Complicity
1
s 7-Parties to Offences
s 8 Objectively Probable
Consequences
Complicity cont
• Complicity provisions apply to all offences
in Qld-s 2 Criminal Code Act 1899
2
• s7 Criminal Code-Parties
to Offences
– s 7(1)(a)- The Person who executes the offence
• by either act or omission
– Persons acting pursuant to Common Unnlawful
Purposes-Wyles
– s 7 (1)(b)-The Enabler
• enable or aid TO commit the offence
Complicity cont
– enabler need not be actually present
• eg Jervis; Borg; Johnson
– At common law called Accessories before the fact
• s 7(1) (c)-The aider
3
– aids IN commiting the offence
• usually present at commission of offence
– mere presence insufficient
• must be intentional or wilful encouragement
• encouragement must actually support-Beck
Complicity cont
• s 286 Criminal Code-duty wrt child: to take
precautions to avoid danger and remove from
danger c/f Russell
4 Procurer
– s 7(1)(d)-Counsellor or
• counsel- “advise or recommend”
• procure- “to cause or bring about”-Oberbillig
– innocent agents-fourth proviso
• Offences different to that counselled
– ie counselling to commit SOME offence
– and person counselled commits THE offence
Complicity cont
• combination of s 7 (1) (d) and s 9
– Nichols Johnson and Aicheson: counsellor
guilty if:
5
• offence committed was counselled-but no way of
committing was counselled-s 7(1) (d)
• different offence committed to that counselled but
facts constituting the offence actually committed
are A PROBABLE CONSEQUENCE of the
counselling-s 7(1) (d) and s 9
Complicity cont
• The offence counselled was committed and was
committed in way counselled -s 7(1)(d)
• The offence committed was counselled but was
6 counselled and the facts
committed in a way not
constituting the offence actually committed ARE
A PROBABLE CONSEQUENCE of carrying out
the counsel-s 7(1)(d) and s 9
– eg Stuart-counselled arson but committed murder
Complicity cont
• S 7-offence must be committed before
provisions apply
– but actual offender need
7 not be prosecutedLopusszynski
– aider or enabler commiting different offences
• s 10A (1) Criminal Code
Complicity cont
• Knowledge required by aider and enabler
under ss (b) and (c)
– ss (b) “for the purpose
8 of enabling..”-must
know the what offence IS OR MIGHT be
committed-Jervis
– knowingly aid: Beck
– ss © “aids” ?
– must know what offence is OR MIGHT be
committed-Jervis approving Solomon;
Complicity cont
– Relevance of Common Law?
• Wyles ; Johns
– intentional participation
9 and knowledge of
essential facts that constitute the offenceGiorgianni; Beck;
– Jeffrey Pascoe and Donald
– R v Lowrie and Ross
• Doctrine of Common purpose at common
law-
• Extension of Giorgianni?
– McAuliff
10
• THUS MUST ASCERTAIN
SUBJECTIVELY THE COMMON PLAN
OR ENTERPRISE
Complicity cont
– measured by KNOWLEDGE OR
FORSIGHT of participants- Jervis ;Brennan
– Things NECESSARILY
11 IN
CONTEMPLATION-Johns
– Includes things FORESEEN though NOT
agreed to-McAuliff
– Must know ESSENTIAL FACTS
constituting offence
Complicity cont
• “Merely unexpected incidents”?-if
subjectively within the plan-Varley;
Markby; Dang
12
• DYNAMIC CHANGES WITHIN PLAN
– Johns; Miller; Beck; Jeffrey Pascoe and
Donald
• WITHDRAWL FROM PLAN?
