Difference between revisions of "Introduction to Extending Criminal Liability"

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Complicity is a doctrine which extends liability to a party who did not perform the actus reus of the crime. This article deals with two of the doctrines of complicity: joint criminal enterprise and extended joint criminal enterprise. Their principles are as follows:
Complicity is a doctrine which extends liability to a party who did not perform the actus reus of the crime. This article deals with two of the doctrines of complicity: joint criminal enterprise and extended joint criminal enterprise.  
:*'''Joint criminal enterprise''': a person is considered a part of a joint criminal enterprise when the person was not the actual one who committed the actus reus yet satisfied the following elements (:''[[Osland]]''):
:*:# '''Agreement''': the accused agreed with the parties committing the actus reus to commit the crime.
:*:#:* Doesn't have to be explicit, an unspoken understand is sufficient:''Tangye''
:*:#:* There needs to be a 'group' mentality' as opposed to individuals acting within a group: ''Taufahema'' OR "people are acting together, that is, of a common mind and with a common aim": ''Kanaan''.
:*:#:* It can be longstanding or arising at the time of commission: ''Kanaan''.
:*:# '''Presence''': the accused was present at the time of the offence.
:*:#:* This requirement has not always been followed. Courts have sometimes ruled:
:*:#:*:* Presence need not be continuous: ''Franklin''.
:*:#:*:* Encouragement or assistance is necessary, mere presence on its own is not sufficient: ''Chishimba''.
:*:#:*:* It is sufficient if the accused is present only during the agreement, when the crime committed shortly after: ''Suteski''.
:*:* If the above elements can be proven [[beyond all reasonable doubt]], the accused will be treated as though he committed the actus reus.
:*:* The mens rea will be satisfied so long as the accused '''intended to agree''' (he may raise defences such as [[Provocation Defence|provocation]]), to the joint criminal enterprise.
:*'''Extended criminal joint enterprise''': a party of the joint criminal enterprise will be held liable for all foreseeable crimes (even if not agreed upon) resulting from the joint criminal enterprise: ''McAuliffe and McAuliffe''.
:*:* The standard of foreseeability is like that of recklessness - the accused must have contemplated the possibility of the crime occurring: ''McAuliffe and McAuliffe''.
:*:*:* The accused must have had foresight to both the actus reus and the mens rea of the additional crime committed, otherwise he will be convicted of a lesser crime: ''McAuliffe and McAuliffe''.
:*:*:* The accused need not have foreseen the method of the crime, as long as he saw the possibility of harm of that magnitude: ''Keenan''.
In both cases, he who is held responsible under joint enterprise or extended joint enterprise is treated as a principal to the '''first degree''' and thus attributed '''primary''' responsibility. This means he is tried independently and irrespectively of the other offenders, and can be found guilty even if others are acquitted by reason of a defence etc.  
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In each of these circumstances a different set of rules applies, although they are seemingly overlapping and are very confusing.
In each of these circumstances a different set of rules applies, although they are seemingly overlapping and are very confusing.
== Joint criminal enterprise ==
<ref>Textbook, pp. 987-92.</ref> A joint-criminal enterprise is where a number of people agreed to commit a certain offence, but the actual acts which constitute the actus reus of that offence were only carried by one or some of the people.
:* Thus, all of the parties have the requisite mens rea, but not the actus reus.
:* The principles of complicity bridges that gap by attributing the actus reus of the acting parties to all of the parties involved, because of the agreement.
:* The practical difference between the effect of a joint criminal enterprise and accessorial liability is liability arising from a joint-criminal the former is '''primary''' instead of derivative.
:*:* This means that liability of the non-acting parties does not depend on the conviction of the acting parties. The fate of the parties is separate.
:*:* The purpose of this is allow 'manipulators' to be convicted. For example, a person might manipulate a mentally ill person to do a crime. The mentally ill person might not be convicted by reason of the insanity defence or other such defences. If the liability was only derivative, the manipulator would benefit off that defence too and thus not be found guilty. The principle of primary liability changes that.
The High Court ruled on joint criminal enterprise in ''[[Osland]]'':<ref>(1998) 159 ALR 170.</ref>
:* Relying on ''Tangye''<ref>(1997) 92 A Crim R 545.</ref>, a person is considered a part of a joint criminal enterprise when the person did not commit the actus reus yet:
:*:# Agreed with the others that they as a group will do the crime.
