e d h i s s i m i l a r c o n c l u s i o n54u p on t h e w o r d in g o f t h e C ode i t s e l f . T h is d e c i s i o n i s f u r t h e r

55d i s c u s s e d b e lo w .

T h e E n g l i s h C o u r t o f A p p e a l h a s r e c e n t l y c o n s i d e r e d t h e i s s u e56i n i t s d e c i s i o n i n R ic h a r d s ( 1 9 7 4 ) , th o u g h i t w a s n o t t h o r o u g h l y a n a ly s e d

on t h i s o c c a s i o n . T he a p p e l l a n t h a d u r g e d tw o men t o a s s a u l t h e r h u sb a n d w i t h s u c h a d e g r e e o f v i o l e n c e t h a t h e w o u ld " p u t . . . i n h o s p i t a l f o r a m o n th " . T he m en , h o w e v e r , w e r e c o n t e n t t o i n f l i c t a 51 52 53 54 55 56

5 1 . " O b v io u s ly t h e a c c e s s o r y c o u ld n o t b e g u i l t y o f a g r e a t e r c r im e th a n t h a t c o m m itte d b y t h e p r i n c i p a l o f f e n d e r " - H a r t l e y [ 1 9 7 8 ] 2 NZLR 199 a t 2 0 3 ; an d s e e L e w is [1 9 7 5 ] 1 NZLR 2 2 .

S e e b e lo w a t p .2 b 4 f o r a d i s c u s s i o n o f t h i s i s s u e d i r e c t e d s p e c i f i c a l l y t o t h e c o m p l i c i t y p r o v i s i o n s u n d e r t h e A u s t r a l i a n C o d e s , w h ic h a r e s i m i l a r i n p a r t t o t h o s e i n t h e New Z e a la n d C r im e s A c t , 1 9 6 1 .

5 2 . ( 1 9 2 1 ) 59 DLR 3 4 0 .

5 3 . I d . a t 3 4 3 - 3 4 4 , c i t i n g H a w k in s PC, 8 e d . V o l . I I a t p .4 3 9 .

5 4 . I_d- a t 3 4 9 - 5 0 .

5 5 . At p . 2u 5 b e lo w .5 6 . [1 9 7 4 ] 1 9B 7 7 6 .......................................................................................................................................

r e l a t i v e l y m in o r l a c e r a t i o n . I n c o n v i c t i n g th em o f an o f f e n c e o f u n la w f u l w o u n d in g o n l y , t h e j u r y to o k t h e v ie w t h a t t h e y d id n o t in t e n dt h a t g r i e v o u s b o d i l y harm s h o u ld b e i n f l i c t e d . T he a p p e l l a n t , h o w e v e r ,w a s c o n v i c t e d ( a s an a c c e s s o r y ) o f w o u n d in g w i t h i n t e n t t o i n f l i c tg r i e v o u s b o d i l y h arm .

T he c o u r t d e c id e d t h a t t h i s c o n v i c t i o n c o u ld n o t s t a n d , and s u b s t i t u t e d a v e r d i c t f o r t h e l e s s e r a s s a u l t . T he c o u r t r e f e r r e d t o t h e v ie w e n u n c ia t e d b y H a w k in s , t h a t w h i l e an a b e t t o r ( i n t h e s e n s e o f an a c c e s s o r y p r e s e n t a t t h e c o m m is s io n o f t h e c r im e ) c o u ld b e c o n v i c t e d o f a m ore s e r i o u s c r im e th a n t h e p r i n c i p a l ' s , an a c c e s s o r y b e f o r e t h e f a c t c o u ld n o t b e , an d s a i d f u r t h e r , ^

L o o k in g a t t h e f a c t s o f t h i s c a s e t h e a c t s w e r e p e r p e t r a t e d a t som e d i s t a n c e fr o m w h e r e t h e a p p e l l a n t w a s . S h e w a s n o t t r u l y i n a p o s i t i o n w h ic h w o u ld e a r l i e r h a v e b e e n d e s c r i b e d a s an a b e t t o r o f t h o s e w ho d id t h e a c t s . T h e r e i s p r o v e d on t h e e v i d e n c e i n t h i s c a s e o n e o f f e n c e an d o n e o f f e n c e o n l y , n a m e ly t h e o f f e n c e o f u n la w f u l w o u n d in g w i t h o u t t h e e le m e n t o f s p e c i f i c i n t e n t . We do n o t t h i n k i t r i g h t t h a t o n e c o u ld s a y t h a t t h a t w h ic h w a s d o n e c a n b e s a i d t o b e d o n e w i t h t h e i n t e n t i o n o f t h e d e f e n d a n t who w a s n o t p r e s e n t a t t h e t im e an d w h o se i n t e n t i o n d id n o t g o t o t h e o f f e n c e w h ic h w a s i n f a c t c o m m it t e d . T h a t i s t h e s h o r t p o i n t i n t h i s c a s e a s we s e e i t . I f t h e r e i s o n ly o n e o f f e n c e c o m m it t e d , and t h a t i s t h e o f f e n c e o f u n la w f u l w o u n d in g , t h e n t h e p e r s o n who h a s r e q u e s t e d t h a t o f f e n c e t o b e c o m m it t e d , c a n n o t b e g u i l t y o f a g r a v e r o f f e n c e th a n t h a t i n f a c t w h ic h w a s c o m m it te d ( 5 7 ) .

What w a s t h e t r u e b a s i s o f t h e c o u r t ' s d e c i s i o n ? A lth o u g h t h e c o u r t i d e n t i f i e d t h e a p p e l l a n t a s b e in g a b s e n t fr o m t h e c r im e , an d t h u s n o t an " a b e t t o r " i n te r m s o f H a w k in s ' f o r m u l a t i o n , i t s e e m s u n l i k e l y t h a t t h e c o u r t r e a l l y i n t e n d e d to e n d o r s e H a w k in s ' e s s e n t i a l l y n o n s e n s i c a l d i s t i n c t i o n , b e tw e e n a c c e s s o r i e s p r e s e n t a t t h e c r im e (w ho c o u ld i n c u r g r e a t e r l i a b i l i t y ) an d t h o s e a b s e n t fr o m i t (w ho c o u ld n o t ) . R a t h e r , i t w o u ld se e m t o b e r e f e r r e d t o by way o f i n c i d e n t a l s u p p o r t m e r e ly . I f t h i s i s s o , t h e n t h e e s s e n t i a l b a s i s o f t h e c o u r t ' s d e t e r ­m in a t io n m u st b e s o u g h t e l s e w h e r e . I t d o e s n o t e m e r g e v e r y c l e a r l y i n t h i s p a s s a g e . Tt i s t r u e t h a t ( a s t h e j u r y f o u n d ) , t h e p e r p e t r a t o r s m ean t t o com m it o n l y a l e s s e r a s s a u l t , i . e . t h a t t h e a s s a u l t a c t u a l l y d o n e c o n s i s t e d i n t h e p h y s i c a l and m e n t a l e L e m e n ts a p p r o p r i a t e . t o th e . l e s s e r a s s a u l t , b u t t o s o o b s e r v e d o e s n o t o b v i o u s l y a n s w e r t h e c a s e 57

256

57. Id. at 780.

>7

a g a i n s t t h e a p p e l l a n t , f o r c l e a r l y s h e h ad t h e m e n t a l e le m e n t a p p r o p r i a t et o t h e m ore s e r i o u s a s s a u l t . I f a n y t h in g , t h e c o u r t ’ s r e a s o n in g i s s u g g e s t i v eof the analysis associated with the derivative liability principle,viz$ that thea c c e s s o i / c a n n o t b e c o n v i c t e d o f a m ore s e r i o u s o f f e n c e , b e c a u s e h i sl i a b i l i t y d e r i v e s fro m t h a t o f t h e p r i n c i p a l . C e r t a i n l y i t s r e a s o n in gi s i n su c h te r m s t h a t i t w o u ld g i v e e f f e c t , de f a c t o , t o t h i sp r i n c i p l e i n c a s e s o f t h i s t y p e .

T h e d e c i s i o n i n R ic h a r d s h a s b e e n c r i t i c i s e d . P r o f e s s o rJ . C. S m ith f o r e x a m p le c o n s i d e r s i t t o b e a p o o r o n e on p o l i c y g r o u n d s ;an d h e m ak es t h e f u r t h e r ( t e c h n i c a l ) p o i n t t h a t i n E n g la n d a t t h i st im e " i t i s t h e la w o f p r i n c i p a l s , n o t t h e la w o f a c c e s s o r i e s , w h ic hi s now a p p l i c a b l e t o a l l s e c o n d a r y p a r t i c i p a n t s " , i . e . b y i m p l i c a t i o nt h e i d e a , t h a t a c c e s s o r i a l l i a b i l i t y i s d e r i v a t i v e , i s n o l o n g e ra p p l i c a b l e i n E n g l a n d . T h i s l a t t e r p o i n t m ay , h o w e v e r , b e c o u n t e r e dw i t h t h e a r g u m e n t t h a t t h e l e g i s l a t i v e c h a n g e s w h ic h h a v e a f f e c t e d t h ela w o f c o m p l i c i t y h a v e d o n e n o m ore th a n t o e f f e c t a m e r g e r o f t h es e v e r a l c a t e g o r i e s o f c r i m i n a l p a r t i c i p a t i o n ( i n t o t h e o n e c a t e o g r yo f p r i n c i p a l o f f e n d e r ) f o r p r o c e d u r a l p u r p o s e s o n l y , an d n o t f o r s u b s t a n t i v e

59p u r p o s e s . G l a n v i l l e W i l l ia m s c r i t i c i s e d t h e d e c i s i o n a s u n so u n du p on t h e b a s i s , i n t e r a l i a , t h a t t h e p e r p e t r a t o r s w e r e " s e m i - i n n o c e n ta g e n t [ s ] " , s a y i n g ( t o r e p e a t ) t h a t " i f a p e r s o n c a n a c t t h r o u g h ac o m p l e t e ly in n o c e n t a g e n t , t h e r e i s no r e a s o n why h e s h o u ld n o t a c t

60t h r o u g h a s e m i - i n n o c e n t a g e n t . " B u t i t i s s u r e l y u n r e a l i s t i c t o v ie w t h e a c t u a l a s s a i l a n t s i n R ic h a r d s a s " s e m i - i n n o c e n t " a g e n t s .R a t h e r , g i v e n t h e te r m s o f t h e j u r y ’ s f i n d i n g s on t h i s o c c a s i o n , t h e y w o u ld a p p e a r t o h a v e a g r e e d w i t h R t o b r in g t o b e a r s u c h a l e v e l o f v i o l e n c e u p on h e r h u s b a n d a s t o g r o u n d l i a b i l i t y f o r w o u n d in g w i t h i n t e n t , an d y e t t o h a v e c h a n g e d t h e i r m in d s s u b s e q u e n t l y an d r e s o l v e d t o com m it o n l y t h e l e s s e r a s s a u l t . ( I t c a n n o t b e a r g u e d t h a t t h e y d id s e e k t o i n f l i c t g r i e v o u s b o d i l y h a rm , b u t f a i l e d , o w in g t o t h e i r own in c o m p e t e n c e . I f t h i s w e r e s o , t h e n t h e y s h o u ld n o n e t h e l e s s h a v e b e e n c o n v i c t e d o f w o u n d in g w i t h i n t e n t * ) 58 59 60

5 8 . J . C. S m ith " A id , A b e t , C o u n s e l o r P r o c u r e " , i n G la z e b r o o k ( e d ) p . .120 a t p p . 1 2 9 - 3 0 .

5 9 . S e e p p , 2 5 f T . , 3 4 4 ^ .6 0 . TCL a t p . 3 2 3 .

2 58

I t i s c o n s i d e r e d t h a t i t i s a n o m a lo u s , fr o m a p o l i c y v i e w p o in t ^ t h a t t h e p e r s o n who i n s t i g a t e s , e n c o u r a g e s o r a s s i s t s a n o t h e r t o com m it a c r i m i n a l a c t , an d who p o s s e s s e s t h e m e n ta l e le m e n t a p p r o p r i a t e t o a m ore s e r i o u s c r im e , s h o u ld e s c a p e c o n v i c t i o n f o r t h i s c r im e , s im p ly b e c a u s e t h e p e r p e t r a t o r o n l y h ad t h e m e n t a l e le m e n t a p p r o p r i a t e t o a l e s s e r c r im es h a r i n g lie sam e a c t u s r e u s - t h o u g h t t e c h n i c a l l y , i t i s p r o b a b ly t r u e t o------ — ------ - )s a y t h a t t h e a c c e s s o r y c a n n o t in c u r t h i s g r e a t e r l i a b i l i t y . S h o u ld l e g i s l a t i v e p r o v i s i o n b e m ade s o a s t o o v e r c o m e t h i s a n o m a ly , h o w e v e r , i t i s s u g g e s t e d t h a t i t o u g h t t o b e q u a l i f i e d i n a t l e a s t o n e w a y . T h is i s , t h a t t h e s e c o n d a r y p a r t y s h o u ld n o t b e l i a b l e f o r a m ore s e r i o u s c r im e w h e r e t h e p e r p e t r a t o r v o l u n t a r i l y c h a n g e s h i s m in d and d e t e r m i n e s i n s t e a d t o com m it a l e s s e r c r im e c o m p r e h e n d e d b y t h i s g r e a t e r o n e . I n s u c h a c a s e t h e a c c e s s o r y ' s l i a b i l i t y s h o u ld n o t e x c e e d t h a t o f t h e p r i n c i p a l . T he f a c t s i n R ic h a r d s w o u ld se e m t o com e u n d e r s u c h an e x c e p t i o n . I n s u c h a s i t u a t i o n i t w o u ld u s u a l l y ( th o u g h n o t a lw a y s ) b e t r u e , t h a t t h e p e r ­p e t r a t o r ' s a c t u a l c o n d u c t w i l l b e i n c a p a b le o f b r i n g i n g a b o u t t h e harm e i t h e r d e s i r e d o r ( a t l e a s t ) c o n t e m p la t e d b y t h e a c c e s s o r y .

(C) LIA BILITY OF THE ALLEGED SECONDARY PARTY WHERE THERE IS NO ACTUS REUS________________

On f i n a l m a t t e r r e l e v a n t t o t h e p r i n c i p l e , t h a t t h e a c c e s s o r y ’ s l i a b i l i t y i s d e r i v a t i v e , may b e n o t e d . I t may h a p p e n on r a r e o c c a s i o n s t h a t t h e d e f e n d a n t h a s i n s t i g a t e d ( o r e n c o u r a g e d o r a s s i s t e d ) a n o t h e r t o p e r p e t r a t e a p r o h i b i t e d h arm , b u t t h a t t h e a c t u s r e u s o f t h e c r im e w h ic h h ad b e e n c r e a t e d in o r d e r t o p r o h i b i t t h i s i n f l i c t i o n o f harm i s n o t c o m m itte d b y t h e o n l y p e r s o n o r p e r s o n s who a r e c a p a b le o f p a r t i c i p a t i o n a s a p r i n c i p a l o f f e n d e r . L o g i c a l l y su c h an o f f e n c e c a n o n l y b e c o m m itte d by a c e r t a i n c a t e g o r y o r c a t e g o r i e s o f p e r s o n , r a t h e r t h a n b y a n y o n e .H ere i t h a s b e e n h e l d t h a t t h e d e f e n d a n t d o e s n o t i n c u r c r i m i n a l l i a b i l i t y e i t h e r a s an a c c e s s o r y o r a s a c o n s t r u c t i v e p r i n c i p a l .

S u ch a s i t u a t i o n i s i l l u s t r a t e d i n t h e E n g l i s h d e c i s i o n o f 61M o r r is v . T o lm an ( 1 9 2 3 ) w h e r e t h e a p p e l l a n t h a d b e e n c o n v i c t e d o f

a i d i n g and a b e t t i n g t h e ow n er o f a v e h i c l e i n t h e o f f e n c e o f u s i n g a v e h i c l e f o r a p u r p o s e c o n t r a r y t o t h e te r m s o f t h e l i c e n c e i s s u e d i n r e s p e c t o f i t (w h ic h o f f e n c e w a s c r e a t e d b y t h e R o a d s A c t , 1 9 2 0 (U K ), s . 8 ) .In t h e v i e w o f t h e K in g ' s B e n c h D i v i s i o n a l C o u r t t h e t e r m s o f t h i s o f f e n c e w ere 61

6 1 . [ 1 9 2 3 ] 1 KB 16 6 .

such that only the registered owner of a car was capable of becoming a .6 2principal in its commission. ' But the owner of the subject vehicle was

acquitted of this offence, the evidence, having disclosed that he had givenpossession of the vehicle to the appellant in the contemplation that thelatter would use it in a lawful way only. Thus, the sole person capableof being an actual principal in this case did not commit an actus reus(nor for that matter, did he possess mens rea) . On this basis, Avory Jconsidered, the appellant could not become an accessory: & >« person cannot

6 3aid another in doing something which that other has not done”. And likewise, given the lack of an actus reus, he could not become a

64constructive principal in reliance upon the doctrine of innocent agency.

6 5The Australian High Court’s decision in Cain v. Doyle (1946) is to the same effect. The defendant, who was an employee of the Common­wealth, had been charged with being an accessory (pursuant to s.5 of the Commonwealth Crimes Act, 1908) to an offence allegedly committed by the Commonwealth, pursuant to s .18(1) of the Re-establishment and Employment Act, 1945, which penalised the employer who terminated the employment of an employee in prescribed circumstances. D, in his capacity as manager of a munitions factory conducted by the Commonwealth was alleged to have been a secondary participant in the illegal dismissal by the Crown, as employer, of a person employed in the factory. The High Court by majority, held that D could not be liable, in that no offencehad been committed, on the basis that the C;own in right of the Commonwealth

6 6could not be convicted of the offence under s.18 . (It may be that evenhad the Crown been capable of committing this offence, the defendant had not

6 7committed a sufficient act of complicity under s.5) 62 63 64 65 66 67

62. For example, _id. at 120 (Lord Hewart CJ)-63. Id. at 171 (Sankey J concurring); similarly see 169-170 (Lord Hewart CJ).64. See also the analogous case of Thornton v. Mitchell [1940] 1 All ER 339-65. (1946) 72 CLR 409.6 6. See id. at 418-9 (Latham CJ); 519 (Rich J.), 42-3, 46 (Dixon J).67. The point did not have to be decided by the majority, given their

reasoning, though Dixon CJ (Rich J concurring) was of the view that no sufficient act had been done (id. at 427). Starke J took a similar view (at 422); while Williams J., though taking the view that it was open to the magistrate to convict, felt that the point was arguable either way (at 434). Latham CJ did not express a view on this matter.

260

(D) CONCLUSIONThe derivative nature of accessorial liability produces the major

anomaly, that a defendant D cannot be convicted as an accessory where, for whatever reason, the perpetrator of the act of the subject crime lacks the mental element for this crime, notwithstanding that this first person otherwise qualifies as an accessory. This feature of the doctrine may, it has been seen, be considered in two principal standard fact situations: (1 ) ^here the perpetrator is without the mental element for any offence - here D cannot incur liability as an accessory to this offence. (This situation may be regarded as including that where the perpetrator does actually possess the intention and any relevant knowledge required by the definition of the subject offence, but is able to satisfy one of the legal defences, the effect of the operation of which is that in the formal, or conceptual sense, he is deemed to have mens rea). (2 ) Where the perpetrator- ——• ' r ■ yhas the mental element for a less serious offence, and D has the mental element appropriate to secondary participation in a more serious offence, sharing the same actus reus: here D can be convicted of the less serious offence, but not of the more serious one.

The coarts have not indicated how the problem detailed in (2) is to be overcome, but they have grappled with that in (1 ), by resort to the doctrine of innocent agency, and in, respect of insane perpetrators, the notion of concert. The effect of the first of these doctrines (and possibly the second), is that D, the de facto accessory, is classified as a constructive principal, so that the derivative status of accessoryship is no obstacle to his conviction. The doctrine of innocent agency, it has been seen, cannot be said to have been comprehensively defined by the courts and its limits established. It is unclear as to whether or not it may be applied in respect of subordinate acts of contribution to the perpetrator’s contribution of the criminal act (as distinct from acts of instigation).And (although this is a less decisive criticism), it has been suggested that it represents a distortion of this doctrine, for it to be applied so as to incriminate D as a constructive principal where the offence is so defined as to imply that it can only be committed by the actual perpetrator (as for example, when it is concerned with personal bodily behaviour).The concert doctrine approved in the two Matusevich decisions is likewise to be criticised: in particular, how wide is its ambit - may it be applied to concer" situations where the perpetrator lacks mens rea for a reasonother tha i insanity? And why was it necessary to evolve it, given the

existence of the doctrine of innocent agency? Is it a legal redundancy, or does it contract, or, alternatively, expand D’s liability in that situation where he is in concert with an insane perpetrator, vis-a-vis the ambit of liability which his conduct would otherwise attract pursuant to the doctrine of innocent agency?

Clearly, this whole are is ripe for legislative reform. What formshould such a provision take? Its form, if not substance, will obviouslybe influenced, inter alia, by whether the defendant in D’s position is conceivedto be a principal or an accessory. (It is assumed, for present purposes, thatthe law of complicity will continue to be constructed around the distinctionbetween principals and accesories, and that the liability of the latters e c o n d a r y o f f e n d e r w i l l a c c o r d i n g l y c o n t i n u e t o b e o f a d e r i v a t i v e s t a t u s , i nthe sense that he will be incriminated in a crime the actus reus of which

6 8was actually performed by another, and not by himself. ) Its substance, of course, will be determined by the precise extent of the liability which it is desired to impose upon D in the situation where the perpetrator lacks the mens rea for the subject crime.

The latter issue is fundamentally a policy issue. It is consideredt h a t w h e r e D o t h e r w i s e q u a l i f i e s a s an a c c e s s o r y , t h e n , s u b j e c t t o a m in o rqualification to be noted below, he should not escape liability solelybecause the perpetrator of the relevant criminal act does not possess themens rea appropriate only to a lesser crime sharing the same actus reus.The formulation of general principle in Smith and Hogan, Criminal Law,would go close to securing these results: "The true principle, it is suggestedis [or should be] that where the principal had caused an actus reus, theliability of each of the secondary parties should be assessed according to his

69own mens rea". The only outstanding question raised by this formulation is that of whether the principle ought to be confined to defendants who cause (i.e. instigate^the perpetrator to act. Glanville Williams has contended for a wider principle of liability:

The rule should be that where X would be guilty of an offence if it were not for lack of mens rea, or for personal incapacity, duress or other similar personal defence, D who incites or helps 68 69

6 8. See the discussion at p.460ff,69. Smith and Hogan at p. 134.

him with the requisite mens, _rea and not possessing the personal defence can be convicted as accessory, even to the non—crime. (70)

It was proposed in the Model Penal Code: Proposed Official Draft that a person should only be made criminally liable on account of secondary participation in the criminal act of an innocent or irresponsible person where he "causes" thisperson to act thus;^ and the British Law Commission has endorsed this approach

72in its Working Paper on Criminal complicity.

It is considered that such an inculpatory principle ought to extend to incriminate coequal and minor secondary participants in an innocent or irresponsible perpetrator's criminal act, to the same extent that such acts of incrimination would incriminate a party of this typo as an accessory to a responsible person's commission of the corresponding crime. There is no logical reason why it should be confined to acts of instigation (or causation). For example,if it is proper to incriminate a person as an accessory to a sane person's offence of murder, on the basis that he rendered the killer a subordinate act of assistance, then it would be equally apt to incriminate the person who knowingly assists an insane person to kill, or who knowingly assists an innocent person to poison a third (for example, D may be aware, as the perpetrator is not,that the drug which the latter proposes to admin­ister to a sick child is not a medicine, but a lethal poison which the perpetrator has selected by mistake).

What form then, should such a provision take? A preliminary issue, it has been suggested, is that of whether the person who knowingly instigates, encourages or assists an innocent or irresponsible person to commit a criminal act, is to be classified as a principal or an accessory. Where his role is that of an instigator, it is perhaps more natural to think of him as a constructive principal - though as noted, this classification can appear very contrived, where the offence is so defined as to imply that the offence can only be committed by the person who actually perpetrates its actus reus. And it could be argued strongly that the identification of the defendant who is incriminated pursuant to the doctrine of innocent agency as a constructive principal, was inspired solely by the conclusion that it was only by reclassifying

70.

71.72.

Glanville Williams, "The Extension of Complicity" (1975) 34 812 at 185.M odel P e n a l C o d e : P ro p o s e d Official draff* .06 ( 2 ) ( a ) .

Camb.LJ

I.e., Working Paper No.- 43 at p. -9f-f (Propositions 2 and 3).- (And see - the proposal of the South Australian Criminal Law Revision Committee in their Fourth Report - The Substantive Criminal Law (1977) at p.309.

263him as such that the problems inherent in the derivative status of accessorial liability could be overcome, rather than that he was in substance as well as in form, to be regarded as actually perpetrating the crime through a human '’instrument.'*

Moreover, it is to be observed that even under the present law, the person who is incriminated pursuant to the doctrine of innocent agency is, from the analytical standpoint, a de facto accessory who is distinguished from an actual accessory by virtue of an essentially extraneous matter, i.e., that his perpetrator lacks mens rea. This is more obviously true if it is accepted that the doctrine of innocent agency applies to defendants who participate in the innocent or irresponsible perpetration of the actus reus in a subordinate manner and not merely to those who Instigate this. Even if it is confined to the latter situation the defendant is nevertheless, a de facto accessory, though one of a certain type.

If, therefore, the law is to be modified by enactment, so as to make it clear that subordinate as well as major acts of knowing participation by D in another’s perpetration of a criminal act will incriminate D, not­withstanding that his perpetrator lacks the relevant mens rea, his position will, In fundamental terms, be indistinguishable from that of the conventional accessory. In both cases, their liability will have to be evaluated by reference to the matters which relate uniquely to accessorial participation. For where physical conduct is concerned, the focus of attention in both cases will need to be upon the act of secondary participation, and not simply (as in the case of the principal) upon the perpetration of the actus reus.And where the mental element is concerned, attention must be focussed upon the defendant’s comprehension of the nature of his act of complicity, as well as upon his knowledge or understanding of the nature and circum­stances of the perpetration of the actus reus.

It is concluded, therefore, that the inculpatory principle outlinedought not to be implemented in any codification of the law of complicity,which is built around the conventional dichotomy of primary and secondary

73participation, by extending the concept of principal to include types of participation which do not involve the defendant in the personal 73

73. I.e., in terms of principals, who personally perpetrate the physicalelements in the offence, and accessories who instigate, encourage or assist them to do this.

264

perpetration of the ac.tus reus. Rather, this principle should be introducedby way of qualification of the definition of accessorial participation. Thusthe primary definition of accessorial liability in such a code would berelied upon to define the physical and mental elements of liability as a#secondary participant not only in another's crime, but also, in another's criminal act, in the types of situation under discussion. A further specific provision would then be enacted to make good the inculpatory principle outlined. It could be in the terms suggested by Glanville Williams, viz, that a person shall not be relieved of accessorial liability soley upon the basis that the person who has perpetrated the physical elements in the crime for which the first person is sought to be made liable, lacked the mental element for this crime, or is otherwise relieved from criminal responsibility on account of a defence which is personal to him alone.

As it has been suggested, however, it may be that such a codeshould further provide that a person who otherwise qualifies as an accessoryto a more serious crime, should not be incriminated in this crime where theperson whom he has instigated, encouraged or assisted to commit this crime,subsequently resolves to commit a lesser crime sharing the same actus reus.In such a case, it was proposed, the first person should only become a

74party to this less serious crime.

(ii) THE PRINCIPLE OF DERIVATIVE RESPONSIBILITY AM) THE COlvlPLICITY IN AUSTRALIA AND NEW SKA LAND

STATUTORY DOCTRINES OF

The p r i n c i p a l p r o v i s i o n s r e l a t i n g to c o m p l i c i t y i n t h e A u s t r a l i a n C o d e s75an d i n t h e New Z e a la n d C r im e s A c t , 1 9 6 1 , a r e e i t h e r i d e n t i c a l , o r v e r y s i m i l a r *

I t h a s b e e n r e m a r k e d t h a t t h e s e Code d o c t r i n e s h a v e i n m o s t r e s p e c t s b e e n i n t e r p r e t e d i n s u c h a w ay a s to i n d i c a t e t h a t t h e y p r o v id e a b a s i s o f l i a b i l i t y

76v i r t u a l l y i d e n t i c a l t o t h a t e x i s t i n g a t common l a w . T h is b e i n g so , i t i s r e a s o n a b l e to s u p p o s e t h a t t h e common la w n o t i o n t h a t a c c e s s o r i a l r e s p o n s i b i l i t y i s d e r i v a t i v e , a n d t h e c o n s e q u e n c e s w h ic h f lo w fr o m i t , l i k e w i s e fo r m p a r t o f t h e d o c t r i n e s o f c o m p l i c i t y c r e a t e d b y t h e s e s t a t u t e s . T he f e w r e l e v a n t d e c i s i o n s in t h s e j u r i s d i c t i o n s c o n f ir m t h a t t h i s i 3 s o . In New Z e a la n d 74 * *

7 4 . P r o v id e d o f c o u r s e , t h a t i t w as n o n e t h e l e s s c o m m it te d a s a c o n s e q u e n c e o f h i s i n s t i g a t i o n , o r u n d e r th e i n f l u e n c e o f h i s e n c o u r a g e m e n t , o r t h a t i t w as f a c i l i t a t e d by h i s a c t o f a s s i s t a n c e ; s e e g e n e r a l l y a tp * ? S M T .

75* C oe s . 7 o f t h e Q u e e n s la n d an d W e s te r n A u s t r a l ia n C o d e s ; 3 .3 o f t h e - - T a sm a n ia n - C o d e ;- n * 6 6 ( l ) -0 f t h e New -Z oaJard C r im e a . A c t , 1 9 6 1 • Z e e . .

g e n e r a l l y a t p . f ^ f f .* :?e e p . 3 5 f f‘»76

authority holds that a person wno snowing!y effects the conanission of a criminalactus reno through an innocent agent may be viewed as a constructiveprincipal offender, i.e., as being guilty pursuant to s*66(1)(a) of the New

77Zealand Crimes Act,1981. New Zealand authority also holds that a secondaryoffender cannot be guilty of a more serious crime than the perpetrator*^

A contrary view is found in the Canadian Supreme Court’s decision in70He mi Hard v R (1921 ) ‘ which dealt with a statutory doctrine of complicitywhich was similar though not. identical to t at in the present principal

80complicity provisions in the Australian and few Zealand legislation. Broadly,the couit decided that the fact that the alleged perpetrator of a homicidehad been convicted of manslaughter rarer h , did not mean that the allegedaccessory could not subsequently be convicted of murder* On one view thisdecision was concerned with the repudiation of the purely formal objection, that adetermination of fact in the previous trial did not. determine the matter as

81between the appellant and the Crown in the latter trial. But a more general implication emerges from two of the judgments,namely,that as a matter of law, the secondary party may, where his mental element permits it, be guilty of a more 77 78 79 80 *

77. Faterson [j976] 2 NZLR 394 at 398. 'J'he Court of Appeal noted,however, that " [i] t may be that there are some crimes which by virtue of their statutory definition canno t be committed by the use of an innocent agent" - at 396”7*

78. I.ewis [1979] 1 NZLK 222 at 230; Hartley 0978] 2 NCLR 199 at 203.But see also the Queensland Court of Criminal Appeal’s decision in

Tonkin 11975J Qd R 1, where the court envisaged that an alleged secondary participant in murder pursuant to 3 . 8 of the Queensland Cods (which is identical to s.O of the Western Australian Code and similar to s .4 of the Tasmanian Code) could be convicted of murder although the apparent perpetrator of the homicide was entitled to have her liability reduced to manslaughter by reason of the defence of diminished responsibility created by s.304A of the Queensland Code, by virtue of s*304A(3). This conclusion does not necessarily establish that an accessory may bo convicted of a more serious crime than the principal, however. In its express reasoning' the court was concerned, to overcome another objection to a differentiation of verdicts of this type, i.e., that s.8 does not permit differential verdicts as between accomplices in the one crime* The court by majority viewed s *504A(3) as being adequate to overcome this objection (see p, below for a discussion of !ho decision in these terms). The other possible objection to this course (one which might also have been overcomo by .resort to s a304A(3 )) would .eve been that it is a general principle that an accessory cannot be convicted of a more serious crime than can the principal• The count’s omission to refer to this matter may have been due to oversight; on the other hard , it may have been of the view that such a principle did not apply under the Code.

79. [J921] 39 FLH 340.80. The provision in issue was s .69(1) of the Canadian Code, 19 0 6 (see now

s .?1(1) of the Criminal Code of 1953“4» w d (in part) s.22 of tills Code). Section 69(1 ) was in terms similar to those of s.7(&)-(c) of the Queensland and V,e .torn Australian Codes; s*3(1)(a)-(c) of the Tasmanian

- Cooe; and a*6b(-1 ) (-a}~(-c)- o-f -the New Zealand Crimes-Act,- 1-961 *......... -• [l92l] 59 SLR 340 at 342 (Anglin j), 349 (hignault j).81

serious crime than the perpetrator• Anglin J considered that this was possible18?at common lav/, as well as under the Code. '-Mil the more relevant judgment in

the present context is that of Mignault J , who thought it significant that theprovision in question (s.69(l)) abandoned the ’'somewhat subtle"1 classificationof parties at common law, and "placed [ihemj on the same footing," by providingthat each is a "partly! to and guilty of the offence" and that each "may

85be charged as a principal." ' In other words, the liability of the secondary party is no longer to be viewed as being dependent upon that of the perpetrator, as at common law»

The relevance of this reasoning to the Australian and New Zealandlegislation is that each of the principal complicity provisions likewisedeclares that each type of offender, whet.her he participates as a perpetrator oras one who aids, abets, counsels, procures , etc , is "party to " this

84offence and may be charged "with actually committing it;" or at least, thateach "is deemed to have taken part" in the offence , and as such "may be charged

88with actua iy committing it." "Jut Remit lard has not been considered by any of the courts in the

Australian Code States or in New Zealand. On the other hand, so it has beenseen, several decisions of the New Zealand Court of Appeal and as well, the

06Supreme Court of Queensland’s decision in Tonkin( 1973) affirm the common law orthodoxy. 82 * 84 85

266

82. I d . at 342.85. Id. at 543.84. Tasmanian Code, 3,5; New Zeal find Crimes Act, 1981, s .66(1).8 5. Queensland and Wes tern Australian Codes, s.5 . The heading, or marginal

description of each such section identifies all such, participants in crime as being "principal offenders."

86 See footnote -78 above-.

2^7CHAPTER R jTIE

BECOMING AN ACCESSORY THROUGH OMISSION

(I) INTRODUCTION

In general a person does not become criminally liable merely through his failure to intervene and to frustrate, or to attempt to frustrate the commission of a crime by another person0 In other words no general obligation is imposed by law upon the citizen to prevent the commission of a crime by another person.'*' But in certain circumstances a person may become liable as an accessory for his failure to prevent, or attempt to prevent the commission of another's crime. This basis of liability is the subject of the present chapter,.

Such a liability should be immediately distinguished from twosituations in particular: (1) Where a person is made liable for settinginto motion a course of conduct which is illegal, in circumstances wherethe transaction could have been relieved of its criminal element had hetaken active steps to this endD For example, a haulage company may employa driver but omit to check that he is licensed to perform the particular typeof work which he is required to perform by the company. Subject to proofof at least constructive knowledge on the part of the company as to thedriver's lack of credentials, it may be regarded as an accessory to an

2offence comm tted by the driver. In this circumstance, however, the company is not really inculpated on the basis of non-feasance but on the basis of a positive act of misfeasance, he., in its ordering the employee or independent contractor to drive in an illegal manner, (2) A witness who is passively present at the commission of a crime by another person can, subject to proof of mens rea, be convicted of aiding the commission of a crime where his 1 2

(1) See/for example^ ex parte Parker; re Brotherson [1957] SR(NSW) 326 at 330 (Owen J)„ And see Mohun (1692) Holt KB 479, 90 ER 1164; Coney (1882)8 QBD 534 at 539 (Cave J) ; 557-8 (Hawkins J) ; Hawkes [1924] 4 WN(NSW) 102at 102-3; Russell [19 33] VLR 59 at 77 (McArthur J) ; Doorey [l9 70] 3 NSWR351 at 353; Dutchak (1924) 4 DLR 973 at 976; Preston (1949) 93 CCC 81 at84-5, 90, 94; Black(l970)d CCC(2d) 2J1 at 258,265; C1o w (1976) 25 CCC (2d)97 at 101, 102 (Nicholson J); Cosgrove (1976) 29 CCC~TTd) 169 at 172(Larcourciere J); Dunlop (1978) 37 CCC (2d) 90 at 97-98; 100 (Hale JA.)

(2) Carter v Mace [l949] 2 All ER 714; Davies, Turner & Co Ltd v Brodie [1954] 3 All ER 2 83; Pc Stanton & Son Ltd v Webber j_1972]~~~Crim LR 544.

Note that the employer must have had actual knowledge of the deficiency in the driver's qualifications, or have wilfully overlooked

' ' this: -see-pp.T09-1'1 O,l6 3ff. above.' - - - - - - - - - - - - ........And see the analogous case of Smith v Jenner [1968] Crim LR 99.

2 6 8

presence has encouraged the principal to commit it, although they are not inconcert. In this circumstance the presence is regarded as a positive act ofcomplicity,i.e, liability need not be evaluated in terms of a failure on his

3part to intervene and frustrate the commision of this crime.

Hie boundaries of this distinctive liability are indeterminate. It is clear that the defendant does not become an accessory to a crime for failing to frustrate its commission unless he may be regarded as having been under a legal duty to prevent this; or alternatively, that he was in a position to exercise some form of legal control over the principal. These concepts of duty and control have not, however, been comprehensively defined by the courts, and indeed it may not be possible to do this. In comparison, it would appear that the defendant's liability as a principal for failing to intervene to prevent the occurrence of a criminal act is both more limited and is able to be stated in more definite terms. It may be convenient, indeed, to chart briefly the ambit of the latter liability, with two objects in mind. First , in order to distinguish criminal liability as a principal and as an accessory in respect of an omission (prima facie, the distinction between the two parties would be less stark than in the circumstance where the two become incriminated through distinctive acts of commission, for in the present context the postulate is that both become criminally liable through inertia).Secondly, to indicate the extent to which accessorial liability for an omission stretches beyond the ambit of the principal's liability in this respect, and in turn the terms in which the accessory's liability might be limited, if this is felt to be desirable.

(II) LIABILITY AS A PRINCIPAL FOR A CRIME RESULTING FROM A PERSONAL OMISSION

An omission does not in general make a iJerson crimineilly liable. But he can be made liable as a principal for a crime on account of his failure to be prevent the occurrence of the actus reus of this crime. Three headings are seen as being relevant.

(k) FAILURE TO ACT WHEN REQUIRED TO DO SO BY OWN PREVIOUS ACT.

In theory, a person who sets in motion a sequence of events which results ultimately in the commission of the actus reus of a crime, becomes liable 3

(3) See p.296ff. below

269

for this crime as a principal where he culpably fails to interrupt theoccurrence of this criminal act. Such a case would amount to one ofinculpation by omission, given that the defendant did not have criminalmens rea when he performed the initiating act* There are few authoritiesin this area, however. One case involving a fact situation of this type is

4Pittwood (1902) where it was held that a railway gcitekeeper who had opened a railway crossing gate after a train had passed through and who had then gone off to lunch, forgetting to shut it again at the appropriate time and thereby causing a fatal accident, had been properly convicted of manslaughter. But this decision may be explained on the more typical basis that the defendant became a principal in involuntary manslaughter through his failure to act where as a result of his voluntary assumption of responsibility a duty had been imposed upon him to do so: in the words of Wright J in this case, 5a'‘man might incur criminal liability from a duty arising out of contract.’11

(B) FAILURE TO ACT WHEN UNDER A DUTY TO ACT

The defendant has been made liable where he has omitted to perform a duty imposed upon him by law, or by a special relationship which he has voluntarily entered into.

The typical such case is one of involuntary manslaughter. For example,where the defendant has declined to care for or to protect his dependent child(or a child in relation to which he stands in loco parentis), as a result of

6which the child has died, he is liable to conviction for manslaughter. The

(4) (1902) 19 TLR 37.

(5) Id,at 38. Note, however, that Wright J was expressly of the view that the facts disclosed misfeasance rather than pure non-feasance, noting that here "there was gross and criminal negligence," Smith and Hogan view P's culpable behaviour as having consisted solely in an omission to act - see p. 46.

For cases where liability for manslaughter has been imposed for an omission to act where an antecedent duty required this, see under (8) below.

And for another case where the defendant became liable for his culpable failure to arrest a sequence of events innocently initiated by himself and which resulted in an injurious act see Commonwealth v Cali (1923) 247 Mass 20, 141 NE 516, where it was held that a person who accidentally starts a fire in a building and then wilfully refuses to douse it, is guilty of arson.

This issue has been canvassed in for example Bubb (1851) 4 Cox CC 455; Gibbins (1918) 13 Crim App R 134; Lowe [l9 73j QB.702; Russell }1933j .VLR . .59 at 75 (Mann J) ; at 81 (McArthur J) ; Clarke [.1959] VR 645; McDonald [1904] St R Qd 1^1,

(6)

270duty of a parent to care for his dependent child is well establishedat coniiDon law. And similarly, it has been recognised by the English courtsthat a person who voluntarily assumes the care of a helpless adultwho subsequently dies as a result of this person’s neglect, commitsmanslaughter; and likewise, that persons who voluntarily assume the careof an eccentric adult who so neglects he]* own physical needs that shedies from, inter alia, toxaemia, in circumstances where they are likewise

7recklessly neglectful, incur liability for her manslaughter.Other types of duty wil L also suffice to ground liability for

involuntary manslaughter in the situation of an omission to prevent death,8In,fbr example, the English case of Lowe (1650), the court upheld the

conviction for manslaughter of a man who had, while employed to managean engine used to haul miners up from a coal-mine, left his post,leaving itin the charge of an incompetent boy, Shortly afterwards;, and as a result ofthe latter’s want of skill, a miner had been thrown down the shaft andkilled, Campbell CJ held that "a man may, by a neglect of duty, render

qhimself liable to be convicted of manslaughter, or even of murder,'1 The English case of Pittwood (1920),^ which has been discussed under (1) above, may on one view be regarded as very similar to Lowe,

In the manslaughter cases, then, the omission has attracted criminal liability because the defendant was required to act by a legally recognised duty imposed upon him. Some of these duties have bean, entrenched at common law by repeated decisions of the courts (such as responsibility arising from parenthood). Others have derived from statute, directly or indirectly, or have otherwise arisen from an arrangement voluntarily entered into by the defendant (such as the taking of employment, or the voluntary assumption of responsibility to care for a helpless adult), in their very nature these duties have imposed upon the person affected the responsibility to care for the safety or well-being of the public or of an individual, 7 8 9 10 11

(7) Instan [1893] 1 QB 450; and Stone p 977 j 2 -All KR 341 respectively.(8) (1850) 3 Car & K 123; 175 ER 489-(9) Id. at 124/490.(10) (1902) 19 TLR 37-(11) See WilLiams ,TCL, at p.233; Howard at pp*104-5 •

And it is noted in Russell on Crime Vol ,1 at p,403 that the master of a British ship becomes criminally liable at common law if he fails to assist his crew or passengers should they be found in danger of "owning,

271

The cases of involuntary manslaughter aside, criminal liability has beenimposed at common law upon the person who omits to prevent the happening ofan injurious consequence in at least two specific situations: where a citizen

12fails to take reasonable steps to assist a policeman to quell a riot; andwhere a citizen fails to report the commission (or ,perhaps, the prospectivecommission ) of a felony, or the identity of the felon or other information which

1 3might lead to his apprehension, to the police,

(C) STATUTORY COMPULSION TO ACT

A person may be made criminally liable by statute for an omission to perform an act. Instances of this are common; for example, the penalisation of non-disclosure of taxable income under income tax legislation,(D) CONCLUSION

Two comments may be made in this context in relation to the impositionof criminal liability upon a p or son as a principal for an omission to act.Firstly, liability of this type has generally been imposed only where thedefendant has failed to prevent the infliction of the relevant harm eitherby a non-human agency or altentatively, by a human who is without criminalmens rea and who does not, therefore, incur criminal liabilityhimself. One case apparently establishing an exception to this latter principle,however, i.e., the Victorian decision of Rus3ell(1 9 3 3 ) where the FullSupreme Court considered, inter alia, that the appellant could have beenconvicted as a principal in the manslaughter of his infant children in thathe had stood by and failed to prevent hi3 wife from drowning them. Such aresult is logical if an omission by a parent to preserve the life of his

1 5child is viewed as an independent head of manslaughter,Secondly, on the authorities to date, the existing boundaries of liability

as a principal in respect of an omission are tolerably precise. The common factor in most case3 of this type has boon that the defendant was obliged to take positive stops to prevent the occurrence of the 12 13 14 15

(12) Such a failure is a com:.on law misdemeanour: Brown (1641) Oar & M 314*174 ER 522 (B failed to assist a constable to overcome an arrest of the peace );Waugh (197^) London Times 1 Oct (W failed to help a policewoman who was attempting to arrest a thief).

(13) Se> Russell on Grime , Vol. I, p,l67ff; and for various writings on the s u lject see the list in Howard at p.284

(14) [1935]VR 59(15) See Mann J's reference to an '’independent crime” in this context, in

id. at 75 • For a discussion of this basis of liability see id. at- - - 69ff. (Cussen ACJ), 75ff (-M&nn J.)7-9ff •- (McArthur . J)..It slrauld.be. . . .

noted that the court by majority was of the view that on the facts proven in Russell, the appellant could in the alternative have been convicted of aiding his wife in her murder of the children: see below at pp.2 77-8 *

272infliction of the relevant harm by virtue of a legally recognised duty imposed upon him to do this. These duties may arise specifically under statute. Alternatively, they may arise (1) from the defendant's performance of an.act which sets in train a course of events which will cause the infliction of the prohibited harm, unless this sequence of events is otherwise frustrated; and(2 ) where he voluntarily enters into an arrangement which imposed upon him a duty of care in the enforcement of which the public is interested.

(Ill) ACCESSORIAL LIABILITY RESULTING FROM AN OMISSION

Secondary liability has, it has been remarked, been imposed or sought to be imposed in a variety of situations where the defendant has ommitted to restrain another from committing the subject crime. These will be looked at in turn.(A) EMPLOYEE'S DERELICTION OS

OF EMPLOYMENTDUTY ARISING FROM STATUTE OR FROM CONTRACT

An early instance of the imposition of accessorial liability in these16circumstances is found in the English case of Howells v Wynne(1865)* The

defendant , a pit-manager, had been convicted of aiding and abetting a banksman at his pit-head in the latter's overloading of the mine lift. Such an overloading was penalised by regulation. A parallel regulation declared that the manager (i.e,, the defendant) was the responsible person in charge of the pit and of the personnel working beneath him. The banksman was one such subordinate. The justices Had found that the defendant was in the vicinity of the lift at the time of its overloading and that he was ,therefore, "cognisant" of this, and that his failure to prevent the banksman from lowering the cabin represented a sufficient aiding. It is not clear that he had actual knowledge of the overloading, but there are inconclusive suggestions in the report that he had failed on a number of past occasions to prevent overloading by the banksman.

The Court of Exchequer Chamber upheld the conivction on the broad basis that as the appellant liad authority over the workings of the pit-head, he had a corresponding duty to prevent illegal acts by those working about it. His authority and its associated duty could be ascribed to his contract for employment taken together with the regulation creating responsibility in the person appointed as manager, Mr Justice Villas cited Coke to the effect that the word "aid" included, inter alia, a "consenting, and encouraging to do theact" and that further, a "permission,whether active or passive,by a person

1 7having the authority to prevent the act being done, is a consenting."

( 1 6 ) ( 1 1 - 3 ) 15 C B ( N S ) 3 , 1 5 4 E R 6 8 2 .

(-17) - Id.- at 15/637-, ci ting- Coke at - 2 -Inst„ -182.

273

A mere "consenting" by itself, therefore, would not constitute a person an 'aider. What was crucial here was that the defendant had a duty and a related

18authority, to insist upon the safe operation of the lift . Williams J and 1 9Byles J y similarly grounded liability by reference to the twin concepts of

duty and power to control.

20In the New South Wales decision of ex parte Parker; re Brotherson (1957)the Full Supreme Court held that an employee was by virtue of his contract ofservice under a duty to protect his employer's goods, so that should heacquiesce in the theft of these goods by a co-worker rather than report thethreatened theft to the employer, he would become an accessory to this crime.On one view of the facts the appellant had performed a positive act ofencouragemei c of assistance, by telling the prospective thief that the loss

21of the stock would not appear on their employer's records. But theformulations of principle in this decision envisage the incrimination of anemployee who declines to discharge his duty of protection owed to hisemployer's goods, irrespective that he does not perform a positive act of

22encouragement or assistance. ‘ And in an obiter comment Owen J contemplated that persons in addition to employees who stood in a 'special relationship' with the owner of goods could become accessories to their theft through

• -V • 2 5acquiescence m this.

(B) THE MOTOR VEHICLE CASES

In several cases the owner of a motor vehicle, or person supervising the driving of a vehicle by a person without a full licence, has been made liable as an accessory to a driving offence committed by the driver on the basis that he was a passenger in the vehicle and failed to intervene to prevent its illegal handling. What is common to each of these cases is that the driving by the principal was lawful from the outset, but that it suddenly deteriorated.

(18) Id.at 16/688.

(19) Id. at 17/688.(20) [1957] SR (NSW) 326.

(21) Indeed on an alternative view the appellant had actually conspired withthe principal to steal these goods: id.at 329.

(22) Id.at 330 (Owen J); 332 (Walsh J). (Ferguson J concurred with Owen J'sremarks on aiding and abetting: at 3320

(2 3 ) M * at 330*

274

This situation is to be distinguished from that where the owner (or no doubt, the person in lawful possession) of the vehicle supplies it to another in the contemplation that it will be driven in an illegal manner,,In this situation he becomes an accessory to any such offence in that hecommits a positive act of accessoryship, viz# in supplying the means by which the crime is committed, he facilitates its commission, and depending upon

24the circumstances, he may also be viewed as encouraging it. It will, there­fore, be legally irrelevant as to whether or not he is a passenger in thevehicle. And of course, if any passenger in a vehicle encourages the driverto drive illegally he will become an accessory to any such offence, whether or not he is the owner of the car, or a supervisor of a driver with a qualified licence.

The decisions dealing with non-feasance in this area differ in their reasoning, enerally accoding to their facts, as to whether the imposition of accessorial liability upon the defendant is to be justified by reference to an omission by him to exercise the legal authority possessed by him to intervene and prevent the continuing or future commission of the critfie , or by reference to a duty of intervention created by regulation. The first such justification has been relied upon where the defendant has owned the vehicle„ The second has been resorted to where the defendant, though not owning the vehicle, has a^ssumed a duty of supervision over a person with a qualified licence.

One frequently cited decision in this context is that of the King’s25Bench Divisional Court in Du Cros v.Lambourne (1907). The facts were

that either the appellant or a woman with him had driven his car at adangerous speed, thereby committing a summary offence, with the other of thembeing seated beside the one who was driving. The court upheld his convictionfor this offence upon the basis that if he had not actually driven the car thenhe had aided and abetted the woman to do this. Assuming the latterhypothesis, Lord Alverstone viewed the conviction as proper in that he had"consented and approved" of her driving, and that he could have controlled her

26in this. Darling J also saw the question of the appellant's right to control 24 25

(24) Thus, the owner of a car who hands the keys to another asking him to drive it may, subject to mens rea, become an accessory to the latter's offence of driving while intoxicated: see for example Glennan [1970] 2 NSWR 421,

See also the analogous case o f Pope v Minton [1954] Crim LR 711.And see generally at ~j>06 on the supply of goods used in committing

crime, as a basis of accessorial liability. .................

(25) [1907] 1 KB 4 0-

(26) Id.at 46.

275

her driving as critical: heMwas the owner of the car and in control of it,2 7and he was therefore the person to say who should drive it,,1" ' He also noted

2 8that the appellant had 'allowed1 her to do this, as indeed did Lord Alverstone.A mere acquiescing in another's crime, or failure to intervene would not, however, be significant in the absence of some further factor compelling intervention. In this case this element was identified as the power of control over the driving of the car which derived from ownership.

2QThe decision of the Manitoba Court of Appeal in Kulbacki (1965) in analmost identical fact situation, came to the same conclusion for similarreasons: in that the appellant owned the car, he had "authority over the car"

3 0and a right to control the driver."

3 1In the English case of Rubie v Faulkner (1940), on the other hand,accessorial liability in a driving offence was upheld upon the basis of astatutory d ty, rather than of a mere power of control. The appellant had beeninstructing a learner-driver who was involved in an accident resulting fromthe pupil's negligence. He had seen the danger develop, but had made no effortto prevent the negligent driving which led to it. He was convicted of aidingthe pupil in a summary traffic offence. His role as supervisor was recognisedby regulation. Hilbery J held that this regulation imposed upon thedefendant a "duty, by supervision, of making up as far as possible for the£learnerj driver's incompetence." In these circumstances, for the appellantnot. ot have recognised his duty "to prevent an unlawful act if he could, was

3 2for him to aid an abet." Hallet J said simply that he based his judgment3 5"on the consideration of the duty owed to the public under the regulation. " * 28 29 30 * 32

(2 7) Id. at 46.

(28) Id.at 46.

(29) (1965) 52 DLR (2d) 283.

(30) Id.at 286. See, however, the obiter comment of Ostler J in Harrison [1941] NZLR 354 at 360, who considered that the owner of a truck who had allowed another to drive him in the vehicle, would not necessarily become an accessory to the latter's offence of failing to stop after an accident merely by failing to intervene in an attempt to compel him to do this. The matter was not fully canvassed by the New Zealand Court of Appeal in that they were of the view that the appellant should not in any event have been convicted of being an accessory to this offence, given that the alleged perpetrator had been acquitted of it.

(31 ) [1940] 1 KB 571.

(32) Id.at 575.

(33) Id.at 575.

Hewart LCJ also saw matters in terms of a breach of statutory duty of. . 34supervision.

(C) THE LICENSEE CASES

A succession of English hotel licensee cases confirm that subject to mens rea, a licensee who fails to prevent his customers from drinking on his premises after the prescribed hour aids them in their commission of an offence of this type. It should be noted that these decisions are not concerned with illegal sale, the drinks in question being purchased before closing time, though consumed wholly or in part beyond this time.

None of the decisions adequately explains the basis of accessorial3 5liability in these circumstances. In two of them, Thomas v LindQp(1950)

3 6and Ferguson v Weaving (1351), it was unnecessary to do so, given that the prosecution had failed in the beginning to prove mens rea, in that the licensee was not proven to have had knowledge of the illegal drinking, being in a different part of the hotel at the relevant time. In both decisions, however, it was otherwise assumed that a non-intervening licensee could be convicted as an accessory to an offence by one of his customers.

3 nIn Duxley v Gilmore (1959) ' the .Queen's Bench Divisional pourt held onappeal by the prosecution, that given that the latter had proven mens reain the defendant licensee, the justices ought to have convicted him of aidingthe illegal cusumption of alcohol by his customers. A licensee would beliable if his conduct had shown either "active encouragement'' of hiscustomers, or if it had represented a "passive tolerance so marked that

3 8it amounted to the same thing." Very similar remarks were made in the39twin case of Tuck v Robson (1970) where the Divisional Court said

that "the real question here is how far inaction^ passive tolerance can amount to4 0assistance so as to make the accused guilty of aiding and abetting." The

(34) Id,at 573-4„ A similar decision is that of the same court in Harris ""[19641 Crim LR 54, where the court likewise referred to the duty of supervision which was undertaken by the supervisor of a person with a qualified (in this case, a “provisional") driving licence.

(35) [l950l 1 All ER 966.

(36) 11951] 1 KB 814.(37) ]1959J Crim LR 454.

(38) Id.at 455. .......... . . . . . . . . . . . . . . . . . . . . . .

(39) (~1970j 1 All ER 1171.

(40) Id.at 1173.

277

court cited with approval the observation by Slade J in the National Coal41Board v Gamble (1 9 5 8 that H|jtfijere passive acquiescence*' only constitutes a

person an aider where he nhas the power to control the offender and is4 2actually present when the offence is committed..."

There is surely an element of confusion in these observations in Duxley v Gilmore and Tuck v Robinson, in that it seems to have been assumed that the licensee sought in each case to be made liable for an omission could be viewed as an accessory only if this omission could be classified, by an oblique process of logic, as an act of ,!assistance" or "encouragement". His non-intervention was, after all, an act of omission, not one of commission.Such a process of reasoning was surely unnecessary, as well as sophistical.By analogy for example, with the motor vehicle cases noted under (B) above, the licensee in each of these cases could have been regarded as an accessory upon the basis that his possession of a licence issued pursuant to statute imposed upon him a duty not only to obey its terms himself but to enforce obedience to these terms by those who were on his premises. And, obviously, he had the legal power to control his customers by virtue of his ownership or possession of the licensed premises in question. The court in Tuck v Robinson appeared to have this latter conception of liability in mind in its citation of Slade J's remarks in National Coal Board v Gamble, even as it did not ultimately elaborate its decisions in these terms.

(D) PARENTAL LIABILITY FOR THE HOMICIDE OF HIS CHILD BY ANOTHER»

One of the three judges in the Full Supreme Court of Victoria's decision 4 3in Russell (1933), Mann J, indicated that a man who stood by and watched

his infant children be drowned by a third party (in this instance, his estranged wife) thereby became an accessory to her offences of murder. This was on the basis that he had a moral duty to protect his children, so that his"deliberate abstention from so doing" made him a participant in his wife's acts of

4 4 . . .homicide . This view was, however, an isolated one in this decision.McArthur 0 considered that a "mere passive presence" in these circumstances would not constitute the parent an accessory, in that aiding and abetting required something more positive in the nature of "concurring, encouraging, 41 42 43 44

(41) [1959] 1 QB 11.(42) Slade J's remark is found in i_d at 25,. See Tuck v Robson [l970j 1 All

ER 1171 at 1174. Note, however, that National Coal Board v Gamble does not itself deal with the imposition of accessorial liability for an omission.

(43) [19 33] VR 59.

( 4 4 ) I d . a t 7 6 .

278

assenting, countenancing, etc. " On an overall view, the decision restedupon other grounds, ief/ (a) the appellant was liable as a principal inmanslaughter through his failure to preserve the lives of his children, given

. . 4 6that the relationship of parenthood imposed duty upon him to do this; or (b) he could be viewed as having aided his wife to commit the homicides on the basis that although passive his presence was not neutral but to his knowledge actually encouraged her to kill the children (and for that matter, himself ), This would be so because having regard to his relationship with her, and thefact of the estrangement, his failure to talk to and reason with her would

4 7have fortified her suicidal frame of mind.

Accepting for the sake of argument that a parent in the appellant's position did not by his presence positively encourage the murder of his children, the significance of Mann J's view that he would become an accessory through his failure to intervene by virtue of his parental duty of protection is of course that he could thereby be convicted of murder. Otherwise his liability would appear to be limited to that of a principal in manslaughter, based upon a breach of parental duty.

(E) LIABILITY OF A COMPANY DIRECTOR

c 4 8The Ontario Court of Appeal held by majority in Hendrie (1905) that a man who was both the president and director of a company was not liable for the company s offence of keeping a common betting house (assuming indeed

49that it had committed this offence ’) merely because he had acquiesced in its commission of this offence0 The company was an incorporated jockey club. It had leased an enclosure within a race-course owned by it to bookmakers for the illegal taking of bets. The evidence established that the defendant had had knowledge of this continuing crime and had acquiesced in its commission, but it did not establish that he had personally promoted the transaction or that he had played any role in the management of the lease on behalf of the company. This being so, Osier JA considered, he did not aid and abet the company in its offence. It was irrelevant that he did not 45 46 47 * *

4 5

(45) Id., at 77.

(46) Id. at 75 (Mann J) ; at 80 (McArthur J) . See above at p .271 above.

(47) Id.at 63ff (Cussen ACJ); 76ff (Mann J); but see McArthur J's commentsat 77ff.

(4 8) (190 5) 10 CCC 298.

(49) Id. at 310

279

“attempt, to dissuade" the company from granting and making the lease, for"[s] ome kind of actual, personal participation...was necessary" in order toincriminate him as an aider. ^ Moss CJo5^ and Garrow J ^ were of a similarvieWo Conversely, McLaren J viewed the defendant as having become anaccessory in that he must, as "president and director [have] acquiesced orconcurred in the lease or grant at the time it was made - either by soconcurring as such president and director at the meeting of the board when

53it was done, or m some equivalent manner." In other words, he did actually promote the leasing.

The decision was very liberal to the defendant. It is unlikely that a court today would come to the same conclusion, given the succession of non-feasance cases affecting accessories since this time, and their enunciation of, inter alia, the notion that a person who is vested with the legal authority to control a prospective offender will become an accessory to the latter's offence if he does not intervene, or attempt to. And on another view of course, Hendrie did, as McLaren J viewed the matter, actively promote the offence by presiding over the board which determined upon the leasing.

( XV ) CONCLUSION

The tests for identifying those situations in which a person becomes an accessory to another's crime through his failure to attempt to prevent the commission of this crime are perhaps, rather uncertain. Generally speaking, two alternative bases of liability are evident in the decisions: theexistence of a duty to intervene; and the possession by the defendant of a legally recognised power of control over the principal or prospective principal sufficient to permit him to order the principal not to commit, or to cease committing the subject crime.

That liability should be grounded in the notion of a duty of intervention is unremarkable, given that the same concept in one form or another underpins * 51 52 53

(5°) Id. at 308.

(51) Id.at 306.

(52) Id.at 309,

(53) Id.at 312.

(and limits) criminal liability as a principal arising from an omission to act. The reported cases indicate that the range of duties sufficient to ground secondary liability for an omission is indefinite; and that while such duties may exist under statute or at common law, they may also derive from a "special relationship."' The second basis oi liability does, however, appar­ently extend the accessory's liability lor omissions beyond the liability countenanced in respect of principal offenders; and equally, it is the principal source of uncertainty in this branch of the law.

Given this indeterminateness, it is only appropriate that anycodification of the law of criminal complicity ought to undertake todelimit the ambit of the accessory's liability in respect of omissions.It is not easy, however, to say precisely where such a liability shouldbegin and end, and the conclusion is perhaps inevitable, that such aprovision must be a very general one, unless a very specific list ofrelevant heads of liability through inactivity is to be enunciated. Thislatter course would not seem to be practical,in that it is scarcelypossible to anticipate in advance all of the possible situations in whichsuch a liability should be imposed. For this reason, no doubt, theModel Penal Code: Proposed Official Draft proposes simply that a personshould incui' .secondary liability, inter alia, where "having a legal duty toprevent the commission of the offence [hej fails to make proper effort to

3 3do so..." A contrary approach is found in the British Law Commission'sworking paper on complicity (Working Paper do,43) where it is proposed thata codified law of accomplices should include a rule to the effect that"a person who is in a position to prevent an offence, becau.se he is ineontrol of property or for some other reason, is not to be taken to be an

56accessory merely because he fails to prevent an offence." 54 55 56

( 5 4 ) Ex p a r t e P a r k e r ; r e Brotherson j 195 ;'j EP ( NSW) 3 2 6 .(55) Model Penal Code: Proposed Official Draft, s.2.06(3)(a)(iii)•(5 6) Working Paper No .43 at pp,35>43 *

281Thi;.i latter proposal would greatly contract the ambit of the accessory’s

liability in respect of omissions, as it exists at common law and as it .is formulated in the Model Penal Code, for nowhere else in the working party's proposals is provision made for the imposition of accessorial liability on the basis of inactivity# The working party explained that this proposed rule "seeks to ensure that the general principle, that a person does not becomea party to crime by mere omission, is not eroded by the application of the

57law relating to complicity." But no allowance is made in this comment for the fact that the principle can in limited circumstances be incriminated in respect of an omission* That the proposed exemption in respect of secondary parties may perhaps need qualification is allowed by the working party; equally, however, they acknowledge that "it is not possible to spell out what additional factors should be present before a failure to prevent an offence can be

5 8sufficient to make a person an accessory ••• as these can be many and varied*"It is considered that the bases of liability as a secondary party in

respect of omissions oughtbto parallel those grounding such liability in the principal offender. This is only appropriate, given that the ambit of the latter's liability represents the normative measure of criminal culpability in the law* (it is assumed, for present purposes, that the liability of the principal offender in this context is of an appropriate ambit - consideration of its modification is of course beyond the scope of the present study.Certainly the tests delimiting the present liability of the principal offender in respect of omissions are more determinate, than are trose delimiting the accessory's liability for omissions, and for this reason at least, represent the preferred formulation•) Thus, it could in substance be provided in a code that the secondary offender shall not incur liability solely in respect of an omission to act unless (1 ) .such omission is expressly penalised by law; " or (2) he has by an act of commission initiated a sequence of eventswhich will, if not forestalled by him, result in the perpetration by another

6oof the offence charged; or (5) he voluntarily assumes a duty of care which 57 58 59 60

(57) Id. at 43*(58) Id.(5 9) This rule would not need to be specific.lly stated, given the standard

principles cf statutory construction»(60) Where the initiating act is performed with the mental element appropriate

to an accessory to the subject crime, the defendant will be incriminated on the basis of a positive act of complicity; otherwi -e, such a provision would operate to incriminate the defendant who unwittingly perforins the init ating act, and who, after this time and before the infliction ofthe elevant harm, becomes fully knowledgeable of what he has done , and who Jails to intervene to frustrate the commission of this harm*

282grounds in him an obligation to act so as to prevent the perpetration by

61another of the offence charged.

One vexed aspect of this branch of accessorial liability which is highlignted by the British Law Commission's proposal noted above, is the courts' evident acceptance that D should be incriminated in another's crime upon the basis of nothing better than that he fails to prevent the ether person from applying property in the commission of a crime in that situation where D has , by virtue of hie ownership or possession of this property, the legal power to control the use of this property. The Law Commission's working party proposed specifically that such control should no longer be recognised as an independent basis of liability. There is much to be said for this view. It is one thing where a defendant supplies equipment knowing it is to be used in a crime ; and quite another where it i3 sought to be thus applied without his consent, or where having been voluntarily supplied by him without criminal knowledge, it is thus employed with nothing better than his disinterested acquiescence. Such a liability could conceivably be extended to extreme limits. It would mean, for example, that if to their knowledge ,D removes a box of matches in A's house, in the presence of A and B, and then announces that he will set fire to V's car that evening, A will be liable for this arson but not B. This would be so notwithstanding that B is equally capable,along with A, of preventing this crime, for example, by informing V, or the police.A ought not be liable in terms of the principles outlined in (l)-(3) above; but it might be as well to exclude expressly from liability the person in A's position by the enactment of that part of the British Law Commission*s proposal in Working Paper No ,43 relating to the non-incrimination of the defendant solely upon the basis that he has control over property used in the commission of an offence, and fails to act so as to frustrate this offence. If it is desired to make the defendant criminally liable upon the basis that he failed to intervene so as to prevent another from applying his (the defendant's) prop­erty in the perpetration of this offence, then it is surely apt to incriminate each other person who knowing of the prospective commission of this offence, fails to intervene arid to forestall it. The simple fact of ownership or possession is surely an inadequate basis for incriminating some and exculpating others. Tho fact of ownership or possession aside, each, 61

(61) It might further be specified that this duty should be of a legally recognised type, though no doubt tho courts would apply such a provision with circumspection,given that the object of it is to prevent the infliction of criminal harm. Such a qualification upon this liability would ,perhaps, emphasise that this duty must be one of a type which the oublic has an interest in seeing enforced, i.e., applied in such a way as to ground (secondary) criminal liability.

28$surely, is similarly well(or poorly) placed to intervene. If such liability is to be imposed at all, it should be imposed upon all knowledgeable persons who are in a position to take reasonable steps to frustrate the pending crime. This should be done per medium of the enactment of an independent ancillary offence - perhaps one consisting in the failure to take reasonable steps to report, either to the victim or to the law enforecemant authorities, the pending commission of an offence of a prescribed category (for example, all indictable offences). It is inappropriate to impose liability in such a circumstance solely upon the possessor or owner of property, specifically in terms of the law of acce ssoryship,

284

CHAPTER TEN

ISSUES OF ACCESSORIAL LIABILITY IN THREE STANDARD FACT SITUATIONS: BILATERAL OFFENCES; THE WITNESS TO CRIME;

THE ACCESSORY SUPPLIER

The c o u r t s h av e from tim e t o tim e been r e q u i r e d t o c o n s id e r q u e s t io n s o f a c c e s s o r i a l l i a b i l i t y in r e s p e c t o f e a c h o f th e above ty p e s o f f a c t s i t u a t i o n . In g e n e r a l th e y have d e c id e d th e s e i s s u e s o f l i a b i l i t y i n c o n fo rm ity w ith th e g e n e r a l p r i n c i p l e s o f se c o n d a ry l i a b i l i t y , v i z , th e s e c a s e s h av e n o t , by and l a r g e , made new law . They a r e , h o w ev er, o f i n t e r e s t . Some o f them i l l u s t r a t e i n a p a r t i c u l a r g r a p h ic w ay, th e o p e r a t io n o f th e s e g e n e r a l p r i n c i p l e s . C e r ta in o f them r a i s e q u e s t io n s o f seem ing d i f f i c u l t y . And th e y h av e p ro v o k ed some a rg u m en t as t o th e d e s i r a b l e e x t e n t o f a c c e s s ­o r i a l l i a b i l i t y in e a c h o f th em , and p ro p o s a ls f o r l e g i s l a t i v e ch an g e . I t i s c o n s id e r e d , h o w ev er, t h a t no such s p e c i f i c m o d if ic ­a t io n s o f th e g e n e r a l law? o f a c c e s s o r ie s a re c a l l e d f o r ( p u t t in g a s i d e , f o r p r e s e n t p u r p o s e s , th e q u e s t io n o f w h e th e r o r n o t th e s e g e n e r a l p r i n c i p l e s o u g h t t o b e m o d i f i e d ) .

( I ) ISSUES OF COMPLICITY ARISING IN RELATION TO BILATERAL AND

ANALOGOUS CRIMES

(A) I LEGAL SAID(1) Li a b i l i t y as a P u rc h a s e r

O ffe n c e s o f i l l e g a l s e l l i n g g e n e r a l ly in c r im in a t e th e v e n d o r as th e p r i n c i p a l . In t h i s c i r c u m s ta n c e , th e c o u r t s h av e a lm o s t a lw ays im posed l i a b i l i t y upon th e p u r c h a s e r in t h i s s a l e a s an a c c e s s o r y , p ro v id e d t h a t h e p o s s e s s e d th e a p p r o p r ia te m e n ta l elem ent?-. The

(1) See f o r exam ple F a i r b u r n v . Evans [1916] 1 KB 218 ; Sayce v . Coupe [ l .9 5 3 ] l QB 1; A ngland v . H a s ken ~ [ l935] NZLR 71 . See a l s o th e a n a lo g o u s c a se o f 0 " S u l l iv a n v . B a s t ia n (No. 2) [1 9 4 8 ] SASR 17 w here th e a p p e l l a n t had b een c h a rg e d w ith a id in g a h o t e l l i c e n s e e to s e l l o r s u p p ly l i q u o r a f t e r th e p r e s c r ib e d h o u r •he h ad b een o f f e r e d a d r in k w i th o u t paym ent by th e l i c e n s e e w h ile in th e b a r o f th e h o t e l , and a c c e p te d t h i s . The r e a s o n in g was som ew hat t e r s e , b u t he was p re su m a b ly e x o n e ra te d b e c a u se i t was c o n s id e r e d t h a t he la c k e d mens r e a . (N a p ie r CJ v iew ed him as n o t h a v in g in c u r r e d l i a b i l i t y in t h a t he had n e i t h e r i n s t i g a t e d n o r e n c o u ra g e d th e s a l e ' "know ing ' t h a t [ i t ] was u n la w fu l" ': a t 2 0 ) . '

And se e th e o b i t e r comment o f th e c o u r t in M edley v . H alim K a l l i l [ l9 3 6 ] NZLR 732, c o n f irm in g th e l i a b i l i t y o f th e p u r c h a s e r to an i l l e g a l s a l e .

285

E n g lis h C o u rt o f C rim in a l A ppeal r e j e c t e d in Sayce v . Coupe (1952) th e a rg u m en t t y p i c a l l y advanced by d e fe n d a n t p u r c h a s e r s t h a t b e c a u se th e a c t o f p u rc h a s in g was d i f f e r e n t i n c h a r a c t e r from th e a c t o f s a l e , th e s t a t u t e c r e a t in g p r im a ry l i a b i l i t y in th e s e l l e r had t o be c o n s tru e d as h a v in g been in te n d e d to c o n f in e l i a b i l i t y i n th e l a t t e r . The a c t o f p u rc h a s e i s o f c o u rse an a c t o f c o m p l ic i ty in t h a t i t makes th e com m ission o f th e o f fe n c e o f s e l l i n g p o s s i b l e .

(2) L i a b i l i t y a s a S e rv a n t o f th e V endorWhere a s e r v a n t s e l l s on b e h a l f o f h i s m a s te r i n c i r c u m s ta n c e s

p r o h ib i t e d by s t a t u t e , th e r e a re s e v e r a l p o s s i b i l i t i e s w here th es e r v a n t i s c o n c e rn e d , i . e , he i s g u i l t y as a p r i n c i p a l o r a s ana c c e s s o r y , o r he i s in n o c e n t o f th e i l l e g a l s a l e . W hether o r n o the i s a p r i n c i p a l w i l l be d e te rm in e d by th e v iew ta k e n o f th e v e rbto " s e l l " - i s th e s a l e c o n s t i t u t e d by th e a b s t r a c t t r a n s f e r o fp r o p e r ty r i g h t s , i n w hich c a s e th e em ployer r a t h e r th a n th e s e r v a n ti s th e p r i n c i p a l , o r does i t r e f e r t o th e p h y s i c a l a c t s c o n s t i t u t i n gth e s a l e , in w hich c a se th e s e r v a n t i s h im s e l f a p r i n c i p a l ? On l e s sf r e q u e n t o c c a s io n s th e c o u r t s have re g a rd e d th e s e r v a n t a s b e in g th ep r i n c i p a l in th e i l l e g a l s a l e , so t h a t th e em p lo y er a id s o r c o u n s e ls

3him to com m it t h i s c r im e . U s u a l ly , h o w ev er, th e c o u r t s h av e re g a rd e d th e m a s te r as th e p r i n c i p a l in th e s a l e (w h e th e r o r n o t by r e s o r t t o th e d o c t r in e o f v i c a r io u s l i a b i l i t y , so t h a t th e s e r v a n t i s an a id e r 2 3 4

2

(2) I d .(3) F o r exam ple H o tch k in v . H indm arsh [ l 8 9 l ] 2 QB 181; S t a n s f e l d 5 Co.

v . Andrews (1909) 100 LT 529; Rhyno [ l9 4 5 ] 1 DLR 592 ; and se e A llc h u rc h v . Coope r [.1923] SASR 370 , w here th e a p p e l l a n t 's l i a b i l i t y a s th e s e r v a n t o f an u n l ic e n s e d p e r s o n who s o ld l i q u o r , was c a n v a s s e d by r e f e r e n c e t o th e a l t e r n a t i v e p o s s i b i l i t i e s , ip.., s u b j e c t t o mens r e a , c o u ld sh e be c o n v ic te d a s an a c c e s s o r y o ras a p r i n c i p a l in t h i s s a l e ? See A llc h u rc h v . Co o p e r e s p e c i a l l y a t 373 , w here Gordon J assum ed t h a t she c o u ld be made l i a b l e o n ly a,( an a c c e s s o r y , i f a t a l l ; s i m i l a r l y , s e e Angas P a rso n J ' s rem ark s a t 3 8 4 f f ; b u t n o te P o o le J ' s d i s s e n t i n g comments a t 3 7 5 , who re g a rd e d h e r as h a v in g s o ld as a p r i n c i p a l . By m a jo r i t y th e c o u r t u p h e ld h e r a c q u i t t a l b e f o r e a m a g i s t r a t e , on th e b a s i s t h a t she la c k e d th e mens r e a r e q u i r e d o f an a c c e s s o r y t o th e s u b j e c t o f f e n c e .

I t i s no d o u b t p o s s ib l e t h a t w here th e s e r v a n t i s c l a s s i f i e d as a p r i n c i p a l , th e m a s te r may be r e g a rd e d a s b e in g a j o i n t p r i n c i p a l by r e s o r t to th e d o c t r in e o f v i c a r io u s l i a b i l i t y ( s e e p . ^ a b o v e ) , r a t h e r th a n as b e in g an a c c e s s o ry to th e s a l e .

