Area of Law – Practice and Procedure

An Article about Aid and abet v common purpose

Aid and abet v common purpose
These are issues that arise in relation to derivative offending. That is, the allegation of offending derives from someone elses criminal act.

It is very important for people to understand how this area of law works. It is often the basis for prosecution for offences that people do not feel responsible for. It is very often hard fought area of the law as whether a person falls into a particular area depends on witnesses giving evidence about their role.

Below is what the Supreme Court of Victoria stated in relation to some of these issues, including some examples of how derivate offending works and the different categories of this type of responsibility.

R v Conci and R v Kane

“The distinction between what might be sufficient – for a count requiring proof of specific intention – to sustain a verdict of guilty on the basis of common purpose, on the one hand, and as an aider and abettor, on the other hand, was illustrated in the joint judgment of Wilson, Deane and Dawson, JJ. in Giorgianni v the Queen[9]. Their Honours held that foresight of possible consequences might be sufficient intention in law for many offences but they added:

“There are, however, offences in which it is not possible to speak of recklessness as constituting sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement.”

Count 3 required proof of specific intent. As to what would be sufficient to establish that a person was aiding and abetting, their Honours continued[10]:

” The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts . . .”

No objection was or is made to the directions given as to aiding and abetting. They followed the standard formula of R v Lowery and King (No.2)[11]. Mere passive acquiescence or assent, without more, would not be sufficient to create guilt. There must at least be a direct or indirect expression of willingness to assist the principal offender, without it being necessary that actual assistance was provided, or that there be conduct amounting to concurring in the carrying out of the offence: see R v Makin[12].”

These are very complex issues and if your case involves an assessment of these or similar issues then you should phone one of the Doogue + George team as soon as possible.

 

Date: 09/01/2009