CRIMINAL COMPLICITY

Victoria Legal Aid

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Contents

CRIMINAL COMPLICITY...................................................................................1FOUR AREAS.................................................................................................1HISTORY.......................................................................................................1

Considerable confusion in the law.....................................................................................................2

ACTING IN CONCERT......................................................................................2

THE BASIC PRINCIPLE.................................................................................................................... 2

THE ELEMENTS............................................................................................................................... 2

FIRST ELEMENT - THE AGREEMENT.............................................................................................3

SECOND ELEMENT - PERFORMANCE OF THE NECESSARY ACTS...........................................4

THIRD ELEMENT - PRESENCE AT THE COMMISSION OF THE CRIME......................................5

FOURTH ELEMENT - ACCUSED’S MENTAL STATE......................................................................5

DEFENCES....................................................................................................................................... 6

JOINT CRIMINAL ENTERPRISE......................................................................................................7

AID AND ABET...............................................................................................7

LIABILITY OF A PERSON WHO AIDS, ABETS, COUNSELS OR PROCURES...............................7

THE BASIC PRINCIPLE.................................................................................................................... 7

MEANING OF AID AND ABET..........................................................................................................8

ELEMENTS OF AIDING AND ABETTING.........................................................................................8

Element one - that the offence was committed..................................................................................8

Element two - the accused knew the essential circumstances that establish the principle offence. . .9

Element 3 - assistance or encouragement.......................................................................................10

Counselling or Procuring (assistance before the offence)................................................................10

Aiding or Abetting (assisting at the time of the offence)...................................................................11

Conveying Assent............................................................................................................................ 11

Presence at the Commission of the Crime.......................................................................................12

Failure to Act.................................................................................................................................... 13

Withdrawing assistance or encouragement.....................................................................................13

A FORM OF SECONDARY LIABLITY.............................................................................................15

Non-conviction of principal...............................................................................................................15

Doctrine of innocent agency............................................................................................................15

Attempts........................................................................................................................................... 15

Assaults........................................................................................................................................... 15

EXTENDED COMMON PURPOSE.....................................................................16

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ELEMENTS..................................................................................................................................... 16

Agreement to Commit a Crime........................................................................................................16

Performance of the necessary acts..................................................................................................16

Foresight of accused........................................................................................................................ 16

ACCESSORY AFTER THE FACT.......................................................................17

A SEPARATE OFFENCE................................................................................................................17

ELEMENTS..................................................................................................................................... 17

DISCUSSION OF RECENT CASE..................................................................................................19

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FOUR AREAS

Acting in Concert

Aid and Abet, counsel and procure

Extended common purpose

Accessory after the fact

HISTORY

Before Crimes Act 1958 law depended on whether crime was felony or misdemeanour:

s323 – abolished that distinction. Whether you are acting in concert or an aider, abetter, counsellor or procurer you are guilty as a principal in the first degree. (the legal consequence is the same – accessory after the fact)

But distinction still significant depending on whether source of liability is primary or secondary – Osland (1998) 197 CLR 316

McHugh J Osland (1998) 197 CLR 316

[71] Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who were merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.

[72] However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King (No 2) by Smith J who directed the jury in the following terms:

"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime."

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Considerable confusion in the law In R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29 the NSW Court of Criminal Appeal distinguished between a case based on "common enterprise" and a case based on "common purpose". Wood CJ at CL said at [64]:

"The distinction between 'common purpose' and 'joint criminal enterprise' is not always respected, having regard to the way in which these terms, and the related terms 'common design' and 'concert' are very often used interchangeably".

McAuliffe v The Queen (1995) 183 CLR 108 at 113, the High Court has said that the terms “common purpose” and “joint criminal enterprise” are used “more or less” interchangeably.

ACTING IN CONCERT

THE BASIC PRINCIPLEThe law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission.

R v Lowery & King (No 2) [1972] VR 560 Smith J

McHugh J R v Osland (1998) 197 CLR 316

[93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.

Acting in concert is a form of primary liability - Osland v R

THE ELEMENTS To establish liability by way of acting in concert, the prosecution must prove:

That two or more people reached an agreement to commit a criminal act that remained in existence at the time the offence was committed;

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That the parties to the agreement between them performed, in accordance with the agreement, all of the criminal acts necessary to commit the offence, in the circumstances necessary for the commission of that offence;

That the accused was present when the offence was committed; and

That the accused had the state of mind required for the commission of the relevant offence at the time of entering into the agreement (R v Lowery & King (No 2) [1972] VR 560; R v Jensen and Ward [1980] VR 194; Osland v R (1998) 197 CLR 316; Matusevich v R (1977) 137 CLR 633).