(4) See C an ty v . I v e r s (1913) 19 A rgus LR 403 ; A bley v . C r o s a r io [1 9 4 6 ] VLR 53; A llc h u rc h v . C o o p er, i d ; and se e Lord R u s s e l l 's o b i t e r

“ ‘ comment" in W illiam so n v ; N o r r is [ l 8 9 8 ] ‘ l ‘ QB 7 a t" 1 4 . '

286

A f o u n d a t io n a l c a se e s t a b l i s h i n g c r im in a l l i a b i l i t y i n a s e r v a n t .f o r an i l l e g a l s a l e e f f e c t e d by him d u r in g th e c o u rs e o f em ploym ent

5i s th e E n g lis h d e c i s io n o f H o tc h k in v . H indm arsh (1 8 9 1 ). On t h i s o c c a s io n th e em ployee o f a d a i r y company was c o n v ic te d by th e j u s t i c e s as a p r i n c i p a l o f f e n d e r i n th e o f f e n c e o f s e l l i n g a d u l t e r ­a te d m ilk u n d e r th e S a le o f Food and D rugs A c t, 1875 (UK), s . 6 .The Q u e e n 's Bench D iv is io n a l C o u rt r e j e c t e d h i s c o n te n t io n t h a t he c o u ld n o t be re g a rd e d as th e v e n d o r b e c a u s e he d id n o t s ta n d in a c o n t r a c t u a l r e l a t i o n s h i p w ith th e p u r c h a s e r , b u t m e re ly s e r v e d th e m ilk from a c a r t as he w ent f ro n c u s to m e r t o c u s to m e r . As Lord C o le r id g e CJ v iew ed i t th e w ord in g o f th e o f f e n c e was su ch t h a t i t sh o u ld be r e g a rd e d as h a v in g been in te n d e d to i n c r im in a t e th e p e rs o n r e s p o n s ib l e f o r th e " p h y s ic a l a c t s , i r r e s p e c t i v e o f c o n t r a c t , " i . e . ,th o s e p e rfo rm e d by th e s e r v a n t , who " t r a n s f e r [ s ] . . . th e a d u l t e r a t e d

6 7th in g t o th e p u r c h a s e r . . . " . And in C a ld w e ll v . B e th e l (1913)th e King’s Bench Divisional Court held that a barman who servedb e e r w i th o u t m e a su r in g i t , was a p r i n c i p a l t o an o f f e n c e p r o h i b i t i n ga s a l e on t h i s b a s i s . In th e v iew o f th e c o u r t i t was s i g n i f i c a n tt h a t th e s t a t u t e c r e a t in g t h i s o f f e n c e d id n o t e x p r e s s ly c o n f in el i a b i l i t y to l i c e n s e e s . B ecause th e f a c t s c o n s t i t u t i n g th e o f f e n c ew ere o f a p h y s i c a l k in d , and o f a ty p e w h ich " in 99 c a s e s o u t o f a

8h u n d red " w ould be done by th e s e r v a n t and n o t by th e l i c e n s e e , " th ec o u r t c o n s id e r e d t h a t th e s t a t u t e c o u ld n o t be i n t e r p r e t e d as im p l ie d lye x c lu d in g c r im in a l l i a b i l i t y in th e s e r v a n t m e re ly b e c a u s e he d id n o t

9own th e p r o p e r ty s o ld .

A l i n e o f c a s e s e s t a b l i s h e s , h o w ev er, t h a t a s e r v a n t who s e l l s l i q u o r in b re a c h o f h i s m a s t e r 's l i c e n s e (o r in c ir c u m s ta n c e s w here h i s m a s te r i s u n l ic e n s e d ) i s on no a c c o u n t to be made l i a b l e as a p r i n c i p a l . The le a d in g such d e c i s io n i s W illia m so n v . N o r r is ( 1 8 9 9 ) ^ 5 6 7 8 9 10

(5) [1 8 9 1 ] 2 QB 181.(6) I d . a t 186. S im i la r ly Mathew J a t 188.(7) [1 9 1 3 ] 1 KB 119.(8) I d . a t 124.(9) F o r o th e r c a s e s w here a s e r v a n t h a s b e e n made l i a b l e f o r an

i l l e g a l s a l e qua p r i n c i p a l , s e e S t a n s f i e l d v . Andrews (1909) 100 LT 529; Rhyno [ l9 4 5 ] 1 DLR 592.

(10) [1 8 9 8 ] 1 QB 7.

28?

w here . ae Q u e e n ’ s Bench D iv i s io n a l C o u r t h e ld th e a p p e l l a n t to be n o t l i a b l e qua p r i n c i p a l f o r s e l l i n g l i q u o r to members o f th e House o f Commons w i th in th e m em bers' b a r . Lord R u s s e l l CJ c o n s id e r e d t h a t th e o f f e n c e , w hich made l i a b l e p e r s o n s s e l l i n g l i q u o r who w ere n o t " d u ly l i c e n s e d " , had to be c o n s t r u e d as im p o sin g l i a b i l i t y s o l e l y upon th e " s a le by th e m a s te r o r th e p r i n c i p a l . . . I am o f th e o p in io n t h a t . . . th e s a l e w hich i s p r o h i b i t e d m ust be a s a l e by th e p e r s o n who o u g h t to be l i c e n s e d ." On th e o th e r h a n d , he s a i d o b i t e r t h a t a s e r v a n t p ro v en t o b e "know ing ly a c c e s s o r y to an i l l e g a l s a l e " c o u ld be c o n v ic te d in th e s e c i r c u m s ta n c e s . ^ E v id e n t ly th e w a i t e r in t h i s c a se had been ig n o r a n t o f th e v i t a l f a c t t h a t h i s em p lo y er was u n l ic e n s e d .

S u b se q u e n t c a s e s c o n firm t h i s a n a l y s i s , i . e . , t h a t w here th e s e r v a n t o f a p e r s o n who i s l i c e n s e d u n d e r l i c e n s i n g l e g i s l a t i o n , s e l l s i n b re a c h o f h i s e m p lo y e r 's l i c e n s e , he i s l i a b l e a s an a c c e s s o r y r a t h e r th a n a s a p r i n c i p a l , and th e n o n ly i f h e h a sknow ledge t h a t th e s a l e i s in f a c t i n b re a c h o f th e te rm s o f t h i s, • 12l i c e n s e .

(B) ASSISTING IN THE CONDUCT OF AN ILLEGAL BUSINESS

A num ber o f r e p o r t e d c a s e s c o n c e rn th e se c o n d a ry l i a b i l i t y o f th e p e r s o n who a s s i s t s a n o th e r t o com m it, a s p r i n c i p a l o f f e n d e r , a c o n t in u in g o f f e n c e o f c o n d u c tin g an i l l e g a l b u s in e s s a s , f o r ex a m p le , th e c o n d u c tin g o f a house u se d f o r u n la w fu l gam ing; o r c a r r y in g on a p r e s c r i b e d c a l l i n g in b re a c h o f Sunday o b s e rv a n c e l e g i s l a t i o n .

In a handf\fL o f th e s e d e c i s io n s th e c o u r t s h av e r e q u i r e d t h a t th e d e f e n d a n t 's a c t o f c o m p l ic i ty m u st i t s e l f be o f su ch a n a tu r e a s t o co n d u ce , on a c o n t in u in g b a s i s , t o th e c o n t in u in g com m ission o f th e s u b j e c t o f f e n c e ; c o n v e r s e ly , an i s o l a t e d a c t o f a s s i s t a n c e , su ch as an a c t o f p a t r o n a g e , h a s b een r e g a rd e d a s b e in g so d i f f e r e n t in c h a r a c t e r from th e a c tu s r e u s a s to be in c a p a b le o f b e in g r e g a rd e d as an e f f e c t i v e a id in g o f th e p r i n c i p a l ' s o f f e n c e . T h is was th e 11 12

(11) I d . a t 13.(12) F o r exam ple C anty v I v e r s (1913) 19 A rgus LR 403; A bley v C r o s a r io

[1 9 4 6 ] VLR 53; A l lc h u r ch v C ooper [ l 9 2 3] SASR 370.

2 8 8

g ro u n d o f d e c i s io n in Jen k s v T u rp in (1 8 8 4 ) , ' f o r ex a m p le , w here t h e .Q u e e n ’ s B e n c h D i v i s i o n a l C o u r t q u a s h e d t h e c o n v i c t i o n s o f threep la y e r s who had been ch arg ed w ith a id in g and a b e t t i n g th e p r o p r i e t o rand com m itteem en o f an i l l e g a l g am b lin g c lu b in t h e i r " c o n d u c tin g . . .o f th e h o u se so k e p t and u sed f o r th e p u rp o se o f . . . g a m in g ," c o n t r a r yt o gam ,ng l e g i s l a t i o n . Mr. J u s t i c e Hawkins c o n s id e r e d t h a t th e s e"m ere p l a y e r [ s ] " c o u ld n o t be c o n v ic te d o f a id in g b e c a u se t h e i r a c t so f a s s i s t a n c e b o re no r e l a t i o n s h i p to th e s u b s ta n c e o f th e c o n d u c tp r o h i b i t e d , rem a rk in g t h a t th e "law does n o t make i t an o f f e n c e to addt o th e p r o f i t s o f a gaming e s ta b l i s h m e n t [he., by p l a y i n g ] ; i t r e q u i r e s

14t h a t t h e r e s h o u ld be a s s i s t a n c e m c o n d u c tin g th e e s t a b l i s h m e n t " .The p l a y e r s , i n h i s v iew , w ere n o t t o be r e g a rd e d a s d o in g t h i s . T h is

2 5a n a ly s i s was em ployed m s e v e r a l s u b s e q u e n t r e p o r t e d d e c i s i o n s .

B u t m o st c a s e s o f t h i s ty p e im pose l i a b i l i t y upon p e r s o n s whop e rfo rm one o r two i s o l a t e d a c t s o f s u p p o r t o f a p r i n c i p a l who com m itsan o f f e n c e o f t h i s c h a r a c t e r . T hus, i t h a s b e e n h e ld t h a t th ecu s to m e r o f a sh o p k e e p e r who i s e x e r c i s i n g h i s o r d in a r y c a l l i n g o fa sh o p k e e p e r on a Sunday in b re a c h o f Sunday o b s e rv a n c e l e g i s l a t i o n ,

X 6i s an a c c e s s o ry to t h i s o f fe n c e ; o r a p e r s o n who p l a c e s a b e t w itha n o th e r who i s i l l e g a l l y u s in g a s t r e e t f o r b ookm ak ing , i s an

17a c c e s s o ry to t h i s o f fe n c e j o r a p a r t i c i p a n t in u n la w fu l gam ing a id s 13 14 15 16 17

(13) [1884] 8 QB 505.(14) Id a t 526 (em phasis in o r i g i n a l ) .(15) See Herman (1904) 6 WAR 89 (w here th e c o u r t a f f i r m e d g e n e r a l ly t h a t

" p e rso n s b u y in g t i c k e t s do n o t by so d o in g become a c c o m p lic e s " in th e o f f e n c e o f k e e p in g a common b e t t i n g h o u se - a t 9 1 . N o te , ho w ev er, t h a t th e a l le g e d a c c o m p lic e s on t h i s o c c a s io n w here p o l i c e a g e n t p r o v o c a te u r s whose e v id e n c e th e c o u r t d e s i r e d t o p r e s e r v e a g a i n s t a d e fe n c e c h a l le n g e c la im in g t h a t a s i t was a c c o m p lic e e v id e n c e th e t r i a l ju d g e o u g h t t o have w arned th e ju r y t h a t i t was d e s i r a b l e t h a t i t be c o r r o b o r a te d . The c o u r t was n o t , t h e r e f o r e , d e te rm in in g th e l i a b i l i t y o f th e b ona f id e p a t r o n s o f an i l l e g a l b o o k m a k e r); Hynes (1919) 31 CCC 293 .

(16) F a i r b u m v Evans [.1916] 1 KB 218. R id le y J ' s a t te m p t to d i s t i n g u i s h th e f a c t s in t h i s c a se from th o s e i n Je n k s v T u rp in [1 8 8 4 ] 8 QBD 505 i s u n c o n v in c in g ( a t 2 2 2 ).

(17) B lackm ore v L in to n [ l 9 6 l ] VR 374; n o te e s p e c i a l l y O'Bryan J ' s rem arka t 378 t h a t a p u n te r "by h i s a c t i o n in m aking a b e t w ith a book­m aker who, to h i s know ledge, i s in th e s t r e e t f o r th e p u rp o se o f b e t t i n g , le n d s h im s e lf t o t h a t p u rp o s e and c o u n te n a n c e s and e n c o u r­ag es th e bookm aker in th e v i o l a t i o n o f th e law . T h is i s a id in g and a b e t t i n g . " He o v e r ru le d th e a n a lo g o u s c a s e o f R v B a r r y ; ex p a r t e Connor (1874) 5 ALJ 124 , w here th e d e fe n d a n t p u r c h a s e r was a c q u i t t e d on a p p e a l , o f c o m p lic i ty in th e . i l l e g a l , s a l e o f . l i q u o r by .a h o t e l . .l i c e n s e e on a Sunday. He m en tio n ed Je n k s v T u r p in , b u t s c a r c e ly even a t te m p te d to r e c o n c i l e i t t o h i s own d e c i s i o n . By im p l i c a t io n t h e r e f o r e , th e d e c is io n in Je n k s v T u rp in was t r e a t e d a s h a v in g b een w ro n g ly d e c id e d - a t 379.

or the patronthe occupier in using the premises for unlawful gaming; of a "] icture-show" conducted by another person in breach of Sunday

19observance legislation is an accessory to this illegal transaction.

It is considered that the reasoning of the courts in these lattercases is fully consistent, with general principle, rather than thereasoning encountered in Jenks v Turpin (1884).“ An accessory is,inter alia, he who assists the principal to commit the subject offence,it being unnecessary that this act may not be precisely the samecharacter as the principal's offence. What is crucial is that theaccessory, while knowledgeable of the principal's criminal purpose,ought to render an act of support which he knows does (or will) conduceto the transaction of his criminal purpose. In offences of this typepresently being considered the client's act of patronage does ofcourse promote the subject offence; without it and other acts ofthe same character, the principal wTould not, or could not have

21committed this offence in the beginning.

(C) BIGAMY

It has been confirmed that the unmarried party to a bigamous marriage is, subject to the defence of honest and reasonable mistake, l i a b l e as an a id e , f the c , ime ot 18 19 20 21 22

(18) Fletcher v Cas trisios [.1959] Tas SR 3, though note that the court was concerned with the classification of the players in the subject game as accessories for the purposes of the rule governing the corroboration of the accomplice testimony. The court's distinguishing of Jenks v Turpin [l884] 8 QBD 505 was unconvincing.

(19) Fryer v Steele [1923] NZLR 720.(20) [1884] 8 QBD 505.(21) Note, however, that the alleged act of assistance rendered to another

in the carrying on of an illegal business may not be classified as an act of complicity because it is unrelated to the commission of the crime but instead, is directed towards some collateral goal; for example, the frustration of police attempts to obtain evidence of the commission of the crime: See Col anting (1973) 10 CCC (2d) 307. Note,however, Gale CJO's dissent at 307-8, which is particularly compelling if the view is taken that the crime was still continuing at the time of the alleged act of complicity.

(22) See, for example, Wheat [l92l] 2 KB 119, which is no longer valid however, in its denial of the defence of honest find reasonable mistake in respect of a mistaken belief that the married party was in fact free to marry, on the part either of this party or an unmarried party to a bigamous union.

290

(D) VICTIM

T e American Law Institute's Model Penal Code expressly proposesthat the victim of any offence should be exempted from accessorial

?3liability. In most situations such a rule would be otiose, in thatthe non-consenting victim will usually not have knowingly performed anact of complicity, or if he has, then he will frequently have availableto him the defence of duress (for example, the bank teller who handshis employer's money to an armed robber) . But a number of crimes,

24which are ex facie bilateral, presuppose the consenting secondary participation of a person who may be loosely termed a victim in that the offence is aimed, in part at least, at his protection. Such crimes include carnal knowledge, abortion, and incest. The American Law Institute's proposal that victims of crime ought to be exculpated was aimed principally at this type of situation. However, the policy considerations affecting accessorial liability clearly differ from one such crime to the next. Several major crimes of this nature are examined.

(1) Abortion

The subject of an illegal abortion may be regarded as a victim,albeit a consenting one, on the basis that enactments restrictingabortion are designed partly to protect the woman from abortionsperformed by unqualified people. But the traditional legislative

25provisions prohobiting "unlawful" abortions are of course equally to be regarded as having been designed to protect another specific interest, i.e. foetal life. It has always been held that whereabortion is unlawful the woman subjected to it aids and abets the

. . , 26 principal. 23 24 25 26

(23) See below at p.295ff#(24) Le^in that they require active participation by two people.(25) For example, the Crimes Act, 1900 (NSW), ss.82-4.(26) See Sockett (1908) 1 Crirn App R 101, where the woman patient was

convicted as an aider,* Beebe (1925) 19 Grim App R 22; and Price (1968) 52 Crim App R 295 , which concerned the issue of the corroboration of the evidence of a woman who had been subjected to an illegal abortion.

291

(2) Sexual Crime

(a) Carn a 1 Know .ledge

The English Court for Crown Cases Reserved held in Tyrre11 (1893) 27

that a girl under 16 could not be regarded as having aided a male tocarnally know her, contrary to s.5 of the Criminal Law Amendment Act,1885 (UK) . Lord Coleridge C\7 thought it impossible to say that theAct should "have intended that the girls for whose protection it waspassed should be punishable under it for the offences committed upon

28themselves." Mr. Justice Matthew agreed, considering that it wouldbe impossible to obtain convictions under the statute if the liabilityof the girl in such a circumstance where to be upheld (i.e. , if shewere an accomplice, her evidence would be subject to a warning as to

29the desirability of corroboration).

Conversely Crawford J held in the Tasmanian case of Preston 30(1962) that a girl who had been the subject of a defilement, contrary

to s.3 of the Tasmanian Code (an offence identical to that of carnal knowledge) was to be regarded as an accomplice. This determination was, however, made purely in response to her claim that she was not under any obligation to answer questions directed at her by the Crown at the trial of the principal, on the basis that she had the right to resist questions requiring Sfc;lf'-incriminating answers. No Tasmanian court has, apparently, imposed accessorial liability upon a girl for 27 28 29 *

(27) [1894] 1 QB 710.(28) Id. at 712.(29) Id. at 712. The sentiment was perhaps misplaced, in that the

evidence of the victim of a sexual crime will usually be subject to a warning as to the desirability of corroboration. Perhaps Matthews J had in mind that it is safer to act on uncorroborated evidence in a sexual case than in that of an accomplice (see Cross, Evidence (4 ed) Butterworths, Bond. 1974) at 182, citing Crocker (1922) 92 LJKB 428; similarly see Cross, Evidence (2nd Aust. Edn, ed. Gobbo et al, Sydney, Butterworths, 1979) at p.198). At a more informal level her evidence doubtless would be more persuasive if the trial judge were not to identify her as an accomplice.

T^rrel^l was endorsed (and on one view, applied) in the analogous case of Whitehouse [.1977] 1 QB 868 (where it was held that a girl under 16 cannot aid the perpetrator of an offence of incest upon her.

(b) Inces t

Dependent upon the form of the legislation, and of the sectionspecified in the charge, the two parties to incestuous intercoursemay be regarded either as joint principals or as principal and

32accessory. The question of complicity does not of course ariseunless there is consent on the part of both parties. The relevantreported cases by and large concern a charge against the male partyonly, as principal, where it is alleged that he instigated theintercourse, with the female's liability being viewed at most asbeing that of accessory. In the majority of these she had beencalled as Crown witness, and contention had centred on whether ornot she was an accomplice for evidential purposes. In almost everycase the court has decided that she must be so regarded, subject to

33her having consented.

carnal knowledge where she has herself been carnally known.'

(c) Buggery and Related^Crimes

In most of the reported decisions concerning legislative offences34of sodomy only the principal. has been charged, with the question of

whether or not the pathic party is an accessory being significant for evidential purposes merely, he being called as a Crown witness. In all cases the courts have determined that the latter is an accomplice 31 32 33 34

(31) Mr. Justice Crawford distinguished Tyrrell [1893] 1 q,B 710 upon the simple basis that it was concerned with the construction of a different statute; in contrast, he considered, the aiding provisions of the Tasmanian Code applied generally to each and every such crime as was created by it, of which defilement was one. But in policy terns both enactments were identical, and it was considerations of policy which prompted the court to relieve the appellant girl of liability in Tyrrell.

(32) In N.S.W. for example S.78A of the Crimes Act, 1900, penalises both the male and female and principal offender, wThile in England the Sexual Offences Act 1956, s.10, creates liability in the male as principal, and s. 11 creates liability in the female as a principal.

(33) See for example Brown (1910) 6 Crim App R 24; Brown (1911) 6 Crim App R 147; Stone (1910) 6 Crim App 89; BloodwOrth (1913) 9 Crim App R 81; Draper (1929) 21 Crim App R 147. See however. Dimes (1911) 7 Crim App R 43.

Also see the Queensland case of Starr [1969] QWN 23, where it was decided that a 14 year old girl was not an accomplice in an act of incest perpetrated by her father.

(34) r.*e.the person who has penetration in ano of the putative victim.

for this purpose, so that the warning as to the desirability that hisevidence be corroborated must be given (unless he is a boy under

35fourteen, in which case he is not so classifiable).

Other kindred cases concern charges of gross indecency with a maleperson, and like offences. Similar principles have been applied inthese, so that consenting parties on whom the indecencies have beenperpetrated have been viewed as being accessories. Most such decisionshave, however, been concerned with the identification of the pathic

36party as an accomplice for evidential purposes merely.

(E) CONCLUSION 35 36 37 38

37The Model Penal Code proposes in s.2.06{6) that unless legis­lation provides to the contrary, a person should not be an accomplice in an offence committed by another person if (a) he is a victim of that offence, or (b) the offence is so defined that his conduct is inevitably incident to its commission. Together these two clauses would seem to include all ex facie bilateral offences, though obviously they extend also to comprehend certain other types ofoffences as well. The British law Commission endorsed this approach

38in its working paper on complicity (i.e. Working Paper No.43).

(35) S( 3 Tate (1908) 1 Crim App R 39; Tatam (1921) 15 Crim App R 132 (vvaere it was decided that boys under 14, even if they have consented, cannot be accomplices in sodomy); Rigney [1975] SASR 30 (where the court held that as a matter of fact the subject of the buggery had not consented, so that his evidence was not that of an accomplice) . See also JeHyman (1838) 8 C & P 604; 173 ER 637, where a husband was charged with committing an unnatural offence with his wife, through having penetrated her person in ano.It was held that the wife would not have been an accomplice so requiring the confirmation of her evidence, unless she had consented to this.

(36) So that once he has been identified as an accessory it has been incumbent upon the trial judge to instruct the jury as to the desirability that his evidence be corroborated - see Baskervilie [1916] 2 KB 658; Charavanmuttu (1930) 22 Crim App R 1; Sneesby (1951) 45 QJPR 61; McAllister £l952] NZLR 443 (all of these decisions concerned tine identification of the secondary participant as an accessory or otherwise for evidential purposes).

And see R v. B (1954) 7.1 WN (NSW) 138.(37) £*6^in the Proposed Official Draft.(38) Though the working party considered the "victim" clause to be

redundant, in that crimes of this type are comprehended by the latter, more general clause proposed by the Model Penal Code in s . 2.06 (6) (b) . The British Law Commission's working party would therefore have supported the enactment of ,th,is, latter clause, ina codified re formation of the law of complicity: see Working PaperNo.43 at p .65ff.

294

The second of these provisions(i * s.2.06(b)) may be considered.first. The commentary accompanying the original draft of the Model

39Penal Code envisages that such a provision would exonerate from accessorial liability such persons as the woman upon whom an illegalabortion is performed; the purchaser in an illegal sale; the unmarried

40party to a bigamous marriage; and the person who pays a bribe. The Law Commission's Working Paper No.43 envisages, inter alia, that the following persons would benefit from such a clause - the spectators to an illegal obscene performance, and the residents of an old persons' home who know that it is being conducted without a licence, this conduct being penalised. The commentary to the Model Penal Code justified the clause upon two bases: First, that if the secondary party is deemednot to be an accessory, then a warning as to the desirability that hisevidence be corroborated will not be required, so that the conviction

41of the principal offender will not be made "unduly difficult/'S e c o n d l y , it was argued that such an accessory ought to be exoneratedfrom accessorial liability having regard to the supposed ambivalenceof public attitudes to certain of these bilateral crimes (instancing"prostitution, prohibiticta, even abortion") which "makes enforcementvery difficult at best; if liability is pressed to its logical extent,public support(i.e*, for the conviction of the principals) may be

42wholly lost." In other words, public policy considerations make it advisable to exonerate persons who would otherwise be liable for accessorial participation in these offences.

The first of these claims is quest.ion-begging. Such an argument would, if pressed to its logical extreme, result in the exoneration of the accessory to any crime. In any event, the rule as to corroboration is inapplicable to the trial of summary offences. Many crimes of this type are summary. What this contention really assumes is that crimes of a bilateral character are inherently different from other crimes, so that the accessory is inherently less culpable in comparison with his counterpart in other crimes. But is this necessarily so? 39 40 41 42

(39) I.e., the Model Penal Code: Tentative Draft.(40) Model Penal Code: Tentative Draft (commentary) at p.35.(41) Id., at p. 36.(42) Id.

295

Consideration of this latter question leads of course to the second, and major argument advanced by the American Law Institute. It is difficult to see how offences which are so defined as to make the conduct of the defendant, qua. accessory, an inevitable incident of their commission, are in general of such a nature as to make it unsafe to convict the secondary party. Such an exoneration of liability would be wholly arbitrary, in that the policy justification for inculpating this party will differ in strength from one such offence to the next.For example, it may be felt to be appropriate that the under-a&e girlwho participates in aoxuai. intercourse should not incur criminal liability. But what of the person who bribes a public official? Surely this act conduces to the corruption of public administration.Or what of the secondary party to a bigamous marriage? Or the purchaser who purchases intoxicating liquor from a hotel licensee after hours?In the latter three cases clearly it may be argued that consideration of public policy - for example, the preservation of marriage, or the repression of drunkenness, justify the inculpation of the accessory.The sweeping exoneration of all consenting secondary participants in any conceivable crime of'’this type would be not merely arbitrary, but irrational.

The suggestion in the British Law Commission's working paper oncomplicity that the secondary party in crimes of this character oughtto be exonerated because these offences have generally been designed

43to protect this party, is likewise fallacious. In some such casesthis will be so; equally, in other cases of this type the assumptionwill not hold. The other argument in Working Paper No. 43 againstthe incrimination of accessories in this circumstance is that offencesought not to be created by implication, be. , that if the legislaturedesires to create accessorial liability for this type of offence, it

44ought to expressly provide this. Such an argument is one against a doctri? e of accessorial liability simplici ter. And yet the working party jcoposed in Working Paper No.43 a codified doctrine of complicity which would apply automatically to existing and future crimes unless a given crime was excluded from the application of this doctrine by statute. 43 44

(43) Working Paper No.43 at p.69.(44) Id. at p.69.

The commentary accompanying the Model Penal Code justified the exclusion of the consenting "victim" of another's crime from accessorial liability in this crime on the basis that the punishmentof the victim "confounds the policy embodied in the prohibitionsr t 45[which] ... is laid down, wholly or in part for their protection.*'There is obviously much more justification for an exclusion of accessorial liability in these more limited terms, though the argu­ment in favour of a clause such as is found in s.2.06(6) (a) will be a good deal less cogent in some such situations than in others. For example, there can be no logical justification for incriminating the girl who is carnally known as an accessory to the male perpetrator's crime, but what of the woman who is subject to an illegal abortion?She is able to be regarded as a person for whose protection the statute has been designed, and thus a consenting "victim"; but such legislation may equally be viewed as protecting other interests, such as foetal life. A similar ambiguity would be encountered in the circumstances of incest. On one view the girl who is subjected to incestuous intercourse is a victim, even though she may be a consenting one, in that the legislation was designed in part for her protection. But, on another view, this policy goal is subsidiary if the legislation is to be regarded as having been inspired principally by eugenic considerations.

In summary, there must be a doubt as to how a legislative usage of "victim" would, or should be interpreted. It may, therefore, be advisable to make more specific provision as to which categories of consenting participants in crime are to be exonerated frcm accessorial liability.

(II) WITNESSES TO_CRIME

(A) GENERALIf a person is party to a conspiracy for the commission of a

crime and is present at this commission by his confederate, he will be implicated in it as an aider. This will be so even if his presence is a merely passive one. In the first place, he will be viewed as encouraging the offence by virtue of his act of agreement* 45

(45) Model Penal Code: Tentative Draft (commentary) at p.35. see Working Paper No.43 at p.67.

Similarly

297

But his very act of presence will in addition be viewed as an act of • complicity, in that it may be regarded as an act tending to fortify the resolve of the principal.

Where there is no conspiracy, however, and a person merely standsby in a neutral fashion while some other person commits a crime, thenthe witness is not liable as an accessory to this crime. This is becausehe performs no act of complicity. Passive acquiescence in another's

46crime will not constitute him an accessory, unless a duty to intervene47and frustrate the commission of this crime is imposed upon him by law.

But the lack of a conspiracy notwithstanding, the witness to acrime may become an accessory to its commission where his presenceis not neutral, but rather, positively encourages or otherwise facilitatesits commission. It has been seen that in order to be liable as anaccessory a person must have both the mental element appropriate to theaccessory, and perform an act of inculpation. At the minimum, hepossesses mens re a if he performs an act of encouragement or assistancein the knowledge of the principal's (or prospective principal's)criminal purpose, seeing (or foreseeing) that this act conduces (orthat it will possibly conduce) to the commission by the principal of

48the subject crime. (The accessory must also, of course, have the49mental element appropriate to an accessory to the crime itself.)

Obviously, a person witnessing a crime is well positioned to see the facts and circumstances of its commission. And he may have an intention to encourage or assist its commission. But he will need as well to perform an act of complicity, such as an act of encourage­ment. Is a passive presence which in fact encourages the principal, a sufficient such act of support? Or, must he do some act reaching beyond mute presence, such as to shout encouragement, or perform some other positive act signifying this, before he may be regarded as performing an act of inculpation?

In principle it is unnecessary that the witness perform some act going beyond presence, such as to voice encouragement. To be present 46 47 48 49

(46) For examples, where a witness "stood by" in these circumstances and did not incur liability, see Gray (1917)12 Grim App R 244; Smith v. Baker [1972] Grim LR 25; Doorey ~[-L97o] 3 NSWR 351; Dutchak ]jL924 j 4 BLR 973; Preston (1949) 93 CGC~81 (SC).

(47) See Chapter Nine.(48) See p.<5)t above.(49) See p.qOff., and Chap.1',

298

voluntarily at the crime is to perform a physical act. If, therefore * this presence encourages the principal in his criminal purpose, to the knowledge of the witness, the latter is prima facie an accessory.That he should go further than this and signify his approbation of the principal's act in sane additional way is, logically, legally unnecessary. Such an additional act will represent no more than one further element in the existing fact situation (though obviously an overt act of encouragement will be evidentially significant) . Put another way, the fact of presence is equally a physical, act, along with words or other gestures.

Such an analysis has been confirmed in two recent English cases.However, the refusal of the English Court for Crown Cases Reserved in

50Coney (1882) to allow, unequivocally, that mute presence per secould constitute an act of complicity has entrenched certain well-known obiter dicta in the law which even today are apt to mislead.In Canada, for example, the courts would seem to have accepted, inreliance upon Coney, that presence cannot in itself constitute anact of accessorysbip, though the point cannot be said to have been

53conclusively decided.

52An early authority m the area is Lord Mohun1 s case (1692)' wherethe court held that even though a person may know of his friend'sintention to murder a third person, and accompany him to the scene ofthe murder and witness this, he is not guilty of murder unless he is"designedly present." The judges evidently meant by these, words thatthe del ndant must have intended to be present so as to give theperpetrator "more courage to put it into execution," so representing

53his approbation of it. The implication of these remarks was that mere presence could constitute an act of encouragement, and thus of aiding, provided that because of antecedent circumstances this presence was such as to represent an encouragement to the principal to proceed with the crime and that, moreover, the witness knew that his presence had this significance. 50 51 52 53

(50) [1882] 8 QBD 534.(51) See below at p.jCkJ- above.(52) (1692) Holt KB 479, 90 ER 1164.(53) Id. at 480/1165.

299A similar concept ion of the; law emerged in Vaughan J fs summing up to the54jury in Young(1 638), r where the defe ndant,who had been present at a duel

resulting in the death of one of the participants, had been charged with murder.In the view of Vaughan J, a person could become an aider and abettor if heencourages or assists the principal by his "advice or presence." While a personwould not become an aider because of "mere presence alone," he would aid theprincipal "if he went for the purpose of encouraging or forwarding the conflictalthough he did not say or do anything. he did not expressly limit this form

56of mute inculpation to those who are in preconcert with the principal.The decision in Coney( 1882) and its apparent divergence from the line of

reasoning; represented in Mpiiun and Young will be reviewed shortly. It is to beobserved, however, that two recent English decisions confirm that a mute witness-may aid the commission of a crime per medium of the physical fact of hispresence, independently of concert.

The first of these decisions is that of the English Court of Criminal 58Appeal in Allan(1 96 5)" where the appellants had been convicted of making an

affray. The evidence disclosed that they had been present at a fight between two opposing groups , but it was unclear as to whether or not they had joined in.The trial judge had put several alternative bases for conviction to the jury. In contention were the propositions that without preconcert, a person who,being present, either (a) knowing that his continued presence encouraged the fight, or(b) intending to join in the fight if his help was needed by his side, was guilty as an aider. The court disapproved tho second of these propositions alone viewing it as requiring the conviction of a man on the basis of no more than his thoughts, though they were net acted upon.In other words, something more than purely passive, and outwardly neutral spectatorship was required; there had to

59be an act of e n c our age men t or assistance of the principal. nowever, the courtevidently accepted, in its failure to reprove the proposition under (a) above,that wnere the circumstances were such that the defendant’s presence, thoughmute, actually encouraged the principal, and the defendant was aware of this,

60he could thereby be convicted as an aider and abettor.61In Clarkson(1971) the English Court of Appeal accepted without

ambiguity that voluntary, mute presence would constitute an act of

(54) (1838) 8 Car & P 6 44, 175 ER 655.(55) Id. at 655/658( 56) Contrast the duelling case of Cuddy(18 4 5 ) 1 Car & K 2 10,174 EH 779*

(57) (1082) 8 Q,BD 534 .(50) (1965) 1 CJB 150.(59) 19* at 138.(60) Id. at 135.

(61) ' [197 1] 3 Ail m 344-

500

accessoryship., where i t encouraged the commission of crime to the

knowledge of the spectator. The appellants had been convicted of

aiding and abetting rape. They and the p rin c ip a ls were so ld ie rs , and

the severa l acts o f rape had taken place a t a room in th e ir barracks.

The evidence established that they had been present at these rapes,

but i t did not show that they had been responsible fo r any overt act

beyond passive presence.

In the Court of Appeal's view the appellants would have been

properly convicted only i f the evidence d isclosed that they had an

intention to encourage the crime and that they had encouraged i t in

f a c t . ^ Such a w ilfu l encouragement c e rta in ly could be constituted

by a "p o sitiv e act" such as words or gestures going beyond the fa c t6 3of presence i t s e l f . But the court a lso affirm ed that mere presence

could in i t s e l f constitute an act of encouragement, though unaccompanied64by words or gestures. Because the judge-advocate who presided over

the court-m artial resulting in the conviction o f the appellants had

not d irected the court as to the need fo r the evidence to e stab lish an

intention to encourage agd encouragement in fa c t , the convictions were 65quashed.

6 6The V ictorian Supreme Court's decision in R u sse ll (1933) may, on

one view, be regarded as supporting the idea that a p assive presence

which in a l l the circumstances encourages the p rin c ip a l in the commission

of the sub ject crime constitutes an act of accessoryship on the part of 62 63 64 65 66

(62) Id . at 347-9.

(63) Id . at 346.

(64) Id. at 347. That mere presence could in i t s e l f constitute an act of com plicity was emphasised in the c o u rt 's remark that a drunken man who was attracted to the scene of a rape or rapes and who remained as a voyeur, and whose presence a c tu a lly encouraged the rape, though he did not re a lise th is , would not be g u ilty as an accessory to rape. This would be so only because he lacked the awareness that his presence had the e f fe c t o f encouraging the p rin cip al or p rin c ip a ls , his " s e lf -d is c ip lin e [being] loosenedby d rin k": Clarkson at 347.

(65) Jr- p a rt ic u la r , the judge-advocate had sought to explain thep osecution case by resort to an i l lu s t r a t io n involving concert, so that the major basis of accesso ria l l i a b i l i t y would have been that the appellants had conspired with the p rin c ip a ls fo r the rapes, whereas the prosecution case had merely been that they had been present at the rapes and encouraged them, though without being in concert: id . at 348ff.

(66) [1933] VLR 59.

30 1

the witness. But such is not an unambiguous ratio in this decision,given that the court also inclined to view the witness's liability quaaccessory as being supportable upon the basis that he had omitted tointervene and prevent the commission of the crime where the law requiredhim to do this. It is unclear as to whether the court would have upheldhis liability independently of the latter consideration. Russell is

6 7discussed elsewhere in this study.

(B) TOE DECISION IN CONEY - AN EXCEPTION TO GENERAL PRINCIPLE * 69

Coney' s case (1882),^ which was a decision of the Court for CrownCases Reserved, concerning the conviction for aiding an assault ofseveral of the spectators to an illegal prize fight, the combatantsin which were admittedly guilty of an assault. In principle, it hasbeen seen, a person who is voluntarily present at a crime and whosustains the principal in Its commission by his presence, even if hedoes no more than be present, commits an act of complicity. Thisreasoning would seem to be even more compelling in the circumstancesof an illegal spectacle staged for an audience, for here of coursethe witness's presence not merely encourages the principal or principalswho perform this spectacle but is -integral to this. Without an audiencethe crime would not be committed. And in two reported English casesprior to Coney dealing with complicity in crimes arising from an illegalprize fight, the trial judge accepted obiter that persons present as apart of the audience to such a spectacle would be inculpated as

69 . . . .accessories m any such incidental crime. By implication, it was unnecessary that the prosecution would need to have proven that they shouted encouragement to either combatant.

Coney's decision is, however, more ambiguous. The evidence did not establish that the appellants had done anything beyond reaching mute presence. By a majority of five-to-three the court quashed their convictions. The formal basis of decision was that the trial judge's direction to the jury that the presence of a given defendant in the

(67) See pp 2 71 f7 above.(68) (1882) 8 OBD 534.(69) See Patterson J's remarks in each of Hargrave (1831)5 Car & P at 170,

172 ER 925 at 926; Perkins (1831) 4 Car & P 587, 172 ER 814 at 815; (though see Billingham (1825) 2 Car & P 234, 172 ER 106).

3 0 2

crowd watching the fig h t was not merely evidence but, i f unexplained,

conclusive proof that he had aided the fig h te rs in the assau lt they

had in flic te d upon one another, was erroneous. On the contrary, the

Court fo r Crown Cases Reserved held, th is presence was no more than70evidence of aiding. Accordingly, the t r i a l judge usurped the ro le

of the ju ry . But while this may have been a convenient b asis of

d ecision , i t is unclear as to what the eigh t m ajority judges would

have required fo r conviction of a spectator in th is s itu a tio n . While

a t an abstract le v e l the decision does not deny that d e lib erate ,

passive presence at a crime can constitute an act of com plicity, the

m ajority judgements do disclose a transparent h o s t i l i t y to the idea

that passive spectatorship should constitute a person an accessory to

an a ssau lt in the situation of an i l l e g a l prize f ig h t .

The leading m ajority judgements are those o f Cave, Stephen and

Hawkins J J . Mr. Ju stice Cave required that a sp ectato r, in order to

be g u ilty o f a crime, must "sustain . . . or encourag[e] . . . and fo rw ard ... 71the offence. He claimed that the t r i a l judge in another case of th is

72type could not have intended to say that "the mere on-looker" to an73i l l e g a l fig h t were g u ilty as a id ers. But the p rin c ip le apparently

contended fo r here, i . e . , that mere passive presence as a spectator

could not constitute a su ffic ie n t a ss is t in g or encouraging of the

p rin cip a l o ffen ce, was obscured in h is remark elsewhere that where

"presence may be en tire ly accidental, i t is not even evidence of

aiding and abetting. Where evidence is prima fa c ie not accidental i t~ 74i s evidence, but no more than evidence, for the ju r y ." This seemed

to envisage that presence per se could con stitu te an act of com plicity.

Mr. Ju s t ic e Hawkins considered that to con stitu te him self an aider

a person had to take "some active steps . . . by word, or action , with

the intent to in stig ate the prin cip al . . . " To be l ia b le fo r an

assau lt a person in the appellants' position had to "encourage 70 * 72 73 74

(70) See Coney [1882] 8 QBD 534 at 537, 8 (Cave J ) , a t 549-50 (Stephen J) , at 559-60 (Hawkins J) , at 561 (Huddleton J ) / at 562 (Manisty J) and at 567 (Denman J) .

(7!) Id . at 541.

(72) I . e . , Billingham (1825) 2 Car & P 234, 172 ER 106.

(73) Coney [1882] 8 QBD 534 at 542.,

(74) Id. at 540.

303

intentionally by expressions, gestures or actions intended to signify' approval ... It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present at a crime , and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would bejustified in finding that he wilfully encouraged and so aided and

7 5abetted."

These comments leave open the possibility that mute presence, if "purposive", could constitute aiding. But in the particular circum­stances of Coney, he considered that there was "grave doubt" as towhether the evidence, which did at least establish mute spectatorship,

76was adequate to establish an aiding by each appellant.

The observations of Stephens J were more decisive. While endorsing77"entirely" Cave J's opinion, he was of the specific view that

voluntary presence at a prize fight out of "mere curiosity" did not represent a sufficient encouragement for the purpose of aiding. Itwould be different if the person were to "act ... as second" or do

78any "positive act to encourage the fight."

These judgements do not, therefore, provide a secure basis forincriminating the mute spectator to an illegal spectacle. One possibleview of the decision is that an "accidental" spectator, i.e.,presumably one who comes casually upon the scene of the crime find whoremains out of curiosity, is not an ai.der, as distinct from one whocomes deliberately to see the spectacle and who remains for thispurpose, who is. This distinction was expressly contemplated both by

79 80Cave J " and Lopes J„ The distinction is, perhaps, a fallacious one.A person's motive for coming in the first place to view an illegal spectacle should not be legally significant. The real issue is, does he remain present and observing in the knowledge that his presence,

(75) Id. cl t. 557-8.(76) Id. at 559.(77) Id. at 548.(78) Id. a t 550.(79,) Id. at 540.(80) Id. at 552 .

304

along with that of the other spectators, fortifies the principals who. perforin the spectacle?

Another possible view of the majority reasoning is that these judges intended to affirm that the passive spectator should be exonerated, whether or not his presence, to his knowledge, encourages the performance of the spectacle. Certainly Stephen J would seem to have gone as far as this, and if they did not put their conception of the law in so unqualified a form, then such a result would not have been disagreeable to Caves and Hawkins JJ. Such a view may have been a merciful one, but it is not in conformity with the general doctrines of complicity for the reasons indicated. For such an act of spectatorship does facilitate the cr:i ie, in thcit a spectacle like a prize fight is dependent upon an audience. As Lord Coleridge CvT observed in his minority judgement in

81Coney, "xn such a case as this the spectators really make the fight ..."In these terns it is difficult to see that Coney is really compatible

82 83with the later English decisions of Allan (1965) and Clarkson (1971) , in so far as it purports to declare that mute presence at a crime cannot constitute an act of complicity. In this respect it is probably to be regarded as having been overruled by Allan and Clarkson, even as these decisions cite approvingly some of the general dicta in Coney.

Prior to Allan and Clarkson, however, Coney exerted an influence in. 84 the crudely reasoned English decision of Wilcox v. Jeffrey (1951).

85And, in Canada, Coney has been frequently cited in witness cases, andin one recent decision at least, it would seem to have been generallyaccepted that passive spectatorship per se cannot constitute an act of

86complicity where the witness is not in concert with the principal.'

(81) I d . at 569.(82) [1965] 1 QB 130.(83) [l97l] 3 All ER 344 .(84) [1951] 1 All ER 464 - see for example Goddard CJ's citation of Cave

J's distinction between spectators accidentally present and those deliberately present, in Coney [1882] 8 QBD 534 at 540 (Wilcox v. Jeffrey at 445-6).

(85) Preston v. R. (1949) 93 C'CC 81; Black (1970) 4 CCC (2d) 251; Cruise (1970) 4 CCC (2d) 338; Clow (1976) 25 CCC (2d) 96; and see generally Dunlop (1978) 37 CCC (2d) 90; Cosgrove (1976) 29 CCC (2d) 169.

(86) Salajko (1970) 1 CCC (2d) 352 (note, however, that the judgement itself is by no means as emphatic in it reasoning as is indicated in the headnote).

305

(C) CONCLUSION

In principle, and on the balance of authority, the passive presence of a witness to crime which presence encourages the commission of this crime i : capable of constituting an act of complicity. Whether or not the witness will thereby become an accessory is dependent upon his mental element.

The British Law Commission's Working Party on complicity was unhappy with the idea that the members of an audience to an illegal spectacle should be incriminated as accessories. Their Working Paper No.43 proposed that a person would not become an accessory to an offence "if the offence is so defined that his conduct in it is inevitablyincidental to its commission," unless "such conduct is ... expressly

87penalised." This provision was expressly stated to effect the88exoneration of the witness to an illegal performance. This rule of

course would not only relieve from liability the mute witness, but itwould as well exculpate the spectator who encouraged by words orgestures. Doubtless a case can be made out for relieving the spectatorto an audience contingent crime, given that each individual spectator'scontribution to the crime will usually be of a very minor order compared

89to those who organise or personally' stage the performance. However,for the reasons noted earlier in this chapter, it is suggested thatthis provision endorsed in Working Paper No.43 is far too broadly

90constructed, and that a more precisely defined ambit of exculpation would need to be drafted, if it is desired to have one to relieve this type of secondary offender from liability.

The obvious argument against this form of relief is that it would exonerate those persons whose very presence is essential to the staging of the illegal spectacle. Such a result would be particularly anomalous when it is allowed that the spectator who by his presence (or further overt act) encourages a crime which is not audience-contingent would remain liable. His contribution to this crime may also be of a relatively

(87) Working Paper No.43 at p.65ff. This proposition was adopted from the Model Penal Code, Proposed Official Draft, s. 2.06 (6) (b) , though the commentary on this subsection in the Model Penal Code: Tentative Draft at p.35ff did not expressly view such a rule as exonerating the witness in an illegal spectacle from criminal liability.

(88) See Work-in g P a pe r No . 4 3 a t pp> .67- 68 ..(89), This consideration was, obviously, in the minds of .the .majority judges .

in Coney [1882] 8 QBD 534. 90(90) See p.793 above.

306

minor order, and in his favour, the crime thereby encouraged might w ell

have been committed without his support, which i s not so in respect of

the audience-contingent spectacle. Such an anomaly could not be cured

by providing fo r the general exoneration o f a l l w itnesses to crime who

are not in concert with the p rin cip al, however. This could lead to odd

r e s u lt s , in exonerating for example the person who shouts encouragement

to another while the la t te r assaults a th ird in the s t r e e t .

( I I 1)___THE SUPPLY CASES

A person who supplies goods or information used in the commission of a crime in the knowledge that the prospective principal plans to employ these goods or this information for this purpose will generally become an accessory to this crime, on the basis that his act of supply facilitates the crime.

(A) THE SUPPLY OF GOODS

That the supplier o f goods used in the commission of an i l l e g a l

sa le is crim inally lia b le for that eventual sa le as an accessory has

been u n iversa lly recognised by the courts. In the English case o f91Cook v. Stockwell (1915) for example, the defendant brewer was

convicted of counselling or procuring the i l l e g a l sa le of beer by

h is p rivate customers upon proof that he had sold them qu an tities o f

beer much in excess of the amount which they could have consumed

themselves. They had sold the beer to so ld iers tem porarily quartered 92in th e ir v i l la g e .

S im ilarly the person who supplies equipment used as a means to

commit a crime becomes incriminated as an accessory. The leading93decision i s that o f Bainbridge (1959) where the English Court o f 91 92 93

(91) (1915) 31 TLR 426.

(92) Other cases canvassing this issue include Gould v . Houghton [ l9 2 l]1 KB 509, though the wholesaler supplier was exonerated because of a procedural facto r; Cafferata v . Wilson [1936] 3 A ll ER 149. See also Bowker v . Premier Drug Co Ltd [l928] 1 KB 2 17 , where theK i n g ’ s B e n c h D i v i s i o n a l C o u r t q u a s h e d t h e c o n v i c t i o n o f a w h o l e s a l e r f o r c o u n s e l l i n g t h e s a l e o f a n i m p u r e f o o d s t u f f b y ar e t a i le r , which had been supplied by the w holesaler. The conviction was quashed p rin cip a lly because of a defect in the inform ation. But see Lord Hewart. CJ at 229, who considered that the appellant ought to be exonerated because of a lack of f u l l mens re a . His th ird objection at th is point, i .e . that the w holesaler did not know that the r e ta i le r would not s e l l the product with a warning lab e l to the e f fe c t that' the substance was re a lly a fraud, was u n re a lis t ic .

(93) [i960] 1 QB 129. On the other hand see E l l i s v . Guerin [l9 25] SASR 282, which decision i s , howeveir, to be explained by reference to the sp e c ific wording of the statute creating the in stan t offence (see theHi c p n c c i nn +- r> f 1 PV 41 ^ &T"D 104

30?

Criminal Appeal upheld the ap p e llan t's conviction for counselling an

offence of o ffice-b reak in g . He had supplied oxygen cutting equipment

to persons who had jo in t ly broken into a bank and stolen from i t , using

the equipment to e f fe c t th is purpose. The Crown had alleged that B knew

that the equipment was to be used by the persons supplied in the

commission o f a breaking offence. The court endorsed the d irection of

the t r i a l judge who had instru cted the jury that i t had to be proved

that the appellant "knew that a felony of that kind [ i , e . , a breaking

o ffence] was intended . . . The knowledge that is required to be proved

. . . i s not the knowledge of the p recise crime . . . " The t r i a l judge

explained that by th is he meant that the defendant did not have to

know the p recise circumstances of the crime; for example, that the94p a rtic u la r branch o f a p a rt ic u la r bank was going to be broken in to .

But the surrounding remarks ind icate that he was a lso of the more

general view, that i t was not s ig n if ic a n t that the defendant might not

have known p re c ise ly which breaking, entering and ste a lin g offence

would be committed, provided that he knew that one or another breaking

offence of a sim ila r character would be committed. I t would not,

however, s u ff ic e fo r incrim ination i f the defendant had believed that

a quite d iffe re n t type of offence would be committed, such as i f the

defendant had believed that the equipment would be used to break up95stolen property.

On the othei hand, the English Court o f Criminal Appeal upheld the9 6appeal o f the appellant in Lomas (1913), who had been convicted of

counselling housebreaking a fte r he had returned to the prospective

th ie f a jemmy which he had o r ig in a lly borrowed from the t h ie f , who owned

i t . The la t t e r had requested th is . No reason was given by the court.

The de< ision was subsequently explained in Bullock (1955) - a decision

o f the same court - as presumably having been decided on the b asis

that the "appellant was not in a p osition to withhold the jemmy orr a 97permit the owner to use the -jemmy," in that i t was not h is . 94 95 96 97

(94) Id . at 132 .

(95) Id. a t 13 2 - 13 3 . See the e a r l ie r cases of Bullock [l965] 1 A ll ER 15 ; Pope v . Minton [l954] Crim LR 7 1 1 ; Bateman v . Evans [1964] Crim LR 601. Bainbridge was followed in B e tties L19 66~]~ Crim LR 503.

For a d iscussion of the general issue of how d etailed the accesso ry 's knowledge of the p r in c ip a l 's crim inal purpose must be, see p. ‘]2.3£f' above.

(96) (1913) 9 Crim App R 220.

(97) [1955] 1 A ll ER 15 at 17 .

308

As w e ll, l i a b i l i t y has been imposed upon persons (including

companies) who supply goods which are subsequently carried in an 98i l l e g a l manner.

(B) SUPPLY OF INFORMATION

99The Supreme Court or. New Zealand s decision in Baker (1909) is

authority for the proposition that a person who knowingly supplies

information needed by another to commit a crime in contemplation,

counsels that crime. Here the defendant had to ld the prospective

p rin cip a l of a technique for blowing open s a fe s . He had been approached

by the la t te r fo r th is information, which he gave g ra tu ito u sly , the

p rin cip a l being a friend. The type of crime in contemplation was

n ece ssa rily known to the counsellor in these circumstances.

(C) ISSUES RAISED BY THE SUPPLY CASES

The su p p lier, i t has been noted, need not know exactly which offence

i s to be committed, provided that he knows the type o f offence to be

committed.98 99 100 Thus, fo r 'example, i f in a given ju r isd ic t io n le g is la t io n

creates severa l breaking offences which are d istinguished according to

the type o f premises which are broken in to , or by reference to whether

or not the breaking and entering is committed in the n ig h t ,10 1 102 i t would

gen erally be irre le v an t that the supplier did not contemplate p re c ise ly

the breaking offence with which the p rin cip a l or p rin c ip a ls would be102charged, provided that he knew that, they planned a breaking o ffen ce.

Bainbridge is also authority for the proposition that the defendant

need not know the precise circumstances of the commission o f the crime in

contemplation i e . those facts which d istin gu ish th is from other such acts 103o f commission.

(98) L ia b il it y in these circumstances has been canvassed in , fo r example, Carter v. Mace [ 1949] 2 A ll ER 714 ; National Coal Board v . Gamble "HhSiTJ 1 QB 1.1; Davies, Turner & Co Ltd v . Brodie [l954] 3 A ll ER. 83 (the ap p ellan t's conviction in the la t t e r case was quashed fo r a want of mens rea) .

(99) [ 19 13 ] 28 NZLR 536.

(100) Bainb r idge [i960] 1 QB 129 at 13 2 - 13 3 . See gen erally a t P - 12 5 f f .

(101) See fo r example the Crimes Act, 1900 (NSW), s .lO G ff.

(102) The s itu atio n might, however, be d iffe re n t i f the p rin cip a l or p rin cip als commit th e ir breaking offence in circumstances of aggravation which were not in the su p p lie r 's contemplation, and which additional circumstances ground l ia b i l i t y for a p articu lar breaking offence a ttra c tin g a' greater' penalty. See for example the second branch o f s . 1 1 3 o f the Crimes Act, 1900 (NSW) (breaking and entering a dw elling house, e tc , while armed w i t h an offensive weapon or instrument.) .

309

Another issue is suggested in the B r it ish Law Commission's Working J 04Paper No.43. This is whether a person who knowingly supplies the goods

or infr rmation used to commit a given crime, is l ia b le merely for one

such or fo r each and every such crime as may be committed with the

f a c i l i t y thereby provided. The problem has not come before the courts.

The Working Paper proposes that where "a p rin c ip a l is helped in the

commission of more than one offence by a sin g le act o f help , the

accessory who afforded that help sh a ll not, a fte r having been convicted

of one or more of such offences, be convicted of another o f such105offences of equal or le sse r g ra v ity ." The provision is open to the

objection that the prosecution would s t i l l be able to charge su ccessive ly

more serious offences i f gradations of l i a b i l i t y are d isc losed by the

fa c t s , thereby defeating th is intended p rotection . This is acknowledged106in Working Paper No.43.

I t i s considered that no sp e c ific provision is needed in any cod­

i f i c a t i o n of the law of com plicity, in order to lim it the suppliers

l i a b i l i t y , as the supplier ought to incur l i a b i l i t y fo r that crime,

or those crimes which he ^contemplates w il l p o ssib ly be committed by

the person or persons whom he has a ss is te d . This i s o f course the 107present law, and in th is respect he is in no d iffe re n t a position

than any other accessory who performs an act of promotion or fa c i l i ta t io n

in advance of the subject crime. In p ra c tic e , i f (fo r example) a

person supplies a weapon for a robbery he w il l frequently be proven to

have contemplated that only one offence of th is type would be committed

by the p rin c ip a l. I f he has knowledge that severa l such crimes w il l

possib ly be committed, he w ill be incrim inated in each of them when

committed, and th is as is as things should be (accepting fo r the moment,

that the ambit of accessoria l l i a b i l i t y i s , in g en e ra l, not too widely

form ulated). Except in respect of murder, the penalty or combined

pen alties w il l in any event be within the d iscretio n o f the court.

(104) Working Paper No.43 at p .7 3 f f .

(105) Id_. at p. 73.

(106) Id., a t p .75 . The working party considered that any such d if f ic u lt y would be met by the a ttitu d e of the courts.

(107) See p.

310CHAPTER ELEVEN

T HE I O C T R I N E OF C O M PL I CI T Y , AND HON - STANDARD P A R T I E S

Comments are made in relation to participation in a jointly committed crime on the part of corporations, arid spouses.

( i ) THE DOCTRINE OF C O M P L I C I T Y , COMPANIES A d d T H E I R O F F I C E R S

Given that a corporation is an independent legal entity which is capable1of committing many, tho sigh not all offences, it follows that it may be instigated, encouraged or assisted to commit an offence as a principal, or that it may become an accessory to an offence committed by an officer or other employee, or by an outside person or corporation.

Numerous reported cases illustrate the imposition of accessorialliability upon the person who aids or counsels a company to commit an

2offence, and conversely, a number of reported decisions illustrate the imposition of liability upon the company as an accessory to an offence by its

3 4 5senior officer, or by its employee, or by an outside person or corporation.Several relevant matters nay be noted. Firstly, a company can commit an

offence only through a human being, being in itself an incorporeal abstraction.In order for the company to become liable as a principal, this offence must of course be committed by one of its officers or employees, rather than an outsider. It has been established by the courts in England (though not in Australia) that the company may only act in such a way as to attract criminal liability through its board or through those of its superior officers who may be viewed as representing its mind; viz, it cannot commit a crime through an

(1) See,f o r e x a m p l e , S m i t h and Hogan at p . 1 4 8 f f . , L e i g h . T h e C r i m i n a l L i a b i l i t y o f C o r p o r a t i o n s i n E n g l i s h L a w ( W e i d e n f e l d a n d N i c h o l s o n , L o n d o n , 1 2 3 4 5. 969) *

(2) For example, in Judges of the Australian Industrial Court: re CLM Holdings Pty Ltd (1977) 3 -HR 273; Opie v Goldfinch [1947] NZLR 69; Continental Cablevision Inc (1975) 19 CCC (2d)~ 540*

(3) Lewis v Grafter; Cavendi_sh La bora tor ie s Ltd v Crafter [1942] SASR 30.(4 ) Stansfeld v Andrews (1 9 0 9) 100 LT 529? Provincial Motor Cab Co. Ltd v

Dunning ]~19091 2 KB 399; Robert Millar (Contractors') Ltd [1 970 J 2 Q.B 54 »D. Stanton and Son Ltd v Webber [1972] Grim LR 544*

(5) Davies,Turner and Co Ltd v Jr0die [1954] 5 All ER 283; John Henshall(Quarries Ltd._.v_Gamble Ij959j 1 03 11.

3 1 1

employee not of sufficient status. In Australia, on the other hand, certain authority holds that the knowledge of a company employee acting within the scope of his employment may be imputed to the company, so that a junior

7 •employee may act so as to i n c r i m i n a t e h i s company* E i t h e r way, it is logicalthat in both England and Australia, a company cannot be convicted of

8aiding or counselling the commission of an offence by an outsider, unless the act of incrimination has been performed by an officer or employee of the company w s q is .able to be regarded as acting for it* Thus, it was held by the Ctuean' s Bench Divisional Court in John Henshali(Quarries) Ltd v

9Harvey(1963) that the act of a junior employee of a company which mscommitted by him while he was performing his job but contrary to instructions,and wtdch aided the commission of an offence by a third party, was notcapable of incriminating the company as an accessory. This was because theservant did not (under English law) represent the "brain" of the compna.y,so that his knowledge of the facts constituting the offence could not be

1 0attributed to to the company. The employee was employed by the appellant,which worked a quarry, to weigh trucks hauling minerals from the site, inorder to ensure that the truck was not overloaded. This was required byregulation. Through oversight he had permitted a haulier to drive off in

1 1an overloaded truck, so that the latter committed a traffic otfence.

( 6 ) T h ou gh t h i s i s n o t t o s a y t h a t t h e a c t u s r e u s m u st b e c o m p le t e d by t h e s u p e r i o r o f f i c e r . It, i s p r e s u m a b ly s u f f i c i e n t t h a t t h e l a t t e r o r d e r s th e e m p lo y e e to c o m m it, o r to c o m p le te t h e c o m m is s io n o f t h e a c t u s r e u s .

F o r a r e v i e w o f th e a u t h o r i t i e s e s t a b l i s h i n g t h i s g e n e r a l p r i n c i p l e o f c o r p o r a t e r e s p o n s i b i l i t y in E n g la n d , s e e S m ith an d H ogan a t p p , 1 5 0 - 1 .

( 7 ) S e e Howard at p . 3 9 0 f f .( 8 ) Qr f o r t h a t m a t t e r - i n England - by an e m p lo y e e o f t h e com pany who h a s n o t

s u f f i c i e n t s t a t u s f o r h i s a c t to be a b l e t o be r e g a r d e d a s t h e c o m p a n y 's a c t .I t may b e ,h o w e v e r ( a s was n o t e d a n t e ) , t h a t w h e r e , i n E n g la n d , a

s u p e r i o r o f f i c e r o f th e com pany d e l i b e r a t e l y c a u s e s a j u n i o r e m p lo y e e t o com m it a c r im i n a l a c t u s r e u s i n c i r c u m s t a n c e s w h ere t h e o f f i c e r h a s t h e k n o w le d g e r e q u i r e d f o r t h e c r i m e , t h a t t h i s t r a n s a c t i o n c a n b e r e g a r d e d a s b e i n g t h e o f f i c e r ' s a n d t h u s i n t u r n , t h e c o m p a n y 's . In t h i s c a s e th e com pnay w o u ld b eco m e l i a b l e a s a p r i n c i p a l .

(9) [1969] 2 liB 255.( 1 ° ) I d . a t 2 4 1 .( 1 1 ) On t h e o t h e r h a n d , t h e same c o u r t h a d e a r l i e r u p h e ld t h e l i a b i l i t y o f a

p u b l i c c o r p o r a t io n in. a lm o s t i d e n t i c a l c i r c u m s t a n c e s , i n th e e a r l i e r d e c i s i o n o f t h e N a il .') ria l Co a l B oard v G am ble [1 9 5 9 | 1 03 1 1 . The a p p e l l a n t a p p a r e n t l y d id n o t r a i s e t h e i s s u e o f w h e t h e r t h e in d e p e n d e n t a c t o f th e w e ig h b r id g e o p e r a t o r d o n e d u r in g t h e c o u r s e o f e m p lo y m e n t b u t c o n t r a r y to i n s t r u c t i o n s , w as c a p a b le o f b e in g ; v i e w e d a s t h e c o m p a n y 's a c t f o r th e p o r p o s e o f a c co s s o r i a l 1 i. a b i l i t y •

312Secondly, where the criminal act i 3 co mini tied by an officer or employee

who is capable of so representins; the company as to make his actits own,and, the offence is such that either the company or its officer or

12employee is capable of committing it as a principal offender, the classification of each party may be arbitrary.'they may be viewed as being principal and accessory (so that the officer aids or counsels the company,

1 3or vice versa), or alternatively, as being joint principals.Thirdly, a director, it has been held in a Canadian case, does not

necessarily become an accessory to his company’ s offence simply because hefails to intervene in a decision made by his fellow directors or othersuperior officers, which results in the commission by the company of an

14offence. It is considered, however, that having regard to the principlesgoverning the imposition of accessorial liability on account of an omission,

1 5a director would infrequently escape liability in this circumstance.

(1 1 ) husband and wife

There is no rule of law preventing husband and wife from becomingaccomplices in a given crime, whether as joint principals or as principal

1 6and accessory. An exception is encountered in respect of the crime ofconspiracy. A husband and wife cannot be convicted upon an indictment alleging

1 7that they alone have conspired together.It has been noted elsewhere in this study tiiat a wife may not at common

1 8law be an accessory after the fact to her husband's felony. 12 13 * 15 16 17 18

(12) , This may not always be so - criminal liability may, for example, beconfined to corporations.

(13) See generally fatly Mirror Jlewspaper_s_J id [1922] 2 KB 530; re judges oflhe__MBlraLian Jnd.uiitrial. Court; e x parte C M .Holdings ffrE.L-M (1977)13 ALR 273 at 261 (Mason J, who envisaged that the appellant director could have been charged either as a principal or as an accessory); Lewis v Crafter: Lewis v Cavendish Laboratories Ltd [1942] SASR 30 at 33 (Angas Parsons J),

(U) Hendrie (1905) 10 CCC 2 9 8. This decision is discussed at p,278 above.(15) See the discussion at id.( 1 6 ) This is illustrated in , f o r example, Bourne (1952) 36 Crim App R 125

(though note that the appellant’s wife was not charged and the court was of the view that s h o u ld she have been ,,she would have been entitled to an acquittal on the ground of duress); Conroy 11954"! Grim LR 141; Payne (1965) Crim LR 5 4 3 .

(17) See, for example, Mawji v R [1957 j AC 526.( 1 8 ) See p .449 b e lo w .

313

CHAPTER TWELVE

DEFENCES AVAILABLE TO ACCESSORIES

Where the defendant has, prima facie, committed an act of complicity with the mental element appropriate to the secondary offender, and the subject crime has itself been committed, he may nonetheless be relieved of liability because he can establish one or another of the general grounds of exculpation, or (loosely speaking) defences, available to accessories. Several of these defences, which are either exclusive to the accessory or, if not thus exclusive, are nonetheless worthwhile discussing specifically in relation to accessories, are reviewed in this chapter.

(1) TERMINATION OF ACCESSORIAL INVOLVEMENT PRIOR TO THE CRIME

(A) THE REPORTED DECISIONS

To become liable as an accessory to a given crime the defendant must,so it has been seen in Chapters Four to Six, perform an act of complicitywith the appropriate mental element, and as well the crime itself must becommitted by the principal. The latter act is of course the finalcondition of criminality and without it a person cannot incur secondary

1liability for a substantive crime, though he may become liable for an inchoate offence such as conspiracy or incitement on account of an act of incrimination where he has instigated, encouraged or assisted a prospective principal.

Because the accessory may act in advance of the crime, the issue has occasionally arisen as to whether or not this party may terminate his act of complicity prior to the commission of the crime, so as to not become liable upon the happening of this event. The courts have agreed that the accessory can do this, though the few decisions on the matter are equivocal as to exactly how he may detach himself from the prospective principal’s criminal purpose so as to avoid incrimination. The task of stating the relevant principles is made the more complex when regard is had to the considerable variety of standard fact situations involving accessoryship, and to the /ariety of quite different policy issues that may be raised by each of them. For example, it may be considered reasonable that a man who

(1) See p. 0* Chap, 8

314

has promise 1 to assist at the future commission of a crime in a subsidiarymanner, and who at that time fortifies the principal's resolve and thus

2commits an act of incrimination, should be able to terminate his involve­ment and escape subsequent liability for this crime by simply telling the prospective principal that he does not propose, after all, to accompany him. On the other hand, the defendant may have put into the prospective principal's hands the vital means to commit the subject crime - for example, he may tell a person who proposes to break into the defendant's workplace, the combination of the office safe. Upon the happening of this event, his accessorial role is fully consummated. Simply to intimate to the prospective principal at a later time that he no longer desires that the crime that he has made possible be committed, may not have any effect upon the latter's resolve. In other words, the communication of disinterest does not undo the effect of his decisive act of assistance.

The bulk of decisions indicate that the defendant who has perpetratedan act of accessoryship must take steps before the commission of thesubject crime to undo the effectiveness of this act. Certain of themappear to assume that he must wholly neutralise his act; others wouldappear to accept that it is enough that he takes reasonable steps towards

3this end. In Young (1838) Vaughan J instructed a jury that if a defendantwho had gone along to a duel in ord§r to encourage one of the parties hadturned his back upon the proceedings prior to the fatal shot, "intendingto have nothing more to do with the matter, then it would be difficult to

4 5say that he was present aiding ..." In Phillips (1848) it was held that where the appellant had agreed with three others to assault another, but had withdrawn shortly before his confederates stoned the victim, he was guilty of the subsequent assault.^ This conclusion assumes that the accessory must have taken further, more positive steps to neutralise his prior act of encouragement. (It may even be that the court believed that

(2) And for that matter, presumably enters into a concert with him for the commission of this crime.

(3) (1838) 8 Car & P 644, 173 ER 655.(4) Id_. at 653-4/659. There was, apparently, a suggestion that the witness

had gone along to try and reconcile the duellists, so that Vaughan J may actually have been instructing the jury merely that this gesture, if it occurred, was evidence of a lack of intention to encourage the crime in the first place.

(5) (1848) 3 Cox CC 225.(6) Id. at 227. Note, however, that the jury convicted him of a less ser­

ious a s s a u l t vis-a-vis the others.

315

in no circumstances could a defendant terminate his complicity in theprincipal's criminal purpose, and that the only way he could escape would

7be by frustrating the crime.) In Goodspeed (1911) the English Court of Criminal Appeal held that if a defendant promised to accompany prospective burglars to commit a burglary, that was a sufficient act of accessorialincrimination, and that his subsequent failure to do this "does not

8amount to a countermand." But his failure to do this did, of course, signify to the principals that he had withdrawn from the common purpose, so that the implication of the decision is that something more than communication of this is needed before the defendant may escape liability. But the court did not indicate how much more he must do.

9In Croft (1944) the survivor of a suicide pact was convicted of murder, in that he had encouraged the victim to take her own life by entering into this pact. He argued on appeal that he had not incurred accessorial liability in that he had determined the agreement to suicide prior to her death. They had gone to a private place with a revolver.She was alleged to have decided to take her life before him, but had miscalculated and wounded herself. Being in great pain, she had asked him to go for help. After he had gone a few paces she had accidentally or intentionally shot herself again, from which wound she died. Even accepting these to be the facts, the court considered that he had been properly convicted. In order for him to escape liability the facts would need to have established that "he expressly countermanded or revoked" the "advising, counselling," etc. which he had previously given. "He never said anything ... which could have removed from her mind, the effect of the counsel. ..."^ What was evidently required, therefore, was that he have neutralised the effect of his counsel.

While acceptable as a statement of principle, this reasoning is unsatisfactory when related to the facts. First, it makes no allowance for the possibility that the subsequent shooting was accidental (though this perhaps was unlikely) . Secondly, the agreement must be taken to have been effectively determined in any event. She had after all asked him to go for help, and he in turn had left to do this. 7 8 9 *

(7) (1911) 6 Grim App R 133.(8) Id., at 135.(9) [1944] 1 KB 295.(10} Id. at 298.

In its decision in Fletcher (1962)^ the English Court of CriminalAppeal said that the prospective accessory could withdraw effectivelyprovided that he communicated this in unqualified terms. Curiously,however, the court held that a party to a conspiracy to commit arson couldnot be regarded as having done this, though he had changed his mind andtold his confederate, as the latter set off to light the fire, "Don't do

12it", or "Don't be a fool." This surely was an unqualified withdrawal.The ratio of Fletcher is, therefore, out of accord with the expression of principle ~ it really contends for a requirement that the potential accessory should act positively to undo the influence of his act of complicity, presumably by physical intervention with the prospective principal, or by warning the prospective victims.

13The English Court of Appeal's decision in Becerra (1976) reflectsan ambiguitv similar to that encountered in Fletcher. The Crown case hadbeen that t, ie appellant and two others, C and G, had agreed to break, enterand steal from a house. The appellant and C had agreed to use a knife, ifnecessary, should they be surprised by the householder. The appellant hadhanded the knife to C when they entered the house. Shortly afterwards atenant in the house had sought to intervene, and was stabbed to death by C.Tiie appellant attempted to escape conviction for murder upon the basis thatimmediately before the killing he had said to C, "Let's go," whereupon hehad jumped through the window and run off. The Court of Appeal held that,in these circumstances, he had not effectively withdrawn from the commonpurpose, i.e., he had not terminated his act of complicity in such a way asto escape liability for homicide. The court noted with approval that part

14of the Court of Criminal Appeal's remarks in Croft (1944) in which thelatter court evidently indicated that an accessory could only terminate hisinvolvement through an express and actual countermand or revocation of the

15advising, counselling, procuring or abetting which he had given. However, the court in Croft went on to indicate, so it has been seen, that the defendant must have neutralised the effect of his act of complicity, as distinct from merely communicating his dissociation from the p r i n c i p a l’s crim­i n a l purpose. The court in Becerra also endorsed the remarks of a Canadian judge that a person could withdraw from a common purpose (and presumably, effect detachment from the prospective principal's criminal purpose where 11 12 13 14 15

(11) [1962] Crim LR 551.(12) Id_. at 551.(13) (1976) 62 Crim App R 212.(14) ['1944'] 1 KB 295. ' ' '(15) See ic[. at 298. (Croft was referred to in Becerra (19 76) 62 Crim ApjD R

212 at 219.)

317

there is no concert) by "timely communication of the intention to abandon ... „16 the common purpose.

Given this conception of principle, it might have been supposed thatthe appellant in Becerra could well have succeeded in establishing aneffective withdrawal. He had clearly communicated his desire to detachhimself from the common purpose to inflict grievous bodily harm, ifnecessary, upon an intervening third party. But the Court of Appeal heldthat he would need to have countermanded the agreement in "some mannervastly different and vastly more effective" than that in which he did; andthe court speculated, moreover, that such a withdrawal in this situationmight have required physical intervention by him with C, i.e., in an attempt

17to frustrate C ‘s use of the knife.

This decision is, it is submitted, self-contradictory. The express statements of principle envisage that communication by the defendant of his desire to withdraw will effect withdrawal, but the court's refusal to apply such a principle to these facts, and its indication that the appellant would need to have physically intervened with C, indicate a conception of the defence which is much more demanding of the defendant. This is that the defendant must have acted to neutralise the effects of his act of inculpation. Such a view of the law, one merely implied in Becerra, is consistent, it has been seen, with the decision in Croft and the implicit ratio of Fletcher.

On the other hand, one English decision suggests that an expression of withdrawal may indeed suffice to relieve the defendant of accessorial liabil­ity, even t ,ough he does not go further and seek to sterilise the promotional

18significance of his act. In Grundy (1977) the Court of Appeal did 19evidently allow that a defendant who had given information about premises 16 17 18 19

(16) Whitehouse (1941) 1 WLR 112 at 115-116 (Slade J) ; cited in id., at 218.As well the Court of /Appeal in Becerra cited at 217 a remark of Vaughan

B in Edmeads (1828) 3 Car & P 390 at 392, 172 ER 469 at 470; but it is not clear that Vaughan B was dealing with a defence of withdrawl in this case. Rather, he would seem to have been talking of the defendant's detachment from a group of fellow poachers, when they jointly pointed their guns at a gamekeeper, as evidence that he did not, in the first place, agree with them that their guns ought to be used on the gamekeeper if this should prove necessary.

(17) Becerra, id. at 219.(18) [1977] Crim LR 543.(19) The judgement was reported very briefly at id.

318

to a prospective burglar, could conceivably escape conviction should theevidence have established that he had for the two weeks prior to the crime,attempted to dissuade the prospective principal from committing it. Suchpersuasion would certainly have communicated a desire to withdraw, butgiven that the principal maintained his resolve, it obviously did not undo

20the effects of the appellant's acts of incrimination.

On an overall view, therefore, the English courts have almost always favoured the idea that the defendant must take effective steps to undo the promotional significance of his own act of incrimination, if he is to escape liability for the crime which is committed nonetheless by an independently resolute principal.

The matter has been considered in Australia less frequently. In Saylor 21(1963) the Supreme Court of Queensland (per Philp J, with Mansfield CJ and

Stanley J concurring) , stated that where two men have entered into a common criminal purpose for a given offence, the one would be liable for the crime committed by the other in pursuit of this arrangement unless he had, priorto the commission of this crime, made "timely communication" to his confeder-

22 23ate of his withdrawal from it. It would seem to have been assumed, thoughit was not expressly stated, that such communication had, in the circumstances, to be reasonably capable of neutralising the encouragement represented by the original act of assent to this agreement (even as, in the event, it might not succeed in doing this). 'lhi.s, surely, is the point of requiring that the expression of withdrawal should be "timely," If so, a more general principle may be deduced from the decision, i.e., that prospective accessorial involve­ment in an impending crime may only be terminated by the performance of an act which is reasonably capable of rendering ineffective the previous act of complicity.

