Law 2599 Criminal Law: Case Assessment Answers
Read the South Australian Case of Brown and Morley. Imagine the killing occurred on the 27th of February 2017 and that both Brown and Morley were charged with murder.
a. Discuss how the law on accessorial liability would apply if the killing had occurred in South Australia applying Miller 2016 HCA 30
b. Discuss any differences if the killing had occurred in the Northern Territory and the NT Criminal Code applied.
c. Give your opinion on whether the law on liability of accessories to murder in the Northern Territory should be reformed?
Answer:
A. Law of accessorial liability:
Doctrine of accessorial liability extends the criminal liability to those persons who were not become the part of a joint criminal enterprise but in some manner they participated in the commission of crime. Following elements must be satisfied by the accused for the purpose of held responsible for crime under accessorial liability:
Actus reus- accused must satisfied either of the following element:
- Second degree principle- accused must be present in commission of the crime.
- Mere presence or acquiescence is not sufficient for the purpose of second degree principle, even though it was not accidental. It is necessary that accused must have aided, abetted, counseled or procured the crime by providing encouragement or assistance.
- It is necessary that accused must provide such encouragement and assistance in the presence of offender, but there was no need of influence.
- Presence of offender in elastic form is also considered by Court and it is sufficient evidence if accused is being close and help the offender.
- Accessory before the fact- accused must participate in the preliminary stage of crime by aided, abetted, counseled or procured the crime but he was not present at that time when crime was committed.
- Assistance must be provided at the time when offender was present, but there was no need of influence.
Mens Rea- accused must have intention to assist the crime for the purpose of Mens Rea and not that the crime be committed.
- It is necessary that accused have the knowledge of essential facts related to the offence.
- Mens Rea is present in the case if accused not have knowledge of the exact crime but he or she has knowledge of similar type of crime.
- In case if more serious crime is occurred that the crime which was assisted by the accused than he will be liable only for lesser crime which was assisted by him.
In case if all above elements are proved then accused s liable under the accessorial liability. Accessorial liability is derivative in nature, which stated that accused in liable for the crime only when primary offender is also held liable. In other words, accused also get the benefit of the defense used by the primary offender.
This can be understand with the case law Miller v The Queen [2016] HCA 30, this case was settled by French CJ, Kiefel, Bell, Nettle and Gordon JJ. In this case, Court reviewed the doctrine of complicity under the criminal law which is also known as "extended common purpose" or "extended joint criminal enterprise". This doctrine was clearly stated in the case McAuliffe v The Queen 1and Court abandon or confine it.
In case of general application, this doctrine is commonly used as witness for the purpose of establishing the secondary offender’s liability for murder. In this case, doctrine states that accused is guilty of murder if he or she was a party to the commitment of crime, and he foresees the death or serious body injury of another person by this co-venture with the intention of murder, and with such awareness he participates in such crime.
In case Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, this doctrine has been criticized because it is no consistent with the principles of accessorial liability, and for the applicability of this doctrine mental element of reckless murder was considered.
Usually the criticism related to this doctrine is of over-criminalizing, which means imposing criminal liability on secondary offender in those situation when moral culpability does not justify that liability. This criticism was invoked in support of an application for the purpose of reopen and overrules McAuliffe in the case Clayton v The Queen. Court declined to do so by majority, and the reason of the majority for refusal was that principle which was consistent with the McAuliffe becomes the part of common law in other countries. These principles are also followed in the case of Privy Council in Chan Wing-Siu v The Queen
Law described in McAuliffe, stated that joint enterprise is considered when two or more persons jointly agree to commit any crime. There is no need of express agreement in such case and joint enterprise is determined from the conduct of the party.
In the preset case, both Brown and Morley were jointly charged for the murder of woman. It was proved in this case that Morley killed the woman and he was liable as primary offender, and Brown was alleged by prosecutor that he was liable under the principle of second degree under the accessorial liability because he was party to an arrangement with Morley.
