11.2 Complicity and common purpose

The Model Criminal Code Officers’ Committee considered and rejected proposals to extend or restrict the traditional grounds for imposing liability on an accomplice.²⁹⁵ So far as the conduct element of complicity is concerned, Code and common law employ a common conceptual vocabulary and caselaw in common law jurisdictions has continuing relevance when    the conduct element of complicity under the Code is in issue.

Conduct will amount to aiding, abetting or counsel though it cannot be   said to have caused the commission of the principal offence. To procure an offence, however, is to cause or bring it about: 11.3-C.  The requirement  that the conduct of the accomplice amount “in fact” to aid, abetment or counsel, reflects the common law requirement that an accomplice “manifest…assent to [the principal offender’s] actions in a manner which promotes their performance….”²⁹⁶ It follows that counsel and abetment cannot amount to complicity unless the principal offender was aware of the defendant’s attempts to promote the criminal activities of the principal. However,  liability as an accomplice can be incurred by a person who aids  the commission of an offence, though the principal is completely unaware   of the contribution made by the accomplice.²⁹⁷ Omission  to  perform  a duty may amount to complicity by way of encouraging the performance of an offence by a principal offender who takes the omission as a tacit permission or, in the alternative, as aid to the principal offender.²⁹⁸

Since accomplice liability is derivative rather than direct, the prosecution must prove commission of the offence by the other person.  Though proof  of guilt is necessary, conviction of the other offender is not a prerequisite for conviction of the accomplice. The accomplice can be convicted though the other offender is never brought to trial or gains an acquittal.

The principle of innocent agency supplements complicity, permitting conviction of a person who procured criminal conduct by another in circumstances where that person is innocent of any offence: s11.3 Innocent agency.

In many instances the offence will be committed by an identifiable principal offender with the accomplice playing a subsidiary role by providing counsel or aid. However, identification of offenders as either principals or accomplices is unnecessary for the purposes of conviction. The accomplice and principal are both “taken to have committed [the] offence”: ss(1). There are two situations in which separation of the roles of principal and accomplice is unnecessary:

• Where it is uncertain whether the defendant was principal or accomplice: Conviction of the principal offence is returned if it is established beyond reasonable doubt that the defendant was either principal or accomplice; it is unnecessary to determine which of those roles was played by the defendant.²⁹⁹
• Where two or more individuals combine their activities, each engaging in conduct which amounts to complementary elements of an offence: Common law describes offenders as joint principals when they divide the performance of the criminal conduct among themselves. For example, D1 may deceive V so as to enable D2 to take delivery of goods pursuant to the deception: s134.1 Obtaining property by deception. Recognition of the possibility that offenders may  be guilty as joint principals under the Code is implicit rather  than express.   When each participates in the criminal conduct   so that the conduct elements of the offence are divided between them, each plays the role both of principal and accomplice.

Intention in complicity is intention “with respect to conduct”: 5.2 Intention. It follows from s5.2(1) that the prosecution must establish that the accomplice meant to aid, abet or counsel the principal or procure the commission of the offence. Recklessness with respect to a risk or likelihood that conduct might provide aid, encouragement, counsel or otherwise promote the commission of an offence is not a basis for conviction. The  Code reflects the dominant common law view of the essential fault element in complicity.³⁰⁰ The requirement of an intention to aid, abet, counsel or procure  the commission of an offence by the principal does not have to  refer to a specific offence. Liability as an accomplice is incurred when the principal commits an offence “of the type” which the accomplice meant to promote: s11.2(3)(a). The language of the Code formulation goes no further than common law authorities in providing criteria for determining what constitutes a “type” of offence.³⁰¹

It is necessary to emphasise that the liability of an accomplice is not restricted to offences of the type which the accomplice intended to promote. Proof that the defendant intended to promote an offence by a principal offender opens the door to liability for other offences committed by the principal. Common law extends accessorial liability to any offence which can be said to be within the scope of the offenders’ “common purpose”. Section 11.2 reformulates the doctrine of common purpose as a form of liability for recklessness: see 11.2-F.

Accomplices, who intentionally promote the commission of an offence by another, become hostages to fortune. Once they aid, abet, counsel or procure a particular type of offence, the accomplice can incur liability for any other type of offence committed by the principal.³⁰² The fault element of recklessness rather than intention governs liability for the additional offences. The requirements for this extension of liability can be summarised. An accomplice who meant to promote commission of offence of type A, is liable for offence of type B, committed by the principal offender, when:

• Conduct meant to promote offence A “in fact”³⁰³ aids, abets, counsels or procures the commission of offence B by the principal offender; and
• The accomplice is reckless with respect to a substantial risk that their conduct would aid, abet, counsel or procure the commission of offence B by the principal offender; and

The requirement of recklessness in this extended form of liability does not,  in the usual run of cases, require proof that the accomplice was reckless with respect to the results of their conduct on other individuals. Liability for aid, abetment and counsel is imposed because these activities promote or conduce to the commission of the principal offence; the prosecution is not required  to show that the conduct of the accomplice caused the principal to act.³⁰⁴

Accessorial liability pursuant to the common purpose rule for the additional offence committed by the principal requires proof that the accomplice engaged in conduct which provided aid, counsel or procurement coupled with recklessness with respect to the elements of the principal’s offence, which include each of the physical and fault elements which constitute the principal offender’s liability. The common purpose rule is unusual because it includes, among the circumstances which constitute the physical elements of complicity, the conduct, intentions and knowledge or state of awareness  of another person – the principal offender.