– Menniti
Complicity cont
• Dual tests of White v Ridley
• Acts of withdrawal must be capable of being
effective PLUS accompanied by such reasonable
13 previous participationaction as can take to undo
Thomas J applying Gibbs CJ
• necessary to actually cancel previous participation
such that if offence committed is by intervention of
new cause-Stephen and Aickin JJ-Derrington J
Complicity cont
• COMMON UNLAWFUL PURPOSES
AND OBJECTIVE CONSEQUENCES-S
8 Criminal Code
14
– offences beyond scope of common plan
• ie NOT contemplated, foreseen by accused or
merely unexpected incidents
– s 8 may extend criminal responsibility nevertheless
Complicity cont
• “Common Intention” to prosecute an
unlawful purpose
– subjectively ascertained
15 ‘state of mind’
• ascertained in same way as with s 7: Brennan;
Stuart; Jervis
• includes any reasonable inferences drawn from
circumstances-Johns
– “Offence committed OF SUCH A NATURE
that its commission was A PROBABLE
CONSEQUENCE
Complicity cont
• Objectively ascertained
• “Forseeability of Average Person”-Stark J in
Brennan
16 person in accused’s
• “Apparent to ordinary
position”-Jacobs J in Stuart
• “A real possibility”- Fitzgerald P in Hinds and
Harwood
• “A substantial or real chance”-Pincus JA in Hinds
and Harwood
Complicity cont
• DEEMED TO HAVE COMMITTED
‘THE OFFENCE’
– S 10A(2) Criminal responsibility
extends to
17
ANY offence that on the evidence IS A
PROBABLE CONSEQUENCE of the
prosecution of the common plan
– Barlow v R:
• “Offence” refers to an act done or omission made
that renders liable to punishment
Complicity cont
– ‘secondary offender’ DEEMED to have done
the act (or omission) of the principal
offender
18
– ‘secondary offender’ NOT liable to same
extent as principal offender
• Offence of SUCH A NATURE
– secondary offender deemed only to the
extent that act done (or omission made)
Complicity cont
– in such circumstances OR
– with such a result OR
– with such a state of mind
19
• as was a probable consequence of
prosecuting the common unlawful
purpose
Complicity cont
– DUAL RELEVANCE OF STATE OF MIND
OF SECONARY OFFENDER
• Firstly: to determine the content of the common
20
intention to prosecute the unlawful purpose
– THEN S 8 DEEMS THE SECONDARY
OFFENDER TO HAVE DONE THE ACT OF
THE PRINCIPAL OFFENDER in so far as
that act or omission is of a nature covered by
the common intention
Complicity cont
• Secondly: At the time when the act of the
Principal offender is done. If at that time the
secondary offender had a state of mind WHICH
IN COMBINATION21
WITH THE DEEMED ACT
renders the secondary offender guilty of A
MORE SERIOUS OFFENCE than that which
the principal offender committs, the secondary
offender is liable to conviction for the more
serious offence
Complicity cont
• ‘IN THE PROSECUTION OF’
– in the furtherance of -Phillips and Lawrence;
Hinds and Harwood;22
• WITHDRAWL FROM COMMON
UNLAWFUL PURPOSE
– Show DISASSOCIATION distinctly by an
UNEQUIVOCAL and TIMELY
communication-Saylor; Minetti
R v Jervis
• Common Unlawful
Purpose
– Common intention to
effect unlawful
purpose of killing or
causing gbh
• Objectively Probable
Consequences
23
– Objectively probable
consequence of killingie ‘a real possibility’ or
‘substantial or real
chance’ -Murder
R v Jervis
• Common Unlawful
Purpose
– a common intention to
effect the unlawful
purpose of wounding
to take blood
• Objectively Probable
Consequences
24
– objectively probable
consequence of
intentional killing
302(1)(a) by intending
to cause gbh-Murder
– -----------------------OR objectively
probable consequence
of dangerous act killing
under 302(1) (b)Murder
R v Jervis
• Common Unlawful
Purpose
– a common intention to
effect the unlawful
purpose of wounding
or causing some other
injury or hurt falling
short of death or gbh
• Objectively Probable
Consequences
25
– an objectively probable
consequence of
dangerous act killing
302(1)(b)-Murder
– -----------------------OR an objectively
probable consequence
of unintentional
killing-Manslaughter