6. Solutions to problems with secondary liability

Updates and background for this project (Digest)

• Law in the Code jurisdictions
• English law reform proposals
• Reform options
• Desirability of uniformity

Law in the code jurisdictions

6.1 There are nine criminal jurisdictions in Australia. Some of these jurisdictions have codified the substantive principles of their criminal law,¹⁸⁰ including the law of complicity. Other jurisdictions, among them New South Wales, have left some of their criminal law, including the law of complicity, to the common law.¹⁸¹ Even so, legislation has superseded much of the common law in these jurisdictions. This legislation can vary markedly among the various common law jurisdictions.¹⁸²

6.2 In the codified criminal jurisdictions of Australia the test of extended common purpose liability is set out in their respective codes; while in the common law criminal jurisdictions of Australia the test derives from case law, especially the more recent High Court cases of McAuliffe v The Queen and Gillard v The Queen.¹⁸³

6.3 Two different tests for extended common purpose liability operate in the codified criminal jurisdictions of Australia.¹⁸⁴ In Queensland,¹⁸⁵ Tasmania,¹⁸⁶ and Western Australia,¹⁸⁷ the test is one of “probable consequence.”¹⁸⁸ This is an objective standard to assess liability. The secondary participant is liable for an offence committed by the primary participant if that offence is an objectively probable consequence of the common unlawful purpose.¹⁸⁹ “Probability” is determined by examining the circumstances in which the offence is committed.¹⁹⁰ For example, the primary participant is guilty of murder; while the secondary participant is guilty of manslaughter, where manslaughter and not murder was the probable result of the implementation of the common purpose.¹⁹¹

6.4 The meaning of “a probable consequence” under section 8 of the Criminal Code of Queensland was recently examined in Darkan v The Queen¹⁹² where the High Court concluded:

The difficulty in defining “a probable consequence” is that once it is accepted that “probable” does not mean “on the balance of probabilities” and that it means more than a real or substantial possibility or chance, it is difficult to arrive at a verbal formula for what it does mean and for what the jury may be told.

The expression “a probable consequence” means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen.

English law reform proposals

6.6 The English law of complicity, like that of New South Wales, is based in the common law, as set out in the Privy Council case of Chan Wing-Sui v The Queen.¹⁹⁸ This case held that a secondary participant is liable for an offence committed as part of a joint criminal venture if he or she foresaw the possibility that some serious bodily harm might result incidentally during the joint venture, arising from both the act (actus reus) and the intention (mens rea) of the primary participant.¹⁹⁹ This is a subjective test based on what the secondary participant contemplated, inferred from his or her conduct, and any other evidence of what he or she foresaw at the material time.²⁰⁰

6.7 The Law Commission of England and Wales recently undertook a thorough and wide-ranging enquiry into the law relating to secondary participation in crime. In this process, it recently produced three reports.²⁰¹ Initially, the Law Commission in its 1993 consultation paper, Assisting and Encouraging Crime,²⁰² proposed (with the possible exception of the common law doctrine of accessorial liability for collateral offences committed in the course of a joint venture) abolishing secondary liability for aiding, abetting, counselling or procuring altogether, and replacing it with two new inchoate statutory offences of “assisting” and “encouraging” crime.²⁰³ In part this proposal was inspired by leading commentators such as Simester and Sullivan who canvassed, among other ideas, the argument based on the proposition that an essential component of any crime is the harm done to another. Consequently, they argued, if the primary participant does no harm (regardless of circumstances leading to non-commission of the criminal act), then the secondary participant should not be held liable for a criminal offence (either inchoate or secondary liability) regardless of his or her intent.²⁰⁴

6.8 Following criticism of the 1993 Consultation Paper,²⁰⁵ the proposal to abolish secondary liability altogether and replace it with the two new inchoate statutory offences of “assisting” and “encouraging” crime was rejected in the Commission’s 2006 report, Inchoate Liability for Assisting and Encouraging Crime.²⁰⁶ The Commission believed instead that the common doctrine of secondary liability be retained, although acknowledging it is unsatisfactory and in need of reform.²⁰⁷

We acknowledge that the retention of secondary liability may sometimes result in D [secondary participant] being liable for unexpected consequences. However, this will usually be the result of anomalies in the substantive law that the doctrine of secondary liability must accommodate. The doctrine of secondary liability is of general application, applying to many different offences whether or not those offences are well structured, well defined or even consistent with one another. Removing D’s but not P’s [primary participant] liability for unseen consequences, would simply create a new anomaly.²⁰⁸

