Criminal responsibility or liability of a crime physically committed by a person can actually be attributed across people who did not actually commit the physical aspect of the crime but were involved in other ways through being an accessory to the crime or a party to a joint criminal enterprise. This is generally referred to as complicity in a crime and is amongst the most complicated aspects of criminal law.
This article focuses on the joint criminal enterprise aspect of complicity in a crime in New South Wales. Our second article will focus on accessories to a crime aspect of complicity in a crime in New South Wales, and our third article focuses of complicity in a crime of constructive murder in a joint criminal enterprise before turning to our fourth article on federal offences involving complicity in a crime which applies across all States and Territories in Australia.
Our criminal lawyers from Sydney will attempt to simplify how criminal liability can lawfully be attributed to people other than the person who physically committed the crime in New South Wales.
In a nutshell, complicity in a crime can be attributed either directly or indirectly via:
- The doctrine of joint criminal enterprise, or
- Being an accessory before the fact, at the fact, or after the fact.
What is Joint Criminal Enterprise?
Criminal liability (being guilty of a crime) will be equally attributed to each participant of a joint criminal enterprise regardless of the part played by each participant as either a straightforward joint criminal enterprise or an extended joint criminal enterprise. The doctrine of joint criminal enterprise is commonly found in the case of R v Tangye (1997) which has also been cited in the more recent case of Dickson v R  NSWCCA.
Here criminal responsibility is direct to each participant of the enterprise. It does not matter if the prosecution cannot prove who physically committed the crime, so long as the commission of the crime is proven. This is in contrast to an accessory who’s criminal responsibility is derivative and dependant on the person who physically committed it is guilty (if the person who physically committed the crime is not guilty, the accessory will be not guilty also). This does not mean that the person who physically committed the crime must be convicted for the crime.
Unlike an accessory, there needs to be an agreement between the parties formed to commit the crime to be considered a participant to a joint criminal enterprise. An accessory is not required to have formed an agreement with another party to the crime.
Each party to a straightforward joint criminal enterprise will be equally guilty to a crime regardless of the part played if:
- Proof of crime: There enough proof (beyond reasonable doubt) of the commission of the crime regardless of who did it, and
- Agreement between parties: Between the parties there is an implied or express arrangement or understanding that amounts to an agreement to commit a crime (the agreed crime). This requires each participant who is to be held liable for the crime to have agreed to commit the essential elements of an agreed crime, and
- Participation: The party/parties participated in execution of the agreed crime. participation here is if the relevant parties knowing it is being committed or about to be, intentionally assist or encourage a party to the joint criminal enterprise in execution of the agreed crime.
When considering whether there was “participation” by an accused person who did not physically commit the crime, if the accused person is present at the time when the crime is committed while being ready to give aid if required, this will be enough to amount to an encouragement to the other participant(s) in the Joint criminal enterprise to commit the crime.
Even if that accused person is simply present when the crime is committed, he/she will be equally guilty as the person who physically committed the crime if the crime is committed in accordance with the agreement.
Alternatively, if the accused person who didn’t commit the physical aspect of the crime was not present at the time of the commission of the crime, he/she will still be considered to have participated so long as he/she has participated in some other way in the furtherance of the agreement to commit the crime.
Another type of joint criminal enterprise is when the actual crime that gets committed by the person who physically committed it is different to the agreed crime between the parties to the joint criminal enterprise. The crime that wasn’t agreed upon which ends up getting committed is referred to the additional crime. In this kind of scenario, each participant can still be equally guilty of the crime that ends up getting committed in limited circumstances explained below.
In an extended joint criminal enterprise, each party to the joint criminal enterprise will also be equally guilty to a crime regardless of the part played if the additional crime is within the scope of the joint criminal enterprise (agreed crime) which occurs if each of the following is satisfied:
- There is an agreement between the parties to commit a crime. This is much in the same way as the straightforward joint criminal enterprise, and
- The accused or each participant foresaw the possibility of the additional crime at the time of agreement to commit the original agreed crime, and
- The accused or each participant continues to participate in execution of the originally agreed crime, and
- The additional crime is committed and able to be proven beyond reasonable doubt (regardless of who did it).
Some interesting points to know about joint criminal enterprises include:
- An accused charged as a participant to a joint criminal enterprise who did not actually commit the physical aspect of the crime can still be tried and punished for the crime if the person who physically committed it is never found or charged. Further to this, the offender who committed the physically aspect of the crime can be found not guilty while a person who participated under a joint criminal enterprise that didn’t physically commit the crime can still be found guilty and punished.
- An extended joint criminal enterprise is required to be used only if the crime agreed upon between the parties is different to the crime that occurs.
- Joint criminal enterprise only needs to be relied upon by the prosecution where the prosecution can’t prove beyond reasonable doubt that the accused person was the actual person who physically committed the crime charged, and where there was an agreement between the accused and at least another person to commit the crime charged.
- A joint criminal enterprise can be applied to accessories before the fact or at the fact if there was an agreement between the parties to commit that crime.
Withdrawing from a Joint Criminal Enterprise
There is a way to withdraw from a joint criminal enterprise to remove the joint criminal responsibility of guilt under the law. You could withdraw from a joint criminal enterprise if an accused person alleged to be a party to a joint criminal enterprise takes all reasonable steps to prevent the commission of the crime. This can be done by, for example, communicating withdrawal to the participants, attempts to persuade the others not to proceed, and/or notify police or the intended victim(s).
The communication of the intention to withdraw where practicable and reasonable must be timely done.
Once there is evidence raised of the accused person withdrawing from a joint criminal enterprise, the prosecution bears the onus to negate beyond reasonable doubt that the accused person took all reasonable steps to undo the crime or the accused intended to withdraw.