Complicity

Criminal liability is to be found in relation not only to those who perform the final causative act, but also those who contribute before the act. Complicity can be either willing or unwilling. That is, a person may, on purpose, provide means by which an offence is committed, or they may provide means – for example, selling a hand gun to a person, and then counsel the offender against committing such an offence.

 

The law deals differently in relation to complicity depending on the seriousness of the offence. Offences are grouped into two categories, those being felonies and misdemeanours.

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Serious Indictable Offences (aka Felonies)

The perpetrator of a felony is known, for these purposes, as the principal in the first degree. There can be more than one principal in the first degree. An example is if a group in an affray attack a single victim and their actions jointly contribute to the death of the victim, then they are joint principles in the first degree to murder.

 

A principal in the second degree is someone present at the crime scene who aids and abets or acts as an accomplice to the crime, or who makes minor contribution. In the example of an affray, if among the group of offenders, one uses a knife to fatal effect and the others merely punch or kick with moderate severity, then there is one principle in the first degree while the others are principles in the second degree to murder. So too, an accomplice who enables the principle offener(s) in any other way at the time, such as a person who drives them to or from the incident scene.

 

Accessorial Liability

Further to the treatment of serious indictable offences, accessorial offences revolve around contribution to the preparation or commission of a crime, or the covering up of a crime. This type of crime is considered to be derivative of the guilt of the principle offender(s), in so much as for an accessory to be liable, the principle must actually be guilty of a crime.

 

An accessory before the fact is a person who assists in preparation, or who encourages, procures or commands the commission of the crime before it was committed. An accessory at the fact is a person who assists or encourages or gives orders during the commission of a crime. Another point to note is that the accused failed to do whatever they reasonably could to withdraw support and to prevent the crime.

 

An accessory at the fact is one who assists, encourages or commands the principle(s) at the time the crime is committed. The accused must be shown to be aware of the basic elements of the crime, rather than being a person made use of unwittingly. The phrase ‘accessory to the fact’ has often been used in entertainment, but it is not proper legal terminology.

 

An accessory after the fact aids the principle(s) or other accessories at any time after the offence. For this offence to be recognised they must know that the crime has been committed and they assist the offender(s) to avoid arrest, trial and punishment.

 

Minor Indictable Offences (aka Misdemeanours)

The perpetrator of a misdemeanour is simply known as the perpetrator. There can be more than one perpetrator. All others involved in the matter are known as accomplices. There are no accessories after the fact at common law, although some codified criminal law systems do include them as offenders.

 

Joint Criminal Enterprise

Joint criminal liability arises from the formation of an agreement – expressly or otherwise – that a crime shall be committed, and from the offender’s presence at the scene of execution. In terms of action, all that is needed is that the person accused be present when and where the crime occurs; they do not need to have done anything in the way of assisting in the crime. This law developed to assist in the prosecution of youth gangs and other complex situations where it is impossible to prove which member(s) of a group were responsible for the crime and which were mere bystanders. Two cases worth looking up on this issue are R v Tangye (1997)[1] and Osland v The Queen (1998)[2].

 

Because of this, it is lawful, when a private law enforcer discovers a joint criminal enterprise in action, to arrest any person present without knowing who the main offender is. If a group of security guards discover such an incident, they may arrest all members of the group of offenders without concern that some are only standing by. For further information see the section on citizen’s arrest.

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[1] R v Tangye (1997) 92 A Crim R 545.

[2] Osland v The Queen (1998) 197 CLR 316.

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