Breaking The Law In A Group
The basic idea of complicity law is that you can be convicted of a crime even if you didnt actually commit it. But its a murky area.
How do you legally assign responsibility to people who have been involved with others in a crime but havent actually committed it?
Consider this; a man physically assaults another, egged on by a group of others who dont actually lay a finger on the victim.
If a group was present when a crime took place, what happens if a court cant determine which person actually committed it? Or whose act ultimately caused a murder when more than one person attacked the victim?
Its not easy. While there are different categories of liability, theres often overlap. And the legal terminology can be unclear. Theres 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. Its 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 (its 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 wasnt part of the agreed plan, theres 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 didnt commit the extra offence) have possibly foreseen that it might happen? If so, theyre guilty of that offence too. But possible is a pretty wide term. Its 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?
Thats just the tip of the iceberg. Its 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.