1111 Complicity s 7-Parties to Offences s 8 Objectively Probable Consequences

2222 Complicity cont Complicity provisions apply to all offences in Qld-s 2 Criminal Code Act 1899 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

3333 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 –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

4444 Complicity cont s 286 Criminal Code-duty wrt child: to take precautions to avoid danger and remove from danger c/f Russell –s 7(1)(d)-Counsellor or Procurer 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

5555 Complicity cont combination of s 7 (1) (d) and s 9 –Nichols Johnson and Aicheson: counsellor guilty if: 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

6666 Complicity cont The offence counselled was committed and was committed in way counselled -s 7(1)(d) The offence committed was counselled but was committed in a way not counselled and the facts 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

7777 Complicity cont S 7-offence must be committed before provisions apply –but actual offender need not be prosecuted- Lopusszynski –aider or enabler commiting different offences s 10A (1) Criminal Code

8888 Complicity cont Knowledge required by aider and enabler under ss (b) and (c) –ss (b) “for the purpose 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;

9999 Complicity cont –Relevance of Common Law? Wyles ; Johns –intentional participation and knowledge of essential facts that constitute the offence- Giorgianni; Beck; –Jeffrey Pascoe and Donald –R v Lowrie and Ross Doctrine of Common purpose at common law-

10 Extension of Giorgianni? –McAuliff THUS MUST ASCERTAIN SUBJECTIVELY THE COMMON PLAN OR ENTERPRISE

11 Complicity cont –measured by KNOWLEDGE OR FORSIGHT of participants- Jervis ;Brennan –Things NECESSARILY IN CONTEMPLATION-Johns –Includes things FORESEEN though NOT agreed to-McAuliff –Must know ESSENTIAL FACTS constituting offence

12 Complicity cont “Merely unexpected incidents”?-if subjectively within the plan-Varley; Markby; Dang DYNAMIC CHANGES WITHIN PLAN –Johns; Miller; Beck; Jeffrey Pascoe and Donald WITHDRAWL FROM PLAN? –Menniti

13 Complicity cont Dual tests of White v Ridley Acts of withdrawal must be capable of being effective PLUS accompanied by such reasonable action as can take to undo previous participation- 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

14 Complicity cont COMMON UNLAWFUL PURPOSES AND OBJECTIVE CONSEQUENCES-S 8 Criminal Code –offences beyond scope of common plan ie NOT contemplated, foreseen by accused or merely unexpected incidents –s 8 may extend criminal responsibility nevertheless

15 Complicity cont “Common Intention” to prosecute an unlawful purpose –subjectively ascertained ‘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

16 Complicity cont Objectively ascertained “Forseeability of Average Person”-Stark J in Brennan “Apparent to ordinary person in accused’s 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

17 Complicity cont DEEMED TO HAVE COMMITTED ‘THE OFFENCE’ –S 10A(2) Criminal responsibility extends to 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

18 Complicity cont –‘secondary offender’ DEEMED to have done the act (or omission) of the principal offender –‘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)

19 Complicity cont –in such circumstances OR –with such a result OR –with such a state of mind as was a probable consequence of prosecuting the common unlawful purpose

20 Complicity cont –DUAL RELEVANCE OF STATE OF MIND OF SECONARY OFFENDER Firstly: to determine the content of the common 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

21 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 COMBINATION 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

22 Complicity cont ‘IN THE PROSECUTION OF’ –in the furtherance of -Phillips and Lawrence; Hinds and Harwood; WITHDRAWL FROM COMMON UNLAWFUL PURPOSE –Show DISASSOCIATION distinctly by an UNEQUIVOCAL and TIMELY communication-Saylor; Minetti

23 R v Jervis Common Unlawful Purpose –Common intention to effect unlawful purpose of killing or causing gbh Objectively Probable Consequences –Objectively probable consequence of killing- ie ‘a real possibility’ or ‘substantial or real chance’ -Murder

24 R v Jervis Common Unlawful Purpose –a common intention to effect the unlawful purpose of wounding to take blood Objectively Probable Consequences –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

25 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 –an objectively probable consequence of dangerous act killing 302(1)(b)-Murder – OR an objectively probable consequence of unintentional killing-Manslaughter