See Judicial College Victoria Charge Book

FIRST ELEMENT - THE AGREEMENTUnderstanding does not have to be pre-arranged or explicit

For people to be acting in concert in the commission of a crime their assent to the understanding or arrangement between them need not be expressed by them in words their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing; it may be reached only just before the doing of the act or acts constituting the crime. Remember, however, that before a person can be found guilty of a crime under this doctrine he must have been present when it was committed and the crime committed must not go beyond the scope of the understanding or arrangement. On the other hand, it is to be remembered that under this doctrine, although the understanding or arrangement must not have been called off before the commission of the crime, the mere facts that while it is being committed one of the persons acting in concert feels qualms or wishes he had not got himself involved or wishes that it were possible to stop the proceedings and still get off Scot free, will not amount to a calling off of the undertaking or arrangement. R v Lowery & King (No 2) [1972] VR 560 Smith J

But The fact that two people spontaneously decided to pursue the same course of action does not necessarily prove that they were acting pursuant to an agreement to commit a particular crime (R v Taufahema [2007] HCA 11).

In relation to the agreement, the prosecution must prove:

that the accused reached an agreement to commit a criminal act (“the foundational crime”)

and it was in existence at the time that the offence was committed

they shared an understanding of a criminal act even if they did not have the same intention, or the same awareness of the consequences of that act – may not be necessary to prove that all the accused were parties to the same agreement

Prosecution must prove that agreement must not be called off before the offence is completed

The withdrawal must ordinarily have been expressly communicated to the other members of the enterprise - in exceptional circumstances can be implicit (White v Ridley (1978) 140 CLR 342).

The withdrawal must be accompanied by all action the accused can reasonably take to undo the effect of his/her previous encouragement or assistance. This may include informing the police (White v Ridley (1978) 140 CLR 342; R v Tietie (1988) 34 A Crim R 438; R v Jensen and

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Ward [1980] VR 196) – unless accused reasonably believes that withdrawal will cause the others not to pursue the original act

Must be a timely and effective withdrawal- leaving the scene shortly before the offence is completed, or by attempting to withdraw when it is too late to stop the offence not sufficient (White v Ridley (1978) 140 CLR 342; R v Whitehouse [1941] 1 DLR 683; R v Rook [1993] 1 WLR 1005).

Private feelings of regret, or wishes that s/he could stop the offence not sufficient (R v Lowery & King (No 2) [1972] VR 560).

Where the accused has set in motion a chain of events leading to the commission of an offence, any attempts to withdraw from participation must be capable of effectively stopping the offending (White v Ridley (1978) 140 CLR 342).

Defence must point to some evidence that shows that the accused unequivocally countermanded or revoked his/her previous agreement. The prosecution will then bear the onus of disproving this withdrawal (White v Ridley (1978) 140 CLR 342; R v Croft [1944] KB 295; R v Rook [1993] 1 WLR 1005).

SECOND ELEMENT - PERFORMANCE OF THE NECESSARY ACTS All the physical elements necessary for the commission of the crime must be committed

Mental state of participants does not need to be proved

Extent of each participant’s involvement is irrelevant as long as actions performed in accordance with agreement – in acting in concert each agreement attributed to all (see Osland)

The Act must be within the scope of the original agreement

In some cases, in the course of pursuing the foundational crime a different offence will be committed - For the accused to be liable for that offence, the prosecution must prove that it was within the scope of the agreement (R v Jensen and Ward [1980] VR 196; R v PDJ (2002) 7 VR 612; R v Anderson [1966] 2 QB 110; R v Heaney & Ors [1992] 2 VR 531).

The scope of the agreement must be determined by considering the subjective beliefs of the participants at the time the agreement was formed, or at the time the parties agreed to vary the original agreement (R v Johns (1980) 143 CLR 108; R v McAuliffe (1995) 183 CLR 108).

If the participants’ beliefs about the scope of the agreement differed, its scope will be confined to those beliefs that all of the participants shared (see, e.g., Gillard v R (2003) 219 CLR 1; R v Zappia (2002) 84 SASR 206).

The scope of the agreement includes any contingencies that are planned as part of the agreed criminal enterprise (R v Becerra (1976) 62 Cr App R 212).

The liability of the accused is based on his/her authorisation (express or implied) of the criminal acts. Even if the accused did not believe that those acts were likely to be committed, s/he will be liable if they were within the scope of the agreement (Johns v R (1980) 143 CLR 108; Chan Wing-Siu v R [1985] AC 186; Britten v R (1988) 49 SASR 47).

In some cases the parties will have differed in their understanding of how the foundational crime was to be carried out, leading to arguments that the accused had not agreed to participate in the particular offence that was committed. In such cases, the jury must consider whether the use of the means adopted placed the offence outside the scope of the agreement,

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or whether the use of those means was no more than an unexpected incident of carrying out the common agreement (Varley v R (1976) 12 ALR 347; R v Heaney & Ors [1992] 2 VR 531).

Where the agreement involves the use of violence, the jury may need to consider whether the perpetrator acted outside the scope of the agreement by unexpectedly using a weapon. This will depend on the facts of the case, the understanding of the parties, and the difference between the weapon used and the manner of violence intended (see Varley v R (1976) 12 ALR 347; R v Anderson [1966] 2 QB 110; Markby v R (1978) 140 CLR 108; Wooley v R (1989) 42 A Crim R 418; R v Heaney & Ors [1992] 2 VR 531).

