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:

  • 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):
    1. 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.
    2. 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.
    • Since the mens rea is satisfied automatically because of the 'agreement' element, the accused will be held criminally liable, unless he can raise any defences against his involvement in the joint criminal enterprise (provocation etc)
  • 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.
    • The standard of foreseeability is like that of recklessness - the accused must have contemplated the possibility of the crime occurring.
      • 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.
      • The accused need not have foreseen the method of the crime, as long as he saw the possibility of harm of that magnitude.

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.

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.

Joint criminal enterprise

[3] 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:[4]

  • Relying on Tangye[5], a person is considered a part of a joint criminal enterprise when the person did not commit the actus reus yet:
    1. 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 does

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