Accessorial Liability

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Accessorial liability is another complicity doctrine, which extends derivative criminal liability to those who were not a part of a joint criminal enterprise yet nonetheless participated in the commission of a crime in some way. In order to be held responsible for a crime under accessorial liability, an accused must satisfy the following elements:

  • Actus reus: either of the following:
    1. Principal in the second degree: The accused was present in the commission of the crime.
      • Mere presence or acquiescence, even if not accidental, is not enough. The accused must have aided, abetted, counselled or procured the crime (rendered encouragement or assistance): Phan; Clarkson.
      • The encouragement/assistance must have been in the presence of the offender, but need not have influenced him: Lam.
      • Presence is elastic, being close by to help is also sufficient: McCarthy and Ryan
    2. Accessory before the fact : The accused took part in preliminary stages of crime by aiding, abetting, counselling or procuring, but was not present when the crime is committed.
      • The assistance must have been in the presence of the offender, but need not have influenced him: Lam.
  • Mens rea: intention to assist with the crime, not that the crime be committed: Giorgianni; Stokes and Difford.
    • Require knowledge of the essential facts which make up the offence: Giorgianni.
    • Doesn't need to have knowledge of the exact crime, can be similar type: Ancuta; Bainbridge.
    • If more serious crime resulted than the one the accused intended to assist with, accused will be liable for the lesser crime: Chai.

If the elements can be proved, the accused will be held as incurring accessorial liability. Accessorial liability is derivative, which means that the accused will only be convicted if the primary offender is also convicted.

  • This means the accused will benefit off any defences used by the primary offender.

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. 1010-1025.

Introduction

[1] Accessorial liability is a another form of extending criminal liability, even to those who were not involved in a joint-criminal enterprise. To recognise the lower level of involvement, the criminal law attributes a lower level of criminal liability to those who have accessorial liability.

There are two types of ways in which someone can incur accessorial liability:

  1. A principal in the second degree - one who was present at the commission of the crime and aids, encourages or assists.
  2. A principal in the third degree - one who took part in preliminary stages of crime by urging or contributing towards its commission, but was not present when the crime is committed.
    • These are commonly called 'accessories before the fact' .

Note that these two categories each cover a situation where the accused only satisfied one limb of the joint-criminal enterprise and not the other (presence and no agreement, agreement and no presence).

  • Distinctions between those two types of offenders have been mostly eroded, so they are now classified under one term (accessorial liability). All are liable to the same maximum penalty.
  • However judges do make sentencing distinctions based on the nature and significance of the defendant’s participation (which is not rigidly determined according to whether the person was a principal in the second or third degree).

Liability is derivative

As opposed to the primary liability attributed to those in a joint-criminal enterprise, the liability of those with accessorial liability is derivative. this means that the primary offender needs to be convicted for the accessory to also be convicted.

As an alternative

Most multiple participant crimes will be based on an agreement (joint criminal enterprise) and therefore accessorial liability is less common. It occurs mostly in atypical cases of spontaneous or unplanned support or assistance in the commission of crime or when the prosecution seeks to extend liability to a person not present at the scene.

  • Accessorial liability may also be considered an alternative.[2]
  • In Hore and Fyffe, the court endorsed this practice in circumstances where “all the facts are particularly within the knowledge of the accused” and the Crown is unable to assert which sets of complicity rules best fits what actually occurred but “what happened must either have been an instance of joint enterprise liability or accessorial liability.”[3]

Actus reus: “aiding, abetting, counselling or procuring”

As written above, accessorial liability requires either presence at the scene or assistance rendered before - usually termed as “aiding, abetting, counselling or procuring”. However, even in the case of those who were present at the scene, the law requires this sort of participation. In other words, even to qualify as a principal in the second degree the accused must perform some positive act which encouraged or assisted the crime, since mere presence (even if not accidental) or acquiescence is not enough.[4]

  • This stems from the notion that being a spectator is not enough to incur criminal liability.
  • Types of acts which constitute assistance or encouragement are questions for the jury to determine.[5]

These terms (aided, abetted, counseled or procured) do not really have a technical meaning, but they are usually looked as follows:

  • “Aiding and abetting” will usually refer to assistance or encouragement given to the main offender at the scene of the crime. It is therefore what principals in the second degree do.
  • “Counselling or procuring” usually refers to participation in the preparation or planning stages. It is therefore what accessories before the fact do.

What effect must the accessory’s conduct have on the principal?

In Lam,[6] guidance was given that:

  • To have the capacity to encourage, the words or conduct must be in the presence of the principal offender.
  • The prosecution does not need to prove that the principal was aware of encouragement so long as “they were communicated or conveyed with the necessary intention... and in circumstances where the principal offender could have been aware of them.”
  • It is not necessary to prove that the words or acts of the accessory actually assisted or encouraged the principal offender.

Examples:

  • In Wilcox v Jeffery (UK),[7] the presence at a concert and payment for a ticket was considered sufficient encouragement to the offender who broke their visa condition not to accept paid work.
  • In Sumner and Sumner,[8] the court adopted reasoning similar to that of the minority in Chishimba[9] and ruled that presence in circumstances where the alleged accessory might reasonably be expected to stop the crime (sexual assault) or at least express dissent, could constitute encouragement.