THIRD ELEMENT - PRESENCE AT THE COMMISSION OF THE CRIME The third element requires the accused to have been present when the offence was committed

(R v Jensen & Ward [1980] VR 194; R v Camilleri [2001] VSCA 14).

The accused’s presence is necessary in order to give reality to his/her participation in that offence, or his/her willingness to participate in it (R v Camilleri [2001] VSCA 14).

While the accused must be “present” at the commission of the offence, this does not require him/her to be at the physical location where the offence is committed. S/he merely needs to be in the vicinity, and to have practical relevance to the person carrying out the offence (R v Camilleri [2001] VSCA 14; R v Jensen & Ward [1980] VR 194).

A person will have been “present” at an offence if s/he was at a nearby location for some purpose designed to facilitate or encourage the commission of that offence, such as keeping a watch for police, or being ready to assist an escape (R v Camilleri [2001] VSCA 14).

FOURTH ELEMENT - ACCUSED’S MENTAL STATE The fourth element requires the prosecution to prove that the accused had the state of mind

required for the commission of the relevant offence (Osland v R (1998) 197 CLR 316).

The law is not entirely clear on when the accused must have this required state of mind. The better view appears to be that the accused must have the required state of mind at the time s/he entered into the agreement (Osland v R (1998) 197 CLR 316; Hui Chi-Ming v R [1992] 1 AC 34).

This is because the principle of acting in concert only attributes criminal acts to the parties to the agreement, not criminal intentions. The jury must therefore separately assess the state of mind of each accused (R v Stewart; R v Schofield [1995] 3 All ER 159; Osland v R (1998) 197 CLR 316; R v Clarke & Johnstone [1986] VR 643; but c.f. R v Jensen and Ward [1980] VR 196).

In homicide cases, this can allow the jury to convict one party of murder and another party of manslaughter (Osland v R (1998) 197 CLR 316; R v Howe [1987] AC 417; R v Stewart; R v Schofield [1995] 3 All ER 159).

Under this view of the law, the state of mind at the time of forming the agreement is deemed to continue unless the accused withdraws from the agreement. It is not enough that the accused has private feelings of regret or wishes that s/he could stop the offence (R v Lowery & King (No 2) [1972] VR 560; R v Becerra (1976) 62 Cr App R 212). See Withdrawing From an Agreement (above).

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DEFENCES The prosecution must disprove any defences that are open on the evidence (Osland v R (1998)

197 CLR 316).

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JOINT CRIMINAL ENTERPRISESuggested in the Judicial College Charge book that acting in concert is a species of joint criminal exercise and that presence is not necessary.

Would then make it possible for someone to be primarily liable for an offence where not present?

But isn’t the essence of primary liability participation?

A misapprehension brought on by fact that “joint criminal enterprise” is the terminology used in NSW for acting in concert.

McHugh in Osland referring to New South Wales Court of Criminal Appeal in Tangye

[74] In accordance with the New South Wales practice, the Court referred to "carrying out a criminal enterprise" rather than acting in concert. The principles, however, are the same.

Adopted by Weinberg JA Smith, Garcia & Andreevski v The Queen [2012] VSCA 5 at [185]

AID AND ABET

A form of secondary liability

LIABILITY OF A PERSON WHO AIDS, ABETS, COUNSELS OR PROCURES A person may be tried as a principal offender if s/he aids, abets, counsels or procures the

commission of an indictable offence (Crimes Act 1958 s323).

A person who aids, abets, counsels or procures the commission of an offence commits that substantive offence. S/he does not commit a distinct offence of being an accessory (R v Wong [2005] VSC 96).

The situation in relation to summary offences is slightly different - Crimes Act s324 provides that such a person will be liable to the same punishment as a principal offender. Despite this difference, many of the principles outlined in these Notes will be relevant to summary offences.

THE BASIC PRINCIPLESmith J in R v Lowery & King [No2]

Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree - if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.

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MEANING OF AID AND ABET In Australia, the words “aid, abet, counsel or procure” may be read collectively, to describe a

person who assists or encourages someone to commit an offence (Giorgianni v R (1985) 156 CLR 473; R v Wong [2005] VSC 96; R v Russell [1933] VLR 59; but c.f. Attorney-General’s Reference (No 1 of 1975) [1975] QB 773).

This requires the accused to be linked in purpose with the person who commits the offence (the “primary offender”), and to act to bring about or render more likely the commission of the offence (Giorgianni v R (1985) 156 CLR 473; R v Russell [1933] VLR 59; R v Wong [2005] VSC 96; R v Phan (2001) 53 NSWLR 480).