Some support for this view is found in the High Court's decision in 24White v. Ridley (1978), The appellant had been convicted of an offence

of importing a prohibited import into Australia. He had delivered the prohibited goods to an airline in Singapore, for consignment to Australia, 20 21 22 23 24

(20) The Court of Appeal endorsed Becerra (1976) 62 Crim App R 212, evidently overlooking that the court on this earlier occasion did, on a total view of its judgement, require more than the ccmmunication of a desire to withdraw by the defendant.

(21) [1963] QWN 34.(22) Id. at 38.(23) See for example, the citation from Croft [l944] 1 KB 295, and from

Whi'tehouse £l94l]'DLR'638 at 685', in' id.'at 37.(24) (1978) 140 CLR 342.

319w h ic h w as a c c o r d i n g l y d on e , n o t w i t h s t a n d i n g a l a t e a t t e m p t b y h im ( b y t h e s e n d in g o f a t e l e g r a m to th e a i r l i n e ' s o f f i c e in S in g a p o r e ) to p r e v e n t i t s c a r r i a g e i n t o A u s t r a l i a . He a p p e a le d fro m t h i s c o n v i c t i o n o n t h e g r o u n d t h a t h e h a d n o t in c u r r e d l i a b i l i t y , g iv e n h i s a t t e m p t e d c a n c e l l a t i o n o f t h e c o n s ig n m e n t , H is a p p e a l was r e j e c t e d by t h e c o u r t .

T he m a j o r i t y o f t h e c o u r t e x p r e s s l y i d e n t i f i e d h im a s b e i n g a c o n s t r u c t i v e25p r i n c i p a l , in r e l i a n c e u p on t h e d o c t r i n e o f in n o c e n t a g e n c y , s o t h a t t h e

c a s e w as n o t o n e o f a c c e s s o r y s h i p ; a l t h o u g h g i v e n t h a t h e p r o c u r e d t h ep e r p e t r a t i o n o f t h e p r o h i b i t e d e v e n t th r o u g h a n o t h e r , a l b e i t in n o c e n t , p e r s o n ,h i s p o s i t i o n was a n a lo g o u s to t h a t o f a s e c o n d a r y o f f e n d e r . A c c o r d i n g l y , G ib b sJ c o n s i d e r e d t h a t th e a p p e l l a n t ' s c l a i m . , t h a t h e h a d e v a d e d l i a b i l i t y f o r t h es u b s e q u e n t i m p o r t a t io n b y h i s a t t e m p t e d t e r m i n a t i o n o f t h e a r r a n g e m e n t w i t ht h e a i r l i n e , w a s to be t e s t e d b y r e s o r t t o t h e p r i n c i p l e s w h ic h h a d b e e n e n u n c i a t ei n t h e c a s e s d e a l i n g ’ w i t h th e t e r m in a t io n o f a c c e s s o r i a l i n v o l v e m e n t . I t w o u lda p p e a r t h a t M urphy J was o f t h e sam e v i e w , th o u g h g i v e n t h a t h e b a s e d h i sju d g m e n t u p on a p r o c e d u r a l p o i n t , h e d id n o t c o n s i d e r i t n e c e s s a r y t o c a n v a s s

26t h e q u e s t i o n o f w i t h d r a w a l , o r t e r m in a t io n i n a n y d e g r e e o f d e t a i l . The o t h e r m em bers o f t h e c o u r t r e a s o n e d i n d i f f e r e n t t e r m s .

The m o st r e l e v a n t ju d g m e n t , f o r p r e s e n t p u r p o s e s , w a s t h a t o f G ib b s J .G iv e n h i s e q u a t i o n o f t h e c o n s t r u c t i v e p r i n c i p a l who a c t s th r o u g h a n i n n o c e n t

27a g e n t , w i t h t h e s e c o n d a r y o f f e n d e r , h e c o n s i d e r e d t h a t i t w as o p e n t o t h e a p p e l l a n t to a r g u e t h a t h i s a t t e m p t e d f r u s t r a t i o n o f t h e c a r r i a g e o f th e im p o r t i n t o A u s t r a l i a h a d r e l i e v e d h im o f l i a b i l i t y ; th o u g h o n t h e f a c t s s t a t e d , he c o n s i d e r e d t h a t t h i s d e f e n c e c o u l d n o t , i n t h e f i n a l i s s u e , b e s u s t a i n e d . In r e s p e c t o f t h e d e f e n c e o f t e r m i n a t i o n , o r w i t h d r a w a l , a s i t a p p l i e s to a c c e s s o r i e s , lie c o n c lu d e d t h a t t h e d e f e n d a n t m u s t , p r i o r t o t h e c o m m is s io n o f th e c r im e , h a v e a c t e d p o s i t i v e l y to c o u n t e r a c t h i s own a c t o f i n c r i m i n a t i o n :

I t se e m s e n t i r e l y r e a s o n a b le t o i n s i s t t h a t a p e r s o n who h a s c o u n s e l l e d o r p r o c u r e d a n o t h e r t o com m it a c r i m e , o r who h a s c o n s p i r e d w i t h o t h e r s t o c o m m it a c r i m e , s h o u l d a c c o m p a n y h i s c o u n te r m a n d o r w ith d r a w a l w i t h s u c h a c t i o n a s h e c a n r e a s o n a b l y t a k e to undo th e e f f e c t o f h i s p r e v i o u s e n c o u r a g e m e n t o r p a r t i c i p a t i o n . ( 2 9 )

The q u e s t i o n o f w h e th e r th e d e f e n d a n t i s l i a b l e f o r t h e a c t s o f a n i n n o c e n t a g e n t , h e s a i d , w as to be a n s w e r e d b y t h e a p p l i c a t i o n o f s i m i l a r * 26 27 28

( 2 9 ) S e e p . 2 3 7 f f .( 2 6 ) S e e i d , a t 36 %( 2 7 ) I . o . , H ii’ th e p u r p o s e o f th e d e f e n c e o f w i t h d r a w a l , o r t e r m i n a t i o n : s e e

i d . a t 3 4 7 , 3 6 1 .( 2 8 ) I d . a t 3 6 0 - 1 .

520principles, i .e », to escape liability he

must have clone or said whatever was reasonably possible to counteract the effect of his earlier request. The countermand will not have been timely if it was given when it was too late to stop the train of events which was started by his requast,,,

If a countermand was given, but it was not timely orsufficiently clear, or the accused did not take steps to undo the effect of what he had done, it would be no answer to a charge to say that an accused no longer had a guilty mind when the criminal act was done, "The mens rea must coincide with the act of counselling, not necessarily with the commission of the counselled offence"•,,.(2 9 )

In fact, Gibbs J considered, the appellant had not, in this situation, acted3 0early enough to dissociate himself from the pending act of importation,

Murphy J, as noted, did not consider that it was necessary, in thecircumstances, to consider this matter in any detail, though he indicatedthat had the defendant "done all he reasonably could to prevent the

51importation," he should be relieved of liability. It is likely that he,like Gibb J, was of the view that the appellant's position was analogousto that oj the prospective accessory who seeks to escape liability bywithdrawing from, or terminating his involvement in the criminal purposeof the principal, and that like principles applied in each case.

The other judges in White v Ridley reasoned in quite different terras.Stephen J (Aickin J concurring) considered that the question of the

3 2appellant's liability was to be analysed in terms of causation.' In Stephen J's view, tlse appellant had, in the legal and factual sense, caused the airline,as an innocent agent, or instrument (the latter being his preferred term), to effect the physical act of importation; and that as he possessed the mental element appropriate to the offence charged at the time that he committed the act of causation, he had properly been convicted.It would, therefore, follow (in common with other situations of causation in the criminal law), that the defendant would only escape liability if a novus actus interveniens had subsequently operated so as to 29 30 31 32

(29) Id. at 351 » citing the last sentence from Smith and Hogan, Criminal Law 13 ed, 1 9 7 7 ) at p,110.

(30) Id. at 352 ,(31) Id. at 3o3.(32) Gibbs J allowed that the appellant's liability could conceivably

be so analysed, but considered that to do so would engender confusion (id, at 351)» But Jacobs J, whose judgment is referred to below, considered that liability could not be analysed in terms of causation.

3 2 1break the chain of causation otherwise linking his act and the criminalevent. The attempted cancellation could not, in itself, representsuch a novus actus interveniens: though conceivably, if the airline,notwithstanding this act, bad for some reason determined "willy-nilly to carrythe box into Australia," i.e„, in deliberate contravention of the

33appellant's instruction, such a new cause may have arisen. " Such had not, however, happened here. Furtner, he said obiter that where accessories are concerned, the withdrawal by D from a projected (joint) crime , a.3 "evidenced by his countermanding of its execution ...may, where his confederate ignores the countermand, exemplify the intervention of a new cause" v with the result that D would escape liability for the subsequent crime. In other words, the cases on the termination of accessorial involvement could be analysed in terms of causation. However, he did not think that these decisions were applicable in the present context.

This analysis, which is obviously in quite different terms to that of Gibbs J (and evidently, hurphy j) represents a reasonable alternative, in the fact situation before the court on this occasion. Obviously it is more demanding than that of Gibbs J in this type of situation, in that it requires more than that the defendant should take reasonable steps to avert the threatened harm set in train by his act. Rather, the facts must disclose the intervention of a new, substantial causal event which displaces the defendant's act as a causally significant factor. As to whether or not the cases of withdrawal or termination prospective accessories may be explained in terms of causation, will be discussed shortly.

Jacobs J propounded a thi;d basis of analysis. He considered that the defendant could not be regarded as causing the importation:

The cases on physical consequence of an otherwise completed action and the irrelevance of a change of intent between the act and the final consequences of such act as for instance between shooting or poisoning and death in cases of murder are concerned with a different question, that of causation. Here there was a setting- in train of a course of events which not by physical consequence but by human agency would or might result in importation. (34)

This opinion was presumably based upon the view that it was inappropriatein the strict conceptual sense, to regard the instigation by B of Ato commit an act, as amounting to A ’s causing this ant to happen, giventhat A possesses an independent mind an thus will. Notwithelanding this,

he had instigated the perpetration of the act of importation and could be convicted (presumably, as a constructive principal, in reliance upon • the doctrine of innocent agency"' ), if he possessed the relevant mens rea at the time that the actus reus of the offence, i,e., the act of importation (viz, the carriage of goods into Australian airspace) was effected by his agent. He could be regarded as having this if he still believed , at this time, that his instructions had not been successfully countermanded. If, however, he believed that the consignment had been frustrated, then he could not be regarded as possessing the relevant

$ 6mental element at the precise time of the commission of the actus reus.It must be questioned, hov/ever, as to whether this analysis is in

conformity with the cases dealing with innocent agency. These would appear to assume that the relevant time at which the accused must posessess the required mental element at that time when he perpetrates the act of instigation. And certainly this was taken to be the case by the other judges in this decision , who referred expressly to the doctrine of

y tinnocent agency. 1There is ,however, little Australian authority on the

matter dealing directly with accessorial withdrawal. Gibbs J, however,(in White v Ridley) , clearly stated that the prospective accessory may be exonerated if his act of withdrawal involves that he lias done all that he reasonably could to neutralise the of feet of his previous act of

5 8incrimination, even as, in the ultimate issue, the crime is committed.He likewise would apply this principle to the analogous case of the constructive principal. Murphy J would appear to have accepted this analysis, certainly in respect of the latter category of defaidant, and probably (by implication) in respect of the purported accessory. Saylor (which dealt only with a question of accessorial liability) is also consistent with this appro..ch.

(B) CONCLUSION

Should the alleged accessory be permitted a defence of withdrawal , or termination of involvement in the principal's criminal purpose? 35 36 37 *

(35) As his Honour made no reference to accessorial liability, or to the cases dealing with accessorial termination, it m y be assumed that he, like other judges, considered teat the appellant was i c K. made liable, if at all, upon, the basis that he was a (constructive) principal offender.

(36) White v Ridley (1978) 148 Gilt 342 at 380-1.(37) Id* at 34b(Gibb’ f ) ,353(Stephen J ) ,3t>3(Aickin J); and evidently Murphy

J also adhered to this analysis (at 383)•

325

If such a defence is not available in the law, it may be argued, a repentant prospective accessory, i. e., one who has committed an act of secondary implication, will still have an incentive to take steps to frustrate the pending commission of the crime, in that he will know that if the crime is committed, he will be incriminated. In practice, however, it m y be that the specific recognition of a defence of withdrawal by the courts or legislature will or would function as a further positive incentive for him to disengage from the prospective principal’s criminal purpose, and (depending upon its formulation) to take reasonable steps to make it less likely that this crime will be committed. And as a matter of formal analysis, it is not inappropriate that the prospective accessory should be relieved of liability, at least in those situations where, prior to the commission of the subject crime, he acts in such a way as to wholly deprive his act of effectiveness (as distinct from the mere taking of steps, however reasonable, which do not succeed in doing this). In such a situation the alleged accessory’s act cannot, in the final event, be said to have promoted or facilitated the commission of the crime. (This justification for relief will, in practice, usually only apply to cases of subordinate encouragement or facilitation, rather than to those of instigation.)

A codified defence of withdrawal or termination could take one of a39 •number of obvious forms. Firstly, the defendant who has performed an

act of incrimination could be required to do all that he reasonably can , including informing the police, in order to frustrate the pending commission of the crime. This would clearly go beyond the more rigorous formulations of the reported cases. It would require more than that the defendant take reasonable steps to neutralise the effectiveness of his own act of complicity. Such a rule could be objected to, on the basis that it would not discriminate the defendant who knowingly promotes or facilitates crime without reservation (the orthodox instance of accessoryship), from the defendant who does taka .reasonable steps to neutralise his act of promotion or support. As well, it would impose upon the repentent, prospective accessory, a duty which is not imposed upon the citizen ordinarily, i«e., a duty to preven t, if it is reasonably open to him 39

(39) In each case it is assumed, or has been assumed by the proponent of the particular formulation noted, that any such exculpatory rule must be defined in somewhat general terms, given the variety of different forms of secondary participation. For example, some accessories enter into a concert with the principal, others do not; some perform acts of i stigation or of coequal participation, while others perform merely subo dinate acts of encouragement or assistance; in most cases the principal knows of the accessory's act of promotion or facilitation, but he need not(soe for example Attorney-General’s Reference (llo. 1 _o_f 1975) (1975] Q.B 773; state V Talley (1894) 102 Ala. 25_.

324

t o d o s o , t h e c o m m i s s i o n o f a p r o s p e c t i v e c r i m e *

A s e c o n d p o s s i b l e c o u r s e i s t s a t f o u n d i n t h e ModeL P e n a l C o d e - T e n t a t i v eDraft , i.e., that a person should be able to escape secondary liability int h e s i t u a t i o n u n d e r d i s c u s s i o n i f h e " t e r m i n a t e s h i s c o m p l i c i t y p r i o r t o t h ec o m m i s s i o n o f t h e o f f e n c e a n d ( i ) w h o l l y d e p r i v e s i t o f e f f e c t i v e n e s s i n t h ec o m m i s s i o n o f t h e o f f e n c e ; o r ( i i ) g i v e s t i m e l y w a r n i n g t o t h e l a w e n f o r c e m e n ta u t h o r i t i e s o r o t h e r w i s e m a k e s p r o p e r e f f o r t t o p r e v e n t t h e c o m m i s s i o n o f

40t h e o f f e n c e . " T l i e f i r s t o f t h e s e c l a u s e s o b v i o u s l y h a s t h e p o t e n t i a l t o b e m o r e r i g o r o u s t h a n t h e s e c o n d . A t r i e d p o s s i b l e b a s i s f o r r e l i e v i n g t h e r e p e n t e n t , p r o s p e c t i v e a c c e s s o r y i s t h a t s p e l l e d o u t b y G i b b s J i n W h i t e v R i d l e y , a n d s t a t e d , o r i m p l i e d , i n c e r t a i n o f t h e o t h e r c a s e s n o t e d , i . e . , s h a t ( a s s u m i n g t h a t i t i s s t i l l p o s s i b l e t o f r u s t r a t e t h e c o m m i s s i o n o f t h e c r i m e ) t h e p r o s p e c t i v e a c c e s s o r y m u s t t a k e a l l r e a s o n a b l e s t e p 3 t o n e u t r a l i s e ( i . e . , u n d o t h e e f f e c t i v e n e s s o f ) h i s a c t o f c o m p l i c i t y . I t c o u l d b e f u r t h e r p r o v i d e d ( i n a n y c o d e ) t h a t s u c h s t e p s s h a l l i n c l u d e n o t i f y i n g t h e l a w e n f o r c e m e n t a u t h o r i t i e s , i f i t i s n e c e s s a r y , a n d r e a s o n a b l y o p e n t o h i m t o d o t h i s . T h i s , i t i s s u b m i t t e d , s h o u l d b e t h e m i n i m a l b a s i s f o r r e l i e f . I t i s c o n s i d e r e d t f i a t t h i s r u l e , w h i c h i s n e c e s s a r i l y a v e r y g e n e r a l o n e , i n c o r p o r a t e s t h e s u b s t a n c e o f t h e M o d e l p e n a l C o d e p r o p o s a l , t h o u g h o b v i o u s l y i t i s n o t i d e n t i c a l . F o r i n t a l c i n g a l l r e a s o n a b l e s t e p s , t h e d e f e n d a n t w i l l u s u a l l y s a t i s f y o n e o r a n o t h e r o f t h e c l a u s e s i n t h e M o d e l P e n a l C o d e P r o v i s i o n . S u c h a r u l e i s a l s o r e f l e c t e d , i n a n a p p r o x i m a t e w a y , b y t h e p r o p o s a l i n t h e C r i m i n a l L a w a n d P e n a lM e t h o d s R e f o r m C o m m i t t e e o f S o u t h A u s t r a l i a , i n i t s F o u r t h R e p o r t : T h e* A 1S u b s t a n t i v e C r i m i n a l L a w . ' 40 41

(40) Model Penal Code - Proposed Official Draft, s.2,06(6)(c). A n d see the English Law Commission’s Working paper Mo.43 at p,69ff.

(4 1 ) (1977)* The com. ittee proposed ( at p.3 0 9) that "withdrawal from a criminal enterprise be not an answer to the charge as a matter of law but be treated as evidence going to the question whether the defendant ever became an accom­plice and whether the offence ... charged went beyond the original agreement." It was explained (at pp.3Do-8) that the basis of accessorial liability was that the defendant must "materially contribute" to the commission 0 1 -he perpetrator's offence i n order to become on accessory,so that where the facts disclose that the defendant has subsequently to his act of incrimination out prior to the commission of the crime, sought to undo the effectiveness of this act by, for example, "communicating his withdrawal [i.e,, from the criminal enterprise"] to the others," or by 'tonjingj the police or other relevant persons," it could be concluded that on an overall view, he had not "materially contributed to the commission of this of fence.'“

This formulation is somewhat narrow. Firstly, it would seem to envisage that the person who makes reasonable effort to undo the effectiveness of his act of incrimination, but fails in. this, would be convicted in any event. Thus, a person who instigates another to commit a crime , may be convicted notwithstandin; his subsequent

325

An a l t e r n a t i v e b a s i s t o r e x o n e r a t i n g t h e r e p e n t e n t a c c e s s o r y i ss u g g e s t e d , b y a n a l o g y , i n th e a n a l y s i s e m p lo y e d b y tw o o f t h e j u d g e s i n •

s42W h ite v R i d l e y j 1 9 7 0 ) ( i . e . , S te p h e n J , w i t h A i c k i n J c o n c u r r i n g ) inr e s p e c t o f a p e r s o n who s e e k s to com m it a c r im e t h r o u g h a n i n n o c e n t a g e n t , an d who a l l e g e s t h a t a s u b s e q u e n t a t t e m p t b y h im t o f r u s t r a t e t h e c o n s e q u e n t h a p p e n in g o f th e c r i m i n a l e v e n t h a s t h e e f f e c t t h a t h e s h o u ld b e r e l i e v e d o f l i a b i l i t y f o r t h i s e v e n t . T h is a n a l y s i s , i t h a s b e e n s e e n , c e n t r e s up on t h e c o n c e p t o f c a u s a t i o n . W here t h e a c c e s s o r y i s c o n c e r n e d , i t c o u ld b e e q u . l l y a r g u e d t h a t h e s h o u l d b e r e l i e v e d w h e r e , n o t w i t h s t a n d i n g h i s e x p r e s s e d d i s s o c i a t i o n fr o m t h e p r i n c i p a l ’ s c r i m i n a l p u r p o s e , t h e l a t t e r r e s o l v e s n e v e r t h e l e s s to com m it t h e c r im e , s o t h a t h i s w i l l r e p r e s e n t s a n e v u s a c t u s i n t e r v e n i e n s w h ic h r u p t u r e s a n y s u c h c a u s a l n e x u s a s m ig h t o t h e r w i s e h a v e l i n k e d h i s a c t o f i n c r i m i n a t i o n , w i t h t h e c o m m is s io n o f t h e c r im e . S u ch a n a n l y s i s w o u ld b e r a t h e r l e s s s a t i s f a c t o r y th a n t h a t o u t l i n e d u n d e r ( 2 ) a b o v e , n o t l e a s t b e c a u s e i t i s n o t a n e c e s s a r y c o n d i t i o n o f a c c e s s o r i a l l i a b i l i t y t n a t t h e

( 4 2 ) ( 1 9 7 8 ) 1 4 0 CLR 3 4 2 . S e e a t p . 3 1 8 f f . *

efforts to forestall its commission - for the view might well be taken that even as he makes a reasonable effort to do this, a determination by the perpetrators to proceed in any event with the commission of the crime involves that he must be incriminated in that on an overall view, the defendant did '’materially contribute" to t. e crime, notwithstanding his repentenco • It is not clear as to whetner or not the committee would have endorsed this result. As well, the formulation is evidently confined to the situation where a person has agreed with others, in a coequal capacity, for the commission of a crime. In fact accessories need not be in agreement with the prospective principal or principals - for example, the defendant may instigate another to commit a crime , with or without the latter’s knowledge, without entering into concert; or the defendant may otherwise encourage or assist the principal to commit a crime, without entering into an agreement (for instance, he may supply equipment used in the commission of a crime).

See also the British Law Commission's ’Working Paper No.43 at p.69ff. It is proposed hero that the prospective accessory should be relieved of liability, inter alia, if he "comrunicates his withdrawal to the principal" at a time when it is possible for the offence not to be committed. This surely, is unduly favourable to the defendant - it would mean, seemingly, that a person who incites another who was otherwise without criminal purpose, to commit a crime , should be relieved of its consequential commission on the basis of no more than an expression of dissociation. This clearly, would not necessarily represent all th t a the defendant could reasonably do to undo the effect of his incitement.

32.6accessory must cause t.*le commission of the crime ( at least, in the sense of inciting, or otherwise instigating its commission). On the contrary, acts of coequal or subordinate encouragement or assistance of an independently resolute principal also suffice to incriminate the defendant as an accessory under the present law.

Where does this leave the person who knowingly instigates another innocent person to commit a criminal act and who may be incriminated

43as a consl uctive principal, but who prior to the perpetration of this act, seeks to frustrate its commmission? As two of the judges in White v Ridley observed, his liability in this situation may be analysed in terms of causation. This approach is more obviously plausible given that his agent is without criminal will• The alternative approach is that propounded by Gibbs J in this case, viz, that the defendant is in a position closely analogous to that of the accessory who instigates crime, and that the sane principles of exculpation as apply to the accessory on occasions of alleged withdrawal, apply likewise to the constructive principal* If it is accepted that a person may be incriminated pursuant to the doctrine of innocent agency in respect not only of knowing acts of instigation, but also knowing acts of coequal or subordinate participation in the (innocent or irresponsible)

44perpetrator’s criminal act, then it is considered that Gibb J’s analysis is to be preferred* in the first place, the concept of causation will usually be inapplicable in cases of subordinate participation • Secondly, the constructive principal will be more obviously classifiable as a de facto accessory , at least from a technical standpoint, given that the mental and physical elements elements governing his participation in the perpetrator's criminal act will parallel those governing accessorial liability. In this light, it would only be consistent, that the rules governing the exculpation of the literal accessory ,should apply likewise to his criminal twin.

(II) IMPLIED EXCLUSION Of ACCESSORIAL LIABILITY

On a handful of occasions a court has construed a statutory offenceas impliedly excluding either accessorial liability generally, or asexcluding from incrimination a particular type of secondary participation. InDixon J's obiter view in the Australian High Court's decision in Malian v Lee

46(1 9 4 9), it may be that a statutory (or presumably, a common law) doctrine of 43 44 45

(43) See p.237ff.(4 4 ) See pp.240-1.(45) (1949) 80 CLP 198 at 216

327

accessoryship may be excluded from application to a given substantive offence "by the nature of the substantive offence or the general tenor or policy of the provisions by which it is created.” It is clear, however, that the mere fact that an offence is of such a nature that the alleged accessory could not have committed it as a principal, is not sufficient to justify the conclusion that such an offence is by implication not subject to the operation of the common law doctrine of complicity or a statutory successor to this. Liability has been imposed upon the accessory in this circumstance

46on many occasions.

The English Court of Crown Cases Reserved recognised the possibilityof excluding one category of secondary participation in Tyrrell( 1 8 9 4 ^by holding that a girl under the age of sixteen could not be convicted ofaiding and abetting' a male person to carnally know her, which was an offenceunder s.5 of the Criminal Law Amendment Act, 1885 (UK). According to LordColeridge CJ this Act was passed for the "protection” of girls inthis situation, not for their punishment.^ The English Court of Appeal

. .4 9took a si alar approach in VVhitehouse( 1 9 7 7 ) in holding that a girl underthe age of sixteen could not incur liability for aiding and abetting her fatherto commit incest upon her, contrary to the Sexual Offences Act,19 6 5(RK), sectionsections 10(1) and 11(1), This was because a contrary conclusion would byimplication be inconsistent with one of the policy objectives of the offence,

50it being intended to protext rather than to punish under-age girls.51And in the South Australian case of Ellis v Guerin (1 9 2 5 ) Angas Parsons

J held that a provision in the Early Closing Act, 1 9 1 1-24(SA), which created an offence by shopkeepers of selling out of hours (i.e„, s*40) was, when read with another offence in this Act, to be construed as impliedly excluding from accessorial liability the customer wiio buys out of hours. He based this reasoning upon the consideration that s .4 0 expressly penalised the shopkeeper and no other, whereas s .46 expressly penalised the person who enters a shop after prescribed hours with the purpose of buying or receiving goods. 3y

(4 6) See pp.558-9 below.Given this ackno wiedgement, Lord Hewart CJ's sweeping implication

in Morris v T'ol ran 119 2 3 j 1 KB 166 at 170 cannot be correct.(4 7 ) [1894] 1 QB 7 1 0 .(48) Id. at 7^2. This decision is discussed in more detail at p .291 above.

Contrast the decision of Crawford J in Preston [1 9 6 2] Tas SR 1 4 1 , which is also discussed at p .2 9 1 above*

(49) [1977J 1 QB 868.

(50) See id. at 875*(51) [1925] SASR 282.

328implication the legislature intended to incriminate each of the parties under the section expressly referring to him, and not the other. As Angas Parsons J viewed the matter, if the legsilature had desired to incriminate the purchaser under s.40 it would have been easy to do this. Consideration of the different penalty ceiling under each section confirmed him in thisview; Parliament ’’has ...made a clear differentiation in the character" of each

82party's offence." In this case , then, the exclusion of one type of accessorial participation, in a statutory offence was to be justified by resort to an orthodox process of statutory construetion.

It is to be emphasised that none of these three cases held that the offences with which each was concerned was to be cons trued as excluding in toto the doctrine of accessoryship. A person who, for example, instigated or encouraged a male to have carnal knowledge of an under-age girl would not escape liability as an accessory to this offence. The incrimination of this accessory would be fully consistent with the policy objectives underlying the o ffence.

But n another occasion, it has been recognised that a statutory offencemay be construed as totally excluding the possibility of accessorial

53participation, in the New Zealand case of McAteer v Lester (1962) Henry Jconsidered that a person could not be convicted of secondary participationin s.194(1 ) of the Licensing Act,1908(NZ). This made it an offence for aperson to be found in licensed premises at certain times, unless "he satisfiesthe Court that he" was on the premises for a lawful purpose. In Henry J'sopinion the wording of the statute, and in particular, the fact that it vesteda statutory defence in the principal offender which he bore the onus ofestablishing, was such that the legislature could not have intended that thisoffence should be capable of being committed by an accessory. To allow thatsecondary participation was possible would lead to the "strange conceptthat the prosecution should be called upon to establish,on the probabilities,that an exception, which the principal party might invoke to show that therewas no offence, could not have been proved by the principal party" had he

54attempted to do this. In effect, Henry J said, the nature of the 52 53

(52) Id. at 285-6.(53) [1 9 6 2] NZLR 465.

529

o f f e n c e w as s u c h t h a t i t s h o u ld b e a p p l i e d to an a c c e s s o r y , i t s t r i a l w o u ld i n o n e r e s p e c t b e a t t e n d e d b y an e l e m e n t o f c o n s i d e r a b l e p r a c t i c a l d i f f i c u l t y . I t i s t o b e n o t e d , hov.’e v o r , t h a t t h e d e c i s i o n i s v i r t u a l l y t h e o n l y o n e i n m od ern t im e s w h ere a c c e s s o r i a l l i a b i l i t y was v i e w e d a s b e i n g i m p l i e d l y

55e x c l u d e d In i t s e n t i r e t y , b y v i r t u e o f t h e w o r d in g o f t h e s u b j e c t o f f e n c e .

(Ill ) DURESS

W ith o n e e x c e p t i o n , th e s p e c i a l common la w d e f e n c e o f d u r e s s may be in v o k e d b y p r i n c i p a l s a n a a c c e s s o r i e s a l i k e i n r e s p e c t o f t h e c o m m is s io n o f c r i m e , w h e r e t h e c i r c u m s t a n c e s w a r r a n t t h i s . To j u d g e fr o m t h e r e p o r t s , h o w e v e r , an a l l e g e d a c c e s s o r y h a s n o t v e r y o f t e n s o u g h t to do t h i s ," 'L o g i c a l l y , t h i s d e f e n c e i s a v a i l a o l e t o t h o s e who a t common la w a r e c o u n s e l l o r s a s w e l l a s a i d e r s , g i v e n t h a t t h e m e n ta l an d p h y s i c a l e l e m e n t s o f e a c h b r a n c h o f a c c e s s o r y s h i p a r e i d e n t i c a l , p u t t i n g a s i d e t h e i s s u e o f p h y s i c a l p r o x i m i t y t o t h e c r i m e . A s i t h a s b e e n n o t e d e l s e w h e r e , t h e p e r s o n who " c o u n s e l s o r p r o c u r e s c r im e " n e e d n o t n e c e s s a r i l y b e a d o m in a n t p a r t y i n t h e c o m m is s io n o f 55 56

(55) Eee the earlier decision of Baynes (1731) 1 Leach 7>168 ER 106,where a judge held that a statutory offence of theft could not be committed by an accessory, because the statute m s silent as to whether or not tne benefit of clergy was available to accessories. The point is anachronistic, though the case does recognise generally that the nature of an offence may b8 such as to justify the conclusion that it was intended to exclude accessorial liability.

Lord Hewart CJ was of the view in Lorris v To!man 11923J 1 KB 166 that a traffic offence concerned with the use of a motor vehicle by its owner contrary to the terms of his licence, was an offence of a type which could not be committed by an accessory, but he apparently based this conclusion upon the very general and clearly erroneous assumption that if a person could not commit an offence as a principal in a given fact situation, then he could not be an accessory to its commission (id. at 170)(see generally at pp,538-9)* This decision may be explained on another basis: see pp.258-9 .

(56) Pickard [l90O] QJPR 30 concerns a plea of compulsion pursuant to 3 . 5 1 ( 4 7 of the Queensland Code, by a person charged with (and convicted of) secondary participation in an offence of breaking,entering and stealing ,

Several cases deal with pleas of duress by persons charged with being an accessory after the fact: Williamson [1972] 2 NSWLR 281; Hurley [J9b7 j VR 526,

Decisions dealing with pleas of duress by persons charged with being an accessory to murder are noted below.

530

an offence. That he is traditionally described by words which have this literal tenor is not of legal significance. He may, in other words,

57participate in a co-equal subordinate capacity. In these tenns,it is clearly proper that an alleged accessory before the fact, or counsellor or procurer should have recourse to the defence of duress.

The exception is encountered in the context of murder. Until very recently it had been supposed that neither an accessory nor a principal

58offender in the commission of murder, could rely upon the defence of duress.59But in DPP for Northern Ireland v Lynch (1975/ 7the House of Lords held by

majority that the defence of duress could, where appropriate, be pleadedby a person charged with participation in murder as an aider and abettor.And for the reasons noted above, this common law party is to be put on thesame basis as one who counsels or p r o c u r e s Lynch has been followed in

6 1New South Wales, though the position in Victoria is less emphatic. The Supreme Court of Victoria had decided prior to Lynch that duress could notbe pleaded by the alleged principal in the second degree (or aider and abettor)

(52 6 ji*to murder. Following Lynch, Lush J ruled in Evans (1976) that the physicalparticipant in a final assault upon a person which resulted in his death,and who had the mental element for murder,find who was otherwise guilty of this

64crime, could not rely upon the defence. By implication, this was the law whether or not the defendant was technically a principal offender or an aider and abettor. Strictly, if he did not. actually perform the act causing death

(5 7) See p, 61ff, above,(58) See,for example, Harding [1976] VR 129; Brown [1968] SASR 467 (both

concern participation in murder as an aider and abettor ).

(59) [1975] AC 653.

(60) It was accepted without question that a person alleged to have participated as an accessory before the fact to murder could plead duress, in the Court of Criminal Appeal's decision in Kray (1969) 53 Crim. App R 569 at 576-7.

(61 ) McConnell [1977] 1 NSWLR 714.

(62) Harding [1976] VR 129.

(63) [1976] VR 517.

( 64) Id.at 519.

ThusLush J would qualify the ratio of Lynch in this limited circumstance. Such an analysis does perhaps overcome certain conceptual difficulties, or difficulties of proof associated with the determination of whether or not the defendant is a principal or aider, in a situation like that in Evans.But it does perhaps raise other difficulties - it may on occasions be difficult to say precisely when the given fact situation is of a type which attracts the operation of the rule enunciated in Evans. It is for this reason, among others, that a case may be argued for extending the defence of duress to all parties (ie., principals and accessories) to murder, where the circumstances warrant it; though it may be that a successful plea ought not exonerate the defendant altogether, but should merely reduce his liability to that of manslaughter. Such a mitigation of liability may be justified by reference to the circumstance of a principal offender in what would otherwise be murder whose liability is able to be reduced to manslaughter following upon a successful plea of provocation; or to the situation of the principal offender who deliberately kills another while employing excessive force inself-defence and whose liability for what would otherwise be murder is able

66to be reduced to manslaughter.

However, the Privy Council has held in Abbot v R (1977)^ that duressmay not be pleaded by the alleged principal offender in murder, though this

6 pdecision was not unanimous. u

(TV) the e n t rapm ent SITUATION

In the subject jurisdictions, the law enforcement authorities, or persons acting under their direction, cire permitted to “trap'' a prospective 65 66 * *

(in this circumstance, a stabbing) he would be an aider and abettor.

(65) See, for example, Mohan v R [_1967J 2 AC 187, where two men were convicted of murder. They had attacked their victim with cutlasses, so that each possessed the mens rea for murder. Only one of them inflicted a fatal blow, but it was unclear as to which of them did this. In the Privy Council's view they were not joint principal offenders but rather, one was a principal in the first degree and one a principal in the second degree (ie., aider and abettor ), though it was unnecessary for each to be conclusively classified (given that a person could be charged asa principal in the first degree and be convicted upon proof of participation as a principal in the second degree, and vice versa ).

(66) See McCafferty [.1974] 1 NSWLR 89 at 91 for this view (Glass J ).

( 67) [1977] AC 755.

( 66) Note the strongly dissenting joint opinion of Lord Wilberforce and Lord Edmund-Davies in this case.

offender into committing an offence, by encouraging or assisting him to commit this offence. On occasions#indeed/the authorities have instigated the offence, though usually in circumstances where the defendant had in any case resolved to commit this offence and was simply looking for an opportunity to do this. Some­times the police officer or agent has himself committed the actus reus of an

/T Qoffence as a principal, in the process of trapping another.

In the words of one writer, entrapment"is used mainly to detect consensual70crimes operating against the public at large rather than particular victims!'

71 . 72Such crimes have included breaches of the gaming laws, illegal abortion,73and the illegal sale of drugs. The crimes need not, however, be of this

character. ^

The respective positions of the two parties in this circumstance, the agent provocateur and the person who is trapped, are briefly reviewed in turn:

(A) THE AGENT PROVOCATEUR

The basis for exonerating an officer or other agent provocateur acting with lawful authority in circumstances where he instigates, encourages or assists an offence, and perhaps commits one of his own qua principal in the process, has never been satisfactorily explained by the courts. It is understandable that the courts should want to do this on policy grounds, for it would obviously be absurd to incriminate this officer or agent when he is acting in pursuit of the larger goal of preventing the continuing commission by another person of crimes of the character of that which the latter is coaxed into performing. Strictly, the officer does intentionally commit either the actus reus of a crime or an act of secondary participation in crime, and if the purity of his motive for so doing is ignored (and purity of motive is generally irrelevant to the imposition of criminal liability) he has the mens rea appropriate to the crime (he will of course commit the criminal actus reus in the knowledge of those surrounding circumstances which disclose its criminal nature.) But the courts have invariably glossed over this conceptual 69 70 71 72 73 74

(69) Pethig [1977] 1 NZLR 448 at 449 (Mahon J) ( use of marijuana).(70) See Heydon, "The Problems of Entrapment “,jl 973j 32 Cambridge LJ 268. Other

discussions of the topic include Williams CLGP Chapter 19; Williams TCL pp.549-550; Smith and Hogan pp. 138-140.

(71) Dunn v. Littlejohn [l900] 2 WAR 138.(72) Bickley (1909) 2 Crim App R 53, which dealt with the unlawful supply of

a noxious thing to a woman with intent to procure a miscarriage.(73) Pethig [1977] 1 NZLR 448.(74) Mealey (1974) 60 Crim App R 59 (which concerned a conspiracy to rob).

333

difficulty. In for example the Queen’s Bench Divisional Court’s decision in Sneddc v Stevenson (1967) 1 ' Waller J explained that a policeman who was alleged by the defence to have encouraged the commission of an offence of soliciting, so that his evidence needed corroboration, could not have been a "true accomplice." In McEviliy (1975)^ the English Court of Appealobserved that an officer who had pretended in a conversation with a prospective thief to be willing to dispose of the liquor which the prospectivethief proposed to steal, was acting correctly, for "he put himself forward"

78m this way " m order that criminals ... might be brought to justice."This was so notwithstanding that there was a possibility that the subsequent

79theft might not have been committed but for the officer's intervention.On the other hand, the same court has indicated on another occasion that the agent provocateur must not actually cause an offence to be committed whichwould not otherwise be committed at all. 80 But it is likely even in this

8 'situation that the officer will not usually be viewed as incurring liability.Of course, it is possible that the agent provocateur will act in suchcircumstances that it cannot be inferred that he had criminal intention forthe crime - he may for instance take and carry off goods in the company ofwould-be thieves whom he has undertaken to betray. If he does not possess the

82intention appropriate to larceny, he simply cannot be a thief.It is unsurprising that the courts have not elaborated the basis of the

presumed immunity of the agent provocateur from criminal liability. A police officer or person acting under police direction will not after all, be charged 75 76 77 78 79 80 81 * * *

(75) [1967]l WLR 1051.

(76) Id., at 1058.(77) (1975) 60 Crim. App R 150.

(78) Id» at 156.

(79) Id.at 154.(80) Mealey (1974) 60 Crim App R 59 at 64.

(81) See Birtles [1969] 2 All ER 1131n; Pethig [1977] 1 NZLR 448 (which concerns a ruling by Mahon J) , which is commented upon in Climo[1977J Current Law (NZ) 712, and in Lavalle [1978] 1 NZLR 56 at 57-58.

( 32) But the situation may be different if the agent is present as apretence aider and abettor to another's theft. Here of course his own lack of criminal purpose is irrelevant, it being sufficient that the accessory knowingly performs an act of complicity in the knowledge of the principal's criminal purpose. In this circumstance, the agent does literally satisfy the conditions of liability, and once more, his exoneration is ultimately dependent upon considerations of policy.

334

in the usual course. The issue of whether or not the agent is an accomplice has invariably arisen only in an evidential context, where the defence has claimed that his evidence is that of an accomplice and is, therefore, subject to the us ..al warning regarding the desirability of corroboration. The courts have never ruled in favour of such an application, for obvious reasons, but again there has been no precise elaboration of why the agent is not, on a literal view at least, an accomplice. Rather, they have simply asserted that the agent is not an accomplice, or at least, that he is not a witness whose evidence requires corroboration.®-^

If a formal basis for the exculpation of the agent provocateur should ever' be enunciated, it would presumably focus upon the need for two matters, in particular, to be satisfied: first , that the agent was acting under the

QAdirection of the law enforcement authorities, and secondly, that his motive was a proper one. In this latter respect, it may be that the courts will have to create an exception to general principle in the entrapment situation, and.recognise that in this situation, at least, the agent provocateur is immune

05from liability because, inter alia, of his motive. ^

While it is clear that a private citizen who acts as an agent provocateur with the authority of the police is entitled to the same immunity as if he was a police officer acting as such under superior orders, ®® it is evidently adifferent matter where this person becomes a party to a crime on his own. . . . 87initiative.

(B) THE PERSON WHO IS TRAPPED

The position of th” person who is trapped is not uniquely relevant to the law relating to accessorial liability, but it is convenient to * 86 87

( Q*3 See,for example,Bickley (1909) 2 Crim App R 53; Sneddon v Stevenson [1967] 1 WLR 1051. See generally at p p .302-303 below.

( Q/p See Sneddon v Stevenson [1967] 1 WLR 105.1 at 1057 (Lord Parker CJ) , where this requirement is expressly assumed.

( 85) For a discussion of the possible bases of exculpation in this context, see Heydon, "The Problems of Entrapment" jj973^32 Cambridge LJ 268 at 274-5.

See Ormerod [1969] 2 OR 230 (Ont. CA), for an expression of doubt as to whether the defendant may indeed be entitled to immunity.

(86) For examples of this situation see Johnson (1841) Car & M 218; 174 ER479; 7aller (1844) 3 Cox CC 84; Bickley (1909) 2 Crim App R 53;Mealey (1974) 60 Crim App R 59.

(87) Smith [i960] 2 QB 423, where the private individual who instigated an offence so as to procure a conviction was convicted. See, however, the comments in Smith and Hogan on this situation, at p.140.

comment briefly upon it at this point. Such a person will normally be a principal; though in uncommon situations, he may be an accessory, i.e., where the definition of the offence has this effect. (For example, the trappee may be coaxed into buying a substance, the sale of which is unlawful.)

It is well-established in the subject jurisdictions, that there is no legal defence of entrapment, i.e., the fact that the defendant is trappedinto committing an offence does not ground a cleaur right to relief from liability

88for this offence* In exceptional situations it may happen,however, that the prospective subject of entrapment will escape liability for the crime for which he is sought to be c.,evicted because the consent of the agent provocateur means that one of the essential conditions of this liability has not been satisfied. For example, if the servant of a householder pretends to concur with would-be burglars and lets them into the house while acting under policeinstructions, there is in fact no breaking and entering, for the opening of the

89door is lawful and the entry consented to.Do g s,however, the fact that he was trapped, confer an evidential

advantage t eon the defendant? In England, it is now clear,this is notso: a trial judge, the House of Lords ha.; confirmed, does not have adiscretion to reject evidence of the commission of a crime solely upon the

90basis that its perpetrator was trapped into this commission. And the Supreme Court of South Australia similarly concluded, on an earlier occasion,

91that the trial judge has no discretion to reject evidence in such a circumstance. On the other hand, a New Zealand judge, recognising that the trial judge has a general discretion to reject evidence which has been 88 89 90 91

(88) See, for example , Sneddon v Stevenson jl 9&7j 1 WLR 1051; Mealey( 1 974)60 Crim App R 59 at 62; McEvilly (1979) 60 Crim App R 150 at 155; Sang ft979] 3 WLR 263; Pethig p977] 1 NZLR 448 at 450(Mahon j); Lavalle [1978]” 1 NZLR 56 at 61 (Chilwill j).

(8 9) See Johnson(l8 41) Car & M 218,174 EP 479• See other examples in Williams QLGP at pp.780-1 ; Hey don "The Problems of Entrapment" (1975) 3?- Cambridge Law Journal 268 at 272-3*

(90) See Sang Q979J 3 WLR 263• The House of fords was of the view that the trial judge had no general discretion to reject evidence upon the basis that it had been obtained unfairly; though he did have a disci-etion to reject evidence of this general type in certain specific contexts .

(91) Williams (1978) 19 SASR 423*See now the decision of the High Court of Australia , which

although not dealing with the topic of entrapment , does canvas the discretion of a trial judge to reject evidence which has been obtained unlawfully or unfairly: Running v Crocs (1978) 141 CLR 54.

336obtained unfairly, hcs exercised this discretion and refused to admittestimony by an agent provocateur against the person trapped by him incircumstances where , he decided, this offence would not have been committed

92but for th 1 agent's intervention.

(V) THE GENERAL CHBiLNAL UKFKNCKo

Such standard legal defences as insanity,diminished responsibility, intoxication and automatism, which have usually been expounded in the textbooks in relation to the actual perpetrator of crime , or at least , of criminal acts, are no doubt available likewise to secondary parties. There are, however, few authorities dealing with this matter.

The defences may not in every case he directly applicable to alleged accessories , however; or at least their terms may need to be modified having regard to the fact that accessorial mens rea is not to be defined in precisely the same terms as that of the perpetrator. Where offences of intention are concerned, for examplo, the principal must act with the intention or purpose of bringing about the commission of the actus reus in the prescribed circumstances, of which he must be aware. The accessory must similarly see or foresee that the actus reus is being committed or that it will or mightbe committed in these circumstances. But his mental state needs to be defined more comprehensively; he must know as well that his act of incrimination has the capacity to conduce to the principal's criminal act, and he must know that the principal whom he encourages or assists has the intention to commit the criminal act. He may fail to have the mental element appropriate to an accessory because when he acted hist knowledge at any one or more of these levels was deficient whether through intoxication, insanity , or whatever.Where a defence like insanity is concerned, which defence is dependent upon a comprehensive dislocation of normal mental functioning, it will usually be unnecessary to scrutinise the alleged accessory's mind at each and every one of these levels: the focus will be upon an overall view of the mental state. But where intoxication is concerned, it may well be necessary to do this. For example, a man may not be so intoxicated as to be incapable of realising that he is assisting in the criminal act, but he may not realise that this act is being committed in those circumstances which disclose its criminal nature.

In relation to accessories and the common law defence of intoxication, incidentally, it is to be no tod that at least one English court lias 92

(92) See pethig [1 9 7 7] 1 NZLR 478 at 452(Mahon j). And see Lavalle R 978] 1 NZLR 56 at 57 (Chilwill j).

apparently assumed that the general limitation upon this defence in Englishlaw, i.e,, that it may only be pleaded in relation to so-called offences of"specific" intention and not in relation to those of "general" or "basic"

93intention is not applicable to accessories; but rather*,that the accessorymay invoke it by wry of answer to any offence charged,subject to the facts. In

i , . v 9 4Kearon(1993) an Assistant Recorder ruled that a defendant who permitted another io drive his (the defendant’s) car could not aid and abet the driver in an offence of driving while under the influence of drink to such an extent as to be incapable of having proper control over it , where because of his own drunkenness the defendant did not possess the necessary knowledge to aid and abet* By implication, this vital, knowledge was knowledge that the driver was under the influence to the prescribed extent. Clearly, an offence of this type would be both one of strict liability, and one of "basic" intention i. ,e ., for the purpose of the defence of intoxication),where the principal is concerned, in relation to the accessory, the offence was firstlyto be treated as one of intention,rather than of strict liability,in reliance

99upon clear authority. The court's further constructive upgrading of it to the status of an offence of "specific" intention for the purpose of the defence of intoxication represents a new initiative. It may be that the court (the judgment of which was very briefly reported) assumed that from the accessory’s viewpoint, all offences (for whatever reason) must be treated as offences of specific intent* Alternatively, and more obviously, the court may have proceeded upon the basis that given that the offence was to be reclassified as one of intention for the purpose of accessorial liability, it was therefore to be classified as one of "specific" intention for the purposes of the person who pleads intoxication by way of answer to a charge of accessorial participation#

If so, the court left open the possibility that offences of recklessness,or negligence, do not necessarily have to be treated as offences of "specific" intention where the intoxicated accessory is concerned, given that the common law does not require that they must be constructively upgraded to the status of an offence of intention for toe purposes o: 93 94 95

33Y

(93) See for example DPP v Newbury jl976| 2 V/LR 623. The Australian positionis now quite different - at common law the defence of intoxication may be pleaded in respect of any offence, subject to the evidence: 0 'Connor (I98O) 29 AIjR 449.

(94) [1955] Grim LR 183.(9 5) See p.158ff.

338

s e c o n d a r y l i a b i l i t y . R a t h e r , i t i s e n o u g h i n t h e s e c a s e s , t h a t t h e a c c e s s o r ya c t s w i t h t h e sam e ( a t t e n u a t e d ) a w a r e n e s s o f r e l e v a n t c i r c u m s t a n c e s a s i s

96r e q u i r e d o f th e p r i n c i p a l .

( V I ) INCAPACITY TO BECOME A PRINCIPAL OFFENDER nOES NOT EXCULPATE DEFENDANT FROM ACCESSORIAL LIABILITY

I t i s r e c o g n i s e d t h a t t h e im m u n ity o f a p e r s o n fr o m c o n v i c t i o n a s ap r i n c i p a l i s n o t a b a r t o h i s b e i n g c o n v i c t e d o f t h i s o f f e n c e a s a n a c c e s s o r y .T h e o n l y e x c e p t i o n s to t h i s r u l e a r e fo u n d i n t h a t h a n d f u l o f c a s e s w h e r e t h ec o u r t s h a v e c o n s t r u e d c e r t a i n s t a t u t o r y o l ’f e n c e s a s i m p l i e d l y e x c l u d i n g

97a c c e s s o r i a l l i a b i l i t y , i n w h o le o r i n p a r t . T h e s e a r e n o t e d e l s e w h e r e .

A p e r s o n may be i n c a p a b le o f b e i n g a p r i n c i p a l b e c a u s e t h i s i s i m p o s s i b l e h a v in g r e g a r d t o su c h f a c t o r s a s h i s a g e , s e x , n a t i o n a l i t y , m a r i t a l s t a t u s o r w h a t e v e r . N o n e t h e l e s s , h e h a s f r e q u e n t l y b e e n c o n v i c t e d a s a n a c c e s s o r y . T h u si t h a s b e e n d e c i d e d ( o r a c c e p t e d su b s i l e n t i o ) t h a t A may a i d a n d a b e t B

98 ' 99i n t h e r a p e b y B o f A ’ s w i f e ; a woman may a i d a man t o r a p e a n o t h e r f e m a le ;a b o y u n d e r f o u r t e e n c a n b e an a c c o m p l ic e i n a n a c t o f sod o m y p e r fo r m e d u p o nh im ,t h o u g h i n c a p a b l e o f p r im a r y l i a b i l i t y on a c c o u n t o f a g e ; ^ a n u n m a r r ie dwoman may a i d a n o t h e r i n b ig a m y b y m a r r y in g h im ( o r a t l e a s t , b y g o i n g t h r o u g h

101a fo r m o f m a r r ia g e ) w h ere t h e l a t t e r i s a l r e a d y m a r r ie d ; th o d i r e c t o r o f acom p an y may a i d t h i s com pany in t h e c o m m is s io n o f a c r im i n a l o f f e n c e , a l t h o u g ht h e s t a t u t o r y f o r m u la t io n o f th e o f f e n c e i s s u c h t h a t i t may o n l y b e

102c o m m it t e d ( q u a p r i n c i p a l ) b y a c o r p o r a t i o n ; ""and an A u s t r a l i a n c i t i z e n m ay a i d an

(96) See p.156ff.(97) See p.326.(98) DPP v M o r g a n j1976 j AC 1 8 2 ; Cogan J j9 7 6 j 03 2 1 7 ? H o u k a m a u ( 1991 ) NZLR 251 •(99) Kara 0893) 17 Cox CC 6O9 .( 1 0 0 ) Cratchley (1935) 9 Crim App R 232; contra Tatam(l921 ) 15 Grim App R 132,

where the court surely misconceived the decision in Tatam.(101) Wheat 1921 2 KB 119.(102) .Re Judges of the Australian Industrial Court; ex parte CLM Holdings

Pty Ltd (1977) 13 ALR 273 at 275 (Barwick CJ), at 281 (Mason j)7 (Though note Mason J's affirmation at 201 tiiat given the terms of the statute creating the subject offence, the latter could in any event,in its extended operation, be committed by a natural person qua principal.)

359illegal immigrant to enter or remain in the Commonwealth, although thiss t a t u t o r y o f f e n c e ( i n s»7 of the I m m ig r a t io n A c t ,1901-35) c o n f i n e s p r im a r y

103liability to illegal immigrants.

(103) G o l d i e ; e-x p a r t e P i c k l u m (1937) 59 CLR 254 a t 264 (L a th a m Cj), 271 ( E v a t tJ » citing R a m (l 893 J 1 7 Cox 0O9 ) , 2 7 7 (McTiornan j). It was c o n s i d e r e d u n i m p o r t a n t that the oifence made the p r i n c i p a l o f f e n d e r a d d i t i o n a l l yl i a b l e to deport a t i o n as well as s u b j e c t i n g h i m to fine or imprisonment, whereas the accessory, because of his A u s t r a l i a n c i t i z e n s h i p , c o u l d o n l y be p u n i s h e d but no t deported: i d . a t 2 7 ^ - 2 (Evatt J).

339 illegal immigrant to enter or remain in the Com::nnvreal th, although this

statutory offence ( in s.7 of the Immigration J,c.t,1901-35) confines primary

l . b .1. t t "11 l . . t "\ 03 ~a 1 ~ y o ~ ega lmmlgran s.

( 103) _9_ol~~~~~--~-r.t~ __ j'icki.:.um (1937) 59 CLR 254 at 264 (Latham CJ), 271 (Evatt J, ci.t:L'1g Ram ( 1 E393) 1 I Cox CC 609\, 277(McTinrnan J). It was considered unimportan ttha t the o1fence made tne pr1nc1pal offender additionally 1 iable to deportation as well as subjecting him to fine or irnpri sonment, whereas the accessor;y, because of hL3 Australian citizenship,could only be ptmi::;hed but not deported: id.at. 27.i-2(Evatt J).

340CIiaPTjvE 'CHIRTtihiN

PROCEDURAL ASPECTS OF THE INDICTMENT, TRIAL AND CONVICTION OF ACCOMPLICES

(I) FACTORS AFFECTING THE FORM OF CHARGE: WHERE THE DEFENDANT IS CHARGEDWITH A CRIME ACCORDING TO ONE MODE OF COMPLICITY, BUT IS PROVEN TOHAVE PARTICIPATED IN ANOTHER___________________________________________

Occasionally the prosecution will be uncertain as to whether the defendant has participated in a crime as a principal, as an aider, or as a counsellor. Alternatively, the evidence may come to disclose during the course of trial that the defendant has participated in the crime charged in a degree of complicity other than that in the prosecution's contemplation. Is this a matter of significance - may a defendant who is charged with having participated in a crime as a principal, aider or counsellor be convicted on the basis that he is proven actually to have participated in this crime in another one of these capacities? The answers to the issues raised by this situation vary from jurisdiction to jurisdiction; and in some of them according to whether the crime was a felony or misdemeanour, where this distinction still exists. And obviously, the determination gf these questions is relevant to defining the degree of latitude which is available to the prosecution in formulating the charge.

Before considering these matters in respect of each jurisdiction, it is convenient to note the position at common law.

(A) AT COMMON LAW(1) Felony(a) Charged as a Principal in the First Degree, But Proven to be a

Principal in the Second Degree; and Vice Versa_________________

It is well established that,at common law,a person charged as a principalin the first degree may be convicted upon proof that he actually aided andabetted, without any obligation being imposed upon the Crown to obtain leaveto amend the indictment. The contrary is also true} It has occasionallyhappened, where there has been doubt as to the exact role of a principal ina crime, that he has been charged in two separate counts in the alternative as

2a principal in the first degree and as an aider. Strictly, this is 1 2

(1) See Taylor (1785), 1 Leach 360; 168 ER 283, Crisham (1841) Car & M 187, 174 ER 466; C ~ant (1844) 8 JP 139; Downing (1845) 1 Cox CC 156; Swindall (1846) 2 Car & < 2 30, 175 ER 95; Gray (I835) 7 Car oc ? 164 , 173 ER 72.

(2) See Grant, Downing and Gray, id.

1

541

unnecessary.

The prosecution is permitted this flexibility because at common law both the perpetrator of felony and the person who aids and abets him, are classified as "principals'* (being principals in the first and second degree respectively) .

(b) Charged as a Principal, but Proven to be an Accessory Before The Fact; and Vice Versa._____________________________________________

If a person who is party to felony is charged as a principal (in eitherthe first or second degree) and is proven to be an accessory before the fact,at common law the jury may not convict. This matter was rectified in England

3in the Accessories and Abettors Act, 1861 (UK), s.l.

Similarly, a person indicted as an accessory before the fact who is provento have been present and participating in the crime and who is therefore aprincipal (i.e., in the first or second degree) may not be convicted upon this

4charge. This procedural anomaly was not dealt with m the Accessories and Abettors Act, 1861 (UK).

(2) Misdemeanour: Where Charged as a Principal, Aider or Counsellor andProven to Have Participated in One Other of These Capacities.________

A recurrent statement in the reported cases identifies all of the parties toCmisdemeanour, whether principals or accessories, as being principals at common law,' 3 4 5

(3) Though this provision is no longer relevant in England - see p. 544 below.

(4) Gordon (1789) 1 Leach 515, 168 ER 359; Cozens (1840) 4 JP 476; Tuckwell (1841)Car & M 214, 174 ER 477; Brown (1878) 14 Cox CC 144.

(5) Accessory (1612) 12 Co Rep 81, 77 ER 1359; Hurse (1841) 2 M & Rob 360, 174 ER316; Moland (1843) 2 Moo 276; 169 ER 110; Clayton (1843) 1 Car & K 128; 174ER 743; Cooper (1846) 8 QB 533 at 536, 115 ER 976 at 977; Greenwood (1852)2 Den 453, 169 ER 578 at 580, 581; Howells v Wynne (1863) 15 CB(NS) 3 at 15,143 ER 682 at 687, 688; Stacey v Whitehurst (1865) 18 CB(NS) 344 at 352-4,144 ER 477 at 481; Burton (1875) 13 Cox CC 71; Waudby [1895] 2 QB 482 at 484;Du Cros v Lambourne [1907] 1 KB 40 at 43; Gould & Co Ltd v Houghton [1921] 1 KB 509 at 515ff (Earl of Reading CJ); 519ff (Darling J); 523ff (Acton J) ;Glennan [1970] 2 NSWR 421 at 423; Lenzi v Miller [1965] SASR 1 at 10(Napier CJ and Travers J.).

Certain of these English decisions (that in Howells v Wynne,and those following it) were concerned with the prosecution of alleged accessory misdemeanants pursuant to s.5 of the Summary Jurisdiction Act, 1848 (UK)(which dealt with secondary participation in summary offences), or s.8 of the Accessories and Abettors Act, 1861 (UK) (which dealt with secondary participation in indictable misdemeanours up until 1967, when it was applied to all indictable offences).

342

As it has been seen in Chapter Two this maxim is of procedural significance7merely, viz, for procedural purposes (or at least, for most procedural purposes )

each accessory to misdemeanour has the status of a principal. This obviously distinguishes the procedural position of the accessory to misdemeanour from that of the accessory to felony. In the latter respect, it has just been seen, it is significant to distinguish so-called principals (i.e., principals in the first or second degree) from the accessory before the fact. But to reiterate, the maxim is without substantive implication: the common law categories ofcriminal participation (i.e., as a principal, aider or counsellor) which have

8been enunciated mainly in the felony context, apply likewise to misdemeanour.

It is relevant to note at this point that the British Parliament enactedin 1848 the Summary Jurisdiction Act, s.5 of which was universally acceptedas reproducing the common law rule that for procedural purposes the accessory

9is to be regarded as being a principal. Since this time, the English legislature has passed the Magistrates' Courts Act, 1952 (as amended), s.35(l) of which replaces s.5, but which provision is more or less identical in effect}^Legislation based upon s.5 has also been passed in the Australian States of New South Wales, Victoria and "South Australia which/the courts have likewise confirmed/reproduces the common law procedural rule seen as being embodied in s.5."^ As a result, much of the decisional law dealing with, or illustrating the practical consequences of the rule is formally based upon one or another of these enactments.

(6) See p.21ff, above.

(7) See p.351 f f below.

(8) See p,21ff above.

(9) This is expressly stated, or accepted by implication in numerous reported cases - see for example Greenwood and the succeeding cases noted in n.5 above.

(10) See pp.22,25ff. above’.

(ID See#for example# Glennan [1970]2 NSWR 421 at 423, dealing with the Justices Act, 1902 (NSW) s.100; Lenzi v Miller [1965] SASR 1 at 10 (Napier CJ and Travers J), dealing with the Justices Act, 1921 (SA), s.53.

343A major practical consequence of this rule, one which in effect provides

for a merger of the three categories of complicity for procedural purposed, isthat the prosecution is permitted a considerable flexibility in formulatingthe charge. A defendant may be charged directly with the offence, i.e., as a

12principal, and yet be convicted upon proof of participation as an accessory.Alternatively, the defendant may be charged in compendious form, that he did"aid, abet, counsel or procure" the commission of the offence, and be convictedupon proof either of aiding and abetting or counselling or procuring. Thisparticular phrase began to be used in England after the passage of the SummaryJurisdiction Act, 1848 (UK), s.5 of which employs these words. The phraseis likewise used in the statutory successor to this section in England (i.e.,the Magistrates Courts Act, 1952, s.35(1)), or in statutory reproductions ofit in other jurisdictions (for example, the Justices Act, 1902 (NSW), s.100).Nonetheless, that persons may be charged in this form relects the commonlaw merger of categories of participation in misdemeanour for procedural

13purposes. And although no reported decision would seem to have dealt withthe matter, it is logical to suppose that if a defendant is charged that hedid "aid, abet, counsel or procure" a misdemeanour but is proven to have perpetratecit as a principal, then he could nonetheless be convicted upon this unamended¥count, in that accessories and principals alike possess the same status for procedural purposes.

As well, the defendant may be charged simply that he did "aid and abet" the subject crime, or alternatively, that he did "counsel or procure" it. Here too, it would be logical to conclude that he could still be convicted upon such a count even should the evidence come to disclose that he had committed the offence in another of the remaining two modes of complicity, if this did not involve an elemenl 12 13

(12) See for example Waudby [1895] 2 QB 482; Benford v Sims [1898] 2 QB 641 at 644-5 (Ridley J); Du Cros v Lambourne [1907] 1 KB 40 at 44 (Lord Alverstone CJ! Spires v Smith [1956] 2 All ER 277 is to be read with caution and is best viewed as turning upon the wording of the offence rather than on the precise form of the charge.

(13) Cases illustrating the charging of defendants in this compendious form in reliance upon one or another of these statutory provisions reflecting the common law rule include National Coal Board v Gamble [1959] 1 QB 11;John Henshall (Quarries)~~Ltd v' Harvey [.1965] 2 QB 233; Glennan [1970] 2 NSWR 421; Lenzi v Miller [[1965] SASR 1 (and see comments at 10, per Napier CJ and Travers J ),

344

of unfairness due to extraneous circumstances.

(B) STATUTORY PROVISIONS AFFECTING THE POSITION IN ENGLAND, AUSTRALIA AND NEW ZEALAND______________________________________________________ _

(1) England

As a result of legislation over the period 1848-1977, the procedural rulesapplicable to the prosecution and trial of accessories to all types of offence(i.e., indictable offences, summary offences, and offences triable either way)are the same as those governing the prosecution and trial of accessory misdemeanantsat common law. The felony/misdemeanour dichotemy itself has been abolished.The substantive categories of complicity (i.e., participation as a principal,aider or counsellor) continue to exist in their common law form. This legislation

15has been outlined in Chapter Two.

The indictment, trial and punishment of accessories to indictable offences is regulated by s.8 of the Accessories and Abettors Act, 1861, (UK), as amended.In its original form it provided in effect that those who "aid, abet, counsel or procure" indictable misdemeanours may be tried, convicted and punished as principal oifenders. As it has been seen, such a provision (which more or less

V

parallels the now repealed s ,5 of the Summary Jurisdiction Act,1848(UK),which dealt with accessory participants in summary offences) merely restated the common 14 15

(14) See Cogan [1976] 1 QB 217, where the English Court of Appeal accepted that a man charged with aiding and abetting could be convicted on this count, even though in law he was actually a principal. This case concerned participation in an indictable offence, and the court relied upon s.8 of theA c c e s s o r i e s a n d A b e t t o r s A c t ( U K ) ,1861,w h i c h was s i m i l a r to the n o w r e p e a l e d s.5 of the Summary Jurisdiction Adt, 1848 (UK), and which as amended applies the procedural law governing participation as an accessory in misdemeanour, to the prosecution and trial of all indictable offences (see below this page*)

Contrast, however, Bowker v Premier Drug Co Ltd [1928] 1 KB 217 at 227, where it was held that a defendant charged with aiding and abetting an offence pursuant to s.8 of the Summary Jurisdiction Act, 1848, could not be convicted upon proof that he actually counselled or procured this offence (i.e., that he was absent from its commission).

The reasoning in Cogan is more compelling.

(15) See p.25ff

345

law rule, that all the parties to misdemeanour are principals for proceduralpurposes.^ The Criminal Law Act, 1967 (UK), s.l had the effect of applying

17the common law rule embodied in s.O to all indictable offences. This changewas formalised by the Criminal Law Act, 1977 (UK), Schedule 12, which amendeds.8 so that it is now ex facie applicable to secondary participation in any

18indictable offence.

The prosecution, trial and punishment of accessories to summary misdemeanoursis provided for in s.35(l) of the Magistrates' Courts Act, 1952 (UK) (as amended),which section is based upon the wording of the now repealed s.8 of the SummaryJurisdiction Act, 1848, and which (like its predecessor) embodies the common

19law procedural rule referred to. Section 35(2) of the Magistrates' Courts 20Act refers to the "aiding, abetting, counselling or procuring" of certain

offences which are triable either way, and is the principal such provisionrespecting this category of offence. By implication, the same general proceduralrule applies to the prosecution, trial and punishment of accessories to

21offences of this type.

In consequence, the participant in any offence may now be charged withthe offence as a principal and yet be convicted upon proof of participation

22 vas an accessory* alternatively, he may be charged m compendious form that23he did "aid, abet, counsel or procure" the subject offence, and be convicted

upon proof that he either aided and abetted, or that he counselled or procured, or for that matter, that he participated as a principal. Or he could be 16 17 18 19 20 21 22 23

(16) See Waudby [1895] 2 QB 482 (Lord Russell CJ of Killowen ). And see Burton (1875) 13 Cox CC 71 at 75 (Blackburn J, who confirmed the rule in the context of a case dealing with the complicity an indictablemisdeir anour, without expressly referring to s.8 of the Accessories and Abetto's Act, 1861, which was of course in operation at the time.)

(17) Including of course those formally classified as felony.

(18) See p.26ff. above.(19) See p-27 abovefor the wording of s.35(l).

(20) This was inserted in this Act by the Criminal Law Act, 1977 (UK),Schedule 12.

(21) See p.28 above.

(22) See Waudby [1895] 2 QB 482; DPP for N. Ireland v Maxwell [1978] 3 All ER 1140. In each case a defendant charged as a principal, was convicted upon proof of participation as an accessory (reference may be made to the Accessories and Abettors Act, 1861 (UK) ).

(23) See n.28 below

charged with having aided and abetted; or alternatively, that he counselledor procured, and be convicted upon proof of participation in the crime in '

. . 24this or any other degree of complicity. All of these conclusions flow from the notion that all of the parties to an offence are principals for procedural purposes.

Notwithstanding that the prosecution possesses this flexibility in charging25an accomplice, it has been suggested that in the usual course the Crown will

charge a suspected accessory to an indictable offence pursuant to s.8 in a countalleging participation as a principal offender . This practice is, however,

2 6not universal and the House of Lords has recently indicated that where theprosecution does choose to charge this party as a principal pursuant to s.8,it ought to disclose the true basis of its case in the particulars of this charge

27(i.e., that he aided and abetted, or that he counselled or procured ),

Where summary offences are concerned the usual course in Britain would appearto be that alleged accessories are charged in compendious form that they did

28"aid, abet, counsel or procure," On the other hand, it is not uncommon for29this person to be charged directly with the offence, i.e. as a principal.

(2) The Commonwealth Crimes Act, 1914 (Aust.)

Section 5 of the Commonwealth Crimes Act, 1914 (Aust.) provides that any person who ^aids, abets, counsels or procures" an offence, or who is "knowingly concerned in or party to"this offence (which amounts to an allegation of

346

(24) See Cogan [1976] 1 QB 217, which dealt with the application of s.8 of the Accessories and Abettors Act, 1861 (UK) (which applies to secondary participation in indictable offences ), It was held that a person charged with aiding and abetting could be convicted upon this count, though in law he was a principal.

Contrast the earlier case of Bowker v Premier Drug Co Ltd [1928] 1 KB 217 at 227, which is referred to in n. 14 ante, and which, it is suggested, ought not be followed on this point.

(25) See Archbold, Pleading Evidence and Practice in Criminal Cases (4-0 ed - Sweet and Maxwell, London, 197 9) para. 4135.

(26) See for example Cogan [1976] 1 QB 217, where the defendant was charged with aiding and abetting rape.

(27) DPP for N. Ireland v Maxwell [1978] 3 All ER 1140 at 1142 (Viscount Dilhorne), * 28 291146 (Lord Hailsham), 1148 (Lord Edmund Davies), 1149 (Lord Fraser).

(28) For examples of this compendious form of count under s.35 (now re-numbered s.35(l) of the Magistrates' Courts Act, 1952 (UK)) see National Coal Board v Gamble [1959] 1 QB 11; John Henshall Quarries Ltd v Harvey [1965] 2 QB 233.

(29) See Btnford v Sims [l898]2 QB 641 at 644-5(Ridley J); Du Cros v Lambourne [1907j 1 KB 40 at 44 (Lord Alverstone CJ ).

547

complicity ), "shall be deemed to have committed that offence and shall be punishable accordingly.*'

31It has been contended m Chapter Two that while this subsection, like theEnglish provisions upon which it has been in part based (for example, theAccessories and Abettors Act, 1861 (UK), s.8) was intended to preserve thesubstantive principles of accessoryship, it was intended as well to effecta merger of the several modes of complicity for procedural purposes. Inparticular, it is not without significance that the section borrows the phrase"aid, abet, counsel or procure" from English provisions which have been construed

32as doing precisely this. In effect, therefore, the procedural rules to beapplied to the prosecution, trial and conviction of secondary offenders unders.5 are the same as those governing participation in misdemeanour at common law.(It is to be noted, however, that the common law distinction between felony andmisdemeanour has not been preserved in the Commonwealth Crimes Act, 1914.) Thus,the defendant may be charged with criminal participation in one mode of complicity,and yet be convicted upon proof of participation in another. The suspectedaccessory may be charged under s.5 as a principal, without express reference in

33the count or its particulars being made to s. 5 though certainly it may be34expressly referred to. Alternatively, he has typically been charged with

being "knowingly concerned" in a given offence, which allegation is of course35one of secondary participation. Logically a person could be charged that he

did "aid, abet, counsel or procure" an offence, although where it is desired to expressly allege secondary participation in the charge, the Crown has clearly preferred to employ the alternative formula of being "knowingly concerned."

A Court has confirmed obiter that a person charged as an accessory (asit happened, by resort to the phrase "knowingly concerned") may be convicted on

3 6this count upon proof of participation as a principal. This result reflects the procedural merger of the modes of complicity under s.5.

30

(30) See p.3Qff* above.(31) See pp. 3 1-2 above,

(32) Summary Jurisdiction Act, 1848 (UK), s.5; Accessories and Abettors Act, 1861 (UJO , s.8; Magistrates' Courts Act, 1952 (UK), s.35 (now s.35(l)).

(33) Howe11 v Doyle [1952] VLR 128 at 132 (Herring CJ).(34) Cain v Doyle (1946) 72 CLR 409.(35) Dolan [1919] VLR 55; Goldie; ex parte Picklum (1937) 59 CLR 254; Malian v Lee

(1949) 80 CLR 198; re Judges of the Australian Industrial Court; ex parte CLM Holdings Pty Ltd (1977) 13 ALF 273. ’

(36) Re Judges of the Australian Industrial Court; ex parte CLM Holdings Pty Ltd, id.at 281 (Mason J).

548

(3) New South Wales, Victoria and South Australia

In each of these jurisdictions the common law classification of offences37into felony and misdemeanour is still extant. Accordingly, it has been

necessary to legislate in respect of the procedural problems that would otherwise arise at common law in relation to complicity in felonies. This legislation has been based on certain provisions in the Accessories and Abettors Act, 1861 (UK). Statutory provisions relating to misdemeanours, whether indictable or summary, reaffirm the common law doctrine that for procedural purposes an accessory is to be treated as being a principal offender.

(a) Felony

As noted above, at common law a person may be charged with participation as a principal in the first degree, and yet be convicted upon proof of particip­ation as a principal in the second degree, and vice versa. But it is not possible to charge a person as a principal offender (i.e., in common law terms, as a principal in the first or second degree) and convict him upon proof of particip­ation as an accessory before the fact, nor is the converse possible. By virtue of legislation in each State, th£ first of these anomalies has been rectified; for example, the Crimes Act, 1900 (NSW) provides in s .346 that an accessory beforethe fact to any felony may be indicted, convicted and sentenced as a principal

38offender. These provisions do not, however, remedy the second anomaly, sothat if the defendant is charged as an accessory before the fact, but isproven to have participated as a principal (whether in the first or second

39degree) he may not be convicted. Thus, if there is doubt as to whether thedefendant participated as a principal or as an accessory before the fact, it

40would seem to be prudent to charge him as a principal. 37 38 39 40

(37) See p .33 ff • above.(38) See also the Crimes A c t , 1 9 5 8 ( V i c . ) , s * 5 2 4 »the Criminal L a w Consolidation Act,

1935 (SA) s.267. These sections are similar in effect to s.346, though differing slightly in form.

(39) Unless, perhaps, it is argued that s.346 and its counterparts in Victoria and South Australia demonstrate an intention on the part of the respective legislatures that the positions of the accessory before the fact and principal offender be wholly interchangeable for these purposes of indictment and verdict, so that a person may be charged in one capacity and be convicted upon proof of participation in the other.

(40) See Williams CLGP at pp.405-7 for further comment on this topic.

349(b) Indictable Misdemeanours

The common law rule that all of the parties to a misdemeanour are principalsfor procedural purposes is restated in legislation in the three States. Forexample, s.351 of the Crimes Act, 1900 (NSW) provides that any person who "aids,abets, counsels or procures" the commission of any misdemeanour may be indicted,

41convicted and punished as a principal offender. This legislation is of course42based upon similar English legislation. The prosecution is thus enabled to

charge the suspected accessory as a principal or in compendious form, i.e., that he did "aid, abet, counsel or procure," or that he did aid and abet, or that he did counsel or procure. As well, the defendant charged as an accessory may be convicted upon proof of participation as a principal offender. Further matters relevant to forms of charge are noted under (a)(2) above.