Actus reus: Presence at the scene

The requirement of presence at the scene has not been interpreted strictly. For example, in McCarthy and Ryan:[10]

  • Facts: Ryan helped to deceive the victim into entering the van where she was sexually assaulted by the principal offender and she also drove the van. She took a walk whilst the sexual assault took place and returned to the van afterwards.
  • Held: “The concept of being “present” is somewhat elastic; an accessory may be actually present (in the sense of being within sight and sound of the crime) or constructively present (in the sense of being sufficiently near as to be able readily to go to the assistance of the principal offender, should the occasion arise)".

Brawls

It is not necessary for the prosecution to prove specific acts of assistance by each accused in relation to every crime. This was discussed in Annakin:[11]

  • Facts: six members of rival bikie motor gangs were convicted of murder arising out of what became known as the “Milperra Massacre”. The appellants were each convicted of seven counts of murder and affray. One of the issues was whether the presence of the accused and their participation in the fighting was conduct that amounted to aiding and abetting.
  • Held: “the presence of each accused in those circumstances both made the fight possible and ensured its continuance.”

Mens rea

The mens rea of accessorial liability is traditionally held to be intention to assist in the crime (whether this is through aiding, abetting, counselling etc). This usually requires some essential knowledge that a crime is being committed.

This was discussed in Giorgianni:[12]

  • Facts: the accused, a maintenance worker, failed to properly maintain the breaks of a truck, which resulted in the car later becoming uncontrollable and caused the death of several people. The trial judge found that he was reckless as to whether a crime would be committed, which constituted 'procuring' making him an accessory before the fact.
  • Held: a person cannot be said to aid, abet, counsel or procure the commission of the offence without intent (recklessness is not enough). In order for there to be intent, he must have knowledge of essential facts which constitute the offence, but this knowledge requirement doesn't always extend to circumstances which occur as the result of the crime.

A good example of the effect of this ruling is as follows:

  • Person A gives Person B the address of person C. B assaults C, causing grievous bodily harm.
  • If A only considered the possibility (recklessness) that B was going to assault C, he does not have sufficient mens rea.
  • If A knows that B is going to commit a crime, than he does have sufficient mens rea, because that is treated as intent to aid, abet etc.
  • Moreover, it does not matter whether A knew that B was going to inflict grievous bodily harm...he knew the essential aspects of the offence.

This was emphasised in Stokes and Difford,[13] where the court held that it is not about what the accessory intending something to the victim - is is about his intention to assist the principal in the commission of a crime.

  • Doesn't need to be the exact crime, can be similar type.[14]
  • Desire for the crime to actually be committed is irrelevant - “If one man deliberately sells another a gun for murdering a third, he may be indifferent about whether the third lives or dies and interested only in the cash for profit to be made out of the sale, but he can still be an aider and abettor”.[15]

Where the principal commits a more serious crime

As written above, an accessory will often be liable even if the crime committed ended up having worse consequences than what the accessory imagined (eg, assault vs causing grievous bodily harm). In such cases, the accessory will be liable to the lesser version of the crime.

  • In Chai, the High Court endorsed the principle that “if a person procures another to commit an unlawful act, which is objectively dangerous, and (unintended) death results, then the [accessory] will be guilty of manslaughter”.[16]

Can a victim be convicted of aiding and abetting?

Long established common law principle held that a person could not be convicted of aiding or abetting the commission of an offence of which they were the victim.

  • In Tyrell,[17] it was found that the defendant, a girl aged under 16, could not be guilty of the charge of aiding and abetting the principal to have unlawful sexual intercourse with her.
  • In the 1990s a number of cases contradicted this doctrine, where parties who had taken out domestic violence orders were convicted of aiding and abetting the breach of them.
    • For example, in Keane,[18] Smith was charged with breaching a restraining order and Keane was charged with aiding and abetting Smith’s breach by contacting him and allowing him to enter her house.
      • It was distinguished from Tyrell, because that Act was “passed to protect consenting girls and could not have been intended to attach liability to them.”
  • However, liability in situations such as Keane fails to recognise the nature of domestic violence and may provide a significant disincentive for those deciding to pursue an order in the first place.
  • The Crimes (Domestic and Personal Violence) Act 2007 now provides that a person cannot be guilty of being an accessory to breach of an AVO if they are a person protected under the order concerned.

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. Textbook, pp. 1010-1025.
  2. Franklin [2001] VSCA 79 Ormiston JA.
  3. [2005] NSWCCA 3 per Smart JA.
  4. Phan [2001] NSWCCA 29; Clarkson [1971] WLR 1402.
  5. Beck 1989) 43 A Crim R 135.
  6. [2005] VSC 294 at [18-[26].
  7. [1951] 1 All ER 464.
  8. [2007] SASC 376.
  9. [2010] NSWCCA 228.
  10. (1993) 71 A Crim R 395 (NSWCCA).
  11. (1988) 37 A Crim R 131 (NSWCCA).
  12. (1985) 156 CLR 473.
  13. (1990) 51 A Crim R 25.
  14. Ancuta (1990) 49 A Crim R 307 (QCCA); Bainbridge [1960] 1 QB 129.
  15. National Coal Board v Gamble [1959] 1 QB 11 (Eng CA).
  16. [2002] HCA 12.
  17. [1894] 1 QB 710.
  18. (1997) 95 A Crim R.
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