One aim of the proposals in the CP [1993 Consultation Paper] was to simplify the law by creating a clear distinction between the liability of the principal offender and the liability of the accessory. We now believe that this simplicity comes at too high a price.²⁰⁹

6.11 Reasons given by the Commission for retaining the “Chan Wing-Sui principle,” being the secondary participant’s liability for a collateral offence committed as an incident of a joint criminal venture, include the following:

• A collateral offence will frequently be logically referable to the success of the joint criminal venture and, therefore, is of benefit to all the parties involved.
• The secondary participant has agreed to participate with the primary participant in a joint criminal venture, that has the potential to escalate and involve the commission of more serious offences.
• The secondary participant, if anticipating the possible commission of a range of different offences, should not be able to pick and choose which of those offences to be liable for, simply on the basis of his or her attitude towards their occurrence.
• The above is tempered by the “subjective” requirement that the secondary participant must foresee that the principal participant may commit the offence. Also, the secondary participant has the opportunity to claim that the collateral offence committed by the primary participant was too remote from the agreed offence to fall within the scope of the joint criminal venture. Finally, the secondary participant always can withdraw from the criminal venture by negating the effect of the original agreement before the principal participant commits the principal offence.
• No logical incongruity exists in stipulating different fault elements for principal participant(s) and secondary participant(s). The conduct of each is different and, accordingly, there is no logical reason why the fault element must be the same for each.²¹²

if P [primary participant] and D [secondary participant] are parties to a joint criminal venture, D satisfies the fault required in relation to the conduct element of the principal offence committed by P if:

D intended that P (or another party to the venture) should commit the conduct element;

D believed that P (or another party to the venture) would commit the conduct element; or

D believed that P (or another party to the venture) might commit the conduct element.²¹⁴

6.13 The various tests canvassed below (drawn from case law, academic commentary, and legislation) set out the present and possible tests of liability for secondary participants in extended common purpose cases in Australia. They are set out arguably in order of the degree of difficulty for a prosecution to establish secondary liability in extended common purpose crimes:

• Intention to commit homicide (This test cited by Justice Kirby in Clayton v The Queen as binding moral culpability and legal responsibility arguably goes too far in allowing a secondary participant in a joint criminal enterprise to escape from liability for an additional crime. It would also allow both primary and secondary participants to escape liability for an additional crime if it was unclear who actually committed the additional crime. It relies on the subjective state of mind of the secondary participant.)
• Intention to cause really serious bodily harm coupled with an awareness of the risk of homicide (This test cited by Justice Kirby in Clayton v The Queen as binding moral culpability and legal responsibility, although not as difficult for a prosecution to establish as the test above, still arguably goes too far in allowing a secondary participant in a joint criminal enterprise to escape liability for an additional crime and makes it easy for both participants to escape liability for an additional crime if it was unclear who actually committed that crime. It relies on the subjective state of mind of the secondary participant.)
• Virtual certainty to commit homicide (This test cited by Justice Kirby in Clayton v The Queen as binding moral culpability and legal responsibility arguably suffers from the same difficulties as the above two tests, although a shade less challenging for a prosecution to establish.)
• Probability of homicide (This test is used in Queensland, Tasmania, and Western Australia under their respective criminal codes. It is arguably harder to establish by a prosecution than the “possibility” test because it makes the secondary participant liable for the offence committed by the primary participant if that offence is an objectively probable consequence of the common unlawful purpose.²¹⁵ )
• Recklessness as to homicide (This test is used in the more recently codified jurisdictions of the Commonwealth and the Australian Capital Territory.²¹⁶ This test arguably sits between “probability” and “possibility” since the test combines elements both of the subjective intent of the secondary participant and the objective situation. “Recklessness” involves an awareness of a substantial risk by the second participant and a lack of justification in taking that risk.²¹⁷ )
• Possibility of homicide (This test is used in common law jurisdictions such as New South Wales.²¹⁸ It relies on the subjective state of mind of the secondary participant and whether he or she thought that the additional crime was “possible” in the circumstances as he or she knew them.)