:*:#:* This does not need to be express and may be inferred from the circumstances. It also doesn't have to be made before the crime.
:*:# Was present at the time of the crime.
:* An accused who satisfied this test will be attributed the actus reus of the criminal enterprise even though he did not personally carry it out.
:*It is the actus reus, and not the conviction as a whole, which is attributed to him, meaning that he is tried independently and irrespectively of the verdicts which the other offenders receive. His liability is primary, and not derivative.
:*:* He will not benefit from defences they use, and he is free to raise his own defences if his involvement resulted from [[Provocation Defence|provocation]] etc.
The requirements of a joint criminal enterprise can thus be termed the ''' 'agreement requirement' ''' and the ''' 'presence requirement' '''. They are explained in detail below.
=== Presence requirement ===
<ref>Textbook, pp. 992-3.</ref> The presence requirement has been subject to much criticism, and its status is now unclear. In their dissension in ''Osland'', Gaudron and Gummow’s suggested that there is no logical reason for the limitation that the person must be physically there at the time to be a part of a joint criminal enterprise.
:* Indeed, it seems an illogical requirement - the idea of a joint criminal enterprise hinges on the fact that the parties agreed between them to do the crimes. Why should it make a difference if one party was not at the scene?
Nevertheless, ''Osland'' is still technically the position and thus the presence requirement endures. This was followed in ''Kanaan'',<ref>[2006] NSWCCA 109.</ref>, where the accused was only held as an accessory, and not under joint criminal enterprise, because he wasn't actually present when the murder was committed.
However, in a number of other cases the precedent of ''Osland'' has been distinguished, qualified or ignored:
:* In ''Franklin'',<ref>[2001] 3 VR 9 at 55.</ref> Ormiston JA observed that it is not essential that the presence be continuous.
:* In ''Suteski'',<ref>[2002] NSWCCA 509.</ref> the court interpreted the presence requirement as referring to the presence of the defendant at the time the '''agreement was entered into''', rather than the presence of the defendant at the time of the commission of the offence.
:* Undoubtedly, this is not what the court meant in ''Osland''.
The presence requirements also creates potential difficulties in relation to a crime such as supplying a prohibited drug, where it is difficult to define the “scene of the crime”.
:* In ''Prochilo'', Smart JA said “Presence at the scene of supply is one way of proving participation in the joint criminal enterprise. It is not the only way. Participation is frequently proved by telephone intercepts and listening device tapes”.<ref>[2003] NSWCCA 265 at [58]-[60].</ref>
=== Agreement requirement ===
<ref>Textbook, pp. 993-5.</ref> There is significant overlap between this category of complicity liability and conspiracy, however, the threshold for establishing the existence of an agreement is lower in this case. There have been many ways of trying to exactly define the 'agreement' necessary for a joint criminal enterprise:
:* One definition for agreement is “'''an unspoken understanding or arrangement amounting to an agreement'''”: ''Tangye''.<ref>(1997) 92 A Crim R 545.</ref>
*In ''Kanaan'', the judge commented that “a joint enterprise does not have to be reduced to writing or any formality. A joint enterprise simply means that '''people are acting together, that is, of a common mind and with a common aim shared between them'''... an enterprise can be put together or it can be longstanding.”<ref>[2006] NSWCCA 109 at [226].</ref>
*''Taufahema''<ref>[2006] NSWCCA 152</ref> held that there needs to be "'''mutuality of assistance'''", as opposed to mere "common intention."
This was discussed in ''Chishimba'':<ref>[2010] NSWCCA 228.</ref>
:* Facts: three men sexually assaulted a 15 year old victim multiple times over an extended period of time.
:* Held: the fact that the appellants were present in the bedroom at the time of the sexual intercourse did not, without additional behaviour, amount to encouragement for the purpose of establishing joint criminal enterprise (ie, mere presence is not enough).
:*:* In dissent McCallum J concluded that “The presence of a man in a pub with a friend when a fight breaks out has a different complexion from the presence of a man in a small bedroom with the door mostly closed when a friend begins to have sexual intercourse with a drunken girl who is asleep on the bed. The failure to leave or intervene during such conduct is more significant. I do not characterise it as 'mere presence'”.
=== Joint criminal enterprise and defences ===
<ref>Textbook, pp. 996.</ref> In ''Osland'',<ref>(1998) 159 ALR 170.</ref> McHugh J referred to the facts in ''Parker'',<ref>(1964) 111 CLR 665 (HC).</ref> in order to support his contention that a person could be simultaneously acting under provocation and pursuant to an agreement.
:*In ''Parker'', the accused hit the victim with his car and stabbed him multiple times whilst he was in the process of eloping with Parker’s wife and had just taunted him about having sex with her.