COMMON PURPOSE AND DERIVATIVE FAULT IN THE CODE: CAUSING HARM TO A COMMONWEALTH PUBLIC OFFICIAL

The Code imposes liability both for threatening and causing harm public officials: 147.2 Threatening to cause harm to a Commonwealth public official; 147.2 Causing harm to a Commonwealth public official. Each offence requires proof that the conduct of the offender made the threat or inflicted the harm because of the official’s status or performance of their duty. A hypothetical based on these offences illustrates the extended liability imposed by the Code formulation of the doctrine of common purpose.

Neptune, a drug runner, entered Australian waters with a quantity of prohibited drugs in weighted containers secured to the keel of his yacht. Federal police, acting under lawful authority, sought to board the yacht and search for contraband. When the officers approached the yacht and identified themselves, Neptune told Tarr, his deckhand, to hold them off while he went below and released the weighted containers. He handed a rifle to Tarr and said, “Threaten but don’t shoot. I don’t  want  any  injuries.”  While Neptune was below deck, an officer attempted to board the yacht. Tarr  threatened to shoot  him. When the officer persisted in his attempt, Tarr struck him with the butt of the rifle, breaking his jaw.

Tarr is obviously guilty, as the principal offender, of both offences.  It is clear from the circumstances of the case that he threatened the officer and caused the injury in response to the officer’s performance  of a official function. As Neptune both aided and counselled the threat, he is liable for that offence as an accomplice under s11.2(3)(a). The common purpose rule provides a basis for convicting Neptune of the more serious offence of causing harm to a public official, though he wished to avoid any injury to the officers. Since his provision of the weapon used to inflict the injury amounted to “aid” [s11.2(2)(a)], he would be liable as Tarr’s accomplice, pursuant to the common purpose rule in s11.2(3)(b), on proof that he was reckless with respect to the risk that Tarr would commit the offence. Liability under the rule would require proof that he knew for certain or was “aware of a substantial risk” [5.4 Recklessness] of each of the elements of Tarr’s offence. In particular:

• Recklessness with respect to the risk that Tarr would intentionally cause harm to the officer [s147.1(b) & (c)];³⁰⁵
• Recklessness with respect to the risk that Tarr would cause the harm because of the officer’s status or performance of his official duty [s147(1)(e].

Each physical and fault element of the additional offence committed by Tarr is a circumstantial element of Neptune’s liability as an accomplice under the common purpose rule in s11.2(3)(b). The requirement of proof of Neptune’s recklessness with respect to Tarr’s intentions, motivation or awareness of the circumstances of his action is another example of the extended application of the term “physical element”: discussed 3.1-B.

The common law doctrine of common purpose is satisfied on proof that the accomplice realised that commission of the additional offence was “possible”.³⁰⁶ In the Code, however, reliance on recklessness in the formulation of common purpose requires proof that the accomplice realised that there was a “substantial risk” that the principal would commit the additional offence. The nature of the difference, if any, between Code requirement of “substantial risk” and common law “possibility” is discussed at 5.4-A.

Common law recognises that withdrawal can bar conviction as an accomplice.³⁰⁷ The Code requires the erstwhile accomplice to terminate their involvement in the offence and to take all reasonable steps to prevent the commission of the offence: s11.2(4). The statutory criteria for termination or withdrawal reflect the requirements of the common law test proposed by Gibbs J, as he then was, in White v Ridley.³⁰⁸ The Model Criminal Code Officers’ Committee listed examples of what might amount to reasonable steps to prevent commission of the offence: “…discouraging the principal offender, alerting the proposed victim, withdrawing goods necessary for committing the crime (eg a getaway car) and/or giving a timely warning to an appropriate law enforcement authority.”³⁰⁹ The requirement of reasonable steps is an implied concession that withdrawal or termination is still possible though attempts to prevent the offence prove to be ineffectual. There will be cases, that is to say, where the defendant escapes liability though the principal offender goes on to commit the offence, relying on assistance provided by the defendant before withdrawal.

Since the defendant may escape liability though each of the requirements   for complicity are proved, it is apparent that termination or withdrawal   takes the form of a defence or excuse, rather than a denial of liability: discussed 3.1-A.³¹⁰ Withdrawal or termination will not be considered by the court unless the defendant can point to evidence in support of the excuse: s13.3 Evidential burden of proof – defence.

At common law offenders who “act in concert” in the commission of an offence are said to be parties to a “joint criminal enterprise”.³¹¹ The New South Wales Court of Criminal Appeal gave a succinct and authoritative statement of the doctrine in Tangye:³¹²

[W]here two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise….A joint criminal enterprise exists when two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express….A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.