The prosecution does not need to prove that there was any agreement between the accused and the primary offender. The lack of an agreement is what distinguishes aiding, abetting, counselling or procuring from other forms of complicity (e.g., Acting in Concert, Joint Criminal Enterprise, Extended Common Purpose) (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448; R v Lowery & King (No 2) [1972] VR 560; R v Nguyen [2010] VSCA 23).

So presence is not necessary – counselling and procuring

Liable as a principal offender but liability is secondary.

ELEMENTS OF AIDING AND ABETTING (From the Judicial College Charge book)

To establish liability by way of aiding, abetting, counselling or procuring, the prosecution must establish:

that the principal offence was committed;

that the accused knew the essential circumstances that establish the principal offence; and

that the accused intentionally assisted or encouraged the primary offender to commit that offence (Giorgianni v R (1985) 156 CLR 473).

Element one - that the offence was committed The first element requires the prosecution to prove, using evidence admissible against the

accused, that the principal offence was committed (Giorgianni v R (1985) 156 CLR 473; R v Hewitt [1997] 1 VR 301; R v Demirian [1989] VR 97; R v Jensen and Ward [1980] VR 194; R v Tamme [2004] VSCA 165).

This requires the prosecution to prove that the primary offender committed the relevant criminal acts with the necessary criminal intention (R v Jensen and Ward [1980] VR 194).

If the accused and the primary offender are tried together, and the evidence against them is the same, the accused generally cannot be found guilty unless the primary offender is also found guilty (Osland v R (1998) 197 CLR 316).

However, different verdicts between a primary offender and an accessory will not always be inconsistent. For example, there may be sufficient evidence to prove that the accessory assisted someone to commit the principal offence, but insufficient evidence to establish the

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identity of the primary offender (Osland v R (1998) 197 CLR 316; R v King (1986) 161 CLR 423).

If the accused and the primary offender are not tried together:

oThe prosecution does not need to prove that someone has been convicted as the primary offender (Giorgianni v R (1985) 156 CLR 473); and

oEvidence that another person has been convicted is not admissible against the accused (R v Kirkby [2000] 2 Qd R 57; Evidence Act 2008 s91).

In some cases, the prosecution may not be able to prove which of several co-accused performed the relevant criminal acts. In such a case, the jury may convict all of the co-accused of the offence if satisfied, by evidence admissible against each co-accused, that one (or more) of them committed the offence and the others were accessories. The jury does not need to decide which of them was the primary offender and which were accessories (R v Lowery & King (No 2) [1972] VR 560).

Element two - the accused knew the essential circumstances that establish the principle offence

The second element requires the prosecution to prove that the accused knew of, or believed in, the essential circumstances that establish the principal offence (Giorgianni v R (1985) 156 CLR 473).

The “essential circumstances” of an offence are the facts that will go to satisfying the elements of the offence (Giorgianni v R (1985) 156 CLR 473).

For mens rea offences, this includes the primary offender’s state of mind (R v Stokes & Difford (1990) 51 A Crim R 25; R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448; R v Phan (2001) 53 NSWLR 480).

Where the offence requires a particular result to have been caused (e.g., death or serious injury), the accused does not need to know that this result will be achieved. It is sufficient if s/he knew that the primary offender was going to commit the acts which ultimately caused that result, and that s/he knew the primary offender would have the requisite state of mind when committing those acts (Giorgianni v R (1985) 156 CLR 473; R v Stokes & Difford (1990) 51 A Crim R 25).

The jury must consider what the accused knew at the time s/he assisted or encouraged the primary offender, rather than at the time the primary offender committed the offence (R v Stokes & Difford (1990) 51 A Crim R 25).

The accused must have actual knowledge or belief of the essential circumstances. It is not sufficient that s/he should have known of those circumstances, or failed to inquire about them (Giorgianni v R (1985) 156 CLR 473).

However, the failure of a person to make inquiries about the circumstances may be evidence that s/he was aware of the relevant facts (Giorgianni v R (1985) 156 CLR 473).

The accused does not need to know that the principal offence is a criminal offence. It is sufficient if s/he is aware of all the facts that constitute the offence (Johnson v Youden [1950] 1 KB 544; Giorgianni v R (1985) 156 CLR 473).

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An employee’s knowledge cannot necessarily be imputed to an employer (Ferguson v Weaving [1951] 1 KB 814).

Presence at the scene of the crime may, of itself, constitute evidence of an intention to aid and abet and may be sufficient evidence to justify a conviction, depending on all the circumstances: R v Coney (1882) 8 QBD Smith v Baker [1971] RTR 350; [1972] Crim LR 25.

Element 3 - assistance or encouragement The third element requires the accused to have intentionally assisted or encouraged the

primary offender to commit the offence charged (Giorgianni v R (1985) 156 CLR 473).

For this to be the case, the accused must have been linked in purpose with the primary offender, and spoken words or performed acts designed to bring about the commission of the offence (R v Tamme [2004] VSCA 165; R v Wong [2005] VSC 96).

