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Stacks/The Law Firm - Media
BREAKING THE LAW IN A GROUP
13/04/2011
The basic idea of complicity law is that you can be convicted of a crime even if you didn’t actually commit it. But it’s a murky area.
How do you legally assign responsibility to people who have been involved with others in a crime but haven’t actually committed it?
Consider this; a man physically assaults another, egged on by a group of others who don’t actually lay a finger on the victim.
If a group was present when a crime took place, what happens if a court can’t determine which person actually committed it? Or whose act ultimately caused a murder when more than one person attacked the victim?
It’s not easy. While there are different categories of liability, there’s often overlap. And the legal terminology can be unclear. There’s accessorial liability (you can be an accessory before or after the fact), joint criminal enterprise and extended common purpose. Then there are the similar offences of incitement and conspiracy. It’s confusing. Courts tend to base their decisions on past cases (the ‘common law’).
But a NSW Law Reform Commission (LRC) report may change that. They want to codify the law; set out a consistent set of rules in one Act.
In terms of being an accessory, the LRC has recommended replacing the words, ‘aid’, ‘abet’, ‘counsel’ and ‘procure’ with ‘encourage’ and ‘assist’. An example of encouraging would be to persuade, urge or put pressure on someone to commit a crime, which they do. Assisting might be standing guard while someone commits an armed robbery.
Another recommendation relates to the tricky area of extended common purpose (it’s called extended joint criminal enterprise in the report). If two or more people arrange an armed hold-up (the joint criminal enterprise), and a person gets seriously injured when it takes place, which wasn’t part of the agreed plan, there’s an extension. An extra offence. Assigning guilt for the extra bit is tough.
The current system uses the idea of ‘possible forseeability’. Could the person who agreed to the original crime but not the extra bit (and didn’t commit the extra offence) have possibly foreseen that it might happen? If so, they’re guilty of that offence too. But ‘possible’ is a pretty wide term. It’s difficult to interpret. Instead, the LRC recommends using the word, ‘substantial’ (or ‘probable’ if the extra offence was homicide). In other words, could they foresee that there was a substantial risk the additional offence would happen?
That’s just the tip of the iceberg. It’s a notoriously complex area. (The report is 300+ pages!)
The idea is to make it clearer when someone has been complicit in a crime and ensure punishments are fair. The NSW Government has given in principle support to the recommendations.
