Area of Law – Practice and Procedure

An Article about Responsibility for Crimes committed by other people

Responsibility for Crimes Committed by other people
This is also known as derivative offending. ie the allegation of your offending derives from someone elses criminal offending.

It is very important for people to understand how this area of law works. It is often the basis for people being prosecuted for offences that they 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 some examples of how derivative offending works and the different categories of this type of responsibility:

Accessory after the fact
s 325 (4) of the Crimes Act penalties lower than principal

Crown must prove an offence against principal before another can be found guilty.

Acting in concert
Means having a prior plan of action. The prosecution must prove:

1. Crime was committed

2. There was an agreement between the two people to commit it (not necessarily expressed in words)

3. The person who is alleged to be acting in concert

(a) was a party to that agreement and

(b) was present at the commission of the crime pursuant to that agreement either helping or holding himself ready to help if called upon.

4. The scope of the agreement or understanding between the accused and the other person was such as to cover the particular crime committed.

‘As to acting in concert, the law says that if two or more persons reach an understanding or arrangement that a criminal act or acts will be committed by them or by one or some of them, and if while that understanding or arrangement is still afoot and has not been called off, a crime is committed by one or more of them of a kind which falls within the scope of the understanding or arrangement, and if they are all present at the scene of that crime, then they are all equally guilty of that crime, regardless of what part each played in its commission. In such a case they are said to be to have been acting in concert in the commission of the crime. For people to be acting in concert in the commission of crime, their assent to the understanding or arrangement between them need not be expressed by them in words; their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be one of long standing; it may be reached only just before the doing of the act or acts constituting the crime. In deciding whether any understanding or arrangement existed, a jury may draw inferences from all the surrounding circumstances established by the evidence, including the conduct of the persons in question before and after the crime. For the purpose of these rules as to acting in concert a person is present at the scene of the crime even if he remains some distance away, provided that he is there for some purpose designed to facilitate or encourage the actual commission of the crime; for example to assist in the escape of the person or persons who perform the act or acts which constitute the crime. Although the understanding or arrangement must not have been called off before the commission of the crime, the mere fact that one or more of the parties to it feels qualms or wish that they had not got themselves involved or wish that it were possible to stop the criminal act or acts agreed upon will not amount to a calling off of the understanding or arrangemtn once it has been made. In order to call it off so far as concerns himself , a party must communicate his withdrawal to the other parties, or at all events take some other positive step such as informing the police.”

R v Jensen and Ward [1980] VR 194

The case involved three people involved in throwing a grenade at the Kent Hotel in Rathdowne Street

Aiding and abetting
A meeting of minds during the commission of an offence.

s323 of Crimes Act – punished as principal

“Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another -another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree.

Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed;

first, intentionally helping the principal in the first degree to commit the crime

secondly, intentionally encouraging him by your presence and behaviour to commit it,or,

thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to concurring in his commission of the crime.

A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.

R v Lowery & King (No. 2) [1972] VR 560 at 561

Smith J direction in murder trial

Put another way:

“In Giorgianni it was held by the High Court that , in order to establish that one person is an accessory to the commission of an offence by another person by aiding and abetting him, the prosecution must establish;

1) the commission of the offence by the principal offender, and

2) that the accused was present at the time when the offence was committed and

3) that (subject to an exception that is immaterial here) the accused knew all the essential facts or circumstances which must be established by the prosecution in order to show that the offence was committed by the principal offender (whether or not the accused knew that they amounted to an offence), and

4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that offence. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge.

Presence alone is insufficient

R v Clarkson [1971] 1 WLR 1402 at 1406

“It is not enough, then, that the presence of the accused person has, in fact, given encouragement. It must be proved that he intended to give encouragement: that he willfully encouraged.

Common purpose
A person only has to see possibility of an offence, and does not have to be there

“The participants in a common design are liable for any acts done by them in the execution of the design which can be held fairly to fall within the ambit of the common design.

In deciding on the extent of that ambit all those contingencies which can be held to have been in the contemplation of the participants, or which in the circumstances ought necessarily to have been in such contemplation will fall within the scope of the common design.”

Johns v R (1979 – 80) 143 CLR Barwick CJ

“An accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention – an act contemplated as a possible incident of the originally planned venture”

Such an act is one which falls within the parties’ own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.’

Miller v R (1980) 32 ALR 321

Girls killed in Adelaide. Miller would drive car and leave while coey murdered.

Therefore this case is basis for saying that liability depends on the possible consequences of common venture.

s 321 Crimes Act 1958

if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.

Penalties same as principal but if that not prescribed then level 5.

Can be an offence that occurs outside Victoria.

Counsellors or procurers
New name for Accessory before the fact

Section 323 of the Crimes Act

Term is applied to person not present at the scene of the crime but who has directed, encouraged, assisted the principal(s) to efect the crime. E.g., eg paying another to commit and offence for you.

section 321 G of the Crimes Act 1958

Same penalty as for the offence unless penalty not prescribed and then liable to level 4 (15 years maximum)

Defined in s 2A of the Act;

“incite” includes command, request, propose, advise, encourage or authorize;

Not necessary for a criminal offence to be committed. As opposed to s 323 (counselors or procurers) where it must be.

Mistake of fact which makes offence impossible does not absolve the incitor from liability


Date: 09/01/2009