It is not necessary (or sufficient) to show that the accused exerted control over the primary offender. In cases of aiding, abetting, counselling or procuring, the primary offender will have acted voluntarily, breaking the causal link between the accused’s alleged control of the primary offender and the commission of the offence (R v Franklin (2001) 3 VR 9).

The accused also does not need to have reached an agreement with the primary offender about the commission of the crime. S/he merely needs to have provided encouragement or assistance to the primary offender (R v Oberbilig [1989] 1 Qd R 342; R v Nguyen [2010] VSCA 23).

Where it is alleged that the accused “assisted” the primary offender, it is not necessary to prove that the primary offender was aware of the accused’s assistance (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448).

Where it is alleged that the accused “encouraged” the primary offender, it is also not necessary to prove that the primary offender was aware of the accused’s encouragement, nor is it necessary to prove that s/he was actually encouraged by the accused’s words or actions (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448).

However, in “encouragement” cases the prosecution must prove that the encouragement was communicated to the primary offender in circumstances such that s/he could have been aware of that encouragement (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448).

When considering this element, a distinction is often drawn between assistance or encouragement which is offered before the offending (“counselling or procuring”), and assistance or encouragement offered at the time of the offending (“aiding or abetting”). These are discussed in turn below.

The jury are not, however, required to unanimously agree on the exact form of assistance. The jury only need to be collectively satisfied that the accused aided, abetted, counselled or procured the offence (R v Wong [2005] VSC 96).

Counselling or Procuring (assistance before the offence) The accused may provide assistance or encouragement prior to the commission of the relevant

offence by either:

Urging, advising or soliciting the primary offender to commit the offence (“procuring”); or

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Encouraging or supporting the primary offender to commit the offence (“counselling”) (Chai v R (2002) 187 ALR 436; Stuart v The Queen (1976) 134 CLR 426; R v Oberbilig [1989] 1 Qd R 342).

A person will not have “counselled” the primary offender by merely suggesting that the offence be committed. S/he must have done more than simply instigate its commission (Hutton v R (1991) 56 A Crim R 211).

An accessory may “counsel” the primary offender by supplying equipment used in the offending (R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448; National Coal Board v Gamble [1959] 1 QB 11).

It is not necessary to show that the assistance or encouragement caused the offending. The accused may counsel the primary offender to commit an offence that s/he intended to commit even without the accused’s assistance or encouragement (Howell v Doyle [1952] VLR 128).

Aiding or Abetting (assisting at the time of the offence) There are three ways in which a person may aid or abet the primary offender at the time of the

offending:

By intentionally helping the primary offender to commit the offence;

By intentionally encouraging the primary offender to commit the offence; or

By intentionally conveying to the primary offender that s/he assents to and concurs in the commission of the offence (R v Lowery & King (No 2) [1972] VR 560; R v Dardovski Vic CCA 18/5/1995).

As with counselling or procuring, the focus here is on whether the accused assisted or encouraged the primary offender in some way. To this end, conveying assent (the third method of aiding or abetting) is seen as an indirect form of encouragement (R v Makin (2004) 8 VR 262).

For the accused to have aided or abetted the primary offender, s/he must have actually provided encouragement or assistance in some form. It is not sufficient that s/he secretly held an intention to assist, but did not actually provide any assistance or encouragement (R v Allan [1965] 1 QB 130).

However, the accused’s conduct does not need to have caused the offending in any way. An aider or abettor generally does not physically participate in the offending (Osland v R (1998) 197 CLR 316; R v Lam & Ors (Ruling No 20) (2005) 159 A Crim R 448).

In cases where the prosecution cannot prove which of several possible co-accused was the primary offender, it will be sufficient to prove that the co-accused all assisted or encouraged each other in some way (R v Phan (2001) 53 NSWLR 480; R v Clough (1992) 28 NSWLR 396; R v Mohan [1967] 2 AC 187).

Conveying Assent As noted above, a person can aid or abet the primary offender by conveying assent to, and

concurrence in, the commission of the offence (R v Lowery & King (No 2) [1972] VR 560; R v Dardovski Vic CCA 18/5/1995).

This test will not be satisfied by simply proving that the accused was present at the commission of the crime, and assented to and concurred in its commission. The prosecution must prove that the accused’s acquiescence or assent amounted to assistance or encouragement in some way (R v Phan (2001) 53 NSWLR 480; R v Al Qassim [2009] VSCA 192).

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This requires the prosecution to prove that the accused, directly or indirectly, expressed a willingness to assist the primary offender if required (R v Makin (2004) 8 VR 262).

The accused does not need to have actually provided assistance for this test to be satisfied. The focus of this test is on the accused’s willingness to assist the primary offender if required (R v Makin (2004) 8 VR 262).

The accused’s willingness to assist may be inferred from the way in which s/he conveyed his/her assent to commission of the crime (R v Makin (2004) 8 VR 262; R v Phan (2001) 53 NSWLR 480).

It is not necessary to consider the primary offender’s response to the accused’s offer of assistance. The issue is simply whether the accused conveyed his or her support (R v Makin (2004) 8 VR 262).