:*If his brother-in-law had set out with him to catch the victim and kill him, McHugh concluded that it would have been open to the jury to decide that Parker had been acting both under provocation and pursuant to an agreement.
:*Under the majority opinion in ''Osland'', defences such as provocation may not negate an agreement.
=== Withdrawal from a joint criminal enterprise ===
<ref>Textbook, pp. 996-7.</ref> According to ''Tietie'',<ref>(1988) 34 A Crim R 238.</ref> in order withdraw effectively form a joint criminal enterprise:
:# The withdrawal must be complete.
:# The withdrawal must be timely.
:# The person must communicate the withdrawal to the others.
:# The person must do what he reasonably can to try to dissuade the others from committing the crime.
:* If the crime has already begun, the person must countermand their actions or take action “to undo the effect of his previous encouragement and participation.” Otherwise the withdrawal will not be timely, it will be too late.
Not all common law jurisdictions require an attempt to prevent the crime, however, “mere repentance” will not suffice.<ref>''O’Flaherty'' [2004] EWCA Crim 526.</ref>
:* If, after communicating their withdrawal, the accused honestly believed that the others would not go ahead and commit the crime, no preventative steps are required.<ref>''Truong'' (unreported, NSWCCA, 22 June 1998).</ref>
:* The withdrawal requirements are assumed to be the same regardless of which complicity rules are operating, however, in ''Truong'', Smart J treated it as an open question whether in the case of an accessory the requirements should be less onerous (for example not requiring preventative steps).
:* It has been suggested that what a person must do by way of withdrawal might depend on what role it was anticipated they would play in the crime.
== Extended joint criminal enterprise ==
<ref>Textbook, pp. 997-1001.</ref> This occurs where there was a joint criminal enterprise to commit a crime, and during the commission of that crime, one of the offenders committed a different crime instead/in addition to the crime that was agreed upon. Liability for that different crime may still be extended to the participants of the joint criminal enterprise.
This was discussed in ''McAuliffe and McAuliffe'':<ref>(1995) 130 ALR 26.</ref>
:* Facts: two brothers were convicted of the murder of one man and the assault and robbery offences against another. They had decided with a friend to go to a park to rob and/or assault someone. One man ended up seriously injured and the other died from his wounds and from falling from cliffs at the park due to the altercation. The friend and one of the brothers armed themselves but it was questionable whether the other participants knew of this.
:* Held: because the common purpose or enterprise was to rob someone, there was also an express or tacit agreement that the victims would be attacked with an intention to inflict GBH or it was contemplated that an intentional infliction of GBH would be a possibility in the assault.
:*:* Test: mens rea element - the accused must have contemplated that there is a possibility that one of the other parties may commit that different crime, and yet proceeded anyway (recklessness). The consequences need only be possible not probable.
=== Individual foresight, not “common” agreement ===
<ref>Textbook, pp. 1001-2.</ref> Following ''McAuliffe'', the distinction between additional crimes within the agreement of the joint criminal enterprise and outside it is effectively redundant.
:* The entire point of a joint criminal enterprise is that there is only primary liability because the people agreed to do the crime.
:* However, the doctrine of extended criminal liability ascribes the same primary liability even to crimes which were not agreed upon, but were merely foreseen.
:* In other words, the distinction might as well be erased and joint-criminal enterprise should be everything agreed upon and all foreseeable consequences.
The difficulties of 'foreseeability' were highlighted in ''Powell'':<ref>[1997] 4 All Er 545.</ref>
:* Contemplation and tacit agreement are often practically indistinguishable from each other, however, in some cases where the party makes it clear, for example, that they are opposed to the use of a dangerous weapon, it would be unrealistic to say that it was used with their tacit agreement.
:* However, the disagreeing party will be convicted regardless under ''McAuliffe'', as there was still contemplation that it might happen, although not agreed to.
=== The relationship between joint criminal enterprise and extended joint criminal enterprise ===
<ref>Textbook, pp. 1002-3.</ref> In ''Tangye'',<ref>(1997) 92 A Crim R 545 (NSWCCA).</ref> the court explained that the prosecution only needs to rely on extended joint criminal enterprise when the offence charged is not the same as the enterprise agreed.
This was discussed in ''Jacobs and Mehajer'':<ref>[2004] NSWCCA 462.</ref>
:* The court emphasised that in some circumstances it will be appropriate for the prosecution to simultaneously run arguments based on joint criminal enterprise and extended joint criminal enterprise.