6.14 A desire for legislative uniformity among the many criminal law jurisdictions in Australia is expressed both in the existence of a Model Criminal Code as well as in the terms of this reference as a value in law reform. In this context the Commission notes its recommendation for the adoption of the relevant Model Criminal Code provisions in New South Wales in its earlier report on the sentencing of corporate offenders.²¹⁹

6.15 Over more than a decade a joint committee has progressively compiled a Model Criminal Code.²²⁰ The Model Criminal Code represents an inspiration and template for uniformity among the nine differing criminal jurisdictions of Australia.²²¹ Its beginnings lie in a 1990 decision of the Standing Committee of Attorneys-Generals (“SCAG”) to formally raise the issue of the development of a national model criminal code for all Australian jurisdictions.²²² In a December 1992 Report, the Criminal Law Officers Committee (since renamed the Model Criminal Law Officers Committee or “MCLOC”) released Chapters 1 and 2 of the Model Criminal Code (including provisions on liability for complicity and extended common purpose).

6.16 The relevant subject matter on the law of complicity is found in Chapter 2 “General Principles of Criminal Responsibility” of the Model Criminal Code. Chapter 2 outlines the basic principles applying to every criminal offence. So far the Commonwealth,²²³ the Australian Capital Territory,²²⁴ and more recently, the Northern Territory²²⁵ have substantially adopted the provisions of Chapter 2 of the Model Criminal Code.

6.17 The Chief Minister and Attorney-General of the Australian Capital Territory, Mr Stanhope, eloquently expressed the aspiration for a uniform criminal system in the Second Reading Speech of the Criminal Code 2002 (ACT), as well as the advantages of having a codified system:

The template of basic principles that it [the code] applies to every offence is simply a distillation of the law as it currently exists, but located in a convenient place, comparatively brief and in terms that most of us can understand…the code is about accessibility. It is fashioned for a modern age that puts a premium on access to information that is clear, precise and to the point and can be relied upon for effective action. If we demand that in all other fields of human endeavour, we should demand it of the law and certainly the criminal law.

The code has yet another important advantage. The object of those who first sat down to frame it was to achieve uniformity in the criminal law across the nation. Our lives are no longer confined to the sometimes arbitrary boundaries fixed in the 18^th and 19^th centuries…In common with the rest of the globalising world, we are a nation of travellers…This is a feature of modern Australian life that the criminal law can no longer choose to ignore. The hodgepodge of laws, rules and procedures with which we contend are an unnecessary complexity no longer suited to the way we live.²²⁶

6.19 Section 11.2(3) of the Model Criminal Code provides that a person is taken to have committed an offence committed by another if he or she aids, abets, counsels or procures the commission of that offence and intended either that his or her conduct would aid, abet, counsel or procure that commission of that offence, or that his or her conduct would aid, abet, counsel or procure the commission on an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed. Recklessness is defined in the Code as involving an awareness of a substantial risk and a lack of justification in taking the risk.²²⁷

6.20 The majority in the recent High Court case of Clayton v The Queen²²⁸ considered that if any change in this area was made by legislatures and law reform commissions:

there could be no change undertaken to the law of extended common purpose without examining whether what was being either sought or achieved was in truth some alteration to the law of homicide depending upon distinguishing between cases in which the accused acts with an intention to kill and cases in which the accused intends to do really serious injury or is reckless as to the possibility of death or really serious injury.

6.22 However, as indicated by Justice Kirby in R v Barlow²³¹ although the language of a code must be construed according to its provisions by a court, regard may also be had to the pre-existing common law and to parallel developments in non-code jurisdictions. This interpretation is undertaken by courts with the aspiration of achieving uniformity in the basic principles of criminal law in Australia:

Thus the first loyalty is to the code…At least in matters of basic principle, where there is ambiguity and where alternative constructions of a code appear arguable, this Court has said it will ordinarily favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions. It will also tend to favour the interpretation which achieves consistency as between such jurisdiction and the expression of general principle in the common law obtaining elsewhere.²³²

6.24 One exception to this more general uniform approach would be if some parts of the law of complicity were considered so notorious as to warrant an immediate and specific reform. For example, a change to the controversial common law test for extended common purpose, a test much criticised by Justice Kirby of the High Court of Australia.²³³ However, any specific reform would presumably be accomplished by a statutory amendment to the Crimes Act 1900 (NSW) rather than “codification” as such.