The question of whether or not the secondary party manifested his or her assent or encouragement arises in two main situations:

Mere presence at the scene of the crime

Omission to Act

Presence at the Commission of the Crime While historically an aider or abettor had to be present at the commission of the crime, this is

no longer the case. A person may aid and abet a crime even if s/he is not physically present at the time it is committed (R v Morgan [1994] 1 VR 567; R v Wong [2005] VSC 96).

Conversely, a person may be present at the commission of the crime, and not be an aider and abettor. Mere presence at a crime is not sufficient by itself to found liability (R v Al Qassim [2009] VSCA 192; R v Makin (2004) 8 VR 262; R v Lam (2008) 185 A Crim R 453; R v Nguyen [2010] VSCA 23; Al-Assadi v R [2011] VSCA 111).

This is because, to be liable, a person must have assisted or encouraged the primary offender in some way. A person who is simply present at the commission of a crime will usually not have offered such assistance or encouragement (R v Makin (2004) 8 VR 262).

In some cases, however, the accused may assist or encourage the commission of a crime by being present. For example, by choosing to be present at the crime scene, the accused may provide moral support to the primary offender, or demonstrate a willingness to assist if required (R v Lowery & King (No 2) [1972] VR 560; R v Conci [2005] VSCA 173; R v Panozzo [2007] VSCA 245).

For the accused’s presence to constitute assistance or encouragement, he or she must have done something more than simply be at the scene of the crime. The accused must, at some point, have said or done something which showed that he or she was linked in purpose with the primary offender, and thus contributed to the crime (R v Al Qassim [2009] VSCA 193; R v Nguyen [2010] VSCA 23).

The accused must have done something of a kind that can reasonably be seen as intentionally adopting and contributing to what was taking place in his or her presence (Al-Assadi v R [2011] VSCA 111).

Where it is alleged that the accused aided or abetted by being present at the scene of the crime, the judge should therefore tell the jury that mere presence is not sufficient. It should be

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made clear that something more is required (R v Al Qassim [2009] VSCA 193; Al-Assadi v R [2011] VSCA 111).

The judge should clearly identify the additional matters said to constitute assistance or encouragement (R v Al Qassim [2009] VSCA 193).

In determining whether the accused’s presence aided or abetted the primary offender, the accused’s conduct relating to the offence should be viewed as a whole. Things that the accused said or did prior to the commission of the principle offence may warrant the conclusion that the accused’s presence made him or her complicit in the offence, by helping or encouraging the primary offender to commit the crime, or conveying assent to and concurrence in the commission of that crime (R v Al Qassim [2009] VSCA 192).

It may be possible for the jury to infer from the accused’s intentional presence at the crime that he or she aided or abetted the primary offender. For example, if the criminal offending was designed to be a public spectacle (such as an illegal prize fight), and drew support from the presence of observers, the accused’s presence may be seen as having provided encouragement to the primary offender (See R v Coney (1882) 8 QBD 534).

Failure to Act Ordinarily, the fact that the accused failed to act in a particular way will not be sufficient to

prove that s/he assisted or encouraged the primary offender to commit the crime (R v Russell [1933] VLR 59).

However, where the accused is under a legal or ethical duty to act, a failure to do so may be evidence of encouragement or assent to the offending (see, e.g., R v Russell [1933] VLR 59; Ex parte Parker: Re Brotherson (1957) SR(NSW) 326).

A duty to act may arise where the accused is in loco parentis to the victim (R v Russell [1933] VLR 59; R v Clarke and Wilton [1959] VR 645).

Where a person has a duty to act, s/he may be seen to have assisted or encouraged the primary offender if s/he fails to offer any protest to his/her conduct, or fails to offer any effective dissent (R v Russell [1933] VLR 59).

Withdrawing assistance or encouragement A person who aids, abets, counsels or procures the commission of an offence may avoid

liability if s/he expressly withdraws his/her assistance or encouragement before the offence is committed (White v Ridley (1978) 140 CLR 342; R v Croft [1944] KB 295).

The withdrawal must be accompanied by all action the accused can reasonably take to undo the effect of his/her previous encouragement or assistance. This may include informing the police (White v Ridley (1978) 140 CLR 342; R v Tietie (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VR 196).

It is usually more difficult for an accused to withdraw at the time of the offence, as this will usually require greater conduct on the accused’s behalf to undo the effect of his/her previous assistance or encouragement (see R v Becerra (1976) 62 Cr App R 212).

Must be manifested by works or conduct sufficiently clear to bring it home to the principal offender that the accused no longer wants principal offender to commit the offence and needs to be timely; not too late to stop train of events: White v Ridley (1978) 140 CLR 342 at 351

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Where an aider and abettor repents and seeks to dissuade the principal from continuing with the offence, he is not guilty as an accessory, provided the withdrawal is quite specific and is communicated to the principal, and the accused has taken “all reasonable steps to prevent the commission of the crime which he had agreed the other should commit”: R v Becerra (1976) 62 Cr App R 212; R v Grundy [1977] Crim LR 543.

