R v stokes and difford

5.2.1 -Bench Notes: Statutory Complicity1Operation of these Notes1.These Bench Notes apply to offencesalleged to have beencommitted on or after1 November 2014. For offencesalleged to have beencommitted before that date, see:Bench Notes: Joint Criminal EnterpriseBench Notes: Extended Common Purpose; orBench Notes: Aiding, Abetting, Counselling and Procuring.“Involved in the Commission of an Offence”2.Sections 323 to 324C of the Crimes Act 1958provide a statutory codification of the principles of complicity. It replaces and abolishes common law doctrines such as acting in concert, joint criminal enterprise, common purpose, extended common purpose and aiding, abetting, counselling and procuring (Crimes Act 1958 s324C).3.Instead, a person who is “involved in the commission of an offence is taken to have committed the offence and is liable to the maximum penalty for that offence”(Crimes Act 1958 s324(1)). 4.A person is “involved in the commission of an offence”if he or she:(a) intentionally assists, encourages or directs the commissionof the offence; or (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carryingout the other offence; or (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence (Crimes Act 1958s323(1)).5.Subsection (a) replaces the common law doctrine of aiding, abetting, counselling and procuring, while subsection (c) replaces the common law doctrine of joint criminal enterprise. Subsections (b) and (d) 1This document was last updated on 2 March 2015.
replace the principles of extended common purposewith a new form of liability based on recklessness for secondary offences,which extendliability under subsections (a) and (c)respectively.Derivative liability6.Liability under Crimes Act 1958 s324 is derivative. Secondaryliability on the basis of complicity only attaches if an offence “is committed”. This requires proof in the trial of a secondary party, that the offence was committed. However, it is not necessary that the principal offender (or any other offenders) be prosecuted or found guilty of that offence (Crimes Act 1958 s324A).7.This requires the prosecution to prove that a principal offendercommitted the relevant criminal acts with the necessary criminal intention (R v Jensen and Ward[1980] VR 194).8.As discussed under Mentally Impaired Parties below, it is likely that the defence of mental impairment operates to excuse the principal offender’s liability but does not affect whether the offence “is committed”. 9.In contrast, defences such as self-defence or duress are inconsistent with a conclusion that the offence “is committed”. Where the jury finds, in the trial of the secondary party, that the principal offender acted under duress or in self-defence, then the jury must find the secondary party not guilty of committing the offence. This does not prevent other bases of liability, such as conspiracy or incitement to commit the offence, where those inchoate offences are appropriate. 10.If the accused (that is, the secondary party) and the principal offenderare tried together, and the evidence against them is the same, the accused generally cannot be found guilty unless the principal offenderis also foundguilty (Osland v R(1998) 197 CLR 316).11.However, different verdicts between a principal offenderand a secondary partywill not always be inconsistent. For example, there may be sufficient evidence to prove that the secondary party assisted someone to commit the principal offence, but insufficient evidence to establish the identity of the principal offender(Osland v R(1998) 197 CLR 316; R v King(1986) 161 CLR 423).12.Evidence that another person has been convicted is not admissible against the accused (R v Kirkby[2000] 2 Qd R 57; Evidence Act 2008s91).13.In some cases, the jury may be satisfied that the accused either committed the offence himself or herself or is liable as a secondary party, but cannot determine which. In that situation, the jury is entitled to convict the accused (Crimes Act 1958 s324B).14.This principle extends to the scenario where there are several