(c) Summary Offences

The parties to a summary offence (which is of course a misdemeanour) are on precisely the same footing for procedural purposes as are the participants in an indictable misdemeanour, i.e., each is a principal for procedural purposes, even if in substantive terms he is an accessory. This common law rule relating to misdemeanants is restated .n legislation which was based upon s.5 of the Summary Jurisdiction Act, 1848 (UK), and which parallels the provisions governing the prosecution trial and punishment of accessories to indictable misdemeanours referred to ante.^

Stection 100 of the NSW Justices Act, 1902, provides inter alia that every person who aids, abets, counsels or procures the commission of a summary offence may be proceeded against and convicted together or before or after the conviction of the principal offender, and upon conviction punished as a principal offender. Section77 of the Victorian Justices Act, 1958 and section 53 of the SA Justices Act, 1921 are in similar terms.

Thus, the prosecution may charge the suspected accessory as a principal,or in general form, that he did "aid, abet, counsel or procure" the offence.

44Typically the suspected accessory is charged m this latter form. And logically, the defendant may be convicted upon proof of participation as a principal, though he is charged as an accessory. 41 42 43 44

(41) See also Crimes Act, 1948 (Vic) s.333; Criminal Law Consolidation Act,1935 (lh), s.269.

(42) Let s. 3 of the Accessories and Abettors Act, 1861 (UK), which was in turn based in part upon s.5 of the Summary Jurisdiction Act, 1848 (UK).

(43) Commentary upon the nature of this legislation which confirms that it reflects the common law principle, is found in Glennan [1970] 2 NSWR 421 at 424;ex part Coorey [1949] SR (NSW) 287 at 295(Jordan Cj) ; Richards v McPherson [1943]VLR 44 at 45 (Martin J); Lenzi v Miller [1965] SASR 1 at 10 (Napier CJ,Travers J ).

(44) See# for example^Glennan and Lenzi v M ille r, id .

350Further comments upon aspects of this* topic are made under (A)(2) above.

(4) The Australian Code States: Queensland, Western Australia andTasmania______________________________________ ________________

The principal complicity provisions in the Australian Criminal Code Stateshave effected a merger of the several modes of criminal participation createdby them, for procedural purposes. Section 7 of the Queensland and WesternAustralian Codes (which is substantially identical to s.3 of the Tasmanian Code,though not in precisely the same terms as s.3) creates each such participant a

45party to the offence who "may be charged with actually committing it." Byimplication, the secondary offender under the supplementary complicity sections

46in this legislation is to be charged likewise.

Suspected accessories are, therefore, usually charged with the offence,i.e., as if they were a principal offender, it is thus being open to theprosecution to lead evidence which incriminates the defendant pursuant to one

47or more of the several bases of secondary liability specified m each section. Note, however, that s.7 of the Queensland and Western Australian Codes provides in the alternative that the prosecution may charge a person directly with counselling or procuring crime, where it is sought to make him liable solely under ss„(d) of this section.

V

(5) New Zealand

The pr ncipal complicity provision in the New Zealand Crimes Act, 1961(i.e., s.66\l)) is in similar terms to s.7 of the Queensland and Western AustralianCodes (s.3 of the Tasmanian Code ). It provides that both the perpetrator of acrime and the secondary participant in crime (who may participate in one or more

49of three ways ) are "party to and guilty of the offence." An alternative basis 45 46 47 48 49

(45) See generally at p. if. above.(46) Queensland and Western Australian Codes, s.8, s.9; Tasmanian Code s.4, s.5.

Section 9 of the Queensland and Western Australian Codes (corresponding to s .3 of the Tasmanian Code) indeed simply extends the liability provided in s.7(d) of this legislation (i.e., s.3(l)(d) of the Tasmanian Code); but it does not create an independent head of secondary liability (see p .255 above.)

(47) Secondary liability may be supported by reference to one or more of thefollowing: Queensland and Western Australian Codes s.7(b)-(d), s.8, s.9;Tasmanian Code s.3(l)(b)-(d), s.4, s.5.

(48) Nichols [1958] Qd R 200; Mayberry [1973] Qd R 211; Stuart V R (1974) 4 A L R 545? Brennan v R (1936) 55 CLR 253; Borg v R [l972] WAR 194; Murray v R I T^rrTas ~SR 170. ~ _

(49) The text of this provision appears at p .43 a’oove.

551

of secondary liability is provided for in s.66(2). Section 66 has been construedas merging the categories of criminal participation enumerated in it, so thatwhile a person may be charged as a principal, i.e., directly with the crime,the prosecution may subsequently seek to prove his participation as a perpetratoror in terms of any one or more of the categories of secondary responsibility

51specified in s.66. On the other hand, under s.343 of the Crimes Act it ispossible to charge the alleged accessory qua accessory; so for example, thisperson has been charged in compendious form with "aiding, abetting, inciting,

52counselling and procuring11 the subject crime. (These verbs appear in s.66(l)(b),(c) and (d).) The New Zealand Court of Appeal has said, however, that itmay be desirable for the trial judge to consider whether the charge ought tobe recast .. i this circumstance, so as to eliminate certain of these verbs fromthe count in order to focus the jury's attention more precisely upon the nature

53of the prosecution's case.

And if it is sought to incriminate the defendant pursuant to s.66 (2) alone,then it would presumably be appropriate to specify this in the charge or its

54particulars.

(II) ACCESSORIES NOT TQ BE TREATED AS BEING PRINCIPALS FOR ALL PROCEDURAL PURPOSES______________________________________________________________

It has been seen that at common law the accessories to misdemeanour are55regarded generally as being principals for procedural purposes. This rule

56has been extended to secondary participation in all offences in England. It 1ikewise governs secondary participation pursuant to the Commonwealth Crimes Act, 1914(Aust) and secondary participation in the Australian Code States^ 50 51 52 53 54 55 56 57 58

50

(50) See id.(51) I .e., s. 66 (1) (b) - (d) , or s. 66 (2). Cases illustrating this process include Baker

(1909) 28 NZLR 536 (this case concerned, inter alia, s.90 of the Crimes Act 1908 (NZ), which is in similar terms to the present s.66(l); Malcolm [l95l] NZLR 470; Morrison [1968] NZLR 156.

(52) McKewen [1973] 2 NZLR 603.(53) Id.at 605. So for example, if the charge "is truly of the accessory before

the fact type/' the count ought by implication be amended to charge the defendant with "inciting, counselling or procuring" pursuant to s.66(l)(d). This comment was made before the trial in question, the defendant having applied at this time for an order that he be tried separately from the alleged principal.

(54) See Hartley [1978] 2 NZLR 199 where this was done.(55) See p.21 ff. above.(56) See p.2l3ff. above.(57) See p. jQff. above(58) See p ^ f f . above.

352

and in New Zealand. The common law position is preserved in New South Wales,Victoria and South Australia, so that while the accessory to misdemeanour may beregarded generally as being a principal for procedural purposes, it cannotbe said that secondary participants in felony enjoy this general status, though

60the common law rules have been modified in certain respects.

Where this procedural status (i.e., of principal) is possessed by theaccessory, the courts have, it has been seen, permitted the prosecutionconsiderable flexibility as to the form in which the alleged accomplice incrime may be charged, so that it is not a matter of significance should he becharged with participating in crime in one degree of complicity, and proven to

61have participated in another - he may be convicted nonetheless. As well, thecounsellor may be convicted in advance of the principal, which is not permissible

62at common law m the felony context. And this status has other, less obvious procedural implications; for example it has been held that prescribed time limits governing the prosecution of statutory crimes apply equally to the prosecution of alleged accessories.*^

But even where the general rule applies, the courts have on some occasions refused to allow that the accessory enjoys this status, viz, it is not really accurate to say that the accessory is principal for all procedural purposes.It is difficult to generalise these cases, other than to say perhaps that the courts will refuse to treat the accessory as a principal for a particular

(59)(60) (61) (62) (63)

See p. 43 ff. above.See p. 33 ff. above See p. 340ff. above See p.354 ff. below,Gould v Houghton [l92l] 1 KB 509. The Earl of Reading felt fortified in this view by virtue that the accessory misdemeanant is a principal for procedural purposes (at 515-519), though Darling J. indicated that quite apart from this consideration, given that the prosecution of the accessory was one under the relevant section the time limit applied as a matter of course (at 520, 522). By implication, the prosecution of an accessory to felony, in those jurisdictions where offences of this status still exist, would likewise be governed by the statute. And see Acton J. at 525.Similarly see Malian v Lee (1944) 80 CLR 198 at 212 (Latham CJ ). This case dealt with a charge under s.5 of the Commonwealth Crimes Act, 1914 (Aust.).

353procedural purpose if his position is not really able to be directly equated with that of the principal, in a vital respect.

64Thus, the English Court of Appeal decided in Ioannou (1975) that anaccessory to an offence under the Licensing Act, 1964(UK) which was committedby his lessee as principal offender, could not appeal against a disqualification

65order made against his premises. This was because having regard to the66relevant sections in the Licensing Act and the Criminal Appeal Act, 1968 (UK)

such an appeal could only be made by a person holding a justices' licence. Theprincipal offender had held a licence on this occasion; Ioannou had not. ThatIoannou was punishable as a principal offender did not involve that he was

G 7literally a licensee.

In Goldie; ex parte Picklum (1038)^Evatt J of the Australian High Court was of the view that though an Australian citizen could aid or counsel aprohibited migrant in the commission of an offence under s.7 of the Immigration

6 9Act, 1901(Commw.) he was not subject to all of the penalties which theprincipal offender attracted. Specifically, though the accessory could befined or imprisoned along with the principal offender, he could not be

70deported, unlike the latter.vFinally, in Richards v McPherson (1943) Martin J of the Supreme Court

of Victoria held that a person who had aided another in the commission of a street-betting offence could be punished as a second offender, even though the principal offender may not have been convicted on a previous occasion. That the accessory had offended before was an antecedent matter which affected his legal status, and so distinguished him from the principal offender, thereby enhancing his potential punishment. Conversely, he allowed in an obiter comment that an accessory who had offended once only would not be liable to the higher punishment ceiling that may be applicable to the principal offender 64 65 66 67 68 69 70 71

(64) [1975] WLR 1297-(65) The offence was one of selling liquor in prohibited circumstances, under

s.161. The disqualification order, which prevented any person from holding a licence in respect of the subject premises, was made under s .100(2).

(66) Sections 9, 50(1).(67) Ioannou [1975] WLR 1297 at l30.1. The problem was that a disqualification

order could only be made once a licensee committed an offence, thus the order so made did not form part of Ioannou* s sentence. Under the Criminal Appeal Act, 1968 s.9, a convicted person may appeal only against any sentence (or by s,50(l), any order made by the court in dealing with an offender) imposed upon him for the subject offence.

(68) (1937) 59 CLR 254.(69) Viz, i ■> be found in the Commonwealth of Australia while a prohibited immigrant

Secon. iry liability was sought to be imposed pursuant to s.5 of the Crimes, Acts, L914 (Commonwealth.)

(70) Id* at 271-2* In fact the court decided that the appellant had not aided.(71) [1945] VLR 4 4 .

554

by virtue of the latter having offended on more than one occasion. In otherwords, the accessory is not necessarily to be equated with the actual principaloffender on the occasion of the subject crime, but with a principal offender

72invested with the accessory's same legally significant characteristics.

(Ill) CONVICTION OF ACCESSORY WHERE PRINCIPAL OFFENDER HAS NOT BEEN CONVICTED_____________________________________________________

At common law the accessory may not, in certain circumstances, be convicted of an offence before the principal is convicted. The latter may not have been convicted for a variety of reasons - for example, he may be unknown, or he may be dead, or he may not have been arrested, or he may have been pardoned. Accordingly, this theoretic immunity may be short-lived, or it may be permanent.In fact legislation has cured this common law anomaly in each of the jurisdictions under discussion.

This situation is to be distinguished from that where there is no principal offender in the first place. If the defendant instigates, encourages or assistsan innocent agent to commit the actus reus of an offence, then his liability

73would need to be evaluated on a quite different basis.

The reasons for concluding that the alleged accessory may no longer plead this defence in each of the subject jurisdictions are noted below. Firstly, the position at common law will be briefly outlined.

(A) THE POSITION AT COMMON LAW

(1) Felonies(a) Accessory Before the Fact (i.e., Counsellor or Procurer)

At common law it is not possible to convict an accessory before the fact74before the principal m the first degree is convicted. This rule perhaps

is rooted in the literalistic notion that to permit this to happen would involvethat the record of trial would disclose an error (viz., that a person had beencommitted of a crime which had not been committed )» This anomaly was rectified

75m England by the Accessories and Abettors Act, 1861 (UK), s.2. 72 73 74 75

(72) Id. at 46.(73) See p.257ff. above.(74) Russell (1832) 1 Moody 356, 168 ER 1302; Leddington (1839) 9 Car & P 80,

173 ER 749.(75) which provided, inter alia, that an accessory before the fact to any felony

may be 11 indicted and convicted, whether the principal felon shall or shall not have been previously convicted, or ... be amenable to justice ..."

355(b) P rin cip al in the Second Degree ( i .e . , Aider and A bettor)

The question of whether at common law the principal in the second degreeto felony may be convicted where the principal offender has not been convictedor is unable to be, has not been expressly resolved in the reported decisions,though it is clear that the principal in the second degree may be so convicted.This would be on the basis that he is, like the principal offender, a principal

76in the offence, and (as it has been seen ) may be indicted as a principalin the first degree and convicted on this charge, even as the Crown case will

77be one of aiding. The question was raised by the defence in Taylor (1785)78though it was not disposed of conslusively. In Jessop (1877) it was

accepted by implication that a principal in the second degree to murder could79be convicted though the principal in the first degree was dead. Similarly,

in Bourne (1952)^ the English Court of Criminal Appeal upheld the convictionof a man who had been convicted of aiding and abetting his wife to commitbuggery with a dog, although she had not been convicted. The court tookthe view that she had committed the offence, so that there was in the technicalsense, a principal in the first degree in this case, though it was allowedthat because she had been subject to duress by the appellant in this matter

81she would have been acquitted, had she been brought to trial.

(c) Misdemeanour

82As it has been seen under (I) above , at common law all of the parties to misdemeanour may be treated as being principals for procedural purposes. In that the common law rule prohibiting the conviction of the accessory before the fact to felony in advance of the principal is procedural in character, this doctrine affecting accessory misdemeanants clearly involves that the person who counsels or procures misdemeanour may be convicted in advance of the perpetrator. He does after all, lose the status of counsellor or procurer for, inter alia, this procudural purpose. 76 77 78 79 80 81 82

(76) See p.^Off. above,(77) (1785) 1 Leach 360, 168 ER 283.(78) (1877) 16 Cox CC 204.(79) The principal was the survivor of a suicide pact, being charged with the

murder of the other party to this. He had handed to the deceased the poison used by the latter to kill himself. The report does not indicate whether the prosecution or trial judge regarded J as a principal in the first or second degree, but clearly he was the latter.

(80) (1952) 36 Crim App R 125.(81) On another view,of course, B might have been regarded as being himself

a principal offender though the innocent agency of wife. See pp•237ff•t252.(82) At p.341,and see also p. 2tff. above*

356

It is in the light of this doctrine that the courts have affirmed that anyaccessory to joint misdemeanour may be convicted although the principal offender

83shall not have been so convicted.

(B) STATUTORY MODIFICATION OF THE COMMON LAW RULE(1) England

84It has been seen elsewhere that as a result of several successive statutes, the procedural rules governing the prosecution, trial and conviction of the accessory to any offence are as they exist at common law in the context of misdemeanour. Accordingly, an accessory to any offence may be convicted in advance of the principal.

(2) The Commonwealth Crimes Act, 1914 (Aust.)

The Commonwealth Crimes Act, 1914, s.5, has so it has been proposed in Chapter Two, evidently constituted the accessory a principal for procedural purposes. Thus, it cannot be an objection to the conviction of this party that the actual perpetrator has not been convicted.

(3) New South Wales, Victoria and South Australia

(a) Principal in the Second Degree to FelonyV

The question is governed by common law, so that a principal in the second degree may probably be convicted irrespective of the fate of the principal in the first degree.

(b) Accessory Before the Fact in FelonyIn s.346 of the Crimes Act, 1900 (NSW) it is provided that every accessory

before the fact to felony may be convicted whether or not the principal felon is tried, or is amenable to justice. In South Australia a similar provision is found in s.267(3) of the Criminal Law Consolidation Act, 1935. In Victoria it is provided in s.324 of the Crimes Act, 1958, that an accessory before the fact to felony may be "presented indicted informed against tried convicted and punished in all respects as if he were a principal felon." This being so, the issue of whether the actual principal felon has been convicted is irrelevant in each state, for it can never be any objection to the conviction of a principal felon that he himself (or a fellow principal offender in the offence charged) has not been convicted.

(c) Accessory to MisdemeanourIt has been noted above that at common law the accessory to a misdemeanour, 83 84

(83) See Burton (1875) 13 Cox CC 71 at 75; Ackroyds Air Travel Ltd v DPP [1950] 1 All ER 933 at 936. (This case dealt with a charge governed in part by s.5 of the Summary Jurisdiction Act, 1848 (UK), which reproduces the common law procedural rule referred to) ; and Hedley v Halim Kallil [1936] NZLR 732, dealing with a charge governed in part by legislation similar to s.5 of the Summary Jurisdiction Act, 1848 (UK).

(84) See p.25ff* above.

357

whether indictable or summary in character, is to be regarded as a principaloffender for procedural purposes. This rule has been restated by statute in

8 5each of these jurisdictions. Thus each secondary party may be convicted irrespective of whether the principal has been convicted.

(4) The Australian Code States: Queensland, Western Australia andTasmania

86As it was noted above the secondary participant m crime under the principal complicity provisions in the Criminal Codes of Queensland, Western Australia and Tasmania may be treated as being a principal for procedural purposes, and is therefore liable to conviction in advance of the perpetrator.

(5) New ZealandPrecisely the same comment is to be made in relation to s.66 of the New

Zealand Crimes Act, 1961, which has been interpreted, it has been seen, as87constituting the secondary offender a principal for procedural purposes,,

with the result that he may be convicted in advance of the principal.

(IV) INCONSISTENT VERDICTS IN THE CONTEXT OF JOINT CRIME’

It is evident that a nominal inconsistency between verdicts given against alleged joint participants in a given crime does not entitle a convicted party to have the verdict against him quashed upon the formal ground that the record (i.e., of the court) discloses ex facie an error in proceedings. Such incon­sistencies may readily arise. For instance, A and B- may be jointly indicted for a crime with the trial judge exercising his discretion to order separate trials. A may be acquitted of this crime for whatever reason, but B may subsequently be convicted at his trial upon proof that he had aided A (or for that matter, any other person) to commit it. Or A and B may be jointly indicted, the indictment alleging that they and no others have participated in a crime as joint principals; but at their joint trial one may be acquitted.

The courts have indicated that the convicted accomplice in situations such as these is only entitled to have his conviction quashed if he can establish circumstances which are sufficient to attract one. or several of the general grounds of appeal available in the given jurisdiction, such as that the verdict

(85) See pp. 21 and 341 above.(86) See p p . 3 5 And 350-1 above.(87) See pp. 43ff*» And- 350-1 above.

»against him is unsafe and unsatisfactory, or that it is unreasonable, or that it represents a miscarriage of justice, etc, having regard for instance to the evidence led by the Crown.

The relevant authorities are considered under two headings: (1) jointparticipation in substantive crime; (2) conspiracy.

(A) INCONSISTENT VERDICTS IN THE CONTEXT OF SUBSTANTIVE CRIME

The issue of whether a nominally inconsistent verdict could stand was88 89touched upon by the Privy Council in Surujpaul v R_ (1958) and King (1962).

In Surujpaul the basis of the appellant's complaint was that although he hadbeen convicted as an accessory before the fact to murder, his co-defendants,the alleged principals in the murder, were acquitted. The Judicial Committeedid not, however, feel compelled to consider "whether a writ of error wouldhave lain by reason of error on the record which could be cured by reference

90to the evidence^* being of the view that the verdict could not be supportedin the first place, having regard to the fact that the evidence did not contendfor such a distinction between the several parties' alleged roles as would

91justify the jury's distinguishing of them as it did.

The approach of the Judicial Committee in King was broadly similar. Thefemale appellant and another man had been convicted of murder, the Crown havingalleged that they had acted in concert. Both appealed to the Supreme Courtof Barbados with the result that the appellant's conviction was upheld, but herswas quashed. The Privy Council quashed her conviction subsequently, but onthe ground that this verdict was unsatisfactory, having regard to the fact thatthe trial judge had told the jury that they could only convict the two of themif they had acted in concert; and that accordingly the jury had never consideredthe guilt of each accused upon the basis that they were not acting in concert,and that there was no way of knowing what their verdict would have been in this

92case. It is perhaps significant that the court declined to order the retrial 88 89 90 91 92

358

(88) [1958] 3 All ER 300.(89) [1962] 2 WLR 301.(90) Surujpaul v R [1958] 3 All ER 300 at 303.(91) Id. at 307.(92) King v R [1962] 2 WLR 301 at 306.

359of the defendant, not upon the basis of ex facie inconsistency on the record,

93but because of other reasons. By implication, therefore, this nominal • inconsistency would not otherwise have assisted the appellant.

Since this time the English and Australian courts have, with only one 94exception , expressly or by implication held that ex facie repugnancy on the

record does not in itself afford a ground of appeal to the convicted personwho was alleged to have jointly participated in the subject crime. The Houseof Lords affirmed that this was so in the conspiracy context notwithstanding

95previous authority to the contrary, in DPP v Shannon (1975) . As conspiracyis an instance of the joint commission of the crime, it is logical that thereasoning in this decision is applicable in the context of joint substantivecrime. Sh.■ inon is further considered under (B) below. And this principle is

96reflected in the subsequent English case of Moghal (1977) where the English Court of Appeal upheld the conviction of the appellant for murder, notwith­standing that the Crown had alleged at his trial that he had aided and abetted murder rather than committed it as a principal, and that the person alleged by the Crown to have committed it had in fact been acquitted at her earlier and separate trial.

97Likewise in Jones (1971)v the New South Wales Court of Appeal declinedto quash the conviction of the appellant for rape, notwithstanding that hisco-defendant, with whom he had allegedly concerted for the multiple rape ofthe victim, had been acquitted. What was significant, in the court's view, wasthat the evidence against the appellant did justify his conviction; conversely,the fact that the jury "generously acquitted1' his alleged confederate was not

98m itself a ground for quashing his conviction. Subsequently the Full Supreme99Court of South Australia was of the view in Emery (1975) that the conviction 93 94 95 96 97 98 99

i

(93) Id. at 307.(94) In an obiter comment in Anthony [1965] 2 QB 189 the English Court of Criminal

Appeal said that it is not open to a jury to convict an alleged accessory before the fact to a felony and to acquit the alleged principal felon, where the latter is named in the indictment.

(95) [1975] AC 717.(96) (1977) 65 Crim App R 56.(97) [1971] NSWLR 613.(98) Id. at 618; and see 617.(99) (1977) 11 SASR 169.

360

of only one of several persons charged jointly with robbery and the acquittalof the others was permissible, notwithstanding that the Crown case had beenone of concert. The appellant had alleged that the verdict against him wasboth unreasonable and inconsistent with the other verdicts. Such was thenature of the evidence adduced by the Crown, the court considered, that theverdict against E was not unrealistic. No mention was made of any formaldoctrine of ex facie repugnancy on the record. But the court recognised thatevidential considerations might make a nominally inconsistent verdict unsafe;for instance, if A and B were indicted jointly for a crime, and the evidenceagainst each was virtually identical, a verdict against one of them only wouldbe unreasonable. Here, the court considered, no such problem arose; theevidence implicating the defendant in the crime as a principal offender wasstrong independently of any allegation of concert. Mr Justice Sangster consideredthat whether inconsistent verdicts against two accomplices could stand was tobe resolved by reference to the test approved by the English Court of Appealin Hunt (1968)"^^ in relation to cases of allegedly inconsistent verdictsgenerally, i.e., in contexts not necessarily confined to the circumstance of

102alleged joint offenders. This was that the appellant alleging a repugnantor inconsistent verdict "mus,t satisfy the court |i.e. of appealj that the twoverdicts cannot stand together, meaning thereby that no reasonable jury whohad applied their minds properly to the facts of the case could have arrived

103at the cor elusion.." (i.e., that was arrived at).

It is co be concluded, therefore, that a defendant cannot claim relief from a conviction solely upon the basis of a formal inconsistency between his conviction and the acquittal of his alleged accomplice or accomplices.Such has also been affirmed recently in respect of criminal conspiracy, not­withstanding a number of contrary decisions in earlier years.

(B) INCONSISTENT VERDICTS IN THE CONTEXT OF CONSPIRACY

The decisions dealing with a claim for relief from conviction by a party

(100) Id.at 173-4 (Bray CJ) and see 177 (Hogarth CJ).(101) [1968] 2 QB 433.(102) For example, where a receiver is convicted of receiving from a named

thief who is acquitted Of stealing the same property.(103) Hunt [1968] 2 QB 433 at 438. This citation appears in Emery (1975)

H~SASR 169 at 180.

361

to criminal conspiracy on the basis of an ex facie inconsistency between verdicts affecting the defendant and his alleged co-defendant or co-defendants, were never cited in decisions concerned with this element of ex facie inconsistency in verdicts affecting alleged accomplices in substantive crime. This was doubt­less because the courts recognised that the arguments in favour of relief were, on a literal view, stronger in the conspiracy context, so that different considerations obtained. For unlike most other offences, the crime of conspiracy demands proof of concert in every case, for this offence is of course constituted by an agreement for a prescribed illegal purpose. Given this requirement, it was more natural for the courts, especially in an era where the grounds of criminal appeal were confined to errors apparent in the record of proceedings, to allow that an ex facie inconsistency did reflect a substantive injustice.This policy was, however, persisted with long after a broadening of the grounds of appeal.

104Thus, up until the decision of the House of Lords in Shannon (1974) thecourts in England and Australia had uniformly applied the technical rule thatthe conviction of a conspirator could not stand in circumstances where the formalrecord of proceedings disclosed that all of his alleged co-conspirators had

105been acquitted. This rulq, was based upon the idea that in this situation therecord of trial^0 disclosed ex facie a legal and factual impossibility,because one possible inference from such a repugnancy was that the defendanthad conspired with himself. The rule was absurd because a defendant may wellhave conspired with another or others, with the latter being acquitted for

107reasons unrelated to proof of the defendant's guilt. The result of this rule was, to take a simple example, that if A and B were charged with conspiring among themselves (and with no other), they both had to be convicted or acquitted together. On the other hand, if they were charged with conspiracy together between themselves and others unknown, it was possible to convict one only of the two, say A, and to acquit B. In these circumstances the record would not disclose < i inconsistency, for the logical inference from it would be that although A did not conspire with B he did (or might have) conspired

(104) [1975] AC 717.(105) Similarly, he could not have been tried at all, if all of his alleged co­

conspirators had been acquitted.(106) The "record" in this context being confined to the record of the charge,

verdict, conviction and sentence, as it was in earlier times.(107) For example, a co-conspirator might have his conviction quashed because

of a technical shortcoming in the evidence against him, such as that a confession by him had been improperly obtained.

362

with some other person or persons unknown.

The House of Lords viewed the doctrine as achronistic in Shannon, given(as mentioned) that the grounds of appeal against conviction in modern timesgo far beyond the remedy provided for in earlier days in the form of a writ of

109error, when only the formal record was available to the appellate courts.Now, the court considered, the relevant factor in the circumstance where the jury convicted the defendant while acquitting his alleged co-conspirator or co-conspirators was the strength of the evidence supporting his conviction.If the evidence did not support the conviction, the latter ought to be quashed, but this would be done expressly on the ground of real deficiencies in the prosecution case, and not on the basis of an ex facie repugnancy embodied in the record.

As it was mentioned under (A) above, the reasoning in Shannon is logically applicable to situations of an alleged ex facie repugnancy between verdicts in the context of joint participation in crimes other than conspiracy. The reason­ing in Shannon is indeed all the more compelling in this situation, in that there was always less justification in any event for recognising any such doctrine of repugnant verdicts in respect of offences which are not intrinsically plural in character.

(V) DIFFERENTIAL VERDICTS

(A) AT COMMON LAW

At common law it is possible, subject to certain limitations, to convict a person charged with a given offence (for example, murder) of a lesser offencee (for example, manslaughter) the ingredients of which are comprehended by the * 2 * * * * * 8

(108) See for example Kinnersley (1719) 1 Str. 193, 93 ER 467; Nichols (1742)2 Str 1227, 104 ER 429; Thompson (185.1) 16 QB 832, 117 ER .1100; Manning(1883) 12 QBD 241; Quinn (1898) 19 Cox CC 78; Plummer [1902] 2 KB 339;Hillman (1931) 23 Crim App. R 53; Ahearne (1852) 6 Cox CC 6; Anthony [1965]2 QB 189; Alley (1886) 12 VLR 13; Jacobs "(1917) 23 AIR 1 ; Greenhalgh(1924) 24 SR (NSW) 289; Withers (1924) 18 QJPR 35; Behn (1936) 38 WALR 94;Sayers [1943] SASR 146. And see Regan [1939] 2 DLR 135; Platt v State8 NW (2d) 849 (1943).

(109) See for example Lord Morris in Shannon [1975] AC 717 at 746,(110) Though it is worth noting that Lord Morris (in whose speech Lord Reid

concurred) considered obiter that in the extraneous situation where two persons were charged with conspiring together among themselves and with no other person, the jury should be instructed that it could not differentiate them in its verdict, even if the evidence against each differed, because the jury could otherwise be left in confusion; see id at 755. Lord Salmon als favoured this approach in all but "the most exceptional cases]' for the same pragmatic reasons: id.at 772. On the other hand Viscount Dilhorhe and Lord Simon considered that no exception ought be made in this category of case, viz, that the rule against ex facie repugnancy should generallybe scrapped.

>offence charged. In this situation the greater offence will usually bedistinguished from the lesser by some additional requirement of mens rea',representing an additional element of aggravation. One obvious qualificationis that the lesser offence? must not be altogether different in character fromthe g r e a t e r . T h i s common law procedural doctrine has been supplemented by

112statute in certain of the various jurisdictions.

Subject to this rule, a jury or other tribunal of fact may, when applyingthe common law doctrine of complicity, distinguish the roles of two ormore persons charged with the joint commission of a given offence, convictingsome of them of it and the others of a lesser offence comprehended by theoffence charged. Joint principals may be distinguished in this way. Similarly -the principal and accessory may be so distinguished (subject to the importantlimitation, that an accessory almost certainly cannot be convicted of a

113more serious offence than that of which the principal is convicted ). Inother words, the jury may only differentiate the guilt of these parties in away favourable to the accessory. Usually this differentiation will be basedupon a scrutiny of the mental state of each individual offender. Most such oaseshave involved homicide, so that while the principal has been convicted of murderbecause he had the mens rea*appropriate to this crime, his accomplice (whpmay have been a joint participant in the assault leading to death, or an

114accessory m this) has been convicted of manslaughter because he did not have the • mental state reauired of the accessory to murder,intending or contempl­ating for example that the victim would be subject to no more than a simple

36?

(111) See Archbold, Pleading, Evidence and Practice in Criminal Cases (40 ed, Sweet & Maxwell, London]1 9 7 9 ) at para. 623 for a statement of the relevant principles.

(112) For example the Criminal Law Act, 1967(UX), s.6. The situation may be more complex; it may be possible to charge a person with offence A and if the proof falls short of establishing A then to convict this person of the lesser cognate offence B; and if the proof falls short of this then to convict him of the still less serious cognate offence of C.

In the following comments it is assumed for the sake of convenience that the offence charged may be reduced by only one degree, i.e., to one lesser offence, but1 they ought be read in the light of the above qualifications.

(113) See p. 253ff. above.(114) See p.i93ff, above.(115) See,for example, Griffith (1553) 1 Plow. 97, 75 ER 152; Thody (1663) 1

Freeman 514, 89 ER 386; G-arforth [1954] Crim LR 936; Smith(Wesley) [1963] 3 All ER 597; Lovesey [l97o] 1~QB 352; Surridge (1942) 42 SR(NSW) 278.For an example of a differentiation of responsibility in a case not involving homicide see Hackett [1955J SASR 137, where two of three persons charged with robbery with an offensive weapon were convictedof a lesser offence of robbery.

assault 115 564(B) DIFFERENTIAL VERDICTS IN THE AUSTRALIAN CODE STATES

(1) Section 7 of the Queensland and Western Tasmanian Code )

Australia Codes (s.3 of the

The principal complicity provision in each of the Queensland and WesternAustralian Codes is the identical section 7, which provision" is virtuallyidentical to s.3 of the Tasmanian Code. The question was raised in the twoTasmanian cases as to whether this section is so worded as to make it impossibleto differentiate the guilty joint participants in crime in the circumstancesindicated above. Each such provision^^ renders each person incriminatedpursuant to it (i.e., as a perpetrator or secondary party) guilty of "the crime"(the Tasmanian Code) or “the offence" (the Queensland and Western AustralianCodes), so that in the words of one judge, it is arguable "that the sectioncan only be read in the grammatical sense that the language requires, that itis concerned with one crime and one crime only and that is the crime committed

117by the principal offender..." The result would be that if the allegedaccessory is to be made liable under the section at all for the principal'scrime, it will be for this crime and no other. But this invitation to grammaticalparticularity in these sections notwithstanding, the Supreme Court of Tasmaniahas confirmed on two occasions that the provision does permit the differentiationof the guilt of co-offenders in appropriate circumstances, where for example,

110their respective mental, states differ.

(116) See p.3& for the text of the section.(117) Frost v R [1969] Tas SR 172 at 198 (Crisp J ).(118) See Murray v R [1962] Tas SR 170 at 174ff (where Burbury CJ justified

this construction of s.3 upon the basis, inter alia , that s.3(l) was intended to reproduce the common law principles which do of course permit such a differentiation; and further that although (as in this case) the principal's 'crime' may be murder, this word is apt toinclude the lesser offence of manslaughter, such offence being domprehendet by the greater one of murder; and finally, that in respect of the Tasmanian Code at least, as sections 332-333 recognise in any event that a person charged with murder might be convicted in the alternative of manslaughter,, s. 3 (and the supplementary s.4) had to be read subject to thi: principle); 186 (where Gibson J similarly recognised the propriety of differentiation); but contrast Crawford J's view at 196ff; See also Frost v R, id, at 174ff (Burbury CJ); 189 Crisp J); 190 (Chambers J ).

365>

The is me has not been expressly considered in Queensland and WesternAustralia, but the reasoning in the Tasmanian decisions is equally applicable

119to s.7 in the Queensland and Western Australian Codes.

(2) Section 8 in the Queensland and Western Australian Codes (s.4 of the Tasmanian Code)________________________________________________________

This section incriminates a person who is party to a "common intention"(i.e., a common purpose) to prosecute a given offence or offences in apy othercrime committed during the prosecution of this initial common intention, which

120crime is a "probable"consequence of this prosecution. As the issue ofwhether or not the subject crime was a '‘probable" consequence is to beassessed objectively, it would seem to follow that the court cannot distinguisheach participant in the initial common purpose according to his mens rea. Thistopic is either referred to, or is canvassed though inconclusively, in the

121 122Tasmanian decisions of Murray v R (1962) and Frost v R(1969 )» In the lattercase Burbury CJ and Crisp J (Chambers J concurring) were inclined to doubtthat a jury could convict one of several accomplices in homicide, of murderas a principal, and to convict the others of manslaughter merely, pursuant

123to s.4. By implication £his reasoning would be equally applicable insituations where it is sought to differentiate the liability of personsincriminated pursuant to s.4 in crimes other than those of homicide. But inCrisp J's view (and his judgment was endorsed by Burbury CJ and concurred inby Chambers J) the fact that the prosecution has sought the defendant'sconviction for murder pursuant to s.4 should not be permitted to deprive himof the possibility of having a manslaughter verdict returned against himpursuant to s.3 of the Tasmanian Code where the facts (such as a difference of

124mens rea as between him and the perpetrator of the killing) justify this.

(119) It was accepted without argument that a jury trying two persons jointly charged with murder, could convict the principal of murder and his co-defendant (and alleged accessory) of manslaughter, should the facts warrant this, in Borg v R [1972] WAR 194.

(120) See generally p .41 and p #219ff. abov&.(121) [1962] Tas S& 170 at 176ff (Burbury CJ); at 189ff (Gibbs J ).(122) [1969] Tas SR 172 at 174 (Burbury CJ); 181 (CrispJ). Chambers J

concurred in the judgment of Burbury CJ and Crisp J.(123) Id.at 174 (Burbury CJ); 181 (Crisp J ).(124) Id.at 189.

In respect of section 3 (corresponding to section 7 of the Queensland and Western Australian Codes) it has been seen, differential verdicts aro permissible,

This approach would seem to be reasonable* But it is also a radical one, for its general implication would appear* to be in every case that where the defendant would otherwise be liable for a given crime under s*4 irrespective of his me tal state (i*e., on the objective basis that this crime was a "probable1 consequence of the prosecution of a common criminal purpose to which he was party), he may appeal to s*3 of the Tasmanian Code (s*7 of the Queensland and Western Australian Codes) if this would advantage him* These latter sections do of course require proof that the accessory possesses the same degree of awareness oas to the relevant circumstances of the offence, as is required in respect of the principal by the definition of this offence.The overall result would be that a defendant could sidestep s.4 /8 completely, were it unfavourable to him. It is far from clear that this result was intended by the respective legislatures; rather, the Codes would seem to contemplate that the prosecution can seek to incriminate the alleged accessory pursuant to either s*3/7 or s*4/8, or pursuant to both of them concurrently.

The alternative view is that Crisp J contemplated that this concessioncould be availed of only by the person cliarged with murder; for he justifiedit upon the basis that "f*oJther courts have frequently said that despitea conviction for murder on a proper direction, if the alternative ofmanslaughter as a matter of law was not put, the accused has been deprived of

12 5an opportunity to which he was entitled and the verdict cannot stand,,."But, of course, the defendant's right to have this alternative verdict put must be legally based - and how is it to be thus supported except by way of reliance upon the more general reasoning referred to?

126The Queensland Court of Criminal Appeal's decision in Tonkin(1973) is a reminder that although s ,8 may be generally construed as not permitting differential verdicts, it may be subject to specific statutory exceptions permitting this. Thus, S.304A of the Queensland Code (which sets out a statutory defence of diminished responsibility) provides in ss.(3 ) that where two or more persons unlawfully kill another, the fact that one of such persons is by virtue of S.304A guilt.y of manslaughter only shall not affect the question of

366

(123) Id. at 189,(126) [1975] Qd H 1 .

whether the killing amounted to murder in any of the other persons. Thus, thecourt accepted that if A combined with B to prosecute an unlawful purpose inthe course of which A committed murder, B could be convicted of this crimepursuant to s.8 if it was a probable outcome of the prosecution of this purpose,notwithstanding that A's liability could be reduced to one of manslaughter by

127virtue of his successful plea of diminished responsiblity.

(C) DIFFERENTIAL VERDICTS UNDER SECTION 66 OF THE NEW ZEALAND CRIMES ACT, 1961_____________________________ ____________________________

The Court of Appeal of New Zealand has recognised in an- obiter commentthat differential verdicts may be returned against co-defendants in the terms

128indicated, pursuant to s.66(l) of the New Zealand Crimes Act, 1961. Thisconclusion is supported by the authorities on s.3 of the Tasmanian Code(corresponding to s.7 of the Queensland and Western Australian Codes) which

129is in similar terms to s.66(l).

The same court has also recognised that differential verdicts are possible under s.66(2) of this Act, which provides that a party to a joint illegal purpose shall be liable for incidental crimes committed during the prosecutionof this purpose which are foreseen as being a probable consequence of this

. 130prosecution.

(VI) SENTENCING

(A) PENALTIES FOR ACCESSORIES.

(1) Where No Statutory provision Expressly Relates to Accessory

Where specific statutory provision is not made in respect of penalisation of the accessory to a given offence, it is reasonable to suppose that this matter

(127) It was presumably accepted that notwithstanding his abnormality of mind,A otherwise possessed the mens rea for murder, so that his act of killing could be regarded as being one of murder.

See this decision at 13-14 (D. M. Campbell J) and 38(Dunn J, who by implication agreed with Campbell J's reasoning); but contrast Kneipp J ’s views at 26-27, who differed with the other two judges on the construction of s.304A(3).

(128) See Malcolm [1951 NZLR 471 at 485. In this case the court considered that differentiation was not in fact in issue, having regard to the evidence.

The court made its comment in respect of s.90(.l) of the Crimes Act of 1908, the text of which is similar to the present s.66(l).

The text of s.66(l) is given at p.43 above.(129) See p. 364 above.(130) Hartley [1978] 2 NZLR 199.

568

would be governed by the penalty provisions prescribed in respect of the principal offender. The common law conception, of secondary responsibility (one common to its statutory successors in various jurisdictions) is after all that the accessory is to be regarded as particeps criminis in the subject offence, as if he were a principal. And such a conclusion is inescapable on general policy grounds, for in its prescription of penalty maxima the legislature must be taken to have had in mind the worst possible case of participation as a principal offender, ie the person who has conceived the crime himself, as well as execut id it. No accessorial responsibility in crime can exceed this level of blameworthiness.

The result would be that the sentence imposed upon the accessory cannot exceed that available to the courts in sentencing principal offenders and further, that only the forms of punishment available to the court in dealing with the latter may be resorted to in the case of the accessory.

This is not to say, however, that where the statute prescribing a given penalty structure provides for variations in penalty maxima or in forms of punishment according to the personal circumstances of the offender, that the individual principal and accessory in any given case cannot be subjected to

V

differing provisions in the overall penalty structure, where the positions ofeach of these parties may be distinguished by these legally significant personalfactors. This may involve, for example that the individual accessory becomesliable to a higher jjenalty than does the principal because he is asecond or subsequent offender, or vice versa. Cases illustrating this and

] 31other like situations are noted elsewhere in this chapter.

That secondary parties are subject to the same punishment as principal offenders is confirmed expressly or by implication in certain legislation in the subject jurisdictions:

(2) Statutory Provisions

(a) England

If the penalty structure governing a given offence is viewed as being part of its procedural incidents, then it follows that the accessory is subjected to the same penalties as the principal. This result is expressly provided for in s.8

(131) See p.551ff» Above.

of the Accessories and Abettors Art, 1861 (UK), which provides inter alia that the accessory to an indictable offence ''shall be liable to be tried and-punished as a principal offender." Section 35 of the Magistrates' Courts Act, 1952 (UK) though differently worded, is of equal effect in respect of accessories to summary offences (ss.(l)), and accessories to offences triable either way (ss. (2)) .

(b) ne Commonwealth Crimes Act

Section 5 of the Commonwealth Crimes Act, 1914, expressly provides thataccessories (aiders or counsellors) are liable to the same punishment as the

132principal offender.

(c) New South Wales

The Crimes Act, 1900, provides that principals in the second degree shall be punishable as principal felons (s.345); and that accessories before the fact shall be likewise punishable (s.346), Section 351, however, provides that persons who aid or counsel indictable misdemeanours may be punished as principal offenders. Limitation of penalty to that provided for in respect of the principal offender in this latter instance must therefore be established at common law, in the terms noted above.

S.100 of the Justices Act, 1902 (N.S.W.) provides that an accessory to a summary offence "shall be liable to the penalty to which the principal offender is liable. "

(d) Victoria

The Crimes Act, 1958 provides that the principal in the second degreeto any felony "shall'' be liable to the same punishment as a principal felon (s.323). But s.324 merely provides that an accessory before the fact "may" be punished as a principal felon. The same is true of s.333 which provides that an accessory to misdemeanour "may be tried presented indicted informed against and punished as a principal offender." Limitation of the penalty structure applying to the latter two parties to that structure prescribed for principal offenders must therefore be established by reference to common law principles.

The Justices Act, 1958, s.77 provides that an accessory to a summary offence shall be liable to the same penalty as a principal offender.

(e) South Australia.

The Criminal Law Consolidation Act, 1935 does not mention principals in the

369

(132) See Malian v Lee (1949) 80 CLR 198 at 212 (Latham CJ ),

370

second degree, whose punishment is therefore governedby the common law which, it has been suggested, is to be construed as subjecting them to the same penalty structure as is prescribed for the principal offender. Section 267(1) provides that an accessory before the fact "may” be punished as though a principal felon. Section 269 provides that an accessory to any misdemeanour "may” be punished as a principal offender. The limitation of the punishment of each of these parties to that prescribed for the principal offender must, therefore, be implied from the common law.

Section 53 of the Justices Act, 1921 provides that any accessory to a summary offence shall be liable to punishment as a principal offender.

(f) The Australian Codes: Queensland, Western Australia and Tasmania

Section 7 of the Queensland and Western Australian Codes (s.3 of the Tasmanian Code) renders the secondary participant guilty of the offence which he promotes or supports, and the same is true of s.8 of the Queensland and WesternAustralian Codes (s.4 of the Tasmanian Code) which creates an alternativebasis of secondary liability. By implication, therefore, the secondary partici­pant is subject to the same punishment as a principal.

(g) New Zealand v

Section 66(1) of the Crimes Act, 1961, provides that an accessory is partyto and guilty of the subject offence; and s.66(2) provides that this party isparty to the subject offence. It follows that the accessory is punishable as a principal offender.

(B) DISCRIMINATING ACCOMPLICES FOR THE PURPOSES OF SENTENCING

(1) Introduction

As a general proposition it is undesirable that joint participants in the one 1 3 2 aoffence be given different sentences, where they are of equivalent culpability

character and personal antecedents. Conversely, it is generally undersirable that two joint offenders be given identical sentences where the facts are

(132a) Note that the principles detailed, in the following discussion are not necessarily applicable in the situation where joint participants in a criminal enterprise, who are of equal culpability, are charged with different offences. Thus, it was nold by the Federal Court of Australia in Ylurramarbra v R (1979) 28 ALR 17 6 that the appellant’s sentence of four years in rospect of a burglary conviction, could not be _mpugned on the basis of disparity, notwithstanding that his confederate , who was viewed as being of equivalent culpability, had received a sentence of fourteen months pon conviction of a lesser offen of breaking, entering and stealing. He had been charged with a lesser offence because of a lack of evidence. The court observed that in this situation, ''where there are convictions on differentc h a r g e s , t h e p r i n c i p l e f j i . e . , t h e d i s p a r i t y p r i n c i p l e d e t a i l e d b e lo w ] c a n n o t o p e r a t e " ( a t 1 7 8 / . On t h e o t h e r ) ia n d , t h e c o u r t s a i d t h a t t h e c o n v e r s e w o u ld n o t a p p ly : "W here o f c o u r s e , t h e p e r s o n c o n v i c t e d o f t h e

371such a s o j u s t i f y leniency for one of them,*The ideal of uniformity of treatment where the circumstances do not distin­

guish the two or more accomplices has been justified upon the basis thatdisproportion in sentences "will naturally leave a sense of grievance in the

134mirids of the prisoners." More generally disparity in this situation has135been described as being "unfair” or as offending the principle that "justice”

136must "appear to have been done, as well as actually be done." Theseconsiderations also apply to the situation where uniform sentences are imposed upon co-offenders in circumstances favouring their discrimination.

(2) Factors Affecting Hie Sentencing of Accomplices

In sentencing accomplices (as indeed, in sentencing a solitary offender) a number of matters are to be taken into account. One vital general consideration is that justice must be done, and that the sentence must reflect this (and thus in turn, the gravity of the offence); another is that the sentence must consfcituti a deterrent, not only to the offender but to other potential offenders. On the other hand, regard is also to be had to the defendant's role in committing the offence and to his character and personal antecedents including, for example, those matters affecting his prospects of rehabilitation. These latter factors can obviously distinguish joint offenders and make identical sentences

137inappropriate (or alternatively, they may demand differential sentences ).

(3) Reviewing the Sentencing Judge's Exercise of Discretion

133

In awarding a sentence the sentencing judge exercises a judicial discretionX38which, it has been said, is not lightly to be interfered with. The judges of

(133) See, for example, Tiddy [1969] SASR 375 at 577; Lovelock v R (1978) 19ALR 327 at 338 (McGregor J ) •

(134) Payne [1950] 1 All ER 102 at 103; Coe [1968] 1 WLR 1950 at 1955; Stroud(1977) 65 Crim App R 150 at 153; Bavdaz [1967] 1 NSWR 3 at 5; Kite [l97l]2 SASR 94 at 96; Wood v Samuels (1974) 8 SASR 465 at 471 (Walters J )•

(135) Bavdaz, id.at 6.(136) D'Ortenzio [l96l] VR 432 at 434; similarly see Pitson (1972) 56 Crim App

R 391 at 396-7, cited in Biddell (1975) 11 SASR 460 at 463 (Bray CJ )•(137) See Ball (1951) 35 Crim App R 164 at 166 (Hilbery J), whose comments

were cited with approval in Beaumont [1955] SASR 110 at 1 ^ : andBavdaz [1967] 1 NSWR 3 at 6; Lovelock (1978) 19 ALR 327 at 330-2 (Brennan J); 333-4 (Deane J ) ; 336ff (McGregor J).That a person may properly be given a heavier sentence because his

participation in the offence was more active than that of his accomplice, was confirmed in for example Irwin [1966] Crim lR 514; Lovelock, id at 338 (McGregor J); Charles [1979] VR 8 at 11; Hartley [1978] 2 NZLR 199 at 220. Consideration of other specific factors by the courts is relected in the representative cases noted below.

(138) Woods v Samuels (1974) 8 SASR 465 at 466 (Walters J).

(132a cont,) more serious offence receives a sentence which is less than the person convicted of the less serious offence, all other considerations being approximately equal, different considerations apply"( id*) •

an appellate court are not justified in interfering with a sentence (or indeed,the exercise of another judicial discretion) merely on the ground that had theyexercised it they would have come to a different decision. Something more isneeded, suci as that the judge has made an error in exercising the discretion,as for example, if he has acted upon a wrong principle, or has been influencedby irrelevancy. It has been said that "if the order is unreasonable or plainlyunjust, the appellate court may infer that in some way there has been a failure

139to exercise the discretion ..." On another occasion it was stated that beforethe sentence imposed upon an accomplice is to be reduced upon the ground ofdisparity it must be shown to have been "manifestly not merely arguably excess-

140ive„M Conversely, it has been said that a sentence may be varied by an appellatecourt not because the discrepancy was "manifestly excessive," but because it was

141at least "too glaring a disparity." But in reality, it would appear, it ispossible for a sentence to be reduced without advertence to a test or tests of this„ ^ . 142degree of rigour.

(4) Some Representative Cases

(a) Where the Appellant Received a Higher Sentence Than His Accomplice.

(i) Where a Court Has Reduced a Sentence on the Ground o f D isp arity .

143In Dermody (1951) the English Court of Criminal Appeal reduced the appellant’s sentence upon the basis that it was disproportionately high in

(139) House v R (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ).And see Lovelock v. J3. (1978) 19 ALR 327 at 331 (Brennan J.).English cases dealing with the principles governing the review of

sentences include Shershewsky (1912) 28 TLR 364; Gumbs (1926) 19 Crim. App.R. 74,

(140) Charles [1979] VR 8 at 11.(141) Wood v Samuels (1974) 8 SASR 465 at 471 (Walters J ).(142) See,for example, Lovelock v R (1978) 19 ALR 327. In this case the Federal

Court of Australia confirmed the head sentence passed upon the appellant as being within the discretion of the trial judge, but reduced the non-parole period. But the trial judge’s assessment of the latter was surely part of his exercise of the general sentencing discretion, so that this decision is a general authority for the reduction of a sentence by an appellate court in circumstances which evidently did not establish that the determination (in this case, of the non-parole period) was, for example, manifestly excessive.

This decision dealt with a contention that the sentence imposed was excessive not because it exceeded that imposed upon the appellant's confederate, but because it was the same as the latter's, it being claimed that this involved an element of disproportion in that the defendant's character and personal antecedents justified that he be treated more leniently.

(143) [1951] Crim LR 63.

contrast with that imposed upon his co-defendant, though the court was of the144view that the appellant's sentence had not been wrong in principle. In

14 5Wood v Samuels (1974) “Walters J of the Supreme Court of South Australiareduced the appellant's sentence upon the basis that the discrepancybetween it and that awarded his accomplice revealed ''too glaring a disparity/*

146remarking that he could not discriminate between the two offenders. In 147Cooper (1978) the Supreme Court of Victoria reduced a sentence upon an

accomplice considering it to be disparate vis-a-vis that awarded his accomplice, especially given that relevant personal factors, and the respective roles played by each of them in the offence, favoured the appellant when compared to his accomplice.

(ii) Where the Cburt Has Refused to Reduce a Sentence on the Ground of Disparity.______________________ ___________________________ __________

The courts have refused to reduce the appellant's sentence, upon the groundthat considerations of character and personal antecedents are such that his

148confederate is deserving of a lesser sentence ; or because the more lightlytreated co-offender was entitled to leniency because he had assisted the policeor because he had betrayed his confederates, it being "expendient that...there

v 150should not be honour among thieves" ; or because the favoured accomplice had1 51played a lesser role in the commission of the offence than had the principal.

From time to time the courts have held that the fact that the sentence imposed upon the appellant's confederate was too lenient, does not necessarily involve that the appellant’s (higher) sentence must be reduced, provided that it is afair one. In the view of the English Court of Criminal Appeal in Stroud

152 r(1977) "this Court cannot accept...the proposition jthatj where you haveone wrong sentence and one right sentence, this Court should produce two wrong

149

(144) See also Richards (1955) 39 Crim App R 191; and Child [1962J Crim LR 414, though in this case the court considered that quite apart from this element of disproportion, the appellant's sentence was, when considered in isolation, too sever© in any event.

(145) (1975) 8 SASR 465.(146) Id.at 471. He considered as well that the sentencing magistrate had

misapprehended certain facts which were relevant to the matter of sentence - at 470.

(147) [1978] 2 Crim LJ 96.(148) See Ball (1951) 35 Crim App R 164 at 166 ; Charles [1979] VR 8 at 11.(149) Bavdez [l967]l NSWLR 3.(150) Jamies (1913) 9 Crim App R 142 at 1.44.(151) Davdez [.1967] 1 NSWB 3 at 5 •(152) (1977) 65 Crim App R 150.

374

sentences.

(b) Where Co-Offenders Receive Similar Sentences, But Factors Distinguish Them._________ ________________________________________________________ _

As mentioned above, just as it may be objectionable that one accomplice has received a higher sentence than the other, although their positions are for all material circumstances indistinguishable, so then may it be inappropriate to impose identical or very similar sentences upon accomplices whose respective positions are distinguishable in a legally material way. These two situations are but obverse sides of the same condition of disproportionality between sentences imposed upon accomplices. In the latter situation similarly, the appellant is seeking a reduction of his sentence and the factors to be taken into account will be similar to those affecting the review of discretion in the first situation.

(i) where a Similar Sentence Has Been Reduced.

Relevant factors have included that the appellant's role in the transaction154was less significant than that of his accomplice, or that the appellant's

155character and other personal factors justify that he be treated more leniently.'V

(ii) Where Similar Sentences Have Been Justified, Although The CircumstancesDistinguish Each Co-Offender_____________________________________________

156In Brodie (1977) the Federal Court of Australia refused to reduce thesentence of four years imposed upon a girl who was convicted jointly with aman of a drug offence and who was given the same sentence, notwithstanding hersex, youth, background, previous good character and the fact that she had

1 57acted under the influence of her accomplice. This was because greater weightwas to be given to a matter of more general public interest,i. e., the need to

158deter others from like offences. * 14

(153) Id.at 152. See also Coe [1963] 1 WLR 1950 at .1954-5; D*Ortenzio [l96l] VR 432 at 433-4; Kite (1971) 2 SASR 94 at 96; Ramsay v Samuels""(1975)14 SASR 77 at 80 (Walters J); Steinberg [1947] QWN 27.

(154) See for example Hartley [1978] 2 NZLR 199 at 220.(155) I. )velock v R (1978) 19 ALR 327. See n. 142 above.(156 (1977) 16 ALR 88.U57) Id at 91.(158) Id at 91.

(VII) ISSUES OF JOINDER, AND SEPARATION OF TRIALS.

(A) JOINDER

At common law, if two or more defendants are each charged in a separate159indictment, each must be tried separately. But m certain circumstances

several persons individually responsible for several separate offences may be charged in the one indictment, or similar instrument. And in all cases involving joint participation in a given crime, the parties may be charged in the one indictment or similar instrument. Prima facie, if the defendants may be so joined in each of these two cases, they may be tried together.

In this discussion the major interest is in the second situation. It will be convenient, however, to refer to both of them.

(1) Joinder of co-pefendants where no Allegation of Joint Participation

The English Court of Criminal Appeal recognised obiter in Assim (1966)^^ that common lav; principle permitted in certain circumstances the joint indict­ment of several persons each of whom participated individually in each of several separate offences. This is possible if "the matters which constitute the individual offences of the several offenders are upon the avail­able evidence so related, Whether in time or by other factors, that the inter­ests of justice are best served by their being tried together... subjectalways to the discretion of the court." In the view of the court^questions

162of joinder, be they of offences or offenders, are matters on which the courtlias, unless restrained by statute, inherent power both to formulate its ownrules and to vary them in the light of current experience and the needs of

163justice." This conclusion as to common law authority is not, however,unchallengeable. Chief Justice Bray of South Australia said in Rigney (1975}64that it may not be "historically sound^ but he considered that the authority

165of Assim ought to be acknowledge nonetheless m South Australia.

(159)

(160)(161)(162)

This is so even if they consent to this course: Dennis [1924] 1 KB 867. See generally Crane v DPP [l9 2l] 2 AC 299? Assim [1966"! 2 WLR 55. See Archbold Pleading, Evidence and Practice in Criminal Cases ( 4 Q ed,Sweet. & Maxwell, London, 1979) generally at para. 403.[1966] 3 MLR 55.Id« at 15.-4 • This statement was approved in Commissioner of Police v h i l I s p!9?8j 3 WLR 42,3 a t 427 (Viscount Dilhorne) •Le., where a"solitary individual is charged with several distinct offences in the one indictment.

(163) Assim '.19G6J 3 WLR 55 at 62. Such a rule would be subject to certainexceptions, such as the rule in Crane v DPP [1921] 2 AC 2 9,where it was h ’Id that there can be no joint trial of separate indictments.[915) 12 S/\SR 30.Id.at 44-46.

(164)(165)

376The Court of Criminal Appeal envisaged in Assim that where separate

offenders were joined in the one indictment in th is circumstance, they would166be charged in separate counts. However, there is some (though by no means

uncontradicted) authority that where the offences a lleged to have been

committed by severa l offenders are id e n tica l and that they are able to beX& *7indicted jo in t ly , they may be charged in the one count.

The ru le propounded in Assim (or one in very sim ilar terms) has been168provided fo r by statu te in certain ju r isd ic t io n s . * 35

(166) Assim [1966] 3 WLR 55 at 64.(167) See DPP v Merriman [1973] AC 584. which decided that a joint count against

two or more defendants charging them with the same offence could afford the basis of a jury verdict that they performed the offence jointly(ie., as accomplices) ; or alternatively, that each independently performed each of several offences of this type (for example, of rapes of one female on the one occasion), on the basis that such a count is several as well joint. This decision approved that of the Supreme Court of N.S.W. in Fenwick (1953) 54 SR(MSK) 147. On the other hand the Supreme Court of NSK overruled Fenwick on this point in Sperotto (1970) 92 WN (NSW) 233. Subsequently, however, Street CJ approved Merriman and Fenwick on this point, while ignoring Sperotto: McConnell [1977] NSWLR 714 at 720.

VAnd see the Australian High Court decision in McKay v R (1976) 136 CLR 465 in which the matter was referred to by Barwick CJ, Gibbs and Mason JJ at 470, though in the circumstances they did not feel compelled to determine the issue. Jacobs J considered that an indictment in these terms was erroneous in form (but considered that this had not resulted in a miscarriage of justice, referring to s.2(l) of the Criminal Appeal Act, 1968 (Qld ) ) ; on the other hand Murphy J considered that the indict­ment was bad, impliedly because of duplicity, and that this irregularity should not have been passed over (at 472ff).

Their Honours made their comments in respect of s.568 (6) of the Queensland Criminal Code, which is more or less similar to the rule relating to joinder which was propounded in Assim, ante.

(168) See,for example,the Indictments Act, 1915 (UK), s.4 which provides that subject to the rules under this Act charges for more than one offencemay be joined in the one indictment, taken together with Rule 9 of the Indictment Rules 1971 (UK), the latter of which provides that ''charges for any offence may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.a As well as being applied to the joinder of offences committed by an individual, s.4 has been applied to the joinder of offenders: Smith (1958) 42 Crim.App.R.35. See Archbold,_ Pleading, Evidence and Practice in Criminal Cases (40 ed, Sweet and Maxwell, London 197 9) at para 60 (c) .

And see for example the Victorian Crimes Act, 1958, 6th schedule, Rule 2; the SA Criminal Law Consolidation Act, 1935, Rule 3, Third Schedule (which restates the English Rule 4 (ante) exactly, though Bray CJ considered that it applied to the joinder of offences by an individual offender, and not to the joinder of defendants: Rigney(1975) 12 SASR 30 at 47, citing Tizard [1962] 2 QB 608, though note

his comments upon the rule propounded in Assim, above); the Queensland Code at s.568(6) (as to which see the High Court decision of McKay v R (.1976)136 C L R 465 at 4^9 (Barwick CJ and Gibbs and Mason JJ)}; and thjWestern Ausoralia Code, s,585.

Persons who are alleged to be joint offenders in a single offence (L a , jointprincipa offenders, or principals and accessories) may be charged jointly

] 69in the one indictment or other instrument, at common law. It is unimportantfor the purposes of this rule whether or not the joint participation incrime is in pursuance of a common purpose, for the complicity relationship

l 70is not dependent upon this , Such a rule has been restated m statutory formn . 1 7 1m some of trie jurisdictions under discussion.

Moreover, joint principals in the one offence (or accessories having thestatus of a principal for the purpose of the form of the charge) may be joined

172in the one count, as well as in the one indictment or other instrument.

(2) Joinder of Accomplices

(169) See Assim [1966] 3 WLR 55 at 58, citing Atkinsonf1?06)1 Balk 382,91 ER 333$Weston (1725) 1 Str 623, 93 ER 740 ; Cox (1898) 18 Cox CC 672;Rigney (1975) 12 SASR 30 at 44 (Bray CJ ).

(170) Bray CJ's contrasting of co-defendants not in "concert*' with those".in concert" (La, joint "principals" or principals and accessories) is presumably to be interpreted in this broader sense, viz., the real conceptual distinction in this area is between co-defendants who are not accomplices and those who are, irrespective of whether the latter are in concert or not: Rigney, id.at 44.

(171) See for example the NSW Crimes Act s.346 (which deals with the indictment, etc, of the accessory before the fact along with the principal felon), s.347 (accessory after the fact may be likewise treated); s.371 (joint indictment of accessories before and after the fact although the principal is not included in such an indictment) ? Victorian Crimes Act, 1958,s. 325 (accessory after the fact); South Australian Criminal Law Consoli* dation Act, 1935, s.267 (accessory before the fact); s.268 (accessory after the fact); Queensland Criminal Code Sections 568(5), s.569 (joinder of parties to the same offence, including accessories after the fact); and see generally the next paragraph.

(172) For example^ Coney (1882) 8 QBD 534; Mapstone [1963] 3 All ER 930.At common law the principal in the second degree to felony is regarded

as being a principal in the first degree for procedural purposes, includ­ing the form of the charge(see pp 1 Sff,541-^At common law too, all accessories to misdemeanour enjoy this status ( see pp ff • ,341) •

In those of the subject jurisdictions preserving the feiony/misde- meanour dichotemy (La., New South Wales, Victoria and South Australia) this common law rule continues to exist, albeit in statutory form (at p.348 ). In respect of felony, it is provided in these jurisdictions that the accessory before the fact may be indicted or informed against as if he were a principal (see the NSW Crimes Act, 1900, s.346; the Victorian Crimes Act, 1958, s.324 the South Australian Criminal Law Consolidation Act, 1935, s.267 ).

I n England all a c c e s s o r i e s e n j o y t h e s t a t u s o f p r i n c i p a l s f o r g e n e r a l p r o c e d u r a l p u r p o s e s ( s e e P f , 3 4 4 f f )^ ie sarne i s t r u e o f s e c o n d a r y p a r t i c i p a n t s u n d e r t h e C om m on w ealth C r im e s A c t , 1 9 1 4 ( A u s t . ) ( s e e p . . 3 0 f f , , p p » 3 4 6 - 7 ) 5 t h e A u s t r a l i a n C r im in a l C o d e s ( i e , Q u e e n s la n d , W e s te r n ' A u s t r a l i a a.-id T a s m a n ia ) ( s e e p p « 3 ‘> £ u , 5 3 0 ) , a n d t h e New Z e a la n d C r im e s A c t ,1 9b1 (see pp • \ Aff *, 3 3 0 -1 .) .

578

(B) SEPARATION OF TRIALS(1) Introduction

If two or more defendants (whether or not they are accomplices) have beenproperly joined in the one indictment, they may be tried together. But thetrial judge has a general discretion at common law to order that the defendantsbe tried separately (or alternatively, to order that several offences charged

173against a solitary defendant in the one indictment be tried separately).. . . 174This discretion has been restated m statutory form m certain jurisdictions.

Where the prosecution case is that the defendants prosecuted the crime jointly, i.e., that they were accomplices, the courts have invariably favoured joint trial, observing for example that "prima facie" they ought to be jointly indicted and

.175 or that "only in very exceptional cases is it wise to order176

jointly tried, separate trials” of alleged, accomplices* In fact, appeals from conviction haveinfrequently succeeded on the ground that a trial judge refused to order separate

177trials, though recently one or two have appeared in the reports (see below).

Where it is not alleged that the co-defendants were accomplices it has beensaid that the trial judge ought be more prepared to order severance, for here"there will be no obligation on the judge to give an appropriate warning with*regard to their evidence; yet because of the joint trial their evidence willbe before the jury. He [i.e., the defendant] has the disadvantage of the juryhearing the inculpatory evidence of his co-accused without the protection of the

„ 178warning ..." * 3

(173) Barnes [1940] 2 All ER 229 at 231; Youth v R [l945] WN 27; Groundkowski (1946) 1 KB 369 at 372; Buggy (1961) 45 Grim App R 298 at 30.1; Kerekes (1953) 70 WN (N.S.W.) 102 at*~105 (Owen J) ; Teitler [l959] VR 321 at 324; Harbach (1973) 6 SASR 427 at 432; Reynolds (1911) 30 NZLR 80.1; Adriaanse IT977] 2 NZLR 134.

(174) See,for example, the NSW. Crimes Act, 1900, s.365(2), which deals with the ordering of separate trials for separate offences charged against an individual; Queensland Code s.606.

(175) for example Grondkowski [1946] 1 KB 369 at 371; Kerekes (1953) 70 WN (NSW) 102 at 105; Harbach (1973) 6 SASR 427 at 432.

(176) Moghal (1977) 65 Crim App R 56 at 62.Other statements favouring this position are found in Buggy (1961) 45

Crim App R. 298 at 302; Hoggins [l967l 1 WLR 1223 at 1226; Assim [l966]3 WLR 55 at 64; Donaldson (1978) 20 ACTR 45 at 47 (Connor J)(Aust.); Congressi (1974) 9 SASR 257 at 259.

(177) Harbach (1973) 6 SASR 427 at 432, where the Supreme Court could find no such reported case.

(.178) Bray CJ in Fa gney (1975) 12 SASR 30 at i\b ,

In th e fo l lo w in g p a g e s , ho w ev er, th h fo c u s w i l l be upon i s s u e s a s s o c i a t e d w ith a p p l i c a t i o n by th e a l l e g e d a c c o m p lic e f o r th e s e v e ra n c e o f h i s t r i a l from t h a t o f h i s c o - d e f e n d a n t .

T h a t c o - d e f e n d a n ts , e s p e c i a l l y a c c o m p lic e s , o u g h t to be t r i e d j o i n t l y h a sb een j u s t i f i e d by r e f e r e n c e to a num ber o f f a c t o r s r e l e v a n t to th e p ro m o tio no f j u s t i c e . These f a c t o r s a re o f c o u rs e th o s e w hich m ust be ta k e n i n t o a c c o u n tby th e t r i a l ju d g e in e x e r c i s in g h i s d i s c r e t i o n a s to w h e th e r o r n o t to o r d e rs e v e r a n c e , a lo n g w ith c o n t r a r y a rg u m e n ts by th e d e f e n c e . M a t te r s f a v o u r in gj o i n t t r i a l in c lu d e th o s e t h a t su ch a c o u rs e s a v e s b o th tim e and p u b l ic moneyjt h a t t h i s c o u rs e " a ls o e f f e c t s th e d e s i r a b i l i t y t h a t th e same v e r d i c t and samet r e a tm e n t s h a l l be re tu rn e d a g a i n s t a l l th o s e in th e same o f f e n c e . . . i f j o i n to f f e n c e s w ere w id e ly to be t r i e d a s s e p a r a t e o f f e n c e s , a l l s o r t s o f i n c o n s i s -

179t e n c i e s m ig h t a r i s e '* ; and t h a t i t s p a r e s w i tn e s s e s from h a v in g to t e s t i f yr e p e a t e d ly a t a s u c c e s s io n o f t r i a l s . A n d i t h a s b een % j\d t h a t su ch ac o u rs e may w e l l in v o lv e t h a t th e j u r y h a s " th e w hole p i c t u r e p r e s e n te d to them

181and n o t h a l f o f . i t . " F or ex am p le , i t may be an e s s e n t i a l p a r t o f th ed e f e n d a n t 's c a s e t h a t h i s a l l e g e d a c c o m p lic e was s o l e l y r e s p o n s ib l e f o r th ec rim e and n o t h im s e l f ; o r t h a t th e l a t t e r f o r c e d him to commit th e c rim e inc iru c m s ta n c e s o f d u r e s s . „For v a r io u s p r a c t i c a l r e a s o n s , th e ju r y may n o t g e tt o s e e th e a l l e g e d a c c o m p lic e , s h o u ld th e d e fe n d a n t b e t r i e d a lo n e , w hich may

182im p a ir t h e i r a s s e s s m e n t of: th e d e f e n d a n t 's e v id e n c e . One f a c t o r in p a r t i c u l a rw hich may f u r t h e r p r e ju d ic e th e j u r y ' s a s s e s s m e n t in t h i s ty p e o f s i t u a t i o n i st h a t th e o u t - o f - c o u r t a d m is s io n s o f th e a l l e g e d a c c o m p lic e w i l l n o t in g e n e r a l

183be a d m is s ib le d u r in g th e d e f e n d a n t 's t r i a l , even sh o u ld he d e s i r e t h i s . But to r e i t e r a t e , th e t r i a l ju d g e d o es h av e a d i s c r e t i o n to o r d e r s e v e ra n c e and m u st, t h e r e f o r e , l i s t e n to a rg u m en ts from th e d e fe n d a n t t h a t he sh o u ld e x e r c i s e i t . P u b l ic i n t e r e s t d o e s , a f t e r a l l , demand a c o n s id e r a t io n o f th e p r is o n e r s * * 65

379

(179) Lake (1976) 64 Grim App R 172 a t 174 (Lord W idgery C J ) . S i m i l a r l y , s e e Demirok [1 9 7 6 ] VR 244 a t 254.D em irok , i d . T h is would be a m a t t e r o f p a r t i c u l a r r e l e v a n t e t o , f o r i n s t a n c e , t h e a l l e g e d v ic t im o f m u l t i p l e r a p e s ; s e e McKay (1976) 136CLP. 465 a t 469 (B arw ick C J, G ib b s and Mason J J ).3eavan (l‘)52) 69 Y,'H(NBY/) 1 4 0 at M2 (Herron j); IIarbach(l973) 6 CASR 427at 453M1oI)onald(l979) 21 SASR 19 8 at 200 (King CJ-and Sangster j).See, f o r exam ple, G rondkowski [1 9 4 6 ] 1 KB 369 a t 3 7 1 -2 ; Moghal (1977)

65 Grim App R 56 a t 5 9 -6 0 ;6 2 ; H a r b a c h ,id .(183) On th e b a s i s t h a t th e y a r e h e a r s a y . See f o r exam ple M oghal, i d . a t 6 1 -2

th o u g h n o te t h a t th e E n g l is h C o u rt o f A ppeal i n d i c a t e d i t s v iew on t h i s o c c a s io n t h a t had d e fe n c e c o u n s e l p r e s s e d th e m a t t e r , t h e o u t - o f - c o u r t s ta te m e n ts o f th e a l l e g e d a c c o m p lic e (who was t r i e d s e p a r a t e ly ) m ig h t h av e b een a d m is s ib le in t h i s p a r t i c u l a r s i t u a t i o n .

(180)

(1 81 ) (182)

580

in te r e s ts , as w ell as the more general public in te re s t , even as the presumption184i s in favour of the jo in t t r ia l of a lleged accomplices as noted. Applications

fo r severance have been based upon numerous grounds, including those that out-

o f-cou rt admissions by tlie defendant’ s a lleged accomplice im plicating him in the

o ffen ce, ir which are 'Otherwise adverse to h is case, w il l prejudice him, even

though they are not adm issible again st him (these would not o f course be

brought to the attention of the ju ry were he to be tr ie d s in g ly ) ; or that i t

i s an e sse n tia l part of h is co-accused 's case that the la t te r w il l attack the

defendant. Representative cases d isc lo sin g grounds upon which severance has

been sought (or a lte rn a t iv e ly , which have been pleaded in appeals based upon

non-severance) are noted below.

(2) Time f o r A p p ly in g F or S e v e ra n c eI t h a s b een s a i d t h a t a m a g i s t r a t e i s e n t i t l e d t o r e f u s e to s e v e r c o m m itta l

proceedings against two defendants, assuming that they are capable of being185i n d i c t e d and t r i e d to g e th e r . O th e rw is e , th e d e fe n d a n t may a p p ly f o r s e v e ra n c e

, . , 186 187 ^ ,a t th e o u t s e t o f t r i a l , o r d u r in g i t / o r a t th e c o n c lu s io n o f t r i a l ,follow ing upon a conviction.

(3) A p p ea l: P r i n c i p l e s O ov ern in g re v ie w o f E x e r c i s e o f J u d i c i a l D i s c r e t io no r o f Co u rs e o f E v en ts a t T r i a l . __________________________________________

Where a d e fe n d a n t a p p e a ls from th e r e f u s a l o f th e t r i a l ju d g e to o r d e r s e v e ra n c e p r i o r t o (o r more r a r e l y , d u r in g th e c o u rs e o f ) t r i a l , th e a p p e l l a t e c o u r t w i l l be r e q u i r e d to c o n s id e r th e t r i a l j u d g e 's e x e r c i s e o f h i s j u d i c i a l d i s c r e t i o n to s e v e r . W here, h o w ev er, th e d e fe n d a n t i s c o n v ic te d , and a p p e a ls from t h i s on th e b a s i s t h a t th e t r i a l ju d g e s h o u ld h av e d i r e c t e d s e v e ra n c e b u t d id n o t , he w i l l n eed to in v o k e one o r a n o th e r o f th e g e n e r a l g ro u n d s o f

(184) See th e t r i a l j u d g e 's (c ite d ) comments in th e F u l l Suprem e C o u r t 'sd e c i s io n in Demirok [1 9 7 6 ] VR 244 a t 247 , who s t r e s s e d th e e le m e n t o f p u b l i c i n t e r e s t in v o lv e d i n s p a r in g th e d e f e n d a n ts from " p r e ju d ic e and d is a d v a n ta g e " in th e c o n te x t o f an a p p l i c a t i o n f o r s e v e r a n c e .

(185) C am berw ell Green fM a g i s t r a t e ; e x parte C h r i s t i e [1978] 1 03 6 0 2 .The q u e s t i o nwas s a i d to be one o f p r a c t i c e , no r e f e r e n c e b e in g made to j u d i c i a ldiscretion (at 607). The magistrate does not act in a judicial capacity[Luring committal proceedingsbut raifaer. in„an administrative one* „ ,(186) See,'for exam ple^McNamara v dr ’(1 9 /8 ) 20 ALR 9 8 , w here th e a c c u se d a p p e a le dto th e F e d e ra l C o u rt o f A u s t r a l i a from an o r d e r made by th e p r e s i d i n g t r i a l ju d g e a t th e o u t s e t o f t r i a l . The F e d e r a l C o u rt d e c l in e d t o in t e r v e n e in advance o f im p o r ta n t r u l i n g s a s t o e v id e n c e w hich th e t r i a l ju d g e had y e t to m ake); Do n a ld s o n (1978) 20 ACTR 4 5 , w here th e t r i a l ju d g e C onnor J , e x p la in e d h i s r e a s o n s f o r o r d e r in g s e v e ra n c e a t th e o u t s e t o f t r i a l .