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A FORM OF SECONDARY LIABLITY

Non-conviction of principalAn accessory cannot be convicted of an indictable offence unless it is established that an indictable offence was in fact committed: Cain v Doyle (1946)

But can be convicted even if principle acquitted. For example primary offender acting under duress.

Doctrine of innocent agencyAn innocent agent is one who is not considered criminally responsible by reason of:

infancy;

mental impairment;

lack of knowledge of the true facts; or

a belief that the act is not unlawful.

Can be convicted of aiding and abetting notwithstanding principle offence only amounts to an attempt.

AttemptsBy virtue of Crimes Act 1958 s 321R, it is no longer possible to attempt to aid, abet, counsel or procure the commission of an offence. But, it would seem that a person can be charged with the act of aiding and abetting an attempt to commit a crime: R v Dunnington [1984] QB 472; 2 WLR 125 .

As the law now stands the fact that the crime incited is by reason of some fact unknown to the inciter incapable of completion does not effect the liability of the person inciting, providing the inciting “is acted on in accordance with the inciter's intention”.

AssaultsRecklessly causing serious injury

In R v Vollmer [1996] 1 VR 95  the Court of Criminal Appeal appears to have accepted that the mental element requisite for liability as an aider and abetter to the offence of recklessly causing serious injury is satisfied if the aider and abetter realised that the actions of the principal offender "would probably cause serious injury".

In R v Le Broc (2000) 2 VR 43; [2000] VSCA 125; BC200004291  the Court of Appeal at [61]–[63] having pointed out that the accessory must intend to assist and encourage the principal offender in the commission of the crime but that the accessory need not have an intention towards the victim, held that, on the facts of that case, it was sufficient that the aider and abetter knew that the principal offender foresaw that serious injury would result from his conduct.

Intentionally Causing Injury

A person may be convicted as an aider and abetter to the offence of intentionally causing serious injury even though that person did not intend the serious injury but was merely reckless as to whether or not the actions of the principal offender would cause that injury: see R v McMenomy [2008] VSCA 62; BC200802803 .

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EXTENDED COMMON PURPOSE

ELEMENTSTo establish liability by way of extended common purpose, the prosecution must prove:

That two or more people reached an agreement to commit a crime (the foundational crime) that remained in existence at the time the charged offence was committed;

That in the course of carrying out the agreement, one or more of the parties to the agreement, other than the accused, committed the charged offence; and

That the accused foresaw the possibility that one or more parties to the agreement would commit the charged offence when the agreement was carried out (McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton and Hartwick (2005) 14 VR 125; R v Taufahema [2007] HCA 11; R v Jones (2006) 161 A Crim R 511).

Agreement to Commit a CrimeFor the first element to be met, the prosecution must prove:

That the accused reached an agreement with others to commit a crime; and

That the agreement remained in existence at the time the charged offence was committed (Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500; R v Taufahema [2007] HCA 11).

Performance of the necessary acts For the second element to be met, the prosecution must prove that, in the course of carrying

out the agreement, one or more of the parties to the agreement, other than the accused, committed the offence charged (McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton and Hartwick (2005) 14 VR 125; R v Taufahema [2007] HCA 11; R v Jones (2006) 161 A Crim R 511).

The principles of extended common purpose should generally not be used if the charged offence was also the foundational crime. In that situation, a different form of complicity should be used instead (R v Stokes & Difford (1990) 51 A Crim R 25. See the Bench Notes relating to Acting in Concert or Joint Criminal Enterprise to determine the most appropriate form of complicity to use in such a case).

In some cases, it is permissible to direct using extended common purpose principles, even if the charged offence was the foundational crime (R v Mills, Sinfield and Sinfield (1985) 17 A Crim R 411; R v Mills (1986) 68 ALR 455).

Foresight of accused The third element requires the accused to have foreseen the possibility that one or more of the

parties to the agreement would commit the charged offence when the agreement was carried out (McAuliffe v R (1995) 183 CLR 108; Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton and Hartwick (2005) 14 VR 125; R v Taufahema [2007] HCA 11; R v Jones (2006) 161 A Crim R 511).

The accused does not need to have intended that the charged offence be committed. The prosecution only needs to prove that s/he foresaw the commission of the charged offence as a

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possible result of carrying out the criminal enterprise (Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500).

The accused will be liable for crimes that s/he foresaw as possible. S/he does not need to have considered the commission of the charged offence to have been probable (Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500).

The judge may tell the jury that the accused must have foreseen that the charged offence might result. If it is necessary to explain this further, it is permissible to tell the jury that this means that there was a real or substantial possibility that it would result (R v Hartwick, Clayton and Hartwick (2005) 14 VR 125).

It is not necessary to elaborate on the meaning of “possible” in every case (R v Hartwick, Clayton and Hartwick (2005) 14 VR 125).