In this context Brown stated that Morley threatened him and said if Brown does not follow his instructions then Morley would kill his wife. Morley put the knife on the throat of brown and force him play cards with him on the condition that if Brown will lose the game then he kill the women. Later, Brown loses the game and Morley instructed him to put Ratsac in the coffee of lady but he will put only quarter of teaspoon which he knew could not do any harm. He also tried to call police but Morley stopped him to do so, and he continuously threatened brown.
In this case Brown does not satisfied Actus Reus and Mens Rea which are the essential elements of the crime and he does not participate in the crime with any guilty intention. Principle stated in case Miller v The Queen is also not applicable in this case. Therefore, Brown is not liable under accessorial liability in this case.
B. If NT Criminal Code applied:
Section 156 of the Northern Territory of Australia Criminal Code Act states that person is liable under the offence of murder if that person engage in such conduct which cause death to another person, and that person intends to cause the death or serious harm from his conduct to that person or any other person.
Section 43BF does not apply to the offence related to murder. It must be noted that under section 158 and 159 may be reduced to manslaughter if the conduct of the person causing death occurred because of provocation or the defendant proves that his mental capacity was substantially impaired.
Section 157 of the Code states, any person who is guilty under the offence of murder is liable to imprisonment for life, and this penalty is mandatory in nature. It must be noted that any person who is guilty for offence of conspiracy to commit the offence of murder is liable to imprisonment for 14 years.
Section 158 of the Code states that partial defence of provocation, as per this section defendant is not considered as guilty of murder if defence of provocation applied in his case. Defence of provocation applies when conduct of defendant causing death was result of the defendant’s loss of self control because of the act of the deceased person towards or affecting the defendant. This defence also applies when conduct of the deceased was such that it have induced any ordinary person to lose his self control and formed intention to kill the deceased. Various conduct are considered by Court such as insulting words or gestures towards or affecting defendant can be considered as conduct because of which defendant lose his self control. Defence of provocation can be used by defendant without considering the fact that conduct of the defendant cause death occurred immediately after the conduct of deceased or after some time.
However any conduct of deceased includes non violent sexual advances or sexual advances towards the defendant is not sufficient base for a defence of provocation of defence but this conduct is taken into account together with other conduct of the deceased for the purpose of deciding whether the defence has been established. For the purpose of deciding whether the conduct of the person causing death occurred because of provocation then there is no rule of law which state that provocation is negatived if there is no relation between the conduct causing death and conduct of deceased because of which death caused, conduct of defendant causing death did not occur on sudden basis, and any conduct which cause death occurred with an intention to take life or cause serious harm.
In defence of provocation evidential burden is on defendant to prove his part, and any defendant who would apart from this section are liable to be convicted of murder then he must be convicted of manslaughter instead.
Section 159 of the code states partial defence for reducing the responsibility, and as per this section any person who is guilty of murder cannot the convicted for the murder if the mental capacity of the defendant was substantially impaired at the time of the commitment of offence, that impairment arose because of that condition either wholly or partly, and the defendant should not, given the extent of the impairment, be convicted of murder.
Section 160 of this code stated that person is guilty for the offense of manslaughter if such person engages in such conduct which causes death to another person, and such person is reckless or negligent by his conduct for the purpose of causing the death of that person or any other person.
Section 161 of the Code states the punishment for manslaughter and as per this section any person who is guilty under the offense of manslaughter is liable to imprisonment for life.
In the present case, Morley stated that judge does not consider the manslaughter and he did not provide any direction related to manslaughter to the jury, and Morley used the defence of insanity. If NT criminal code applies then Morley cannot used the defence of manslaughter and doctrine of insanity because for getting the advantage of both the defences it is necessary that conduct of deceased induced the conduct of defendant and in this case lady does not do any such thing which provoke the Morley. The main purpose of this act was to steal the money. Therefore, Morley cannot use this defence.
There is one more point if NT criminal code applied then punishment for murder was imprisonment of life and not death.
C.