(187) A d r ia a n se [1 9 7 7 ] 2 NZLR 134, c i t i n g M i l l e r [1952 j 2 A ll ER 6 67 , and B oal [1965*]~ 1 QB 402 at. 40 7 -8 . T ills c o u r s e w ould b e e x c e p t io n a l . The t r i a l

ju d g e j u s t i f i e d h i s power to do t h i s on. t i l l s o c c a s io n as b e in g in h e r e n t to th e c o u r t . He e x e r c i s e d t h i s d i s c r e t i o n h a v in g r e g a r d to th e way m a t te r s d e v e lo p e d d u r in g t r i a l i n c l u d i n g , i n t e r a l i a , t h a t th e Crown h ad in t r o d u c e d i n t o e v id e n c e a g a i n s t h i s c o - d e f e n d a n t th e l a t t e r ' s o u t - o f - c o u r t a d m is s io n s w hich a l th o u g h n o t a d m is s ib le a g a i n s t A, w ere to h i s p re ' Moe in t h a t th e y s t r o n g ly im p l ic a te d h im .

581

appeal from criminal verd icts which are prescribed by statu te in each ju r is d ic -188

tio n . These include for example that the ve rd ic t was "unsafe or unsatisfactory*'189or that the ve rd ict involved a m iscarriage of ju s t ic e . In th is p a rticu la r

context he w il l focus upon one or both of two types of event in seeking

to ground h is appeal. These are f i r s t , that the t r i a l judge fa ile d to

exercise properly his d iscretion to sever and/ secondly, that even i f he did

properly refuse to sever, an event happened as a re su lt of the ap p ellan t's190being tr ie d jo in t ly , which ju s t i f ie s appellate intervention .

The t r i a l judge's exercise of h is d iscretio n i s reviewable according to

estab lish ed p rin c ip le s . One such approach i s to determine whether a

s ig n if ic a n t error has been made - fo r example, the t r i a l judge may have

acted upon a wrong p rin c ip le , or ignored matters which he should have

considered, or v ice versa ; or i t may be that h is determination is a ssa ila b le191as b e in g '‘u n re a s o n a b le o r p l a i n l y u n j u s t . "

U l t im a te ly th e e r ro n e o u s e x e r c i s e o f d i s c r e t i o n m ust b e shown to h av e had an e f f e c t w hich f u l f i l s th e r e q u ir e m e n ts o f one o r a n o th e r o f th e g e n e r a l s t a t u t o r yg ro u n d s o f a p p e a l in th e g iv e n j u r i s d i c t i o n , su ch a s t h a t th e v e r d i c t was

192 193"u n sa fe o r u n s a t i s f a c to r y ," ’ o r t h a t i t r e p r e s e n t s a " m is c a r r ia g e o f ju s tic e .,"V

and so f o r t h , b u t th e s e a r e s u f f i c i e n t l y b ro a d a s t o com prehend th e more s p e c i f i c p r i n c i p l e s o f re v ie w w hich h av e j u s t b e e n n o te d .

O th e rw is e , i f th e v e r d i c t i s so u g h t to be u p s e t on th e b a s i s o f an e v e n th a p p e n in g d u r in g th e c o u rs e o f t r i a l , one o f t h e s e g e n e r a l g ro u n d s o f a p p e a lm ust be i i r e c t l y r e s o r t e d t o . G iven t h e i r c o m p re h e n s iv e n a t u r e , i t i s e v id e n tt h a t th e a p p e l l a t e c o u r t s p o s s e s s i n p r a c t i c e a b ro a d d i s c r e t i o n t o a llo w

194a p p e a ls . In M oghal (1977) f o r exam ple th e E n g l is h C o u rt o f A ppeal d id n o t

(188) The C r im in a l A ppeal Act., 1968 (UK), s . 2 (l)(a) •(189) F o r ex am p le , th e C r im in a l A ppeal A c t, 1 9 1 2 (NSW) s .6 ( 1 ) , w hich p r o v id e s ,

i n t e r a l i a , t h a t an a p p e a l from c o n v ic t io n s h a l l b e a llo w e d on any g ro u n d w h a tso e v e r w hich e s t a b l i s h e s t h a t t h e r e was a m i s c a r r i a g e o f j u s t i c e .

(190) S ee , f o r exam ple, K erek es (1953) 70 WN (NSW) 102; T e i t l e r [1.959] VR 321 a t 335; D em irok [19 76J VR~244 a t 251; C o n g re s s ! (1974) 9 SASR 257 a t 260.

(191) House v R (1936) 55 CLR 499 a t 504-5 (D ixon, E v a t t and M cT iernan J J ) : ands e e th e s i m i l a r v iew s in T e i t l e r , i d , a t 325 (Lowe and O 'B ry an J J ) .

S e e a l s o t h e t e n o r , a l s t a t e m e n t i n S c a r r o t f l 9 7 8 1 1 A l l KR 672 a t 6 8 1 ,( 192) I . e . , t h e C r i m i n a l A p p e a l A c t , 1 968 ( U K ) , s . 2 . ( 1 ) ( a ) ,(193) T h is g e n e r a l g ro u n d i s v e ry common in th e v a r io u s j u r i s d i c t i o n s , and i s

found in f o r exam ple th e C r im in a l A ppeal A c t, 1912/(NSW) s . 6 ( l ) . I t h a s b een s a id in c e r t a i n c a s e s th a t , a w ro n g fu l e x e r c i s e o f d i s c r e t i o n i s one w h ich h a s r e s u l t e d in a " m is c a r r ia g e '', w h ich w i l l b e th e c a s e i f th e d e fe n d a n t h a s b een s u b je c te d t o " im p ro p e r p r e j u d i c e " th e r e b y : s e e G rondkow ski[ 1946} 1 KB 369 a t 374? T e i t l e r [1 9 5 9 ] VR 321 a t 334 (Shol.1 J ) ; H arbach (.1973) 6 SASR 427 a t 433. I t i s l i k e l y t h a t t h e s e c o u r t s had in m ind th e g e n e r a l s t a t u t o r y g round o f a p p e a l o f t h i s d e s c r i p t i o n w hich was a v a i l a b l e in each o f th e s e j u r i s d i c t i o n s a t t h e r e l e v a n t t im e .

IX(.194) (1977) 65 Crim App 56.

e l a b o r a t e th e m eaning o f th e w ords " sa fe " and " s a t i s f a c t o r y " i n t h e i r d i s m is s a lo f an a p p e a l b a se d upon a f a i l u r e to s e p a r a t e t r i a l s , t r e a t i n g them a s b e in g s e l f -

195e v id e n t m t h e i r m ean ing . In th e s e te r m s , th e g ro u n d i s v e ry c o m p re h e n s iv e .The p h r a s e "‘m is c a r r ia g e o f j u s t i c e ^ ' w h ich a p p e a rs in num erous a p p e a l s t a t u t e s to

196d e n o te a p o s i t i v e g round o f a p p e a l , h a s b een d e s c r ib e d as d e s e r v in g o f al i b e r a l , r a t h e r th a n narrow c o n s t r u c t i o n , so t h a t an a p p e a l c o u ld b e a llo w e d u n d e rsu c h a p r o v i s io n w here i t was " u n sa fe to a llo w a v e r d i c t to s t a n d . . .b e c a u set h e r e i s some f e a t u r e o f th e c a se r a i s i n g a s u b s t a n t i a l p o s s i b i l i t y t h a t e i t h e rin t h e c o n c lu s io n i t s e l f , o r in th e m anner in w hich i t h a s b een r e a c h e d , th e ju r y

197may have b een m istak en ,.5 E lse w h e re i t h a s b een s e e n , th e e x p r e s s io n "‘m is c a r r ia g eo f j u s t i c e " h a s been u sed to r e f e r t o an e v e n t , o r s i t u a t i o n w here " im p ro p er

198 199p r e ju d ic e " h a s been c r e a te d a f f e c t i n g th e d e f e n d a n t . In C o n g re s s i (1974)th e Suprem e C o u rt o f S o u th A u s t r a l i a d id n o t e l a b o r a t e th e m ean ing o f th e p h ra s e in th e c o u rs e o f e x p la in in g t h e i r d e c i s io n to g r a n t a r e t r i a l upon th e b a s i s o f a t r i a l j u d g e 's r e f u s a l to s e v e r , s a y in g s im p ly t h a t th e co n se q u e n c e o f t h i s d e c i s io n was one w hich had to be v iew ed "w ith c o n c e rn ’*

(195) The words were used t o refer to the ground, o f Appeal in the Criminal A ppeal A c t, 1968 (UK), s.2(l)(a)„

See M oghalr i d . a t 64 .(196) f o r ex am p le , th e C rim in a l A ppeal A c t, 1912 (NSW) s .6 ( 1 ) . Note t h a t

t h i s p a r t i c u l a r g ro u n d o f a p p e a l i s no lo n g e r a v a i l a b l e in E n g la n d .(197) Da v ie s v R (1937) 57 C .L .R . 170 a t 180 (High C o u r t ) . These w ords w ere

c i t e d w ith a p p ro v a l by th e F u l l Suprem e C o u rt o f V i c t o r i a in Demirok [1 9 7 6 ] VR 244 a t 256 , w hich d e a l t w i th an a p p e a l from c o n v ic t io n w hich r a i s e d an i s s u e o f s e v e ra n c e (see p . 283 below f o r a f u r t h e r comment' on t h i s c a s e • )The c o u r t c r i t i c i s e d th e n arrow and r e s t r i c t i v e m ean ing a s c r ib e d to th e p h r a s e by Lowe and O 'B ryan J J o f th e same c o u r t in T e i t i e r [ l9 5 9 ] VR 321 a t 325; s e e Demirok a t 2 5 5 -6 . I t was e v id e n t t h a t th e e a r l i e r c o u r t was in f lu e n c e d by th e m eaning g iv en to th e p h r a s e in th e t y p i c a l p r o v is o to th e g e n e r a l s ta te m e n t o f g ro u n d s o f a p p e a l i n t h e a p p e a l s t a t u t e s , w hereby th e a p p e l l a t e c o u r t i s empowered t o d is m is s an a p p e a l i f n o tw i th s ta n d in g t h a t th e p o i n t o r p o i n t s r a i s e d by th e a p p e l l a n t m ig h t be d e c id e d in h i s f a v o u r , no ( s u b s t a n t i a l ) m is c a r r ia g e o f j u s t i c e h a s o c c u r r e d ( s e e f o r exam ple th e C r im in a l A ppeal A c t, 1968, (UK) s . 2 d ) ; th e C r im in a l A ppeal A c t, 1 912 , (NSW), s . 6 ( l ) ) , w hich h a s t y p i c a l l y b een d e s c r ib e d as r e q u i r i n g o f th e Crown t h a t i t show t h a t th e f a c t s w ere su ch t h a t a r e a s o n a b le ju r y w ould w i th o u t d o u b t have c o n v ic te d ( f o r exam ple T e i t l e r a t 335 (S h o l l J ) . On t h i s o c c a s io n o f c o u rse th e n a rro w c o n s t r u c t i o n f a v o u r s th e a p p e l l a n t who h a s o th e rw is e made o u t a c a s e f o r q u a s h in g h i s c o n v ic t io n .

(198) See n . 193 above,(199) (1974) 9 SASR 257.(200) I d . a t 260. As a r e s u l t o f th e f a i l u r e to s e v e r , h i s c o n v ic t io n s becam e

known to th e ju r y a f t e r he h ad d e n ie d a c c u s a t io n s made a g a in s t him by h i s c o -d e fe n d a n t , in co n seq u en ce o f th e v iew w h ich th e t r i a l ju d g e to o k o f s .1 8 o f th e E v id en ce A c t, 1929 (SA ) .

(4) G rounds Fo r R e q u e s tin g S e p a r a te T r i a l sThe fo l lo w in g r e p r e s e n t a t i v e , o r m is c e l la n e o u s g ro u n d s a r e n o te d :

38 3

(a) U nsw orn S ta te m e n ts o f a G o -D efen d an t P r e j u d i c i a l to th e D efendan tThe d e fe n d a n t may make s t a t e m e n t s , w h e th e r b y w ay o f o u t - o f - c o u r t a d m is s io n s

to th e p o l i c e o r to o t h e r s , o r i n s ta tem en ts from th e d o ck / w hich c o n ta in m a t te r sto th e p r e ju d ic e o f th e d e f e n d a n t . They may f o r exam ple in c r im in a te him inth e c rim e c h a rg e d , e i t h e r i n c i d e n t a l l y o r d e l i b e r a t e l y . T hese s ta te m e n ts a r en o t a d m is s ib le a g a i n s t th e d e f e n d a n t , and i f s e v e ra n c e i s g r a n te d th e ju r y w i l ln e v e r h e a r o f them . I t was o b s e rv e d by S h o l l J i n th e V ic to r i a n Suprem e

201C o u r t 's d e c i s io n in T e i t l e r (1959) t h a t i t "has lo n g b een th e p r a c t i c e toa llo w j o i n t t r i a l s n o tw i th s ta n d in g t h a t one a c c u se d h a s made an in c r im in a t in g

202s ta te m e n t* ’ ( i e , a g a in s t h i s c o - d e f e n d a n t) “a d m is s ib le a g a i n s t h im s e l f a l o n e . . . ” 'T h is i s so b e c a u se (a g a in c i t i n g S h o l l J in T e i t l e r ) Mth e c o u r t s h av e assum edt h a t j u r i e s w i l l u n d e rs ta n d a d i r e c t i o n t h a t e v id e n c e i s a d m is s ib le a g a in s t

203one a c c u se d and n o t a g a in s t a n o th e r ."B ut L le o b v io u s c r i t i c i s m t h a t i s t o be made i n t h i s s i t u a t i o n i s t h a t

even a s t h i s e v id e n c e may n o t b e f o r m a l ly a d m is s ib le a g a i n s t th e d e f e n d a n t ,n o n e th e le s s th e ju r y w i l l jia v e h e a r d i t and may r e l y upon i t in d e c id in gupon th e d e f e n d a n t ’ s g u i l t . T h u s, w h ile i t i s d o u b t l e s s t r u e t h a t " th e m erep re s e n c e o f su ch m a te r i a l i s n o t enough" t o j u s t i f y s e v e r a n c e , n o n e th e le s s" th e r e m a y . . .b e c a s e s w here th e am ount o f su ch m a t e r i a l i s so g r e a t o r i t s

204e f f e c t so dam aging as to com pel a p p e l l a t e i n t e r v e n t i o n . " And on c e r t a i no c c a s io n s a r e q u e s t f o r s e v e r a n c e , o r an a p p e a l from a v e r d i c t o f g u i l t ya t th e c o n c lu s io n o f a j o i n t t r i a l h a s su c c e e d e d on t h i s g ro u n d . In D onaldson

205(1978) Connor J o f th e Suprem e C o u rt o f th e A u s t r a l i a n C a p i t a l T e r r i t o r y g r a n te d s e v e ra n c e a t th e o u t s e t o f a t r i a l o v e r w hich he p r e s id e d upon th e b a s i s , i n t e r a l i a , t h a t "a g r e a t d e a l o f th e p r e j u d i c a l e v id e n c e w h ich i s

206a d m is s ib le a g a in s t one o f th e a c c u s e d , i s in th e form o f o r a l s ta te m e n ts ]1 w h ich s ta te m e n ts w ere made by h i s c o - d e f e n d a n t t o th e p o l i c e . F u r th e r f a c t o r s w hich w ere i n f l u e n t i a l w ere t h a t t h e s e s ta te m e n ts w ere olfc a in e d in an e n tra p m e n t

(201) [1 9 5 9 ] VR 321.(202) I d . a t 334 (S h o ll J . ) and

(1961) 45 Crim App R 298 (Owen J ) ; H arbach (1973)

s e e Conroy (1954) a t 30 I f f ; K erek es 6 SASR 427 a t 432

Crim LR 141 a t 142; Buggy (1953) 70 WN(NSW) 102 a t 104

- 5 .(203) T e i t l e r , i d . a t 334. The s ame s e n t im e n t i s fo u n d in H arb ach , id a t 43 3 ,4 3 5(204) H arbcich, id . a t 435. The Suprem e C o u rt d id

s i t u a t i o n on t h i s o c c a s io n , h o w ev er.n o t th in k t h a t t h i s was th e

(205) (1978) 20 AC’TR 45.(206) I d . a t 48.

384situation , in which the police had deliberately sought to steer the one accused into implicating the second; and that the Crown had sought to

207present a count of conspiracy,rather than to proceed on substantive charges,2 08Similarly, in the New Zealand case of Adriaanse (1977) the trial judge,

Speight J, granted severance on the basis that pre-trial confessionalstatements made by two co-defendants against A prior to trial were veryprejudicial to A. ° And in - emirok (1976) the Supreme Court of Victoriaquashed the appellant’s conviction for murder upon the basis that the fact of hishaving been tried jointly with his wife had resulted in a miscarriage ofjustice. This was because, inter alia, a statement by his wife, oneadmissible against her only, tended to implicate him indirectly in that it hadenhanced the credibility of the evidence given by an. important Crown witness

211whose evidence was open to challenge,(b) "[here his Co-Defendant may Attack the Defendant in Sworn TestimonyThe co-defen&aat may, in the course of defending himself in sworn

testimony, attack the defendant. If there is a prospect of this , then thedefendant may choose to apply for severance. (The severance of their trialswill not guarantee that the co-defendant will not testify nonetheless at thedefondant’s trial - U:e co-defendant will, after all, be a compellablewitness, subject to the privilege against self-incrimination. But it isperhaps, loss than likely that lie will be called, precisely because ofthds privilege, unless, say, he has already been tried for the subject

■ 212crime , or has been granted an immunity from prosecution.;

(207) Ik,* 48*(208) [ 1977] 2 N4LR 134(209) Because of circumstances recounted in his judgment, Speight J did not in

fact order severance until a point during their joint trial: id. at 13 6 ,(2 1 0 ) [1976] VR 2 4 4,(211) See id. at 233* Several oilier factors were also relevant to the court’s

decision to qua.in the verdict, which were seen as deriving from the fact that the trial was joint - see id. at 2 5 3ff•

(212) Where these persons are tried jointly, the jury must be told that the co-defendant ’ s pre-trial, statements and sworn testimony are inadmissible agains t the defendant* Where the co-defendant attacks the defendant in sworn testimony, the jury must be warned that it is desirable that an accomplice’s testimony should be corroborated ( see p . 4 0 4 ff •) •

385

The E n g l is h C o u rt o f C rim in a l A ppeal a f f i r m e d g e n e r a l l y in G rondkow ski 213(1946)^ t h a t t h e r e i s no r u l e o f law r e q u i r i n g s e v e ra n c e sh o u ld i t be l i k e l y

t h a t th e d e fe n d a n t w i l l be a t t a c k e d by h i s c o - d e f e n d a n t ; and t h a t s e v e ra n c e in?] 4t h i s s i t u a t i o n (as i n any o th e r ) i s w i th in tr ie d i s c r e t i o n o f th e t r i a l ju d g e .

W hether o r n o t s e v e ra n c e o u g h t t o b e o rd e re d in t h i s c ir c u m s ta n c e was d e s c r ib e d215by Owen J in th e New S ou th W ales d e c i s io n in K erek es (1953) a s a " q u e s t io n

216 217o f d e g r e e , d e p e n d in g upon th e f a c t s o f each case ." In H arbach (1 9 7 3 )^tile Supr me C o u rt o f S o u th A u s t r a l i a c o n firm e d t h i s a p p ro a c h , w h i le d e s c r ib in gth e p o ss . b i l i t y t h a t one c o -d e fe n d a n t w i l l a t t a c k a n o th e r a s b e in g a " h ig h ly

218r e l e v a n t c o n s i d e r a t i o n . . . to th e e x e r c i s e o f th e d i s c r e t i o n , "(c) O th e r G rounds

The fo l lo w in g re a s o n s f o r s e v e ra n c e h av e b een ad v an ced on v a r io u s o c c a s io n s :t h a t one o f th e d e f e n d a n t 's c o - d e f e n d a n ts h a s c o n d u c te d h i s d e fe n c e in su ch away a s to i n d i c a t e t h a t a t th e tim e o f th e c rim e j o i n t l y c h a rg e d (on t h i so c c a s io n , b r e a k in g , e n t e r in g and s t e a l i n g ) , he (t e T th e l a t t e r ) was s u s p e c te d

219by th e p o l i c e o f b e in g a s a f e b r e a k e r ; o r t h a t th e i n t e r e s t s o f th e c o - d e f e n ­d a n ts may d i f f e r in r e s p e c t o f c h a l le n g in g p r o s p e c t iv e j u r o r s ; o r t h a t a j o i n t

220t r i a l w i l l im pose more ex p en se upon th e d e fe n d a n t i n h i s d e fe n c e . On eachVo c c a s io n , ho w ev er, an a p p e l l a t e c o u r t d e c l in e d to i n t e r f e r e w ith th e a p p e l l a n t 's

c o n v ic t io n fo l lo w in g upon h i s j o i n t t r i a l .221In C o n g re s s i (1974), how ever, th e Supreme C o u rt o f S o u th A u s t r a l i a

q u ash ed th e c o n v ic t io n o f a man who had been t r i e d j o i n t l y , upon th e b a s i s t h a t h i s p r i o r c o n v ic t io n s w ere b ro u g h t t o th e n o t i c e o f th e j u r y p u r s u a n t to s .18 o f th e E v id e n c e A c t, 1929 (SA), a s a co n se q u e n c e o f h i s d e n ia l o f a c c u s a t io n s made a g a i n s t him by h i s c o - d e f e n d a n t . The c o u r t v iew ed "w ith c o n c e rn th e p r o ­p o s i t i o n t h a t an a c c u se d p e rso n may b e r e q u i r e d to su b m it to a j o i n t t r i a l i f a p ro b a b le r e s u l t w ould be t h a t h i s p r e v io u s c o n v ic t io n s w ould be d i s c lo s e d to

(213) [1 9 4 6 ] 1 KB 369 a t 372.(214) The c o u r t r e f e r r e d to i t s own s i m i l a r re m a rk s in B arn es [1 9 4 0 ] 2 A ll ER

229 a t 231. And se e a l s o Buggy (1961) 145 Grim App R 298 a t 302.(215) (1953) 70 WN (NSW) 102.(216) I d . a t 106 ( K in s e l la J ) .(217) (1973) 6 SASR 427.(218) I d . a t 432. On th e o th e r h a n d , S h o l l J d e s c r ib e d t h i s p r o s p e c t a s "no more

th a n one f a c t o r " to be c o n s id e r e d by th e t r i a l ju d g e in e x e r c i s i n g h i s d i s c r e t i o n , in T g i t l e r (l 959] VR 321 a t, 334 •

(219) Rown t r e e (1959) 76 WN (NSW) 127 .(220) T e i t l e r [.1959] VR 321 a t 333 (S h o ll J . )( 221) (1974) 9 SASR 2 57..

386

the jury." ^ And one of the factors which influenced the Supreme Court ofVictoria to allow an appeal on the ground of non-severance in Demirok (1976)was that there was a possibility that there might be a conflict of evidence

224between the two accused. “ On the other hand it was said obiter by Hewart C.J in22 5the English case of Crondkowski (1946) that this circumstance may further

justify the case for a joint trial, in that the jury will have the advantageof seeing both the person who is alleged to have exercised duress as well as

226the supposed victim of this.

223

22 7 ,Finally, in the South Australian decision of Harbach (1973) the Supreme t-ourtsaid that severance would be necessary where one accused desires to call hisco-accused to give evidence: ''In such a case..it would probably be necessary

228for the case against the other accused to be dealt with first." ' In a joint229trial the co-accused would not of course be a compellable witness.

(5) here the Defendant Desires to be Tried jointly

Uncommonly, a defendant may seek a joint trial from the trial judge, orappeal from a conviction after being tried alone, upon the basis that he shouldhave been tried jointly. He may for example, desire that the out-of-courtadmissions by his co-defendant be heard by the jury, where these are favourableto his case, in that for example they support his contention that his co-

230defendant, rather than he himself, was responsible for the crime. In general, the principles governing the trial judge's exercise of his discretion as to wnether or not to order separate trials, and those governing the review of this discretion and the course of events at the trial itself, are as outlined above in respect of the obverse side of this general topic of joinder.

(222) Id,at 260. As it happens, the court did not think that the mere denial of accusations in the context of this case could amount to the. giving of evidence against the co-defendant, within the meaning of s.8.

(223) [197$ VR 244.(224) Id.at 253. Other specific grounds in support of the ap£>ellant' s general

claim are also noted at this page. See a further comment on Demirokat p.384 above.

(225) [1946] 1 KB 369 at 371-2.(226) Similarly, see Moghal (1977) 65 Crim App R 56.(227) (1973) 6 SASR 427.(228) Id.at 435.(229) Further miscellaneous matters which may influence a trial judge to

order severance appear in the report of Donaldson (1978) 20 ACTR 45 at48 (Connor J), which is discussed above at pp*383~4.See generally Moghal (1977) 65 Crim App R 56. The Court of Appeal declined to interfere with the verdict in circumstances like these/on this occasion.

(230)

38?(VIII) ACCESSORY AFTER THE FACT/ASSISTING AN OFFENDER - QUESTIONS

OF IMP ICTMENT AND PROCEDURE___________ ____________________

Liability as an accessory after the fact is found in all of the Australian and New Zealand jurisdictions. It has been replaced in England by a statutory offence of acting with intent to impede the arrest or prosecution of an arestable offender, which was created in s.4(l) of the Criminal Law Act,1967 (UK). These heads of liability are discussed in Chapter Fifteen#

(A) ACCESSORY AFTER THE FACT; AUSTRALIA AND NEW ZEALAND.

The person who becomes an accessory to another's felony by virtue of an act of assistance of the felon intended to help him evade justice does not himself become a participant in this offence or indeed in any discrete offence. Conventionally, accessoryship after the fact is regarded as not being an offence in itself. Nonetheless, the defendant is to be viewed as being guilty of felony.

(1) Conviction as An Accessory After the Fact if Charged as a Principal in the First Degree, and Vice Versa __________________________________

At common law a person indicted for a felony as a principal cannot be convict ed if the evidence discloses that he did not participate in this crime but

231rather, that he merely did acts constituting him an accessory after the fact.And of course if a person is charged as an accessory after the fact, to a given offence, it is only sensible that he cannot be convicted of this offence if the evidence discloses him to have participated in it as a principal or

232accessory before the fact, for he has not been charged with this offence.It is, however, possible to charge a person in the one indictment containingtwo separate counts, one alleging that he is a principal (or accessory beforethe fact) in a given felony, and the other that he was an accessory after the

233fact to this felony.

There is no statutory modification of these rules in the jurisdictions under discussion which retain criminal liability as an accessory after the fact (i.e., the Australian and New Zealand jurisdictions).

(231) Munday (1860)2 F & F 170, 175 ER .1009; Smith (1870)2 Cox CC 511;Watson (1916) 2 K b 385 at 388, citing Fall on (1862) L & K 217, and Richards v R (1897) 61 JP 389.

(232) No recorded case decides this apparently, doubtless because the point is so obvious as never to have arisen.

(233) Wi 11 tains (1932) 3? SR(NSW) 504 at 506 (per Street CJ) , where i.t is noted that the presiding judge may, in his discretion, call, upon the prosecutorto elect as to which charge he will proceed with.

(2) Conviction a55 an Accessory After the Fact Independently of the Principal FeIon. _____________________________

(a) At Common Law.

At common law a person cannot be convicted of being an accessory after thefact to a felony unless the principal (or presumably one of the principals,where there are several) is or has been convicted of the offence ( either

234concurrently or beforehand) .

(b) tatutory Modification.

In all of the jurisdictions under discussion it is possible because of thestatutory displacement of this common law rule, to convict a person of being

235an accessory after the fact to the principal offence, whether or not theprincipal offender is brought to trial and convicted. In NLSML for example itis provided in s.347 that the accessory after the fact to felony may betried, convicted and sentenced either before, together with or after thetrial of the principal felon, whether or not the latter has been tried or

2 36whether or not he is amenable to justice. Similar provisions are found in the Victorian Crimes Act, 1958, (s.325), the SA Criminal Law Consolidation

V

Act, 1935, (s.268(2)), and the New Zealand Crimes Act, 1961 (s.344(1)).

Under the Commonwealth Crimes Act, 1914 (Aust.) and the Criminal Codes ofQueensland, Western Australia and Tasmania accessoryship after the fact is

237constituted an independent offence so that the issue does not arise,and the defendant may be convicted as for any other such offence•

In New Zealand legislation specifically provides for the indictment, and by implication, the conviction of the accessory after the fact independentlyof the principal offender assisted by him, and further, that the accessory

2 38after the fact may be viewed as committing a substantive crime so that similarly, the common law difficulty does not arise.

(234) Smith (1842) 6 JP 476(2 35) I<a,, felony, indictable offence, offence or misdemeanour depending

upon the jurisdiction and the statutory provision under which the prosecution proceeds. See generally Chapter Fifteen.

(236) This section was based on s.3 of the Accessories and Abettors Act, 1861 (UK) .

(237) Commonwealth Crimes Act, 1914, s.6; Queensland Code ,s .1 0,s .544 #545?Western Australian Code, s.10, s.562, s.563; Tasmanian Code, s.6 ,3.300.Crimes Act, 1961 (NZ) s.344 # Other relevant sections are s.7l(l) and s .512.

(238)

369

But although the acessory after the fact may now be convicted before theprincipal offender in these jurisdictions, and indeed irrespective of whetheror not this ever happens or is possible, it is of course incumbent upon theprosecution to demonstrate that the alleged principal offence has beencommitted, ije., that there was in fact an offender for the defendant to

239assist to evade justice,.

However, the Full Supreme Court of New South Wales held in Williams in1932 that it is unnecessary that the identity of the principal felon whom

240the accessory after the fact has assisted/should be established.

As well, the court in Williams was of the opinion that given the reformin s.357, it would be unimportant that the principal felon should be acquitted"for some reason^' La, a conviction recorded against the accessory after the

241fact on an earlier occasion would not thereby be invalidated.

(3) Form of the Indictment

At common law an accessory after the fact, being regarded as guilty of242felony, may be prosecuted only on indictment. It has been held that the

indictment must aver that the alleged principal felon had actually committed aVfelony and, moreover, that the alleged accessory after the fact knew of

243this2 It is evidently permissible that the indictment aver that the

(239) Mahadeo [1936] 2 All ER 813; Rowley [1948] 1 All ER 570; Humphreys [l965T~3 All ER 689; Williams (1932) 32 SR(NSW) 504 at 507 (Street CJ).

(240) (1932) 32 SR(NSW) 504 at 507 (Street CJ).(24!) Id.at 507-8.

Contrast the position taken on this issue by the English Court of Criminal Appeal in Rowley [1948] 1 All ER 570, notwithstanding the enactment of s.3 of the Accessories and Abettors Act, 1861(UK), which was in similar form to s.347 of the Crimes Act, 1900(NSW), s„347. The court held that a conviction recorded against a person alleged to have been an accessory after the fact, could not stand if the persons alleged to have been the principal felons helped by the appellant /ere subsequently acquitted. This was because the subsequent acquitt­als resulted in there being an "error on the record" (at 571). See now, however, the House of Lords' decision in DPR y Shannon, [1975]AC 717, the reasoning in which would surely preserve the conviction of an accessory after the fact in this circumstance. Shannon and the issue of ex facie repugnancy on the record of the court are discussed at p.25bfl\ above.

(242) West (1962) 46 Crim App R 296. This is so even though the principalfelon may be tried summarily under a statute which provided for example, that the offence with which he is charged may be tried either on indictment or summarily.

(243) Burrldge (1735) 3 P.V/L5S 439 at 484, 493, 24 ER 1133 at 1149, 1152 (Lord Hardwicke CJ).

390

principal felon is unknown even when he is known. If several raen commita single crime as accomplices, such as murder, and the defendant assistsall of them to evade justice in the one act or sequence of acts, he maybe indicted in the one count with being an accessory after the fact to

245murder. If, however, the liability of the several accomplices in a criminalact may be distinguished by their respective mental states, so that for example, one is guilty of murder, and the other of manslaughter, the defendant may be indicted as an accessory after the fact to each such crime, ie., two or more counts will be employed.

(4) Where the Principal Offender is Convicted of a Lesser crime

It has been held that a person who is indicted as an accessory after thefact to murder may be convicted on this charge as an accessory after thefact to manslaughter, where the concurrent trial of the felon whom he hasassisted reveals that the latter, though committing an unlawful killing, did

247in fact commit manslaughter.

(B) BRITAIN - THE STATUTORY CRIME OF ASSISTING AN OFFENDER

Section 4(1) of the Criminal Law Act, 1967(UK) creates an offence concerning the doing of acts intended to impede the arrest or prosecution of a person

248who has committed an areestable offence. This offence is discussed elsewhere.

As the offender under s.4(l) is guilty of a substantive offence himself, it is by implication unimportant that the principal offender may not have been convicted, in order for the s.4(l) offender to be convicted.

By s.4(2) a person charged with an arrestable offence may in the alternative be convicted of the offence created in s.4 (1), if he did not actually commit the arrestable offence charged but did in fact act on behalf of the person who did, with intent to impede his arrest or prosecution. Note, however, that if the prosecution or trial judge (or even the defendant himself) wishes to

(244) See Bush (1818) Russ & Ry372, 168 ER 851, which was a ruling byseveral judges. Contrast Walker (1812) 3 Camp 26 170 ER 1376, whichconcerns a ruling by a single judge.

(245) Richards (1877) 2 QJ3.D 311.(246) Id.(247) Greenacre (1837) 8 Car & P 35, 173 ER 388? Richards, id.(248) See below

391

have the jury consider this alternative during his trial on the charge of having committed the principal offence, the issue must be raised before the close of evidence, and the defendant given the opportunity of an adjournment if he requires this in order to meet the new charge. If the prosecution foresees from the outset that a conviction under s.4(l) is

2possible, it should include a count alleging this offence in the indictment.

The indictment of the alleged offender under s.4(1) must aver an offenceknown to the law, although it would appear that the defendant may stillbe convicted on this count upon proof that the person on whose behalf

he acted committed not this arrestable offence but some other suchoffence. Section 4(1) does not require knowledge in the defendant ofthe precise offence committed by the arrestable offender, it beingsufficient that he knows or believes that some such offence has been

250committed.

(249) Cross [l97l] 3 All ER 641; Vincent (1972) 56 Crim App R 281.¥(250) See Morgan [1972] 1 QB 348; and for a discussion of the mens rea

requirement under s.4 (1) see p. 355ff.

-'L/Ci M t FOURTAj

EVIDENTIAL ASPECTS OF THE TRIAL OF ACCOMPLICES

Two major rules of evidence affecting the trial of persons upon charges of joint participation in crime are dealt with in the following pages, i.e.,(1) the rule specifying the desirability that accomplice testimony against the defendant ought to be corroborated; and (2) the co-conspirator's rule of evidence, which is applicable both to conspiracy trials and to the trial of substantive offences committed as the result of preconcert;. Finally, several miscellaneous matters of present relevance are briefly outlined.

(I) THE CORROBORATION OF AN ACCOMPLICE'S EVIDENCE (A) PRELIMINARY COMMENTS

In a trial on indictment a common law rule of evidence requires that the trial judge instruct the jury that although they may convict the defendant on the evidence of an accomplice or suspected accomplice in the crime charged, it is dangerous to do so unless the evidence is corroborated. A similar circumspection is to be observed by the court in relation to the trial of summary offences?" In Queensland this common law rule of caution has beendisplaced by a statutory provision making it mandatory that such a witness's

2testimony be corroborated before a jury may act upon it. The result is of course that the jury lacks the discretion invested in its counterpart in other jurisdictions retaining the common law rule, where (in the latter instance) it may disregard the caution and convict solely upon the uncorrobo1 2 3 4 a ted accomplice evidence.

In the following pages it is proposed to review the terms and operationof the rule in England, in the Australian States including Queensland, and inNew Zealand. In the latter jurisdictions, excluding Queensland, the courtsgenerally have adhered to the principles enunciated by the English Court of

3Criminal Appeal and the House of Lords respectively in Baskerville (1916) and Davies v DPP(1954)^ though there has been some divergence, especially in Victoria. By way of preliminary, it will be convenient to consider the overall situation in England, Australia and New Zealand in turn:

1. See McNee v Kay [l953] VLR 520 at 533 ( Shall J ).2. Queensland Criminal Code , s .632.3. [1916] 2 KB 653.4. [1954] AC 378.

xcr-

(1) An Overview of the Operation of the Rule in the Subject Jurisdictions liL)__England r-;Until Baskerville (1916)“ the English courts were of two minds as to theneed for the instructing of the jury in cautionary terms. One line ofdecisions envisaged that the rule was discretionary, or that it was a ruleof practice (which seems to have amounted to the same thing), or, specificallythat it was both of these^. Others - by far the more numerous - insisted thatit must be given, while allowing in some instances after 1907 that the provisoin the Criminal Appeal Act, 1907(TJK)/s*4(l ) dould where appropriate be resortedto so as to preserve the conviction of a person notwithstanding that a warning

8which should have been given had not been. The proviso provides in substancethat the conviction may be sustained notwithstanding that a ground of appealhas otherwise been fulfilled, if no miscarriage of justice has occurred becauseof this matter relied upon by the appellant. The application of the proviso

9m this context in this and in other jurisdictions is noted elsewhere.

In Baskerville itself the court considered that the rule was one of practice, historically, but that it had "become virtually equivalent to a rule of law'' over time, and that since the passage of the Criminal Appeal Act, 1907

V(UK) the courts had been of the view that the absence of the warning was fatal

10to any conviction. In so warning the jury the judge is to tell them "of thedanger of convicting a prisoner on the uncorroborated testimony of an accomplice... and, in the discretion of the judge, to advise them not to convict uponsuch evidence; but the judge should point out to the jury that it is within

11their legal province to convict upon such unconfirmed evidence" Thecorroboration, if it exists, must confirm "the material circumstances of the crime" and ,lthe identity of the accused in relation to the crime,'* In other words, the commission of the crime must be independently supported to some 5 6 7 8 9 10 *

5. [1916] 2 KB 568.6. Decisions inclining to view the rule as discretionary include Tcite_ (1908)

1 Crim App R 39.7. See now the Criminal Appeal Act, 1968 (UK), s.2(l).8. See Jordan (1836) 7 Car & P 432, 173 ER 192 (where the trial judge seemingly

accepted the rule to be mandatory); Jellyman (1838) 8 Car & P 604, 173 ER 637; Everest (1909) 2 Crim App R 130; Bowler (1909) 2 Crim App R 168; Warren (1909) 2 Crim App R 194; Kirkham~(1909) 2 Crim App R 253; Gay (1909;2 Crim App R 327; Kams (1910) 4 Crim App R 8; Mason (1910) 5 Crim App R171; Blatherwicke (1911) 6 Crim App R 281; Jennings (1912) 7 Crim App R242; Cohen (1914) 10 Crim App R 91; Willis (1916) 12 Crim App R 44.

9. See p. j19 *10. [1916] 2 KB 653 at 663.

Id. at 663.11.

degree, and there must be independent evidence linking the defendant to it.Subject to this, the accomplice's incriminating testimony need not be confirmed

12in all of its particulars.

In Ite-vies v DPP Lord Simonds LC (in whose opinion the other members of the House concurred) considered that the accomplice's rule had indeed hardened into one of law, so that a warning (corresponding with that formulated in Baskerville) had to be put to the jury. In the absence of this any conviction resulting would have to be quashed, even if in fact there be ample corrobor­ation of the evidence of the accomplice. The conviction could be saved, however, if the appellate court was able to apply the proviso to s.4(1) of theCriminal Appeal Act, .1907 (UK) , i.e., where the failure to warn has not resulted’

• .. 13m a miscarriage of justice.

Lord Simonds further provided in relation to the definition of "accomplice"for the purpose of the rule that this concept embraced "persons who areparticipes criminis in respect of the actual crime charged, whether asprincipals or as accessories before or after the fact (in felonies) or persons

14committing • procuring or aiding and abetting" (in the case of misdemeanours)15This stipulation has given rise to some controversy . Lord Simonds also

Venvisaged that the rule would be invoked only in relation to prosecution 16witnesses. in practice it has also frequently been resorted to where a

defendant's co-defendant has given evidence on his own behalf which has incid­entally incriminated the defendant. Here, however, its invocation is probably discretionary,^

In E gland, therefore, the rule is now to be regarded as peremptory and arule of law rather than a discretionary rule of practice, in that an omissionto so warn a jury where accomplice evidence is relied upon by the prosecutionis fatal to any such conviction as may follow, unless the prosecution canretrieve things by resort to the external proviso now found in s.2(l) of theCriminal Appeal Act, 1968 (UK) whereby the courts are empowered to dismiss the

18appeal if they consider that no miscarriage of justice has actually occurred. 12 13 14 15 * 17 18

12. Id. at 664-5.13. [l954] AC 378 at 396, 397-8. The proviso is now found in the Criminal

Appeal Act, 1968 (UK), s.2(l), in slightly modified form.14. Id. at 400.15. See p.LOVff*16• Laviea v DPI' [1934| AC 370 at 3 9 9.17. See p. 40.4 ffy above •18. This corresponds to s.4(l) in the earlier English Criminal Appeal Act of

1907.

J JJ

Lord Simonds considered that the proviso was only to be invoked and the conviction preserved wif there exists corroborative evidence of such a convincing, cogent and irresistible character that the jury, if they hadreceived the proper warning, must ^nonetheless] have come to the same

. ... 19 ^conclusion/ i.e., to convict.

This test is obviously much more demanding of the prosecution than that20propounded in the earlier case of Tate (1908) where the Court of Criminal

A£>peal in England considered that the conviction of a defendant where anaccomplice had incriminated him should not be interfered with on this occasionat least, because there had in fact been "substantial corroboration" of this

21testimony.

(b) AustraliaWhile the rule enunciated in Baskerville and confirmed in Davies has

generally been accepted in the Australian jurisdictions apart from Queensland,there have been modifications, so it has been noted. The High Court considered

22the matter in Trippdi v R (1961) and indicated that a warning in terms identicalto those provided for in Baskerville and Davies need not be given. The courtrefused the applicant leave to appeal from a conviction partly based on thetestimony of an alleged accomplice, on the basis that though the judge'scaution in relation to this was one of comparative weakness, ,! [tj here appearsto be quite sufficient corroboration and in other respects the case against

23the prisoner is by no means circumstantially weak ..." . But the question ofaccomplice corroboration has not been considered fully by the High Court.

In New South Wales the courts have tended to adhere closely to the English24prescriptions, m the absence of a fuller High Court analysis . The same

25is true in South Australia, though in his minority judgment in Rigney (1975)Bray, CJ, indicated in his view that the rule applied to co-defendants who give evidence 19 20 21 22 23 24 25

19. [1954] AC 378 at 398, citing Lewis (1937) 26 Crim.App.R. 110.20. Tate (1908) 1 Crim.App.R. 39.21. Id., at 41.22. (1961) 104 CLR 1.23. Id., at 10-11.24. See especially Ferguson (1917) 17 SR (NSW) 69; Reeve (1917) 17 SR (NSW) 81;

Naughton (1920) 20 SR (NSW) 259; Glover (1928) 28 SR (NSW) 482; Butler (1953) 53 SR (NSW) 328; McKenna (1956) 73 WN (NSW) 345; Lynch [1971 ] ~2 NSWLR 136. Other decisions concerning the topic include Simpson (1922) 39 WN (NSW) 259; Hutton (1932) 32 SR (NSW) 282; Perry [ 1970J 2 NSWR 501.

25. (1975) 12 SASR 30.

on their own behalf if they incidentally incriminate the defendant, in the26same terms in which it was applied to accomplices The question of the

applicability of the rule to co-defendants (whether or not they are charged withthe same offence as the defendant, i.e . , whether or not they are accomplices)

27is considered below. In Tasmania the Supreme Court decision m Fletcher v.Castrisios (1959)^ conforms with the Baskerville-Davies approach. In Western

29Australia, the Supreme Court has indicated in Khan (1971) that the '‘accomplice'*need not always be implicated in the actual crime with which the defendant ischarged, it being sufficient in some circumstances that the facts giving rise

30to the offence establish that the witness :ls otherwise criminally liable.31Virtue J said that the accomplice's rule was one of practice rather than law

and that it did not involve in all cases that a jury be cautioned in relation tothe evidence of an accessory after the fact (this was contrary to Lord Simonds,

32LC's obit r_ comment in Davies).

The Victorian courts have likewise recognised the rule, but differ fromthe English orthodoxy regarding the consequences of a failure to administer it,where a conviction results. It is sufficient in Victoria if there in fact besubstantial corroboration of the accomplice's testimony, in order that the

33proviso to s.568 (1) of the'’Crimes Act, 1958 (Vic ) is able to be applied.This test for the invocation of the proviso (which is similar to the proviso in s.2(l) of the Criminal Appeal Act, 1968 (UK)), is possibly less demanding of the Crown than that enunciated in Davies, and which has just been referred to.

26. Id. at 38. Other cases include Webbe SASR 248.

(1926) SASR 108; Forgione (1969)

27. See p.40j • above*28. [1959] Tas.S.R.3,29. [l97l] WAR 44.30. Id. at 49, 51, 54.31. Id. at 49.32. Id. at 50, and see 55 (per Burt J ). Other Western Australian cases include

Bonn y.ui.ttlejolJiH 1900)2 WA.R 138|Heruian(l904 )6 WAR 89; Coulter (1926) 29 W A R ~46'j Scruby 7T952) 55 WALR 1 (whicK dealt, however, with the corroboratior of complainants in sexual cases.Teitler [1959] VR 321 at 329 ( Lowe and O'Bryan JJ ); but note Sholl, J's comments at 338. Fubrer [l96l] VR 500; Anthony [l962] VR 44Q.

33.

597

The Victorian courts also recognise that co-defendants who give evidenceon their own behalf and who incidentally incriminate the defendant are accomp-

34lices for the purposes of the rule . And on occasions the rule has, even35after Davies, been spoken of as one of practice rather than law . Finally,

3 Gthe Victorian Full Supreme Court held in Ready (1942)' that the accomplice'swarning need not be administered in respect of testimony by an accessory after

37the fact

The Queensland decisions will be considered separately.

(c) New ZealandThe decisions in this jurisdiction in general conform with those in

England. The Court of Appeal has, however, indicated its view that the rule should be applied to co-defendants who give evidence on their own behalf(i.e ., who are not called by the Crown) which incidentally incriminates the

38defendant, though subsequently the same court has stressed that theadministration of the warning in this situation is discretionary and not

39mandatory, The court has also held that the application of the rule was40not peremptory m relation to accessories after the fact. And m Terry

41(19/3) the Court of Appeal said that where a person is not an accomplicebut is "close to the periphery of the crime" it may be prudent in a particularcase for the trial judge in the exercise of his discretion to warn the jury of

42the dangers of accepting this person's evidence. 34 35 36 37 38 39 40 41 42

34. Teitier, icL . at 329; Fuhrer, id. , at 507, 509; Anthony, id. at 441.35. For < xample Sholl J in Teitler, id., at 337.36. [1942] VLR 85.37. Other Victorian cases on the rule include Olholm.Q.925] VLR 377; 3assett

fl952]VLR 535 ; McNee v Kay [1953] VLR 520 at 533.38. See Te Whiu [1965] NZLR 420; Terry [l973] 2 NZLR 620 at 623.39. Hartley [1978] 2 NZLR 199 at 206. Indeed, the court on this occasion

expressed its regret that the requirement that a warning be administered when an accomplice testifies for the Crown has "hardened into a rule of law": at 207.

40. Lewis [1975] NZLR 222 at 231-2.41. [1973] 2 NZLR 620.42. Id_. at 623.

Other New Zealand cases dealing with the rule include Oxnam v Ferguson [1948] NZLR 314; McAllister [l952] NZLR 443; Cottle (1958pNZLR 999;Baynon [i960] NZLR~1012;' Hicks [1970] NZLR 865; Halligan [l973] NZLR 158; Pollock [1973] 2 NZLR 491; Honey [1973] 1 NZLR 725; Edwards [l975] NZLR 402

y/d

(d) Issues Associated With the RuleMajor issues associated with the rule include the identification of the

persons to whom it is to be applied (viz , who are the "accomplices" with which it is concerned?); the consequences of a failure to administer a warning where the rule requires this; the question of whether the warning must be administered in the same terms as propounded in Baskerville and Davies; and the efficacy of the rule in its present form.

(B) THE RULE ANALYSED

(1) RationaleThree principal justifications for a requirement that juries be warned

as to the desirability that accomplice testimony be confirmed have beenrecognised by the courts. The first is that because suspected or admittedaccomplices are apparently or definitely i^articipes crimines in a crime theyare by definition untrustworthy, in that their moral character is therebyimpugned. This perhaps is what the trial judge in the Western Australian

43decision of IChan (1971) had in mind when he instructed a jury that44"accomplices are notoriously unreliable witnesses for obvious reasons'.'

Secondly, there is the danger that if the accomplice is prima facie implicatedin the crime with which the defendant is charged, or a similar one arisingfrom the same facts, he may seek to shift the blame for this crime upon the

45defendant so as to exculpate him self. • T h ird ly, i f the accomplice i s a t r isk

of being prosecuted himself he may desire to implicate the defendant in the46hope of receiving preferential treatment, such as a pardon, or, where he comes

to be tried, in the hope of lightening his sentence. It is for reasons like these that some courts have proposed severe limitations on the right of the prosecution to call people who are still able to be charged with the crime 43 44 45 *

43. [1971] WAR 44.44. Id, at 46. And see Jenkins (1845) 1 Cox CC 177 (Alderson B)>Baskerville

Y"l91r ] 2 KB 658 at 665. But see Sneesby (1951) 45 QJPR 61 at 6 3*fhil, , J.); McNee v. Kay [1953] VLR~57o at 528 ( ■ Sholl, J.) .

45. Mahacteo [l936] 2 All ER 813 at 818; Bassett [l952] VLR 535 at 537; Rigney(1975) 12 SASR 30 at 51; Sneesby (.1951) 45_QJPR 61 at 63 ( Philp, J.)McNee v Kay_ [l953] VLR 520 at 529 ( Sholl, J.); BPP y Kilbourne ft 975] AC 729 at 747-8 ( Lord Hailsham LC) . Jacguier (19797""20 SASR 543at 552 (Walters find Wells J J).

599

alleged against the defendant or to insist, where he has been convicted of48the crime, or pleaded guilty to it, that he be sentenced before he testifies.

49These limitations are further discussed below.

Another underlying factor which further conduces to the danger inherentin the reception of accomplice testimony is that "though the accomplice'sevidence may be false in implicating the accused, it will usually have a seemingplausibility because the accomplice will have familiarity with at least some

50details of the crime . . ."

But these justifications are of course generalised; there may conceivably be cases where, given the nature of the facts or the personality of the witness, . none of these dangers will be present. In this circumstance the rule may unduly favour the defendant. This issue is returned to in the conclusion to this paper.

On the other hand, the fact that the rule is based broadly in a concern tosee juries exercise caution in respect of testimony which may typically befalse, surely involves that the range of persons to whom it is applied ofteno u g h t t o e x t e n d b e y o n d t l i o s e who a r e a c c e s s o r i e s i n t h e a c t u a l c r i m e c h a r g e dagainst the defendant. Other categories of witness may be nominated who have

51an equal incentive to distort the facts in their favour.

(2) The roles of Judge and Jury (a) The JudgeIt is the judge's responsibility of course to decide whether the warning

needs to be administered and to do this if required. As a part of this processhe is to inform the jury that they may convict even in the absence of corrcb-

52oration- on the other hand, he also possesses a discretionary power to instruct* 53them not to convict upon the uncorroborated evidence of a witness. As the

definition of the term "accomplice1* employed in the context of the rule is amatter of law, it is for the judge to instruct the jury as to what type of

54persons would come into this category. 47 * 49 50 51 52 53 54 *

47. Pipe (1966) 51 Grim App R 17.48- Smith (1924) 18 Grim App R 19; though the court did not go so far as to

say that this ought be done in all such cases.49. See p p . 4 m i a above .50. J.D. Heydon, "The Corroboration of Accomplices" [l973] Crim L R 264 at 266,

citing People v. Coffey 39 LRANS 704, 706 (1911) per Henshaw J.51. See p .4 07 ff. above »52. Baskervilhn [l91fi] 2 KB 658 at 663; Davies v IIP? [1954] AC 578 at 402;Ferguson

119487 NZLR 314 at 316 ( Christie J ).53. Baskerville, id. at 663; endorsed in Davies, id. at 397.5 4 . K h a n f l 0 7 l ] .VLK 44 a l 51 . C h ^r ] o s (1 97 9 ) 6b C r im App h 554 a t 5 4 0 .—-1 , * —

400For the same reason, no doubt, several English cases indicate that

the judge ought to define the meaning of '’corroboration” to the jury. In .bbChrimes (1959) ' the Court of Criminal Appeal observed it to be the ’’usual

practice ... to tell the jury that corroboration means evidence which supports the accomplice’s story that the crime m o committed and that the accused

56person was implicated in it.” By implication, this evidence had to beevidence external to, i.e., independent of, this witness. This requirement

87is referred to below*'Must the trial judge indicate to the jury the evidence which, if

believed, is capable of being regarded as corroboration? In England, Lord58Parker had indicated in Goddard (1962) that the trial judge possesses a

discretion to do this which he should exercise on most occasions. Morerecently, however, the English Court of Appeal has indicated in both

89 60Charles(1979) 7 and. Reeves(1 979) that the trial judge must do this. Ina Western Australian decision, the matter is likewise treated as being within

61the judge’s discretion. In New Zealand it would seem to be regarded as mandatory that the judge indicate the relevant evidence.But although the circumstances may require that the warning be given, there may not in fact be any evidence capable of corroborating the accomplice’s testimony. In this

V

case the trial judge is required to so inform the jury, i.e., he will need to modify the warning so as to emphasise no more than the danger of relying upon accomplice evidence which cannot be corroborated: ’’Quite clearly, it is idle to give that direction simpliciter I i.e., to instruct the jury to look for * 57 58 59 60 * 62

55* (1959) 45 Grim App R 149*56• Id, at 155•57. See at p . 415 below. See also the Court of Criminal Appeal decision inStannard (1982) 48 Grim App R 81 at 92 on the need for the judge to

define corroboration; and Khan [1971] WAR 44 at 51 (Nevile j). But Mann CJ’s remarks in Ready |4 942] VLR 85 at 95 are to the contrary.

58. (1962) 5 All ER 585 at 586. Lord Parker repudiated the the Court of Criminal Appeal decision in Zielinski (1950) 54 Crim App R for its view thatthe trial judge did not need to indicate w’nat evidence could be regarded as corroboration,

See also Chrimes (1959) 45 Crim App R 149 at 155; Stannard, id.; Blamires Transport Services (I9 6 5) 47 Crim App R 2J2 at 280.

59. (1979) 68 Crim App R 534 at 540-1 .60. (1979) 68 Crim App R 331 at 355-4.61 . Khan [19 7 1] WAR 44 at 51 (Nevile j).62. Baynon F96(InzLR 1012 at 1016; Honey f*19751 1 NZLR 7^5,750; Lewis fl975l

1 NZLR 222 a t 231 . U J L J

401

corroboration] in a case where in fact there is no evidence capable of amounting to corroboration, because the very fact that the direction is givenwould leave the jury to infer that there was some evidence capable of amounting

6 3to corrol >ration, if they looked for it?

It is possible that the judge need not administer the warning if he tellsthe jury that the accomplice's evidence is irrelevant, though it may be prudent

64to do so nonetheless. The trial judge need not warn the jury if the allegedaccomplice's testimony tends to exculpate the defendant, and is not incrimin-

65atory in any part. The situation may differ if this testimony is in part inculpatory. This question is considered below.66 And one decision declares that if the prosecution does not ask a jury to act upon the incriminating evidence of alleged accomplices, a warning need not be given. This conclusion is surely dubious6^

lb' Thft JuryThere are two major factual issues to be resolved by the jury in the

context of the warning. The first question to be decided by the jury is thatof whether a particular witness is an accomplice, after they have been told of

6 8the tests by which an accomplice is identified for the purposes of the rule.

63. Goddard [l962 ] 3 All ER 582 at 586 ( . Lord Parker CJ) ; Bone [1968] 1WLR~983 at 985 ( Lord Parker, CJ ); Khan [l97l] WAR 44 at 47(Virtue SPJ.); Gillespie [l947] NZLR 487, where the Court of Appeal held that a direction to .look for corroboration where there was none was fatal to conviction. This case concerned the corroboration of a complainant ina case involving charges of carnal knowledge and indecent assault on a girl.

64. Anthony [1965] 1 All ER 440 at 442 where Lord Parker, CJ remarked that inview of the fact that the trial judge and prosecution had told the jury that"it would be better not to rely upon (the alleged accomplice's) evidence"', it was not fatal to A*s conviction that the jury had not been warned in relation to this witness. The English Court of Appeal treated the issue as being open, in relation to alleged accomplice testimony which was "unimport­ant in regard to the case as a whole" (the matter was not directly in issue): Meechan [1977] Crim L R 350.

65. Anthony [1962] VR 440 at 445; Rigney [l975] SASR 30 at 39. See also Royce- Bentley [l974] 2 All ER 347 at 349. But see Peach [l974l Crim L R 245.

66. See Pp.404-5 •67. Barnes [l940] 2 All ER 229 at 232 (CCA).6 8. Jteies__vJ)PP [1954] AC 378 at 4Q2;Fergusqn(l9l6) 1 7 SR(NSW) 69 at 75$

Hutbon (1932) 32 SR (N.S.W.) 292 at 284; Lynch [l971J 2 NSWLR 136 at 141? Webbe [1926] SASR 108 at 111; Allen [l973]Qd~R 395 at 398; Khan [l97l]WAR 44 at 51.

402

However, Lord Simonds LC observed in Davies that in certain cases the fa c ts

may be such that there is no evidence from which a jury could reasonably decide

that a witness was a p artic ip an t in the crime, and in th is situ atio n the judge69may properly rule accordingly, and so withdraw the issue from the jury.

The econd major province reserved to the jury is o f course to decide whether70or not there is in fact corroboration m respect of the witness's evidence.

(3) Persons Subjected to the Rule(a) "Accomplices"

71In Davies (1954) Lord Simonds LC confined the operation of the rule topersons who are accomplices in the actual crime committed by the defendant and

72who are called by the Crown, He defined accomplices as including primarilypersons who are participes criminis in this crime, i.e., any accessory before

73the fact, principal in the second degree or accessory after the fact. But hesaw this category as also including (for the purposes of the rule) two otherparties who were not accomplices at common law, i.e., the receiver whogave evidence against the thief (where no relationship of complicity otherwiselinked them), and accomplices in a crime committed by the defendant on anotheroccasion apart from his commission of the similar crime for which he is beingtried, where the two crimes are otherwise identical and the other crime isadmissible in evidence as proving system and intent and negativing accident,

74where these accomplices are called by the Crown to testify. 69 70 71 72 73 74

69. Davies, id. at 402.70. This has always been assumed; it was expressly recognised in Chrimes (1959)43

Crim App R 153, where the English Court of Criminal Appeal reproved a trialjudge who told a jury, "I direct you as a matter of law that that j i.e*, afact proven in testimony] is corroboration." Hutton (1932) 32 SR (NSW)282 at 284; Allen [1973] Qd R 395 at 398; Khan [l97l] WAR 44 at 51.

71. [1954] AC 378.72. id. at 399.73. In respect of the accessory after the fact of course such a common law

liability only arises in relation to felonies. In Britain the categoryhas been superseded by the crime of assisting an offender : Criminal LawAct, 1967 (UK) s.4. See also the Queensland and Western Australian Criminal Codes, each at s.10; the Tasmanian Criminal Code at s.l and s.6(l); and theNew Zealand Crimes Act, 1961 at s.71.

74. Davies [l954] AC 378 at 400; see p.4^4 below.

403

Lord Simonds' conception of accomplices was accepted by the N.S.W. -Court75 76of Criminal Appeal in Perry (1970). In the S.A. case of Rigney (1975)

Hogarth J likewise viewed "accomplice" as extending to include the accessory 77after the fact. But in some of the other jurisdictions under discussion the

courts have excluded accessories after the fact from the operation of the rule.78The Supreme Court of Victoria held in Ready (1942) that the warning did not

have to be administered in relation to an accessory after the fact, for such anoffender was not an accomplice, not being "privy to the criminal intent of the

79principal offender." This exclusion might be thought unduly literalistic, for such a party may have precisely the same motivation to misrepresent the facts as a secondary party implicated in the principal offence. This issue will be returned to under the present heading.

80In W.A., Virtue, SPJ., considered in Khan (1971) that there was no compulsic i upon judges to give the warning in relation to an accessory before the fact^“ In an obiter comment Burt, J. remarked on this occasion that thejudge had the power to administer the warning in relation to testimony of this

82type, but that the exercise of this was "voluntary" or "optional!1 In83Queensland the matter has not been fully settled^ and the issue would seem

*not to have been considered in any reported decision in Tasmania.

In New Zealand, there is no compulsion upon the judge though he may warn the84jury m relation to an accessory after the fact if he sees fit.

Accomplices and EntrapmentInformants, agent provocateurs or police spies are not sensibly to be

regarded as accomplices in the crime in which they pretend to participate at general law, and they are not regarded as such for the purposes of the rule. 75 76 77 78 79 80 81 82 83 84 85

75. [l97o] 2 NSWR 501 at 504.76. (1975) 12 SASR 30.77. Id. at 53.78. [1942] VLR 85.79. Id. at 93.80. [l97l] WAR 44.81. jEd. at 50, citing Ready [l942] VLR 85; Lewis (1906) 8 WALR 83 at 85; McNee

v Kay [l953] VLR 520; Lindsay [l963] Qd R 386.82. Id. at 55.83. See Lindsay [1963] Qd R 386.84. Lewis [1975] 1 NZLR 222 at 232.8 5 . Bickley (1909) 2 C r im A p p R 5 3 » H e u a e r ( l 9 l O ) 6 C r i m A p p R 76I S n e d d o n y S t e v e n :

[l967] WLR 1 0 5 1 ; Dunn v Littlejohn ( 1 9 0 0 ) 2 WAR 1 3 8 ; Herman ( 1 9 0 4 ) 6 WAR 8 9 . But see Davies ( 1 9 3 0 ) 22 Crim App R 3 3 .

404

Note, however, that the fact that the defendant was trapped by an agentprovocateur may be of evidential significance in exceptional circumstances,where for example it may be said that the evidence against him was obtained

86"unfairly,"

(b) Co-DefendantsIn contrast to the accomplice who is called by the Crown, is the person

who is jointly charged and tried along with the defendant (and who may be conveniently called a co-defendant), and who elects to give evidence on his own behalf which testimony wholly or partly implicates the defendant. Isthe judge required to warn the jury in relation to this co-defendant's testimony?

87The question was raised but not answered by Lord Simonds LC in D a v ies v D P P (j934j.On other occasions, however, the English courts have indicated that whether ornot a warning ought be given is within the discretion of the trial judge. In

88Prater (.1959) the Court of Criminal Appeal considered that where such awitness may have a purpose of his own to serve, "in practice it is desirable

89 90that a warning should be given" In Stannard (1962) the same courtconfirmed that this rule, if Prater has indeed formulated such a rule, is one

91of practice merely. In other words, if the trial judge fails to give aVwarning m such a circumstance the conviction will not be quashed on that basis

92alone. If no injustice has been done, the conviction must stand.

The question has been considered by the Australian and New Zealand courts several times, in relation both to co-defendants who are alleged to have participated in the offence with which the defendant is charged, and with co­defendants charged with another linked offence. (This latter situation will be discussed shortly, in relation both to persons called by the Crown and to co-defendants giving evidence on their own behalf.) In Victoria the Supreme Court has confirmed that a co-defendant who is implicated in the offence charged 86 87 88 89 90 91 92

86. See pp. 3?6-7 below,

87. [1954] AC 378 at 398-9.88. (1959) 44 Crim App R 83.89. Id. at 85.90. (1962) 48 Crim App R 81.91. Id. at 91.92. See also Martin (1910) 5 Crim App R 4 ; Barnes [1940] 2 All ER 229; Heaps

(1961) Crim LR 254; Phillips [l962] Crim LR 464; Fletcher [l962] Crim LR 551.

405

against the defendant and who is called by his own counsel and who incriminatesthe defendant, is to be treated on precisely the same basis as the accomplice

93called by the Crown, for the purpose of the warning. In Bassett (1952)the Supreme Court inclined to treat the warning as being discretionary thoughcertainly desirable in such a case, considering it to be difficult to appreciate"how an accomplice becomes any more credible when . . . called as a witness for

94 95the CrowTn ..." In Teitler (1959) the Full Court was of the view that thelimitation of the rule to accomplices called by the Crown and the exclusion from its operation of those giving evidence on their own account could onlybe justified, if at all, by reference to the history of the matter rather than

96 97logically. Accordingly, the court held, while the rule was one of practice,the consequence of a failure to so warn the jury was that, as in the case ofaccomplices called by the Crown, any conviction resulting could only bepreserved by resort to the proviso (i.e., in s.568 of the Crimes Act, 1958(Vic )) 98

In South Australia this issue affecting co-defendants was the subject of99obiter comments in Rigney (1975) . Bray CJ considered that the danger that

a co-defendant would swear falsely was "at least as great1' as that createdV

when an accomplice is called by the Crown. The latter "may be, and usually is, already sentenced or already pardoned at the time of his appearance ... [and] his fate is already determined; the co-accused in contrast is ex hypothesi in immediate peril of conviction and immediate hope of acquittal'.'^00 He considered therefore that the co-accused giving inculpatory evidence in his own defence should be treated in the same way as an accomplice called by the Crown, and the jury warned accordingly. In contrast Hogarth J favoured the English approach, i.e., to treat the matter as being within the judge's discretion.

93. [1952] VLR 535.94. Id. at 538.95. [1959] VR 321.96. Id*, at 329 (Lowe and O'Bryan JJ.)97. Id.98. And see id.at 341, per Sholl J who disapproved of the English notion

of the rule as being 'optional in relation to co-defendants not called by the Crown. Teitler was followed by the Victorian Full Court in Anthony [l962] VR 440 at 444.

99. (1975) 12 SASR 30.100. Id. at 38.101. Id. at 54; Jacobs J was non-committal on this issue at 58.

406

In Queensland Hanger, J. considered in Allen (1973) that s.632 of the Criminal Code Act, 1899 (Qld ) (which makes the corroboration of an accomplice whose testimony is relied upon to secure a conviction mandatory) could be construed so as to embrace accomplices called by the defence as well as by the Crown.

103The Supreme Court of New Zealand was of the view in Te Whiu (1965) that the same warning required in respect of accomplices called by the Crown was likewise necessary in respect of a co-defendant charged with the same crime as the defendant whose testimony has implicated the latter, and that the effect of a failure to so warn the jury was the same in both cases.

(c) C o -D efen d an ts who i n c i d e n t a l l y i n c u l p a t e t h e D e fe n d a n t in p a r t O nlyShould a person who is implicated in the defendant's crime as an accomplice

within the terms of the rule, and who gives evidence as a co-defendant (i.e.,on his own behalf) which incidentally inculpates the defendant in part only, besubjected to the warning? It has been noted (under (2) above) that if theco-defendant's evidence (or indeed that of an accomplice called by the Crown)is entirely exculpatory of the defendant, the judge is not required to administer

. 104the warning.

Where it is in part inculpatory, and in part exculpatory, it is withinthe discretion of the trial judge as to whether or not to administer a warning.

105In Royce-Bentley (1974) the English Court of Criminal Appeal held that the trial judge should, where the evidence indicates that such a witness may be an accomplice, firstly consult with counsel in the absence of the jury. After "having done that, he ought to consider whether on the whole, more harm to the defence would be done by giving the accomplice direction than by not giving it/ and if he comes to the conclusion that on the whole more harm would be done in that way, then it is no irregularity on his part in the conduct of the trial if he decides not to give the accomplice direction.""*"^ In other words, the defence may wish to preserve the credibility of the witness (and the caution is of course designed mainly for the benefit of the defendant).

102

102. [1973] Qd R 395 at 396.103. [l965] NZLR 420, and see also Terry (1973) 2 NZLR 620 at 623.104. Royce-Bentley [l974] 2 All ER 347; Anthony [l962] VR 440 at 445; Rigney

(1975) 12 SASR 30 at 39.105. Id.106. Id. at 350.

40?

In Anthony (1962) the Full Supreme Court of Victoria remarked th,at co-defendant testimony which is on balance favourable to the accused, but which if disregarded in its exculpatory aspect and taken together with other evidence would tend to prove that the defendant was a companion of the witness in the crime charged, did not necessarily attract the operation of the rule. Again, its administration was within the discretion of the trial judge, for "[i]t would be curious that it should be obligatory [for] the trial judge to give the warning ... where it would or may operate to the prejudice or disadvantage of the accused, as for instance by drawing pointed attention to the possibilityof rejecting the exculpatory aspects of A's testimony and using some other part^ , ,,108 o f I t in a manner adverse to B.

109In New Zealand the Court of Appeal held in Cottle (1958) that the warning ought be given where a possible accomplice's evidence was in part inculpatory, and supplied the only direct evidence as to the defendant's guilt, though it was also to a large extent exculpatory.^^

107

(4) Demonstrating that the Witness is an AccompliceWhat if there is controversy as to whether or not a witness is an accomplice?

Lord Simonds observed in Davies v DPP(1954)^^ that in many cases the issue willnotarise - for example, the witness will have been convicted of the subject crime,or will have confessed to it, or have pleaded guilty to it. On the other handthe facts may be such that there is simply no evidence to raise the inference,and the judge may so rule. In cases between extremes, the judge is to leave thequestion accomplice vel non to the jury if, on the facts, "there is evidence

112on which a reasonable jury could find that a witness was a 'participant'."No mention was made of whether any burden or onus of proof was imposed upon either party (i,e., prosecution or defence) by the operation of the rule. In practice the approach of the courts would seem to be that if there is sufficient evidence to raise the possibility that a given witness is an accomplice, then the issue is to be left to the jury without any instruction as to the onus.

107. [1962] VR 440.108. Id. at 446. And see Rigney [l975] SASR 30 at 39 (Bray C J ).109. [1958] NZLR 999.110. Td. at 1006 (Gresson P ); 1023 (North J 1030 (Cleary j).111. [1954] AC 378.112• IfL* at 402 * similarly see Jacquier (1978) 20 SASR 543 at 552 ( Walters

and Wills J J ), And see the English Court of Appeal’s comment in Riley (1 9 8 0) 7° Crim App R 1 at 3, that if the trial judge thinks that it is a "possibility" that the witness is an accomplice, he must give the warning.

408

The approach is a reasonable one given that the rule is not concerned withwhether or not the testimony of the possible accomplice ought be admitted; but

113rather, is concerned with the evaluation of the weight of this evidence.

(5) The Same crime?With the limited exceptions mentioned (viz , receivers giving evidence

against the thief, and accomplices to similar crimes on other occasions) LordSimonds LC confined the operation of the rule to witnesses who were

114participes crlminis in the actual crime charged: Davies v DPP(1954)« This115limitation has frequently been criticised* It has been compellingly argued

that the justification for informing the jury of the danger of believing theevidence of an accomplice in the very crime charged/will frequently apply withequal force to the testimony of a person responsible for the commission of acrime committed as an incident in the overall transaction which has also givenrise to the offence with which the defendant is charged. The dividing linebetween the defendant's offence and the witness's offence may be very fine; forexample; it may be contingent solely upon distinctions between their respectivemental states so that, for instance, where a homicide is committed by two personsin the course of a joint assault, one may be guilty of murder (because possessedof an intent to inflict grievous bodily harm) and the other of manslaughter

1X6(because he intended no more than a simple assault). Or the two crimes,though different in character, may be intimately connected in the factual sense

for example, two persons may jointly commit a burglary, in the course of which117one of them may, without reference to the other, commit murder. In such a

case the witness, if he has not been tried, convicted and sentenced (or for that matter pardoned) may have every reason to give false evidence so as to shift the blame for his own crime on to the defendant, or to secure the Crown's favour by exaggerating the defendant's complicity.

In England no decision has challenged the Davies limitation. In Australia,however, this aspect of the rule has been the subject of obiter criticism inVictoria and South Australia, and in the Western Australian decision of Khan

118(1971) the court modified the rule in terms to be noted shortly. As well, the statutory rule in Queensland has been interpreted broadly in this respect.

113. See, however, the commentary to Vernon [l962] Crim LR 35.114. [1954] AC 378 at 400.115. E._g., Heydon, "The Corroboration of Accomplices" [l973] Crim LR 264 at

280; Cross, Evidence (4 edn., Butterworths, London, 1974) at 176.H 6 . E_Lg_. , Smith (Wesley) [l963] 3 All ER 597,117. The example assumes of course that the felony-murder doctrine, or a statutory

successor, does not intrude to render all parties to the robbery construct­ively guilty of murder, irrespective of their mental content, provided the intention appropriate to the foundational felony (or offence) may be proved.

118. [1971] WAR 44.

409

The Supreme Court of Victoria endorsed the limitation of the rule to119accomplices in the actual crime in Olholm (1925) , though the matter can

120scarcely be said to have been fully analysed here. In McNee v Kay (1953), however, Sholl J criticised this principle, in that the temptation to exaggerate or make false accusations would appear to be much more related to the nature and possible punishment of the offence of the witness than to its technical identity with that alleged against the accused . He considered that the true principle s h o u l d be that "that person is an accomplice ... who is charge­able, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as mightpossibly tempt that person to exaggerate or fabricate evidence as to the guilt

121of the accused" However, the question had been concluded for him by thecourts on previous occasions in favour of the more restrictive view of "accomplice."

In South Australia, Bray CJ endorsed Sholl J 's comments in Rigney 122(1975), noting that the rationale of the rule (i.e., requiring a warning in

relation to accomplice testimony) was that of the danger that the accomplicewould lie to protect himself, and that this danger "is equally great whetherthe crime which endangers the witness is the same crime as that which endangers

123the accused or not." However, he felt that the decision of the House ofLords in Davies had concluded the matter in South Australia. These comments

124were thus obiter,125In the Western Australian case of Khan (1971) the appellant had been

convicted of murder. A witness had testified against him upon being called by the Crown. It was alleged on appeal that she was possibly guilty of this homicide as an aider and abettor, but that because of her limited mens rea she might be guilty of manslaughter rather than murder. On the basis that she was a possibleaccomplice to manslaughter at least, the Supreme Court of Appeal held unanimously

X 2 6that the jury should have been warned in relation to her testimony.

119. [1925] VLR 377 at 383.120. [1953] VLR 520.121. Id. at 530.122. (1975) 12 SASR 30 at 37.1 2 3 . I d .124. See also id.at 58, per Jacobs J , who inclined towards the Davies

limitation.125. [1971] WAR 44 .126. In fact the judge had warned the jury in relation to her evidence, but in

ineffective terms. If she was not within the scope of the rule, this would not have mattered. Accordingly the court's discretion as to her status in these terms is a part of the rcitio in Khan.

4io

Virtue SPJ held that she was subject to the rule. While it wasunnecessary to propound a more general principle, in the present case wherehomicide was charged, he concluded that "any witness whom the jury may findto be a principal or an accessory ( other than an accessory after the fact) toany crime of culpable homicide of which the accused person could in law beconvicted on the indictment against him, is an accomplice of that accusedperson within the meaning of the rule Analogous cases involving otheroffences might well need to be decided according to a similar principle, ‘'but

127such case ; may be dealt with as and when they arise" Even if no duty isimposed upon the trial judge to warn the jury in any of these other situations,

128he nonetheless has a discretion to do this. This approach was endorsed byNevile J : "'the crime charged' must be interpreted as including any other

129crime of which on the indictment the accused could be found guilty." BurtJ held that "any person called as a witness for the prosecution upon an indict­ment charging wilful murder, murder or manslaughter" would need to be treated asan accomplice for the purpose of the rule if possibly implicated in any one of

130 r ithese degrees of culpability. To hold otherwise "would turn [the] modern ruleof caution upside down ..." A literal application of Davies would involve that a judge in a case like the present would (if the witness was a possible accomp­lice to manslaughter) be obliged to warn the jury if the defendant was charged with manslaughter, but not if he was charged with murder or wilful murder.

An extension of the Davies conception of "accomplice" is perhaps most obviously necessary where the witness and defendant are jointly implicated in different crimes, each sharing the same actus reus, and distinguished only by their differing mental content. The intimacy of their joint involvement makes the denial of the caution particularly anomalous. But the same policy objections

127. Id. at 49.128. Id. at 49-50.129. Id. at 51: "If it were otherwise there would be the absurd situation that

where the warning had been omitted and an accused was convicted of an offence, different from that with which he was actually charged on the uncorroborated evidence of a witness who had counselled or procured or assisted in the commission of the offence, such a conviction would stand although it would have been set aside had the accused been charged with the actual offence of which he was convicted ..."