:* In this case the enterprise was a robbery but it was left open whether the enterprise included the aggravating element of inflicting grievous bodily harm  or whether it fell under the extended doctrine.
=== What must the secondary participant have foreseen as a possibility? ===
<ref>Textbook, pp. 1003-4.</ref> This issue most commonly arises where the parties to the crime did not exactly foresee the crime as it happened, but only some aspects of it. The questions arise:
:* Does the person have to foresee actus reus and mens rea? (That the person will do the act on purpose).
:* Does the method of the crime have to be foreseen?
==== Actus and Mens ====
''McAuliffe'' established that foresight of both elements must be proved by the prosecution.
This was discussed in ''Gillard'',<ref>[2003] HCA 64.</ref>
:*Facts: the appellant was convicted of murder and argued that although he was participating with Preston in an armed robbery he did not foresee that Preston would kill the victim intentionally (ie, he only forsaw something like manslaughter).
:*Held: if he did not foresee intent it would be possible to convict Gillard of manslaughter as opposed to murder.
''Nguyen''<ref>[2010] HCA 38.</ref> also held that the secondary offender does not have to be convicted of the same crime as the primary offender, the facts of the case may leave an alternate verdict open.
==== The method ====
In ''Keenan'',<ref>(2009) 236 CLR 397.</ref> the majority endorsed the view that the extent of the harm caused is the key consideration, rather than the method by which it is caused.
:* “It would be an odd result if the respondent could be criminally responsible for grievous bodily harm inflicted by means of a baseball-type bat but not by means of a gun, when the level of harm intended was achieved.”
The UK case ''Rahman'',<ref>[2008] UKHL 45.</ref> also expressed doubts about the appropriateness of drawing distinctions based on the type of weapon.
*In ''Bentley'',<ref>[2001] Cr App R 307.</ref> the court issued the conflicting statement that “Where the principal kills with a deadly weapon, which the secondary party did not know he had and of which he therefore did not foresee use by the principal, the secondary party is not guilty of murder", but may of course be guilty of manslaughter.
=== “Foundational” crime  ===
<ref>Textbook, pp. 1004-7.</ref> The primary policy rationale for the rules relating to extended joint criminal enterprise is that individuals should refrain from engaging in joint criminal enterprise because there is a risk that other parties will engage in other more serious crimes.
''Miller''<ref>(1980) 32 ALR 321.</ref> stood in defiance of this logic for several decades.
:* Facts: extended joint criminal enterprise was relied on when over a five month period Miller drove around a looking for women to have consensual sex with (therefore not constituting a foundational crime), however, his friend then killed one of the women. Miller continued to drive his friend around, on most occasions he did not kill the woman but on six further occasions he did.
:* Held: Miller was acquitted of the murder of the first woman but convicted of the remaining six. The court did not consider a foundational crime to be necessary, only that Miller foresaw the possibility that his might kill.
=== Criticisms of the doctrine of extended joint criminal enterprise ===
The most common criticism of the doctrine is that it contravenes the basic principles of criminal law because an individual can be convicted without possessing either the actus reus or mens rea for the offence.
:* Kirby J points out the inconsistency in the law when the test for the secondary offender (foresight of possibility) is lesser than the test for the primary offender (elements of the crime).
:* In ''Clayton'', Kirby J noted the conceptual and practical difficulties with the overlap and inconsistency between the doctrines. “The unreasonable expectation placed upon Australian trial judges... to explain the idiosyncrasies of differential notions secondary liability to a jury is something that should concern this court... The law should not be as unjust, obscure, disparate and asymmetrical as it is.”<ref>[2006] HCA 58.</ref>
====Policy justifications====
In ''Powell'', the court noted “Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences.”<ref>[1997] 4 All Er 545.</ref>
:* In the same case, Lord Hutton explained that policy considerations rather than logic shapes the doctrine, including “the need to give effective protection to the public against criminals operating in gangs.”
:* He also noted that “unlike the principal party who carries out the killing with a deadly weapon, the secondary party will not be placed in the situation in which he suddenly has to decide whether to shoot or stab the third person with intent to kill or cause really serious harm” - the secondary party should not escape liability because of the luck that placed him in a different situation despite the risk he took when he engaged in the enterprise.
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Revision as of 22:16, 26 October 2012