The law Commission for England and Wales recognise those difficulties which occurred with the introduction of accessorial liability. Accessorial liability is unique concept and it is based on the doctrine of joint enterprise. In this commission recommended the introduction of the provision which deals with the intention of providing encouragement or assistance in the commission of crime or believing that offence will be committed, even though offence will not be committed. Commission developed this approach for the purpose of introducing the concept of non-derivative offences. Bronitt and McSherry states that this provision provides wide discretion to the prosecutors because then there is no need to prove that the defendant actually committed the offence if they prove that defendant intends to commit the offence. Various authors stated that introduction of non-derivative offences is not helpful in clearing those strains which are present in the framework of complicity. Introduction of such liability is too vague in nature, and these conceptual strains are minimised under section 8 to 10 of the NT criminal code.
As per law if two persons jointly commit any crime in some particular circumstances both are held liable for the act of each other, and in such situation both are held liable for the act of each other and it is considered as acting in concert with each other. In other words, law state the situations and provisions in which one person is held liable for the conduct of other person. Definition of accessorial liability is stated in different ways such as accessorial liability occurred when one person engaged in such conduct which constitutes offence, and accused encourage or assist the offender for the purpose of committing crime. Provisions of accessorial liability states that mere presence of accused at the scene of the crime or even only knowledge that crime is taking place does not make the accused itself guilty for the crime. Therefore, there is needed to make some relevant changes in the definition and provisions of this doctrine. It is necessary to widen the scope of this doctrine. For the purpose of making the person liable for the conduct of another person, it is necessary to consider following elements without any doubt:
- It is necessary that defendant must solicit, requested, importuned or intentionally aided that person for the purpose of engaging in that conduct.
- That person engaged in such conduct must do with the intention of committing a crime which causes death and serious injury to another person.
If must be noted that if it is proved that defendant participate in the commission of the offence without any doubt, then degree of the participation in the crime does not matter and defendant is held liable for the conduct of another person under accessorial liability.
Therefore, we recommend introducing such provision in which if accused is guilty under the doctrine of joint enterprise, then he should be held liable to that extent as he himself committed the crime. In other words, liability of accused must be similar to the liability of the primary offender and no reliability should be provided to accused. There is lot of burden on prosecutor to prove that defendant acted with the intention of committed the crime either personally or he is just encouraging and assisting another person for the purpose of committing the crime. Both the situations are fulfilling the essential elements of the crime. Therefore, accused must be held liable in the same manner as the primary offender.
References:
Joachim Dietrich,’ The Liability Of Accessories Under Statute, In Equity, And In Criminal Law: Some Common Problems And (Perhaps) Common Solutions’, < https://law.unimelb.edu.au/__data/assets/pdf_file/0006/1703589/34_1_4.pdf>, accessed on 6th April 2017.
Uni Study Guides,’ Accessorial Liability’, < https://www.unistudyguides.com/wiki/Accessorial_Liability>, accessed on 6th April 2017.
Nicola Monaghan,’ Criminal Law Directions’, (2014), Oxford University Press DOI: 10.1093/he/9780198702283.003.0015.
Miller v The Queen [2016] HCA 30.
McAuliffe v The Queen1
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64.
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29.
Clayton v The Queen (2006) 81 ALJR 439 at 458 [98]
Privy Council in Chan Wing-Siu v The Queen.
HIGH COURT OF AUSTRALIA,’ Miller v The Queen’, < https://eresources.hcourt.gov.au/downloadPdf/2016/HCA/30>, Accessed on 6th April 2017.
NT criminal Code- sect 156
NT criminal Code- sect 157
NT criminal code-sect 158
NT criminal code-sect 159
NT criminal code-sect 160
NT criminal code-sect 161
Andrew Hemming,’ In Search of a Model Code Provision for Complicity and Common Purpose in Australia’, https://www.austlii.edu.au/au/journals/UTasLawRw/2011/3.pdf, Accessed on 6th April 2017.
Ny courts,’ Accessorial Liability’, < https://www.nycourts.gov/judges/cji/1-General/CJI2d.Accessorial_Liability.Rev.pdf>, Accessed on 6th April 2017.
