Innocent Agency and Accessories After the Fact

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Innocent agency is a doctrine by which primary liability is attributed to a manipulator who used an innocent party to commit a crime. The principle works as follows:

  • An accused who procured an innocent person (ie, no mens rea) to do a crime will be be attributed with primary liability for that crime: Pinkstone.
  • The innocent party must be completely innocent (usually a child or a lunatic etc).

An accessory after the fact is an offence which prohibits rendering assistance to criminals after the commission of a crime. Its elements are as follows:

  • Actus reus: there must be acts of comfort or assistance to make someone an accessory after the fact (eg, receiving a criminal to protect): Barlow.[1]
    • Mere enjoyment of the proceeds of the crime will not be enough; however, if the accused benefited and intended to help avoid detection, then will be held to be an accessory.
  • Mens rea: the accused must have knowledge of all the relevant facts that established the precise crime that was comitted - vague knowledge is not enough: Stone.[2]
    • The accused must have intended to assist the perpetrator of the original crime to escape arrest or conviction, (even if the accused was also motivated by a desire to benefit personally: Young and Phipps.[3]
  • Max penalty: 5 years: Crimes Act 1900, ss 348-351).
    • Exceptions: murder (25 years) and armed robbery and kidnapping (14 years): s 349.

This article is a topic within the subject Criminal Laws.

Contents

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. 1025-1030.

Innocent agency

[4] There are situations which do not fit nicely within either of the complicity doctrines of joint criminal enterprise and accessorial liability. A common one is where a 'manipulator' has manipulated an innocent party to commit a crime (eg, convincing a child to deliver poison to someone).

  • If the manipulator wasn't at the scene of the crime, he could not be charged under a joint criminal enterprise, only accessorial liability (lacking presence requirement).
  • In addition, since accessorial liability is derivative, it means that the manipulator will go unpunished if the innocent party can gets acquitted (since the liability of the accessory depends on that of the principal).

This is remedied by the doctrine of “innocent agency” which operates in the case where an accessory used an innocent agent to commit a crime.

  • The requirement of the doctrine is that the 'agent' was completely innocent (no mens rea).[5]
  • In Cogan and Leak,[6] the court upheld Leak’s conviction for the rape of his wife because he persuaded Cogan to have sex with his unconsenting wife and despite the fact that Cogan committed the physical act, he did not intend to have intercourse with the wife without her consent.
  • In Hewitt,[7] the court explained that the true basis for sustaining the conviction in Cogan and Leak was the doctrine of innocent agency which should considered separate from accessorial liability as it allows liability as the principal offender.

Can an undercover police officer be an “innocent agent”?

[8] The undercover actions of police cannot extend liability to parties who did not themselves commit the actus reus because the police are not “innocent” in these circumstances but willing participants with ulterior motive to impute the secondary parties.

This was discussed in Pinkstone:[9]

  • Facts: the defendant sent two boxes of drugs to the airport. Undercover officers inspected and photographed the boxes before allowing them to proceed, and other undercovers received the boxes and waited for them to be collected. The defendant argued that the doctrine of innocent agency could not be relied upon by the police (ie, to extend liability from the police officers to him) as their participation was willing (since they wanted to arrest him) and not innocent.
  • Held: The High Court unanimously accepted that in circumstances of undercover operation, the doctrine of innocent agency could not be used to apply to the conduct of police officers. Nevertheless, the appeal was dismissed on the basis that the crime had been committed even before the involvement of the police; given the broad definition of supply.

Assistance after the commission of a crime

Accessory after the fact

[10] It is also an offence to render assistance, after the event, to a person who has committed a crime. This is not a part of accessorial liability - it is a standalone crime. The elements of the offence are as follows:

  • Actus reus: there must be acts of comfort or assistance to make someone an accessory after the fact (eg, receiving a criminal to protect): Barlow.[11]
    • Mere enjoyment of the proceeds of the crime will not be enough; however, if the accused benefited and intended to help avoid detection, then will be held to be an accessory.
  • Mens rea: the accused must have knowledge of all the relevant facts that established the precise crime that was comitted - vague knowledge is not enough: Stone.[12]
    • The accused must have intended to assist the perpetrator of the original crime to escape arrest or conviction, (even if the accused was also motivated by a desire to benefit personally: Young and Phipps.[13]
  • Max penalty: 5 years: Crimes Act 1900, ss 348-351).
    • Exceptions: murder (25 years) and armed robbery and kidnapping (14 years): s 349.

Concealing a crime

[14] Some statutory offences fall into the category of accessory after the fact such as concealing a crime under s 316 of the Crimes Act 1900.

  • The accused must know or believe that a crime has been committed and not just suspect it: Wozniak.[15]
  • 2 years imprisonment.

End

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

References

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. (1962) 79 WN (NSW) 756 at 757.
  2. [1981] VR 737, 740.
  3. Unreported, NSWCCA, 31 October 1995.
  4. Textbook, pp. 1025-7.
  5. Pinkstone [2004] HCA 23.
  6. [1975] 2 All ER 1059.
  7. [1997] 1 VR 301.
  8. Textbook, pp. 1027-8.
  9. [2004] HCA 23.
  10. Textbook, pp. 1028-9.
  11. (1962) 79 WN (NSW) 756 at 757.
  12. [1981] VR 737, 740.
  13. Unreported, NSWCCA, 31 October 1995.
  14. Textbook, pp. 1029-30.
  15. (1989) 40 A Crim R 290 (NSWCCA).
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