LLB180 Lecture Notes - Lecture 5: Ansett Australia, All England Law Reports, Law Reform Commission Of New South Wales
Week 5 – Complicity II; Attempt
• Whee D the aesso poides assistae o eouageet fo a rime
committed primarily by D the piipal
• The prosecution should only need to rely on accessorial liability where:
- There is no agreement between D1 & D2; or
- Where D2 has not participated in any way
• Liability of D2 is derivative in nature – not primary (Osland)
- It derives from the liability/criminality of D1 where there is no agreement
between D1 & D2
• In some circumstances, D2 may be convicted of a more serious crime than D1
- E.g. Likiardopoulos (p 1177): Court held that D2 could be convicted of murder
based on accessorial liability even where P accepted pleas to lesser crimes for D1
and the other accused – not an abuse of process – legitimate exercise of P
discretion
• Most often used when participation by D2 is unplanned/spontaneous → most crime
participants usually have an agreement (CB 1162)
There are two types of ways in which someone can incur accessorial liability:
• A principal in the second degree - one who was present at the commission of the
crime and aids, encourages or assists
• A principal in the third degree - one who took part in preliminary stages of crime by
urging or contributing towards its commission, but was not present when the crime
is committed
- These are commonly called 'accessories before the fact'
• Ss 346-347 Crimes Act allows secondary participants to be tried before, at the same
time or after the principal however it still has to be proved that an offence took
place
The Offee Coditio
Requiring that a primary offender be convicted of the same offence alleged against the
secondary participant
• Accessorial liability is said to be derivative
• This means that D1 must be convicted of the offence in question in order for the
liability of D2 to be derived fo Ds liailit
• However, in certain circumstances differential verdicts or outcomes are possible
• Innocent agency- (Pinkstone, CB 1176)
• Whee poseutio aepts Ds plead to a lesse offee eg Likiardopoulos (CB
1177)
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Mental Element: Intention and Knowledge
• Knowledge that the crime is being committed
• Prosecution must prove that D2 intended to assist or encourage the commission of
the offence (Giorgianni; Stokes and Difford)
• Require knowledge of the essential facts which make up the offence i.e. AR and MR
(Giorgianni)
• Doesn't need to have knowledge of the exact crime, can be similar type
(Ancuta; Bainbridge)
• If more serious crime resulted than the one the accused intended to assist with,
accused will be liable for the lesser crime (Chai)
• Recklessness is insufficient
• Desire for the crime to actually be committed is irrelevant - If oe a delieatel
sells another a gun for murdering a third, he may be indifferent about whether the
third lives or dies and interested only in the cash for profit to be made out of the
sale, ut he a still e a aide ad aetto Stokes and Difford)
• Not necessary to prove that the defendant wanted the crime to be committed
(National Coal Board v Gamble)
Giorgianni [1985] 156 CLR 473 (CB 1163)
Facts
D2 was the owner of a truck with defective brakes driven by D1. The brakes failed on Mt
Ousley and the truck collided killing 5 and seriously injuring 1. The trial judge found that he
was reckless as to whether a crime would be committed, which constituted 'procuring'
making him an accessory before the fact
Held
A peso aot e said to aid, aet, ousel o poue the oissio of the offee
without intent (recklessness is not enough). In order for there to be intent, he must have
knowledge of essential facts which constitute the offence, but this knowledge requirement
does't alas eted to iustaes hih ou as the esult of the ie
The HC quashed the conviction against D2 and ordered a new trial. Charges against him
were later dropped
Stokes and Difford (1990) 51 A Crim R 25 (CB 1166)
Facts
Stokes was convicted of maliciously inflicting GBH with intent to inflict GBH. The D was
convicted as an accessory to the lessor offence of maliciously inflicting GBH
Held
It was not sufficient for the crown to establish only that the accessory had knowledge of the
physical acts done by the principal but that the accessory was aware that the principal
performed the acts with the relevant state of mind of that offence
Appeal alloed ad Diffods oitio uashed
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What if the principal commits a more serious crime?
An accessory will often be liable even if the crime committed ended up having worse
consequences than what the accessory imagined (e.g., assault vs causing grievous bodily
harm). In such cases, the accessory will be liable to the lesser version of the crime
• In Chai, the High Cout edosed the piiple that if a peso poues aothe to
commit an unlawful act, which is objectively dangerous, and (unintended) death
esults, the the [aesso] ill e guilt of aslaughte
Can a victim be convicted of aiding and abetting?
• In Tyrell, it was found that the defendant, a girl aged under 16, could not be guilty of
the charge of aiding and abetting the principal to have unlawful sexual intercourse
with her
• In the 1990s a number of cases contradicted this doctrine, where parties who had
taken out domestic violence orders were convicted of aiding and abetting the breach
of them
- For example, in Keane, Smith was charged with breaching a restraining order and
Keae as haged ith aidig ad aettig “iths eah otatig hi
and allowing him to enter her house
- It was distinguished from Tyrell, eause that At as passed to potet
consenting girls ad ould ot hae ee iteded to attah liailit to the.
• However, liability in situations such as Keane fails to recognise the nature of
domestic violence and may provide a significant disincentive for those deciding to
pursue an order in the first place.
• The Crimes (Domestic and Personal Violence) Act 2007 now provides that a person
cannot be guilty of being an accessory to breach of an AVO if they are a person
protected under the order concerned.
What if D1 commits murder but the prosecution cannot prove that D2 assisted/encouraged
with knowledge that D1 would cause death with intent to kill/cause GBH?
• D2 may be convicted of manslaughter if P can prove that:
- D2 was an accessory to an unlawful act by D1; and
- A reasonable person would have realised that the deceased was thereby
exposed to an appreciable risk of serious injury (ie the test for unlawful and
dangerous act manslaughter)
• D eed ot hae koledge of the peise ae/ tiig of Ds oissio of
the offence (Bainbridge [1960])
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Document Summary
Week 5 complicity ii; attempt: whe(cid:396)e d(cid:1006) (cid:894)the (cid:858)a(cid:272)(cid:272)esso(cid:396)(cid:455)(cid:859)(cid:895) p(cid:396)o(cid:448)ides assista(cid:374)(cid:272)e o(cid:396) e(cid:374)(cid:272)ou(cid:396)age(cid:373)e(cid:374)t fo(cid:396) a (cid:272)rime committed primarily by d(cid:1005) (cid:894)the (cid:858)p(cid:396)i(cid:374)(cid:272)ipal(cid:859)(cid:895, the prosecution should only need to rely on accessorial liability where: There is no agreement between d1 & d2; or. Where d2 has not participated in any way: liability of d2 is derivative in nature not primary (osland) It derives from the liability/criminality of d1 where there is no agreement between d1 & d2. In some circumstances, d2 may be convicted of a more serious crime than d1. D2 was the owner of a truck with defective brakes driven by d1. Ousley and the truck collided killing 5 and seriously injuring 1. The trial judge found that he was reckless as to whether a crime would be committed, which constituted "procuring" making him an accessory before the fact.
