LWZ114 Lecture Notes - Lecture 7: The Offence, Institute For Operations Research And The Management Sciences, Statutory Interpretation
SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY
COMPLICITY: PRIMARY LIABILITY
DOCTRINE OF ‘INNOCENT’ AGENCY
(D has not personally performed physical elements, but possessed the fault elements)
❖ R v Cogan & Leak: A person with the requisite intent only can be convicted of an offence, if an ‘innocent’ agent was
used to perform the physical elements of the offence.
➢ *D1 persuaded D2 to have sex with V, D’s wife.
➢ *D2 honestly believed V was consenting.
➢ D2 did not have the fault element → acquitted of rape. [D2 was a non-responsible agent]
➢ D1 had the necessary fault element for rape & had used D2 as an instrument for the necessary physical act → D1
was a principal offender of rape.
‘ACTING IN CONCERT’: JOINT PRINCIPALS
(acting in concert pursuant to an agreement)
❖ Osland v R: Where A is acting in concert with B pursuant to an agreement to commit a crime, and is present when
that crime is committed, A will be liable as a principal for all the actions of B done within the scope of the agreement.
➢ *D1 and D2 planned to kill V.
➢ *D1 was present when D2 killed V.
➢ D1 and D2 were acting in concert pursuant to an agreement to kill V + D1 was present when D2 killed V → D1
was guilty as a principal in the 1st degree.
➢ Fact that D2 was acquitted is irrelevant, as D1’s liability is primary, not derivative.
COMPLICITY: DERIVATIVE LIABILITY
AIDING, ABETTING, COUNSELLING OR PROCURING
❖ CLCA S267: A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted
& punished as a principal offender.
➢ Aid: help, assist
➢ Abet: encourage
➢ Counsel: advise, persuade
➢ Procure: induce, bring about
❖ The offence must be committed by someone before D can be convicted as an accessory.
Physical element
❖ Any act of instigation, encouragement or assistance of a PO will satisfy the physical element for accessorial liability,
provided the act did not occur after the PO has committed the offence.
❖ Conveyance of support & assent
➢ Fisse: D must show his assent to & promotion of the principal’s actions {to anyone}.
➢ Ready: It is unnecessary for the support to be actually conveyed to PO.
▪ *D, chemist, referred V to PO for an abortion.
▪ *D did not communicate with PO.
▪ D supported the commission of the offence by referring.
❖ Causation
➢ O’Sullivan v Truth: A causal connection need not exist between the accessory’s assistance or encouragement, and
the commission of the crime charged.
➢ AG’s Reference (No 1 of 1975): However, ‘procure’ implies a causal link between the assistance given and the
commission of the offence.
❖ Inactivity
➢ R v Coney: Mere presence at the scene of the crime, if deliberate and not accidental, may amount to evidence of
aiding and abetting.
▪ *D watched an illegal prize fight.
▪ D deliberately & voluntarily remained during the fight → D’s presence provided evidence of encouragement.
Fault element
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Document Summary
Doctrine of innocent" agency (d has not personally performed physical elements, but possessed the fault elements) R v cogan & leak: a person with the requisite intent only can be convicted of an offence, if an innocent" agent was used to perform the physical elements of the offence. *d1 persuaded d2 to have sex with v, d"s wife. D2 did not have the fault element acquitted of rape. D1 had the necessary fault element for rape & had used d2 as an instrument for the necessary physical act d1 was a principal offender of rape. Acting in concert": joint principals (acting in concert pursuant to an agreement) *d1 and d2 planned to kill v. *d1 was present when d2 killed v. D1 and d2 were acting in concert pursuant to an agreement to kill v + d1 was present when d2 killed v d1 was guilty as a principal in the 1st degree.