Complicity is a doctrine which extends liability to a party who did not perform the actus reus of the crime. This article deals with two of the doctrines of complicity: joint criminal enterprise and extended joint criminal enterprise.

This article is a topic within the subject Criminal Laws.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 985-1010.


[1] Most crimes are committed by a group of people, different people of which have different amounts of participation/responsibility. Accordingly, the criminal law has different doctrine to recognise and attribute criminal responsibility when a crime is the result of a group activity.

  • These are known as ‘complicity law’ and provide a basis of criminal liability of a person by reference to their association with a crime committed by someone else.
  • For some offences (eg, conspiracy) association alone is enough for to make a person guilty of an offence, because of the risk that individuals will engage in future criminal activity.
  • Offences based on mere association without any requirement to prove a specific criminal offence has been committed or even planned (eg, consorting with known criminals) are even more controversial offences.


[2] “Complicity” is not an offence as such, it refers to a set of principles which extend liability from a person/s who actually committed the actus reus to others who were in some way a part of the crime but did not actually carry out the actus reus. Complicity exists in three circumstances:

  1. Joint criminal enterprise: this is where two or more persons agreed to commit the offence, which was then carried out by only some of the persons.
    • All will be held equally responsible for the actions of the others, as 'principals in the first degree'.
    • Sometimes referred to as “acting in concert”.
  2. Extended joint criminal enterprise: this is where there was a joint criminal enterprise to commit an offence, and during that commission, one person commits an additional crime which was not agreed upon.
    • The others may nevertheless be held liable for the other crime if they contemplated that such a result might possibly occur.
  3. Accessorial liability: this is either where a person provides assistance or encouragement before the crime ('accessory before the fact') or a person who provides assistance or encouragement at the scene of the crime ('principal in the second degree').
    • This results in derivative liability, meaning that they will only be liable if the primary offender is found guilty.

In each of these circumstances a different set of rules applies, although they are seemingly overlapping and are very confusing.


This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 985.
  2. Textbook, pp. 985-6.
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