In its current version, enunciated by McHugh J in the High Court decision in Osland,³¹³ the essential defining element of the doctrine of acting in concert is that liability is taken to be direct rather than derivative. Since the conduct of each of the participants in a joint enterprise is attributed to each of the others, all are taken to be principal offenders.³¹⁴ If A and B agree to steal a vehicle belonging to C, each is taken to have appropriated the vehicle though one keeps watch while the other drives the vehicle away. The doctrine has no existence under the Code. The argument in support of that assertion is short and conclusive.

• The Code “contains all the general principles of criminal responsibility that apply to any offence”; it cannot be supplemented by extraneous principles imported from the common law: s2.1 Purpose;
• Liability under the Code requires proof of:
  • “such physical elements as are, under the law creating the offence, relevant to establishing guilt”: s3.2 Establishing guilt in respect of offences; or
  • conduct which matches the requirements of s11.2 Complicity and s11.3 Innocent agency.
• These possibilities exhaust the grounds for imputation of criminal conduct under the Code. Complicity is a derivative form of liability and the doctrine of innocent agency is restricted to instances where criminal conduct is procured by the principal.

Since the doctrine of joint criminal enterprise, or acting in concert, is taken to be a form of direct liability, it is incompatible with the structure of the Code and has no place in Commonwealth criminal jurisprudence.

The Dictionary to the Criminal Code provides a definition of special liability provisions. There are three varieties:

• Provisions which impose absolute liability for one or more but not all of the physical elements of an offence; or
• Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or
• Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing.

Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. Section 11.2(6) extends the effect of the special liability provisions to complicity. An identical provision appears in 11.1 Attempt where it is discussed at greater length in 11.1-G.

293. Howe [1987] 2 WLR 568 [HL] overruling Richards [1974] QB 776.

294. Section 11.1(1): An accomplice in “an offence [committed] by another person is taken to have committed that offence” (italics for emphasis).

295. MCC, Ch 2: General Principles of Criminal Responsibility (Final Report 1992) 87.

296. B Fisse, Howard’s Criminal Law (1990) 326; P Gillies, Criminal Law (4ed) 160, JC Smith,, “Aid, Abet, Counsel or Procure” in Reshaping the Criminal Law (edited P Glazebrook, 1978) 120, 132-133.

297. Ibid. See also Ready & Manning [1942] VLR 85; Larkins v Police [1987] 2 NZLR 282.

298. P Gillies, Criminal Law(4ed) 186.

299. See Cramp (1999) 110 A Crim R 198 for a discussion of cases on alternative grounds for conviction; See also, S Bronitt & B McSherry, Principles of Criminal Law (2001) 405-409.

300. Giorgianni (1985) 156 CLR 473 is generally taken to require proof that an accomplice acted with the object or purpose of promoting the activities of the principal offender. See S Bronitt & B McSherry, Principles of Criminal Law (2001) 390-391; Bronitt, “Defending Giorgianni – Part Two: New Solu- tions for Old Problems in Complicity” (1993) 17 Crim LJ 305. Compare B Fisse, Howard’s Criminal Law (1990) 330-331, 336-337 arguing, against Georgianni, that liability for complicity should be incurred whether D intends to promote an offence or is merely reckless as to the risk that D’s conduct will have that effect.

301. See Bainbridge [1960] 1 QB 129; Stokes & Difford (1990) 51 A Crim R 25; Ancuta (1990) 49 A Crim R 307 and other common law authorities. Discussed: S Bronitt & B McSherry, ibid, 394-396.

302. The Code departs from the High Court decision in Miller (1980) 32 ALR 321 (HC) which permitted the prosecution to rely on the common law doctrine of “common purpose” to convict Miller of murder though it could not be shown that he meant to promote any offence at all.

303. The requirement in s11.2(2)(a) that conduct amount to aid, abetment, counsel or procuring “in fact” governs all applications of complicity.

304. Complicity by procuring the commission of an offence by another does involve a causal link between the conduct of the accomplice and commission of the offence by the principal: discussed 11.3-C.

305. The offence of causing harm to a Commonwealth public official is committed only if the harm is caused intentionally: s147.1(c).

306. The origin of the common law rule is the much debated decision in Johns (1980) 143 CLR 109. Discussed: S Bronitt & B McSherry, Principles of Criminal Law (2001) 418-422; D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (2001) 1362-1365.

307. P Gillies, Criminal Law (4th ed) 176, B Fisse, Howard’s Criminal Law (1990) 350-352.

308. (1978) 21 ALR 661, 669.

309. MCC, Chapter 2: General Principles of Criminal Responsibility, Final Report 1992, 91.

310. Withdrawal or termination pursuant to s11.2(4) can be characterised , under s13.3(3), as an “excuse provided by the law creating an offence”

311. Discussed: S Bronitt & B McSherry, Principles of Criminal Law (2001), 404-411; D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (2001), 1331-1334, 1362-1365; P Gillies, Criminal Law (4ed), 177.

312. (1997) 92 A Crim R 545; 556-557 endorsed by McHugh J in Osland (1999) 159 ALR 170.

313. Osland (1999) 159 ALR 170.

314. Ibid, 189 (McHugh J), 238 (Callinan J).