130. Id. at 55.

411

to uncorroborated testimony may be equally valid in the situation where, thewitness is a possible accomplice in an interrelated crime possessing a separateactus reus, in which the defendant is implicated. For this reason, the Khaninitiative ought not be narrowly construed as being limited to cases wheredefendant and witness are implicated criminally in the same act. The reasoningin this decision contends for an approach more nearly resembling that of

131Sholl J in McNee v Kay (1953),

In Queensland the term "accomplice" contained in s.632 of the Criminal132 133Code Act, 1899, has been construed by Philp J in Srieesby (1951) in a

broad sense. In his view it was intended "to be applied as common sensedirects/' In this case he considered that two boys whom the Crown alleged hadbeen the subject of indecent dealings by the defendant under s.210 of the Code(he was o charged) were possible accomplices for the purposes of the rule,though incapable of complicity under s.210 because they were under 14. Rather,they could (if the allegations were true) be regarded as having been accomplicesin indecent practices between males under s.211. In other words, it wassufficient (on this occasion) that the alleged accomplice was criminallyimplicated in the actus reus of the crime charged, thoxigh he of necessity

Vcould only be responsible for a different offence.

(6) Persons Who May Not be Called by the CrownThe Crown may call as witness against the defendant any compellable person,

but not of course his co-defendants (i.e., persons who are tried jointly withhim. Such witnesses may include accomplices to the crime charged, or they may

1 54be alleged to have participated in a cognate crime.In Davies v DPP(1954) UjOrdSimonds contemplated that Crown witnesses to whom the rule would need to beapplied would include accomplices who have confessed to the crime, pleadedguilty to it or who have been convicted of it - but among them would also be

135numbered those who may never have confessed, been arraigned or put on trial,136Subsequently in Pipe (1966) the English Court of Criminal Appeal considered

it to be "wholly irregular" for the prosecution to call an accomplice who has been charged, either jointly in the indictment with the defendant against whom he testifies, or in the indictment though not in a joint charge, or indeed to

131. [1953] VLR 520 at 530.132. which imposes a statutory obligation upon the trial judge to tell the

jury not to give credit to accomplice testimony which is not corroborated.133. [].951 ] 45 QJPH 6? at 65,134. [1954] AC 378.135. Id. at 402.136. (1966) 51 Crim App R 17.

4 1 2

call one who has merely been charged, though an indictment has not been broughtagainst him. The court considered that such a person, if it is proposed to callhim at the trial, ought as a matter of practice be omitted from the indictment;or his plea of Guilty ought be taken on arraignment or before calling him; orthe prosecution ought to offer no evidence against him and thereby procure hisacquittal; or a nolle prosequi ought be entered in respect of him. The ruleof practice precluding the calling of a man against whom proceedings have been

137instigated and which are pending was said to have been followed for '‘years”In this case the witness in question was to be tried (separately) on thefollowing day for the offence charged against the defendant in whose trial hehad testified. If it had been impractical to follow one of the specifiedcourses so quickly, the prosecution ought to "have let it be known that in noevent would proceedings be continued against him1,' Breach of this "well-

138recognised rule of practice” meant that the conviction must be quashed.

(7) Is a Witness's Testimony Adverse?139The English Court of Criminal Appeal has laid down in Stannard (1962)

tests for determining whether a witness has given evidence against thedefendant (i.e., of an inculpatory nature): "(a) has the evidence or any partof it been adverse in a material respect to the case which the (defendant) ismaintaining - viz : has it undermined his defence or tended to establish orsupport the prosecution case? - or (b) has evidence been given with an intention

140or object of saying anything so adverse?”

(8) Aspects of CorroborationIt is not proposed to deal with the general subject of what may constitute

corroboration in the law of evidence. This topic is important to other areas apart from accomplice testimony, such as the rule that the testimony ofcomplainants in sexual cases should preferably be confirmed, and is fully dealt

1 3 7 . I d . a t 2 0 - 2 1 .138. Ld. at 21. Tn the earlier case of Smith (1924) 18 Crim App R 19 the same

court was not emphatic that an accomplice who pleads guilty ought firstly be sentenced before he gives evidence for the Crown - but "it is obvious where he is not sentenced it is more than ever necessary to warn the jury about, accepting his testimony, because obviously his object is to mitigate his own punishment": id. at 20.

139. | .1 9 1 6 l 2 KB 658.140. I d . at 86. Stannard was approved on this point in Murdoch v Taylor [1965]

AC 574 at 589 (Lord Donovan), though in the different context of applying s.l(f)(iii) of the Evidence Act, 1898 (UK); similarly, see the decision of the English Court of Appeal in Davis [l975] 1 All ER 233 at 235-6.

See also Te Whiu [1965)2n ZLR 420 at 424.

4-15

with in the standard texts. Several aspects of corroboration of particular(or exclusive) relevance to accomplices are noted, however - the need for the corroboration to be independent of the witness, the inability of one accomplice to corroborate another, and the capacity of the wife of an accomplice to corroborate him or his fellow accomplice.

(a) The Corroboration Must be IndependentIt is universally recognised in the law of evidence that a person whose

evidence is required to be confirmed cannot corroborate himself, viz , thecorroboration must come from an extraneous source.

143Baskerville (1916)

142 This was confirmed inthough the same court (i.e., the English Court of Criminal

144Appeal) had asserted otherwise in the earlier case of Wilson (1911) where itwas claimed that "confirmation does not mean that there should be independentevidence of what the accomplice relates otherwise his testimony would be

145unnecessary," This is not of course so, for the confirmation does not needto be in respect of all of the facts sworn by the accomplice, but only inmaterial respects, i.e., for corroboration there must be some independentevidence that the crime was committed and that the defendant was a participant

146in it Baskerville's requirement of independence has of course been confirmed147 148subsequently in England and in the Australian and New Zealand jurisdictions.

(b) One Accomplice Cannot Corroborate AnotherThe principle that one accomplice to the crime cannot corroborate the

testimony of another for the purposes of the warning is well-established. This is for the obvious reason that the same possible dangers which arise in relation to the testimony of one accomplice will apply to another - for example, they may conspire together to do this. That they will be unanimous on such an occasion * 11

141. Cross, Evidence (4 edn, Butterworths, London, 1974) at p.l84ff; Cross, Evidence (2nd Aust. edn, Butterworths, Sydney, 1970) at p.201ff.

142. Cross, Evidence (4 edn), id., at p.135; (2nd Aust. ed), id.143. [1916] 2 KB 658.144. (1911) 6 Crim App R 125.145. Citing Maule J in Mullins (1848) 3 Cox CC 526 at 531.146. See Baskerville [.1916] 2 KB 658 at 664-5.147. E .g. Draper (1929) 21 Crim App _R 147 at 148; Lewis (1937) 26 Crim App R

11 0 at 113; .DPP v Kilboume fl 973j AC 7^9 746 (Lord Hail sham LC), 759(Lord Simon) .

148. E -9-, Butler (1953) 53 SR (N.S.W.) 328 at 334; Khan [l97l] WAR 44 at 47 (. Virtue,’ S.P.J.) , 51 (. Nevile , J ); Lewis~~[T97 j 1 NZLR 222 at 231; Ferguson [l948] NZLR 314 at 315-6 ( Christie, J ).

4 H

will strengthen the possibility that a jury may believe in them, were it not to149be instructed as to the impossibility of this mutual confirmation.

(c) Lord Simonds LC's Third Class of AccomplicesBut may a person who was an accomplice (along with the defendant) on another

occasion to a crime of the identical type as that charged against the defendant,corroborate an accomplice to this present crime who testifies against thedefendant in respect of this latter crime, where the other crime is admissiblein evidence so as to prove system and intent? That a witness who was a party toa similar crime on another occasion in this context is an accomplice within themeaning of the rule was asserted by Lord Simonds LC in Davies v DPP(1954) in his

150third class of persons subjected to the rule. But although the jury willtherefore need to be warned in this circumstance, it may be that such an "accomplice" is capable of corroborating the accomplice to the crime presently charged against the defendant. The justification for such an exception to the general rule against mutual corroboration by accomplices would be that (subject to the facts) there is less likelihood that the two witnesses will have come together so as to concoct falsehoods, than if they are both party to the crime charged. The possibility of corroboration in these terms has been hinted at in obiter comments in the recent House of Lords decision in ppp y Kilboume(1973

Kilbourne was concerned directly not with accomplices, but with the partly parallel circumstance of the sworn testimony of the young child victim of a sexual assault. In relation both to the testimony of the victim of a sexual crime, and young children who are of sufficient age to give sworn testimony, it is necessary for the trial judge to administer a warning to the jury similar to that applicable in the testimony of accomplices, i.e., that although the jury may convict upon their testimony, there is a risk in doing this unless this evidence is corroborated.^"' 30

149. See Noakes (1832) 5 C & P 326 at 328, 172 ER 996 at 997; Gay (1909) 2 Crim App R 327 at 328; Baskerville (1916) 2 KB 658 at 664; 669-DPP v Kilbourne p 975] AC 729 at 747$j0rcl Hail sham, LC) ; Howard (1921) 15 Crim App R 177 at 180; Webbe [l926j SASR 108 at 117 ( Murray CJ ); Rigney (1975) 12 SASR30 at 36 ( Bray CJ ) ; at 52 ( Jacobs J ) ; Lamb X~1975] Qd R 296 at 300; Khan [l97l] WAR 44 at 47-8; ( Virtue SPJ ); at 52 ( Nevile J ); Pollock[T973] 2 N2LR 491 at 495.

150. [1954] AC 378 at 400.1 5 1 . [ 1 9 7 3 ] AC 7 2 9 ; an d a l s o s e e DPP v Hester| 1 9 7 5 ]AC 2 9 6 .152. See for example Cross, Evidence (4 edn. Butterworths, London, 1974)

Chapter IX,‘Cross, Evidence (2nd Aust Edn., Butterworths, Sydney, 1979) at p,197ff.The House of Lords reasoned upon the basis that none of the boys, who

were aged between 9-12, were accomplices in any of the subject offences which included buggery and indecent assault - see for example Kilbourne, id. at 751 (Lord Reid) .

415

K had been convicted of several sexual offences against two groups ofboys. Several of the counts related to offences committed in 1970 againstthe first group, and the others to offences in 1971 against the second group.The House held that the boys from one class could corroborate the evidence ofboys from the other class, given the similarity in the transaction of each

153type of offence in each of 1970 and 1971. Lord Hailsham LC rejectedthe suggested analogy between the victim of a sexual crime and the accomplice for evidential purposes as "false", for of course the testimony of the victim is not in general to be impeached for the same reason as that of an accompliceT But he considered obiter that where one of two accomplices fell into Lord Simonds

154

“third class'* it may not be necessary to instruct a jury that the one is incap- •able of corroborating the other, for in this situation the possibility of aconspiracy which would result in perjury may be reduced. He did not thereforebelieve "that there is a general rule that no persons who come within thedefinition of accomplice may be mutually corroborative. It applies to those

155in the first and second of Lord Simonds L.C.'s categories and to many othercases where witnesses are not or may not be accomplices. It does not necessarilyapply to all witnesses in the same case who may deserve to be categorised as"accomplice." In particular it does not necessarily apply to accomplices ofLord Simonds L.C.'s third class, where they give independent evidence of separateincidents, and where the circumstances are such as to exclude the danger of a

156jointly fabricated story" In this type of case therefore Lord Hailshamwould require the trial judge to warn the jury; but whether or not he is totell them that two such accomplices cannot corroborate each other is within his

157discretion

On the other hand the Supreme Court of South Australia, again in obiter remarks, has indicated its preference for viewing accomplices as being generally incapable of corroborating one another, even where one of them might be drawn from Lord Simonds ' third class}~*^

153. In whose speech Lord Morris concurred: Kilbourne, id. at 752.154. See icL at 748-9 (Lord Hailsham).155. Davies v DPP [1954] Ad 379 at 400.156. DPP v Kilbourne [1973] AC 729 at 740.157. Lord Morris (id. at 752) and Lord Simon (id. at 759) agreed with Lord

Hailsham on this topic. Lord Reid was of a similar view: id. at 751.158. Rigney (1975) 12 SASR 30 at 36-7 ( Bray, CJ); 59 (Jacobs J ).

But 'ray CJ also said in this case that the evidence of an accomplicecan corroborate the testimony of a complainant in a sexual case who is not also

, . 159an accomplice,

(d) Husband and wifeThe wife of an accomplice to the crime charged against the defendant,

should she testify against the latter, is not to be regarded as an accomplice, i.e ., no warning need be given to the jury in relation to her testimony. More­over, she is capable of corroborating an accomplice other than her husband^^For that matter, she may also corroborate her husband's evidence even if he is

161an accomplice, although in Allen (1964) the English Court of Criminal Appealstressed that in such a situation, the jury will, or may need be warned to becareful in weighing her evidence.In Tripodi v R(1961) the Australian HigfcCourt remarked that in "principle it is impossible to understand why the wifeof an accomplice should be incompetent as a witness to corroborate his testimony.... It is easy Qhowever] to imagine cases in which the very circumstances ...would make it inadvisable for the jury to depend upon the wife's confirmationand it may be assumed that ... the judge will when that occurs, so advise the

,.163jury. 1 *

(9) The Formula - Must the Trial Judge Adhere t-Q it Exactly?Baskerville and Davies stipulate that the trial judge must, where accomp­

lice evidence is concerned, warn the jury that "although they may convict upon164his evidence, it is dangerous to do so unless it is corroborated," and

165corroborated, moreover, in a material respect. It has been seen that mostcourts have required the judge to define corroboration and to indicate the evidence which may constitute corroboration, where evidence of this type is available. But putting aside these applications of the warning, it is the formulation in Davies just quoted which has been accepted in the jurisdictions under discussion (excluding Queensland) as representing the model form of caution. To be effective, however, must a warning always be in precisely these terms? * 2

159. Id. at 40.160. Willis (1916) 12 Crim App R 44 at 46, per Lord Reading LCJ f disapproving

Neal (1835) 7 C & P 168;175 ER 74 ; Payne (1913) 8 Crim App R 171 (Phillimore J )• Both are decisions of the English Court of Criminal Appeal.

161. (1964) 48 Crim App R 314 at 319ff.162. (1961) 104 CLR 1.163. Id. at 9 (^Dixon, CJ Fullagar and Windeyer JJ). See also Evans (1965)

2 QB 295; Munevich [l942] 3 DLR 482.164. Davies y DPP [1954] AC 378 at 399.165. Id. at 397.

417

The courts demonstrate some divergence. In practice it might be thought that the jury could be equally well cautioned in other, but comparable terms. All that the Davies formulation does, after all, is warn the jury that they ought to exercise great care in giving credit to accomplice testimony, unless it is otherwise confirmed (i.e., in its material respects.) "Danger" is a strong word, admittedly, but then it is surely rather weakened in practice by the overriding qualification of the warning to the effect that even if there is no corroboration the jury may nonetheless convict on this testimony if they see fit}^ In England, however, the courts have preferred to see the Davis stipulation repeated exactly. In Australia the courts have tolerated some departure from the letter of the doctrine.

In the English case of Beebe (1925) 167 the Court of Criminal Appeal quasheda conviction dependent (in part at least) upon accomplice testimony on theground, inter alia, that the judge had, in warning the jury, told them merelythat "it is generally dangerous to convict on the evidence of an accomplice,"This was objectionable in leaving the jury with the impression that it may be"safe in some cases to convict upon the evidence of an accomplice without

168corroboration and, by implication, that this case" is one such. The169reasoning m Harris (1927) was similar; here the trial judge told the jury

that they must receive the accomplice's evidence "with suspicion ... J~andj ifpossible -hey should find corroboration of it" (the Court of Criminal Appeal's

l 70 171emphasis), Charavammuttu (1930) emphasizes that it is insufficient merelyto describe the witness as an accomplice - the trial judge must also warn of

172the danger of acting on his evidence m the absence of corroboration. In173Price (196Q), however, the English Court of Appeal indicated that there "is

no single formula which has to be used in regard to any warning which is to be given to juries^' and that a judge may indicate that "the degree ofdanger" may "vary considerably according to the circumstances of a particular case'4. But the direction on this occasion, in which the trial judge had spoken merely of "the particular care" with which the jury ought to approach an accomp­lice's testimony - which obviously diluted the Davies formula - was consideredto be insufficient taken in conjunction with other features of the case,174

166. See G. Williams "Corroboration-Accomplices’' [l962] Crim LR 588 at 592.167. (1925) 19 Crim App R 22.168. Id. at 26. For that matter, the trial judge would seem to have referred

to the importance of corroboration.169. (1927) 20 Crim App R 87.170. Id. at 90.171. (1930) 22 Crim App R 1.172. Id. at 4.173. (1968) 52 Crim App R 295.174. Id. at 299.

4 1 8

The Australian High Court indicated a preference for the Davies form of175warning in Tripodi (1961) but, as it has been seen, was content with a

diluted version of it in cases where there was in any event sufficient corrob­oration. The trial judge had told the jury to scrutinise the accomplice testimony "with great care", but had omitted to refer specifically to thepotential "danger'* in giving effect to it. In New South Wales the Supreme

176Court said in McKenna (1956) that it was "not necessary m every criminalcharge that the direction as to corroboration should be given in the exact

177 178terms in which it was laid down in Baskerville", In Perry (1970) thesame court quashed a conviction dependent upon accomplice testimony where thetrial judge had warned the jury to "take care" before accepting this evidence(without, however, making any reference to "danger"), but had not given them

179the formal direction as corroboration. Perry was cited approvingly by Bray180CJ in his minority judgment in the South Australian case of Rigney (1975),

In Khan (1971)^^ a decision of the West Australian court, Virtue SPJ evidently accepted a trial judge's direction in which he called for "a very careful scrutiny" of the testimony of an accomplice in the absence of corrobor­ation "because accomplices are notoriously unreliable witnesses for obviousreasons" as not having been*ineffective for a want of reference to its inherent

18?"danger," while disapproving it for other reasons," Nevile J said in Khanthat it is not necessary that the trial judge instruct the jury precisely in the terms laid down in Baskerville:'[ l]t is sufficient to give the warning in substance and to point out the essential matters involved in corroboration..." 183

In Australia, therefore, it would not appear to be necessary to refer specifically to the "danger" involved in accepting uncorroborated accomplice testimony - it is enough if the jury is told to exercise great caution.

175. (1961) 104 CLR 1 at 10.176. (1956) 73 WN (NSW) 345.177. *'. . . it is sufficient if the trial judge draws the jury's attention to

the particular state of evidence, to the necessity for corroboration, and to the essential matters involved in corroboration," id. at 346.

178. [l970] 2 NSWR 501.179. Id. at 503-5.180. (1975) 12 SASR 30 at 40.181. [1971] WAR 44.182. I_d. at 46, i c the trial judge did not give any direction as to the

meaning of corroboration, nor did he point out that it had to come from an independent source: id. at 47.

183. Id. at 51; citing Bassett [l952] VI,R 535. McKenna (1956) 73 WN (NSW) 345.

4 1 ?

(10) Effect of a Failure to WarnWhere the trial judge either omits to warn the jury in relation to accomp­

lice testimony, or where he fails adequately to so instruct them in the terms stipulated in the authorities, the defendant, if convicted, is prima facieentitled to have this conviction quashed, subject to any limitations which have

1 84been noted However, as it has been seen, the conviction may be preservedby recourse to the statutory proviso in each of these jurisdictions which wasmodelled on s.4(l) of the now repealed Criminal Appeal Act, 1907 ( UK ), s.4(l),which latter empowers the court to dismiss the appeal if satisfied that "no

185substantial miscarriage of justice has actually occurred" (Section 4(1) hasnow been replaced by the similar s.2(l) of the Criminal Appeal Act, 1968 ( UK )). In other words a guilty verdict in this situation may only be maintained by resort to a rule external to that providing for the warning. No English court since Baskerville has saved the conviction on the simple basis that there was

To this186corroboration in fact, even if the jury was not adequately cautioneddegree the rule is "peremptory", even if its breach is not in the ultimate issue

,, 187 incurable»

The courts in England, in certain of the Australian States, and in New Zealand, have generally accepted that the proviso may only be invoked if the situation is such that "a reasonable jury, after having been properly directed, would, on the evidence properly admissible, without doubt convict": Farid(1945) 188

The proviso was applied in English corroboration cases in addition to189that of Farid? for example Medcraft (1931) and Stone (1970) (where the Court

of Appeal said that "it is impossible to think that a jury on a proper direction * 2

184. For example, the trial judge may have told the jury to disregard the accomplice testimony.

That the conviction must be quashed is confirmed in Baskerville (1916)2 KB 658 at 665,

185. Though unlike s.4(l), the new s.2(i) of the Criminal Appeal Act, 1968, which refers simply to "miscarriage" of justice rather than to "substantive miscarriage." The distinction would not seem to be of legal significance. 253.

186. An example of this earlier approach is found in Kirkham (1909) 2 Crim App R /187. Davies v DPP [1954] AC 378 at 398.188. (1945) 30 Crim App R 168 at 1 J6(a decision of the English Court of Criminal

Appeal, which upheld a conviction in spite of a lack of corroboration of vital accomplice testimony. The court cited the House of Lords decisionin Stirland v. D.P .P . fl944] AC 315 at 321 ( Viscount Simon L C ) whichdealt with the ‘ests for applying the proviso in another context. See also the antecedent decision by the Court of Criminal Appeal in Haddy [l944jK.B. 422, which was cited in Stirland .

189. (1931) 23 Crim 7\pp R 116 at 118.

420

... would not have convicted the appellant1' ). On the other hand the Court190

of Criminal Appeal refused to apply it in CjOddard (1962)192say that the jury would have been bound" to convict ).

191 ( "the court cannot

In New South Wales the Court of Criminal Appeal applied the proviso (i.e.,193in s.6 of the Court of Criminal Appeal Act, 1912 (NSW)) in Lynch (1971),

considering it relevant that defence counsel had not requested that the trialjudge put the issue to the jury of whether or not certain of the witnesses wereaccomplices, and that in fact there had been substantial corroboration of their

194testimony. The court did not specifically adopt the test approved in the195English decisions, nor did it disapprove it.

196Chief Justice Bray in the Sought Australian case of Rigney (1975) accepted the English test: "On the whole I cannot come to the conclusion thata reasonable jury would not have been convicted" (i.e., if told of the possibilitythat the witnesses were accomplices).'197 The same is true of Virtue, S.P.J. in

198his opinion in the Western Australian decision of Khan (1971).In New Z e a la n d t h e C o u r t o f A p p e a l Isas r e s o r t e d t o t h e sam e g e n e r a l

199 I n a tt e s t , i n d e c i d i n g w h e t h e r o r n o t th e p r o v i s o o u g h t t o b e a p p l i e d ,200l e a s t o n e o f t h e r e p o r t e d c a ^ o s t h e c o u r t h a s a p p l i e d i t , th o u g h i n th e

201m a j o r i t y o f r e p o r t e d c a s e s i t h a s d e c l i n e d to do t h i s , . R e l e v a n t m a t t e r sa f f e c t i n g t h e d e t e r m i n a t i o n o f a p p l i c a t i o n s f o r i t s i n v o c a t i o n h a v e i n c l u d e d190.191.192.193.194.195.

196.197.198.

199.

200. 201 ,

[1970] 1 WLR 1112.[1962] 3 All ER 582.Id. at 586.[1971] 2 NSWLR 136.Id., at 142.Another New South Wales decision of relevance is Simpson (1922) 39 WN ( NSW ) 259.(1975) 12 SASR 30.I d , at 42. his remarks were ,however, obiter. A nd see Jacquier(1979) 2 0 SASR 5 4 3 at 553 (Walters and Wells JJ).[l97l] WAR 44 at 50. See also 48, and see 53 (Nevile J ); 55(Burt J ) . See s. 689(1) of the W.A. Criminal Code for the proviso.for example, ivicAj.1 is ter |19 52] NZLR 443 at 447? McDonald ]i955j NZLR 6995 Cottle |i95B' NZLR 999? Te Whin H 965I NZLR 4 2 0 at 4 2 4 ?L Edwards f 1973]NZLR 402 at 404*Te W h iu , id, at, 424 •S e e M c A l i s t e r Q952] NZLR 443 a t 4 4 7 ; M cD onald |1955j NZLR 699 a t 7 0 0 ; C ot t l e p95E] ‘rtZLR 999 a t 1 0 0 b ( G r e s s o n I ) , 1 0 2 3 ( N o r t h j ) , 1 0 3 0 ( C le a r y J ) ; Hicks [1970] NZLR 0 65 a t 8 6 6 ; P o l l o c k jl9731 NZLR 491 a t 495? E dw ardo [1975] 'NZLR 4OS a t 404.

4?1consideration of whether or not there was in fact corroboration of the

202alleged accomplice’s testimony - in one case it was applied because therewas an ’‘abundance of strong corroboration,” and that the proof of guilt was

203in any event "overwhelming;” or that the Crown case rested "substantially”on the jury accepting the evidence of the alleged accomplice(s).“ f In anothercase the court refused to apply it , where the trial judge had said, in summingup, that there was no corroboration of the commission of the crimeas alleged (even as , in the Court of Appeal’s view, there possibly had

20 Sbeen evidence capable of amounting to corroboration).The Victorias Supreme Court has confirmed that an inadequate warning

(or a failure to warn) involves that the conviction must be quashed, subject only to invocation of the proviso(i,e., in s.568(1) of the Crimes Act,1958(Vic,)), but the test (or tests) governing its application differ. The

2 Ot)Victorian approach is exemplified in Teitler(1959) where it wa3 providedthat the conviction must be quashed (pursuant to the proviso) "unless therewas, apart from the evidence of the accomplice, substantial evidence implicatingthe applicant upon which the jury could properly have convicted,,, even if they

207had disregarded the evidence of the accomplice,”This formula will frequently differ very little from the English test in

practice, for it is difficult to see how an appellate court could conclude that no reasonable jury could fail to have convicted if it had been properly directed, where there is not substantial corroboration in fact. For all of this, the Victorian courts have viewed their test as being the more liberal to the defendant.

Overall, factors which have been seen as being important outside of theformal tests governing resort to the proviso include the fact that there has

209indeed been substantial corroboration of the accomplice testimony, or on theother hand, that "the accomplice testimony was vital,” being perhaps the only

210direct link between the defendant and the crime charged. The English Court

202. Go ttle, id. at 1023 (north J , 1030(Cleary j), Pollock, id.203 . Te Whiu |~1965] NZLR 420 at 424 .2 0 4. Hicks ji970j NZiTR 865 at 8 6 6.205. McAllister 11932] iiZLR 443 at 446.206. jj9 5 9 j VR 321.

207. Id. at 330, per Lowe and O ’Bryan JJ, .who in effect disapproved the earlier decision of the same court in Basseti1952 j VLR 535 at 538, on this point. See also MicNee v Kayj1953]VLB 520 at 526(Sholl J).Teitler has been applied subsequent!;/ in Fuhrer[1961 *|VR 500 at _506 (O'Bryan J), 508 (Shell J), and ^10 (Smith T); and in Anthony [1962]VR 440 at 444 .

208. For example, foitler pi 959JVR 321 at 330 (Lowe and 0 ’Bryan JJ).209. Obviously this is the vital factor in Victoria, being the formal test; but

it will inevitably be significant elsewhere; for example, Lynch I19 7 1]2 K5WLR 1 3 6 at 142; Te vVhiu |~1965J iiZLR 420 at 4 2 4. ' ----

210. Co ttle |1958] IIZLR 999 at 1023.

422

of Criminal Appeal said in Farid (1945) ' that the proviso was not to be.21 2applied lightly. In Edwards (1975) the New Zealand Court of Appeal said

that "the use of the proviso on these occasions should be regarded as '213exceptional."

(11) Queensland - a statutory modificationIn Queensland it is not merely mandatory that a warning be given in respect

of an accomplice's evidence, but it is likewise mandatory that this accomplice214be corroborated, pursuant to s.632 of the Criminal Code Act, 1899, A failure

21 5to so instruct the jury cannot, it appears, be cured, Apart from this aspectof the statutory rule, the Queensland courts have indicated that the common law authorities are to be considered in its construction even if not all of them are to be followed; for example, in defining the concepts of accomplice and corrobor­ation contained in it. So it has been held that 'accomplice' includes personswho are participants not only in the crime charged but in certain cognate

216o f f e n c e s * 4" or that the concept includes the defendant's co-defendant who gives21 7evidence on his own behalf. And it has been held that one accomplice cannot

corroborate another/' *

(12) Applicability of the rule to conspiracy trialsThe rule is of course equally applicable to accomplices in a conspiracy, as

219it is to those implicated m a substantive crime,

(13) Extended applications of the rule220Lord Simonds LC in Davies (1954) ' approved, so it has been seen, the

application of the rule to receivers testifying against the thief from whom they * 21

211

211- (1945) 30 Crim App R 168 at 181.212. [1975] 1 NZLR 402.213. Id. at 404.214* I.e. "A person cannot be convicted of an offence on the uncorroborated

testimony of an accomplice or accomplices."21 5 • Lawlor [l930] QJPR 149; Cunningham [l9 30] QJPR 151.2 1 6 . PhiIp J in Sneesby [l95l] 45 QJPR 61.217. Allen [1973] Qd R 395.218. Lamb [1975] Qd R 296 (a decision of the Court of Criminal Appeal).219- Prater (I9 60) 44 Crim. App. R

Qlamirea, T r a n - p o r . i i c j i sBassett |_ 19 5 2 J VJJt 535.

• Stannard (1962)48 Crim App R 81;[19 6 3] 47 C r i m App R 2-72; Reeve (19 7) 17And see Forgione [l969] SASR 248.

SR (N SW ) 81 ;

[1954] AC220. 378 at 400.

had obtained stolen property even where they were not participes criminis.in the221theft and to witnesses who were participants in a crime committed by the

defendant on another occasion which is of the same type as that charged against222the defendant and which is admissible in evidence as proving system and intent.In his terms these parties are ''accomplices'' within the meaning of the rule, so that formally it need not be extended to embrace them, though this is in fact what is being done, if "accomplice” is given its common law meaning.

The rule has likewise been held to be applicable (or stated to be potentially applicable) to persons charged with cognate crimes (i.e., crimes arising in the

225same overall transaction) in certain of the jurisdictions, and to co-defendants22 4giving evic nee on their own behalf. But it is applicable to witnesses whothough not demonstrated to be participants in any crime, are nonetheless suspectin possibly having a motive of their own to serve which may conduce to falsetestimony? In such a circumstance it is evidently within the discretion of thetrial judge to caution the jury, but it is not compulsory for him to do this.

225Accordingly, he may dilute the warning found in Davies »

The testimony of certain other types of witnesses is of course subject toa comparable warning, such asv for example complainants in sexual cases, and young, 226children.

(C) - CONCLUSIONShould the trial judge be required to caution a jury in relation to accomp­

lice testimony? If so, what should the terms of this warning be, and what consequences ought to follow an ineffective warning, or a failure to warn? These issues are of course related. * 2

221 . See Jennings (1912) 7 Crim App R 242; Norris (1916) 12 Crim App R 156; McDonald (1955) NZLR 699.

. egfFletcher v Castrisios |]959]Ta3 SR 3 at 8(Crawford J );IJalligan jl973] 2 NZLR 158 (CA).And see DPP y Kilbourne [l973] AC 729 at 748 ( Lord Hail sham LC ).

223 . See p. 408ff. above.2 24 . See p . 4 04 f • a bov 0 .225 . Prater (I960' 44 Crim App R 83 at 86; but see Stannard (1962) 48 Crim App

R. 81 at 91 rDPP v Kilbourne 1973 AC 729 at 748 (bord~Hailshain LC)j Whittaker(1976)65 Crim App R 193$ Forgione [l969] SASR 248 at 254.

226 . Cross, Evidence (4 edn., Butterworths, London, 1974), Chapter IX; CrossEvidence (2nd Aust. edn., Butterworths, Sydney, 1979), at p.l97ff.

That a jury will need to be cautioned in relation to the accomplice.witnesswill frequently be the case - perhaps on the considerable majority of occasions.The importance of this warning will, however, be contingent upon the reliabilityof the witness - whether or not he is by nature untruthful, for example, orwhether he has a strong motive for fabrication - and upon the significance of hisevidence. The risk or danger in giving credit to his testimony will, that is,differ substantially from one case to the next. tod it is because of theseconsiderations that it will occasionally happen that there is little need towarn a jury, and indeed, the warning may unreasonably favour the defendant incasting doubt upon testimony which is deserving of credit as well as being vital227to conviction^ It is doubtless because of considerations like these thatthe American Law Institute's Model Penal Code omits any requirement that acaution be administered in this circumstance. The English Criminal LawCommittee was of the view that whether or not a warning ought to be given should

228be left to the discretion of the judge.

But to implement the latter policy would perhaps involve onerous reviewsof the record by the appellate courts; and this problem may well be compounded;229by a proliferation of appeals. As well the presumed advantages of an omissionto warn, i.e., the preservation of a witness's credit where this is considered desirable, may be lost nonetheless, for a jury may still deprecate his evidence when it becomes apparent that he is a party either to the crime charged or to a cognate crime. The rule is after all, no more than a rationalisation of what many juries would otherwise do even though uninstructed, i.e., regard an accom­plice's evidence with scepticism and look for other proof of the defendant's implication in the crime charged.

A third policy suggests itself, providing a position intermediate between the present rule and that suggested by the English Criminal Law Revision Committee. This is that the trial judge ought to caution the jury in relation to an accom­plice-witness, and specify the desirability of corroboration, but he should then

227. For example, where the defendant is charged with a sale in contravention of Sunday Observance legislation, or with owning premises used for prostitution. There will be little incentive for the person who utilises these services to perjure himself.

228. llt.h Report on Evidence (General) 1972 Cmnd. 4991, paras. 183-5. This view is endorsed in Heydon, "The Corroboration of Accomplices'' (1973) Crim, L.R.264 at 281. And see Williams, "Corroboration-Accomplices" [l962] Crim,L.R. 588.

229. See Bray CJ's remarks in Rigney (1975) 12 SASR 50 in a slightly different context.

qualify this caution by explaining the reasons why accomplice testimony generallyneeds to be received with care, and further indicate to them why, if at all, thetestimony of the individual witness whom they have heard may need to be evaluated

2 50 .with particular circumspection, So if, for example, the implication of thewitness in the offence charged does not impute dishonesty on his part, or does

231not give him any substantive motive to shift responsibility onto the defendant the credit of his testimony is not seriously prejudiced. On the other hand (from the standpoints of mitigating the danger that he may be believed where his test­imony does not deserve to be taken at face value, and of reducing the incidence of otherwise unwarranted appeals) the advantages of the rule in its present form are preserved. Such an extension to the present warning would mean that the trial judge would have imposed upon him the responsibility of tentatively deciding a further preliminary question of fact, i.e., whether a given witness may be an accomplice, and what items of evidence, if any, may corroborate the witness.

Such a qualification of the warning, (i.e., so as to focus specific attention upon any factors which may conduce to false testimony) would probably mean that it need not always be put to the jury in terms as emphatic as those approved by the House of Lords in Davies, viz , that it is ’dangerous' to act upon the uncorroborated testimony of an accomplice. It ought be sufficient that the jury has in substance been instructed that they ought to scrutinise accomplice testimony with a greater or lesser degree of caution (depending upon the circum­stances) , and that corroboration will be desirable (if there are reasons for suspecting the testimony).

Finally, there seems to be no justification for confining the administr­ation of the warning to the evidence of accomplices in the very crime charged.For the reasons noted, the testimony of a person implicated in a cognate crime, or indeed any person with a tangible motive to swear falsely, ought to attract the warning.

230. See for example the English Court of Appeal decision in Price (1968) 52 Crim App R 295 at 299 where it was stated that it is open to the judge “to indicate in his summing up that the degree of danger and risk in relying upon an accomplice's evidence may ... vary considerably according to the circumstances of the particular case" ( Sachs J ). And see McNee v Kay (1953) VLR 520 at 524 where Sholl, J. remarked that in his opinion the trial judge “may also ... remind the jury that the weight and proper effect of the warning depends upon the extent to which, in the particular case, they think u c they do think) that the possible consequences to the witness may have tempted him to exaggerate or fabricate his evidence, and that their task is still (as always) to make a sensible and reasonable decision upon all relevant questions of fact having regard to the onus and standard of proof which the law prescribes."

231. See Footnote 2?'] above.

426

(II) THE CO-CONSPIRATOR’S RULE OF EVIDENCE (A) PRELIMINARY COMMENTS

The co-conspirator's rule of evidence may be invoked during the trial either of conspiracy or of a substantive crime which, it is alleged, has been jointly perpetrated by two or more people who have concerted together for its commission. In either case,therefore, the prosecution is alleging that the defendant or defendants have conspired with one another (or with others not concurrently charged) for an illegal purpose, though it is only in the first of these situations that the prosecution is seeking to incriminate the defendant in conspiracy per se. The rule has been called the co-conspirator's ruleas a matter of convenience, doubtless because it is invariably invoked in the context of conspiracy trials. On the other hand (as indicated) it may be invoked during the trial of a person who is alleged to have jointly committed a substan­tive crime, whether as principal or as accessory, where it is a part of the prosecution case that this crime has been committed in pursuance of a conspiracy(or preconcert ). Not all cases of secondary participation involve that the

2accessory was in concert with the principal offendery " in which circumstance of course the rule will be inapplicable.

The rule has been enunciated mainly in decisions dealing with the trial of the offence of conspiracy. Its operation has attracted controversy in this context for reasons to be noted shortly. The rule provides for the admission of evidence which would (in part at least) otherwise be excluded by the rule against hearsay, and as such it is probably to be regarded as an independent exception to the hearsay rule. It provides that the words, gestures or other acts of a conspirator said or done in the furtherance of this conspiracy and during its currency, may be admitted against each and every other co-conspirator during his trial provided that a foundation has firstly been laid for this reception. A foundation is laid when independent evidence is adduced establishing that there is a conspiracy and that the co-conspirator against whom it is desired to have this evidence received, is implicated in this conspiracy. This evidence will not have been given by the party whose words or acts are sought to be admitted in evidence, for otherwise no issue of hearsay would arise.

Before stating the terms of the rule in more detail, brief comments will be made about its operation in the two distinct contexts referred to:

This rule is >. r.. fully discussed by m* (Law Look Co., Jydnny, , Chap ,12,Con. ;p iracy Tr : a 1:f' (19 $ 0) 4 ALJ 24 7; Le (1994 N‘ 92 jvdch L Rev 1199.

in The I,aw o f C ri ri, i nal Con spirac:/ Joe also dolman, "Jvidonee in /ie , !ihearsay and Conspiracy",

2 3 3 * The ord "sub /. tantive" in. used as a matter of convenience. uf co .rse, the rule ;yh; elso be invoked dating the trial of a charge of joint participation in an inchoate offence o ' her than conspiracy,s u e n a s incite

2 34 . Jee up . 6~9,1 - 3f f .

nont

(1) Applying the Rule During the Conspiracy TrialThe rule has proven controversial in conspiracy trial for various inter­

related reasons. To begin with, it is to be noted that most conspiracies are prosecuted in the aftermath of the commission of the substantive criminal or fraudulent acts comprehended by the. Few unconsummated conspiracies come to be prosecuted for the simple reason that they are unlikely to be detected, consisting as they do of no more than an illegal consensus. And in turn manyof these conspiracies correspond with schemes which are factually very complex, comprehending as they do a plurality of differing illegal acts and involving avariety of participants, whose roles may differ markedly, and which may extend

236over several years. The operation of a rule of evidence which makes admissibleeverything said or done by all of the participants in the transaction of this

237scheme obviously has the potential to generate a huge volume of evidence’ which. . 238may m itself ’'obfuscate the jury," Accordingly, the expectation that the

latter will readily discriminate innocent and guilty defendants is jeopardised.For given the fulfilment of what, it will be seen, is a merely nominal require­ment of foundation, each defendant will have admitted against him all of the alleged acts and doings of each and every one of the persons allegedly participant in the scheme, and which in 1 he aggregate define a wide-ranging conspiracy. Thejury may tend to view all of the defendants on the same basis, and to convict

239(or acquit) them as a group.

This problem is aggravated by the extremely lax concept of agreement under­pinning conspiracy doctrine, whereby a defendant only slightly connected to an extensive illegal scheme may be regarded as having been privy to the whole of it,

235 . But see e.g., King [1966] Crim L R. 280; Banks (1873) 12 Cox CC 393; Hancock(No. 7) (1975) 6 WWR 225, 32 CRNS 112 (B.C. Prov. Ct.), aff'd on othergrounds (1976) 5 WWR 609 (BCCA).

236. E «9« f Hammers ley (1958) 42 Crim App R 207; Meyrick (1929) 21 Crim App R 94; Williams [1964] Crim L R 666.

2 3 7 . See e.g., Davey (1960) 45 Crim.App.R. 11, where the trial lasted 42 days, and involved 110 witnesses and 483 exhibits. The Court of Criminal Appeal, however, disapproved the count (one for conspiracy to defraud) as being too general.

232. Gunn (1930) 30 SR NSW 33b at 345 ( Street CJ ); Partridge (1930)30 SR (NSWj 410.

2-39 . Partridge, id. , Newbury (1932) 23 Crim App R 105; Griffiths (1965) 49 Crim App R 279.

4?s

as if his role was one of initiation and control. Indeed, even if the testsof agreement were to be more exacting, there may be little incentive for the jury-to discriminate the minor and major conspirators, given that both will be indictedin the one common count for a conspiracy which may not be fully particularised(i.e., in terms of the overt acts which will be sought to be proved so as to

241establish the conspiracy).

(2) the Rule 1° the r*Vial fd 'Joint. Substantive CrimeThe above difficulties which are encountered in the conspiracy context

reflect in large part the inherently formless character of the crime of conspiracy. In contrast, each of the substantive offences is more certain in definition and more narrow in scope, so that there are fewer issues of fact to be considered, and the evidence is less voluminous than is the case with many conspiracy trials. The result is that the jury's task is more clearly defined; in particular, the jury is less likely to be perplexed by the range of factual issues and the quantity of evidence.

The volume of evidence admissible against the alleged substantive offender may also W ’ (vntrnrtcd vis-a-vis the conspiracy situation by virtue of a more technical consideration. The? High Court of Australia has emphasised in Tripodi

242(1961) that m respect of the trial of substantive crimes allegedly based upon preconcert, the requirement of foundation governing the operation of the co-consp­irator's rule is more rigorous than it is in the trial of conspiracy. This remark is amplified below.

The invocation of the co-cons£)irator' s rule in the trial of substantivecrimes which have allegedly been committed by persons while in concert has been

?A 7)illustrated m numerous reported cases, * 45

24Cl See r ^yrick (1929) 21 Grim App R 94; Griffiths, id. (which expresses asweej ing conception of the scope of the conspiratorial agreement, notwith­standing the success of the appeals on this occasion) .

241* For the English courts’ views on the particularisation of conspiracy see for example Hammersley (1958) 42 Crim App R 207; Addis (1964) 49 Crim App R 95; but contrast the view of the Australian High Court in Weaver (1931)

45 CLR 321 at 333 (Gavan Duffy, Starke and McTiernan, JJ ) and 351(Evatt J ) . And see generally Partridge (1930) 30 SR (NSW) 410.

242. Id. at 6.243- Stansfield (1831) 1 Lew 118, 168 ER 982; Lacey (1848) 3 Cox CC 517 at 521;

Jessop (1877) 16 Cox CC 204; Banks (1873) 12 Cox CC 393; Chappie (1892) .17Cox CC 455; Charles (1891) 17 Cox CC 499; Conroy [l954] Crim LR 141;Bennett (1935) 36 SR (N.S.W.) 329; Tripodi y R (196I) 104 CIR 1,

429

In the following paragraphs the terms of the rule are outlined in further detail. As it happens, most of the reported decisions enunciating its terms are conspiracy cases and it will therefore be convenient in the main to use the language of ''conspiracy'* rather than "preconcert" One or two of these comments will be directed specifically to the operation of the rule during the trial of conspiracy, rather than to the trial of joint substantive crime. As noted above, the very different factual context encountered in some conspiracy trials involves that resort to the rule has consequences which will not otherwise arise in the more straightforward trial of one or a few joint substantive offences.

(B) THE RULE ANALYSED(1) Rationale

From the earliest it has been recognised that prima facie the co-conspir­ator's rule operates in a way either not sanctioned, or at least not fully

244sanctioned, if at all, by the hearsay rule.^ f Accordingly some explanations of the general basis of the rule have proceeded in terms of the general exceptions to the hearsay rule. According to one of these the declarations of a co-consp- irator uttered during its course, are admissible against the defendant as being part of the res gestae. Butvit is likely that the res gestae principle is insufficiently broad as to underwrite the rule in the whole of its ambit of operation.

Another, perhaps more common justification has been that of imputed agency;in the words of the Australian High Court, 'j i] t must be remembered that the basalreason for admitting the evidence of the acts or words of one £co-conspiratorJagainst the other is that the combination or preconcert to commit the crime isconsidered as implying an authority to each to act or speak in furtherance of

2A5the common purpose on behalf of the others." In other words, the defendanton trial for conspiracy is deemed to be the principal of his co-conspirator246(whose words and acts are sought to be received against the defendant). But &

244 . See Hardy (1794) 24 St Tr 200 at 474 (Lord Eyre CJ ); Brandreth(18.17) 32 St Tr 755 at 857 (Richard, C.B.); Shellard (1840) 9 Car.& P 277, 173 ER 834.

245. Tripodi y R (1961) 104 CLR 1 at 6 ( Dixon C J , Fullagar and Windeyer jj )246. See also Stone (1796) 6 TR 528, 101 ER 684 at 684-5 (Lawrence, J);

Brandreth (1817) 32 How St Tr 755 at 857 (Richard CB ); Lacey (1848) 3 Cox CC 517 at 525 (Williams J ). And see Levie^ "Hearsay and Conspiracy" (1954) 52 Mich. L. Revll59 at 1163.

4-50

this explanation is difficult, to reconcile with the conventional notion, thatthe concept of agency has only a limited application in the criminal context.In the words of one commentator, a defendant is not in general criminallyresponsible for '‘the acts or declarations of others, unless they have been

„247expressly directed, or assented to by him .

Perhaps the best view of the rationale has been expressed by an American commentator in relation to the trial of conspiracy specifically: '’the truereason, aside from the brute history, for admitting such evidence is the very

^4. 3great probative need for it,1' Most conspiracies which come to be indictedhave been consummated, it has been noted, and the prosecutor will usually seek to prove the agreement, its terms and its parties circumstantially, viz , by proof of the declarations and other overt acts done in the transaction of the conspiracy. (These are not of course a part of the crime itself .) As it will rarely happen that there will be direct evidence of the formation of the agree­ment, proof of these sayings and doings will be crucial to the prosecution case. If it is unable to bring them home against a given conspirator the crime will frequently be unable to be proven.

In this way the basis gf the co-conspirator's rule is to be accounted for in terms of the peculiar nature of the crime of conspiracy itself. Its statement by the courts over the years may have been incidentally conditioned - in earlier times at least ~ by a judicial keenness to justify the reception of this type of evidence according to the generally recognised exceptions to the hearsay rule, but as it is now to be viewed it is treated inyariably as being an independent exception to the hearsay rule

247- Phipson on Evidence, (llt.h edn, Sweet & Maxwell, London, 1970) para. 243.This statement needs to be qualified, perhaps, where the doctrine of vicai ious liability is concerned.

248- Levie, "Hearsay and Conspiracy" [l954] Mich 1159 at 1164.249- For a statement of the probative necessity of the rule, see Hardy (1794) 24

St Tr 199 at 452 (per Buller, J .). Earlier cases in which the legitimacy of the rule was apparently accepted as being compelled by considerations of probative convenience (or at least, where there was no felt need to justify it in terms of the traditional hearsay exceptions) include Salter (1804) 5 Esp.125, 170 ER 760; Watson (1817) 2 Stark 116,171 ER 591. Cases during the last 100 years in the jurisdictions under discussion disclose little inclination by the courts or defence counsel to argue the basis of the rule. Contention has been confined to the question of its ambit.

4'51

(2) The FoundationA foundation for the reception of a co-conspirator's words or acts against

the defendant is to be laid by the adducing of independent evidence of (1) the existence of a conspiracy and (2) the defendant's implication in that conspiracy. The most obvious independent evidence will be that of his own words and acts.

The evidence establishing the foundation may be postponed until after the evidence of the co-conspirator's doincp is received. In theory, the latter is admitted on a provisional basis only, subject to an undertaking by the prosecution eventually to lay a foundation and the fulfilment of this promise. Practical considerations though frequently make it impossible to proceed in the neatchronological order of firstly laying the foundation and only then receiving the

?h0evidence thereby admissible under the rule. ” Of course, a real problem may emerge when this course is taken; once the evidence has been admitted, and a foundation is not eventually established, it will be formally struck from the record - but will it so readily be excised from the minds of the jurors? This problem is especially marked in the trial of conspiracy; for the foundation may have been uccessfully established in relation to some, but not all co-defendants. The totality of the evidence as to the co-conspirator's doings therefore will need to be continually borne''in mind by the jurors, and to distinguish effectively that part of the evidence which is applicable to a given individual defendant and to give effect to it in relation to him alone may be a perplexing exercise.

The burden of proving a foundation is of course upon the prosecution; inpractice, however, the standard of proof is apparently undemanding, so that therequirement of foundation itself is an ineffective limitation on the admissionof evidence as to the co-conspirator's doings. It may even be that "very slight"251evidence will suffice to raise the foundation. Chief Justice Street inthe Supreme Court of New South Wales considered it enough that " [tjhe facts ofthe conspiracy ... be established prima facie at least before the acts anddeclarations of one can be used in evidence against the others"; but then he wenton to note that though this was the formal rule - in practice it "would, in most

252cases, lead to such insuperable difficulti.es that ... the rule is discarded"Often the mere suggestion that the defendant was implicated in a conspiracy overlapping with that charged is sufficient to establish the conditions for the operation of the rule. The typical reported decision reflects little anxiety on the part of the court as to the demonstration of a foundation according to any

2i0. See Holman "Evidence in Conspiracy trials" (1930) 4 ALJ 247; Krulewitch v U_._S. $46 US 440( Jackson J) (1949). And see Conroy [l954] Crim LH 141.

2^1. Brittain (1848) 3 Cox CC 76 at 78-9 (Coltman J ).2^2- Gunn (19 30) 30 SR (Mb'//) 336 at 342 Street CJ.)

45?

o r .Tstandard of proof in particular- In The Queen's Case (1820)^ 22for instance, the judges, though undertaking a general statement of the co-conspirator's rule, omitted to specify the degree of persuasiveness required of the "more particular evidence” of the defendant s own doings (by which they meant the foundation).It is only if there was "no particular proof sufficient to affect" the defendant that the evidence of the co-conspirator's doings need be excluded-

The foundational evidence, it is clear, need not confirm all of the further evidence admitted in reliance upon it. Such a conclusion is inevitable when regard is had to the informality of the court's approach to the requirement itself. Logically, if the independent evidence were as fulsome as the evidence of a co-conspirator's doings, there would be little need of the latter, except as fortification of this independent evidence. It is sufficient that thefoundational evidence confirm that there is a conspiracy (though it need not fully define its terms), and that it suggest the defendant's implication in it,

One final point is noted. It would seem that if the individual acts of several co-conspirators are such that when they are viewed collectively, no other conclusion is reasonably possible than that the defendant was united in acommon purpose with these others, then these acts may be admitted against him and the requirement of foundation (i.e., of independent evidence admissible

257against turn) discarded, ' However, this course may not be adopted m relation to the trial of substantive offences which are alleged to have been the outcome

258of a common purpose, according to the Australian High Court in Tripodi v R(1961), " In this situation, the court considered, ‘reasonable evidence of the preconcert must be ad> iced before evidence of acts or words of one of the parties in further­ance of the common purpose which constitutes or forms an element of the crime

255. (1820) 2 Brod & B 284, 129 ER 976.?54- Id.. at 310/936. And see the following, which reflect an informal view of

the foundation: Murphy (1837) 8 Car & P 297 at 302-3, 173 ER 50 2 at 505(Lord Coleridge, CJ ); Sellers(1846) 7 LT 187; Cosgrove[l948] Tas pR 99 at 106 (Morris CJ ). But see Whitaker [l914] 3 K.B. 1283.

255. Gunn (1930) 30 SR (NSW) 336 at 343 (Street ) .256. See Holman, "Evidence in Conspiracy trials” (1930) 4 ALJ 247,257- See Holman, id. at 250; Charles (1892) 17 Cox CC 499;Tripodi v R (1961) 104

CLR 1 at 6 (Dixon CJ, Fullagar and Windeyer, JJF ) .258. Id.

becomes admissible against the other or others, that is to say of course,.unless some other ground for admitting the evidence exists in a given case* These comments clearly distinguish the application of the rule to conspiracy trials and its application to tri Is of jointly committed substantive crime, though it is to be noted that the question has not subsequently been considered in a reported decision in Australia or,, apparently, elsewhere*

(3) PurtheranceA co conspirator's declarations or acts sought to be admitted pursuant to

the rule mist have been said or done in its furtherance, viz , they must?b0represent an operative act done m the transaction of the conspiracy. Addition­

ally, words spoken by way of accomp>animent to an operative act, even if not operative themselves may be admitted on res gestae principles. The Privy Council

Ahas observed that evidence of a co-conspirator's doings is admitted "on the principle that the thing done, written or spoken was something done in carrying out the conspiracy .„. The words written or spoken may be a declaration accomp­anying an act and indicating the quality of that act as being an act in the course of a conspiracy, or the words written or spoken may themselves be acts

r6l 262done in the course of the conspiracy." in Tripodl v R(1961) the Australian High Court said that the rule made admissible "evidence ... of what is done and said by the parties to the combination in furtherance of the conspiracy ..."These words or acts will usually be "directions, instructions or arrangements or

2 6}... utterances accompanying acts " in furtherance.

So a mere incidental narrative by a co-conspirator as to some past event264in the transaction of the conspiracy is not admissible under the rule. * 24

269* Tripodi v R( 19t1 ) 104 CLR 1 at 7 (Dixon CJfFullagar and Windeyer JJ).?60. See for example Hardy (1794) 24 St Tr 199 at 473ff; Stone (1796) 6TR

527 at 528, .101 HR 684 at 684-5.261. Mirza Akbar v R [ 1942’ ] ') All ER 565 at 596-1.262. (1961) 104 CLR 1.265. Id. at 6, 7, (Dixon C.J ., Fullagir and Windeyer JJ ). And see Hardy

24 St Tr 199 at 451 (Lord Eyre CJ ).264. Hardy, id. at 451 (Lord Eyre CJ); at 453 (Lord McDonald CB, who said that

"an act done ... in furtherance of the conspiracy'* is quite distinct from "the mere relation of it*); at 453 (Hotham B) ; Morse v. Royal (1806) 12 Ves Jun 355 at 361-2, 33 ER 134 at 137; Tripodi (1961) id. at 7 (Dixon CJ, Fullag&r and Windeyer JJ) ; Steward [l963] ~Crim LR 697.

4 55

454

(4) Currency

The requirement that the co-con sp irator's words or acts have been said or

done during the currency of the conspiracy or preconcert for a substantive crime

follow s in ev itab ly from the requirement of furtherance, so that the words or acts

sa id or done before or a fte r the conspiracy or preconcert (and i t i s to be

noted that a conspiracy may of course be continuous in time) are not so

admissible,. '^2

(5) Who is a conspirator for the Purposes o f the Rule?I t i s apparent that for a confederate to be deemed a co-conspirator fo r the

purpose o f the ru le , he need not have been charged along with the defendant ( i . e . , .

fo r a conspiracy involving them both, or in respect o f a jo in t substantive crime

involving them both which is based upon a common purpose). Indeed, he may never

be charged, because fo r example, he is beyond the ju r is d ic t io n , or because he i s

unknown, or dead. A long succession o f cases records the admission o f the doings? (S6o f alleged co-conspirators not tr ie d with the defendant, or not trie d at. a l l .

( I II) MISCELLANEOUS EVIDENTIAL MATTERS

(A) ADMISSIONS BY AN ACCOMPLICE CO-DEFENDANT

The out-of-court statements by an alleged or proven accomplice or co-def­

endant are not in general adm issible against a defendant (or for that m atter,

adm issible in h is favour, except in d ire c tly in so fa r as they id e n tify th e ir

maker with l i a b i l i t y rather than the defendant h im se lf) , because they constitute26?hearsay. But these statements may be adm issible against the defendant by

re so rt to one of the exceptions to the hearsay ru le ; fo r example, the co-conspir-

a to r 's ru)e (see above), or the doctrine of res g e stae . As w e ll, th is p rin cip le

involves that the t r ia l judge may not t e l l the jury that they may consider "the

concord or in te rre la t io n 1' of separate statements made by jo in t defendants:

Baynon (1960)2b8

In th is decision the New Zealand Court o f Appeal quashed the

26^. See Blake (1844) 6 QB 126 , 1 15 ER 49; Mirza Akbar v R j~194Q]z A ll ER 383?Gtxnn (1930) 30 SR (NSW) 336. Jessop (1877) 16 Cox CC 204 is to be queried on th is b a s is .

266. See Stone (1796) 6 TR 527, 10 1 ER 684; Jessop , id ; Duguid(1906) 94 LT 887; Mitchell [l964] Crim LR 29 7; Behn y R [1936] WALR 94.

267. See Cross, Evidence (4 ed Butterw orths, London, 1974) at p.449 . Cross,Evidence (2nd Aust. edn, Butterworths, Sydney, 1979) a t p.514.And see Bennett(19.55)36 j29;Tu*IeQ955) 72 WK(i4SV/) 538 at 342;Fuhrer pi961] VR 500 at”507 (per O'Bryan J ) ; a t 509 (per S h o ll , J . ) ; Annie Brown (18^6) 15 NZLR 1 8 ; Baynon [i960] NZLR 10 12 . ~

. Id. at 1016,26b

ap p e llan t's rape conviction on the ground, in ter a l i a , that the t r ia l judge had

in v ited the jury to consider that the s im ila r ity between certain passages in

th e ir respective statements to the police fo r t i f ie d the Crown case against each

o f them, i . e . , that the alleged victim to th e ir knowledge had not consented.2 fjQOn the other hand the Privy Council held in Mawaz Khan v R (1967) " that the

out-o f-cou rt statement by each of two co-defendants could be admitted against

the other i f i t was sought to prove the f a ls i t y o f the matters contained in i t «

The Crown had sought the admission o f those statements which set up id e n tica l

fa ls e a l ib i s , as proof o f g u ilty concert.

(B) COMPETENCE OF CONFEDERATES AS WITNESSES

As i t has been noted in re la tio n to the corroboration of accomplice

testimony an accomplice, whether or not charged or tr ie d along with the defendant,? 7 0 . ??1may t e s t i f y again st him or fo r him.

(C) PROOF OF CONSPIRACY ALONE NOT PROOF OF COMPLICITY

The prosecution case against a defendant charged with a substantive crime

may re ly upon proof o f a conspiracy ( i . e . , preconcert) between the defendant

and h is a lleged accomplices for the commission o f the subject crime, but th is

does not mean that the mere proof o f th is preconcert wid 1 s u f f ic e . Further

evidence that the crime was committed and that the defendant was im plicated in

the commission at th is time (whether as p rin cip al or accessory) is necessary.

In other words, proof o f a common purpose at an e a r l ie r time does not exclude

the p o s s ib i l i t y that the crime was committed eventually by persons not privy to

th is (or perhaps, exclude the p o s s ib i l i t y that the defendant had withdrawn from

the conspi- acy p rior to i t s commission, supposing that the other persons212o r ig in a lly p rivy to i t are responsible for i t s commission).

769. [1967J 1 AC 454.

2']0. And see Rudd (1948) 32 Crim App R 138 .

2 71 And see Rowland (1910) 3 Crim.App.R. 277, which re lie d upon the CriminalEvidence Act, 1898 ( UK )/ s . l , which is p a ra lle lle d in the other ju r is ­d iction s under discussion (see Cross, Evidence (2nd Aust. ed:n, Butterworths, Sydney, 1979) at p .3 9 6 ff.

272. Surujpaul v R [1958~|? All SR 5 0 0 (P .C .); Bennett (1935) 36 SR ( NSW ) 329,

Because of the h is to r ic a l id e n tifica t io n of the common lav/ offender

known as an accessory a fte r the fact as being indeed, an "'accessoryss, th is

category o f crim inal l ia b iL ity has usu ally been discussed in the textbooks

side by side v?ith the doctrine of crim inal com plicity. In deference to th is

custom, the topic w ill be outlined in the follow ing pages. I t should be noted

from the outset, however, that the accessory a fte r the fa c t is not im plicated

in anothei person 's crime, though h is l i a b i l i t y i s u ltim ately contingent upon

the commission of a felony by someone e ls e .

The doctrine o f accessorvship a f t e r the f a c t continues t o e x is t a t common l a win N ew S o u t h W a l e s , V i c t o r i a and S o u t h A u s t r a l i a . l t has been r e p l a c e d by s t a t u t o r y - offences o f being an accessory a fte r the fa c t in the Commonwealth Crimes A c t ,19^4

(A u s t in the A ustralian Criminal Code States (Queensland, Western A u stra lia

and Tasmania) and in New Zealand, though the provisions creating these offences

are cast in trad itio n a l common law terms.^ In England i t has been repealed in

the Criminal Law Act, 1967 (tJK), and replaced by a statu tory offence created

by s .4 ( l) o f that Act.

I t is proposed f i r s t l y to review the common law category o f accessoryship

a fte r the fa c t , following which the statu tory offences o f being an accessory

a fte r the fa c t w il l be commented upon. F in a lly the English replacement fo r

the common law doctrine w il l be outlined.

(I) ACCESSORY AFTER THE FACT

ACCESSORY AFTER THE FACT / A SSISTING AN OFFENDER

(A) INTRODUCTION

Blackstone defined the common law offender known as an accessory a fte r

the fa c t as being the person who "knowing a felony to have been committed,

re ce ive s , re lie v e s , comforts, or a s s is t s the f e l o n .........gen era lly , any

assistan ce whatever given to a fe lo n , to hinder h is being apprehended, t r ie d ,2or su fferin g punishment, m a k e s t h e a s s i s t o r an a c c e s s o r y . ” This, or very

(i) See p * . b e l o w .

(2) Commentaries on the Laws of England (1769) Book 4, p .37 .

sim ila r statements of the law,, have been endorsed by the courts on numerous 3

occasions. In p ractice ,th e doctrine has been invoked where the defendant

has acted in order to hinder the d etection , a rre st or conviction of the felon .

Authority confirms, however, that a man who a s s is t s a convicted felon to evade

punishment, as for example, by a ss is t in g him to break out o f prison prior to

the execution of sentence, may a lso be convicted as an accessory a fte r the 4fa c t . Such applications of the doctrine have apparently been rare .

I t has been expressly confirmed recen tly that the doctrine may be invoked

only in respect of felony ( i . e . , where the defendant has a ss iste d a fe lon ,5

rather than a misdemeanant ), and that the alleged accessory a fte r the fa c t6may only be tr ie d upon indictment. Once convicted, the accessory a fte r the

7fa c t i s regarded as g u ilty of felony.

But although the person who a s s is t s the felon to evade ju s t ic e i s termed

an accessory the emergence of th is usage i s , i t has been noted, an h is to r ic a l

accident, and i t ought not be permitted to obscure the fa c t that the accessory

a fte r the fa c t is not particpps crim inis in the p r in c ip a l 's o ffence. By

d e fin it io n , the accessory a fte r the f a c t 's act of assistan ce w il l always be

performed a fte r the completion of the p rin cip al fe lo n 's crime. Were th is

assistan ce to be knowingly rendered before or during th is crime, the a ss is ta n t

would be im plicated in i t as an aider or counsellor, and be punishable as i f

he had a c tu a lly committed i t h im self.

The doctrine of accessoryship a fte r the fa c t i s , de fa c to , a separate

substantive offence which comprehends the performance o f acts which obstruct

or tend to obstruct the course of ju s t ic e , a lb e it in a p a rt ic u la r context. * 70

(3) Levy [l9 12 ] 1 KB 158 at 16 0 -16 1; Sykes v DPP [ i962j AC 528 at 561 (Lord Denning) Barlow (1962) 79 WN (NSW) 756 at 757(Cross J) ; Ready [l942] VLR 85 at92 (Mann C J) .

(4) JBurridge (1735) 3 P. WMS 439, 24 ER 113 3 (helping a convicted felon to escape from custody prior to transportation ).

(5) Fie ld (1943) 29 Crim App R 15 1 ; Humphreys [l9 6 5 j 3 A ll ER 689. Curiously, the issu e of whether a person could be an accessory a fte r the fa c t to misdemeanour was treated as unresolved, as recen tly as in Bubb (1906)70 JP 14 3 at 144 (Darlinq J ).

(6) West (1962) 46 Crim App R 296.

(7) For an old example o f th is usage see the preamble in the case of Smith (1783) 1 Leach 288 at 289, 168 ER 247.

430

In these terms the doctrine is re a lly ju st one of the numerous common law

and statu to ry offences creatine l i a b i l i t y in th is f ie ld , and accessoryship

a fte r the fa c t indeed overlaps in ambit with certain of these o ffen ces. In

appropriate fact sit nations, for example, a person may be l ia b le both as an

accessory -fter the fa c t and for the substantive common 3.aw offence of8attempting to pervert (or to obstruct) the course o f ju s t ic e . But although

i t i s in p ra c tica l terms a separate o ffen ce, i t i s not a fu l ly independent

one. I t cannot, a fte r a l l , be committed unless a felony has been committed

in the f i r s t p lace. I t i s for th is reason, perhaps, that the courts have9declined to speak of accessoryship a fte r the fa c t as an "offence” although

they have more read ily recognised the accessory a fte r the fa c t as being an

offender who commits a d is t in c t type o f actus reus which in turn a ttra c ts a

l i a b i l i t y which is quite d iffe re n t in nature to that o f the p rin cip a l felon .

The doctrine is further examined under severa l headings:

(B) THE ACT

T ra d itio n a lly , the alleged accessory a fte r the fa c t has been described

in the indictment as having knowingly received , comforted, maintained and10a ss iste d the p rin cip al felon, or with having knowingly received , harboured

] 1and maintained him, or with having knowingly received, comforted, harboured,12a ss iste d and maintained the defendant, or the charge has employed some

sim ilar such expression. The precise choice o f words is not c r i t i c a l , fo r

each of these expressions has been regarded as embodying a general a lle ga tio n

against the defendant that he is g u ilty o f having a ss iste d the p rin cip al

felon in the performance of any one or more of the in f in it e ly numerous acts

which may be viewed as a ss is t in g the la t t e r to evade ju s t ic e . The ty p ica l

verbs, that i s , are not n ecessarily to be construed l i t e r a l l y , so that i f for 8 9 10 11 12

(8) For a d iscussion of th is la t te r offence see Smith and Hogan at p .7 2 2 ff .The offence is variou sly named. Another p ossib le description, o f i t i s that i t incrim inates conduct tending to pervert/obstruct the course o f ju s t ic e .

(9) An exception is found in Cockburn C J ' s remarks in Richards j 1877J 2 QBD 3 1 1 a t 3 13 .

(10) See the suggested form of indictment, in Purnell & Watson, Criminal Law of New South Wale s , Vol L (Law Book Co, Syd, 1971) at p .323 .

(11) See Levy [ 19 12 j 1 KB 158.

(12) McKenna |l96o] 1 QB 411.

439

example, a man is charged that he did "harbour and maintain" the fe lo n , he

may be convicted as an accessory a fte r the fa c t upon proof that he performed13some other act of assistan ce .

The act of assistan ce on the part of the accessory a fte r the fa c t may

indeed be a. trad itio n al one of receiving and harbouring the felon while he1 4is being sought bv the police, but i t may take v ir tu a l ly any other form,

providedthat i t a s s is t s the felon to evade iu s t ic e . Thus i t has been held

or at le a s t recognised that a person may become an accessory a fte r the fa c t

i f he commits such acts as a ss is t in g a convicted felon to escape custody15

before he i s punished^ helping a th ie f to dispose of sto len goods, such16as by buying them, or by finding a buyer for thenn ' helping a th ie f carry

o f f sto len goods at. a time subsequent to the completion o f the theft? '”18concealing evidence o f the commission o f the crime- passing on information

19to the fe on’ s wife so that she can conceal the evidence o f the crime-. * . . 20 driv in g the p rin cip a l away from the scene o f h is crime^ giving clothes to

21 2 2 a fu g it iv e feloim a lte r in g the engine number on a stolen car. or, 2 3m isleading the po lice by supporting the p r in c ip a l 's fa ls e a l ib i . As w ell,

relevant advice to the prinqipal may con stitu te the adviser an accessory

a fte r the fa c t , as for example, where the la t te r advises the prin cip al to f le e

(13) See Levy [_1 91 2j 1 KB 150.

(14) See, e.g., Richards [l877j 2 QBD 3 1 1 ; I-Iurley [l967j VR 526.

(15) Bur ridge (1735) 3 P.Wms 439^4 tlR 1 1 33*

(16) B u tte r fie ld ( .184 3) 1 Cox CC 39; Poole j_1959j Grim LR 45; Phelan j~1964j Grim LR 468; Brown [1965] Grim LR 108; Kemp [1968] Grim LR'Ti " (convictions were quashed because of the prosecu tion 's fa ilu re to prove

mens rea in the la t te r three cases ).

(13 14 15 16 1 7 * 19 20 21 22 *) King (1817) Russ & Ry 332, 168 ER 830.

d °) Levy [l9 '12 j 1 KB 158 ; Willia m s (1932) 32 SR (NSW) 504; W illiamson [1972*}2 NSWLR 2 8 1.

(19) Such as stolen goods: West (1962) 46 Grim App R 296.

(20) Holley [l963j 1 A ll ER 106.

(21) Maloney (1901) 18 WN (NSW) 96.

(22) Tevendale [l955]{ VLR 95.

French (197?) 37 CCC (2d) 201.(23)

440

the jurisdiction.

The act of the accessory after the fact must assist the felon to evadejustice, or perhaps, at least have the potential for doing this. In somecases its nature will be such that it will obviously possess this character.In particular it will not be sufficient merely that the act assists theprincipal to realise the fruits of his crime, after its commission, if this

25act does not in itself help the principal to evade justice. For example, it will not necessarily follow that a man who assists a thief to dispose of stolen property, such as by purchasing or finding a receiver for it, or who otherwise assists in its disposal, w’ill thereby do an act which will make it less likely that the thief will be identified, arrested or convicted. In some such cases it has perhaps been too readily assumed that the transfer ofpossession and the consequent distancing of the principal and the stolen

26property will do this, though as a practical matter, such a conclusion willrarely be unfair to the appellant. The swift disposal of stolen goods wi.ll

27m genera1 make it less Likely that the thief will be brought to trial. 24 25 26 27

24

(24) See Lee (1834) 6 Car & P 536, 172 ER 1353 (note here that the accessory after the fact also went with the principal to a port, planning to accompany him to America. The stress in the trial judge's direction to the jury was, however, on the encouragement of the principal by the alleged accessory after the fact to adopt this course.

(25) See Erie J's response to defence counsel in Hansill (1849) 3 Cox CC 597 at 599.

(26) See the decision of the Full Supreme Court in Tevendale [19553 VLR 95, where what should have been a central issue, i.e. whether the assistance rendered by an alleged accessory after the fact to several thieves in his locating and directing them to a receiver was of such a character as to make it less likely that they would be prosecuted for their felony, was largely overlooked. Impliedly, it appears to have been sufficient in the court's view that the defendant's acts were capable of assisting the principals to consummate their ultimate criminal object, i.e., to make a profit from their theft. This is not necessarily to say, however, that the trial judge did not instruct the jury that the appellant's acts had to have been accompanied by an intention to assist the principalsto evade justice.See also Poole [1959J Grim LR 45, and Dawson [l96l[] VR 773 at 774 (Lowe and Smith JJ).Contrast Phelan [l964j Crim LR 468; Drown [l965] Crim LR 108; and Kemp [1968] Crim LR 33.

(27) See Elliot, 'The Mens Rea of Accessories After the Fact"[l963j Crim LR 159

441

Where, however, the alleged act of inculpation is in the particularcircumstances of a case, quite incapable of assisting the principal, it hasbeen held that the would-be assistant does not become an accessory after the

2 8fact. In the New South Wales case of Maloney (1901) it was held that aperson who mailed clothes to a fugitive felon could not be regarded as anaccessory after the fact in circumstances where the police had interceptedthe package. In Owen J's view, ''there was ... no act done which did assist

29him in his endeavours to escape .... There was an attempt to assist....”On the other hand, it was held by the Full Supreme Court in the Victorian

10case of Dawson_ (1961) that a man who at the behest of thieves, had locateda receiver for the property stolen by them and who was in a car directingthem to the receiver's premises when all of them were intercepted by police,had performed a sufficient act of assistance so as to have become an accessory

31 . .after the fact. These acts were of a less preliminary nature than those in Maloney.

In principle there is no reason why the act of assistance should have been fully consummated. Were the law to require this, then in many cases the person assisting a felon would not incur liability. For example, a felony may have been uncovered because the alleged accessory after the fact failed to conceal effectively evidence relating to its commission. Were a principle of full- consummation to apply he wTould have to be acquitted, for self-evidently he did not succeed in screening the principal from justice. Perhaps, a more accurate formulation of the actus reus requirement of accessoryship after the fact would be that it must involve the doing of an act which "tends" to assist a felon to evade justice. Authority exists for this conception of the doctrine in the English case of Hansill (1849), for example, where Erie J spoke of the requirement that the act of assistance should "impedfe] or tend ... to

*33impede the course ot justice..."282930313233

(28) (1901) 18 WN (NSW) 96.

(29) Id. at 97.

(30) [l96l] VR 77 3.

(31) See id.at 774.

(32) (1849) 3 Cox CC 597.

(33) Id.at 600. This element of concept of tendency is, moreover, aconstituent in the definition of the analogous offence of attempting to pervert the course of justi.ee: see Smith and Hogan at p.722.

Other miscellaneous aspects of the actus reus may be noted. It has -beenexpressly confirmed that an omission to act which assists a felon to evade

34justice does not constitute the defendant an accessory after the fact.This feature of the doctrine in particular, distinguishes it from the common law offence of misprision of felony. Mere "enjoyment" of the proceeds ofanother1s crime, such as larceny, will not constitute the defendant an

36accessory after the fact." It has been held that acts of indirectassistance, i.e., the rendering of assistance to a person to in turn helpa principal felon to evade justice, may constitute the indirect helper anaccessory after the fact (subject of course to the possession by him of

37mens rea ).

One final matter must be noted. Occasional formulations of the doctrine specify that the assistance designed to help him to evade justice must begiven to the principal "personally." Lord Denning indicated in his obiter

38 ,comments in Sykes (1961.) that this requirement involved that assistancegiven "only indirect] yhby for example ''persuading witnesses not to give

39evidence" against the principal would not make the assistant an accessory after the fact. By implication, therefore, the assistance given by the accessory after must be of an immediate, or direct nature; for example, harbouring the felon while he is being sought by the police, or providing him with clothes so that he may partly disguise himself in order to evade arrest.

The general requirement that the assistance affect the feion in a"personal* way has been stated in certain other, but by no means in all of

40the English cases prior to 1967. " On the other hand, Martin J observed in 34 35 36 37 38 39 40

(34) See Ready [.1942_] VLR 85 at 91ff ("merely suffering the principal to escape" will net make the defendant an accessory after the fact; at 92); Sykes v DPP j 1.962] AC 528 at 5% i (Lord Denning ).

(35) See generally Sykes , id.

(36) Barlow (1962) 79 WN (NSW) 756 at 757 (Cross J ).

(37) McKenna j 1960 i 1 OR 411 at 419.

(38) [l96l] AC 528 at Pel.

(39) Id. t S’61.

(40) When tide common law doctrine of acccssoryship after the fact was abolished, i.e., by the Criminal Lav; Act, 1967 (UK),See for example Chappie (1840) 9 Car & P 355 at 356,Rose (1961) 46 Crim App R. 103 at 104 (Slade J ).

173 ER 866 at 867;

443

41the Victorian decif:ion of Tevendale (1955) that whatever "may have been held in cases some centuries ago, it seems quite clear now that in moderntimes it is unnecessary to show that the harbouring or aid given to the

42principal felon was of a personal nature."