Issues
• Apart from extended common purpose, are there other aspects of the law of complicity that the Commission needs to address in the course of this reference?
• In particular: (a) What (if any) aspects of the law relating to accessorial liability ought the Commission to review in the course of this reference? (b) Is the law relating to the withdrawal or alleged withdrawal of a secondary participant in a criminal offence in a satisfactory state?
• Is the present “possibility” test for extended common purpose liability satisfactory? If so, why? If not, why not?
• If not, are the tests adopted in other Australian jurisdictions preferable?If these other tests are themselves unsatisfactory, what ought the test for extended common purpose liability be?

180. Being: the Commonwealth, Queensland, Western Australia, Tasmania, Northern Territory and Australian Capital Territory.

181. Being: New South Wales, Victoria and South Australia. David Lanham, Bronwyn Bartal, Robert Evans and David Wood, Criminal Laws in Australia (The Federation Press, 2006) 1.

182. David Lanham, Bronwyn Bartal, Robert Evans and David Wood, Criminal Laws in Australia (The Federation Press, 2006) 1: ‘In effect the non-Code jurisdictions are increasingly putting their law in legislative form. Hence the large amount of legislation in this area of law. In some cases these statutory developments have brought some Code jurisdictions closer to some of their common law cousins than to their Code siblings and vice versa.’

183. McAuliffe v The Queen (1995) 183 CLR 108 and Gillard v The Queen (2003) 219 CLR 1.

184. The Northern Territory has a test closer to the common law test of ‘foresight of possibility’: Criminal Code (NT) s 8. It also incorporates the ‘reckless’ test for complicity and common purpose: Criminal Code (NT) ss 43AK, 43BG.

185. Criminal Code (Qld) s 8: ‘When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.’ (emphasis added)

186. Criminal Code (Tas) s 4

187. Criminal Code (WA) s 8.

188. The test ‘probable consequence’ is also used in New Zealand and Canada: Crimes Act 1961 (NZ) s 66(2) and Criminal Code s 21(2) (Canada).

189. David Lanham, Bronwyn Bartal, Robert Evans and David Wood, Criminal Laws in Australia (The Federation Press, 2006) 502-503.

190. David Lanham, Bronwyn Bartal, Robert Evans and David Wood, Criminal Laws in Australia (The Federation Press, 2006) 503.

191. David Lanham, Bronwyn Bartal, Robert Evans and David Wood, Criminal Laws in Australia (The Federation Press, 2006) 503 citing R v Barlow (1997) 188 CLR 1.

192. (2006) 227 CLR 373, [78], [79].

193. Criminal Code (Cth) s 11.2(3)(b).

194. Criminal Code (ACT) s 45(2)(b)(ii).

195. Also see the ‘reckless’ test for complicity and common purpose: Criminal Code (NT) ss 43AK, 43BG.

196. See further in paras 6.14-6.16.

197. Model Criminal Code s 5.4, Criminal Code (ACT) s 20, Criminal Code (Cth) s 5.4, Criminal Code (NT) s 43AK.

198. [1985] AC 168.

199. The Chan Wing-Sui principle as explained in England and Wales, Law Commission, Participating in Crime, Law Com No 305 (2007) [3.133].

200. Chan Wing-Sui v The Queen 1985] AC 168, 177.

201. England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006); England and Wales, Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006); and England and Wales, Law Commission, Participating in Crime, Law Com No 305 (2007).

202. England and Wales, Law Commission, Assisting and Encouraging Crime, Consultation Paper No 131 (1993).

203. England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) [1.16], [2.4], [2.5], 2.6]. See also, Spencer, ‘Trying to Help Another Person Commit A Crime’ in P Smith (ed), Criminal Law: Essays in Honour of J C Smith (1987) 148. See Spencer argument explained in Andrew P Simester and Robert G Sullivan, Criminal Law: Theory and Doctrine (2^nd ed, Hart Publishing, 2003) 237-239. The rationale behind this argument was to dispense with the need to describe participants in a crime by their relationship to each other; that is, as principals and accessories. In this way, the person assisting or encouraging the crime (‘S’) is still liable under either of the two new inchoate offence of ‘assisting’ or ‘encouraging’ whether or not the crime is actually committed by the other person (‘P’). It was argued that S should not escape criminal liability under complicity rules for encouraging a crime, just because P changes his or her mind and does not commit the criminal act. S’s ‘moral culpability’ remains the same regardless.

