Criminal Law
Indirect Forms of Crime
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.
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 offender(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) and Osland v The Queen (1998).
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.
Conspiracy
A criminal conspiracy is an agreement between two or more people to commit a crime. A conspiracy is formed either to commit a crime or to achieve a lawful outcome by unlawful means. The latter part of the definition exists to capture the guilt of persons acting together to achieve something that would not be a crime if done by normal or lawful means. For example, in Howes (1971) conspirators came together to falsify school examination results and were found to be guilty of a conspiracy.
A conspiracy can take the form not only of words, but also of gestures signalling assent to the crime. It can also take the form of overt actions in furtherance of the crime, which can be seen to signify that an agreement between them had taken place.
Conspiracies can be structured various ways. Notably, there are “wheel” conspiracies in which a central figure, takes advice from a number of different conspirators, and there are chain conspiracies in which a number of conspirators discuss the crime in turn, one after another with no central figure.
The mens rea of a conspiracy is twofold. First, there is the intention to effect the agreement and secondly, the conspirator(s) must realise the plan is unlawful. This is to be judged on objective grounds - that is, the defendants' knowledge is to be assumed that of a reasonable person in the position of the defendant. As for the actual opportunity to offend rather than merely to propose an act, it is considered impossible for a person to have conspired in the relevant sense to do something that is impossible for them.
A conspiracy is to be distinguished from an accessorial offence in that the conspirators are all principals. If any merely encourage, procure or otherwise support from the sidelines, then they are not conspirators but accessories.
Attempts
The actus reus of an attempted crime must include not merely acts done in preparation, but acts leading almost all the way to the final completion of the crime in question. An example is given in Waller & Williams of a potential burglar who buys a torch and draws plans of a certain building, who might, after all, only be fantasising. They go on to point out that the crime of attempt only applies to those consciously endeavouring to commit crimes.
There is, however, a problem with determining how far a person must go in an attempt to constitute one which the law may recognise as criminal. In Eagleton (1855) it was said that the defendant must themselves perform everything up to the last act in the commission of an offence. In Davey (1968) it was ruled that the acts in question must not have any purpose other than the commission of a crime.
The following quote is from Lord Parker CJ in Davey, who refers herein to some contemporary legal texts:
Normally the intention underlying an attempt is the same as that of the completed crime. This is not always so, as while the intention inherent in murder can be either to kill or to cause grievous bodily harm, the intention inherent in attempted murder has to be to kill and nothing less.
R v Tangye (1997) 92 A Crim R 545.
Osland v The Queen (1998) 197 CLR 316.
R v Howes [1971] 2 SASR 293.
Waller, L & Williams CR, Criminal Law Texts and Cases, 10th Edition, Butterworths, 2005, p 544.
R v Eagleton (1855) 169 ER 826.
Davey v Lee [1968] 1 QB 366.
Knight v The Queen (1992) 175 CLR 495.