Attribution of Criminal Responsibility in Federal Offences: Complicity in a Crime Part 4

Here is our fourth instalment on the law on how criminal responsibility of guilt to a crime physically committed by a person can be equally attributed to another person who didn’t commit the crime for federal offences in Australia.

Our previous instalments discussing complicity in a crime covered joint criminal enterprise, accessory to a crime, and constructive murder via joint criminal enterprise.

Unlike NSW offences covered in our previous articles on this topic, federal offences on complicity in a crime is covered by legislation, namely the Commonwealth Criminal Code Act 1995 (‘the Code’)

NSW complicity in a crime through joint criminal enterprise, and accessories before the fact, and as aiders and abettors for New South Wales offences are covered by the common law (case law), and not legislated like they are for commonwealth or federal offences under the Commonwealth Criminal Code (‘the Code’).

Accessories Before the Fact and Aiders and Abettors

Historically an accessory before the fact is described as a person who counsels or procures the commission of a crime by another person and is not present during the commission of that crime. In contrast, an aider and abettor is a person who is present, although, case law says that such person doesn’t need to be present at the scene of the crime.

To recap, in summary, to ‘aid or abet, counsel or procure’ means to commit conduct that brings about or makes more likely the commission of an offence, and are terms alternative to each other.

Accessory before the fact and aiders and abettors are covered by section 11.2 of the Code which says that a person who aids, abets, counsels or procures the commission of an offence committed by another person is taken to have committed that offence and is therefore punishable accordingly as the person who physically committed it.

This causes criminal responsibility of guilt to be direct to each participant or accessory to the crime. However, in order for an accessory to be guilty, the prosecution will still need to prove the commission of the offence by the other person (who physically committed it). In this sense, liability is derivative. If the prosecution fails to prove who the person was that committed the crime, then an accessory will not be liable (and will be not guilty).

On another note, concerning accessories to a crime, an accessory can still be prosecuted and found guilty even where the other person who physically committed the crime has not been prosecuted or found guilty (section 11.2(5) the Code).

What the Prosecution Must Prove For An Accessory to Be Guilty?

Under section 11.2 of the Code, an accused person charged as an accessory to a crime will be equally guilty as the main person who physically committed it if the prosecution proves beyond reasonable doubt, each of the following elements:

(1) the accused in fact did something to aid, abet, counsel or procure the commission of the offence by another, and

(2) the offence was committed by the other person (proof of guilt by the other person is required, but conviction of that person isn’t required), and

(3a) the accused intended that his/her conduct would aid, abet, counsel or procure the commission of ‘any offence’ ‘of the type’ the other person committed. The main question to address this element is whether the principal offence was of a ‘type’ that the accused did aid, abet, counsel or procure?, or

(3b) the accused intended that his/her conduct would aid, abet, counsel or procure the commission of ‘an offence’ and was ‘reckless’ about the commission of the offence that the other person committed. This element is broader than (3a). The accused here does not need to have intended to aid, abet, counsel or procure the specific offence the other person committed.

An accessory is not required to be physically present at the commission of the crime for him/her to be guilty.

Defence For Accessories to a Crime

Section 11.2(4) of the Code, provides for a defence to an accused charged as an accessory to an offence, which applies if the accused terminates the involvement and takes all reasonable steps to prevent the commission of the offence.

In order for this defence to apply, the accused bears the onus of raising any evidence to support this defence by way of suggesting a reasonable possibility of it. The prosecution will then be required to negate this beyond reasonable doubt.

Parties to a Joint Commission

For federal offences, criminal responsibility for a crime will be equally attributed to each party to the agreed crime if section 11.2A of the Code is satisfied. Each party will thereby be punished as a principal offender.

A person can be convicted although neither the principal offender, nor the other party to the agreement, has been prosecuted or found guilty, according to section 11.2A(7)(a) of the Code.

Section 11.2A of the Code of joint commission is similar to the common law principle of joint criminal enterprise explained earlier in this article.

What the Prosecution Must Prove For A Party to a Joint Commission to Be Guilty?

An accused person facing a federal offence committed by someone else can be liable of the same criminal responsibility if they are each a party to an agreement in the following circumstances:

(1) two or more people enter into an agreement to commit an offence, and

(2) an offence is committed in accordance with the agreement, or

(3) an offence is committed in the course oof carrying out the agreement

In addition to the above, there must also be:

(4) an intention of the person and at least one other person to the agreement that an offence would be committed under the agreement.

An offence will be committed in accordance with the agreement if the conduct committed by a party to the agreement is of the same type as the offence agreed to, and the result of the conduct arises from the conduct engaged in (or the conduct engaged in occurs in the circumstances). This is similar to the concept of a straightforward joint criminal enterprise except this has the added concept of “same type”.

An offence will be committed in the course of carrying out the agreement if the person is reckless about the commission of an offence being the joint offence that another party commits in the course of carrying out the agreement.

What does “Reckless” Mean For Federal Offences?

What does “reckless” under the commonwealth criminal code mean? “Reckless” is defined in section 5.4 of the Code, and where it is concerning circumstance, it means that a person is aware of a substantial risk that the circumstance exists, or will exist, yet having regard to the circumstances known to him/her it’s unjustifiable to take the risk. Where it is concerning a result, reckless is when a person is aware of a substantial risk that the result will occur yet having regard to the circumstances known to him/her, it’s unjustifiable to take the risk.

Defence to Joint Commission of a Crime

Finally, section 11.2A(6) provides a defence if:

(1) before the conduct constituting the offence occurred,

(2) the accused person terminated his/her involvement, and

(3) took all reasonable steps to prevent that conduct from being engaged in.

Establishing the above defence under section 11.2A(6) will result in the charge being either dismissed early or a finding of ‘not guilty’ following a trial.

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