204. Andrew P Simester and Robert G Sullivan, Criminal Law: Theory and Doctrine (2^nd ed, Hart Publishing, 2003) 238-9.

205. The Law Commission of England and Wales received much criticism for this proposal in their Assisting and Encouraging Crime, Consultation Paper No 131 (1993). The criticism centred on the advantages of keeping secondary liability, being: forensic advantages, public acceptability, condemnation and labelling, and the connection between the accessory’s conduct and the offence committed by principal offender. Critics argued that practical advantages exist of ascribing liability for an offence to the all those present at a crime when it is unclear who actually committed the offence. Also, public policy needs to attribute and equally condemn the accessory where there is a direct culpable link between an accessory’s actions and the actual harm done by the principal offender: see further, England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300 (2006) [2.1-2.26].

The Law Commission acknowledged that under its consultation paper proposal for a scheme consisting solely of inchoate offences would simply replace the anomalies and unexpected consequences of secondary liability with new ones. See an example of the unexpected consequences of a scheme consisting solely of inchoate offences in England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300, (2006) [2.21], [2.23].

207. England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300, (2006) [1.18], [1.19].

208. England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300, (2006) [2.25].

209. England and Wales, Law Commission, Inchoate Liability for Assisting and Encouraging Crime, Law Com No 300, (2006) [2.26].

210. England and Wales, Law Commission, Participating in Crime, Law Com No 305, (2007) [3.8] and recommendation [3.151].

211. England and Wales, Law Commission, Participating in Crime, Law Com No 305 (2007) Appendix B, [B.5].

212. England and Wales, Law Commission, Participating in Crime, Law Com No 305 (2007) [3.140], [3.141], [3.142], [3.146], [3.147].

213. See draft Participating in Crime Bill in England and Wales, Law Commission, Participating in Crime, Law Com No 305 (2007) 155.

214. England and Wales, Law Commission, Participating in Crime, Law Com No 305 (2007) [3.151] (emphasis added).

215. David Lanham, Bronwyn Bartal, Robert Evans and David Wood, Criminal Laws in Australia (The Federation Press, 2006) 502-503.

216. Also see the ‘reckless’ test for complicity and common purpose: Criminal Code (NT) ss 43AK, 43BG.

217. Model Criminal Code s 5.4.

218. Also see ‘possible consequence’ for offences committed in the pursuit of a common purpose: Criminal Code (NT) s 8.

219. NSW Law Reform Commission, Sentencing: Corporate Offenders, Report No 102 (2003) 30.

220. There are now nine chapters to the Model Criminal Code based on over nine reports released by the Criminal Law Officers Committee (since renamed the Model Criminal Law Officers Committee or ‘MCLOC’) over more than a decade. Each report includes detailed model legislation designed to operate within the basic framework established by the Model Code’s Chapter 2 dealing with the general principles of criminal responsibility. MCLOC was established by the Standing Committee of Attorneys-General or ‘SOCOG’.

221. In 1994, both the Commonwealth Government and the State and Territory Premiers’ Leaders Forum endorsed the Model Criminal Code project as one of national significance. See further: <http://www.ag.gov.au/www/agd/agd.nsf/Page/Model_criminal_code> at 10 January 2008.

222. On 28 June 1990.

223. Criminal Code (Cth) ch 2, pt 2.4, Extensions of criminal responsibility.

224. Criminal Code (ACT) ch 2, pt 2.4, Extensions of criminal responsibility.

225. Criminal Code (NT) pt IIAA, div 4, Extensions of criminal responsibility.

226. Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 26 September 2002, 3278-3279 (Mr Stanhope, Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) <http://www.hansard.act.gov.au/hansard/2002/week11/3278.htm> at 10 January 2008.

227. Model Criminal Code s 5.4.

228. Clayton v The Queen (2006) 231 ALR 500, [19].

229. R v Barlow (1997) 188 CLR 1.

230. Under the Criminal Code (Qld) s 8 could a secondary offended in an extended common purpose offence be convicted of a different offence (that is, manslaughter) to the offence of the principal offender (that is, murder)?

231. R v Barlow (1997) 188 CLR 1, 31-32.

232. R v Barlow (1997) 188 CLR 1, 32 (Kirby J).

233. See Kirby J criticisms in Gillard v The Queen (2003) 219 CLR 1 and Clayton v The Queen (2006) 231 ALR 500 as discussed above.