Given that the doctrine of accessoryship after the fact has usuallybeen stated in reasonably comprehensive terms, as incriminating those whoperform acts or tender advice which assists or helps to assist a felon toevade justice, there seems little warrant for restricting it by an arbitraryrequirement that the assistance should be of a personal nature. Even theusage of "personal1' is ambiguous; on one view every act, no matter howindirect, which helps the principal to avoid justice assists him personally.Certainly, Lord Denning's stricture has been altogether ignored in practice.The majority of reported cases in England and elsewhere concern acts ofassistance which are not personal, at least in the narrow sense in which he

43used the term.

(C) THE MENTAL ELEMENT

Two matters are considered: (1) the issue of purpose; (2) the need forthe accessory after the fact to know of the felony that has been committed by the principal felon.

(1) The Issue of PurposeIs it enough for incrimination as an accessory after the fact that the

defendant intentionally performs the actus reus required by this doctrine, knowing that it will assist the principal to evade justice, or at least, that it has the potential to do this? If this is so, then it is irrelevant that he may in fact have been indifferent to whether or not the principal felon should escape. Or,alternatively, must he not only perform his act of assistance, but have in addition a concurrent desire that the principal should 41 42 43

( 4 1 ) [1955] VL R 9 5 .

(42) Id.at 96. And see Shell J's similar remarks at 97. In this decision the appellant had assisted several thieves by locating a receiver, and had sought to guide them to the receiver.

(43) See the list of acts of assistance which have been recognised as being capable of constituting the person performing them as an accessoryafter the fact, subject to mens rea, at p *4 39 a^0Ve*

444

evade justice? If this is so, then the mental element in accessoryship after the fact must be defined as including a requirement of motivation.

It might have been supposed that the first state of mind would besufficient for liability as an accessory after the fact. In the criminallaw generally, the question of the defendant's motivation for acting is notnormally a matter of significance. A person is usually regarded as havingintended a prohibited event if he intentions]ly does an act knowing that itscommission will entail the occurrence of this event. His act may have beenmotivated by a desire to cause the latter, but it need not. His purpose inacting is unimportant. What is significant is that he acted willingly in the

44knowledge that the criminal event would thereby follow.

In the present context, it would in these terms be sufficient that the defendant perforins the actus reus of accessoryship after the fact, (such as by helping the principal to dispose of goods he has stolen) knowing that as a consequence the principal will be assisted to evade arrest and prosecution or that his act will tend to dp this, it being irrelevant in either case that assisting the principal to evade justice is not a deliberate object of behaviour. The defendant may indeed be inspired to act by a quite different consideration, such as a desire for personal gain.

The common law authorities disclose a divergence of views as to whetheror not the defendant must be motivated by a desire to protect the principalfrom the processes of justice. The English decisions, in general, have beenemphatic that he must have been so motivated. In the House of Lords decision

45in Sykes (1962) Lord Denning said obiter that if the defendant gaveassistance "not to hinder the arrest of the felon, but with another motive,such as to avoid arrest himself .... or to make money without regard to whathappened to the felon ... he would not be guilty as an accessory after the

46fact.11 This was in conformity with the Court of Criminal Appeal's previously 44 45 46

(44) For a discussion of the difference between these two concepts of mens rea in the context of accessoryship after the fact see Smith J's remarks in Hurley [.1967j VR 526 at 540-1. And see generally Smith and Hogan at p .4 7f f.

(45) [1962] AC 528.

(46) Id. at .

4 H 7

47 48expressed views in Jones (1949) and Powell (1956), and the requirementof purpose was enunciated in unambiguous terms on numerous subsequentoccasions prior to the abolition of the doctrine of accessoryship after the

49fact in England m 1967.

As a result the courts held, or recognised that a defendant who assistsa felon because of a desire to avoid his own arrest, rather than out of a

50desire to assist the felon, is not an accessory after the fact; or thatthe defendant who views stolen goods with a view to finding a purchaser withthe further object of making money for himself, and not because of a desireto help the principal to evade arrest, is not an accessory after the fact

51to receiving. or that the defendant who helps, or endeavours to help athief dispose of stolen property, whether by purchase or otherwise is notan accessory after the fact to larceny unless he was motivated in part toor whole by a desire to help the thief escape arrest, and not by some

52other purpose, such as the desire for personal gaim or that a man doesnot become an accessory after the fact merely because he helps a robber in

53order to get the latter out, of his house.

On the other hand the English courts recognised that the mere fact thata defendant is motivated by another purpose or purposes, such as the desirefor personal gain, will not relieve him of criminal responsibility as anaccessory after the fact, where he was also motivated by the desire to help

54the print 'pal to evade justice at the time he assisted the latter. 47 48 49 50 51 52 53 *

(47) [1949] 1 KB 194 at 198.

(48) [1956] Crim LR 255.

(49) Rose (1961) 46 Crim App R 103 at 104; Andrews [l962] 3 All ER 961 at 962;Comerford (1964) 49 Crim App R 77 at 80ff; Phelan [1964J Crim LR 468 at469; Brown [1965_j Crim LR 108; Lucraft (1966) 50 Crim App R 296 at 299- 302; Kemp (1968J Crim LR 33 at 34.

(50) Jones [1949] 1 KB 194 at 19Q ? Powell [l956] Crim LR 255.

(51) Andrews [l962.J 3 All ER 961 at 962. And see the similar case ofComerford (1964) 49 Crim App R 77 at 80.

(52) Rose (1961) 46 Crim App R 103 at 104; Phelan jl964j Crim LR 468 at 469; Brown [1965j Crim LR 108; Kemp j~1968j Crim LR 33 at 34.

(53) Lucraft. (1966) 50 Crim App R 296 at 299-302.

Andrews [l962j 3 All ER 961 at 962; Lucraft t id, at 501.30T7 " ' ~ ~~

(54)

In very recent times, therefore, the English courts entrenched the concept of motivation in their definition of the common law doctrine of accessoryship after the fact. On only one reported occasion in recent years did an English court not insist upon this specific element of

55motivation, and in retrospect, this case must be regarded as aberrant.The earlier English cases were perhaps less emphatic as to the need for proofof this element of desire in the alleged accessory after the fact. Butthey are not incompatible with this requirement, and on some such occasionsa court adverted to the need for it, though in general terms. A typical such

56decision is that of the English Court of Criminal Appeal in Levy (1912), where the court said that a jury could convict an alleged accessory after thefact only if, inter alia, they were satisfied that he had acted "for the

57purpose of assisting the principal.

There is little Australian and no New Zealand authority expressly on the issue of motivation. But in general the courts in these jurisdictions would appear not to have required proof by the prosecution that the defendant was motivated in part or in whole by a desire to assist the principal to escape justice. In several! cases where the facts seemingly were such as to demand discussion of whether or not the appellant had been motivated by a desire to assist the feLon to evade justice, if this indeed is a requirement of accessoryship after the fact, the courts with one exception declined to do this. These are the cases where the defendant clearly was motivated by some other purpose, such as the desire for personal gain, or the desire to assist some person other than the principal (such as the subject of an illegal abortion), or (on his own story) by tear, so that it could not automaticallybe assumed that he had as well, a desire to assist the felon to escape

58 59 60punishment. In Hurley (1967) and Williamson (1972), for example, the 55 56 57 58 59 *

(55) Set Poole fl959] Crim LR 45 at 46. The report concerns the direction to the jury by the presiding recorder at the conclusion of a trial in Quarter Sessions.

(56) [l912j 1 KB 158.

(57) ELat 161.

(58) See for example Ready jl942j VLR 8 5 at 91ff; Tevendale j L955j VLR 95; Dawson !j.961j VR 773? Hurley jl967"j VR 526-535 (VJinneke CJ and Pape J) / contrast Smith J at 540-541? Williamson [L9721 2 NSWLR 281.

(59) Id,

(60) [1972J 2 NSWLR 281 .

447

appellants claimed that they had assisted the principals only because of the duress to which the latter had subjected them. With one exception to be noted, the court’s attention in each case was focused upon the issue of whether or not the circumstances were such that they could have satisfied the common law defence of duress, and not on whether or not their acts of assistance were motivated by their alleged anxiety rather than a desire to assist the felons to escape justice. By implication therefore, although they may have been motivated solely by anxiety, this would not have excused them unless the circumstances provoking it were such as to satisfy the tests governing the special defence of duress.

Only on one reported occasion has an Australian judge expressly insisted thatthe alleged accessory after the fact must be proven to have acted partly orwholly from a desire to assist the defendant to escape justice. In his

61dissenting judgment m Hurley (1967) Smith J supported quashing theconvictions of the appellants as accessories after the fact to a felony ofescaping from prison because, in particular, the trial judge had notemphasised the need for the Crown to prove that the appellants had acted with

* GPa desire to assist them to avoid arrest. ' The trial judge had simply told the jury that the appellants must have had the "intention" to hinder the arrest of the felons, which usage was seen by Mr. Justice Smith as unsatis­factory in that it did not insist unambiguously upon proof of the further

G 3specific element of desire. ' Pointedly, Winneke CJ and Pape J did not advert to this issue in their majority judgments.

The result of these decisions is that in Australia judicial opinion would seem to accept that an accessory after the fact need not positively desire that the person assisted should escape justice, it being sufficient if he renders his act of assistance in the knowledge that it is conducive to this end even as he is not motivated by this goal. Such a conception of liability is a just one so long as it is emphasised that the act performed did indeed hinder or tend to hinder justice, and is in conformity with the traditional conception of intention in the criminal law. It must be noted, however, that apart from Smith J ‘s minority judgment in Hurley, no Australian court has expressly considered the issue. 61 62 *

(61) j_i967J VR 526.

(62) I d .a t 540-541.

(63* Id . a t 541.

448

The principal legislative provisions in the Australian Code States and6 4in New Zealand dealing with accessoryship after the fact. require, inter

alia, that the defendant should have assisted the principal offender "inorder to" help him to evade justice. Such an expression might be thoughtto import a requirement of desire. But the wording has been drawn fromtypical common lav; definitions of the doctrine of accessoryship after the

65fact^ so that this conclusion is not necessarily to be drawn. In the absence of judicial determinations in these jurisdictions, the issue of whether or not the accessory after the fact must have the desire to see

66the principal offender escape justice must be treated as being an open one.

(2) Must the Accessory After the Fact Know of the Precise Felony Committed?It is obvious that in order to become an accessory after the fact on the

basis of an act of assistance rendered to a felon calculated to assist him toevade justice, the defendant must have known that the person assisted was

6 7indeed a felon. But must he know of the precise felony committed? Thematter has rarely come before the courts, but in the Victorian decision of

60Tevendale (1955) the FulJ, Supreme Court held that the alleged accessory69after the fact did need to have this knowledge. There would appear to be

one exception to this principle. If the defendant believed at the time he assisted the felon that the latter had committed murder, and in fact the 64 65 66 67 68

(64) Queensland and Western Australian Criminal Codes, s.10; Tasmanian Criminal Code s.6; Crimes Act, 1961 (NZ) s.71. Other relevant provisions in these statutes are noted below at p .46Off. above,

(65) See Levy (JL912J 1 KB 158 at 160, approving a statement in Hawkins Pleas of the Crown Book 2, c.29, s.26.

(66) It may be that the trial judge in Pompey (1924) 18 QJPR 59 had in mind that an alleged accessory after the fact had to be proven to have the desire to see the principal escape justice, but his reported determination in this case is so unelaborated as to make it impossible to know his ground of determination.

(67) See Levy [l912] 1 KB 158 at 160; Sykes v DPP [1962] AC 528 at 561 (LordDenning).

(68) [1955] VLR 95.Id,at 96 (Herring CJ); at 97 (Martin J - though note his obiter comment that it might not be necessary in every case to show that the accessory after the fact had this precise knowledge); at 98 (Sholl J.)

(69)

449

felon had committed manslaughter, then the defendant may be convicted as an accessory after the fact to manslaughter• This would be on the basis thatthe more serious crimu includ s the lesser, i ,e,, both crimes have the sameactus reus , though they are distinguished by their mens rea requirement*Such a principle would find application in other contexts.

It would obviously be unreasonable that the converse situation should obtain, viz, that a person who assisted a person whom he believed to have committed a homicide amounting to manslaughter, should be liable to conviction as an accessory after the fact to murder, in the event that thedefendant was proven to have the mens rea appropriate to the latteroffence. To do so would be to impute a graver degree of criminality to the defendant than his mental state warrants.

(1)1 iqSCELLANKOlh; ASPECTS OP ACCESSORYOH IP AFTER THE FACT

A common law rule provides that a wife cannot be an accessory after7 1 1 2the fact to her husband’s felony. The converse is, however, possible.

The distinctions between the,respective positions of each spouse isanomalous. Its historical basis would appear to be the common law presumption(rebuttable in other contexts) that an act done by a wife in her husband'spresence wasd done undor his coercion, But notwithstanding thecommon law protection acoorded to the wife , if she should by virtue ofan act of assistance accorded to the husband also assist his accomplice in felony73tHereby, she becomes an accessory after the fact to the accomplice's felony.

(70) Such would seem to follow from the decision of Richards (1877) 8 Q,BD 3 1 1 , where it was held that a person who was indicted as an accessoryafter the fact to murder could be convicted as an accessory after the fact to manslaughter in those circumstances where the evidence established that the homicide was a manslaughter and not a murder. Similarly see Greenacre (1837) 8 Car 1 P 35? 173 ER 588*

(71) Holley [1 9 6 3] 1 All ER 106.(72) Jones [1949] 1 KB 194; Williams (1932) 32 SR (NS7/) 504.(72a) Holley [1963] 1 All ER 108 at 108; and for a modern justification of

the rule see this decision at 1 0 7 .(73) Id.

In ’victoria, the Aus Lral 1 an. Code States, and in Jew dealand, legislationexonerates both husbands and wives from liability as an accessory afterthe fact to an offence committed by the other spouse, or in certain

74circumstances, any accomplice with him or her.

A person who assists in the one act or unified sequence of acts, theaccomplices in a single crime, may be indicted in the one count as an

75accessory after the fact to this joint offence. But it has been held thatif several persons are jointly implicated in a killing, but their liabilitymay be distinguished because of differences in their mens rea,some being guilty.of murder and the others of manslaughter, a person who commits a single actor sequence of acts of assistance on their behalf intending that they shouldevade justice is liable to conviction both as an accessory after the factto murder and as an accessory after the fact to manslaughter. This wasjustified on the basis that one“who harbours the several felons, thoughthe principals may have committed a joint crime, is guilty of a separate

76offence for each person whom he harbours."

A person may by an act or acts relating to a single theft, incur liability both as an accessory after the fact to larceny and as a receiver, provided that he satisfies the distinctive tests associated with each doctrine or offence. In particular, he does not necessarily become an accessory after the fact because he receives, unless he intends by this receiving to assist the felon to evade justice. Often a receiving may be soconstrued in that the dispersal of the property will assist the thief to

7 7escape arrest. And a person may, in appropriate circumstances, become an 74 75 76

(7 4 ) V i c t o r i a n C r im e s *3>8;Q ,U G enslond. a n d W e s te r n A u s t r a l i a n C o d e 3 ,s * 105 New r/e a ia n d Crim os Act , 1961, s«71 (?) •

(75) See Richards [1877] 2 QBD 311 at 313.

(76) Cockburn CJ in id,at 313.

(77) See generally Elliot, "The Mens Rea of Accessories After the Fact" [1963| Grim LR 159; Thorley [1962] 3 All ER 583n; Phelan [l964]Grim LR 468; Brown Grim LR 10B.

451

accessory after the fact to a receiver, where he assists a receiver to evade jus ice such as, for example, by helping him to dispose of the property. If he also assists the thief thereby with the appropriate intent, then logically he may become an accessory after the fact to the thief's larceny.78

A New South Wales judge has suggested obiter that a person who assistsa thief to complete the carrying off of the goods he has stolen at a point

79in time after the offence has been completed, becomes an accessory afterthe fact irrespective that he may have been without the intention to assist

80the thief to evade justice. Cross J envisaged in Barlow (1962) thatsuch a basis of liability would represent a head of accessoryship after thefact separate altogether from the traditional conception of it as a doctrinefunctioning to incriminate the person who assists a felon with the intentionthat the latter should evade justice. The suggestion is a novel one, and is

81apparently not supported by authority.

(E) PROCEDURAL MATTERS AFFECTING ACCESSORYSHIP AFTER THE FACT.-----:--- ------ --- --- ----—---- 9------------------- ---- ---------------8 2These issues are dealt with elsewhere. 78 79 80 81 82

(78) See generally Rowley fl948] 1 All ER 570; Andrews Ql962j 3 All ER 961; Comerford (1964) 49 Crim App R 77.

(79) I.e., where there has been a sufficient asportation to complete the ct i.rne.

(80) (1962) 79 WN (NSW) 756 at 758.

(81) Judge Cross cited Kelly (1820) Russ & Ry 421, 168 ER 876* The courtheld in Kelly that the defendant, who had assisted in the asportation of the property after the theft had been completed, could not be convicted on an indictment charging him as a principal. The court suggested that he might have been convicted as an ''accessory." It seems evident on the facts, however, that the court had in mind that he might have been convicted as an accessory before the fact, not as an accessory after the fact. He had been in collusion with the principal prior to the crime.

See also King (1817) Russ & Ry 332, 168 ER 830. The headnote is comprehensible only on the basis that were the defendant shown to have assisted in the carrying off of the goods after the theft with the intention thereby to assist the principals to evade justice, he would have become an accessory after the fact.

(82) At p . 587ff. above.

(F)__STATUTORY PROVISIONS CREATING LIABILITY AS AN ACCESSORY AFTER THE FACT

(1) The Commonwealth Crimes Act, 1914

The Crimes Act, 1914 (Comm ) provides in s.6 that a person who "receives or assists another person who is, to his knowledge, guilty of any offence against a law of the Commonwealth or of a Territory, in order to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.'5 This formulation of liability imports the common law doctrine of accessoryship, except in twro respects. First , the offence under s.6 may be invoked in relation to the assisting of all categories of offenders (the common law doctrine is confined to the assisting of felons ), Secondly, the statutory offence creates in its second branch a second type of accessoryship not recognised at common law, i.e. where the offender is assisted by the defendant "in order to dispose of the proceeds of the offence.41 Such behaviour at common law will only ground liability as an accessory after the fact if it is also accompanied by an intention to assist the principal to evade justice.

These considerations aside, the common law authorities are directly83relevant to the interpretation of s.6.

(2) The Australian Code States

The Criminal Code Acts of each of Queensland, Western Australia and Tasmania create offences of being an accessory after the fact to another’s criminal offence. The. principal such provisions are s.10 of the Queensland and Western Australian. Codes, and s.6 (1) of the Tasmanian Code.

Section 10 of these first two Codes creates a person an accessory after the fact to another’s offence where he knowingly "receives or assists” this person "in order to enable him to escape punishment." Supplementary provisions in each Code provide specifically that such an assisting constitutes the accessory after the fact guilty of an offence, and they furtlier provide that a person may become an accessoryafter the fact to any class of offence (i.e. both to indictable crimes and

84misdemeanours, and to summary offences )» ' In this latter respect these 83 84

(83) See s.4 of the Commomvealth Crimes Act, 1914.

(84) Queensland Code s.544, s.545; Western Australian Code s.562, s.563.

453

statutory offences clearly deviate from the common law doctrine of accessoryship after the fact, which may only be invoked in respect of acts of assistance given to one class of offender (i.e. the person who at common law is classified as a felon.).

In Tasmania s.6(l) of the Code provides that a person who knowingly "receives" or "assists" another who has committed a "crime" (i.e.an indictable offence) "in order to enable him to escape punishment" becomes an accessory after the fact to tills crime. Section 300 provides that an accessory after the fact is guilty of a crime. Liability as an accessory after the fact is not extended to summary offences in Tasmania.

These statutory provisions in each of the three Code States areformulated in conventional common law terms in respect both of actus reus

85and mens rea so that they maybe be able to be viewed as importing the common law doctrine. If this is so, the common law authorities are of direct relevance to their construction. There has been little judicial construction of the Codes themselves.

Other sections in each Code are also relevant to accessoryship after the- . 86fact.

(3) New Zealand

The principal provision in the Crimes Act, 1961 (NZ) relating to accessories after the fact is s.71 (1) which provides that an "accessory after the fact1* to an "offence" (which expression is defined in s. 2 as including indictable and summary offences) is one who knowingly "receives^comforts;or assists (an offender).... or tampers with or actively suppresses evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction." This section was intended evidently to reproduce the common law doctrine of accessoryship after the fact (excepting that the statutory doctrine is applied to acts of assistance given to all types of offender), so that once again the common law authorities are presumably relevant to its construction. 85 86

(85) See comparable common law statements in for example Levy jjL912] 1 KB 158at 160; Sykes v DPP [l962] AC 528 at 5~&1 .

(86) For example the Western Australian Code, s.284 (punishment of accessory after the fact to murder ),

454

Other provisions in the Crimes Act are also directly relevant: to , „ 87accessories after the fact.

(q) CONCLUSION *

Three aspects of the common law doctrine cf accessoryship after the fact are commented upon. First , to the extent that the authorities require that the assistance given to the principal offender be of an immediate personal nature, the doctrine is subjected to an extremely arbitrary limitation. The preponderance of authority indicates, however, that the scope of accessoryship after the fact ought not be regarded as being qualified in this way.

Secondly, to the degree that authority requires that the accessory after the fact be proven to have acted with a desire to assist the felon to escape justice, the doctrine is left in an anomalous position in comparison with the rest of the criminal law, where the imposition of liability is not normally contingent upon proof of motivation. It ought to be sufficient, for liability' that the accessory after the fact has intention­ally assisted the principal offender with the knowledge that his act will assist, or tend to assist the principal to evade justice.

Thirdly, a case may be made out in favour of inculpating as an accessory after the fact the person who helps the principal offender to realise fully the object in pursuance of which he committed the principal crime, although (a) this person did not. act with the intention to assist the principal to evade justice, and/or (b) that his act may not possess this tendency. As matters now stand, the accessory after the fact must act with this intention and his act must have this potential. An act calculated to assist the principal to realise the fruits of his crime will, after all, be just as prejudicial to the functioning of public justice, as will an intentional assisting of him to evade arrest, conviction and punishment.

(87) For example, s.176, s.312, s.344.

88(II) ENGLAND: THE STATUTORY CRIME OF ASSISTING AN OFFENDER

(A) INTIODUCTIQN

The common law doctrine of accessoryship after the fact was repealed by the Criminal Law Act, 1967 (UK) and replaced by a statutory offence created in s.4 of this Act, which provides (in ss.(l)) that

Where a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence.

Subsections (2) - (4) create rules relating to the prosecution, trial and punishment of the offence.

While broadly this offence is, like the common law doctrine of accessory- ship, designed to incriminate the person who assists another who has committed an offence of a more serious character to evade justice, the statutory offence differs from its common law predecessor in a number of vital ways:(1) Its scope is not governed by the concept of felony (which would have been impossible, given the abolition of the felony/misdemeanour distinction in s.l of the Criminal Law Act of 1967 ) Instead, it is confined in operation by reference to a concept of arrestable offence (which term is defined in s.2 of the Criminal Lav; Act of 1967 ), viz. , under s.4 liability is confined to those who do an act on behalf of arrestable offenders. (2) The offence under s.4 relates to acts which are intended to impede the apprehension or prosecution of a person who commits an arrestable offence, but not to acts designed to assist this person to avoid punishment. Presumably, therefore, a person who assists another to escape custody after he has been convicted of an arrestable offence (when of course the prosecution is completed), but before he has been punished, would not become liable under s.4. Accessory- ship after the fact at common law extends to the incrimination of those who assist convicted felons to evade punishment. (3) The actus reus requirement of the s.4 offence would seem to have been defined more broadly than the physical element m accessoryship after the fact, subject to what has been said in (2) above. The actus reus is discussed below. (4) The mens rea requirement under s.4 is also broader; this element is likewise discussed 88

(88) For discussions of this offence see 'Williams, "Evading Justice - I*‘ [l975] Crim LR 480; Smith and Hogan at p.728ff.

A %

below, (5) The offence under s.4 may only be committed by a person who acts"without lawful authority or reasonable excuse.” There has been no judicialelaboration of this 1 imi tadvj.on. It may be that these words were intended tocover an executive decision against a prosecution, or a private act such asthe dest action of the evidence of an offence in pursuance of a legitimateagreement to refrain from prosecution in consideration of the making good of

89loss caused by that offence.

(B) THE ACTUS REUS

The physical elements of the crime include that an arrestable offencemust have been committed in the beginning, and further, that the defendanthave committed "any act” with the intention to impede the apprehension orprosecution of the offender. There is no requirement here that this actshould have been capable of effecting, or assisting to effect this goal. Incontrast, the doctrine of accessoryship after the fact is traditionallyformulated in terms of verbs such as "harbour,” "receive” and "assist” whichpositively denote that the act must be capable of assisting the achievementof the prohibited object, i,.e., the principal felon's evasion of justice.Technically#a .4(1 Jwould seem to leave open the possibility that a person whoacts with the appropriate intent will be incriminated even where his actis on an objective view, incapable of assisting an offender to evadeapprehension or prosecution. Perhaps prosecutions would not be initiatedin this circumstance. But certainly s.4 would inculpate a man who sendsclothes to a fugitive offender with the intention to assist him to evadearrest, even though these clothes are intercepted by the police. Incontrast, it has been held that a would-be assistant in this circumstancecannot be an accessory after the fact, in that he does not perform an act

90which assists the felon to escape.

(C) MENS REA

There are two major elements in the mens rea requirement of offenders under s.4. 89 90

(89) The Enalish Criminal Law Revision Committee contemplated that this clause would relieve persons in these two situations - Cmnd, 2659 para 20. See Smith and Hogan at 733,

(90) Maloney (1901) 18 WN(NSW) 96 at 97 (Owen J )

457

First ; the defendant must act on behalf of the arrestable offender*“while knowing or believing him to be guilty of the offence or of someother arrestable offence.11 Obviously the defendant satisfies this clause ifhe knows that the offender has committed an arrestable offence and, moreover,knows of its specific identity. Or he satisfies it if he acts “believing"that the offender has committed this offence, i.e. while he has not certainknowledge of the commission of the offence and of its identity (because forexample, he was not an eyewitness), he is of the opinion that the offendercommittee this particular offence. And the further alternatives are that hesatisfies the clause if at the time he acts he believes, though mistakenly,that the offender has committed arrestable offence A when in fact he hascommitted arrestable offence B; 02: at the minimum, that he believes thatsome such offence has been committed, although he is uncertain as to itsprecise identity. The Court of Appeal has confirmed that the defendant neednot know the precise offence which has been committed, in order to becomeliable under s.4, provided that he believes that some arrestable offence

91has been committed.

It is not clear whether constructive knowledge of the commission of an arrestable offence is sufficient to satisfy this clause, i.e.t where he actson behalf of an offender with reckless indifference to this possibility.

The defendant need not, under s.4. know of the identity of the offender92on whose behalf he acts.

The second major ingredient in the mens rea requirement is that the defendant must act with the "intent1’ to impede the apprehension or prosecution of the arrestable offender. It has not been decided by the courts whether this word imports a requirement of motive, i.e. whether or not the defendant must act partly or wholly out of a desire to see the principal offender evade arrest or prosecution. (The preponderance of English common law authority prior to 1967 required that the accessory after the fact have been motivated

93partly or wholly by a desire to assist the principal felon to evade justice. ) * 92 93

(9!) Morgan [1972] 1 All ER 348 .

(92) Brindley |l97l] 2 QB 301.

(93) See p f f » a b o v e

456

Given that the concept of "intention” in the criminal law generally does not incorporate a requirement of motivation, and that s.4 is to be construed against this background of general principle, it ought to be sufficient for liability that the defendant, when he acts, is aware that his act will impede or tend to impede the apprehension or prosecution of the offender, even as he may not have specifically desired this.

(D) PROCEDURE

(1) Section 4(2)

Under s.4 (2) of the Criminal Law Act of 1967 a person charged with an arrestable offence may in the alternative be convicted of the offence created in s.4 (1), if the evidence justifies this. If either the prosecution or the trial judge (or even the defence) desires to have the jury consider this alternative liability, the issue must be raised before the close of evidence, and the defendant given the opportunity for an adjournment, if necessary, to enable him to meet such a charge. If the prosecution foresees in advance that a conviction under s.^U) is possible, it should include a count

Q4alleging the offence in the indictment.

(2) Other Procedural Issues

Other procedural issues affecting offenders under s.4 (1) are dealt with Q5elsewhere. 94 95

(94) Cross [1971} 3 All F.R 641; Vincent (1972) 56 Crim App R 281.

(95) See p p .444 above.

459

CHAPTER SIXTEEN

REFORMING THE LAW OF COMPLICITY

(I) INTRODUCTIONIt is considered that the common law doctrine of complicity (one

which is preserved directly in certain of the subject jurisdictions, andrestated in statutory form, with relatively minor changes, in the remainderof them) is susceptible to reform at a variety of levels; and in particular,that the scope of accessorial liability should be contracted. Such areform would necessarily take a statutory form, and it is assumed thatrather than to attack matters piecemeal, such legislation would providecomprehensively for a new law of criminal parties.^ In this sense, such2a reformulation of the law could be referred to as a code.

Before detailing the suggested terms of this reformulation, one matter must be disposed of. This is whether or not the law should continue to recognise a specifically derivative form of criminal liability, i.e. whether a p rson should still be able to be implicated in another person's crime notwir.hstanding that he has not himself personally perpetrated any one or more of the physical, elements in this offence, but rather, has merely performed an act of promotion or support. This issue is discussed in (ii.) below, and as anticipated in Chapter One, the conclusion is reached that the law should continue to recognise a secondary offender of this type,rather than to seek to incriminate him in, say, a broad independent offence of an ancillary character.

Given then, that the law should continue to recognise secondary offenders, the question of precisely what form the structure of the law of criminal parties should take must be considered, and this is done under (ill) below.Under (IV) consideration is given to the question of how broad the scope 1 2

1. This philosophy is adopted for instance in the proposals affectingaccomplices in each of the Model Penal Code: Proposed OfficialDraft and by the British Law Commission's working paper on complicity(Working Paper No. 43).

2. Though this is not to say that the code might not contain a provisionthat it is to be construed by reference to common law principles,where they are not expressly or impliedly inconsistent with itsprovisions. This would relieve the draftsman from the obligation toincorporate certain minor but useful common law rules into thelegislation.

460

of seconday criminal liability should be, and proposals for its definition formulated, Unver (V) below, certain more specific proposals, which would be needed to amplify or qualify the general definition of secondary liability set out under the preceding heading (i.e. (V)) in certain fact situations, are detailed. Finally,proposals relating to the procedural aspects of the law of accomplices, are detailed under (VI).

It is to be emphasised that the proposals set forth in the following pages are not cast in the very precise form which would be required in a statute; rather, the intention has been simply to express the substance of changes to the present law which, it is submitted, might usefully be effected.

(II) SHOULD SECONDARY CRIMINAL LIABILITY BE RETAINED IN ITS PRESENT DERIVATIVE FORM?

(A) PRELIMINARY COMMENTS

The accessory's liability at common law, and under the codified versions of the law of criminal parties found in certain of the subject jurisdictions is, it has been seen, of derivative status. It is derivative in the sense that it is contingent upon the commission of a crime by another person, which act must be instigated, encouraged or assisted by the accessory. Thus, if no such crime is committed, the person who attempts to promote or facilitate this commission will not thereby incur liability, unless he may be otherwise implicated in an ancillary crime, such as incitement; or if the actus reus of the subject crime is perpe­trated, but the person thus acting is without mens rea, the person who promotes or facilitates this act cannot, according to most decided cases, incur liability qua accessory,though certainly there are alternativedoctrines pursuant to which he may be incriminated as a constructive

3prinicpal. It is essential then, to accessorial liability, that another person should have committed the subject crime.

What is the result of the application of this doctrine of secondary liability? The major effect of it is that the defendant is able to be convicted of the principall s crime, just as if he had committed it himself. It must be observed, however, that the law has never pretended 3

3. See Chap *6

461

that he has himself literally committed it. His classification is after all, that of a secondary offender - an accessory. He is viewed as having participated in the principal's act in such a way, albeit a secondary one, that he should be made liable to conviction for the principal's crime. The practical results are firstly, that he has imputed to him a moral culpability broadly equivalent to that imputed to the principal offender; and secondly, that he is thereby rendered liable to the same penalty maxima as apply to the principal offender. Plainly this outcome is a just one, where the secondary offender has participated in the principal's crime as an instigator, or as a coequal. The reach of the doctrine of accessoryship may be questioned, however, where it operates to incriminate the minor, or subordinate participant in another's crime.

A number of problems are associated with the derivative nature of the accessory's liability. Certain of them are purely procedural.For example, at common law the accessory before the fact to felony maynot be convicted in advance of the principal offender. These difficulties mayeasily be overcome through statutory change to the common law, and for

4the most part they have been thus removed in the subject jurisdiction.

Other formal problems are noted immediately above. Thedefendant may not be convicted as an accessory if there is no principaloffender. Thus, if the person whom the defendant sought to promoteor facilitate, in the contemplation that the former would commit a crime,does not in fact do this, the defendant cannot necessarily be incriminated,unless it is in respect of a general ancillary offence, such as incitement,or for some other specific statutory offence. If the perpetrator doesindeed commit the actus reus,but does not incur liability because, forexample, he is without mens rea, the defendant - subject to one type of

5exception - cannot be convicted as an accessory to the corresponding crime. The courts have, however, sought to overcome these difficulties in several ways, principally by evolving the so called doctrine of innocent agency.^ Any problems of this type could be overcome fairly readily, by way of specific provision, in a codified law of complicity. 4 5 6

4. See pp.340ff.,}b4ff.5. I.e., where the perpetrator does commit the actus reus of agiven offence

with the corresponding mens rea, but is relieved from liabilitysolely because (for example) of a procedural defence, see p.

6. See generally Chap.8,and for a discussion of the doctrine ofinnocent agency, see p.237ff.

A third, and less clearly defined class of problems concerning accessories may also be regarded as being associated with the derivative nature of secondary liability. It is essential to this notion of derivation,so it has been seen, that the accessory cannot be made liable,as such, solely by reference to hie act of incrimination; but rather,that such liability is also contingent upon the commission of the subject crime by another person®In this respect, the task of del ineating the conditions of accessorial liability is complicated, relative to that of stating the conditions governingliability as a principal. For the accessory must be shown to have an appropriate mental state in respect not only of his own act, but as well, that of another, wich latter act may not necessarily be committed either in his presence or at the time that he performs his own act of incrimination. This formal dissociation of events will not usually make for difficulties in applying the law where the accessory commits his act contemporaneously with the commission of the crime by the principal, and in the latter’s presence. Problems may, however, arise where the accessory acts in advance of the principal's crime or crimes, or where he acts simultaneously with the principal, but at some distance, so that he does not see or hear what the principal is doing.Consider, for instance, the first of these situations (though similar consi­derations may obtain in situations of the second type). The accessory may perpetrate his act of complicity, but be unaware of precisely what crime, or crimes, the principal plans to commit. May he still be made liable, and if so, in exactly what circumstances, for the principal's crime or crimes? Or the putative accessory may know very well what crime the principal plans to commit, and in what circumstances; but the principa1 may deli erately allow this crime to take effect against a victim other than the ono in. the alleged accessory's contemplation; or he may accidentally, or mistakenly commit the same crime in different circumstances. In such situations the general rule, that the accessory is liable for those crimes which,he contemplates at the relevant time, the principal would possibly commit, may not be adequate to determine the precise extent of the accessory's liability; and indeed, it may prove very difficult to attempt to draw precise limits upon this in a codified law of complicity, given the indefinite number of potential situations of this type. The problems of this type might be conveniently summed up as being those which result from two major aspects of secondary liability: firstly, that it is contingent upon the principal's act; and secondly, that the latter may act in the absence of, or long after the commission by the accessory of his own act of complicity, in circumstances which may not, of necessity, be fully known or have been fully predictable by the secondary party.

463

(B) A PROPOSAL FOR OVERCOMING PROBLEMS ASSOCIATEDWITH THE DERIVATIVE NATURE OF ACCESSORIAL LIABILITY

An English commentator, Richard Buxton, recognising the problems7posed by the derivative nature of accessorial liability, has proposed that

legislative provision should be made for "general offence of aiding org

encouraging crime. This offence would represent an independent crime ofan ancillary nature. It is integral to his proposal that it may be "committedby one who does acts which are known to be likely to be of assistance orencouragement to another in committing a crime whether or not that principal

9crime is in fact committed". Evidently, he envisages that accessorial liability would be abolished, i.e., his independent offence of encouraging or assisting crime would not represent a mere supplement to the common law doctrine of accessoryship, but a replacement of the latter.

Mr. Buxton justifies his proposal by referring to three mattersin particular. Firstly, under the modern English law (and indeed, under therules prevailing in the other subject jurisdictions), the prosecutionneed not specify in the indictment as to whether the defendant (allegedly)committed the crime as a principal or as an accessory.^ This, he considered,was unsatisfactory. For example, if the defendant is known (or believed)to have participated as an accessory,he ought not to be charged as aprincipal: "it hardly seems conducive to the doing of justice for a criminaltrial to proceed on the basis of a charge that is and is known by all

11concerned (except possibly the jury) to be untrue". Certainly, to charge the person who is to be regarded as a secondary participant in another's crime with an independent offence of promoting or facilitating crime, would distinguish his alleged wrongdoing very clearly from that of an alleged principal. 7 8 9 10

7. See his comments in his "Complicity in the Criminal Code" (1969) 85LQR 252; and in his "Complicity and the Law Commission"(1973) Grim LR 223

8. "Complicity and the Law Commission" id. at 227.9. Id. at 227,10. See generally at p.540 above on the indictment of criminal parties.

Note the more recent comments in the House of Lords' decision inDPP v. Maxwell (1978) 3 All ER 1140 that where the prosecution chargesan alleged accessory as a principal (pursuant to s.8 of the Accessoriesand Abettors Act, 1861 (UK), it should disclose the true basis of itscase in Particulars (i.e, that he aided and abetted, or that hecounsel! d or procured)(see above at p.346)."Complicity and the Law Commission'* [L973] Cr:im LR 223.11 .

464I t may b e r e a d i l y a l lo w e d t h a t w h ere th e

t h a t i t k n ow s w h e th e r th e d e f e n d a n t p a r t i c i p a t e dpi 0 0 6'

i n aa t i o n i s e a t i n f i e d g i v e n • ;r i me a s a p r i n c i ­

p a lt h e

i t

o r a c c e s s o r y ( a n d t h i s may n o t a lw a y s be t h e s i t u a t i o n - f o r i n s t a n c e ,e v i d e n c e may e s t a b l i s h t h a t t h e d e f e n d a n t d e f i n i t e l y p a r t i c i p a t e d

12t h e c r im e b u t i t may b e a m b ig u o u s a s to th e c a t e g o r y o f s u c h p a r t i c i p a t i o n ) s h o u ld i n d i c a t e t h i s in t h e c o u n t i t s e l f , o r i n a n y s u p p le m e n t a r y

9

p a r t i c u l a r s . B u t g i v e n t h a t t h e p r e c i s e n a t u r e o f i t s a l l e g a t i o n may b e s p e c i f ’’ ed s o r e a d i l y , i t i s c l e a r t h a t t h i s c o n s i d e r a t i o n c a n n o t w a r r a n t i n i t s e l f , , t h e a b o l i t i o n o f th e d o c t r i n e o f a c c e s s o r y s h i p , and i t j r e p la c e m n t w i t h an in d e p e n d e n t a n c i l l a r y o f f e n c e , J S o r e o v o r , i t i s e v i d e n t t h a t i t may n o t b e a p p r o p r i a t e t o derntnd s u c h a d e g r e e o f s p e c i f i c i t y i n t h e c h a r g e w h e r e ( a s h a s j u s t b e e n n o t e d ) th e e v i d e n c e i s a m b ig u o u s a s to th e form o f t h e d e f e n d a n t ' s p a r t i c i p a t i o n . F u r t h e r , t h e p r o s e c u t i o n c o u ld n o t v e r y w e l l b e h e l d to a n y s u c h s p e c i f i c a t i o n , f o r th e e v i d e n c e may com e to d i s c l o s e ( a t l e a s t in. th e j u r y ' s e y e s ) t h a t a l t h o u g h t h e d e f e n d a n t d id in d e e d p a r t i c i p a t e i n t h e c r im e c h a r g e d , i t w as i n a c a p a c i t y o p p o s i t e t o t h a t b e l i e v e d b y th e

13p r o s e c u t i o n , a t t h e t im e w hen th e l a t t e r f o r m u la t e d th e c h a r g e .

S e c o n d l y , Mr B u x to n f a v o u r s t h e e n a c t m e n t o f su c h an o f f e n c e i n t h a t i tw o u ld o p e r a t e i n a p r o p h y l a c t i c m an n er , a s d o e s t h e o f f e n c e o f i n c i t e m e n t , o r

a s may t o e o f f e n c e o f c o n s p i r a c y , i n a l l o w i n g t h e la w e n f o r c e m e n t a u t h o r i t i e s t c s te p , in and m ove a g a i n s t t h o s e who h a v e p e r fo r m e d a c t s o f p r o m o t io n o i' f a c i l i t a t i o n c f a p r o s p e c t i v e o f f e n d e r i n a d v a n c e o f t h e l a t t e r ' s c r im e1/ib e f o r e t h i s c r im e i s a c t u a l l y c o m m it t e d . T t h e 'd o c t r in e o f a c c e s s o r i a ll i a b i l i t y , t h e o p e r a t i o n o f w h ic h i s c o n t i n g e n t u p on t h e p e r p e t r a t i o n o f ac r im e b y t h e p r i n c i p a l , c a n n o t o f c o u r s e b e u s e d i n a p r o p h y l a c t i c m a n n e r . Hen o t e s t h a t s u c h a c t i v i t y in a d v a n c e o f t h e c o m m is s io n o f a s u b s t a n t i v e c r im ec a n be r e p r e s s e d b y r e s o r t to t h e o f f e n c e s o f i n c i t e m e n t an d c o n s p i r a c y ,b u t c o m p la in s t h a t " b o th o f them , a n d in p a r t i c u l a r t h e l a t t e r f a r e ! no t o r -

15 u ji o u s l y v a g u e a n d o p e n to a b u s i v e a p p l i c a t i o n . " I t i s c o n s i d e r e d t h a t th ec r im e o f c o n s p i r a c y h a s b ?on c r i t i c i s e d i n t h s e t h e s e t e r m s , n o t b e c a u s e i t

h a s b o r n a p p l i e d to m e r e u n co n su m m a ted a g r e e m e n t s f o r a c r im e o r o t h e rl e g a l l y r e c o g n i s e d u n la w f u l p u r p o s e ( t . - i i s h a s u n com m on ly h a p p e n e d ) b u tb e c a u s e i t h a s b e e n u s e d t o p r o s e c u t e s u b s t a n t i v e w r o n g d o in g : , v i z , i t i si t s e l f , d e f a c t o , a s u b s t a n t i v e o f f e n c e w h ic h , a n o m a lo u s ly , i s i n e f f e c t u s e d

16t o c h a r g e n u m e r o u s c r im e s i n th e o n e c o u n t .

1 2 . See for exampl e Salmon ( 1 0 0 ) 6 Q3D 79*13* This latter point i:* ai:lowed by Mr Buxton - nee "Coraplicity in the Criminal

Code" (1969) BifJ LQR 292 at 275.! 4» See "Compileit \r and the Law Commission [l97lj Crim lit 223 at; 2 2 7if., end

"Complicity oru the Law Commiesi-011 9 id. at 2 2 0.15. "Complicity an a the Law Commiesion” , id. at 226.16. S e e dii'} ies , tn<:- Law oi' Or i min a:1 Complici ty (Law Book Co, S y d n e y ,I960) at

p.SOff.

46p

Be this as it may, this argument cannot, it is considered, support'Mr. Buxton's case for the replacement of accessorial liability by an inde­pendent offence of aiding or encouraging crime. The doctrine of accessorial liability is, after all, concerned with fixing responsibility upon a defen­dant not merely in respect of his isolated act of promotion or facilitation taken by itself, but rather, for his promotion or facilitation of the commission (by another) of a substantive crime. The latter event, it is suggested below, will almost always be more seriously regarded by the courts andlegislature than will the mere performance of an act calculated to bringthis final event about,!n those situations where this latter act is unaccompanied by tho commission of the crime itself. Mr Buxionfs argument at thispoint is really one for the creation of a new and comprehensiveinchoate offence• There is no necessary reason wby an offence of this type should also_be used to police secondary participation in another's substantive crime. (o f course, this is what Mr. Buxton does envisage,that itmay be applied in what is de facto a situation of accessorial liability , in providing that his offence ought to be able to be charged, whether or not the substantive offence is actually contemplated). To sum up, this argument, taken by itself, does not obviously justify the abolition of accessorial responsibility, though certainly, it may be considered to justify the enact­ment of a supplementary inchoate offence of doing an act calculated to promote or facilitate crime, which offence would (if it is accepted that the doctrine of accessorial liability ought to be preserved) merge with the commission of this contemplated crime, thus rendering the secondary party liable to prosecution as an accessory to its commission.

Mr. Buxton's third argument in favour of the enactment of hisindependent offence is perhaps, his central one. It centres upon recognitionof the problems associated with delimiting the extent of the alleged accessory'sliability in certain situations, especially where he performs his act ofincrimination in advance of the principal's commission of the subject crime,

17and not. simultaneously with its commission. As noted above, it will occasionally happen, where the accessory acts in advance of the perpetration of the crime (or for that matter, acts simultaneously with this event, but in the principal's absence), that he does not or cannct predict (or alternatively know of) the circumstances of this crime with any degree of precision.Even where he does contemplate these precise circumstances, or believe that he knows them,intervening circumstances (including a change of resolve by the principal) may mean that the circumstances of the actual commission 17

17. see p. 462•

466

o f t h e s u b j e c t c r im e a r e d i f f e r e n t - s o m e t im e s m a r k e d ly s o . W h ile i t i se a s y e n o u g h t o s t a t e t h e r e l e v a n t g e n e r a l p r i n c i p l e s o f a c c e s s o r i a l l i a b i l i t y , i t w i l l o f t e n b e r a t h e r m ore d i f f i c u l t a c t u a l l y t o a p p ly th em i n f a c t s i t u a t i o n s o f t h i s t y p e . F or e x a m p le , t h e common la w p r o v i d e s g e n e r a l l y i n r e s p e c t o f o f f e n c e s o f i n t e n t i o n and r e c k l e s s n e s s , t h a t t h e d e f e n d a n t c a n o n l y b e made l i a b l e a s an a c c e s s o r y t o c r im e s t h e c o m m is s io n o f w h ic h h e h a s p r o m o te d o r f a c i l i t a t e d , an d w h ic h c o m m is s io n w as c o n t e m p la t e db y h im a s a p o s s i b l e e v e n t a t t h e t im e t h a t h e p e r p e t r a t e d h i s a c t o f c o m p l i c i t y ; b u t i t w i l l o f t e n b e r a t h e r m ore d i f f i c u l t a c t u a l l y t o a p p ly th em i n f a c t s i t u a t i o n s o f t h i s t y p e .

A c l a s s i c s i t u a t i o n o f t h i s t y p e , a s n o t e d b y Mr. B u x to n , i s t h a tw h e r e t h e a l l e g e d a c c e s s o r y s u p p l i e s g o o d s o r i n f o r m a t io n u s e d in t h e c o m m is s io n

18 19o f c r im e . As i t h a s b e e n n o t e d e l s e w h e r e , t h e m a jo r p o t e n t i a l p r o b le mi n t h e s u p p ly c o n t e x t c e n t r e s u p on t h e q u e s t i o n o f how d e t a i l e d t h e s u p p l i e r ’ sk n o w le d g e m u st b e a s t o t h e c i r c u m s t a n c e s o f t h e p r o p o s e d c r im e o r c r i m e s ,b e f o r e h e may b e i n c r i m i n a t e d a s an a c c e s s o r y . E ven w h e r e t h e s u p p l i e rk n ow s e x a c t l y w h at c r im e i s g o in g t o b e c o m m it t e d , i t may b e u n c e r t a i n a s t ow h e t h e r o r n o t h e i n c u r s l i a b i l i t y f o r e a c h an d e v e r y o n e o f s e v e r a l s u c hc r i m e s , w h e r e t h e p r i n c i p a l , in t h e e v e n t , c o m m its m ore t h a n o n e su c h c r im e .As Mr. B u x to n o b s e r v e s , t h e fo r m e r o f t h e s e m a t t e r s h a s b e e n t r a v e r s e d in

20t h e E n g l i s h C o u rt o f C r im in a l A p p e a l c a s e o f B a in b r id g e ( 1 9 6 0 ) , b u t t h ed i f f i c u l t i e s o f a p p ly in g g e n e r a l p r i n c i p l e s o f la w t o p a r t i c u l a r f a c t s i t u a t i o n s in t h i s c o n t e x t , r e m a in s .

C e r t a in o t h e r s i t u a t i o n s c o n c e r n i n g t h e p e r p e t r a t i o n o f a l l e g e d l y a c c e s s o r i a l a c t s i n a d v a n c e o f t h e c o m m is s io n o f t h e c r im e o r i n t h e a b s e n c e o f t h e p r i n c i p a l o f f e n d e r , may p r o d u c e p a r a l l e l i s s u e s o f l i a b i l i t y , a n da s s o c i a t e d d f f i c u l t i e s in d e l i m i t i n g t h e d e f e n d a n t ' s l i a b i l i t y . C e r t a i no f t h e s e a r e n o t e d i n C h a p te r F i v e , an d c o n c e r n t h e e x t e n t o f t h ed e f e n d a n t ' s r e s p o n s i b i l i t y w h e r e , f o r i n s t a n c e , t h e p r i n c i p a l c o m m its t h e sam e c r im e a s t h a t i n t h e d e f e n d a n t ' s c o n t e m p l a t i o n , b u t d e l i b e r a t e l y v a r i e s t h e c h o i c e o f v i c t i m ; o r w h e r e t h e c r im e c o n t e m p la t e d b y t h e d e f e n d a n t co m es t o b e c o m m itte d b y t h e p r i n c i p a l i n d i f f e r e n t c i r c u m s t a n c e s , o w in g t o a c h a n c e e v e n t , o r t o a m i s c a l c u l a t i o n b y t h e p r i n c i p a l , o r t o an e r r o r

91on t h e p a r t o f t h e p r i n c i p a l . " 18 19 20 21

1 8 . S e e " C o m p l ic i t y in t h e c r im in a l C ode" ( 1 9 6 9 ) 85 LQR 2 5 2 f f . , " C o m p l ic i t y an d t h e Law C o m m iss io n " j1 9 7 3 j C rim LR a t 2 2 3 f f .

1 9 . S e e p . 3 0 6 f f ,2 0 . [ i 9 6 0 ] 1 QB 129.2 1 . " C o m p l ic i t y and t h e Law C o m m iss io n jl973~j C r im LH 2 2 3 a t 2 2 7 - 8 *

46?

As Mr. B u x to n c o n c e i v e s i t , p r o b le m s o f t h e t y p e p r o d u c e d b y t h e s u p p l y c a s e s an d (b y i m p l i c a t i o n ) by o t h e r t y p e s o f c a s e a l s o , c o u ld r e a d i l y b e s i d e s t e p p e d b y a b o l i s h i n g t h e la w o f a c c e s s o r i a l r e s p o n s i b i l i t y and r e p l a c i n g i t w i t h an a n c i l l a r y o f f e n c e o f p r o m o t in g o r f a c i l i t a t i n g c r im e , t h e c o m m is s io n o f w h ic h o f f e n c e i s n o t d e p e n d e n t u p o n , an d i s in d e e d e x c l u s i v e o f t h e c o m m is s io n b y a n o t h e r o f t h e c r im e s o u g h t t o b e p r o m o te d o r f a c i l i t a t e d . I t i s a p p a r e n t t h a t m a t t e r s w o u ld b e s i m p l i f i e d u n d e r h i s p r o p o s a l . T he d e f e n d a n t ' s l i a b i l i t y f o r Mr. B u x t o n ' s a n c i l l a r y o f f e n c e w o u ld ( a p a r t fro m p u r e l y e v i d e n t i a l c o n s i d e r a t i o n s ) b e e v a l u a t e d s o l e l y b y r e f e r e n c et o h i s own a c t o f p r o s p e c t i v e p r o m o t io n o r f a c i l i t a t i o n o f a n o t h e r ' s c r im e .As i t w o u ld b e f o r m a l l y i r r e l e v a n t a s t o w h e t h e r o r n o t t h e c r im e s o u g h t t o b e p r o m o te d o r f a c i l i t a t e d w as a c t u a l l y c o m m it t e d , i t w o u ld b e u n n e c e s s a r y t o s c r u t i n i s e , and com e t o f a c t u a l c o n c l u s i o n s a b o u t f i r s t l y , t h e r e l e v a n c e o f h i s a c t t o t h e c o m m is s io n o f t h i s c r im e , and s e c o n d l y , t h e t e r m s o f h i sm e n ta l s t a t e i n r e s p e c t o f i t s p r o s p e c t i v e c o m m is s io n . R a t h e r , t h e e v a l u a t i o no f h i s l i a b i l i t y w o u ld , s e e m in g l y , b e c o n s i d e r a b l y s i m p l i f i e d , b e in gc o n f i n e d t o c o n s i d e r a t i o n o f t h e n a t u r e o f h i s im m e d ia te a c t , an d h i s a t t i ­t u d e t o t h i s a c t .

In Mr. B u x t o n ' s o p i n i o n , n o t h i n g w o u ld b e l o s t fro m t h e la w b y a d o p t in g h i s p r o p o s a l :

I t i s s u b m i t t e d t h a t t h e a c c e s s o r y ' s f a u l t , an d h i s d a n g e r t os o c i e t y , l i e s in h i s t a k i n g s t e p s t o p r o d u c e o r a s s i s t c r i m i n a la c t s b y o t h e r s , and t h e m ere f a c t t h a t t h o s e p r i n c i p a l c r im e s a r en o t , o r h a v e n o t y e t b e e n , c a r r i e d o u t b y t h o s e a i d e d o r i n c i t e dd o e s n o t i t s e l f l e s s e n t h e a c c e s s o r y ' s c u l p a b i l i t y o r t h e n e e dt o r e s t r a i n h im . I n d e e d , i f t h e a c t u a l o c c u r e n c e o f a c o m p le t e dc r im e w e r e a n e c e s s a r y c o n d i t i o n f o r t h e i m p o s i t i o n o f c r i m i n a ll i a b i l i t y i t w o u ld n o t b e p o s s i b l e t o j u s t i f y t h e e x i s t e n c e o f t h e

22la w o f a t t e m p t .

E a r l i e r , h e h a d e x p l a i n e d t h a t t h e p e r s o n who s u p p l i e s m a t e r i a l s23p r e p a r a t o r y t o t h e c o m m is s io n o f an o f f e n c e " d o e s t h e g u i l t y a c t w h ic h

t h e la w s e e k s t o f o r b i d a t t h a t t i m e , an d . . . o n l y b y g r e a t a r t i f i c i a l i t yo f r e a s o n i n g c a n h i s c u l p a b i l i t y b e r e l a t e d t o t h e s u b s e q u e n t a c t i o n s o f

, 24t h e p e r p e t r a t o r . 22 23 24

2 2 . " C o m p l ic i t y and t h e Law C o m m iss io n £ 1 9 7 3 ] C rim LR 2 2 3 a t 2 2 7 - 82 3 . S e e t h e d i s c u s s i o n o f t h i s t o p i c a t p , 3 :3 o f f .2 4 . " C o m p l ic i t y in t h e C r im in a l C o d e " ( 1 9 6 9 ) 85 LQR 2 5 2 a t 2 6 8

468

T h is r e a s o n i n g m u st b e q u e s t i o n e d . In t h e a b s t r a c t , an a c t c a l c u ­l a t e d t o p r o m o te o r t o f a c i l i t a t e c r im e i s , p e r h a p s , e q u a l l y c u l p a b l e , w h e t h e r o r n o t t h i s c r im e i s e v e n t u a l l y c o m m it t e d . In p r a c t i c e , h o w e v e r , t h e c o u r t s h a v e u s u a l l y d i s t i n g u i s h e d t h e s e tw o t y p e s o f s i t u a t i o n s o r a n a lo g o u s s i t u a t i o n s f o r t h e p u r p o s e s o f s e n t e n c i n g . T h u s t h e f a c t t h a t a c o n s p i r a c y h a s b e e n c o n su m m a te d , w i l l u s u a l l y w a r r a n t t h a t a p e r s o n c o n v i c t e d o f t h i sa c t o f a g r e e m e n t and s e n t e n c e d in r e s p e c t o f i t , w i l l r e c e i v e a h e a v i e r

25s e n t e n c e t h a n h e w o u ld h a v e i f t h e c o n s p i r a c y w as n o t a c t e d u p o n ; ac o n v i c t i o n f o r an u n s u c c e s s f u l a t t e m p t w i l l u s u a l l y a t t r a c t a l e s s e r s e n t e n c e , t h a n w o u ld a c o n v i c t i o n f o r t h e s u c c e s s f u l c o m m is s io n o f t h e c o r r e s p o n d i n g s u b s t a n t i v e c r im e ; an d a m ere c r i m i n a l i n c i t e m e n t o f a n o t h e r t o com m it a g i v e n c r im e X, w i l l g e n e r a l l y a t t r a c t a l e s s e r s e n t e n c e t h a n w o u ld a c o n v i c t i o n f o r t h e c o m m is s io n o f t h i s l a t t e r c r im e , w h e t h e r a s a p r i n c i p a l o r a c c e s s o r y . In sum m ary t h e n , t h e f a c t t h a t t h e d e f e n d a n t a c t u a l l ys u c c e e d s i n i n f l i c t i n g t h e harm w h ic h h e s e t s o u t t o i n f l i c t , a s d i s t i n c t fro m p e r f o r m in g som e p r e p a r a t o r y a c t t o w a r d s t h i s e n d w i l l , i n t h e l e g a l s y s t e m s o f t h e s u b j e c t j u r i s d i c t i o n s , i n v a r i a b l y b e t a k e n t o b e a c i r c u m s t a n c e o f a g g r a v a t i o n , an d t h u s t o w a r r a n t a h i g h e r p e n a l t y , i r r e s p e c t i v e t h a t t h ea c c u s e d ' s m e n ta l s t a t e may b e i d e n t i c a l i n b o t h s i t u a t i o n s . T h is s i t u a t i o nm ig h t b e c h a r a c t e r i s e d in t h e w o rd s o f an A m e r ic a n c o m m e n ta to r ( s p e a k in g a s i t h a p p e n e d , in r e l a t i o n t o c r i m i n a l c o n s p i r a c y ) : " c r i m i n a l i t y c o n s i s t s

2 6n o t i n d e t a c h e d s e p a r a t e a c t s , b u t i n t h e a n t i - s o c i a l e f f e c t s o f a c t s . . . "

I f , t h e r e f o r e , i t i s a c c e p t e d t h a t t h e q u e s t i o n o f w h e t h e r o r n o t t h e d e f e n d a n t ' s a c t , d o n e w i t h t h e i n t e n t i o n o r i n t h e e x p e c t a t i o n t h a t i t w i l l p r o m o te o r f a c i l i t a t e a n o t h e r t o com m it a c r i m e , h a s a c t u a l l y c o n t r i b u t e dt o t h e c o m m is s io n o f t h i s c r im e in h i s c o n t e m p la t io n - i . e . w h e t h e r o r n o t h e i s i m p l i c a t e d in t h i s s u b s t a n t i v e c r im e a t som e l e v e l - i s h i g h l y r e l e v a n t t o h i s p e n a l t y , i t i s e s s e n t i a l t h a t t h e d o c t r i n e o f a c c e s s o r i a l l i a b i l i t y ( o r som e c l o s e l y p a r a l l e l h e a d o f c r i m i n a l l i a b i l i t y ) s h o u ld be r e t a i n e d . T h i s i s b e c a u s e t h e p r e s e n t d o c t r i n e , w h ic h m ak es h i s l i a b i l i t y c o n t i n g e n t u p on t h e c o m m is s io n o f t h e s u b j e c t c r im e b y t h e p r i n c i p a l , d o e s n e c e s s a r i l y c o m p e l t h e t r i b u n a l o f f a c t t o m ake a f i n d i n g a s t o w h e t h e r o r n o t h e d i d a c t u a l l y c o n t r i b u t e t o t h e c o m m is s io n o f t h i s c r im e , w i t h t h e s p e c i f i e d d e g r e e o f k n o w le d g e . I t m ig h t b e a r g u e d , on Mr. B u x t o n ' s b e h a l f , t h a t t h e q u e s t i o n o f w h e t h e r o r n o t t h e p e r s o n c h a r g e d w i t h h i s a n c i l l a r y o f f e n c e d id a c t u a l l y c o n t r i b u t e t o t h e c o m m is s io n o f a n o t h e r ' s c r im e , may b e t a k e n i n t o a c c o u n t by t h e s e n t e n c i n g a u t h o r i t y . T h is 25 26

2 5 . S e e G i l l i e s , Law o f C rim in a l C o m p l i c i t y (Law Book C o . S y d n e y 1 9 8 0 ) a t p . 2 0 9 f26. F . S a y r e , " C r im in a l C o n s p ir a c y " ( 1 9 2 5 ) 35 H a r v a r d LR 3 9 3 a t 4 1 1 .

469

i s t r u e , b u t i f t h e i s s u e o f w h e th e r o r n o t t h e r e w as c o n t r i b u t i o n i n t h e s ete r m s i s an im p o r t a n t o n e , i t i s a p p r o p r i a t e t h a t i t i s d o t e r m in e d b y t h e t r i b u n a l r e s p o n s i b l e f o r d e t e r m i n in g l i a b i l i t y , w h ic h c a n o n ly h a p p e n i f s u c h c o n t r i b u t i o n i s a c o n d i t i o n o f l i a b i l i t y , Y.’h ern i n d i c t a b l e o f f e n c e s a r e c o n c e r n e d , t h i s t r i b u n a l w i l !. o f c o u r s e b e t h e j u r y an d n o t t h e s e n t e n c i n g au t h o r i t y ,

T he p ; . o p o s a l , t h a t b o t h t h e a b s t r a c t c u l p a b i l i t y , an d t h e fo r m a l l i a b i l i t y o f t h e p e r s o n who p e r p e t r a t e s a n a c t c a l c u l a t e d to p r o m o te o r f a c i l i t a t e t h e c o m m is s io n o f a c r im e b y a n o t h e r p e r s o n , a r e p r o p e r l yt o b e a s s e s s e d w i t h o u t r e f e r e n c e t o t h e q u e s t i o n o f w h e t h e r o r n o t h i s a c t d i d a c t u a l l y c o n d u c e t o t h e c o m m is s io n o f t h e c r im e i s , i t i s c o n s i d e r e d , o b v i o u s l y u n r e a l w h ere th e I n s t i g a t o r o f t h e c r im e i.s c o n c e r n e d ; an d i t i so n l y m a r k e d ly l e s s s o w h ere t h e d e f e n d a n t p a r t i c i p a t e s i n t h i s c r im e a sa c o e q u a l o f th e p r i n c i p a l o f f e n d e r ,

fy to r e o v e r , a t th e m ore t e c h n i c a l l e v e l , i t i s to b e q u e s t i o n e d a s to w h e t h e r t h e B u x to n p r o p o s a l w o u ld n o t , i n som e th o u g h n o t a l l c a s e s , s i m p l y s w e e p c e r t a i n o f t h e p r o b le m s a f f e c t i n g a c c e s s o r i e s w h ic h i t p u r p o r t s to r e s o l v e , u n d e r t h e c a r p e t . H is i n c h o a t e c r im e p r e s u m a b ly w i l l n o t be o n e o f a i d i n g o r e n c o u r a g in g c r im e s i m p l i c i t e r : a s w ith o t h e r i n c h o a t e o f f e n c e s , s u c h a s i n c i t e m e n t , i t w o u ld p r e su m a b ly b e in c u m b e n t u p on t h e p r o s e c u t i o n to s p e c i f y j u s t w h at c r im e th e d e f e n d a n t s o u g h t t o a id . o r to e n c o u r a g e , W h e r e , f o r e x a m p le , t h e d e f e n d a n t s u p p l i e s m a t e r i a l s u s e d i n t h e c o m m is s io n o f a g i v e n c r im e , h e w i l l h e n e e d to b e sh ow n to h a v e h a d i n m in d t h a t t h e p e r s o n / s s o su p p l i e d p la n n e d t o com m it t h i s c r im e • t h e r e h e i s m ore o r l e s s u n c e r t a i n a s t o w h a t c r im e o r c r im e s a r e p la n n e d to b e c o m m it t e d , th e sam e i s s u e w i l l a r i s e w h ere h e i s s o u g h t t o b e made l i a b l e e i t h e r a s a n a c c e s s o r y t o t h a c r im e o r c r i m e s , o r a l t e r n a t i v e l y , i n r e s p e c t o f Mr B u x t o n ’ s in d e p e n d e n t a n c i l l a r y c r im e - how d e f i n i t e , o r p r e c i s e , n e e d h i s k n o w le d g e h a v e b e e n , in o r d e r t h a t h e may b e in c r i m i n a t e d ?

Mr.' B u x to n s t a t e d t h a t " c o m p l i c i t y , o n c e e s t a b l i s h e d a s a s e p a r a t ec r im e , w o u ld h a v e t o b e i n d i c t e d a s s u c h , an d n o t c a m o u f la g e d a s an a c c u s a -

27t i o n o f c o m m it t in g t h e p r i n c i p a l c r im e ." T h is d e s c r i p t i o n o f h i s p r o p o s e dc r im e i s s e l f - c o n t r a d i c t o r y , i n t h a t " c o m p l i c i t y " d e n o t e s p a r t i c i p a t i o n i n t h e c r im e o f a n o t h e r , w h e r e a s Mr. B u x to n e n v i s a g e s h i s c r im e w i l l , b y d e f i n i t i o n , n o t b e c o n c e r n e d w i t h t h e d e t e r m i n a t i o n o f w h e t h e r o r n o t t h e d e f e n d a n t i s p a r t i c e p s c r l m t n i s in a n y o n e e l s e ’ s c r im e . T h is m a t t e r a s i d e , t h e com m en t, i t i s s u b m i t t e d , i s f o u n d e d u p on a f a l l a c y . T h is i s t h a t t h e common la w n e c e s s a r i l y p r e t e n d s t h a t t h e a c c e s s o r y a c t u a l l y c o m m its t h e s u b j e c t c r im e . T h is i t h a s b e e n p o i n t e d o u t , i s n o t s o . A c o n v i c t i o n f o r a c r im e a s an a c c e s s o r y r e c o g n i s e s t h a t t h e d e f e n d a n t h a s p a r t i c i p a t e d i n a s u f f i c i e n t l y p r o x im a t e w ay a s t o w a r r a n t t h a t h e s h o u ld b e c o n v i c t e d o f i t an d e x p o s e d t o t h e sam e p e n a l t y ma x im a a s i s t h e p r i n c i p a l o f f e n d e r .

I t i s c o n s i d e r e d t h a t h i s p r o p o s e d c r im e may w e l l f i n d a u s e f u l a p p l i c a t i o n i n r e s p e c t o f p r e p a r a t o r y a c t s c a l c u l a t e d t o p r o m o te o r f a c i l i t a t ec r im e ; b u t t h a t i t i s i n a p p r o p r i a t e t h a t t h e p e r s o n who a c t u a l l y c o n t r i b u t e s i n a s i g n i f i c a n t w a y , t o t h e c o m m is s io n o f a n o t h e r ’ s c r im e , s h o u ld b e e x p o s e d t o c o n v i c t i o n s o l e l y f o r a c r im e w h ic h i s a n c i l l a r y i n fo rm an d w h ic h d o e s n o t c o m p e l t h e t r i b u n a l o f f a c t t o d e t e r m in e w h e t h e r o r n o t t h e d e f e n d a n t a c t u a l l y c o n t r i b u t e d t o t h e c o m m is s io n o f t h e s e c o n d p e r s o n ' s c r im e . T h is i s e s p e c i a l l y t r u e , w h e r e t h e d e f e n d a n t p a r t i c i p a t e s i n h i s c o n f e d e r a t e ’ s c r im e i n a m a jo r w a y , s u c h a s f o r e x a m p le , w h e r e h e i n s t i g a t e s i t . I t i s n o t w i t h o u t s i g n i f i c a n c e , p e r h a p s , t h a t n e i t h e r t h e M od el P e n a l Code n o r t h e B r i t i s h Law C o m m is s io n 's w o r k in g p a r t y on c o m p l i c i t y ( i n W o rk in g P a p e r N o. 4 ? ) p r o p o s e d t h a t a c c e s s o r i a l l i a b i l i t y b e w h o l ly r e p l a c e d b y an i n d e ­p e n d e n t a n c i l l a r y o f f e n c e o f p r o m o t i n g / f a c i l i t a t i n g c r im e w h ic h i s n o t d e p e n d e n t , f o r i t s c o m m is s io n , u p on t h e p e r p e t r a t i o n b y a n o t h e r o f t h e c r im e s o u g h t t o b e t h u s p r o m o te d o r f a c i l i t a t e d .

(C) CONCLUSION - RETAINING ACCESSORIAL LIABILITY IN ITS PRESENT DERIVATIVE FORM _____________________________ _______

The d e r i v a t i v e n a t u r e o f a c c e s s o r i a l l i a b i l i t y p r o d u c e s p r o b le m sa t s e v e r a l l e v e l s . As i t h a s b e e n n o t e d e a r l i e r in t h i s s t u d y (a n d a s i t

2 8w i l l b e r e a f f i r m e d b e lo w ) c e r t a i n o f t h e s e h a v e b e e n o v e r c o m e b y t h e c o u r t so r l e g i s l a t u r e s in t h e s u b j e c t j u r i s d i c t i o n s , an d t h e y w o u ld n e e d t o b e 27 28

2 7 . " C o m p l ic i t y and t h e Law C o m m iss io n " [ l 9 7 3 ] C rim LR 2 2 3 a t 2 2 9 ,2 8 . S e e p p ? 3 6 f f , , 2 6 4 f f , , 3 5 4 a b o v e .

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a d d r e s s e d i n a n y c o d i f i c a t i o n o f t h e la w o f c o m p l i c i t y . O th e r s o f th em a r e m ore c o m p le x and i n t r a c t a b l e in n a t u r e . N o n e t h e l e s s i t i s c o n s i d e r e d t h a t t h e la w s h o u ld c o n t in u e t o p r o v id e t h a t i n a p p r o p r i a t e c i r c u m s t a n c e s t h e p e r s o n who p r o m o te s o r f a c i l i t a t e s a n o t h e r p e r s o n t o com m it a g i v e n c r im e s h o u ld b e l i a b l e t o c o n v i c t i o n in r e s p e c t o f t h i s c r im e . S u ch a h e a d o f l i a b i l i t y w o u ld ,b y d e f i n i t i o n , b e c o n t i n g e n t u p on t h e c o m m is s io n o f t h i s c r im e : i n t h i s s e n s e , t h e r e f o r e , i t w o u ld b e d e r i v a t i v e o f t h e s e c o n d p e r s o n ’ s p e r p e t r a t i o n o f i t . To i n s i s t t h a t t h e c o m m is s io n o f t h e p r i n c i p a l ' s c r im e s h o u ld b e a s i n e q u a n on o f t h e d e f e n d a n t ' s l i a b i l i t y w o u ld , s o i t h a s b e e n s e e n a b o v e , co m p e l t h e t r i b u n a l o f f a c t t o d e t e r m in e w h e t h e r o r n o t t h e d e f e n d a n t d id a c t u a l l y c o n t r i b u t e t o t h e p r i n c i p a l ' s a c t . T h is i s c o n c e i v e d t o b e d e s i r a b l e , t h e v ie w b e in g t a k e n t h a t t h e c o u r t s an d l e g i s l a t u r e s h a v e a lw a y s r e g a r d e d t h e c o m m is s io n o f a g i v e n c r im e a s w a r r a n t in g a h i g h e r p e n a l t y t h a n d o e s t h e s im p le p e r p e t r a t i o n o f a p r e l i m i n a r y a c t c a l c u l a t e d o r known t o b e c a p a b le o f b r i n g i n g a b o u t o r c o n d u c in g t o t h e p e r p e t r a t i o n o f t h i s c r im e b y a n o t h e r , w h e r e t h i s p r e l i m i n a r y a c t i s i t s e l f p u n i s h a b l e a s an i n c h o a t e o f f e n c e .

What fo rm s h o u ld t h i s h e a d o f l i a b i l i t y t a k e ? At p r e s e n t i t i s fo u n d in t h e la w in t h e form o f a c c e s s o r i a l l i a b i l i t y . As an a l t e r n a t i v e , a c o d i f i e d la w o f c o m p l i c i t y c o u ld p r o v i d e f o r an in d e p e n d e n t o f f e n c e o f i n s t i g a t i n g , e n c o u r a g in g t o a s s i s t i n g c r im e , t h e c o m m is s io n o f w h ic h i s d e p e n d e n t u p on e s t a b l i s h i n g b o t h t h e p e r p e t r a t i o n o f t h i s c o n t e m p la t e d c r im e ; a n d , f u r t h e r , t h a t t h e d e f e n d a n t ' s a c t d id a c t u a l l y c o n d u c e t o i t s p e r p e t r a t i o n . N o t h in g o f s u b s t a n c e t u r n s u p on t h i s d i s t i n c t i o n . As t h e i d e n t i c a l p o l i c y c o n s i d e r a t i o n s w o u ld u n d e r p in e a c h fo r m o f l i a b i l i t y , t h e i r s u b s t a n t i v e t e r m s ( i . e . t h o s e c o n c e r n in g t h e i d e n t i f i c a t i o n o f t h e m e n ta l and p h y s i c a l e l e m e n t s o f l i a b i l i t y ) w o u ld l o g i c a l l y b e i d e n t i c a l . I t i s p r o p o s e d t h a t t h i s h e a d o f d e r i v a t i v e l i a b i l i t y m ig h t j u s t a s w e l l c o n t i n u e t o t a k e t h e form o f a s p e c i f i c a l l y a c c e s s o r i a l l i a b i l i t y , a s in t h e p r e s e n t la w , p u r s u a n t t o w h ic h t h e d e f e n d a n t i s i d e n t i f i e d d i r e c t l y a s a p a r t i c i p a n t in t h e p r i n c i p a l ' s c r im e . The u n d e r ly i n g r a t i o n a l e f o r t h e d o c t r i n e i n c l u d e s t h e r a t i o n a l s u p p o s i t i o n s t h a t t h o s e who p a r t i c i p a t e in t h e j o i n t c o m m is s io n o f a c r im e in a s i g n i f i c a n t way a r e p r o p e r l y t o b e f i x e d w i t h r e s p o n s i b i l i t y f o r i t and e x p o s e d t o t h e sam e p e n a l t y m axim a , an d t h a t t h e p r e c i s e form o f e a c h i n d i v i d u a l ' s p a r t i c i p a t i o n ( i . e . w h e t h e r o r n o t h e p e r s o n a l l yp e r p e t r a t e d o r p e r s o n a l l y s h a r e d i n t h e p e r p e t r a t i o n o f i t s p h y s i c a l e l e m e n t s ) r e p r e s e n t s o n ly t h e m o st a r b i t r a r y b a s i s f o r d i s t i n g u i s h i n g

472

t h e l i a b i l i t y o f e a c h o f th e m , and t h e d e g r e e o f c u l p a b i l i t y w h ic h i s t o b e a t t a c h e d t o e a c h i n r e s p e c t o f h i s a c t . F or e x a m p le , t h e p e r s o n who p e r p e t r a t e s t h e c r im e may b e t h e d o m in a n t p a r t y ; on t h e o t h e r h a n d , t h e p e r s o n who c o n c e i v e s and i n s t i g a t e s t h e c r im e may n o t h i m s e l f p e r s o n a l l y p a r t i c i p a t e i n t h e p e r p e t r a t i o n o f i t s p h y s i c a l e l e m e n t s . I n m any c a s e s , t h a t i s , i t w i l l b e a s n a t u r a l t o v i e w t h e p e r p e t r a t i o n o f t h e c r im e a s b e i n g t h e m a jo r r e s p o n s i b i l i t y o f t h e s e c o n d a r y p a r t y , a s i t w i l l b e t o r e g a r d i t a s b e i n g t h e r e s p o n s i b i l i t y o f t h e p r i n c i p a l . I n m o s t o f t h e r e p o r t e d c a s e s , p e r h a p s , t h e p r i n c i p a l an d a c c e s s o r y h a v e p a r t i c i p a t e d a s c o e q u a l s ; in som e o f them t h e p r i n c i p a l h a s p a r t i c i p a t e d a s t h e d o m in a n t c o n f e d e r a t e , and h i s a c c e s s o r y a s h i s s u b o r d i n a t e ; w h i l e i n o t h e r s t h e c o n v e r s e s i t u a t i o n h a s o b t a i n e d .