The accused must not only have foreseen the possibility that the perpetrator would commit the relevant acts, but also that s/he might act with the requisite state of mind and in the absence of any defences (Hartwick, Clayton and Hartwick v R (2006) 231 ALR 500; R v Hartwick, Clayton and Hartwick (2005) 14 VR 125; McAuliffe v R (1995) 183 CLR 108).

This form of liability considers the foresight of an individual accused. It is not necessary to prove that the offence was within the joint contemplation of the parties or was an agreed contingency (McAuliffe v R (1995) 183 CLR 108).

ACCESSORY AFTER THE FACT

A SEPARATE OFFENCECrimes Act 1958 s. 325 Accessories

(1) Where a person (in this section called the principal offender) has committed a serious indictable offence (in this section called the principal offence), any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence.

ELEMENTSA person (the “principal offender”) committed a serious indictable offence (the “principal offence”);

A “serious indictable offence” is defined as an indictable offence that “is punishable on first conviction with imprisonment for life or for a term of five years or more” (Crimes Act 1958 s325(6)).

The accused performed a positive act after the completion of that offence;

The accessory must perform an act which assists, or has the potential to assist, the principal offender escape from the administration of justice. Examples of such acts include:

driving the principal offender away from the scene of the crime;]

impersonal assistance such as altering the engine number and repainting a stolen car;

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helping dispose of stolen property;

the removal of incriminating evidence after the principal offender has been arrested;

buying a car and clothes for the principal offender.

Concealing evidence, or laying a false trail, may be a positive act (R v Levy [1912] 1 KB 158; R v Taylor & Ors 22/6/1989 Vic CCA).

However, the accused does not perform a positive act if s/he only instructs others not to give evidence, or refuses to give evidence him/herself (R v Ready & Manning [1942] VLR 85; Ready & Manning v R [1942] ALR 138).

Failing to inform the police of the principal offender’s whereabouts is not a positive act. However, it can be relevant, in conjunction with other acts of assistance, to demonstrate that the accused intended to assist the principal offender (R v Hurley & Murray [1967] VR 526).

When the accused performed that act, s/he knew or believed that the principal offender had committed the principal offence, or any other serious indictable offence

The accused does not need to have known the precise offence that the principal offender committed. It is sufficient for him/her to have known, or believed, that the principal offender had committed some serious indictable offence (Crimes Act 1958 s325; R v Taylor & Ors 22/6/1989 Vic CCA; c.f. R v Stone [1981] VR 737; R v Tevendale [1955] VLR 95; Middap v R (1992) 63 A Crim R 434).

The accused acted with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender

The fourth element requires the prosecution to prove that the accused performed the relevant act for the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender (Crimes Act 1958 s325; R v Hurley & Murray [1967] VR 526; Middap v R (1992) 63 A Crim R 434).

It is not sufficient for the accused to have performed that act knowing that its probable result would be to impede the apprehension, prosecution, conviction or punishment of the principal offender. S/he must have been motivated by a subjective desire to impede the principal offender’s apprehension, prosecution, conviction or punishment (R v Hurley & Murray [1967] VR 526).

It will usually only be necessary to explain the difference between desiring a result, and acting with the knowledge that that result will probably occur, if the defence argues that the accused did not subjectively desire the foreseen consequences of his/her action (Middap v R (1992) 63 A Crim R 434).

It is best to avoid directing the jury that the accused must “intend” to impede the apprehension, prosecution, conviction or punishment of the principal offender, as the word “intend” is ambiguous, covering both knowledge of probable consequences and a desire for those consequences (R v Hurley & Murray [1967] VR 526).

The accused’s conduct does not need to have been solely motivated by a desire to protect the principal offender. This element may be satisfied even if s/he had other motivations for acting, such as seeking to conceal his/her own wrongdoing (Middap v R (1992) 63 A Crim R 434; R v Tevendale [1955] VLR 95).

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While a desire to protect the principal offender does not need to have been the accused’s sole purpose for acting, the jury must be satisfied beyond reasonable doubt that it was at least one his/her motivations. If the jury are unable to exclude the possibility that the accused was solely motivated by another desire (e.g., to conceal his/her own involvement in the crime), then this element will not be met (R v Taylor & Ors 22/6/1989 Vic CCA; R v Jones (1948) 33 Cr App R 230; Middap v R (1992) 63 A Crim R 434).[2]

The accused must have had this purpose at the time s/he performed the relevant act. This element will not be satisfied if this desire arose after s/he had completed the act (R v Kawicki (1995) 82 A Crim R 191).

It is not necessary to show that the accused was successful in impeding the apprehension, prosecution, conviction or punishment of the principal offender (R v Dawson [1961] VR 773).

The accused had no lawful authority or reasonable excuse for his/her actions (Crimes Act 1958 s325)

A married person cannot be convicted of assisting his/her spouse (Crimes Act 1958 s338).

DISCUSSION OF RECENT CASESmith, Garcia & Andreevski v The Queen [2012] VSCA 5

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