( I I ! ) THE OVERALL STRUCTURE OF THE LAW OF PARTIESA c c e p t in g ( f o r t h e r e a s o n s d e t a i l e d u n d e r ( I I ) a b o v e ) t h a t th e

la w s h o u l d , w h e r e a p p r o p r i a t e , m ake r e s p o n s i b l e f o r a g i v e n c r im e a p e r s o n w ho h a s n o t p e r s o n a l l y p e r p e t r a t e d o n e o r m ore o f t h e p h y s i c a l e l e m e n t s o f t h i s c r im e , i t w o u ld b e n e c e s s a r y i n a n y c o d e t o c o n t i n u e t o d i v i d e c r i m i n a l p a r t i e s i n t o tw o c a t e g o r i e s o f o f f e n d e r f o r c e r t a i n s u b ­s t a n t i v e p u r p o s e s . T h is d i v i s i o n w o u ld , i n g e n e r a l t e r m s , b e o n e b e tw e e n ( 1 ) t h e p e r s o n w ho p e r s o n a l l y p e r p e t r a t e s o n e o r m o re o f t h e p h y s i c a l e l e m e n t s i n an o f f e n c e , and ( 2 ) t h e p e r s o n w ho p e r fo r m s an a c t o f p r o m o t io n o r s u p p o r t , i n r e s p e c t o f t h e a c t u a l p e r p e t r a t o r ' s c o n d u c t , s u b j e c t i n e a c h c a s e t o m ore s p e c i f i c p r o v i s i o n s d e t a i l i n g o r l i m i t i n g l i a b i l i t y . (T h e p r e c i s e c o n d i t i o n s o f t h e l i a b i l i t y r e f e r r e d t o u n d e r ( 2 ) , w h ic h a r e s u g g e s t e d f o r i n c l u s i o n i n a c o d e , a r e d e t a i l e d u n d e r (IV ) an d (V ) b e l o w . ) T h e s e tw o d i f f e r e n t t y p e s o f o f f e n d e r w o u ld c o n v e n i e n t l y b e i d e n t i f i e d b y s e p a r a t e t e r m s : f o r e x a m p le , t h e f i r s t o f f e n d e r c o u l d b e c a l l e d a p r i n c i p a l o r p e r p e t r a t o r , an d t h e s e c o n d o f th em an a c c e s s o r y , o r s e c o n d a r y p a r t y .I n t h e a l t e r n a t i v e , t h e c o d e c o u ld p r o v id e s im p ly t h a t a p e r s o n s h a l l b e in c r i m i n a t e d i n an o f f e n c e b y v i r t u e o f p e r s o n a l a n t i c i p a t i o n i n i t s p h y s i c a l c o m m is s io n , o r by v i r t u e o f an a c t o f p r o m o t io n o r s u p p o r t ( o f a t y p e w h ic h w o u ld n e e d t o b e s p e c i f i e d ) , w i t h o u t f o r m a l l y l a b e l l i n g e a c h s u c h c a t e g o r y o f p a r t i c i p a t i o n . T h e r e i s o f c o u r s e n o d i f f e r e n c e o f s u b s t a n c e b e t w e e n e i t h e r o f t h e s e a p p r o a c h e s ; and e v e n w e r e t h e s e c o n d t o b e a d o p t e d , c o n s i d e r a t i o n s o f p r a c t i c a l c o n v e n ie n c e w o u ld c o m p e l t h e in f o r m a l a d o p t io n o f an a p p r o p r i a t e s y s t e m o f n o m e n c la t u r e , s u c h a s t h a t o f " p r i n c i p a l ' ' and " a c c e s s o r y " .

473

T h a t s u c h a f o r m a l d i v i s i o n o f c r i m i n a l p a r t i c i p a n t s w o u ld n e e d t o b e m ade i s e m p h a s is e d w h en i t i s rem em b ered t h a t t h e c o n d u c t r e q u i r e d o f e a c h w i l l n e c e s s a r i l y d i f f e r , and t h u s b e a n a l y t i c a l l y d i s t i n c t . W here t h e p r i n c i p a l , o r p e r p e t r a t o r i s c o n c e r n e d , t h e f o c u s o f a t t e n t i o n m u s t n e c e s s a r i l yb e u p on h i s c o m m is s io n o f t h e a c t c o n s t i t u t i n g o r c a u s i n g t h e p e r p e t r a t i o n o f t h e p h y s i c a l e l e m e n t s in t h e o f f e n c e , an d h i s a t t i t u d e t o t h i s a c t . Thea c c e s s o r y o r s e c o n d a r y p a r t y ? h o w e v e r , i s n o t m ade l i a b l e b y r e f e r e n c e t o t h e d e f e n d a n t ’ s a c t a l o n e , b u t a l s o b y r e f e r e n c e t o h i s c o n c u r r e n t o r a n t e c e d e n t c o m m is s io n o f an a c t o f a q u i t e d i f f e r e n t c h a r a c t e r , v i z , o n e o f p r o m o t io n o r s u p p o r t o f t h e p r i n c i p a l . A c c o r d i n g l y , t h e d e f i n i t i o n o f a c c e s s o r i a l l i a b i l i t y m u st t a k e a c c o u n t o f h i s m e n t a l s t a t e i n r e l a t i o n t o e a c h o f th e m .

I t i s f o r t h e s e r e a s o n s t h a t t h e r e f o r m p r o p o s a l s i n b o t h t h e M o d elP e n a l C o d e: T e n t a t i v e D r a f t , and t h e B r i t i s h Law C o m m is s io n 's w o r k in g p a p e ro n c o m p l i c i t y ( W o r k i n g P a p e r N o . 4 3 ) p r e s e r v e t h i s g e n e r a l d i v i s i o n b e t w e e np e r p e t r a t o r s a n d s e c o n d a r y p a r t i e s . I n W o r k i n g P a p e r N o . 4 3 , a s i t h a p p e n s ,t h e common la w u s a g e s o f " p r i n c i p a l ” an d " a c c e s s o r y " w e r e e m p lo y e d b y t h e

29w o r k in g p a r t y i n f o r m u l a t i n g i t s p r o p o s a l s . I n t h e M o d el P e n a l C ode3 0t h e s e u s a g e s a r e n o t f o r m a l ly e m p lo y e d . And t h e S o u th A u s t r a l i a n C r im in a l

Law R efo rm C o m m itte e in i t s F o u r th R e p o r t : "The S u b s t a n t i v e C r im in a l Law"p r e s e r v e s a l i k e d i s t i n c t i o n b e tw e e n t h o s e w ho p e r p e t r a t e c r im e and t h o s ew ho " c o u n s e l , e n c o u r a g e , f a c i l i t a t e o r a s s i s t " in i t s c o m m is s io n , th o u g hn o t i n g t h a t " an y [ o t h e r ] e x i s t i n g d e c i s i o n s , and t h e t e r m in o lo g y r e l a t i n g

3 1t h e r e t o " o u g h t t o b e a b o l i s h e d .

O b v io u s ly c e r t a i n o f t h e s u b s t a n t i v e an d p r o c e d u r a l a n o m a l i e s r a i s e db y t h e d i s t i n g u i s h i n g o f p r i n c i p a l s an d a c c e s s o r i e s a t common la w , s h o u ld b e a l l e v i a t e d b y s p e c i f i c p r o v i s i o n in a c o d e . T he s u b s t a n t i v e a n o m a l i e s a r e p r o d u c e d b y t h e d e r i v a t i v e s t a t u s o f a c c e s s o r i a l l i a b i l i t y . A t common la w f o r e x a m p le , d i f f i c u l t i e s h a v e a r i s e n w h e r e t h e p e r p e t r a t o r o f t h e p h y s i c a l c o n d u c t i n an o f f e n c e i s w i t h o u t t h e m e n t a l e l e m e n t r e q u ir e d b y t h e d e f i n i t i o n o f t h i s o f f e n c e , an d d o e s n o t } t h e r e f o r e , i n c u r c r i m i n a l l i a b i l i t y . 29 30 31

2 9 . W o r k i n g P a p e r N o . 4 3 a t p . 5 .3 0 . S e e s . 2 . 0 6 o f t h e M o d e l P e n a l C o d e : P r o p o s e d O f f i c a l D r a f t .3 1 . F o u r t h R e p o r t : " T h e S u b s t a n t i v e C r i m i n a l L a w " (1977) at p * 3 0 8 .

474

One a n sw e r to th e p r o b le m s r e s u l t i n g h a s b e e n t h e e v o l u t i o n b y t h e common la wc o u r t s o f t h e d o c t r i n e o f i n n o c e n t a g e n c y a c c o r d in g t o w h ic h t h e p e r s o n whop r o m o te s o r f a c i l i t a t e s th e in n o c e n t o r i r r e s p o n s i b l e a g e n t may b e v ie w e d a sa c o n s t r u c t i v e p r i n c i p a l o f f e n d e r . F o r r e a s o n s n o t e d e l s e w h e r e , i t i sc o n s i d e r e d t h a t a c o n c e p t u a l l y n e a t e r s o l u t i o n w o u ld b e t o i n c r i m i n a t e t h i sl a t t e r p a r t y b y r e s o r t t o t h a t p a r t o f a c o d e w h ic h im p o s e s l i a b i l i t y u p ont h e s e c o n d a r y o f f e n d e r , r a t h e r th a n b y e x t e n d i n g t h e d e f i n i t i o n o f t h ep e r p e t r a t o r t o i n c l u d e t h o s e who a c t t h r o u g h o t h e r p e r s o n s w h ic h l a t t e ra r e f o r o n e r e a s o n o r a n o t h e r , r e l i e v e d o f c r i m i n a l l i a b i l i t y . O b v io u s lys u c h a s o l u t i o n w o u ld r e q u i r e a s p e c i f i c p r o v i s i o n p r e s e r v i n g t h e o p e r a t i o no f t h e g e n e r a l d o c t r i n e o f s e c o n d a r y l i a b i l i t y i n s u c h a c o d e , i n s i t u a t i o n so f t h i s t y p e . P r o v i s i o n s d e s ig n e d t o o v e r c o m e t h i s an d o t h e r s u b s t a n t i v ea n o m a l ie s r e s u l t i n g fro m d i v i s i o n s b e t w e e n c r i m i n a l p a r t i e s a t common la w ,

32a r e n o t e d b e lo w . P r o v i s i o n s d i r e c t e d t o o v e r c o m in g p r o c e d u r a l a n o m a l i e s33r e s u l t i n g from t h i s p r o c e s s o f d i v i s i o n a t common la w a r e a l s o n o t e d b e lo w .

The r e s u l t s o f t h e f o r e g o i n g d i s c u s s i o n may b e s u m m a r is e d . Ac o d i f i c a t i o n o f t h e la w o f c r i m i n a l p a r t i e s s h o u ld p r o v id e t h a t a p e r s o n maycom m it an o f f e n c e e i t h e r by ( ! ) p e r s o n a l l y p e r p e t r a t i n g o n e o r m ore o f i t sp h y s i c a l e l e m e n t s , o r b y ( 2 ) p r o m o t in g o r f a c i l i t a t i n g t h e c o m m is s io n o ft h i s o f f e n c e , o r a t l e a s t , i t s p h y s i c a l e l e m e n t s b y a n o t h e r . T he s p e c i f i cte r m s in w h ic h t h i s l a t t e r h e a d o f l i a b i l i t y m ig h t b e d e f i n e d a r e c a n v a s s e du n d e r (TV) an d (V) b e lo w . No d o u b t i t w o u ld b e a p p r o p r i a t e t o c h a r g e ano f f e n d e r d i r e c t l y w i t h t h e s u b j e c t o f f e n c e , d e t a i l i n g i n p a r t i c u l a r ^ t h ep r e c i s e m ode ~>f p a r t i c i p a t i o n w h ic h t h e p r o s e c u t i o n p r o p o s e s t o r e l y up on

34xn s e e k i n g tc m ake g o o d i t s a l l e g a t i o n s .

( IV ) THE AMBIT OF ACCESSORIAL LIABILITY

(A ) PRELIMINARY COMMENTSA c c e p t in g t h a t t h e la w s h o u ld c o n t i n u e t o i n c r i m i n a t e t h e p e r s o n

who p r o m o te s o r f a c i l i t a t e s a n o t h e r p e r s o n ' s c o m m is s io n o f a c r im e i n t h i s c r im e , q u a a c c e s s o r y , i t i s c o n s i d e r e d n o n e t h e l e s s t h a t a c o m p e l l i n g c a s e c a n b e m ade o u t f o r t h e c o n t r a c t i o n o f t h e s c o p e o f s e c o n d a r y c r i m i n a l l i a b i l i t y . 32 33 34

3 2 . S e e p * 4 9 0 , and s e e t h e g e n e r a l d i s c u s s i o n a t p . 2 6 0 i f .3 3 . S e e p . 4 9 ^3 4 . S e e p . 4 9 ‘j> b e l o w .

475

A t common law ( a s o u t l i n e d i n C h a p te r s F iv e t o S e v e n ) , a p e r s o n whok n o w in g ly i n s t i g a t e s , e n c o u r a g e s o r a s s i s t s a n o t h e r to com m it a c r im e o f

35i n t e n t i o n , m d who a t t h i s t im e a c t s e i t h e r w i t h t h e i n t e n t i o n t h a t t h ep r i n c i p a l s h o u ld com m it t h i s c r im e i n t h o s e c i r c u m s t a n c e s w h ic h d i s c l o s e i t sc r i m i n a l n a t u r e , o r a l t e r n a t i v e l y , i n t h e k n o w le d g e t h a t t h e p r i n c i p a l o r

36p r o s p e c t i v e p r i n c i p a l i s p o s s i b l y c o m m it t in g i t o r t h a t h e w i l l p o s s i b l ycom m it i t i n t h e f u t u r e , in t h o s e c i r c u m s t a n c e s , i n c u r s l i a b i l i t y f o r t h i sc r im e a s an a c c e s s o r y i n t h e e v e n t t h a t i t i s a c t u a l l y c o m m it t e d . I t i sc l e a r , i n t h e s e t e r m s , t h a t t h e t h r e s h o l d o f a c c e s s o r i a l l i a b i l i t y i s insom e r e s p e c t s lo w e r a s co m p a red t o t h e c i r c u m s t a n c e o f t h e p r i n c i p a l o f f e n d e r :( 1 ) A t t h e p h y s i c a l l e v e l , t h e p r i n c i p a l o f f e n d e r m u st e i t h e r p e r p e t r a t e t h ec r i m i n a l e v e n t , o r a l t e r n a t i v e l y , c a u s e i t t o h a p p e n . C o n v e r s e l y , t h ea c c e s s o r y n e e d o n l y ( a t t h e m inim um ) p e r fo r m an a c t o f s u p p o r t w h ic h c o n d u c e si n o n l y a m a r g in a l w ay t o t h e p r i n c i p a l ’ s p e r p e t r a t i o n o f t h e c r i m i n a l e v e n t .I t i s s u f f i c i e n t , s o i t h a s b e e n s e e n , t h a t t h e a c c e s s o r y ’ s a c t may b e r e g a r d e da s e n c o u r a g in g o r a s s i s t i n g t h e p r i n c i p a l ’ s a c t . T he c o u r t s h a v e n o t r e q u ir e dt h a t s u c h p a r t i c i p a t i o n i n t h e p r i n c i p a l ’ s a c t s h o u ld t a n g i b l y , s u b s t a n t i a l l yo r m a t e r i a l l y e n c o u r a g e o r a s s i s t t h e p e r p e t r a t i o n o f t h e l a t t e r ’ s a c t .T h u s , i n su m m ary , w h i l e t h e p r i n c i p a l ’ s a c t m u st e i t h e r c o n s t i t u t e , o r s o l e l yo r s u b s t a n t i a l l y i n f l u e n c e t h e h a p p e n in g o f t h e c r i m i n a l e v e n t , the. a c c e s s o r y ’ sn e e d o n l y c o n t r i b u t e t o t h i s e v e n t i n a m in o r w a y . ( 2 ) T he p r i n c i p a l m u s t ,w h en h e a c t s s o a s t o p r o c u r e t h e h a p p e n in g o f a c r i m i n a l e v e n t , p o s s e s s t h ei n t e n t i o n , o r p u r p o s e t h a t t h e c r i m i n a l e v e n t s h o u ld t a k e p l a c e ; i . e . , h em u st d e s i r e t h a t t h i s e v e n t s h o u ld h a p p e n ; o r a l t e r n a t i v e l y , know t h a t i t i s

37c e r t a i n t o h a p p e n . E ven w h e r e l i a b i l i t y may b e im p o s e d u p o n a p r i n c i p a li n r e s p e c t o f an o f f e n c e o f i n t e n t i o n b y v i r t u e o f r e c k l e s s c o n d u c t on h i s

38p a r t t h e d e g r e e o f r e c k l e s s n e s s r e q u i r e d i s g e n e r a l l y a h ig h o n e . T y p i c a l l y , 35 36 37 38

3 5 . F o r t h e m om ent i t w i l l b e c o n v e n i e n t t o c o n f i n e t h e f o l l o w i n g d i s c u s s i o n t o t h e c i r c u m s t a n c e s o f c o m p l i c i t y i n a c r im e o f i n t e n t i o n (w h ic h c o n c e p t i s d e f i n e d a t p . 11 0 a b o v e ) ; f o l l o w i n g w h ic h com m ent w i l l b e d i r e c t e d t o t h e q u e s t i o n o f s e c o n d a r y i m p l i c a t i o n i n c r im e s w i t h a l e s s e r m e n ta l e l e m e n t .

3 6 . T h is f o r m u l a t i o n o f p r i n c i p l e c o v e r 's t h e uncom m on s i t u a t i o n , w h ere t h e a c c e s s o r y - a c t s c o n c u r r e n t l y w i t h th e c o m m is s io n o f c r im e b u t i n t h e p r i n c i p a l ’ sa b s e n c e .

3 7 . I t i s a s su m e d t h a t w h e r e X f o r e s e e s t h a t an e v e n t i s c e r t a i n t o f l o w fr o mh i s c o n d u c t , h e may b e v i e w e d a s i n t e n d i n g t h a t i t s h o u ld h a p p e n : s e ep . 9 3 f f .a b o v e .

3 8 . S e e p , 9 5 f f . a b o v e . I t may b e t h a t d e c i s i o n s im p o s in g l i a b i l i t y i n t h i sc ir c u m s t a n c e , a r e c o n s i s t e n t w i t h t h e e x i s t e n c e o f a g e n e r a l c o n c e p t o f c o n s t r u c t i v e i n t e n t i o n w h ic h may b e a p p l i e d w h en e v a l u a t i n g l i a b i l i t y f o r e a c h an d e v e r y o f f e n c e o f i n t e n t i o n ; o r on t h e o t h e r h a n d , t h a t t h e y may b e c o n s i s t e n t w i t h th e v ie w t h a t a l l o f f e n c e s o f i n t e n t i o n m ay , i n t h e a l t e r n a t i v e , b e c o m m itte d r e c k l e s s l y , th o u g h t h e p o s i t i o n i s on an o v e r a l l v i e w , a m b ig u o u s i n b o th t h e s e r e s p e c t s . S e e a t j d .

476t h e p r i n c i p a l i s r e q u ir e d t o h a v e f o r e s e e n t h a t t h e c r i m i n a l c o n s e q u e n c e i s a ’’p r o b a b l e 1' o r ’’l i k e l y " o u tc o m e o f h i s a c t , i . e . , f o r e s i g h t on h i s p a r t t h a t t h i s e v e n t i s a m e r e ly " p o s s i b l e " o u tc o m e o f

h i s c o n d u c t i s i n s u f f i c i e n t t o g r o u n d 39l i a b i l i t y . I n c o n t r a s t , w h i l e an a c c e s s o r y may a c t w i t h t h e i n t e n t i o n t h a t

t h e p r i n c i p a l s h o u ld com m it t h e s u b j e c t c r im e , i t i s n o t n e c e s s a r y t h a t h e s h o u ld do s o . He m ay , a t t h e t im e t h a t h e p e r fo r m s h i s a c t o f i n c r i m i n a t i o n know w i t h c e r t a i n t y t h a t t h e p r i n c i p a l i s o r w i l l com m it t h e c r im e ; i n t h i s s i t u a t i o n , h i s m o r a l c u l p a b i l i t y i s l i t t l e d i f f e r e n t fr o m t h a t o f t h e p u r p o s iv e a c c e s s o r y . B u t i t w i l l o f t e n h a p p e n , t h a t t h e n o n - p u r p o s i v e a c c e s s o r y w i l l b e i n c r i m i n a t e d i n an o f f e n c e o f i n t e n t i o n u p on t h e b a s i s o f w h a t i s , on o n e v i e w , a r e l a t i v e l y a t t e n u a t e d fo r m o f r e c k l e s s n e s s . F o r w h e r e h e a c t s i n a d v a n c e o f t h e c o m m is s io n o f t h e c r im e , o r a l t e r n a t i v e l y , w h e r e h e a c t s c o n c u r r e n t l y w i t h i t s c o m m is s io n , b u t n o t i n t h e p r i n c i p a l ’ s p r e s e n c e , ^ i t i s s u f f i c i e n t f o r h i s l i a b i l i t y t h a t h e a p p r e c i a t e s t h a t t h e p r i n c i p a l w i l l p o s s i b l y com m it t h e c r im e , o r ( i n t h e l a t t e r s i t u a t i o n ) t h a t h e i s p o s s i b l y c o m m it t in g i t . T he c o u r t s do n o t , t h a t i s , r e q u i r e a f o r e s i g h t t h a t t h i s c o m m is s io n i s a " l i k e l y " e v e n t , o r ( i n t h e l a t t e r s i t u a t i o n ) a k n o w le d g e t h a t t h e p r i n c i p a l i s " p r o b a b ly " o r " l i k e l y " t o b e c o m m it t in g i t . As i t h a s b e e n n o t e d i n C h a p te r F i v e , " p r o b a b le " i s a r a t h e r s t r o n g e r e x p r e s s i o n th a n " p o s s i b l e " i n t h i s an d r e l a t e d c o n t e x t s i n t h e c r i m i n a l la w ; and w h e r e e a c h o f th em i s u s e d t o d e f i n e a c o n c e p t o r t y p e o f r e c k l e s s k n o w le d g e , o r c o n d u c tth e f i r s t o f th em im p u te s a s i g n i f i c a n t l y h i g h e r c u l p a b i l i t y . I n summary t h e n o n - p u r p o s i v e p r i n c i p a l c a n n o t in g e n e r a l b e c o n v i c t e d o f an o f f e n c e o f i n t e n t i o n w h e r e h e f o r e s e e s a c r i m i n a l e v e n t a s a m e r e ly p o s s i b l e , a s o p p o s e d t o p r o b a b le o u tc o m e o f h i s b e h a v io u r ; c o n v e r s e l y , t h e n o n - p u r p o s i v e a c c e s s o r y may b e c o n v i c t e d w h e r e h e p e r fo r m s an a c t o f i n c r i m i n a t i o n , p r o v id e d o n ly t h a t h e f o r e s e e s t h a t t h e p e r s o n th u s a s s i s t e d o r e n c o u r a g e d w i l l p o s s i b l y p e r p e t r a t e t h i s c r i m i n a l e v e n t . C o n c e iv a b ly t h i s p o s s i b i l i t y , i n t h e o r y a t l e a s t , may b e a r e m o te o n e , in t h e e s t i m a t i o n o f t h e p o t e n t i a l a c c e s s o r y , and y e t h e w i l l i n c u r l i a b i l i t y n o n e t h e l e s s upon t h e p e r p e t r a t i o n o f t h e r e l e v a n t event* 39 40

3 9 . S e e p . V ) 2 f f . a b o v e *4 0 . So t h a t , i n t h i s l a t t e r s i t u a t i o n , h e w i l l n o t n e c e s s a r i l y know f o r

c e r t a i n c h a t t h e c r im e i s b e in g c o m m it t e d .

477

T he a n o m a l i e s t h a t t h i s d i s t i n c t i o n b e t w e e n p a r t i e s c a n p r o d u c emay e a s i l y b e i l l u s t r a t e d . C o n s id e r f o r e x a m p le t h e common la w c r im e o fm u r d e r , w h ic h i s c o m m itte d , i n t e r a l i a , b y t h e p e r p e t r a t o r who d o e s an a c tc a u s i n g d e a t h f o r e s e e i n g t h a t d e a t h o r g r i e v o u s b o d i l y harm w i l l p r o b a b ly

41r e s u l t , a l t h o u g h h e d o e s n o t i n t e n d t h a t e i t h e r s h o u ld r e s u l t . T he n o n -p u r p o s iv e p e r p e t r a t o r o f s u c h an a c t w ho f o r e s e e s d e a t h a s a p o s s i b l e , b u t l e s s th a n p r o b a b le o u tc o m e o f h i s a c t , d o e s n o t in c u r l i a b i l i t y a t common la w f o r m u rd er ( a s s u m in g t h a t h i s a c t d o e s n o t in v o k e t h e d o c t r i n e o f c o n s t r u c t i v e m u r d e r ) . B u t t h e p e r s o n w ho ( th o u g h w i t h o u t a n y i n t e n t i o nt h a t d e a t h o r g r i e v o u s b o d i l y harm s h o u ld r e s u l t ) , i n s t i g a t e s , e n c o u r a g e s o r a s s i s t s a n o t h e r t o do an a c t c a u s i n g d e a t h i n a d v a n c e o f t h i s l a t t e r a c t ,c o n t e m p la t in g n o m ore th a n t h a t t h e p r o s p e c t i v e p r i n c i p a l w i l l p o s s i b l y com m it an a c t w h i c h , i f d o n e , w i l l p r o b a b ly c a u s e d e a t h - i . e . , t h e p e r s o n w ho i n e f f e c t , a c t s f o r e s e e i n g d e a t h a s a m e r e ly p o s s i b l e , r a t h e r th a n p r o b a b le e v e n t - w i l l n o n e t h e l e s s in c u r l i a b i l i t y a s an a c c e s s o r y . T h e r e s u l t i s a l l t h e m ore c u r io u s w h en i t i s rem em b ered t h a t t h e p r i n c i p a l m u s t c a u s e t h e d e a t h , w h i l e t h e a c c e s s o r y n e e d o n ly c o n t r i b u t e t o t h e p r i n c i p a l ' s a c t i n a m in o r w a y .

I n r e s p e c t o f o f f e n c e s o f i n t e n t i o n , t h e n , t h e p r i n c i p a l o f f e n d e r m u st a c t w i t h a s i g n i f i c a n t l y h i g h e r d e g r e e o f c u l p a b i l i t y th a n n e e d t h e a c c e s s o r y ( t h o u g h t h i s i s n o t t o s a y t h a t i n many f a c t s i t u a t i o n s t h e l a t t e rw i l l n o t a c t i n a c o m p a r a b ly c u l p a b l e w a y ) . To r e i t e r a t e , t h e p r i n c i p a l o f f e n d e r i s r e q u ir e d t o p e r p e t r a t e t h e a c t c o n s t i t u t i n g o r c a u s i n g t h eo c c u r r e n c e o f t h e c r i m i n a l e v e n t ; i n c o n t r a s t , t h e a c c e s s o r y ' s a c t n e e d n o tr e p r e s e n t m ore th a n a m in o r c o n t r i b u t i o n t o t h e p e r p e t r a t i o n o f t h i s e v e n t . F u r t h e r , t h e p r i n c i p a l o f f e n d e r m u st a c t e i t h e r w i t h t h e p u r p o s e o f e f f e c t i n gt h e c r i m i n a l e v e n t , o r a l t e r n a t i v e l y ( i n t h e c a s e o f som e c r im e s o f i n t e n t i o na t l e a s t ) , w i t h a h ig h d e g r e e o f r e c k l e s s n e s s . C o n v e r s e l y , t h e a c c e s s o r y , w h e r e h e a c t s e i t h e r w i t h o u t p u r p o s e o r w i t h o u t c e r t a i n k n o w le d g e o f t h e p r e s e n t o r f u t u r e c o m m is s io n o f t h e s u b j e c t c r im e , n e e d o n l y a p p r e h e n d o r 41

4 1 . T h is h e a d o f m u rd er may b e v ie w e d a s an o f f e n c e o f r e c k l e s s n e s s ;a l t e r n a t i v e l y , i t may c o n c e i v a b l y b e v i e w e d a s r e p r e s e n t i n g an i n s t a n c eo f t h e i m p o s i t i o n o f l i a b i l i t y f o r an o f f e n c e o f i n t e n t i o n , by r e s o r tt o a p r i n c i p l e , o r d o c t r i n e o f a c o n s t r u c t i v e i n t e n t i o n : s e e P P . 9 7 - 8 .

478

f o r e s e e i t s c o m m is s io n a s a m ere p o s s i b i l i t y . T h e r e s u l t i s t h a t t h e p r i n c i p a lo f f e n d e r ’ s c o n d u c t m u st a lw a y s s t a n d i n t h e c l o s e s t r e l a t i o n s h i p w i t h t h eo c c u r r e n c e o f t h e c r i m i n a l e v e n t , w h i l e t h e a c c e s s o r y may b e i n c r i m i n a t e d i nt h e sam e c r im e b y v i r t u e o f r e l a t i v e l y t a n g e n t i a l c o n d u c t , w h ic h m ak es n om ore th a n a m in o r c o n t r i b u t i o n t o t h e p r i n c i p a l ’ s c r im e an d w h ic h c o n d u c t i s ,t h e r e f o r e , o f an a l t o g e t h e r d i f f e r e n t , an d l e s s b la m e w o r th y c h a r a c t e r . T heco m m en ta ry a c c o m p a n y in g t h e p r o p o s a l s a f f e c t i n g a c c o m p l i c e s i n t h e M od elP e n a l C od e: T e n t a t i v e D r a f t l i s t s a nu m ber o f i n s t r u c t i v e i n s t a n c e s o f t h et y p e o f m in o r s e c o n d a r y p a r t i c i p a t i o n i n a n o t h e r ’ s c r im e b y t h e n a n - p u r p o s i v ea c c e s s o r y . A d o c t o r c o u n s e l s a g a i n s t an a b o r t i o n , b u t , a t t h e p a t i e n t ’ si n s i s t e n c e , r e f e r s h e r t o a c o m p e t e n t a b o r t i o n i s t . A u t i l i t y p r o v i d e s at e l e p h o n e o r t e l e g r a p h s e r v i c e , k n o w in g t h a t i t i s u s e d f o r b o o k m a k in g . Ane m p lo y e e p u t s th r o u g h a s h ip m e n t in t h e c o u r s e o f h i s e m p lo y m e n t k n o w in gt h a t t h e s h ip m e n t i s i l l e g a l . A fa r m -b o y c l e a r s t h e g r o u n d f o r s e t t i n g up an

42i l l e g a l s t i l l , k n o w in g t h a t t h e v e n t u r e i s i l l e g a l . I n e a c h o f t h e s es i t u a t i o n s t h e m o r a l b la m e w o r t h in e s s o f t h e a s s i s t a n t ’ s a c t i s s i g n i f i c a n t l y l e s s th a n t h a t o f t h e p r i n c i p a l o r p r i n c i p a l s w ho c o n c e i v e an d t r a n s a c t t h e c r i m e .

D o u b t l e s s s u c h d i f f e r e n c e s i n t h e c h a r a c t e r o f e a c h a c c o m p l i c e ' s p a r t i c i p a t i o n i n a g i v e n c r im e c a n b e t a k e n i n t o a c c o u n t b y t h e t r i a l j u d g e o r m a g i s t r a t e i n s e n t e n c i n g t h e p a r t i c i p a n t s ; b u t i t i s t o b e b o r n e i n m in dt h a t c o n v i c t i o n a s an a c c e s s o r y d o e s a f t e r a l l i d e n t i f y t h e d e f e n d a n t a s an o f f e n d e r e q u a l l y w i t h t h e p r i n c i p a l . H a v in g r e g a r d t o t h e r a t h e r m ores t r i n g e n t l i m i t s u p o n t h e a m b it o f c r i m i n a l l i a b i l i t y a s a p r i n c i p a l o f f e n d e r o u t l i n e d a b o v e , and g i v e n t h a t t h e t e s t s g o v e r n in g t h e l a t t e r ’ s l i a b i l i t y m u stb e ta k e n t o e x p r e s s t h e n o r m a t iv e , o r p r e v a i l i n g c o n c e p t i o n o f t h e p r o p e r l i m i t s o f c r i m i n a l l i a b i l i t y i n t h e common la w j u r i s d i c t i o n s , i t i s c o n s i d e r e d t h a t t h e c a s e f o r c o n t r a c t i n g t h e a m b it o f a c c e s s o r i a l l i a b i l i t y , by e x c l u d i n gt h e m ore t a n g e n t i a l a c t s o f s e c o n d a r y e n c o u r a g e m e n t o r a s s i s t a n c e o f a n o t h e r ' s c r im e from i t s s c o p e , i s a s t r o n g o n e . To do t h i s w o u ld b e t o a l i g n t h e fu n d a m e n t a l c o n d i t i o n s o f a c c e s s o r i a l l i a b i l i t y m ore c l o s e l y w i t h t h o s e a p p l y i n g in t h e c a s e o f t h e p r i n c i p a l o f f e n d e r . 42

4 2 . M od el P e n a l C o d e: T e n t a t i v e D r a f t a t p . 2 8 . I t w a s a s su m e d o f c o u r s e t h a t an a b o r t i o n i n t h e c i r c u m s t a n c e s c o n t e m p la t e d in o n e o f t h e s e e x a m p le s , w a s i l l e g ’l .

479

W here o f f e n c e s o t h e r th a n t h o s e o f i n t e n t i o n a r e c o n c e r n e d , t h ec o n t r a s t b e tw e e n t h e r e s p e c t i v e p o s i t i o n o f t h e p r i n c i p a l a n d a c c e s s o r y , i nte r m s o f t h e m inim um c o n d i t i o n s o f c r i m i n a l i t y , i s a v a r i a b l e o n e . I n o n er e s p e c t t h e i r p o s i t i o n s a r e p r e c i s e l y p a r a l l e l , in t h a t e a c h m u st h a v e t h esam e k n o w le d g e o f t h e n a t u r e o f t h e p r i n c i p a l ' s a c t , a n d /o r t h e s u r r o u n d in gr e l e v a n t c i r c u m s t a n c e s ( w i t h t h e o b v io u s e x c e p t i o n o f a b s o l u t e o f f e n c e s , w h e r et h e a c c e s s o r y ’ s k n o w le d g e m u s t , i n m o s t o f t h e s u b j e c t j u r i s d i c t i o n s , b e m ore

43c o m p r e h e n s iv e th a n t h a t o f t h e p r i n c i p a l ) . I n o t h e r r e s p e c t s t h e e l e m e n t so f t h e i r r e s p e c t i v e l i a b i l i t y d i f f e r . I n r e s p e c t o f e a c h s u c h c l a s s o fo f f e n c e , t h e p r i n c i p a l ’ s c o n d u c t m u st c o n s t i t u t e o r c a u s e t h e o c c u r r e n c e o ft h e c r i m i n a l h a rm , w h i l e t h e a c c e s s o r y n e e d o n l y c o n t r i b u t e t o t h i s e v e n t in

44a m in o r w a y . W h ere o f f e n c e s o f r e c k l e s s n e s s a r e c o n c e r n e d t h e p r i n c i p a lm u st a c t w i t h t h e p r e s c r i b e d d e g r e e o f r e c k l e s s n e s s . W here t h i s c o n s i s t sin a d v e r t e n c e t o t h e harm a s a m e r e ly p o s s i b l e e v e n t t h e p o s i t i o n o f t h etw o p a r t i e s i s l i t t l e d i f f e r e n t : t h e a c c e s s o r y l i k e w i s e , n e e d o n l y a p p r e h e n dt h a t t h e p r i n c i p a l w i l l p o s s i b l y com m it an a c t o f t h i s p r e s c r i b e d d e g r e e o fr e c k l e s s n e s s , i n t h e r e l e v a n t c i r c u m s t a n c e s , i n o r d e r t o i n c u r l i a b i l i t y .T he s i t u a t i o n i s d i f f e r e n t , h o w e v e r , w h e r e t h e t e s t o f e v e n t u a l i t y g o v e r n in gan o f f e n c e o f t h i s ty p e i s a m ore d e m a n d in g o n e . I f t h e p r i n c i p a l i s r e q u ir e dt o f o r e s e e t h a t t h e harm w i l l " p r o b a b ly ]* o r i n ' ’l i k e l y " t o r e s u l t fro m t h i s c o n d u c t ,h e m u s t , in o r d e r t o i n c u r l i a b i l i t y , a c t w i t h a s u b s t a n t i a l d e g r e e o fc u l p a b i l i t y . I n t h e c a s e o f the. a c c e s s o r y , h o w e v e r , i t w o u ld a p p e a r t o b es u f f i c i e n t ( e x t r a p o l a t i n g fr o m t h e p r i n c i p l e s o f a c c e s s o r i a l m en s r e ae n u n c i a t e d in t h e c o n t e x t o f o f f e n c e s o f i n t e n t i o n ) , t h a t h e a p p r e h e n d s t h a ti t i s p o s s i b l e t h a t t h e p r i n c i p a l w i l l e n g a g e in c o n d u c t w h i c h , i f c o m m it t e d ,w i l l ' 'p r o b a b ly " c a u s e t h e p r e s c r i b e d h a rm . T he c o n t r a s t i s l e s s s t a r t l i n g

45i n r e s p e c t o f o f f e n c e s o f n e g l i g e n c e . H e r e i t i s s u f f i c i e n t i n e a c h c a s et h a t t h e p r i n c i p a l an d a c c e s s o r y a r e a w a r e o f t h e c i r c u m s t a n c e s fro m w h ic h i tmay b e ( o b j e c t i v e l y ) i n f e r r e d t h a t t h e p r i n c i p a l ' s c o n d u c t i s o f t h ep r e s c r i b e d d e g e e e o f n e g l i g e n c e . A s i m i l a r g e n e r a l com m ent may b e m ade in

46r e l a t i o n t o o f f e n c e s o f c o n s t r u c t i v e l i a b i l i t y . I n c a s e s o f t h i s t y p e t h eo f f e n d e r ( i . e . , p r i n c i p a l o r a c c e s s o r y ) n e e d o n l y h a v e t h e sam e ( a t t e n u a t e d )k n o w le d g e o f r e l e v a n t c i r c u m s t a n c e s ; s p e c i f i c a l l y , n e i t h e r n e e d a d v e r t t o t h e p o s s i b i l i t y t h a t t h e c o n d u c t g r o u n d in g t h e s u b j e c t c r im e , may b e c o m m it t e d . 43 44 45 46

4 3 . S e e C h a p .o .4 4 . S e e g e n e r a l l y a t p p . 1 0 1 f f * , 1 11 .4 5 . S e e g e n e r a l l y a t p . 1 c) 6 f f »4 6 . S e e g e n e r a l l y a t p . 1 5 4 f f .

480

F i n a l l y , t h e p o s i t i o n s o f the. p r i n c i p a l an d a c c e s s o r y a r e r e v e r s e d , w h e r ea b s o l u t e o f f e n c e s a r e c o n c e r n e d , a t l e a s t i n most: o f t h e j u r i s d i c t i o n s . I nc o n t r a s t w i t h t h e c ir c u m s t a n c e o f o f f e n c e s o f i n t e n t i o n , t h e a c c e s s o r y m u s t ,a t o n e l e v e l , a c t w i t h a g r e a t e r d e g r e e o f c u l p a b i l i t y th a n i s r e q u ir e d ( a tt h e m inim um ) o f t h e p r i n c i p a l . U n l ik e t h e l a t t e r , t h e a c c e s s o r y m u st s e e o rf o r e s e e t h a t t h e p r i n c i p a l ’ s c o n d u c t i s b e in g c o m m it te d o r w i l l b e c o m m itte d

47i n t h o s e c i r c u m s t a n c e s d i s c l o s i n g i t s c r i m i n a l n a t u r e .

B e f o r e f o r m u la t in g p r o p o s a l s f o r a c o n t r a c t i o n o f a c c e s s o r i a l l i a b i l i t y , i t w i l l b e c o n v e n i e n t t o l o o k , n e c e s s a r i l y b r i e f l y , a t t h e c e n t r a l p r o p o s a l s a f f e c t i n g t h e s c o p e o f t h i s l i a b i l i t y , p u b l i s h e d b y t h e A m e r ic a n Law I n s t i t u t e , t h e B r i t i s h Law C o m m iss io n an d t h e S o u th A u s t r a l i a n C r im in a l Law R efo rm C o m m it te e . I t i s s t r e s s e d t h a t o n ly t h e c o r e p r o p o s a l s o f e a c h a r e r e f e r r e d t o b e lo w ; n e c e s s a r i l y , e a c h s u c h f o r m u l a t i o n h a s h a d t o b e q u a l i f i e d o r a m p l i f i e d b y i t s f r a m e r , i n f u r t h e r s p e c i f i c p r o p o s a l s w h ic h r e l a t e , b yan d l a r g e , t o t h e a p p l i c a t i o n o f t h e c e n t r a l d o c t r i n e i n c e r t a i n s p e c i a l i s e df a c t s i t u a t i o n s .

(B ) SOME REFORM PROPOSALS : THE AMERICAN LAW IN STIT U TE , THE BRITISH LAW COMMISSION, AND 'THE SOUTH AUSTRALIAN CRIMINAL LAW REFORM COMMITTEE

4 8( 1 ) The M o d el P e n a l C od e: P r o p o s e d O f f i c i a l D r a f tT he M o d el P e n a l C ode o f t h e A m e r ic a n Law I n s t i t u t e i s in t h e fo r m

o f a m o d e l s t a t u t e . The C o d e 's p r o v i s i o n s r e g a r d in g c r i m i n a l c o m p l i c i t y a r efo u n d i n s . 2 . 0 6 o f t h e P r o p o s e d O f f i c i a l D r a f t . T h e s e p r o v i s i o n s p r e s e r v e , m ore o r l e s s , t h e common la w d i s t i n c t i o n b e tw e e n t h e p e r p e t r a t o r o f a c r im e an d t h e p e r s o n who p r o m o te s o r f a c i l i t a t e s t h i s c o m m is s io n , th o u g h i t d o e s n o t f o r m a l ly l a b e l e a c h o f f e n d e r a s a p r i n c i p a l o f f e n d e r an d a c c e s s o r y r e s p e c t i v e l y ( s e e s . 2 . 0 6 ( 1 ) and ( 2 ) ) . S e c t i o n s 2 . 0 6 ( 3 ) - ( 4 ) a r e t h e c o r e p r o v i s i o n s d e a l i n g w i t h s e c o n d a r y l i a b i l i t y , and r e a d a s f o l l o w s :S e c t i o n 2 . 0 6 . . .

( 3 ) A p e r s o n i s an a c c o m p l ic e o f a n o t h e r p e r s o n in t h e c o m m is s io n o f an o f f e n s e i f :

( a ) w i t h t h e p u r p o s e o f p r o m o t in g o r f a c i l i t a t i n g t h e c o m m is s io n o f t h e o f f e n s e , l ie( i ) s o l i c i t s s u c h o t h e r p e r s o n to com m it i t ; o r( i i ) a i d s o r a g r e e s o r a t t e m p t s to a id s u c h o t h e r p e r s o n

in p la n n in g o r c o m m it t in g i t ; o r 47 48

4 7 . S e e g e n e r a l l y a t p . 1 6 8 1 1 *4 8 . The f o l l o w i n g a c c o u n t o f t h e c o r e p r o p o s a l s i n t h e M od el P e n a l C o d e: P r o p o s e d

O f f i c i a l D r a f t i s e x p a n d e d u p on a t som e p o i n t s in G i l l i e s , T he Law o f C r im in a l Comp l i c i t y (Law B ook C o , , S y d n e y , 1 9 8 0 ) a t p . 2 9 f f .

481

( i i i ) h a v in g a l e g a l d u ty to p r e v e n t t h e c o m m is s io n o f t h e o f f e n s e , f a i l s to m ake p r o p e r e f f o r t s o t o d o ; o r

(b ) h i s c o n d u c t i s e x p r e s s l y d e c l a r e d b y la w t o e s t a b l i s h h i s c o m p l i c i t y .

( 4 ) When c a u s i n g a p a r t i c u l a r r e s u l t i s an e l e m e n t o f an o f f e n s e , an a c c o m p l ic e i n th e c o n d u c t c a u s i n g s u c h r e s u l t i s an a c c o m p l i c e i n t h e c o m m is s io n o f t h a t o f f e n s e , i f he a c t s w i t h t h e k in d o f c u l p a b i l i t y , i f a n y , w i t h r e s p e c t t o t h a t r e s u l t t h a t i s s u f f i c i e n tf o r t h e c o m m is s io n o f t h e o f f e n s e .

S u b s e c t i o n ( 3 ) b o th s t i p u l a t e s t h e p h y s i c a l c o n d u c t r e q u i r e d o f49a c c e s s o r i e s ( i . e . , t h a t t h e a c c e s s o r y do an a c t o f s o l i c i t a t i o n o r a i d o r

50o n e o f a g r e e m e n t t o a i d , e t c . ) " and t h e m e n ta l s t a t e r e q u ir e d f o r a c c e s s o r y -s h i p , S u b s e c t i o n ( 4 ) i s in t e n d e d t o q u a l i f y t h e o p e r a t i o n o f s s . ( 3 ) i n th e

51c i r c u m s t a n c e o f a c c e s s o r i a l in v o lv e m e n t i n an o f f e n c e b e lo w o n e o f i n t e n t i o ns o t h a t i t i s s u f f i c i e n t f o r a c c e s s o r i a l l i a b i l i t y t h a t t h e a c c e s s o r y h a v e , a tt h e t im e o f h i s a c t o f c o m p l i c i t y , no m ore k n o w le d g e o f t h e c i r c u m s t a n c e sw h ic h d o , o r w i l l s u r r o u n d t h e c o m m is s io n o f t h e a c t u s r e u s o f t h e o f f e n c e

52t h a n i s n e e d e d t o i n c u l p a t e t h e p r i n c i p a l .

S e c t i o n 2 . 0 6 ( 3 ) ( a ) i s t h e p r i n c i p a l o f t h e s e p r o v i s i o n s , i n t h a t i tw i l l a p p ly in m o s t s i t u a t i o n s o f s e c o n d a r y p a r t i c i p a t i o n ( e i t h e r a l o n e o rw h e r e a p p r o p r i a t e , in c o n j u n c t i o n w i t h s s . ( 4 ) ) . I t d e p a r t s r a d i c a l l y fr o m t h e

53common la w i n r e q u i r i n g t h a t t h e a c c e s s o r y m u s t a c t w i t h t h e " p u r p o s e " ' t h a t t h e p r i n c i p a l o f f e n d e r s h o u ld com m it t h e o f f e n c e o r a t l e a s t ( i n s o f a r a s t h e s i t i i a t i o n i s o n e co m p r e h e n d e d by s s . ( 4 ) , w h ic h o p e r a t e s i n c o n j u n c t i o n w i t h s s . ( 3 ) ) , t h e c r i m i n a l a c t c a u s i n g t h i s . I n t h i s r e s p e c t , a si t w i l l b e a p p r e c i a t e d in th e l i g h t o f t h e d i s c u s s i o n u n d e r (A ) a b o v e , t h e a c c e s s o r y ’ s l i a b i l i t y i s c o n t r a c t e d v i s - a - v i s t h e common la w p o s i t i o n , an d i t s b a s a l c o n d i t i o n s a r e m ore c l o s e l y a l i g n e d w i t h t h o s e g o v e r n in g l i a b i l i t y a s a p r i n c i p a l o f f e n d e r , i n t h e common la w j u r i s d i c t i o n s . 49 50 51 52 53

4 9 . W hich c o n c e p t i s d e f i n e d i n s . 5 . 0 2 o f t h e M o d el P e n a l C o d e: P r o p o s e d O f f i c i a l D r a f t .

5 0 . T h e s e a c t s e m b r a c e th e common la w c a t e g o r i e s o f p h y s i c a l a c t s c a p a b le o f g r o u n d in g a c c e s s o r i a l l i a b i l i t y , i . e . , t h o s e o f i n s t i g a t i o n , e n c o u r a g e m e n t o r a s s i s t a n c e .

5 1 . S e e t h e d e f i n i t i o n o f t h i s c o n c e p t a t p . 1 1 0 .5 2 . S e e t h e com m en tary i n t h e M odel P e n a l C od e: T e n t a t i v e D r a f t a t p . 3 4 .5 3 . T h is w a s a syn o n y m f o r t h e u s a g e o f " i n t e n t i o n " a s e m p lo y e d in th e common

la w o f c r im e . " P u r p o se " i s d e f i n e d i n t h e M o d el P e n a l C ode in s . 2 . 0 2 a s m e a n in g , i n t e r a l i a , a " c o n s c io u s o b j e c t " , i . e . , o f b e h a v i o u r . S e e t h e d i s c u s s i o n in t h e M odel P e n a l C o d e: T e n t a t i v e D r a f t a t p . 2 7 ; an d s e e G i l l i e s , The Law o f C r im in a l C o m p l ic i t y (Law B o ok C o . , S y d n e y , 1 9 8 0 )p p . 29 7 - 8 . '

It must be questioned, however, as to whether the rion-purposiveparticipant in another’s crime, ought not to be inculpated as an accessory,in certain situations. Though he may act without the intention, or purposethat the subject crime should be committed, the secondary participant maynonetheless be highly blameworthy; whether because of the gravity of theoffence, or the character of his assistance, or because it is done during thecommission of the crime when the assistant is in no doubt as to the consequenceof his act, and so forth. For example, the assistant in crime hands a knifeto the principal in order that the killer may stab (and kill) a person in

54their presence; or the assistant points out a prospective killer s victim55to the killer knowing of his declared intention to shoot this person; or the

56assistant restrains another person from going to the aid of a rape victim;or he sends a letter to the prospective principal instructing him how to blow

5 7open a safe. In each case the assistant deserved to be punished. His state of mind is highly reprehensible, and of course his act of assistance is integral to the consummation of the crime which might not otherwise have been committi.d were it not for his act of encouragement and/or facilitation.

It is to be noted that the Model Penal Code: Proposed Official Draftdoes not propose any contraction of secondary liability at the level ofaccessorial actus reus: clearly the acts of incrimination postulated ins.2.06(3) are more or less conterminous with the categories of acts whichsuffice to incriminate at common law. Note, however, the provisional proposalfor modification of this aspect of accessorial liability in the Model Penal

5 8Code: Tentative Draft.

(2) THE BRITISH LAW COMMISSION’S WORKING PAPER NO. 43 (1 ) p r e 11 m i nary C o rumen b

The working party assisting the Commission in the examination of theprinciples of criminal complicity made a number of proposals on this topic inthe Commission’s Working Paper No. 43 ("Parties, complicity and liability forthe acts of another"), which was issued in June 1972. These proposals were

59stated not to have been intended as the words of a draft statute. For all of this, they do represent an undertaking, albeit a provisional one, to enunciate a comprehensive regime of principle which veers in this direction. 54 55 56 57 58 59

54. See Farduto (1912) 10 DLR 669 for an alleged fact situation of this type(the appellant claimed that he was reluctant to part with his razor and didso under duress.)

55. Harding [1976] VR 29.56. Mayberry [1973] Qd R 211.57. Baker (1909) 28 NZLR 536.58. See p. ;6 above.59. Working Paper No. 43, Introduction, p,1.

(2) Proposltions 6 and _7The major proposals in the Working Paper concerning accessorial

liability are propositions 6 and 7. Under Proposition 6 an accessory issaid to be "one who incites or helps the commission of an offence by aprincipal," with "incitement" being said to include "encouragement and

60authorisation." The range of acts which qualify as an act of complicity under this formulation is of course identical with that provided by the common law authorities, viz , any act of instigation, encouragement or other assistance is sufficient to inculpate the defendant, subject to proof that he possessed the required mental element.

The major part of Proposition 7 is as follows:PROPOSITION 7

(1) Subject to the following paragraphs, a person is accessory to an offence by reason of conduct described in Proposition 6 only if he -(a) intends that the offence be committed; or(b) knowingly helps the commission of the offence

with knowledge of the external elements of the offence and of any necessary mental state of the principal,

and does not act with the purpose of preventing the commission of the. offence or of nullifying its effects.

The paragraphs in 7(2) constitute an elaboration of para. (7)(1) in terms which by anc large reproduce common law principles, so that an accessory is made liable for a crime even if, for example, he did not know of the precise details of its commission at the time he acted. Together paragraphs 7(1) and (2) express the working party’s conception of the principles which ought to govern the accessory’s mental element in respect of offences of intention. Paragraphs 7(3) and (4) draw on the principles in s.7(1) and (2), butqualify them where appropriate in dealing with offences below those of. . 61intention. 60 61

60. The full text of Proposition 6 is found in id. at p.35.61. For example, Paragraph 7(3) provides that where an offence is committed

recklessly, it is sufficient for the liability of the accessory that heknows of the recklessness of the person whom he incites or helps; i.e.,by implication it is unnecessary that the defendant does not know of allof the external elements of this offence.Paragraph 7(4) deals with accessorial liability for offences of

negligence or of strict liability.

Paragraph 7(1) is the major of these provisions. It clearly reproduces the common law position, in providing that the accessory need not act with the intention that the criminal act, or act causing its occurrence, should be perpetrated. While certainly a person who acts with this purpose will become an accessory, it is (as at common law) sufficient in the alternative if he performs his act of complicity in the knowledge of the principal’s or prospective principal’s intention to commit this crime (i.e., in paragraph 7(1)(b)).

In the commentary accompanying these formulations, however, theworking party stressed its intention that "recklessness" should on noaccount inculpate a person as an accessory to an offence "requiring a mental

6 2state." This matter does not appear to have been dealt with in theirformulated principles. Clearly the working party had in mind that aperson who does not act with the intention that the subject offence becommitted, but who unwittingly or even carelessly promotes or supports thecommission of an offence of this type should not be incriminated as anaccessory. Thus, the working party gave the hypothetical example of thedefendant who, in a newspaper article, declared that all dictators oughtto be killed. His intention was to do no more than to cause consternationduring the forthcoming visit of a foreign dictator, but he was recklessas to whether or not this dictator is killed. The dictator was subsequently

6 3murdered by a person who read the article. This person, the working party envisaged, would not incur liability under its proposals. But it is difficult to know what the limits of this principle of non-incrimination through recklessness are. What of the person who, though not intending that P should commit a crime, nonetheless does render him an act of facilitation knowing that it is possible, or even probable that P will go on and subsequently commit this crime? On one view, he acts recklessly in respect of this potential event. It is not clear that the proposals in Working Paper No. 43 would relieve the defendant in all such circumstances as these or that they were meant to. 62 63

62. See Working Party No. 43 at p.49.63. See pp.47-8. Another illustration is given at p.49, which emphasises

that a person does not become an accessory under Paragraph 7(1)(b)unless he has actual knowledge of the criminal intention of theprincipal or prospective principal.

405

(3) The Proposals of the Cr i min a I Law Reform Comml tt: ee_ of South A us trail aThe Criminal Law and Penal Methods Reform Committee of South

Australia has canvassed the law of accomplices in its Fourth Report, entitlednThe Substantive Criminal Law", which was issued in 1977. The committee didnot set out to draft a comprehensive criminal code, and its proposals inrespect of accomplices do not, it is clear, purport to deal comprehensivelywith this subject, as distinct from comment upon selected aspects of it.The committee did not propose any modification to the law governing thephysical elements in accessoryship; however, of immediate interest is itssuggestion that the doctrine of common purpose be redefined in terms ofrecklessness. Specifically, it was proposed that "the degree of recklessnessrequired to make a defendant liable for an offence committed by the principaloffender [i„e,, in the circumstance of a common criminal enterprise] should

6 Abe realisation of a substantial risk that that offence will be committedThere is no reason why this principle should be applied only in the contextof the common criminal purpose, which concept indeed, is no more than areformulation of the general principles of complicity and as such, incomplete conformity with them. It may well be that the committee had inmind the more general situation of the promotion or facilitation by P of A,in the contemplation that P would or might commit a crime in the future,irrespective of whether they were strictly in concert, in the sense of having

6 *5agreed upon the commission of this crime, ' viz , that the usage of "common purpose" is to be understood broadly in this context. Its invocation in all such complicity situations would obviously represent acontraction of the ambit of secondary liability at common law. Pursuant to

6 6the latter, it has been seen, it is sufficient for incrimination that A,though he does not intend that the crime should be committed, nonethelessrenders P an act of assistance or other support in the contemplation that he

6 7will possibly go on and commit the subject crime. Clearly this possibilityneed not amount to a substantial risk. This limitation upon the non-purposiveaccessory’s liability is thought to be a worthwhile one (see below under (C)).The committee would likewise invoke this principle of recklessness so as tolimit the liability of the casual lender of tilings used in a criminal

68enterprise. 64 65 66 67 68

64. Criminal Law Reform Committee, Fourth Report: "The Substantive CriminalLew" (F uith Aus >, 1977) at p.303.

65. Concert in this sense is not integral to accessorial liability: see p p .8-9»11Jtf,66. See bhup.e, especially at p*112 ff.67. See p . 1 I •68. See the Fourth Report: "The. Substantive Criminal Law" ( Stnsife Austf

1 9 7 7 ) <t t p . 3 0 5 - 6 .

486

(C) CONTRACTING THE SCOPE OF ACCESSORIAL LIABILITY

(1) In Relation to Offences of IntentionThe rules governing the scope of accessorial liability as it exists

in the common law jurisdictions and as it has been outlined in the precedingpages should, it is considered, be modified at two basic levels. Firstly,as suggested earlier in this study, the physical element in accessoryshipshould be reformulated so as to require that the accessory's act ofinstigation, encouragement or assistance of the principal offender mustmaterially contribute to the latter's act. As matters stand now, theaccessory can conceivably be incriminated by virtue of an act which conduces

69in only the most marginal way, to the principal's act.

Secondly, the mental element in accessoryship should likewise be modified so as to narrow the ambit of secondary responsibility. (For the moment, comment will be directed to the circumstance of complicity in an offence of intention). There can be little argument with the notion that the purposive secondary criminal participant, i.e., who acts with the intention that the subject crime should be committed, should be incriminated as an accessory; and this common law principle of accessorial mens rea has been preserved in each of the several sets of reform proposals outlined under the preceding heading. And likewise, where the person who acts in such a way as to instigate, encourage or assist another to commit a crime, without the intention that it should be committed, but who knows that it is certain to be committed or is being committed (and this will obviously be the situation where he performs an act of promotion or support concurrently with the commission of this crime) is deserving of incrimination. But what of the non-purposive accessory who acts without this certain knowledge? As it has been noted earlier, it is sufficient for liability under the present law that the accessory who acts in advance of the criminal act (or by analogy, he who acts concurrently with its commission, but in the absence of the principal) need only foresee (or apprehend) its commission as a mere possibility. This, it is considered, extends the scope of accessorial liability too much, especially when it is allowed that the principal usually is not incriminated in an offence of intention where he does the act causing the criminal consequence, without desiring that this latter event should take place, but foreseeing its occurrence as a merely possible, rather than probable or likely event. This difference in the conditions of governing the liability of each participant could lead to absurd results; one of these has been noted under (A) above.^ 69 70

69. See p. l i f t ' ,70. See p. 47?.

487Accordingly, it is proposed that the secondary participant in

another's crime who acts in circumstances amounting (on one view) torecklessnes? , i.e., who performs an act of complicity without the purposethat the crime be committed, and without certain knowledge that it is orwill be comrnitted, should only incur liability as an accessory, where heknows or foresees that there is a "substantial risk" that it is, or willbe committed. This usage^ obviously requires that the accessory mustapprehend or foresee the commission of the crime as a more than merelypossible event, and thus requires him to act with a greater measure ofculpability than does the present law. It is preferable to the expressionof "probable" which is employed as a test of foresight elsewhere in thecommon law, in that it is less ambiguous (though in practice,it may bespeculated, each such expression would operate in a comparable way, as

72applied by a jury or other tribunal of fact).

(2) In Relation to Offences Other Than Those of IntentionIt is considered that the rules governing accessorial incrimination

in offences of intention should,subject to one obvious qualification, likewise govern this party’s incrimination in offences other than those of intention. There is no obvious reason why the situation ought to be other­wise: the same principles, again with one exception, govern secondary participation in each bracket of offence at common law and, subject to this exception, no such distinction is proposed in any one of the reform documents outlined under (B) above. The one exception to this general proposition concerns of course the degree of understanding and knowledge relevant to the nature of the principal’s act and/or the circumstances surrounding its commission, with which the accessory must act. Certain types of offence, i.e., those of recklessness, negligence, constructive liability, strict liability, etc., do not require that the perpetrator should act with the same degree of intention and/or knowledge of relevant circumstances as is required of him by an offence of intention. The 71 72

71. Which was employed by the Criminal Law Reform Committee of SouthAustralia in certain of its proposals affecting the law of complicityin its Fourth Report, 'The Substantive Criminal Law in 1977: see p.4 8^ above*

72. A significant ambiguity associated with the usage of "probable" iswhether it is to be construed as requiring that the event referred tomust be, statistically, more than fifty percent likely to happen. Thisis one of its connotations, and yet to so construe it would render such atest of foresight unduly restrictive, and protective of the defendant:see p. 1 04 f f «The same criticism may be directed to "likely", which word is a

synonym of "probable".

4 68

policy objectives which are sought to be served by the prescription of a relatively attenuated mental state in respect of these offences, logically require that the accessory should be incriminated on a parallel basis, i.e., that he should not, in order to incur liability, be required to act with any more comprehensive an understanding or knowledge of the nature and/or circumstances of the principal's act, than need the latter. The result of adhering to this principle would be, for example, that the defendant would, pursuant to the other principles outlined above, become an accessory to an offence of negligence where he instigates, encourages or assists the principal to commit the conduct constituting or causing the prohibited harm, in such a way as to materially contribute to this conduct, provided that when he acts he Intends that this conduct be committed, or knows that it is being or that it will be committed, or believes that there is a substantial risk that it is being or will be committed and further, that he possesses the same degree of understanding or knowledge of its nature

73and/or circumstances of its perpetration as is required of the principal.

(3) The Scope of Criminal Accessoryship: A Summary of ProposalsIt is considered that a person should become an accessory to

another’s crime provided that74(1) he knowingly instigates, encourages or assists this

latter person to perpetrate the conduct constituting or causing the physical elements in this crime, provided that his act materially contributes to the principal’s own act; and

75(2) at the time of so acting he intends ' that the principal’s conduct, should take place, or knows that it is being or 73 74 75

73. In general the perpetrator of an offence of negligence will need to knowof no more than the circumstances which disclose that his act is of theprescribed degree of negligence, even as he does not draw this inferencehimself.

74. I.e., in the sense that he appreciates that his act does actuallyconduce to the principal's conduct.

75. These words may be inserted to make it clear that an accessory who intendsthat an offence should be committed subject to a contingency - for example,one who intends that the principal should shoot X, only if X resists beingrobbed - is to be viewed, nonetheless, as intending that X should be shot.They may be considered to be otiose, in that the concept of intention atcommon 'aw, which would obviously affect the construction of any suchusage i ■. a code, includes the concept of what might be called conditionalintention (see Williams, CLGP at p.52).

489

will be perpetrated, or believes that there is a substantial .76risk that it is being or that it will be perpetrated; and

(3) he possesses the same degree of understanding or knowledge of the nature and/or circumstances of the principal’s conduct, as is required of the principal by the definition of the offence.

(V) SUPPLEMENTARY AMPLIFICATIONS/QUALIFICATIONS OF THE SUBSTANTIVE RULES GOVERNING ACCESSORIAL LIABILITY____________ ________________________

It is apparent that a general formulation of the principlesgoverning accessorial liability of for example, the type outlined immediatelyabove, or one like that provided for in s.2.06(3)-(4) of the Model Penal Code:Proposed Official Draft, or like that contained in Proposition 7 of theBritish Law Commission’s Working Paper No.43 would, as the centrepiece of acodified law of accomplices, need to be supplemented by further more specificprovisions amplifying or qualifying the application of these general rulesin certain more specialised fact situations. This is reflected in theproposals in the Model Penal Code and in Working Paper No.43. While opinionswill vary as to how extensive .these supplementary rules should be (contrastfor example the very compact code of criminal parties contained in the ModelPenal Code; Proposed Official Draft, with the much more extensive set ofproposals in Working Paper No.43) there can be little doubt that some suchprovisions would in practice be necessar)7 in any reformulation of the law.A number of relevant specific provisions have been proposed in the precedingchapters, and these might conveniently be summarised under (A) below.Arguments supporting their adoption may be consulted in the relevantchapters, as indicated. Furthermore, it may be considered that any suchcode should formally adopt certain of the useful common law rules which have 76

76. The view may be taken that where the accessory acts in advance of thecrime he can never know with certainty that the crime will be committed;if so, this paragraph might be simplified to read thus: ”he intends thatthe principal’s conduct should take place or knows that it is takingplace [i.e., where he acts concurrently with its perpetration] or believesthat there is a substantial risk that it is being or that it will becommit^ ad." Obviously this latter clause comprehends the situation wherehe actt in advance of the principal knowing/believing that it is certainthat the principal will so act.

490

been developed by the courts in their continuing consideration of the common law doctrine of complicity; and these are noted under (B) below. (An alternative to their formal adoption would be a general provision that any such codification of the law is to be construed against the background of common law principles, to the extent that these principles are not inconsistent with the provisions of this code).

(A) RULES BY WAY OF MODIFICATION OF THE COMMON LAWEach of the following suggested rules would either definitely, or

arguably modify the common law:

(1) The Derivative Status o f Accessorial LiabilityH< ving regard to the substantive difficulties presented by the

derivative nature of accessorial liability, it has been proposed that the law ought to provide that a person should not be relieved of accessorial^ liability solely upon the basis that the person who has perpetrated the physical elements in the crime for which the first person is sought to be made liable, acted without the mental element for this crime or is otherwise relieved of criminal responsibility on account of a defence which is personal to him alone.

It should further be provided that a person who would otherwise incur liability as an accessory a more serious crime, should not be incriminated in this crime where the person whom he has instigated, encouraged or assisted to commit the physical elements in this crime, subsequently resolves to commit a lesser crime consisting in the same physical elements; but that in such a situation the first of these persons should only become an accessory to this less serious crime.^ 77 78

77. The use of the word "accessory" in this case would be purely optional -clearly, however, this provision postulates the imposition of liabilityby resort to the provision outlined under (IV) above, which deals withthe incrimination of persons who do not personally perpetrate thephysical conduct in the subject offence (and which persons ordinarily,i.e., where the perpetrator does possess criminal mens rea, would becalled accessories). It may be felt that a defendant who knowinglyinstigates, etc., an innocent or irresponsible person to perpetrate thephysical conduct is not realistically to be called an "accessory". It isto be noted, however, that under the proposals outlined above the word"accessory" is used singly to denote a relevant analytical category, i.e.,that comprehending offenders who do not personally perpetrate the criminalact, and not to imply that the offender so named is a merely coequal orsubordinate offender rather than (on occasions) the dominant or soleoffender.

78. See p.260ff., for a discussion of each of the proposals in this and thepreceding paragraphs.

(2) Where the Principal Accidentally or Mistakenly Departs from theCriminal Purpose in the Contemplation of the Accessory_______

It has been proposed that the law should provide that a person shallnot be exon* rated from criminal liability (i.e., as an accessory) solely uponthe basis that the criminal conduct constituting or causing the physicalelement in the crime charged and which was in his contemplation is committedin circumstances other than those in his contemplation, owing to a chanceevent, or to a miscalculation by the perpetrator, or to an error by the, 79latter.

(3) Termination of Secondary LiabilityIt has been suggested in Chapter Twelve that a person who would

otherwise incur criminal liability (i.e., one sought to be made liable by resort to the rules imposing accessorial liability noted under (IV) above), should be relieved of this provided that he has, prior to the commission of this crime and at a time when it is still possible to prevent this commission, taken all reasonable steps to neutralise the effectiveness of his act of complicity (i.e., of instigation, encouragement or assistance of another to perpetrate the conduct which constitutes or causes the physical elements in the crime charged; and that any such steps shall include notifying thelaw enforcement authorities, if it is necessary and reasonably open to him

, 80 to do this.

(4) Accessorial Liability Based upon an Omission to ActIt is proposed in Chapter Nine that the defendant should continue to

be made liable as an accessory in respect of omissions to act in certain 79 80

79. See Chap. 5, especially at p. 142£f.80. See p.3^3^It could be argued that such a provision should be extended to

persons who initiate the commission of a criminal actus reus but who, bothat common law and in terms of the rules proposed under (IV) above, mustalways be regarded as being principal offenders, in that they do not seekto commit this crime through a human agent; for example, the person wholeaves an incendiary device on premises one evening timed to explode somehours later, and who prior to its explosion makes reasonable butunsuccessful efforts to remove or deactivate it.

Such a justification might, however, be considered to be too broad.The moral justification for proposals of the type outlined in the primary text above is that the culpability of the person who dissociateshimself from a person possessing criminal purpose and which second person independently resolves to subsequently commit the crime in any event is so far below that of the second person that lie (the first of them) cannot properly be treated on the same general basis (i.e., convicted of the offence). In these terms the rule outlined in the primary text might itself be considerec too broad, and the view taken that such a ground of exculpation should be confined to those prospective accessories who disengage themselves from an impending crime which is committed by a person possessing the relevant mental element for this crime (i.e., one who is not innocent or irresponsible, and who does not, therefore, act wilfully).

492

circumstances. Such a provision could provide (in substance) that a person shall not incur criminal liability as an accessory in respect of an omission to act unless (1) such omission is expressly penalised by law; or (2) he has by an act of commission, initiated a sequence of events which will if not forestalled by him result in the perpetration by another of the offence charged; or (3) he has voluntarily assumed a duty of care grounding an obligation in him to act so as to prevent the perpetration by another of the offence charged. Further, it might well be specifically provided in respect of this third head of liability, that a person shall not incur accessorial liability solely upon the basis that he had control over property used in the commission of an offence, but failed to take steps towards the frustration of the commission of this offence.

(B) Rules Restating the Common LawThe following rules could be considered, inter alia, for inclusion in

a codified law of complicity:(1) The Bainbridge Principle: Degree of Knowledge Needed as to the Type of

Offence in Contemplation, and the Circumstances of its Commission_____81According to the English decision of Bainbridge (1960) which dealt

with a question concerning accessorial implication in an offence of intention,it is unnecessary that the offence actually committed, and for which thedefendant is sought to be made liable as an accessory, should have beenprecisely the offence in his contemplation, or that it should have beencommitted in the very circumstances contemplated. Rather, it was sufficientthat the offence committed was of the same "kind", or type as that

8 2contemplated. The court was required to deal with the question of B ’s involvement in an offence of intention. By implication, the court intended that this principle was to be confined to circumstances where the principal diverged from the contemplated purpose in a way which way, from the alleged 81 82

81. [1960] 1 QB 129.82. See p.123ff* alx>ve.

493accessory’s viewpoint, not materially significant. The Bainbridge principle, it is contended, is a necessary one, and it could be made effective by provisions to the effect that (1) an accessory shall not be relieved of criminal liability solely because he did not contemplate the precise circumstances of the commission of the offence charged, provided that the circumstances in which this offence was actually committed are of a type which was within the scope of his contemplation;(2) an accessory shall not be relieved of liability solely upon the basis that the offence charged was committed in circumstances different from those in his contemplation, provided that such a divergence from the contemplated circumstances is not, from his own standpoint, a materially significant one; and (3) an accessory shall not be relieved of liability solely upon the basis that the offence committed is not precisely that in his contemplation, provided that this first crime is of the same type, or kind as that in his contemplation and, moreover, that any such divergence by the principal from the purpose in the defendant’s contemplation is not, from the defendant's viewpoint, a materially significant one.

(2) The May?ell PrincipleOne of he principles propounded by several of the law lords in D.P.P.

84for N. Ireland v. Maxwell (1978) was that where the non-purposive defendant contemplates that one or more of several offences will be committed by the 83 84

83. For example, A may sell P. a gun, knowing or believing that P. intendsto shoot X, but not caring either way, being motivated simply to gainmoney from the sale. That P. should in fact plan to murder Y, andsubsequently to do so, should not affect A*s liability under theBainbridge principle. But suppose that A. instigates P. to murder his(A's) enemy M, and hands him a gun for this purpose; but P. subsequentlyresolves for his own reason, to murder N, who is a stranger to A. Itis strongly arguable that in this circumstance A. does not incurliability, for P’s act is his own independent act quite outside ofany agreement subsisting between them (or if there is none, then quiteoutside of the criminal purpose in their contemplation): see p. Certainlythe Bainbridge decision, though its principle is broadly worded, doesnot sanction the imposition of liability in this second situation. Rather Bainbridge is (necessarily, given its quite different facts) silent as tothis matter.

84. J~ 1978j 3 All ER 1140. See the discussion at p. 12 5iY^bove.

principal or principals, and performs an act of complicity in relation to . each of them, he is guilty of any and each such offence as is subsequently committed, notwithsEnding that he did not know exactly which offence or offences would actually be committed. This principle is clearly contended for in the general common law rules governing liability, and it would not need restating in a code incorporating the proposals detailed in (IV)(C) above. Clearly a purposive accessory would be liable, given that criminal intention may be conditional. Likewise, the non-purposive accessory who acts believing that there is a substantial risk that the crime will be committed will incur liability for that crime in the event of its commission irrespective of whether or not he also believes that there is a similar risk that crime Y or Z (etc.) will be committed. The Maxwell principle could, however, be restated in a provision to the effect that a person shall not be relieved of accessorial liability solely because the offence charged was one of a number of offences any one or more of which was in his contemplation as an offence or offences which might be committed by the principal in the alternative.

(3) Hie Doctrine of Common PurposeThe doctrine of common purpose at common law, it was suggested in

8bChapter Seven, merely re-expresses the general principles of accessorial liability at common law in especially graphic and compact terms appropriate to one particular fact situation. Essentially, all that the doctrine provides is that the defendant who intends that a given crime should be committed by his confederate either definitely or subject to a contingency (as manifested in his agreeing to its commission) thereby incurs liability for this crime in the event of its commission. His act of complicity consists (at the minimum) in the encouragement rendered his confederate by his (the defendant’s) act of agreement; and further acts of instigation, encouragement or assistance will also frequently be perpetrated by him. This being so, there would be no need to expressly include a doctrine of common purpose in any code basingaccessorial liability wholly or in part upon the concept of criminal purpose,

86 87or intention in order to conserve its operation, should it be thoughtdesirable to do this. 85 86 87

494

85. See p.182ff, above.86. See for example the proposals in fT.V)(B) and (C) above.87. Subject to any such other general changes in the conditions of accessorial

liability as may be effected by any such code - see for example the proposalrelating to the accessory’s act of complicity, in (IV)(C) above.

495(VI.) ISSUES OF PROCEDURE

Historically (i.e., at common law) the major procedural difficultiesassociated with the administration of the law of complicity have centred uponthe distinctions between parties, so that in certain instances a person couldnot be charged with having participated in a crime in one category of complicityand convicted if proven to have participated in another such capacity, eventhough he was in either event liable to be punished as if he were a principal.A related issue was the common law impossibility of convicting the accessorybefore the fact to felony unless and until the principal was also convicted.These problems have been wholly or partially resolved by legislation in the

88various jurisdictions referred to. It has been seen that a proceduralmerger of principals and accessories of the type effected for example underthe Commonwealth Crimes Act, 1914 (Aust), in Queensland, Western Australia,

89Tasmania anr1 in New Zealand overcomes these difficulties in all cases.

It would no doubt be prudent to provide in any codification of the law of accomplices - even one which clearly departs from the archaic division of parties encountered in the common law - that it shall not be an objection to the prosecution, trial, conviction or punishment of a person that his alleged co-offender or co-offenders have not been prosecuted, tried, convicted or punished. Where the form of the charge is concerned, it is envisaged that all alleged offenders should be charged directly with the offence, with the prosecution being required to disclose in particular the precise mode of criminal participation (i.e., as a perpetrator, or as a secondary party) upon which it will rely in seeking to prove its case, where it is possible to do

9qthis. It may, however, be as well to provide that a failure to prove that the defendant actually participated in the crime charged in the capacity specified in particulars, shall not invalidate his conviction upon proof that he participated in the alternative capacity. 88 89 90

88. See above at pp.kjOff., 354 •89. See above at pp.34jff.,354•

90. It may not always be clear whether the defendant participated as aprincipal or as an accessory, even as it is clear that he must haveparticipated in one of these two capacities: see for example Salmon(1880) 6 Q.B.D. 79, the facts of which are noted at p. ^57«